Bombay High Court
Tippanna Kalasappa Koli And Ors. vs The State Of Maharashtra on 19 March, 1996
Author: Vishnu Sahai
Bench: Vishnu Sahai
JUDGMENT Vishnu Sahai, J.
1. The appellants aggrieved by the Judgment and order dated 26th February, 1993 passed by III Additional Sessions Judge, Sangli in Sessions Case No. 232 of 1991 convicting and sentencing them to imprisonment for life under section 302 read with section 34 I.P.C. have come up in appeal before us.
Along with the appellants Sou. Mahadevi Tippanna Koli, Sou, Gourava Irappa Koli and Sou. Bharati Ramchandra Koli the wives of appellants Tippanna, Irappa and Ramchandra respectively were also tried, but they have been acquitted by the impugned judgment. Their acquittal has not been challenged by the State of Maharashtra.
2. The prosecution case runs as follows :---
Appellant Tippanna Kalasappa Koli is the father of the remaining four appellants. The five appellants on the one hand and the two deceased person viz. Shivappa Bhagappa Koli and Bhimu Bhagappa Koli on the other are said to be relations. It is said that the ridge between the field of the appellants and that of the deceased persons was a common one. On account of it, there was a dispute between the parties. On 25th June, 1991, at about 3.00 to 3.30 p.m., Nagappa, the real brother of the deceased persons, followed by the deceased persons, came to the shop of P.W. 1 Chandsaheb Dastagir Faras in village Utagi. They complained that on the ridge appellant Tippanna had planted some trees and asked him to resolve the dispute. At that time, appellant Ramchandra also came in the shop. Chandsaheb assured both the sides that he would visit the village next morning and settle the dispute between them.
On 25th June, 1991, at about 7.00 p.m. when the informant Mallappa Satyappa Tungal P.W. 6 was about to switch on the radio inside his house, he heard some commotion from the side of the house of the appellant Tippanna. Understandably, on that he came out and found that appellants Tippanna, Shrimant and Ramchandra with sticks and appellants Irappa and Devendra with axes were assaulting the deceased persons Shivappa Bhagappa Koli and Bhimu Bhagappa Koli. Both the informant and one Hanmant Vasappa Koli who had also come along with him to the place of the incident, implored the appellants not to beat them. However, they did not pay any heed to them. As a consequence of the assault, Shivappa fell down on the ground. It is alleged that Bhimu ran towards the house of the informant, but the appellants chased him with axes and sticks. The informant and Hanmant implored them not to assault them, but they paid no heed. They assaulted the deceased Bhima. Thereafter the appellants are alleged to have run away from the place of the incident. It is further alleged that the same day at about 8.00 p.m., one Tukaram Sidharaya Koli P.W. 9, a resident of the village wherein the incident took place (Utagi), saw them going in a bullock-cart in front of his house. At that time, Irappa was having an axe and the remaining persons were having sticks.
After the appellants had run away from the place of the incident, the informant asked Hanmant to go into the village and inform Nagappa the brother of the deceased persons, about the incident and also to inform the villagers about the same. The informant stayed at his house. When for half an hour no one turned up, he on his cycle went towards the village Utagi and found that villagers including the Police Patil Basvantrai Birajdar had gathered near the Gram Panchayat. The informant told the Police Patil about the incident, but the latter said that he would accompany him for lodging F.I.R. only after confirming the facts himself. Thereafter the Police Patil along with the informant and some others went to the place of the incident. After satisfying himself about the deaths of the deceased persons, the Police Patil along with the informant, at about midnight, proceeded in a jeep for Police Station Umadi.
3. The F.I.R. of the incident was lodged by P.S.I. Vithal Ambadas Shinde on 26th June, 1991 at 1.55 a.m. on the basis of a complaint lodged by the informant Mallappa. On the basis of the F.I.R., C.R. No. 21 of 1991 under section 302 I.P.C. was registered. The distance between the place of the incident and Police Station Umadi is 10 kms. This has come in the evidence of P.W. 1 Chandsaheb Dastagir Faras.
4. After the lodging of the F.I.R., P.S.I. Vithal Shinde along with some police personnel left for the place of the incident. In torch light he saw the dead bodies at the place of the incident. He kept a guard near the dead bodies and thereafter went to trace the appellants in the village. He found appellants Tippanna, Irappa, Devendra and Shrimant in the village and sent them to police station along with police personnel. He went to the place of the incident and prepared the inquest panchanamas of both the bodies. He also prepared the spot panchanama Ex. 19. He attached the articles found on the place of the incident under a panchanama. They were earth mixed with blood, two plastic white buttons, one pair of leather chappals having blood on left chappal, one babul stick broken into two pieces and one pair of chappal. Thereafter, he sent the dead bodies for autopsy. From the place of the incident, he also recovered a blood stained axe and three sticks. The same day he interrogated the informant Mallappa, Goudappa P.W. 7 and some other witnesses. Between 5.00 p.m. to 6.45 p.m. the same day (26th June, 1991), he arrested appellants Tippanna, Devendra, Irappa and Shrimant at the police station and recovered blood stained clothes which they were wearing under a panchanama Ex. 36. On 27th June, 1991, he arrested appellant Ramchandra and recovered the blood stained shirt worn by him and the blood stained chappal under a panchanama Ex. 26. The same day, he recorded statements of four witnesses including P.W. 1 Chandsaheb. On 28th June, 1991, from the house of appellant Tippanna, under a panchanama, he recovered one axe and three sticks all of which were blood stained. On 29th June, 1991, he arrested the three ladies Sou. Mahadevi Tippanna Koli, Sou. Gourava Irappa Koli and Sou. Bharati Ramchandra Koli, who are the wives of appellants Tippanna, Irappa and Ramchandra respectively. During the course of investigation, he sent the recovered articles to the Chemical Analyst. Finally on 14th September, 1991, after completing the investigation, he submitted the charge-sheet against the appellants.
5. Going backwards, the autopsy of the dead bodies of the deceased persons was conducted on 26th June, 1991 by P.W. 11 Dr. Prakash Akaram Kamble.
On the corpse of Shivappa Bhagappa Koli, Dr. Kamble in all found 20 ante-mortem injuries, their break-up being thus : 15 incised wounds, 3 contused wounds and 2 abrasions. Beneath the incised wounds, the doctor found extensive internal damage including fracture of skull, fracture of scapula, fracture of right tibia and fibula and fracture of left tibia. According to Dr. Kamble, the deceased died on account of cerebral laceration and multiple injuries all over his body.
On the corpse of Bhimu Bhagappa Koli, the doctor in all found 13 injuries, out of which 5 were incised wounds, 3 were contused wounds and 5 were abrasions. The doctor also found severe internal damage beneath the incised wounds involving fracture of skull and fracture of 8th and 9th ribs on the right side. According to the doctor, the deceased died on account of cerebral laceration and multiple injuries all over his body.
6. The case was committed to the Court of Sessions in the usual manner where charges on a large number of counts including sections 147, 148, 302 read with 149 I.P.C. and 302 read with 34 I.P.C. were framed against the appellants to which they pleaded not guilty and claimed to be tried. In their statements recorded under section 313 Cr.P.C., their defence was that of denial.
In the trial Court, apart from tendering documentary evidence, the prosecution examined as many as 14 witnesses out of which two viz. Mallappa Satyappa Tungal P.W. 6 and Goudappa Bhauraya Karajagi P.W. 7 gave ocular account of the incident. The remaining witnesses included P.W. 9 Tukaram Sidharaya Koli who gave evidence admissible under section 6 of the Evidence Act, viz. that falling under the caption of "res gestae", P.W. 11 Dr. Kamble who performed the autopsy on the dead bodies of the deceased, P.W. 14 P.S.I. Vithal Shinde who did the investigation in the case, a large number of public panchas, P.W. 1 Chandsaheb Dastagir who in addition to being a pancha deposed about the motive of the incident and P.W. 2 Circle Inspector Suresh Venkatesh Khasnis who prepared the site plan. In defence, no witness was examined although the counter F.I.R. with respect to the same incident lodged by appellant Irappa Tippanna Koli on 26th June, 1991 at 8.00 a.m. at Police Station Umadi which was registered by P.W. 13 Police Constable Sidhram Narsing Shinde was proved.
The learned trial Judge acquitted the three ladies Sou. Mahadevi Tippanna Koli, Sou. Gourava Irappa Koli and Sou. Bharati Ramchandra Koli, but convicted and sentenced the appellants only on one count viz. section 302 read with 34 I.P.C. He however to our dismay acquitted the appellants under sections 147 I.P.C., 148 I.P.C. and 302 read with 149 I.P.C. However, the acquittal of the appellants on those counts has become final inasmuch as the State of Maharashtra has not filed an appeal challenging it.
At this stage, we cannot restrain ourselves from expressing our indignation at the lamentable ignorance displayed by the learned trial Judge in acquitting the appellants under sections 147 I.P.C., 148 I.P.C. and 302 read with 149 I.P.C. Sections 147 I.P.C., 148 I.P.C. and 149 I.P.C. deal with offences committed by members of an unlawful assembly. Unlawful assembly has been defined in section 141 I.P.C. Section 141 I.P.C. provides that an assembly of five or more persons is an unlawful assembly if the common object of the assembly is to commit an offence. Since the assembly was of five persons and its common object was to commit the murders of the deceased persons it was undoubtedly an unlawful assembly. Section 147 I.P.C. and 148 I.P.C. only provide for punishment of members of an unlawful assembly for the offence of rioting; section 147 I.P.C. for simple rioting and section 148 I.P.C. for rioting committed by a member armed with a deadly weapon. We are at a complete loss to understand as to how the learned trial Judge could have acquitted the appellant under section 147 I.P.C. and 148 I.P.C. section 149 I.P.C. provides that:
"If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence".
We are disgusted to find that although the learned trial Judge framed charge under section 302 read with section 149 I.P.C.. but he acquitted the appellants holding that there was no evidence that the two murders were committed in prosecution of the common object of the unlawful assembly. It appears that the learned trial Judge has got fallacious and erroneous notions about the concept of common object. In his Judgment in paragraphs 74 and 75, he has observed that had the murders been committed in furtherance of common object, then the appellants would have waited in ambush. We can only express our astonishment on this lamentable ignorance displayed by the learned trial Judge. In our view there could not have been a more glaring case of two murders being committed in furtherance of the common object of the unlawful assembly than the present one.
7. Through this appeal the appellants have challenged their convictions and sentences under section 302 read with 34 I.P.C.
We have heard Mr. A.P. Mundargi along with Mr. R.V. More for the appellants and Mr. S.R. Borulkar for the State of Maharashtra. We have also perused the depositions of the prosecution witnesses, the material exhibits tendered by the prosecution, the F.I.R. lodged by appellant Irappa Tippanna Koli, the statements of the appellants recorded under section 313 Cr.P.C. and the impugned judgment. After giving our anxious consideration to the matter, we are of the opinion that there is no substance in this appeal and it deserves to be dismissed.
The crucial question in this appeal is whether the evidence of the two eye witnesses examined by the prosecution viz. Mallappa Satyappa Tungal P.W. 6 and Goudappa Bhauraya Karajagi P.W. 7 coupled with that of res gestae as furnished by Tukaram Koli P.W. 9 inspires confidence or not? Another question is whether the case unfolded in the F.I.R. lodged by appellant Irappa Tippanna Koli can be said to be proved by the yardstick of preponderance of probabilities which governs the quantum of proof under section 105 of the Evidence Act? We are alive to the question that even where a counter version is disclosed, the same is taken up for evaluation by a Criminal Court after it is held that the prosecution has discharged the initial burden of proving its case beyond reasonable doubt. That burden, save where the statute carves out an exception, is always on the prosecution. This proposition is far too well settled and we do not propose citing any authority in its support.
8-A. Keeping in mind the legal position spelt out above we propose to decide the question that whether the prosecution has succeeded in establishing its case beyond reasonable doubt.
As mentioned earlier, there are two eye witnesses of the incident viz. Mallappa Tungal P.W. 6 and Goudappa Karajagi P.W. 7. The real question is whether their evidence inspires confidence? The prosecution case which we have disclosed in paragraph 2 of the judgment is based on the averments contained in their depositions and we do not propose repeating the same in its entirely. The broad features of the prosecution case are that on 25th June, 1991 at about 7.00 p.m. appellants Tippanna Kalasappa Koli, Shrimant Tippanna Koli and Ramchandra Tippanna Koli with sticks, appellants Irappa Tippanna Koli and Devendra Tippanna Koli with axes assaulted both the deceased persons viz. Shivappa Bhagappa Koli and Bhimu Bhagappa Koli. In paragraph 6 we have mentioned in detail the ante-mortem injuries suffered by the deceased persons. The perusal shows that both the deceased persons sustained a substantial number of incised wounds, contusions and abrasions. Dr. Prakash Kamble P.W. 11 who performed the autopsies on the dead bodies of the deceased persons stated in his deposition in the trial Court that incised wounds could have been attributable to axe, the contusions and abrasions to sticks. Thus the medical evidence corroborates the ocular account of the two deceased persons being assaulted by the appellants with sticks and axes.
It should also be borne in mind that both these eye witnesses are wholly independent witnesses and had no axe to grind against the appellants. In our view, had the appellants not really been the perpetrators of the crime, then for no rhyme or reason they would not have falsely implicated them in the instant case.
In our judgment the evidence of these eye witness inspires implicit confidence and has been rightly accepted by the trial Judge.
8-B. The evidence of P.W. 9 Tukaram Sidharaya Koli also lends assurance to the ocular account. This witness lives near the house of the appellants and on the date of the incident at about 8.00 p.m. saw the appellants in a bullock cart passing in front of his house. He stated that at that time appellant Irappa Tippanna Koli was armed with an axe and the remaining appellants with sticks. The evidence of this witness would fall under the caption of res gestae and would be admissible under section 6 of the Evidence Act. Like the eye witnesses, P.W. 9 Tukaram Sidharaya Koli is a wholly independent witness and had no axe to grind against the appellants. His evidence definitely incriminates the appellants.
8-C. There are four other circumstances which also corroborate the evidence of the two eye witnesses and that of P.W. 9 Tukaram Sidharaya Koli. They are:
(i) a prompt F.I.R., (ii) a strong motive on the part of the appellants to have committed the crime;
(iii) presence of blood stains on the clothes of the appellants when they were arrested by the police;
(iv) and presence of blood stains on the place of the incident.
We now propose taking up each of these circumstances. We firstly find that the F.I.R. of the incident was lodged within seven hours of the incident taking place. As said earlier, the incident took place on 25th June, 1991 at about 7.00 p.m. and the F.I.R. was lodged on 26th June, 1991 at 1.55 a.m. Police Station Umadi where the F.I.R. was lodged is situated at a distance of 10 kms. from the place of the incident. The F.I.R. viewed in the peculiar features of this case can be described as a prompt one. The evidence of the informant P.W. 6 Mallappa Tungal is that after the assault was over, he sent Hanmant to go into the village and inform Nagappa, the brother of the deceased persons and the villagers, about the incident. This in our view was a very natural conduct on his part. His further evidence is that when no one came from the village for half an hour he proceeded for village Utagi himself and there near the Gram Panchayat he found the Police Patil and some other persons. He informed the Police Patil Basavantrai Birajdar P.W. 8 about the incident, but the latter said that he would proceed for lodging the F.I.R. only after ascertaining the facts himself. Then the Police Patil along with the informant went to the place of the incident. Thereafter a jeep was arranged for. Understandably sometime must have been taken in arranging for the jeep and then on it the informant alongwith the Police Patil and some others at about the midnight proceeded for Police Station Umadi for lodging the F.I.R. In these circumstances bearing in mind the fact that Police Station Umadi where the F.I.R. was lodged was situated at a distance of about 10 km from the place of the incident the F.I.R. in the instant case was certainly lodged very promptly.
Criminal Courts attach great significance to the lodging of a prompt F.I.R. The same largely eliminates the possibility of false implication of accused persons named therein and of embellishments in the prosecution story.
The second corroboration is in the form of a strong motive on the part of the appellants to have murdered the deceased persons. There was a ridge in between the fields of the appellants and the deceased persons and on account of planting of trees on the same there was a dispute between the parties. It is alleged by the prosecution that on the day of the incident at about 3.00 to 3.30 p.m. the deceased persons, their brother Nagappa and appellant Ramchandra came at the cloth shop of Chandsaheb Dastagir Faras P.W. 1 and there each side blamed the other for its unreasonable stand on the question of planting trees on the ridge. Chandsaheb Faras pacified them and assured them that the next morning he would visit the place and settle the dispute. In our view, Chandsaheb Dastagir Faras P.W. 1 who has deposed about this motive is a wholly independent witness and we see no reason for not believing his evidence on the point of motive.
A third corroboration is forthcoming by the circumstance that the clothes of the appellants were found to be stained with blood when they were arrested by the police. As mentioned earlier on 26th June, 1991, i.e. the next day, appellants Tippanna, Irappa, Devendra and Shrimant were arrested at the police station and in the presence of public panch Amin Jakate P.W. 10 the clothes worn by them which were recovered under a panchanama were found stained with blood. We have also mentioned earlier that on 27th June, 1991 appellant Ramchandra was arrested and in the presence of a public pancha Sadashiv Madgonda Teli P.W. 4 blood stained shirt which he was wearing and blood-stained chappal were seized under a panchanama. We have gone through the evidence of public panchas Amin Jakate P.W. 10 and Sadashiv Madgonda P.W. 4 and we find that it inspires implicit confidence. We also find that both these witnesses were independent witnesses and had no axe to grind against the appellants. Their evidence corroborated by that of P.S.I. Vithal Shinde P.W. 14 who was also a witness of the aforesaid recoveries, furnishes a very strong corroboration to the prosecution case. In their statements under section 313 Cr.P.C. the circumstance that blood stained clothes worn by them were recovered from them was put to them, but apart from pleading ignorance about it no explanation was offered by them.
Lastly, corroboration is also forthcoming by recovery of blood-stained earth from the place of the incident made by P.S.I. Vithal Shinde under a panchanama in the presence of Chandsaheb Dastagir Faras P.W. 1. The aforesaid witness appears to be a man of status. The evidence is that he was a Director of an Education Society. In our view, if the aforesaid recovery was not genuine, he would not have deposed about it. We may mention that the motive, time, place and the happening of an incident is not even disputed by appellant Irappa Tippanna Koli either. He however, has a different version to which we shall shortly refer.
8-D. For the reasons enumerated above, we are of the view that the prosecution has discharged the initial burden of proving its case against the appellants beyond reasonable doubt.
9. The next question is whether the defence version of the incident as contained in the F.I.R. lodged by Irappa Tippanna Koli at 8.00 a.m. on 26th June, 1991 at Police Station Umadi can be described as may be true? We are conscious that whereas the obligation on the prosecution under section 101 of the Evidence Act is to prove that its case must be true, that on the defence, either under section 105 of the Evidence Act or under section 106 of the Evidence Act is only to show that its case may be true. Bearing this in mind we propose to examine the version contained in Irappa Koli's F.I.R.
The version as contained in the F.I.R. lodged by appellant Irappa Tipanna Koli is that there was a dispute on account of ridge between the appellants on the one hand and he and his family members on the other. His F.I.R. further reads that on 25th June, 1991 at about 7.00 to 7.30 p.m. he, his brothers Devendra, Ramchandra, Shrimant, father Tippanna his mother, his wife and the wife of Ramchandra were present at the farm house. At that time the deceased persons Shivappa Bhagappa Koli and Bhimu Bhagappa Koli came and started abusing him. At that his mother, his brother's wife and his wife went towards them and asked them not to quarrel and abuse, but they did not relent. When Irappa's father Tippanna went towards them, they pushed him. Then his brother Devendra, Shrimant and Ramchandra came out. At that time, Shivappa pelted a stone which hit him on his left eye. He sat down after receiving injuries resulting from it. Thereafter, Shivappa dealt an axe-stick blow on his neck and back. At that time, the deceased Bhimu was also assaulting him and his brother Devendra by his hands. Then his brothers Ramchandra and Shrimant came there and they requested them not to assault them. At that point of time he snatched the axe from the hands of Shivappa and gave blows with that on the person of Shivappa and Bhimu.
10. The injuries of appellant Irappa and others were medically examined by P.W. 12 Dr. Sachin Walchand Shaha.
Appellant Irappa was examined by him on 26th June, 1991 at 7.30 p.m. and was found to have sustained the following three injuries :---
1. C.L.W. over left side on back at vertebra 1/2 x 1/4 c.m.
2. C.L.W. over and above left eyebrow 1 x 1 cm.
3. Abrasion over left chest.
Appellants Tippanna, Devendra, Shrimant and Ramchandra were medically examined by Dr. Sachin Walchand Shaha on 27th June, 1991, but Dr. Shaha noticed no external injury on their person. He found that they only complained of tenderness on some parts of their body.
11. We may straightaway mention that the version as contained in the F.I.R. lodged by appellant Irappa appears to us to be a tissue of lies. Firstly, the aforesaid version does not explain the substantial blunt weapon injuries sustained by each of the deceased persons. Secondly, that version appears to us to be inherently improbable. We are not prepared to accept that inspite of the fact that Irappa and the other appellants were unarmed, Irappa could snatch the axe from the hands of the deceased Shivappa and inflict single handed as many as 20 incised wounds on the body of both the deceased persons. There is a third reason as to why we are not prepared to accept this defence case and that being it has neither been put in cross-examination to any of the prosecution witnesses nor pleaded by any of the appellants, including Irappa, in their statements under section 313 Cr.P. C. We now take up the injuries which are alleged to have been suffered by appellant Irappa and others. In the earlier part of our judgment we have noted that excepting Irappa, the other four appellants had no visible injury. They only complained to tenderness on some parts of their body. Regarding Irappa we find that he had sustained two contused lacerated wounds, one of them being on back 1/2 cm. x 1/4 cm. the other being 1 x 1 cm. above the left eye. The third injury sustained by him is said to be an abrasion over left chest, but the dimensions of the said injury have not been given by the doctor. There can be no dispute that these injuries are insignificant and trivial injuries. There is no immutable rule of law that prosecution is under an obligation to explain injuries sustained by the accuser persons in each and every case. In the decision , Lakshmi Singh and others v. State of Bihar, the Apex Court after considering the relevant case law on the question of non-explanation of injuries observed as follows:---
"We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima, Criminal Appeal No. 67 of 1971 decided on March 19, 1975. Reported in A.I.R. 1975 S.C. 1473, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent so independent and disinterested, so probable, consistent and credit-worthy that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries."
Here, not only are the injuries sustained by the appellants so minor and superficial, but also the evidence of the two eye witnesses viz. Mallappa Tungal P.W. 6 and Goudappa Karajagi P.W. 7 to use the words of the Apex Court in the aforesaid paragraph "so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries".
In our view, appellant Irappa Tippanna Koli failed to discharge the lesser burden within the ambit of the expression "may be true" enjoined on him under Section 105 of the Evidence Act.
We accordingly reject the defence version of the incident.
12. We now propose considering the large number of submissions canvassed by learned Counsel for the appellants Mr. A.P. Mundargi.
He firstly contended that the evidence of the two eye witnesses Mallappa Tungal and Goudappa Karajagi P.W. 6 and 7 respectively does not inspire confidence because the aforesaid two witnesses deposed about the participation of co-accused Sou. Mahadevi Tippanna Koli, Sou. Gourava Irappa Koli and Sou. Bharati Ramchandra Koli, the wives of appellants Tippanna, Irappa and Ramchandra respectively and this claim of theirs has not been accepted by the learned trial Judge who has acquitted them. In our view, the aforesaid ladies have been acquitted for two reasons viz. they not being named in the F.I.R. and the absence of over act being attributed to them. At any rate, the principal falsus uno falsus omnibus as has been held by the Apex Court repeatedly is not applicable to our country. The judicial approach is to separate the grain from the chaff if the same is possible. It is only in those cases where truth and falsehood are so inextricably mixed up that they are incapable of being separated, as held by the Apex Court in the case , Balaka Singh and others v. The State of Punjab, that the whole edifice would fall. Here we are of the definite opinion that truth and falsehood are not so inextricably mixed up and they cannot be separated. In our view, the circumstance that the aforesaid ladies have been acquitted by the trial Court would have no adverse impact on the weightage to be given to the residual portion of the statements of the aforesaid two eye witnesses. Hence the first submission of Mr. Mundargi fails.
Secondly, Mr. Mundargi urged that the prosecution case as contained in the F.I.R. and in the statement of the complainant recorded under section 161 Cr.P.C. is that appellant Devendra was armed with a stick, but in the trial Court it has been modulated in terms that instead of stick Devendra is shown to be armed with axe. Learned Counsel for the appellants contended that this modulation is not innocent. He urged that it has been occasioned by the fact that the number of incised wounds on the deceased persons is overwhelmingly large; in fact far large in numbers than the blunt weapon injuries sustained by them. He contended that in order to bring the prosecution case in tune with probabilities the aforesaid improvement has been made. In this connection, Mr. Mundargi placed reliance on the decision of the Apex Court reported in 1976 Cri.J.J. 496, Badri v. State of Rajasthan. In that case, there was a solitary eye witness of the incident who had modulated his evidence to suit a particular theory, and therefore, the Apex Court held in paragraph 18 that he was not a reliable witness and no conviction can be sustained on his testimony. The facts in this case are distinguishable from that as found in the aforesaid case. Here, apart from informant Mallappa Tungal P.W. 6, there is another eye witness of the incident viz. Goudappa Karajagi P.W. 7. He has stated in the trial Court that the appellant Devendra was armed with an axe. It also appears that he must have stated on the same lines in his statement to the Investigating Officer because no contradiction emerging from his statement under section 161 Cr.P.C. has been put to him in the trial Court. As observed earlier, this witness is a wholly independent witness and had no axe to grind against any of the appellants including Devendra. It is true that the complainant in his F.I.R. and in his statement under section 161 Cr.P.C. has alleged that Devendra was armed with a stick and in the trial Court has stated that he was armed with an axe. However in our view nothing much turns on this. In the gruesome manner in which both the deceased persons were done to death, it is hardly surprising that in the F.I.R. which was lodged within 7 hours of the incident taking place and in his statement under section 161 Cr.P.C. which was also recorded promptly, on account of the impact created on his mind this witness became disturbed and failed to mention axe in place of stick. Again as mentioned earlier this witness is a wholly independent witness. Hence this contention canvassed by Mr. Mundargi is devoid of substance.
Thirdly, Mr. Mundargi urged that both the eye witnesses viz. Mallappa Tungal P.W. 6 and Goudappa Karajagi P.W. 7 when it came to describing the main incident they did not depose about the presence of each other. Again, we do not find any merit in this submission. Both the witnesses in their statements in the trial Court have deposed about the presence of the other. P.W. 7 Goudappa Karajagi in his statement frankly admitted that as soon as the appellants launched the assault on the deceased Shivappa, he ran away. Therefore, it is not surprising that while actually describing the assault on the deceased persons Mallappa has not deposed about presence of Goudappa. If Goudappa ran away from the place of the incident in the initial stages of the assault, on Shivappa then it is understandable that he did not mention the presence of Mallappa. In our view, there is no merit in the aforesaid contention of Mr. Mundargi and the same fails.
Fourthly, Mr. Mundargi urged that the conduct of the eye witnesses especially Goudappa Karajagi appears to be very unnatural. He urged that the evidence is that this witness had lunch with deceased persons immediately before the incident, and therefore, it was not probable that he would have run away from the place of the incident. Apart from the fact that different people behave differently in different situations, we find on a careful reading of the statement of Goudappa that there were plausible reasons for his running away. The reason disclosed in his evidence is that he was worried that Nagappa, the third brother of the deceased persons, may not be murdered by them. Therefore, he went to the house of Nagappa where he found Nagappa's wife and the wife of deceased Bhimu. Not only did he tell them about the incident but he also took Bhimu's wife and Nagappa to his own house. All this has been stated by him in paragraph 5 of his statement in the trial Court. In view of this evidence his conduct of running away from the place of the incident was a perfectly natural one and there is no merit in this submission of Mr. Mundargi.
Mr. Mundargi also urged that the conduct of Mallappa Tungal P.W. 6 in not disclosing the incident to any one excepting the Police Patil appears to be very unnatural. There may be more than one reason for such a conduct. It may be as has been stated by him in his cross-examination in paragraph 6 that he did not think it necessary to inform any one. It may also be, that he might be thinking that the news in the village might have become a household news. The experience is that in small villages such news spreads very fast. There may be a third reason namely that the gruesome manner in which the appellants slaughtered the two deceased persons may have instilled a fear psychosis in his mind, and therefore, on account of such a psychosis in his mind he did not disclose the incident to anyone.
For the aforesaid reasons, we find no merit in this submission either.
Fifthly, Mr. Mundargi contended that the circumstance that from the place of incident three sticks and one broken axe were recovered in addition to the recovery of three sticks and one axe from the house of appellant Tippanna Kalasappa Koli shows that the incident did not take place in the manner alleged by the prosecution. Mr. Mundargi contended that according to the prosecution two of the appellants viz. Irappa Tippanna Koli and Devendra Tippanna Koli were armed with axes and the remaining were armed with sticks. Therefore, in his contention there was no question of recovery of six sticks. He contended that this circumstance shows that a free fight between the parties actually took place and both the parties are suppressing this. We regret that we do not find any merit in this contention of Mr. Mundargi either. In the F.I.R. containing the counter version of the incident lodged by Irappa Tippanna Koli on 26th June, 1991 at 8.00 a.m. the case is not one of a free fight but that of right of private defence of person. In view of the categorical case in the aforesaid F.I.R., it is hardly open to the appellants counsel to contend that a free fight took place. We are more than conscious of the fact that the F.I.R. can be used only to contradict or corroborate the maker and therefore the recitals contained in the F.I.R. lodged by Irappa Tippanna Koli are not binding on the other four appellants. However, we find that even the other four appellants in their statements recorded under section 313 Cr.P.C. do not speak about a free fight. We may also mention that neither of the two eye witnesses of the incident have suggested in their cross-examination the free fight theory. For the aforesaid reasons this contention of Mr. Mundargi also fails.
13. Mr. Mundargi finally urged that even if the prosecution case is believed to be true, appellants Tippanna Koli, Shrimant Koli and Ramchandra Koli who are alleged to be armed with sticks cannot be held guilty under section 302 r/w 34 I.P.C. for in his contention the common intention was only to cause hurt and not to commit murders of the two deceased person and for their murders appellants Irappa Koli and Devendra Koli who alone assaulted them with axe would be liable under section 302 read with 34 I.P.C.
Mr. Mundargi primarily based this submission on the following circumstances:--
(a) these appellants were armed with sticks, which is not a lethal weapon; (b) between the two deceased persons there were six contusions and seven abrasions and the latter appear to have been caused by a fall; (c) all the blunt weapon injuries sustained by both the deceased persons were simple in nature; and (d) the fatal injuries of both the deceased persons were undoubtedly the large number of incised wounds sustained by them. He urged that when these three appellants alongwith the other two appellants who were armed with axes assaulted the two deceased persons it would be reasonable to infer that they shared the common intention of grievous hurt being caused to them. Hence he urged that they would be only liable under section 326 r/w 34 I.P.C. Section 34 of I.P.C. reads thus:-
"34. Acts done by several persons in furtherance of common intention---When a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for that act in the same manner as if it were done by him alone."
A perusal of the section shows that for its applicability it has to be established that the criminal act committed by several persons was committed by them in furtherance of common intention of all. The question of common intention is primarily a question of fact and not one of law. The crucial thing for us would be to find out whether the murder of the two deceased persons was committed in futherance of common intention of all the five appellants. If the answer is in the affirmative Mr. Mundargi's submission would fall. In this connection, learned Additional Public Prosecutor Mr. Borulkar invited our attention to the following circumstances. He firstly urged that all the appellants are very closely related inasmuch as appellant Tippanna Koli is the father of the remaining appellants. In his contention the factum of relationship would also be a circumstance for construing the common intention. He secondly contended that there was a uniform motive for all the five appellants to commit the murder of the deceased persons inasmuch as there was a ridge in between field of the appellants and that of the deceased persons and on account of the same there was a dispute between them. He urged that on account of this fact all the appellants became infuriated with the deceased persons. He thirdly urged that Mallappa Tungal P.W. 6, the informant both in his F.I.R. as well as in his statement in the trial Court deposed that he saw all the five appellants assaulting the deceased persons together with sticks and axes. In the earlier part of our judgment we have held that the informant is a wholly reliable witness. This statement of the informant is amply corroborated by the ante-mortem injuries found on the person of the deceased persons. When we added the number of ante-mortem injuries sustained by both the person, we found that they had sustained in all 20 incised wound, 6 contused wounds and 7 abrasions. P.W. 11 Dr. Prakash Kamble in his deposition in the trial Court stated that apart from incised wounds of both deceased persons, the remaining injuries (meaning thereby contused wounds and abrasions) could have been caused by blunt weapon. The fourth circumstance in the contention of Mr. Borulkar which shows that the murder of the deceased persons was committed in furtherance of common intention is that the statement of the informant is to the effect that the deceased persons died on the spot. Fifthly Mr. Borulkar contended that the circumstance that after assaulting the deceased persons, the appellants ran away together, as is evidence from the evidence of P.W. 9 Tukaram, shows that they shared common intention with respect to the murder of the deceased persons.
14. We find considerable merit in the contention of Mr. Borulkar. The question of common intention as observed earlier is essentially a question of fact.
Here it would be useful to refer to the observations of the Apex Court in the decision , Lalai v. State, wherein Their Lordships have held that to infer common intention the time and place of murder, the weapons used by the accused, their relationship inter se and their concerted action in the wake of the murder are all relevant.
15. The circumstance that the blunt weapon injuries found on the dead bodies of the deceased persons were less in number than axe injuries or were not serious or grievous in nature would certainly not exonerate appellants Tippanna Koli Shrimant Koli and Ramchandra Koli from sharing the common intention with respect to the murders of the deceased person.
What is relevant for the applicability of section 34 I.P.C. is not the nature of injuries caused by an accused person or group of accused persons but the fact whether the assault made by several persons on a victim or victims was in furtherance of common intention of all or not. If the answer to that question is in the affirmative as it is in the instant case, in view of the circumstances pointed out by Mr. Borulkar the question that some of the accused may have caused simple injuries would not be relevant. We are fortified in our view by the observations of Their Lordships of the Apex Court made in paragraph number 19 of their decision , Bharwad Mepa Dana & another v. The State of Bombay, which reads thus:-
Once it is found that a criminal act was done in furtherance of the common intention of all, each of such persons is liable for the criminal act as if it were done by him alone. The section is intended to meet a case in which it may be difficult to distinguish between the acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. The principle which the section embodies is participation in some action with the common intention of committing a crime; once such participation is established, section 34 is at once attracted".
For the aforesaid reasons we find no merit in this contention and reject the same.
16. Pursuant to the above discussion, we find the present appeal to be devoid of substance and we dismiss the same. We are informed that appellant Tippanna Kalasappa Koli is on bail. He shall be taken into custody forthwith to serve out the sentence. The remaining appellants viz. Irappa Tippanna Koli, Devendra Tippanna Koli, Shrimant Tippanna Koli and Ramchandra Tippanna Koli who are in jail, shall be released there from only after they have served out the sentence awarded to them and then too if not wanted in any other case.
Before parting with this judgment, we would be failing in our fairness if we do not put on record our appreciation for the extremely able, fair and tenacious manner in which this appeal has been argued by Mr. A.P. Mundargi for the appellants and Mr. S.R. Borulkar for the State of Maharashtra.