AWWANNA TIMMAPPA PUJARI Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The appellant Awwannappa was the accused in Sessions Case No. 21 of 1957 on the file of the Extra Additional Sessions Judge of Belgaum. He was charged and tried for having caused the death of his son Thimmappa by cutting him with a sickle on the morning of 11-11-1956 at Hoskoti, and thereby having committed an offence punishable Under Section 302 of the IPC The accused had pleaded not guilty. The learned Sessions Judge bund him guilty of the offence and sentenced him to imprisonment for life; it is against the said conviction and sentence, the present appeal has been preferred.

(2.) The prosecution case was to the effect that the deceased Thimmappa was the son of the accused by his first wife. The said first wife of the accused having died while she was still very young, the accused married a second wife about 20 or 25 years back. About 1 or 1 1/2 months prior to the occurrence, a division, had taken place between Thimmappa and the accused; along with some other properties, an open site adjoining the house of the accused had been given to Thimmappa; on this site, Thimmappa had put a mud covered roof over the walls and he had been residing there with his wife. As the rain water used to be flowing from the roof of the accused's house on to the mud roof under which Thimmappa had been dwelling, Thimmappa had put up some obstruction on his roof in order to prevent the water flowing on to his mud roof from the adjoining roof of the accused's house. The accused wanted this obstruction to be removed and in that connection, words had passed between the accused and the deceased on the day previous to that of the occurrence. On the morning of the day of the occurrence (which was a Sunday), the accused nttacked Thimmappa with a sickle when Thimmappa was near his cattle shed which was near his hcrase. The accused inflicted injuries with the sickle and on being pursued by the accused, Thimmappa ran away in the direction of Koreva temple which was about 20 akadis away and fell down there and expired. (We are informed that an akadi is about a baru or about 4 feet in length.) P.W. 2 Lachappa who happened to be passing in front of Thimmappa's house just at that time, heard a cry "Ayyoyo" from the side of Thimmappa's house, ran in. that direction and saw the accused hitting...Thimmappa on the neck with a -sickle. He also law Thimmappa running towards the temple of Karcva, being pursued by the accused. He went and caught hold of the accused, and Pandappa another son of the accused came and snatched away the sickle from the hands of the accused. Thereafter, P.W. 2 took the accused and made him sit on the katta in front of the accused's house. P.Ws. 3 and 4, who are two women who had been standing on the road talking with each other, also saw Thimmappa running in the direction of Kareva temple and falling down there. P.W. 3 has given evidence in a somewhat confused manner and it is probable that she must have become extremely frightened and ran away without observing the details. At one time she states that she saw the accused having a sickle in his hand and at another time she states that she did not see the sickle in the hands of the accused; admittedly she had got frightened and ran away. But, P.W. 4 Neelawa has given very clear evidence. She has stated that P.W. 2 Lachappa caught hold of the accused who was pursuing Thimmappa. She states that Thimmappa had been cut and was bleeding and that the accused had a sickle in his hand. She also states that Pandappa snatched away the sickle from the hands of the accused. P.W. 1 Hanamappa who is a nephew of the accused, had interceded on the previous day between the accused and the deceased when they were quarrelling about the removal of the obstruction that had been put up by the deceased on his mud roof. On the morning of the occurrence, when P.W. 1 was returning from the side of his field after answering the calls of nature, he saw a crowd which had gathered near Kareva's temple. He went and saw the corpse of Thimmappa which was lying there with injuries on the body. He learnt from P.W. 2 Lachappa that it was the accused that had killed Thimmappa. He also saw the accused who was sitting on the katta of his house and that the clothes on the body of the accused had been stained with blood. He immediately went and reported the matter to the Police Patil. Then he also got written his complaint as per Ex. 5 and gave it to P, W. 9, the Police Patil. The Police, Patil P.W. 9, on learning from P.W. 1 about this incident went and saw the dead body of Thimmappa which was lying near Kareva temple. He was informed by P.W. 2 Lachappa who was there, that it was the accused that had killed the deceased. P.W. 9 saw the accused sitting in front of his (accused's) house and that the accused's clothes were blood-stained. P.W. 9 took the accused into custody. Then, P.W. 9 took P.W. l's complaint Ex. 5 and his own report as per Ex. 22 and went to the Police Station at Katkol; he took with him the accused also. After reaching Katkol which was about 18 miles away, he handed over the accused and Exs. 5 and 22 to the Police Officer who was in charge of the Police Station House. P.W. 11 who is the Police Sub-Inspector that was in charge of the Police Station House at Katkol, states that it was at about 6-15 P.M. that he received Exs. 5, 22 and the accused who had been brought there by the Police Patil.

(3.) The evidence of P.W. 2 shows that he actually witnessed the accused hitting Thimmappa on the neck, with the sickle. The evidence of P.W. 2 about the accused having pursued Thimmappa, about Pandappa having snatched the sickle from the hands of the accused and about P.W. 2 having caught hold of tie accused and led him away has been corroborated by P.W. 4 Neelawa. To some extent it is corroborated by the evidence of P.W. 3 also, though P.W. 3 appears to have been too much frightened at that time to have properly observed the details. Without any delay, the whole incident was reported to the Police Patil by P.W. 1. The Police Patil took the accused into custody and took him to the Police Station House and produced him before the Police Sub-Inspector P.W. 11 on the same day. The accused wore blood-stained clothes when he was produced before P.W. 11. No good reason has been shown, as to why the evidence of these witnesses should not be believed. In the course of his examination Under Section 342 of the Cr.PC, the accused has admitted that he had been wearing the bloodstained articles Nos. 1 and 2 and that he was taken into custody by the Police Patil and then produced before the Police Station Officer at Katkol. But the explanation given by him is that it was his son Pandappa that had inflicted the injuries on Thimmappa, and that thereupon, he (the accused) went and embraced Thimmappa and that is how his clothes came to be bloodstained. He also denied that there was any sickle in his hand; he denied that any sickle from his hand was snatched away by Pandappa. It is worthy of note that this explanation was not put forward in the court of the Committing Magistrate; on the other hand, the accused stated before the Committing Magistrate that he did not know anything about the offence. The explanation given by the accused before the Court of Session is clearly an afterthought. The evidence of the prosecution witnesses above referred to, is, in our opinion, sufficient to establish that it was the accused that committed the offence which resulted in the death of Thimmappa. The reason given by the accused for these witnesses deposing against him is, that they are doing so with a view to shield Pandappa. We do not see any ground for the witnesses trying to shield Pandappa if he was the real offender; there are no good grounds to suspect these wit-nesses of trying to falsely implicate the accused. Sri Dayananda the learned Advocate for the appel-lant urged that Pandappa should have been examined as a witness; but, we find from the records that a memo has been filed in the trial Court by the Public Prosecutor to the effect that the prosecution does not wish to examine Pandappa on the ground that he has become hostile. There is nothing very surprising in this, in view of the fact that Pandappa is no other than a son of the accused. t Objection cannot be properly taken, under these circumstances, to the non-examination of Pandappa. It was pointed out on behalf of the appellant that while according to the evidence of P.W. 2, one Sivanappa who came there removed his shirt from his body and bound it round the neck of Thimmappa after the incident, it appears from Ex. 5 as if P.W. 2 had informed P.W. 1 that it was the accused that bandaged the neck of Thimmappa with the shirt; we find from Ex. 5 which is in Kan-nada that what P.W. 1 was told by P.W. 2 was really that it was Sivanappa that bound his shirt round Thimmappa's neck; while typing the English translation of Ex. 5, a typing mistake appears to-have been made with the result that the typed copy reads as if it was the accused that was bandaging Thimmappa's neck. From the original document, we are satisfied that there is no inconsistency between P.W. 2's evidence and what he told P.W. 1 in regard to this matter. It was pointed out that this Shivanappa has not been examined. There is nothing to indicate that Shivanappa, apart from having gone there and bandaged the injury on the neck of Thimmappa, had 4 witnessed any part of the incident as such; his non-examination by the prosecution cannot be said to be a material omission.