Gurubasappa Sidramappa and Another vs State of Karnataka

B. Padmaraj, J.-Heard the arguments of the learned Counsels for the appellants and the learned Additional State Public Prosecutor for the respondent-State and carefully perused the relevant case papers with their assistance.

This is an appeal against the order of conviction. The appellants are the husband and wife and they have been convicted of the offence under Section 302 read with Section 34 of the IPC for having committed the murder of one Siddaramappa Gurubasappa Hosamani, aged about 60 years, on 17-1-1995 at about 5.30 p.m. in the evening, in furtherance of their common intention, in the land of the deceased situated within the limits of Banahatti P.A. Village, Taluk Sindagi. The place of incident comes within the limits of Devarahippargi Police Station. It is alleged that accused 1 throttled the neck of the deceased and accused 2 squeezed the testis of the deceased.

The place of incident is the land of the deceased Siddaramappa situated neat haystack within the limits of Banahatti P.A. Village and within the limits of Devarahippargi Police Station.

The deceased Siddaramappa is the father of accused 1. The accused, the deceased and the material witnesses for the prosecution belong to the Village Banahatti P.A. of Sindagi Taluk. Accused 1 and his wife (accused 2) were living separately from the parents of accused 1. They have no issue. The deceased Siddaramappa and his paralysed wife along with their unmarried daughter Shankaramma, P.W. 1 were living separately from the accused. Accused 1 is the only son of the deceased and he had been living separately along with his wife during the relevant time of this incident, owing to certain differences between accused 1 and the deceased. The deceased Siddaramappa had four daughters including P.W. 1 and the other daughters had been married and they were living with their respective husbands. P.W. 1-Shankaramma being the only unmarried daughter of the deceased, she had been living with her parents. P.W. 3-Siddamma is a married daughter of the deceased and P.W. 4-Appasaheb Gowda is her husband. The deceased had owned 8 acres of 1 and and a house. Out of the 8 acres of land owned by deceased Siddaramappa, 4 acres of land was being cultivated by accused 1 while the remaining 4 acres of land was being cultivated by the deceased. It is the case of the prosecution that accused 1 had been interested in getting the remaining 4 acres of land also to be made over to him during the lifetime of the deceased himself, but the deceased was, however, not willing or not aggreable for the same.

That is to say, accused 1 wanted to snatch away even the remaining extent of land that was in possession of the deceased, which the deceased was not willing to give it to accused 1. In that regard, it is stated that a panchayath was convened in the village and the elders of the village had advised the accused to allow the remaining 4 acres of land to be cultivated by the deceased. This had angered accused 1. While this was so, it is stated that on 17-1-1995 on a certain Tuesday at about 4 or 4.30 p.m. in the evening, the deceased had been to his land. His unmarried daughter P.W. 1 (Shankaramma) had also followed him to the land. On reaching the land, it was found by the complainant P.W. 1 that accused 1 had caught hold of the neck of the deceased while accused 2 had held the testis of the deceased. On seeking the same P.W. 1 immediately went near them and told accused 1 and 2 to leave her father. But, in spite of her intervention, they did not leave the deceased. Ultimately, the deceased fell down and died on the spot on account of the acts committed by accused 1 and 2. This was at about 5.00 p.m. in the evening. Then, the complainant Shankaramma, P.W. 1 returned to her house from the land and told her mother what she saw in the land. Her mother being paralysed was not in a position to move about. Then the complainant P.W. 1 also went and informed this incident to her sister P.W. 3-Siddamma. She also took her sister P.W. 3 and her husband P.W. 4 to the land and pointed out the place where her father was lying dead in the land. In the meanwhile, a few of the villagers also came to the spot and saw the dead body of the deceased Siddaramappa which was lying in his land.

Thereafter, the complainant P.W. 1 went along with P.W. 4 to the jurisdictional Police Station at Devarahippargi and lodged her complaint in respect of this occurrence to the police. P.W. 12, who was then the Police Sub-Inspector of the Devarahippargi Police Station, recorded the oral complaint of P.W. 1 into writing at about 4.00 a.m. on 18-1-1995 at the Police Station and on the basis of which he registered a case and took up investigation. P.W. 11, who was then the Circle Inspector of Sindagi Circle, took up further investigation of this case from the Police Sub-Inspector, P.W. 12 on 18-1-1995 at about 6.00 or 6.30 a.m. in the morning. He held the inquest proceedings over the dead body of the deceased in the presence of panchas P.W. 10 and others which is as per Exhibit P. 8. While conducting the inquest proceedings on the dead body of the deceased, the CPI, P.W. 11 observed injuries over the neck and the testis of the deceased. Then in the presence of the same panchas he conducted the spot panchanama which is as per Exhibit P. 10. The place of incident was pointed out to him by the complainant P.W. 1. He also recorded further statement of P.W. 1 and the statements of P.Ws. 3, 4, 5 and others. He sent the dead body of the deceased for its post-mortem examination. After the post-mortem examination was over, he seized the clothes of the deceased as per M.Os. 1 to 3 under panchanama Ex. P. 11. Then the CPI, P.W. 11, made efforts to trace the accused, but they could not be traced. Hence, on 19-1-1995, he deputed the Police Sub-Inspector-P.W. 12, and his staff to trace the accused persons. Accordingly, on 20-1-1995, the Police Sub-Inspector-P.W. 12, who apprehended the accused persons at Yelagonda, produced them before the Circle Police Inspector, P.W. 11, on the same day along with his report, Exhibit P. 13, After completion of the investigation, the CPI submitted the charge-sheet against the accused persons. This is the sum and substance of the prosecution case as unfolded at the trial.

In order to prove its case against the accused persons, the prosecution had examined at the Trial P.Ws. 1 to 14 and placed on record Exs. P. 1 to P. 14 and M.Os. 1 to 3. P.W. 1-Shankaramma is the unmarried daughter of the deceased. She is also the sister of the accused 1. She is the sole eye-witness to the incident. According to P.W. 1 she had seen the accused 1 throttling the neck of the deceased and the accused 2 squeezing the testis of the deceased, in the land of the deceased on the fateful day. Ex. P. 1 is the complaint lodged by her in respect of this incident. The first information report Ex. P. 1 was lodged by the complainant P.W. 1 at about 4.00 a.m. on the early hours of 18-1-1995 at Devarahippargi Police Station. It would be of some relevance to note here itself that the incident in question took place within the limits of the Devarahippargi Police Station and as such it is the said police station which had jurisdiction over the place of incident where the crime was committed. The complainant P.W. 1 had also explained the delay in lodging the FIR to the police. She also speaks to the motive for the accused to commit the crime. P.W. 2 is the Doctor who conducted the post-mortem examination on the dead body of the deceased Siddaramappa on 18-1-1995 between 1.45 p.m. and 3.30 p.m. and issued the post-mortem report as per Ex. P. 4. The opinion as to the cause of death furnished by the Doctor P.W. 2 is asphyxia as a result of homicidal throttling.

The time since death was 18 to 24 hours prior to the post-mortem examination. P.W. 3-Siddamma is the married daughter of the deceased. The accused 1 is her elder brother. P.W. 3 was informed of the incident by P.W. 1 while she was in her house. She had been taken to the spot by P.W. 1 along with her husband P.W. 4, where she saw the dead body of the deceased. According to P.W. 3 she was informed of the incident by the complainant P.W. 1 about an hour before sunset. She also speaks to the motive for the accused to commit the crime. P.W. 4 is the husband of P.W. 3 and the brother-in-law of the accused 1. He was also informed of the incident by the complainant P.W. 1 and had been taken to the spot by her. He also speaks to the motive for the accused to commit the crime. He further says that he had also accompanied the complainant P.W. 1 to the police station for lodging the complaint in respect of this incident. P.W. 5-Siddamma had been examined to speak regarding the differences between the accused 1 and the deceased, but turned hostile to the prosecution. However, he has supported the case of the prosecution to a certain extent. P.W. 6-Siddaramappa is a person from the same village, who knows both the accused as well as the deceased and he speaks to the motive aspect of the case. He also speaks about the time of incident. He has denied the suggestions that the incident in question took place before 3.00 p.m., on that day. P.W. 7-Gangabai has been examined to speak to the fact of the extrajudicial confession made by the accused 2 before her, but she had turned hostile to the prosecution case.

P.W. 8-Dhanappa is a neighbouring landowner and also distantly related to the deceased. He speaks to the fact that the deceased and the accused were living separately, but pleads ignorance about the dispute between the accused 1 and the deceased. He had been declared as hostile to the prosecution. P.W. 9-Mallaiah had been examined by the prosecution to speak regarding the dispute that existed between the accused and the deceased, but he had turned hostile to the prosecution. P.W. 10- Gurushanthappa is a panch witness for the inquest proceedings held on the dead body of the deceased, the spot panchanama and the seizure of the clothes of the deceased. He clearly speaks to the injuries that were found on the dead body of the deceased as well as the location where the dead body was lying in the land. According to him, the inquest proceedings were held in the land at about 7.00 a.m. in the morning. P.Ws. 11 and 12 are the Investigating Officers. P.W. 13 is the Police Constable who had attended to the post-mortem duty. P.W. 14 is a Police Constable who is a scribe of the complaint Ex. P. 1 given by P.W. 1. According to P.W. 14, the complainant P.W. 1 narrated the incident in detail to the Police Sub-Inspector, P.W. 12, who in his turn dictated the same to him. He also speaks to the fact that P.W. 1 had come to the Police Station at about 4.00 a.m. on 18-1-1995. This is all the evidence lead by the prosecution before the Trial Court.

The accused 1 when examined under Section 313 of the Cr. P.C. has made certain admissions. He admits that during the relevant time of this incident, P.W. 1-Shankaramma, her father and her mother were the only three persons who were residing together in their house. He has stated that the deceased himself while pleading his inability to cultivate the land personally, had given a portion of the land to him for cultivation. He has further stated that he had been to the police station for the purpose of lodging the complaint and at that time, complainant P.W. 1 came along with P.W. 4 to the Police Station. Further, according to him, while he was detained in the police station, P.Ws. 1 and 4 accompanied the police to the village. He pleads his ignorance as to how the dead body of the deceased was lying in the land. He also seems to have produced certain documents along with the patta. The accused 2 would also admit the fact that during the relevant time of this incident P.W. 1-Shankaramma was living with her parents and they were the only 3 inmates of their house. She did not speak to any other fact. It would be of some relevance, to note here itself that she does not even say that her husband had gone to the police station to lodge the complaint. Both the accused 1 and 2 have denied all the incriminating circumstances appearing against them in the prosecution evidence. They did not however examine themselves, nor they have examined any witness on their behalf.

The Trial Court, on consideration of the entire evidence on record, has convicted both the accused 1 and 2 under Section 302 read with Section 34 of the IPC by its impugned judgment and order of conviction. Hence, this appeal by the convicted accused.

Learned Counsel for the appellants has vehemently contended before us that there was an inordinate delay in lodging the first information report to the police by the complainant P.W. 1. While elaborating this submission, he contended that though the complainant P.W. 1 was at Sindagi for sometime waiting at the bus stop to go to Devarahippargi Police Station, she did not think of lodging any complaint with the Police at Sindagi, where the office of the Circle Inspector was situated. He contended that though P.Ws. 1, 2 and 4 are the material witnesses for the prosecution, P.W. 1 is a planted witness. According to the learned Counsel for the appellants, P.W. 1 has made several improvements and as such she is highly unreliable witness. He also contended that the complainant P.W. 1 besides being a highly interested witness, has also a tendency to exaggerate the things. He therefore contended that the Court cannot place implicit reliance upon the evidence of P.W. 1 to convict the accused. He also contended that there was absolutely no motive for this accused to commit such ghastly crime and the one attributed to the accused is too remote. He also made a faint attempt to argue that the time of death is much earlier than 5.00 p.m. as alleged by the prosecution. He further contended that the medical evidence in the case does not support the eye-witness account given by the complainant P.W. 1 regarding the incident of assault committed on the deceased. While elaborating this submission he contended that on the facts and circumstances of this case, it is the medical evidence which is to be preferred to that of the oral evidence of P.W. 1.

He further contended that the complainant P.W. 1 did not file any complaint to the Dalapathi of the village, though available at the village. According to the learned Counsels for the appellants, the Dalapathi of the village who had accompanied P.Ws. 1 and 4 to the Police Station has been deliberately kept back by the prosecution and hence the non-examination of Dalapathi is fatal to the prosecution case. He further reiterated his argument by saying that the complaint Ex. P. 1 is highly belated and does not come into existence in the normal circumstance. According to the learned Counsel for the appellants, the complaint Ex. P. 1 has been concocted after due deliberation. He contended that admittedly the complainant P.W. 1 and her companion P.W. 4 had reached Sindagi bus stand at about 10.00 p.m. in the night and they went and lodged the complaint at the jurisdictional Police Station at Devarahippargi at about 4.00 a.m. and thus there a time gap of 10.00 p.m. to 4.00 a.m. to go from Sindagi to Devarahippargi Police Station and this time gap has been utilised by the Investigating Agency to give a shape to the case and more so when the complainant, P.W. 1 did not think of informing the police at Sindagi, where the office of the CPI was situated. He further contended that the complainant P.W. 1 has assigned 2 different roles to the accused 2. He contended that in the FIR she assigns the role of throttling the neck along with the accused 1, to the accused 2 while in her testimony in Court she assigns the role of squeezing the testis of the deceased to the accused 2. He therefore, contended that there is a drastic improvement made by P.W. 1 in Court over the FIR-Ex. P. 1. He therefore contended that the complaint Ex. P. 1 has been concocted after due deliberation and does not come into the existence under a normal circumstance. He also contended that the complainant P.W. 1 being the sole eye-witness to the incident and having regard to her conduct in changing the role assigned to the accused 2 from one of throttling to one of squeezing, it has to be stated that she is not telling the truth at least in respect of the accused 2.

He therefore, contended that the evidence of the sole eye-witness P.W. 1 is not reliable. He therefore, contended that this is a case where the Trial Court has not appreciated the evidence properly and hence on reappreciation of the entire evidence on record, the accused may be acquitted of the charges framed against them.

In support of his submissions, learned Counsel for the appellants has relied upon the following decisions.- (1) Sharad Birdhichand Sarda v State of Maharashtra, AIR 1984 SC 1622;

(2) Sarwan Singh and Others v State of Punjab, AIR 1976 SC 2304;

(3) Guli Chand and Others v State of Rajasthan, AIR 1974 SC 276;

(4) Thulia Kali v State of Tamil Nadu, AIR 1973 SC 501;

(5) Anneppa and Others v State of Karnataka, 1978(1) Kar. L.J. 30 (DB).

As against this, the learned Additional State Public Prosecution had contended that the evidence of the sole eye-witness P.W. 1 has been properly and correctly appreciated by the Court below and recorded the conviction against the accused for the offence under Section 302 read with Section 34 of the IPC, which warrants no interference at the hands of this Court in the appeal. He contended that though P.W. 1 is the sole eye-witness to the incident, her presence at the spot at the time of this incident is quite natural and probable and hence it inspires confidence. He also contended that the complainant P.W. 1 had lodged the complaint with the jurisdictional police without undue delay and hence the lodging of such complaint would lend assurance to the testimony of P.W. 1 in Court. He also contended that merely because the complainant P.W. 1 did not think of lodging any complaint with the Police at Sindagi where only the office of the CPI was situated and she went and lodged a complaint with the jurisdiction police station, that by itself is not a ground to discredit the evidence of P.W. 1 which is otherwise consistent and reliable. He therefore contended that both the accused persons were rightly convicted for the offence under Section 302 read with Section 34 of the IPC. In support of his submission the learned Additional State Public Prosecutor has relied upon a decision in Narinder Singh and Another v State of Punjab, AIR 2000 SC 2212.

This is really a most unfortunate case of patricide, where the only son of the deceased along with his wife appears to have murdered his own father over a petty dispute regarding the cultivation of 1/2 (half) the extent of the land retained by the deceased, while the remaining extent of land was being cultivated by the accused 1. The dispute was in respect of the 4 acres of land which had been retained by the deceased. The murder committed by the accused, if proved, is both gruesome and unprovoked. The prosecution sought to establish the guilt of the appellants by adducing the evidence relating to the motive of the crime, eye-witness to the occurrence and the abscondence of the accused from the date of the commission of the offence till they were arrested by the police.

The fact that the deceased Siddaramappa had met with an homicidal death is not in serious dispute. Even otherwise it is amply proved from the medical evidence placed on record coupled with the other proved circumstances in the case. The doctor P.W. 2 who conducted the post-mortem examination on the dead body of the deceased on 18-1-1995 between 1.45 p.m. and 3.30 p.m. as per the P.M. report Ex. P. 4, found the following features and injuries on the dead body of the deceased:

"Both eyes closed. Face turned dark blue colour. Both hands and feet bluish in colour. Rigor mortis present both in upper and lower extremities. P.M. lividity present over the back." Scratch marks of different sizes are present over the anterior portion of the neck on both sides 2" away from the midline distance of 1/2" size 1" x 1/2" are present over the zest side of the neck. 21/2" away from the midline. Right side of the neck scratch mark size11/2" x 1/2" present 2" away from the midline of the neck.

On dissection ++ of the both wings of the hegain bone and ++ of the hyraid bone in the middle periodical hemorrhage present over the ++ sites of the hyaign hyraid bone.

(2) Scratch mark present over the front of the scratum on dissection".

On dissetion of the dead body of the deceased, the doctor, P.W. 2 found that the kidneys were conjected and fracture of both ends of hyoid bone and fracture of hyoid bone of the wings i.e., to say it was found that both ends of the hyoid bones were fractured. As to the cause of death, the doctor P.W. 2 has clearly opined that it was due to asphyxia as a result of homicidal throttling. The time since death as opined by the doctor, P.W. 2 is 18 to 24 hours prior to the post-mortem examination. It is hardly required to be stated that when the doctor P.W. 2 has expressed certain views, of which some are favourable to the accused and other favourable to the prosecution, it is to be considered along with other circumstances appearing in the case and the medical evidence in the case cannot be read in isolation. That is to say the medical evidence has to be considered along with the other circumstances appearing in the case. After all the medical opinion is based on inferences drawn from various facts present in the case. It is not as if the homicidal death of the deceased is completely ruled out by the doctor P.W. 2 who conducted the post-mortem examination on the dead body of the deceased. Hence, the evidence of the doctor P.W. 2 taken in conjunction with all other circumstantial evidence on record including the suggestions made by the defence, will prove beyond doubt that the deceased Siddaramappa had met with a homicidal death in his own land on the date and time as alleged by the prosecution. The inquest report proved through the evidence of the panch P.W. 10 and the Investigating Officer P.W. 11 would lend ample support to the medical evidence on record to establish the fact that the deceased Siddaramappa had met with a homicidal death on the date and time as alleged by the prosecution.

We shall now proceed to consider the evidence with reference to each of these above materials, relied upon by the prosecution to establish the guilt against the appellants.

Motive.-It is not in dispute that during the relevant time of this incident, the deceased Siddaramappa had been living separately from the accused (the only son of the deceased) along with his paralysed wife and unmarried daughter P.W. 1. The deceased Siddaramappa appears to have partitioned an extent of 8 acres of land belonging to him between himself and his son, accused 1. The deceased Siddaramappa had also owned a house in the village besides owning an extent of 8 acres of land situated within the limits of Banahatti Village. The said extent of land owned by the deceased was divided into two equal shares; each measuring 4 acres. The deceased Siddaramappa had given half of the extent of the said land measuring about 4 acres to accused 1 and had retained the remaining 4 acres of land for himself. It appears that accused 1 wanted to snatch away even the remaining extent of the land retained by the deceased, but with the intervention of the elders, the deceased Siddaramappa had however been allowed to retain the remaining half of the land. This had angered accused 1. It appears that after the said partition or division of the land into two equal shares, accused 1 had been living separately from the deceased along with his wife, accused 2. Likewise the deceased Siddaramappa had been living separately from the accused, along with his paralysed wife and unmarried daughter P.W. 1. The accused has no issues of their own. This aspect of the case has been clearly spoken to by P.W. 1 in para 2 of her deposition.

It is further brought out in the cross examination of the complainant P.W. 1 that there is a well and a pumpset in the land given to the share of accused 1. Accused 1 had separated himself from the deceased about 15 years back. Since then accused 1 had been cultivating his share of the land which the deceased was cultivating the remaining half of the land which was retained by him. But the well water was being exclusively used by accused 1 to irrigate the land that was given to his share and he had declined or refused to give water to irrigate the land of the deceased. Thus, there was hostility between the accused and the deceased. Thus even according to the appellants themselves the relationship between the accused and the deceased were very much strained at the relevant time of this incident. The evidence of P.Ws. 3 and 4 is also to the same effect as that of the complainant P.W. 1 regarding the motive for the accused to commit the crime. In fact, even a hostile witness like P.W. 5 has stated that accused 1 was living separately from the deceased and they were cultivating their respective lands separately. But he would however say that since the deceased himself had pleaded his inability to cultivate the land personally had told accused 1 to cultivate the land on his behalf. He would further plead his ignorance that accused 1 had snatched away the land that was given to the deceased by threatening him with dire consequences. In view of these answers given by P.W. 5, he was treated as hostile by the prosecution. He Would however admit in his evidence that when he saw the dead body of the deceased, it was lying near the hay stock in the land of the deceased. Under the cross-examination done by the learned Public Prosecutor on behalf of the prosecution, he would admit to have stated before the police that himself and one Siddaramappa had advised accused 1 and persuaded him to give back the portion of the land that was allotted to the share of the deceased. Thus, the evidence of P.W. 5 would also show that there was some hostility between the accused and the deceased at the relevant time of this incident. Coming to the evidence of P.W. 6 who belonged to the same village and aged about 60 years, he has stated in his evidence that accused 1 and the deceased were living separately prior to the incident and that further in the land owned by them, accused 1 was cultivating half of the extent and the deceased was cultivating the other half.

He has further stated that at or about the time of the incident, the deceased and his wife along with their unmarried daughter P.W. 1 had been residing together in the house of one Gyanamma. As there was hostility between accused 1 and the deceased, the deceased had been living separately from accused 1 in the house of the said Gyanamma. He has also stated that there was a dispute between the deceased and accused 1 in respect of the land in question and in that regard, he had advised them not to quarrel with each other and to cultivate or enjoy the land to the extent of their half share each and not to indulge any such quarrels. No doubt in the cross examination of P.W. 6, it is elicited that after they had resolved the dispute between them, the relationship between accused 1 and the deceased was quite cordial and since then they had not quarreled with each other. But, the fact that remains on record is that till the death of the deceased, he had been living separately from accused 1 on account of the hostility between them with regard to the dispute in respect of the land. P.W. 8 is the neighbouring landowner and he has also stated that prior to the death of the deceased, he was living separately from the accused and both the accused and the deceased were cultivating their lands separately. He has further stated that since there was hostility between the deceased and accused 1, the deceased Siddaramappa was living separately from his son, in the house of one Gyanamma. The fact that the deceased Siddaramappa had been living separately from accused 1, who was his only son at such an old age, along with his paralysed wife and unmarried daughter P.W. 1 is amply proved from the evidence on record. If really there was cordiality between accused 1 and the deceased and their relationship were not strained, there was absolutely no reason for the deceased at such age to live separately from his only son, accused 1, along with his paralysed wife and unmarried daughter P.W. 1.

Therefore, the fact that there was hostility between the accused and the deceased stands established from the material placed on record. Therefore, this is not a case where there is any dearth for the motive. It has to be pointed out that in the instant case that the lust of land is a very sensitive matter. We have known a very large number of cases resulting in serious disputes culminating in murders over small land disputes. Various persons react differently in similar circumstances and hence we cannot therefore exclude the possibility of the accused having reacted very sharply against what he considered to be exclusively entitled to being the only son of the deceased. It is quite likely that accused 1 wanted the entire extent of the land to be cultivated exclusively by himself, to the total exclusion of his aged parents and sisters. This would undoubtedly provide an adequate motive for the murder which is demonstrated by the fact that though accused 1 was the only son of the deceased, he was living separately from his father along with his paralysed wife and unmarried daughter P.W. 1 in the house of his another married daughter Gyanamma. Therefore, on the facts and circumstances of this case, we are of the clear view that this is a case where the prosecution has succeeded in showing that there was hostility between the accused and the deceased, which had made them to live separately from each other and also to cultivate their shares of land separately. When the prosecution has succeeded in showing the possibility of some ire for the accused towards the deceased, the inability to further put on record the manner in which such ire would have swelled up in the mind of the accused to commit the offence cannot be construed as a fatal weakness in the prosecution case. It is an almost impossibility for the prosecution to unravel the full dimension of mental disposition of an accused towards the deceased. That apart the adequacy or otherwise of the motive for the accused to commit the crime is of little importance in a case where the prosecution relies upon the evidence of an eye-witness. Further, as we have already stated that atrotious crimes are committed from a very slight motive, not merely from malice and revenge but to gain a small pecuniary advantages. Therefore, we cannot fathom the mental disposition of the assailant, nor we could rule out the possibility of some cause of immediate provocation for the accused to commit such crime. It would be known to the deceased and the accused. The deceased is not alive to tell us what was that provocation which preceded the commission of such offence. The accused did not disclose it to us. What has been disclosed by the prosecution in the course of its evidence is that there was hostility between the accused and the deceased over the cultivation of the land belonging to the deceased. Under the circumstances, therefore, as we have already stated we are of the clear view that this is not a case where there is any dearth for the motive. That apart when the case of the prosecution rests entirely on the evidence of an eye-witness, the motive will loose its significance. At any rate in the instant case the prosecution has been able to place on record that there was motive for the accused to commit the crime against the deceased.

Eye-witness.-P.W. 1-Shankaramma, an unmarried daughter of the deceased is the only eye-witness to the incident. She has deposed about the manner in which the deceased Siddaramappa (her father) had been done to death by these two accused persons. She has stated in her evidence that on that fateful day at about 4 p.m. in the evening, her father the deceased Siddaramappa had been to his land. She had followed the deceased to the land after fetching water to their house. That is to say after the complainant P.W. 1 had brought water and kept it in the house, she had followed the deceased to the land on that fateful evening. On reaching the land, she saw accused 1 holding the neck of the deceased and accused 2 squeezing the testis of the deceased. Despite her going near them and telling them to leave his father, accused did not leave the deceased. The deceased Siddaramappa died on the spot on account of the acts committed on him by these accused. The said incident had occurred at about 5 p.m. in the evening in the land of the deceased. Thereafter she went and informed this incident to her sisters P.W. 3- Siddamma at her house and also took P.W. 3 and her husband P.W. 4 to the land where her father had been done to death. She had also told to her mother as to what she saw in the land. But her mother was unable to move about and hence she could not accompany her to the spot where the dead body of the deceased was lying. She has further stated that as there were no conveyances available to her at that time, she came to foot to Sindhagi and from there she travelled by means of a bus to the jurisdictional police station at Devarahippargi and there she lodged a complaint to the police which is as per Ex. P. 1. She has lodged the complaint to the police at about 4 a.m. in the morning.

She has further stated that since it did not immediately occur to her at that time to mention in her complaint Ex. P. 1 about accused 2 squeezing the testis of the deceased, she did not mention this fact specifically in the complaint Ex. P. 1, but she has stated this fact in her further statement recorded by the police. She has also stated that P.W. 4 had accompanied her to the police station at the time of the lodging of the complaint. Even accused 1 would admit in his statement recorded under Section 313 of the Cr. P.C., about the complainant P.W. 1 coming to the police station along with P.W. 4 and the police accompanying them to the village vide the answer to question No. 10. No doubt accused 1 has further stated that he himself had lodged a complaint with the police but nothing has been brought on record to substantiate the same, nor the accused had led any reliable evidence to substantiate his say that he had also lodged a complaint with the police. Further, if really accused 1 had lodged a complaint with the police, he would not have pleaded his ignorance about the manner in which the dead body of the deceased was lying in the land and his wife namely accused 2 could not have remained silent without whispering a word about the same in her statement recorded under Section 313 of the Cr. P.C. It would be of some relevance to note here itself that accused 2 has not stated that accused 1 had gone to the police station to lodge a complaint. Under the circumstances therefore, if really accused 1 had lodged a complaint, he would have spoken to about the details of his complaint and the manner in which the incident in question had occurred or the circumstances leading to the death of the deceased. But quite strangely accused 1 is totally silent on this vital aspect of the case though he says that he had gone to the police station to lodge a complaint in respect of this incident.

If really accused 1 had lodged a complaint to the police in the manner as sought to be made out by the defence, he must have known the circumstances under which the death of the deceased had occurred. But, strangely both the accused are totally silent on this aspect of the case. Therefore, it cannot be believed that accused 1 could have lodged a complaint to the police in respect of this incident. On the other hand the materials placed on record would show that he was found to be absconding from the village along with his wife from the date of the commission of the offence till they were arrested by the police. The fact that P.W. 1 had been to the police station to lodge a complaint, besides being corroborated by the evidence of the Police Sub-Inspector, P.W. 12 and the scribe P.W. 14 is also spoken to by P.W. 4 who had accompanied her to the police station. By trying to find fault with the complainant P.W. 1 for not lodging the FIR earlier than 4 a.m. on the said day, we are reaching neither here nor there. It is to be remembered that the complainant P.W. 1 is an unmarried daughter of the deceased, having only a paralysed mother in the house. Accused 1 is the only brother of the complainant P.W. 1. We cannot shut our eyes to the reality of life that for the complainant P.W. 1, it was her father on whom she was totally dependent for her future and was hardly aged about 18 years, who was killed right in front of her eyes. If she had taken a couple of hours to regain her composure to go to the police station at Devarahippargi for lodging the complaint along with P.W. 1, it only sounds as normal conduct of a bereaved daughter in the aforesaid circumstances. We find no justification for the defence to use that short delay for denouncing the core of the prosecution story.

Further, it is not possible to presume that the FIR, Ex. P. 1 could have been lodged much later than the time alleged by the prosecution. This is because apart from the positive evidence of the complainant P.W. 1 and her companion P.W. 4 as well as the evidence of P.Ws. 12 and 13 that it was lodged at 4 a.m. in the morning of 18-1-1995, there is the evidence of P.W. 10 who is a panch for the inquest proceedings and he has stated that the inquest proceedings were held in the village at the land where the dead body of the deceased was lying at about 7 a.m. in the morning. This could not have been possible if the FIR, Ex. P. 1 was not lodged in the manner and at the time as alleged by the prosecution. P.W. 10 has clearly stated that he was summoned to the land of Siddaramappa and the inquest proceedings were held at 7 or 7.30 a.m. in the morning. In fact the inquest report Ex. P. 10 would also disclose that the inquest proceedings were held during the interval between 7 and 8 a.m. on the morning of 18-1-1995. Now coming to the scene of incident, the dead body of the deceased was lying in his land near the haystack. This has been spoken to by P.W. 10 as well as the other prosecution witnesses. It was found during the observation mahazar that the marks of struggle were found on the spot. Even the neighbouring landowner P.W. 8, though turned hostile, would admit in his evidence that on coming to know of such incident in the evening, he had been to the land and saw the dead body of the deceased Siddaramappa which was lying near the haystack in the land of the deceased.

Therefore, the fact that the incident took place on the date, time and place as alleged by the prosecution is proved from the materials placed on record. In fact, P.W. 6 who is an independent villager, has clearly denied the suggestion made by the defence that on that day the news had been spread in the village at about 3 p.m. itself that the deceased Siddaramappa had died in the land. On the other hand he has specifically stated that it was only in the evening, the news had been spread in the village about the death of the deceased Siddaramappa and he had also been to the spot at about 5 p.m. and not at 4 p.m. as suggested by the defence. The venue of the offence lies in the land that had fallen to the share of the deceased Siddaramappa. It is to be remembered that the other half or the remaining extent of the land was being cultivated by the accused persons. It has to be stated therefore that the scene of murder is rural, witnesses to the case are rustics and so their behavioural pattern and perceptive habits have to be judged as such. The too sophisticated approaches familiar in Courts based on unreal assumptions about human conduct cannot obviously be applied to those given to the lethargic ways of our villagers. It has to be stated that when scanning the evidence of the various witnesses, we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony, provided there is the impress of truth and confirmity to probability in the substantial fabric of the testimony delivered by a witness. It would be of some relevance to note here itself that the Trial Court which recorded the statements and seen the witnesses giving the evidence in Court has a great advantage over the Appellate Judge who reads the recorded evidence and hence regard must be had to this advantage enjoyed by the Trial Court of observing the demeanour and delivering, of reading the straight forwardness and doubtful candour, rustic, naivete etc., of persons who testify before the Court. It is no doubt true that where the Trial Court draws its conclusion not so much on the directness or demeanour of the witnesses while on oath but upon general probabilities and on expert evidence, the Court of appeal is in as good a position to assess or arrive at legitimate conclusions as the Court of first instance or the Trial Court.

As we have already stated that the deceased Siddaramappa died of violence on the evening of 17-1-1995 at about 5 or 5.30 p.m. in his land is indubitable and is also proved from the evidence on record. But who did him to death is a moot point. The complainant, P.W. 1 is the only witness who had deposed about the manner in which the deceased Siddaramappa had been done to death by these, two accused persons. As we have already noticed, she has sated in her evidence that the deceased had been to his land on that fateful day at about 4 p.m. in the evening and she had also followed him to the land after keeping a pot of water in the house. It is to be remembered that at the time of this incident, the deceased Siddaramappa had been living separately along with his paralysed wife and unwed daughter P.W. 1. Therefore, there was no other person except the complainant P.W. 1 to assist the deceased in his work. That being so it is not unnatural for the complainant P.W. 1 to have followed the deceased to the land after keeping a pot full of water in the house on that fateful evening. It is quite likely that the deceased Siddaramappa having left the house for the land alone in the evening, that P.W. 1 could have followed him to the land when the day was to set in within an hour or so. It has also come in the evidence of the complainant, P.W. 1 that it was aroutine for her to accompany the deceased to the land and accordingly if the complainant P.W. 1 had followed the deceased to the land, it cannot be considered tobe unnatural. Therefore, on the facts and circumstances of the case, there is nothing unusual or unnatural if the complainant P.W. 1 had followed the deceased to the land on that fateful evening and in the situation that were then prevailing in the house of the deceased. She has clearly stated that as soon as she saw accused 1 holding the neck and accused 2 squeezing the testis of the deceased, she told them to leave her father but in spite of that they did not leave him and the result was that her father died on the spot.

No doubt, in her complaint Ex. P. 1, the complainant, P.W. 1 has not specifically stated about the squeezing of the testis of the deceased by accused 2. But she says that in her further statement, she has stated this fact to the police. That being so, the said fact by itself does not introduce any serious infirmity in the evidence of the complainant, P.W. 1 to disbelieve her version regarding the incident. Further, the accused sought to make out a case by way of suggestions made to some of the prosecution witnesses and also in his statement under Section 313 of the Cr. P.C. that the deceased had died earlier to 3 p.m. on that day and that accused 1 had been to police station to lodge a complaint in respect of this incident. But as we have already stated this plea of the accused has not been substantiated by placing any cogent material on record. Therefore, there is absolutely no basis to so infer. The central evidence against the accused consists of the statement of P.W. 1, the unmarried daughter of the deceased and the sister of accused 1, who at the relevant time of this incident was admittedly living with the deceased. She has given a complete narrative of the prosecution case as witnessed by her. P.W. 1 cannot be described as an interested witness. There can be no doubt that having regard to the fact that the incident took place in the evening hours in the land of the deceased, the only natural witness who could be present to see the assault would be the complainant P.W. 1, who had followed the deceased to the land. It is no doubt true that it was sought to be argued by the learned Counsel for the appellant that there was no reason for the complainant P.W 1 to have followed the deceased to the land. But is has to be pointed out that it is elicited by the accused themselves in the cross-examination that it was routine for the complainant P.W. 1 to accompany the deceased to the land and further she was apprehending some danger to the deceased and as such she had made it a point to accompany the deceased to the land. In the face of these answers elicited by the accused themselves in the cross-examination of P.W. 1, the contention of the appellant that there was no reason for the complainant P.W. 1 to have followed the deceased to the land cannot be sustained.

It is no doubt true that the complainant P.W. 1 is a close relative of the deceased. But, she being the natural witness cannot be regarded as an interested witness. In the instant case there is absolutely no evidence to indicate that P.W. 1 bore any animus against the accused. Merely, because she is a close relative of the deceased, her evidence cannot be discarded on that score alone. As has been rightly pointed out in the decision relied upon by the learned Counsel for the appellants that a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. On the other hand a close relative of the deceased would be the last person to screen the real culprit and falsely implicate an innocent person. It is true when feelings run high and there is personal cause for enmity that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but the foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. It was also sought to be contended by the learned Counsel for the appellants that though the complainant, P.W. 1 who had been accompanied by Dalapathi and P.W. 4 was at Sindhagi bus stop waiting to board a bus to go to Devargi Police Station, she did not think of lodging a complaint at Sindhagi where the office of the CPI was situated. It has to be pointed out that there is no dispute that the place of incident was situated within the limits of Devarahippargi Police Station and being accompanied by Dalapathi and P.W. 4, it is quite likely that she might have been told to go to the jurisdictional police station to lodge a complaint with the police in respect of this incident.

Hence, there is nothing unnatural for the complainant P.W 1 not to lodge a complaint at Sindhagi and to lodge a complaint with the police at Jurisdictional police station at Devarahippragi. Unless there are indications of fabrication, the Court cannot reject the prosecution version as given in the FIR and later substantiated by evidence merely on the ground of delay or on the ground that she did not lodge a complaint at Sindhagi where the office of the CPI was situated and instead she had lodged a complaint in respect of this incident with the police at the jurisdictional police station. Therefore, for all these reasons we are unable to reject the evidence of the complainant P.W. 1 merely on the ground that she is unmarried daughter of the deceased and was living with him and that she did not lodge any complaint at Sindhagi where the office of the CPI was situated. We have carefully perused the entire evidence of the complainant P.W. 1 in the light of the other circumstances appearing in the case and we find that shorn of a few embellishments here and there her testimony as a whole has a ring of truth and sense of straight forwardness as a result of which her evidence inspires great confidence. If really the complainant, P.W. 1 had intended to fabricate the case against the accused, she could have as well ascribed the role of the squeezing of the testis to accused 2 instead of saying in the FIR that she was also found to be throttling the neck of the deceased along with accused 1. We find that she has given a correct picture of what she has seen at the land. In these circumstances, therefore, we do not see any reason to discard the evidence of the sole eye-witness P.W. 1 to the incident. It has to be stated incidentally that giving more details while deposing in Court, are not of importance as such. Therefore, when once the evidence of eye-witness P.W. 1 is believed, the prosecution case stands proved apart from anything else. It will however appear that the prosecution had led the circumstantial evidence to support the intrinsic evidence given by P.W. 1 in Court.

There is nothing on evidence to show that there was any other eye-witness to the occurrence is no doubt true that the incident in question took place in the land of the deceased at about 5.00 or 5.30 p.m. in the evening and there were lands belonging to others including the land that was given to the share of the accused 1, near about the land of the deceased. But, there is nothing on record to show that when the incident in question took place, there were persons present in the near vicinity of the land of the deceased. Further, it is difficult to believe that the accused could have done this act when some others were present in the neighbouring lands. It is only because the complainant, P.W. 1 had later on followed the deceased to the land, she was able to witness the incident in question or otherwise the incident would have gone unnoticed. There being no evidence on record to show that there were other persons in the near vicinity of the land, where the incident in question took place, the non-examination of any other neighbouring landowners will be of no consequence. We may incidentally mention here itself that even the non-examination of the Dalapathi of the Village, who alleged to have accompanied the complainant, P.W. 1 to the police station for lodging of the complaint Exhibit P. 1, is of no consequence in the case. This is because it is nobody''s case that the Dalapathi of the village was an eye-witness to the incident, nor it is the case of the accused that P.W. 1 had lodged any complaint with the said Dalapathi, which was in any way at variance with the one lodged by her at the police station as per Exhibit P. 1. It is quite likely that the Dalapathi of the Village might have thought it proper to take the complainant herself to the jurisdictional police station to lodge the complaint, instead of obtaining the complaint from her and forwarding the same to the jurisdictional police station. Under the circumstances, therefore, we find no merit in the contention of the learned Counsel for the appellants that non-examination of the Dalapathi of the village is fatal to the prosecution. In the instant case, the prosecution had also examined one of the neighbouring landowner as P.W. 8, but he had turned hostile to the prosecution. The incident in question appears to have occurred when there were no other persons in the near vicinity of the land of the deceased. But, unfortunately for the accused and fortunately for the prosecution, the complainant, P.W. 1 who had followed her father to the land, was able to witness the incident and depose about the same in Court. It is hardly required to be stated that the Courts are concerned with the quality of evidence and in a Criminal Court, conviction can be based on the sole evidence if it inspires confidence. In this case, we do not find anything elicited in the cross-examination of the complainant P.W. 1 to impeach her testimony in Court regarding the occurrence being witnessed by her. In our considered view, the complainant, P.W. 1 being the close relative of the deceased, is no ground to discard her version, and on the other hand, the relative of the deceased will not try to implicate any innocent person in the murder of the deceased and more so in this case when the accused also happens to be the close relative of the complainant P.W. 1. We do not find anything in the cross-examination of the complainant, P.W. 1 not to rely upon her evidence. Further, her evidence gets support from the medical evidence as well as the prompt lodging of the FIR, Exhibit P. 1 to the police at the jurisdictional police station without undue delay. Her conduct in disclosing the incident immediately to her relatives and mother, on her return from the land and taking P.Ws. 3 and 4 also to the land and pointing out to them the place where the dead body of the deceased was lying would further lent assurance to her version in Court. Therefore, we find no reason to discard the evidence of the complainant, P.W. 1 as an eye-witness to the incident. No doubt, the complainant, P.W. 1 is the sole eye-witness to the incident, but, however her evidence inspires confidence, the same could be relied upon by the Court and conviction can be based on the sole eye-witness account given by the complainant, P.W.1.

Abscondence.-The last but not the least is the circumstance regarding the abscondence of the accused relied upon by the prosecution. The Investigating Officer, P.W. 11 has stated in his evidence that on 18-1-1995, the appellants were not traceable in the village and hence on 19-1-1995, he had deputed his staff as well as Police Sub-Inspector to trace the accused persons. Accordingly, on 20-1-1995, the Police Sub-Inspector apprehended the accused persons and produced them before the Investigating Officer, P.W. 11 along with his report as per Exhibit P. 13. The Police Sub-Inspector, P.W. 12 has sated that after the investigation was taken over by the CPI-P.W. 11 on 18-1-1995, he had been deputed by him to trace the accused and accordingly, on 20-1-1995, he apprehended the accused persons at a place called Yelagonda and produced them before the CPI, P.W. 11 along with his report as per Exhibit P. 13. We are not impressed by the plea of the accused that the accused 1 had gone to the police station in order to lodge a complaint and that he was detained at the police station. The said plea of the accused besides being not proved or substantiated by any credible evidence on record, is not capable of being accepted and is without any basis. The abscondence in the present case is only of a short duration, yet it is of some relevance because ordinarily if the appellants were innocent, they would have been found in their house consoling the wife and daughters of the deceased. At any rate, they ought to have visited the spot where the dead body of the deceased was lying along with the other villagers. Therefore, on the facts and circumstances of this case, we are of the view that the circumstances regarding abscondence of the accused is also stands proved in the case.

The aforesaid being the position regarding the materials brought on record by the prosecution, to bring home the guilt of the appellants/accused, we are of the view that the accused 1 and 2 are wholly and solely responsible for the death of the deceased. The evidence of the complainant P.W. 1 is in our view quite convincing and reliable to accept her testimony regarding the occurrence.

Now the evidence on record discloses that the accused 1 had throttled the neck of the deceased while the accused 2 had squeezed the testis of the deceased and thereby caused his death. Both the accused 1 and 2 are the husband and wife and they were both present at the time of this incident at the spot. In fact, as we have already noticed, the accused 1 had been given half the extent of the land belonging to the deceased and he was cultivating the same which was adjoining to the land of the deceased. That is to say, the accused were cultivating the land adjoining to the land of the deceased. The medical evidence of the Doctor, P.W. 2 would show that scratch marks of different sizes were present over the anterior portion of the neck on both sides, 2" away from the middle of the neck. On dissection it was found by the Doctor, P.W. 2, the fracture of the hyoid bone at both the wings and also in the middle. The Doctor, P.W. 2 also found a scratch mark over the front portion of the scrotum. But, the final opinion of the Doctor, P.W. 2 regarding the cause of death is that it was due to asphyxia as a result of homicidal throttling. Therefore, ultimately, the death of the deceased Siddaramappa had occurred not on account of squeezing of the testis, but due to the throttling of the neck, which is attributed to the accused 1 and not to the accused 2. That is to say, it is the act attributed to the accused 1 which had resulted in the death of the deceased and not the act attributed to the accused 2. Therefore, the fatal injury is caused only by the accused 1. Insofar as the act attributed to the accused 2 is concerned, it is not the cause of the death though it had resulted in an injury to the scrotum. However, no internal injuries were found on dissection of the scrotum. Now, the question is whether the appellant 2 could be convicted with the aid of Section 34 of the IPC. Under Section 34 of the IPC, a person must be physically present at the actual commission of the crime for purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 of the IPC is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. The existence of common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of the common intention is necessary. For purposes of common intention, even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of occurrence. But in order to apply Section 34 of the IPC apart from the fact that there should be two or more accused, two factors must be established, viz., the common intention and the participation of the accused in the commission of an offence. If a common intention is proved, but no overt act is attributed to the individual accused, Section 34 of the IPC will be attracted as essentially it involves vicarious liability, but if participation of the accused in the crime is proved and a common intention is absent, Section 34 of the IPC cannot be invoked as one of the ingredients to establish or to apply Section 34 of the IPC will be absent. It is no doubt true that in every case it is not possible to have direct evidence of a common intention and it has to be inferred from the facts and circumstances of each case. Adverting to the facts of this case, from the injuries on the deceased as found by the Doctor, P.W 2, it is crystal clear that the death of the deceased was caused due to asphyxia as a result of throttling and the said injury is attributed to the appellant 1 as could be seen from the evidence of the sole eye-witness, P.W. 1. Insofar as the appellant 2 is concerned, as per the evidence of P.W. 1 in Court, the appellant 2 had squeezed the testis of the deceased and the injury that was found on the dead body of the deceased as per the post-mortem report Exhibit P. 4 is that there was a scratch mark over the front of the scrotum.

But, the said injury caused by the appellant 2 as could be seen from the opinion furnished by the Doctor-P.W. 2 regarding the cause of death, has not caused the death and the death of the deceased was due to asphyxia as a result of homicidal throttling which as we have already stated is attributed to the appellant 1. According to the complainant, P.W. 1, appellant 2 had only squeezed the testis of the deceased which admittedly has not resulted in the death of the deceased. On the other hand, the death had occurred due to asphyxia as a result of homicidal throttling which is directly attributed to the appellant 1. Leaving aside the contradiction between the FIR and the evidence of P.W. 1 in Court and taking into account the entire scenario, it is difficult for us to hold that the appellant 2 also shared the common intention with the appellant 1 when the appellant 1 caused the death of the deceased by throttling his neck. From the evidence of the complainant P.W. 1, it is apparent that when she reached the land, the appellant 1 was found to be holding the neck of the deceased and the appellant 2 was found to be squeezing the testis of the deceased. It would therefore appear that by the time the complainant, P.W. 1 would reach the land, the incident in question had already started and it is not known as to how the incident in question had been initiated. It is further apparent that the land that was fallen to the share of the appellant 1 was adjoining to the land of the deceased. Under the circumstances therefore, it is difficult to say as to how the incident in question had started. It is however established from the evidence of the complainant P.W. 1 that it is the appellant 1 who had throttled the neck of the deceased which was resulted in his death.

Whereas, appellant 2 had only squeezed the testis of the deceased which had resulted in a scratch injury to the scrotum and there were no internal injuries. The said injury appears to be a simple injury. At any rate, the evidence on record does not disclose that it was either a fatal injury or a grievous injure. Under these circumstances when the fatal injury is attributed to the appellant 1 and the appellant 2 is stated to have caused only scratch injury, on the scrotum by squeezing the testis and also when it is not known as to how the incident in question had started, it is difficult to hold that the appellant 2 also shared the common intention with the appellant 1 for the causing the murder of the deceased which might have developed at the spur of the moment. In the case of Dukhmochan Pandey and Others v State of Bihar, AIR 1998 SC 40, the Hon''ble Supreme Court has held that there lies a distinction between the common intention and similar intention and the question whether there exists common intention in all the persons who made some overtact resulting in the death of a person, is a question of fact and can be inferred only from the circumstances. The Hon''ble Supreme Court had held that the distinction between the common intention and the similar intention may be find, but is nonetheless a real one and if overlooked may lead to miscarriage of justice following the ratio in the aforesaid case and applying to the facts and circumstances of the present case, as unfolded through the evidence of the sole eye-witness, P.W. 1 it is not possible for us to hold that the appellant 2 also shared the common intention with the appellant 1 and hence her conviction under Section 302 read with Section 34 of the IPC cannot be sustained on the facts and circumstances of this case. Now coming to the question as to the nature of the offence committed by the appellant 2, the evidence of the complainant P.W. 1 would disclose that the appellant 2 had squeezed the testis of the deceased. The medical evidence in the case shows that the deceased had sustained only a scratch over the scrotum and it appears that there were no corresponding internal injuries. The said injury attributed to the appellant 2 can be considered to be a simple injury. Hence, she can be held liable for the offence under Section 323 of the IPC. Her conviction is liable to be altered to one under Section 323 of the IPC. In this connection, a reference may be made to a decision in Prithi v State of Haryana, AIR 1994 SC 1582, where, having regard to the medical opinion the injury to the testis being not the direct cause of death, it was held that the offence only amounts to one punishable under Section 323 of the IPC. We accordingly, set aside the conviction of the appellant 2 under Section 302 read with Section 34 of the IPC and instead convict the appellant 2/accused 2 under Section 323 of the IPC

Insofar as the appellant 1 is concerned, we are of the view that he has been rightly convicted by the Trial Court under Section 302 of the IPC and it needs no interference. We are of the considered view that the accused 2 squeezed the testis of the deceased without sharing the common intention of the other accused as we have already stated the injury to the scrotum was only a scratch injury and can be considered to be simple injury. Therefore, appellant 2 is convicted for her individual act under Section 323 of the IPC. Likewise the appellant 1 is convicted for his individual act under Section 302 of the IPC. The incident in question took place in the year 1995 and we are now in the year 2000. 5 years have already elapsed. The accused 2 is the wife of the accused 1. It appears that they have no issues. It is also to be noted that in the FIR, Exhibit P. 1, the role that was attributed to accused 2 is that she was also throttling the neck of the deceased along with her husband, viz., accused 1. But, subsequently, P.W. 1 sought to attribute a role of squeezing of the testis of the deceased to the accused 2, as we have already noticed the injury to the scrotum appears to be a simple injury. These circumstances can be taken note of while considering the question of imposing a proper and adequate sentence to the appellant 2 under Section 323 of the IPC We are told that the appellant 2/accused 2 had remained in custody for a period of about a month before she was released on bail.

Therefore, on the facts and circumstances of this case, we are of the considered view that the ends of justice would be met if the appellant 2 is let off with the sentence already undergone by her. Insofar as the appellant 1 is concerned, since the incident had occurred about 5 years back, the sentence of life imprisonment and also of a fine of Rs. 5,000/- imposed by the Trial Court for the offence under Section 302 of the IPC appears to be just and proper and it needs no interference in the appeal.

We have carefully perused the decisions relied upon by the learned Counsel for the appellant. There is no quarrel about the principles enunciated in those decisions. But the difficulty is about the application of those decisions to the facts and circumstances of this case. In our considered view, they have no application to the facts and circumstances of this case. Hence, individual reference to each of the decisions is not needed.

In the result, therefore, the appeal filed by the appellants succeeds in part, that is to say it is partly allowed. The conviction of the appellant 1 under Section 302 of the IPC as well as the sentence imposed on him by the Trial Court is hereby confirmed. But, the conviction of the appellant 2 under Section 302 read with Section 34 of the IPC is hereby set aside and instead the appellant 2 is convicted for the offence under Section 323 of the IPC and she is let off with the sentence already undergone by her. The fine, if recovered should be paid to the complainant P.W. 1 Shankaramma, who is the dependent and the unmarried daughter of the deceased. The appeal is disposed of accordingly. The bail bond of the appellant 2 stands discharged.