Judgment:
M.F. Saldanha, J
1. This appeal is directed against a conviction recorded by the learned I Additional Sessions Judge, Dharwad in S.C.No.32 of 1994. Originally 7 persons were put up on trial on the allegation that they had committed the murder of Channabasawa on 11.6.1993 at about 8.30 a.m. by strangulating her and there was also a further charge that she had been assaulted by means of grinding stone. On the conclusion of the trial, the learned Judge convicted A1 and A2 of the offence punishable under Section 302 read with 109 I.P.C. and A3 of the offence punishable under Section 324 I.P.C. The meaning accused were acquitted of all the charges and it is against the conviction and sentence of A1 to A3 that this appeal has been preferred.
2. The appellants' learned advocate has taken us at considerable length through the evidence of PW.1 - the complainant Shivalingappa for purposes of demonstrating that there has been a long standing and hostile dispute between the various branches of the family in relation to both the agricultural land as also the residential house which originally belonged to Shivamurthappa. The learned advocate has also placed considerable reliance on the fact that these disputes inevitably resulted in complaint to the police and both civil and criminal litigations over the years, as a result of which, the hostilities had virtually reached a flash point. She has even demonstrated that the complainant in his evidence had taken up the contention that he had kept his 3 children with his parents-in-law and that he himself was comprehensive of going to the one half part of the house because of the hostile situation that was prevailing. At the same time, the learned advocate has submitted that there was a suggestion put to the complainant that his wife was alleged to have been involved in some immoral conduct which the complainant has denied. The learned advocate submitted that all these pieces of evidence would clearly point to the fact that the husband and wife were placed in a very desperate situation and in this background, there were two strong possibilities, the first of them being that the wife could have committed suicide and the second one being that PW.1 the husband for all these reasons particularly the fact that his wife was instrumental in filing cases against other family members, could have been responsible for killing her himself.
3. As far as the theory of suicide is concerned, we have very carefully examined it and we find that even on probabilities, it will have to be ruled out. The deceased was a young woman and it has come on record that she had a young child with her, apart from which, the death has taken place due to strangulation with a rope and it is impossible for the deceased to have killed herself by tightening the rope. There is nothing to suggest that she hanged herself as the body was found on the ground and the injuries that would have accompanied a case of hanging to the neck spine etc. were absent. On the contrary, the other external injuries on the body clearly indicate an assault and a struggle and it is very dear to us therefore that there was no question of this being a case of suicide. In this context we need to point out that apart from the mere suggestion of immoral conduct which appears to be totally unjustified, there is nothing to indicate that the deceased had done anything which would warrant PW.1 killing his own wife. Had he done any such thing, having regard to the proximity of the opposite parties there would certainly have been an immediate reaction and complaint from them. More importantly we have taken note of the conduct of PW.1 who has immediately come to the spot when he was called and who has himself gone to the police and lodged a complaint and it would be too far fetched to accept that if he were the murderer, that he would remain there or that he would himself go to the police. This possibility, therefore also has to be excluded.
4. The appellants' learned advocate has taken us in some detail through the evidence of the crucial witnesses in this case PWs.4 and 6. PW-4 - Thippavva is a neighbour and PW.6 - Parashuram Gangappa Kale is her son. According to PW.6 he was unwell and was therefore in the house on that date. Appellants' learned advocate has demonstrated to us from the sketch that it is physically impossible for PWs.4 and 6 to have witnessed the incident from the door of their house as there are two walls in between. She also points out that the version of these two witnesses is inherently unacceptable because they contend that Accused A1 and 2 dragged the deceased into the houses - that they had put the rope round her neck and were tightening it when she was begging of them not to kill her. A3 was assaulting the deceased on the chest with a grinding stone. Learned advocate submits that if the version of PWs. 4 and 6 is to be believed, that there is no reason why they would not have gone to the assistance of the deceased or raised an alarm to save her. Instead, it is alleged that PW.6 was sent to call the husband of the deceased. Learned advocate submits that such an incident would have attracted the attention of all the residents in the line of houses and that it is significant that police have not called any of those persons as witnesses. The main head of criticism is that PWs.4 and 6 are admittedly connected with the families and that they therefore 'share' the hostilities and the bias and in this background, that it would be extremely unsafe to accept their evidence. On the other hand, the learned Additional SRP has submitted that there are absolutely no infirmities in this evidence, that these two persons are the most natural witnesses and that the Court must rely on this evidence. We need to record here that the learned trial Judge has discussed the evidence in considerable detail and has come to the conclusion that the evidence of these two witnesses is not only reliable but that it deserves to be accepted. We find no ground on which these conclusions can be found fault with.
5. The appellants' learned advocate has concentrated heavily on the medical evidence firstly in support of her contention that the prosecution version is incorrect. On a scrutiny of the post mortem report and in particular, the injuries on the deceased, we find that the injuries on the cheeks, elbows, knee and more importantly on the neck fit in totally and completely with the prosecution evidence. There were rope ligature marks on the neck; there were injury marks on the chest and the injuries on the elbows, knee and cheeks completely fit in with the evidence of PWs.4 and 6 who have pointed out that A1 and A2 were the persons whom the eye witnesses saw not only dragging the deceased to the house but more importantly tightening the rope around her neck. Along with this, the allegation against A3 that she was assaulting the deceased on the chest with the grinding stone is borne out by the fact that such injury marks were in fact detected on the chest area of the deceased. In this background, we find total and complete corroboration to the evidence of PWs.4 and 6 from the medical evidence.
6. The main submission canvassed by the appellants' learned advocate is that the hostility between the factions was so high that it would be dangerous to accept the evidence of the prosecution witnesses who belonged to the opposite camp and that in this background, in the absence of any independent corroboration, the evidence of the so called eye witnesses should not be relied upon. We do concede that in such a background, a Court is required to be extremely cautious and a Court is also required to cautiously examine from various angles, the possibility of fabrication or improvements or wrong involvements and we have examined the totality of the evidence from these points of view. We do find that the evidence is trustworthy; that it is free from blemish or infirmities and that in this background, the Trial Court was justified in accepting it.
7. The learned Additional SPP has pointed out that originally, the charge was under Section 149 IPC in which case all persons who are established to have taken part in the unlawful assembly are ipso facto liable for every offence that has been committed. The learned trial Judge has acquitted the remaining accused as the evidence against them is found to be unsatisfactory. As far as A1 and A2 are concerned therefore the conviction would have to rest under Section 302 read with 109 IPC and as far as A3 is concerned, since the only acts attributed to her are with regard to the assault on the chest of the deceased with a grinding stone, the conviction would have to be under Section 324 IPC simpliciter.
8. The last submission which the appellant's Learned Advocate put forward was that as far as A1 and A2 are concerned, that the conviction under Section 302 read with 109 IPC would be incorrect and that it should be altered to one under Section 304 Part II read with 109 IPC. We are unable to accept this submission because the material on record clearly indicates that they had used a rope and had abetted and assisted each other in causing the death of the deceased and in this background, it is very dear that the intention was to commit murder.
8(a). Learned Advocate also submitted that A3 being a lady had been on bail during the trial, and that she has undergone approximately 2 months in custody prior to the conviction and about 4 months in custody after conviction. She had made a strong plea to the Court that even if her appeal were to fail and having regard to her age, the fact that she is a lady and the overall circumstances of the case, that the sentence awarded to her should be reduced to the period already undergone. We are inclined to accept this plea.
9. In the result, the appeal partially succeeds. As far as the conviction of A3, the offence under Section 324 IPC stands confirmed. But the sentence awarded to her by the Trial Court stands reduced to the period already undergone. Accordingly, her bail bond to stand cancelled.
As far as A1 and A2 are concerned, we confirm the conviction and sentence awarded to them by the trial Judge for the offences under Sections 302 read with 109 IPC.
The appeal accordingly stands disposed of.