Karnataka High Court
Basappa Balappa Bhangi And Others vs State By Dharwad Rural Police Station on 30 March, 1998
Equivalent citations: 1999(1)ALT(CRI)228, 1999CRILJ2689, 1999(1)KARLJ197
Author: B.N. Mallikarjuna
Bench: B.N. Mallikarjuna
JUDGMENT M.F. Saldanha, J.
1. The nine appellants before us were the accused 1 to 9 in Sessions Case No. 76 of 1993 decided on 21-1-1996. They were charged with having committed the offences punishable under Sections 143, 347, 148 and 302 of the IPC in relation to the murder of Chavappa; as also under Section 307 read with Section 34 of the IPC and Section 307 read with Section 149 of the IPC in relation to the injury caused to P.W. 11 Mahantesh whose left forearm was amputated in the course of the incident. The prosecution alleges that the nine accused were members of an unlawful assembly, that they were armed with axes and sickles and that on 18-3-1993 at about 11-30 a.m. on the road in front of the house of accused 1-Basappa situated at Harobelavadi Village within the limits of Dharwad Rural Police Station and attacked the deceased Chavappa Fakirappa Bhangi as a result of which he sustained multiple injuries and died on the spot and furthermore that P.W. 11-Mahantesh was also injured in the course of the same incident when he went to the assistance of his father Chavappa and that his left forearm came to be amputated. The incident took place in broad daylight in the village and prosecution alleges that P.Ws. 7 to 11 who are also relations had witnessed the incident. The matter was reported to the police who came to the village and commenced investigation. The accused came to be arrested on 23-3-1993 and the prosecution alleges that pursuant to a certain statement made by the accused that they led the police and the panchas to a place near the river which is very close to the scene of offence and that the weapons MOs. 3 to 11 namely axes and sickles which are alleged to have been blood stained were recovered pursuant to those statements. The evidence essentially consists of the oral depositions in this case. The learned Trial Judge accepted the oral testimony and held the charges established as against all the accused. They were accordingly convicted and sentenced to undergo imprisonment for various terms as set out in the judgment, the longest of which is the sentence of imprisonment for life under Section 302 of the IPC with the lesser sentences running concurrently with this one.
2. Before proceeding further, it would be useful to set out the relationships between the parties which are of some importance. Accused 1, accused 2, accused 4, accused 5 and accused 8 are brothers and accused 3 and accused 7 are also brothers. Accused 6 is the son of accused 1, accused 9 is the sister's son of accused 1, accused 1, accused 3 and accused 7 are cousins. As far as the deceased Chavappa is concerned, it is necessary to mention that P.W. 11-Mahantesh is his son. P.W. 7-Madivalappa is the nephew of the deceased, P.W. 8-Somappa is related both to the accused and to the deceased, P.W. 9-Ellavva is the wife of the deceased and P.W. 10-Anasuya is the daughter of the deceased.
3. At the very outset, we need to indicate that the prosecution has put forward two or three possible reasons for the incident in question. The learned Counsel who represents the accused-appellants in this appeal has devoted sometime towards dealing with this aspect of the matter and he points out to us that none of these so called motives are in fact acceptable. One suggestion is that the quarrel was in relation to a sum of Rs. 10,000/- which Erappa got from his department and which was to be apportioned between accused 2 and accused 3. We do not propose to devote much time to this because Mr. Sebastian is right insofar as this is only a suggestion but there is hardly anything to support this as being a motive for the commission of such a serious incident. The second ground adduced by the prosecution is that the family of the accused used to hire out utensils from the community hall, of which P.W. 11-Mahantesh was the Secretary earlier. It is alleged that the accused family had not paid certain overdue hire charges and that P.W. 11-Mahantesh had reported the matter to P.W. 8-Somappa who succeeded him. There are also allegations to the effect that accused 2 had picked up a quarrel with P.W. 11 and that on another occasion accused 3 had picked up a quarrel with P.W. 14 and in the latter of these incidents the deceased had intervened and accused 3 had assaulted the deceased because of which P.W. 11 came and assaulted accused 3. Again, these are all commonplace incidents of life in a village which are not really serious enough to result in an attack of the present type wherein the deceased received as many as 18 injuries on different parts of his body all of which were the result of a savage attack which in turn left him dead. It is clear to us that there must have been either strong provocation or some background which was extremely serious and which had virtually exploded into fury as otherwise, it is difficult to explain an attack of such intensity. Apart from the death that occurred, when P.W. 11-Mahantesh tried to intervene he was so severely dealt with that his left arm was virtually amputated in the attack. Having regard to the nature of the incident, it is clear to us that even a combination of all the incidents that are referred to by the prosecution could not have been good enough to trigger off such an attack. Though Mr. Koti, the learned Additional Public Prosecutor submitted that each of these incidents fuelled and aggravated the earlier situation and resulted in what happened, we are inclined to accept the submission put forward by Mr. Sebastian that the prosecution has really failed to establish the real motive for the incident. That however does not make very much of difference because it is now well-settled law that if the motive is established it only adds to the prosecution case but if the motive cannot be established, it does not in any way affect the validity of the remaining evidence which is capable of sustaining the charge on its own credibility.
3-A. The first ground of attack canvassed by Mr. Sebastian hinges around the fact that the dominant role attributed by the prosecution witnesses in this case is to accused 3. Even though all the nine persons are named in the FIR and even though they consistently attribute overt acts to all the nine accused and the evidence consistently also mentions that all nine of them were armed with deadly weapons namely axes and sickles, the fact remains that the main role as far as the use of the weapons is concerned has been attributed to accused 3. Mr. Sebastian submitted that his general attack as far as P.Ws. 7 to 11 are concerned, is that they are all closely related to the deceased, that obviously there was a lot of ill-will and hostility between the two branches and consequently there is no doubt about the fact that the P.Ws. 7 to 11 were motivated by a very strong sense of vindictiveness as against the accused inter alia because P.W. 11 himself was so badly injured that his forearm had been amputated. Mr. Sebastian submits that obviously some incident did take place which resulted in the death and the injury but it is his contention that the main evidence has been directed against accused 3 and it is his case that even assuming without admitting that the evidence establishes the charges as against this accused, that the involvement of the other eight persons is clearly an act of vendetta. He has taken us in detail through the evidence of these witnesses and he submits that even if the Court accepts that they were present when the incident took place that the Court must separate the grain from the chaff in accepting the position that because of the death and the injury, P.Ws. 7 to 11 were determined at all costs to involve and implicate the entire family i.e., accused 1 to accused 9. Mr. Sebastian has in passing requested the Court to test the evidence of P.Ws. 7 to 11 from only two points of view. Firstly, he submitted that if the prosecution version put forward by the P.Ws. is correct, there would have been nothing left of the deceased who is supposed to have been mercilessly attacked by nine persons wielding axes and sickles and he submits that short of making mince-meat of the deceased, it is impossible for him to have ended up with just 18 injuries out of which only 12 or 13 were of some consequence. A similar argument has been pressed into service as far as P.W. 11-Mahantesh is concerned where Mr. Sebastian submits that if a group of nine persons were attacking the father when he intervened that Mahantesh would never have survived and that he would have been virtually cut to pieces. Both these arguments have been pressed into operation to support the submission that this was obviously an attack of one person directed against the deceased and that Mahantesh also got the benefit of the fury when he went to his father's rescue. Mr. Sebastian submits that even if the prosecution case is partially accepted, that for the aforesaid reasons the charge of unlawful assembly would have to fail completely in so far as there could not have been five or more assailants for the reasons indicated and secondly, that at the very highest accused 3 would be liable for a conviction.
4. The learned Additional Public Prosecutor submits that the incident has taken place in broad daylight in the middle of the village and virtually in front of several persons and if the evidence were to be scrutinised it may be seen that it was a sudden and swift attack which did not last long. Obviously, it was in a public place witnessed by many persons. His explanation is that this is the reason why despite an attack by nine armed persons, the deceased did not have more injuries than what he received and the reason why P.W. 11 escaped alive. He has taken us through the evidence of P.Ws. 7 to 11 in order to support his contention and to demonstrate to us that the accused immediately threw down the weapons and ran away from that place. This explanation does fit in totally with the evidence of P.Ws. 7 to 11. We are unable to accept the contention put forward on behalf of the appellants that the facts of the case do not support the theory that all nine of them were participants in the two attacks, in so far as we have read and re-read the evidence and the record in this case and in our considered view there is overwhelming evidence to indicate the presence of all the nine accused and the participation of all of them. The fact that the incident did not take a most serious turn was because it happened in the village during daylight hours in the presence of several persons.
5. The subsidiary argument canvassed by Mr. Sebastian is that even if the Court were to accept the evidence of P.Ws. 7 to 11 that there are clear indications of the fact that the incident was started by accused 1 and that different accused appeared on the scene at different points of time and that the role attributed to them is a generalised one, the focus being on accused 3, Mr. Sebastian submits that this evidence goes against the prosecution theory that the accused were part of an unlawful assembly and shared the common motivation both of which ingredients are crucial because the conviction of the other eight accused virtually runs along with the conviction of accused 3. This is an area with regard to which we have devoted considerable attention because the liability in a case of the present type for a death and grievous injury is almost a deemed liability insofar as the act of one is the act of all, provided the Court is satisfied that the accused were members of an unlawful assembly. It is true that at the earliest point of time, they did not turn up in a unified group but on the other hand, the evidence indicates that the time-lag was so very short that it made hardly any difference for two reasons, the first being that all of them came armed from the houses, secondly, but more importantly, that once they came there every action of their in joining together and attacking the deceased and P.W. 11 clearly indicated that they were motivated by a common intention namely to attack the deceased and P.W. 11. We need to reiterate that the law on the point is very clear insofar as the concept of meeting of minds can take place earlier on, or as often happens, it can develop on the spot and it is the actions that follow which will be weighed very carefully by the Court for purposes of assessing whether the accused persons were motivated by the same objective, whether they were acting in consort and whether the criminal acts that resulted were the outcome of the group acting in unison. These factors are present in this case and therefore, even though the learned defence Counsel has emphasised a few of the final points which we have indicated above, we see no reason whatsoever or no ground on which the finding of the Trial Court that all the accused were part of an unlawful assembly and that they were liable for the consequences of the acts in unison, can be disturbed.
6. Coming to the oral evidence of P.Ws. 7 to 11, Mr. Sebastian submitted that they are virtually family members or in any event closely connected with the deceased and that therefore their sympathies were on the side of the deceased and the injured and their hostilities were therefore directed against the accused. We do not dispute the fact that such feelings would but be natural and this is why the Courts have held that where the witnesses are interested persons, a specially high level of scrutiny is required to be done. The law does not postulate that every evidence of every relation or interested witness must be discarded because such a situation can never be sanctioned for obvious reasons such as the situation in the present case. If a violent incident takes place in the presence of family members or friends it is but natural that those persons alone would be the witnesses and their credibility will not be suspected only because of the bonds. It will have to be independently established that the witnesses are departing from the truth or that they have exaggerated or that they have fabricated and if this does not emerge despite rigorous cross-examination then a Court would be obliged to accept the evidence. The learned Additional Public Prosecutor added to this by pointing out to us that in a village where a faction fight takes place resulting in serious injuries that nobody apart from the friends and family members of the victim would be willing to come forward as witnesses either out of a sense of fear but more importantly because there is a tendency of not wanting to get involved. It is only the aggrieved parties such as the family members, relations and friends who would be willing to stand up for the truth and depose about what happened and set the justice machinery in motion.
7. The first test that we have applied while assessing the evidence of P.Ws. 7 to 11 which is virtually the only evidence in this case and which forms one group is by asking ourselves as to whether there can be any dispute about the fact that those persons would naturally be present there and were in fact present. The answer to the first question is in the affirmative because the incident has taken place in the close proximity of the houses and was a very violent incident which would have most certainly attracted everybody in that area to it. The second question that arises and which is a corollary to the first one, is as to whether there is any further proof or assurance that these persons were there. The injury to PAV. 11 puts that issue beyond all doubt and the second aspect of the matter is that where violence of this type takes place at the hands of a big group of persons who are heavily armed, it would immediately attract the attention of everybody in the vicinity. The various submissions put forward by the defence that P.Ws. 7, 8, 9, 10 could not have witnessed the incident can hardly be accepted because they are persons who would naturally have been there and who would have rushed to the spot within seconds of the commencement of the incident.
8. The most crucial aspect of the matter is as to whether the narrations put forward by these witnesses compliment each other whether they support each other, whether they are corroborative of each other or whether they contradict each other. It has been a long process of re-examination but we need to point out that the versions do substantially tally and that they corroborate each other perfectly. The starting point is the FIR which names all the accused. It also indicates the type of weapons used by them and the recovery which though disputed, can hardly be doubted which lend support to the versions. Not only do the witnesses corroborate each other but we do find that when the narrations are tested on the basis of the medical evidence that the two versions tally. The learned Trial Judge has virtually examined the evidence of witness by witness and we have repeated that process. We have also heard the learned Counsel at length and we have no hesitation in holding that the acceptance of that evidence by the Trial Court cannot be faulted. We do not propose to deal separately with the evidence relating to the recoveries because that evidence does generally fall in place with the rest of the material on record. It is true that if the weapons are blood stained that there is no explanation as to why these have not been forwarded to the forensic experts for purposes of ascertaining whether it was human blood and secondly for doing the matching of the blood with that of the deceased or P.W. 11. Though that evidence would have further fortified the prosecution case, Mr. Koti is right when he points out that even without that material the charges are substantially and sufficiently established. The last aspect of the matter and perhaps the only area where the learned Trial Judge has gone wrong is with regard to the charge under Section 307 of the IPC relating to P.W. 11. It is true that his left forearm has been amputated and the version is that this happened when he went to the assistance of the deceased who was the target of the main attack. If the evidence is scrutinised, it will be seen that only one blow has done this damage and that blow is attributed to accused 3. That again does not make any difference because the criminal liability for the injury would devolve on all those accused who are members of the unlawful assembly in so far as the law provides for this. The real point is as to whether the accused acting collectively, attempted to murder P.W. 11. It is true that the weapon used was an axe which is a deadly weapon and it is also true that the amputation of the arm is a very serious injury but where the Trial Court seems to have erred is in holding that this was an attempt to murder. The injury inflicted, with all its horrifying dimensions would not normally endanger life unless it is an extreme case and if the intention was or the attempt was to take life, then more than one blow or even a fatal blow would have been directed towards a vital part of the body which was not done. In our considered view therefore, the defence is justified in pointing out that the second head of convictions under Section 307 of the IPC would have to be set aside and substituted by convictions under Section 326 of the IPC. The sentence under this head would therefore stand amended to one of seven years rigorous imprisonment. Having regard to the quantum of sentence awarded by the learned Trial Judge, it would not make any difference to the sentence except to the nature of the conviction.
9. Having carefully reappraised the entire record and having heard the learned Counsel at considerable length, except for the modification as indicated by us above, we see no reason to interfere with the decision under appeal. The convictions insofar as the charge of rioting and unlawful assembly and Section 302 of the IPC are concerned stand confirmed. As far as the conviction under the last of the heads where accused 1 to accused 9 are convicted for the offence under Section 307 of the IPC read with Section 149 of the IPC is concerned we set aside that conviction. In its place, the accused 1 to 9 are convicted of the offence punishable under Section 326 of the IPC read with Section 149 of the IPC and sentenced to rigorous imprisonment for seven years. The appeal partially succeeds to this extent only and stands disposed of.
10. We need to clarify that there is an error in the operative part of the judgment of the Trial Court. The convictions recorded against accused 1, accused 3 and accused 6 under head (5) are set aside.
11. We need to place on record the fact that the learned Counsel Mr. Sebastian who appeared on behalf of the appellants had prepared a comprehensive synopsis of the case setting out all the salient facts and summarised the evidence on record. The synopsis was extremely well compiled and was of immense assistance to the Court and to the learned Counsel during the hearing. We do hope that this quality of assistance would be emulated by other learned Advocates.