ELIAMMA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Leave granted.

(2.) Challenge in this appeal is to the judgment of a learned single Judge of the Karnataka High Court dismissing the appeal filed by the appellants. Both the appellants faced trial for alleged commission of offences punishable under Sections 302, 201 read with Section 34 of the Indian Penal Code, 1860 (in short the IPC). Learned Third Additional Sessions Judge D.K. at Mangalore in Sessions Case No. 94 of 1995 held that the accused persons were to be convicted in terms of Section 304 Part II and Section 201 read with Section 34 IPC, so far as appellant No.1 is concerned and Section 201 read with Section 34 IPC so far as appellant No.2 is concerned.

(3.) Background facts giving rise to the trial are as follows : M. T. George (hereinafter referred to as the deceased) was addicted to alcohol and used to assault A1. A1 had become desperate with the bad conduct of the deceased. On 6.3.1995 at 9.30 p.m. the deceased picked up quarrel, assaulted A1 and tried to pull her sari. A2 and A3 were present. Because of the ghastly conduct of the deceased, A1 dealt a blow with the iron rod on the head of the deceased which resulted in his death. The accused persons stealthily buried the body in the backyard of the house. A1 in the early morning of 7.3.1995 informed school teacher (PW 1) of the village that the deceased quarrelled with her and tried to pull her sari. Therefore, she hit the deceased on his head and that he was unwell. PW1 heard the fact from A1 and went away. In the evening PW1 met A2 and made enquiries about the health of the deceased. A2 informed that his father was dead and that they buried the body in the backyard. PW1 suspected foul play and lodged FIR before the police. At the instance of A1 and A2 the dead body buried in the backyard was exhumed on 8.3.1995 in the presence of T.E.M. The prosecution relied on the extra judicial confession made by A1 before PW 1 and the circumstances of recovery of the dead body at the instance of both the accused persons proved their guilt. An appeal was preferred before the High Court which by the impugned judgment held that actual conviction should have been in terms of Section 304 Part I IPC. But in the absence of challenge by the State there was no scope for interference. The evidence of PW 1 was found to be credible. The appeal was dismissed.