Karnataka High Court
J Yallappa S/O Late J. Kenchappa vs State Of Karnataka on 22 June, 2020
Equivalent citations: AIRONLINE 2020 KAR 1443, 2021 (1) AKR 817
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22 N D DAY OF JUNE, 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MRS. JUSTICE M.G. UMA
CRIMINAL APPEAL NO. 100279/2017
BETWEEN:
1. J. YALLAPPA S /O LATE J. KENCHAPPA,
AGED ABOUT 51 Y EARS.
2. J. VEERESH S/O J. YALLAPPA,
AGED ABOUT 23 Y EARS.
3. HALAPPA J S/O LA TE LATE KENCHAPPA,
AGED ABOUT 54 Y EARS.
4. KALAPPA J S/O LATE KENCHAPPA,
AGED ABOUT 44 Y EARS.
5. KENCHAPPA J S/O HALAPPA,
AGED ABOUT 28 Y EARS.
6. KOTRESH J S/O HALAPPA,
AGED ABOUT 31 Y EARS.
7. HANUMANTHAPPA J,
S/O SANNA HUCHAPPA,
AGED ABOUT 29 Y EARS.
8. SHIVAKUMAR J,
S/O SANNA HUCHAPPA,
AGED ABOUT 25 Y EARS.
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9. SANTHOSH J,
S/O DODDA HUCHAPPA,
AGED ABOUT 38 Y EARS.
10. HUCHENGAPPA,
S/O DODDA HUCHAPPA,
AGED ABOUT 39 Y EARS.
ALL THE ACCUSED ARE IN JUDICIAL
CUSTODY AND TH EY ARE RESIDENTS
OF GANGAMMANAHALLI VILLAGE,
KUDLIGI TA LUK, BALLARI DIS TRICT.
- APPELLANTS
(BY SRI J. BASAVARAJ (PHYSICALLY) AND
SRI RAVI B. NAIK ( THROUGH V.C), A DVOCATES)
AND:
STA TE OF KARNA TAKA THROUGH
CIRCLE INSPECTO R OF POLICE,
KOTTU R POLICE S TA TION, KO TTUR,
REP. BY THE S TA TE PUBLIC
PROSECU TOR, HIG H COURT OF
KARNATAKA A T DH ARWAD,
DHARWAD.
- RESPONDENT
(BY SRI V.M. BANA KAR, ADDL. S .P.P.)
THIS CRIMINAL APPEAL IS FI LED UNDER
SECTION 374 (2) OF CR.P.C. AGAINST THE
JUDGMENT DATED 12.07.2017 PASSED BY THE
LEARNED III ADDL. DISTRICT AND SESSIONS
JUDGE, BALLARI (SITTING AT HOSAPETE) IN S.C.
NO. 5030 OF 2014, S.C. NO. 5024 OF 2016 AND
S.C. NO. 5068/2014 & ETC.
THIS CRIMINAL APPEAL HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
B.A.PATIL,J., DELIVERED THE FOLLOWING:
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JUDGMENT
Appellants 1 to 10 were tried by the learned III Addl. District & Sessions Judge, Ballari (sitting at Hosapete) for the offences punishable under Sections 143, 147, 148, 341, 504, 114, 506, 323, 324, 307, 302 r/w Sec. 149 of IPC in S.C. No. 5030/2014, S.C. No. 5024/2016 and S.C. No. 5068/2014 dated 12.07.2017.
2. We have heard the learned Senior Counsel Sri Ravi B. Naik by virtual hearing, Sri J.Basavaraj who was physically present before the Court for the appellants-accused and also Sri V.M. Banakar, learned Addl. SPP for the respondent-State.
3. The case of the prosecution in brief is that the deceased was cultivating the land of Veeraswamy and had planted banana crop. The father of accused No.9-Sanna Huchappa had let :4: the cattle in the said land for grazing purpose. At that time, he was advised not to do so. It is further alleged that accused No.9-Santosh had the marriage proposal with the daughter of one Chowdappa, by name Saritha, some days before the alleged incident. Further, when accused No.9 had gone to the house of Chowdappa, for asking to give his daughter in marriage to him, complainant Prakash, Mareppa, father of Saritha Chowdappa and one Siddanna once again scolded accused No.9 and threatened him. In that context some enmity was prevailing between the family of accused No.9 as well as the said Sanna Chowdappa.
4. It is further alleged that, in that light on 25.02.2014 at about 8.45 p.m. when CW10- Mareppa was proceeding on his motorcycle bearing Reg. No. KA-35-U-1279, accused No.1- Yallappa intercepted and abused in indecent :5: words and at that time accused No.9 reminded the earlier insult and kicked the motorcycle of CW10 Mareppa. At that time accused Nos.1 to 8 and 10 with a common object, by holding wooden re-pieces, club and stones, abused the complainant and other persons and threatened with life and assaulted CW10 Mareappa. By seeing the alleged incident, Basappa (deceased) came to the rescue of his son Mareppa-CW10 along with CW11-Chowdappa. In the meantime, accused No.4 assaulted the said Basappa with wooden re-piece on his head and inflicted bleeding injuries, accused Nos.3 and 6 also assaulted the deceased with the stones on the head of the deceased, accused No.7 assaulted CW11 Chowdappa with club on his head, accused No.5 and 8 assaulted Mareppa with stones on his head and on trunk, accused No.1 assaulted with hands, accused Nos.2 and 10 :6: assaulted with stones to the victim and inflicted bleeding injuries. Immediately after the incident, injured Basappa, Mareppa and Chowdappa were taken to Kottur Government Hospital and thereafter to Davanagere in an Ambulance for further treatment but on the way at about 11.30 PM Basappa died. On the basis of the complaint, a case has been registered in Crime No. 24/2014 and Police conducted investigation. Thereafter the Investigating Officer has filed the charge sheet. Earlier the charge sheet was filed showing the accused Nos.1, 2 and 6 as absconding and a split up case was registered as against them. Subsequently, as all the accused persons have been secured, further charge sheet has been filed, all the cases were clubbed and decided with this common judgment.
5. After filing of the charge sheet, the jurisdictional Magistrate followed the provisions :7: of Sec. 207 of Cr.P.C. and committed the case to the Sessions Court. The Sessions Court took cognizance and secured presence of the accused and after hearing the learned Public Prosecutor and the learned counsel for the accused, charge was prepared, read over and explained to the accused. They pleaded not guilty and claimed to be tried and as such, trial was fixed.
6. In order to prove the case of the prosecution, 25 witnesses were examined, 27 documents and 13 material objects were got marked. Thereafter, statement of the accused u/S 313 of Cr.P.C. was recorded by putting incriminating material as against them. They have denied the same. Accused persons have not led any evidence on their behalf, nor got marked any documents. After hearing the parties to the proceedings the impugned judgment of conviction and order of sentence :8: came to be passed. Challenging the legality and correctness of the said judgment, the appellants-accused are before this Court.
7. The main grounds urged by the learned Senior Counsel for the appellants-accused are that the judgment of conviction and order of sentence passed by the learned Sessions Judge is perverse, capracious and not sustainable in law. As per the case of the prosecution, the alleged incident had taken place on 25.02.2014 at about 8.30 p.m. But the evidence of PW11 the Doctor who treated the injured goes to show that the relatives have brought the injured to the hospital at 7 p.m. and she treated them and they have sustained simple injuries. On perusal of MLC extract which has been got marked at Ex.P.13, it is crystal clear that the incident never happened as contended by the prosecution.
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8. Learned Senior Counsel further submitted that, if those medical records are perused, it is clear that the accused have been falsely implicated by creating a story. The learned Sessions Judge without applying his mind and without appreciating the evidence of PW11, has believed the case of the prosecution, though the evidence which has been produced is not creditworthy, the same has been accepted and wrongly convicted the accused.
9. He further submitted that there was a scuffle between two groups and the evidence also goes to show that the deceased Basappa had intervened to pacify the said quarrel, which itself clearly goes to show that the accused persons were not having any intention to cause the death of Basappa, who had suddenly interrupted to pacify the quarrel. He further submitted that, in a scuffle such an incident has : 10 : taken place. The injuries which have been sustained by the deceased are not fatal injuries, no deadly weapons were used, at the most the accused had only the knowledge that the injuries inflicted were likely to cause death and had no intention to cause the death. Under such circumstances, the trial Court could have given the benefit and could have convicted for a lesser offence under Section 304 Part II of IPC. In order to substantiate his arguments he relied upon the decision in the case of Madhusudhan Satpathy and others V. State of Orissa reported in 1994 Crl.L.J. 144. He further submitted that a counter case has also been registered by the accused persons but in that case Police submitted 'B' report at the high handed intervention of the complainant and his followers.
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10. It is his further submission that even though there is no connecting material to convict the accused to the alleged offences, the trial Court has wrongly convicted the accused. It is his further submission that there is no sharing of intention and meeting of the minds of the accused persons. In the absence of any such material, the trial Court ought to have considered the evidence against each of the accused persons independently and all the accused persons ought not have been roped and convicted for the offences punishable u/Ss 148 and 149 of IPC. He further submitted that, if Secs. 148 and 149 of the IPC is not attracted, under such circumstances all the accused persons cannot be held liable for the offence punishable u/S 302 of IPC. In this light, he submits that the judgment of the trial Court is perverse and not sustainable in law. : 12 :
11. It is his further submission that, the place of incident is in front of the house of the accused, which itself goes to show that the complainant and other persons were the aggressors and they have pre-meditated and came to the house of the accused and caused disturbance. Under such circumstances, the evidence should have been appreciated quite differently. The injuries which have been suffered by the deceased is also simple in nature but on the way he succumbed to the injuries because of his old age and not providing medical aid immediately but not due to the blow given by the accused. Further, two groups were quarrelling and it was a free fight and scuffle. Under such circumstances, the alleged incident has taken place. In that light he submits that there is wrong appreciation of the evidence by the trial Court. The trial Court without properly : 13 : appreciating the evidence has wrongly convicted the accused. On these grounds he prayed to allow the appeal and to set aside the impugned judgment and acquit the accused.
Alternatively it is his submission that if the Court comes to the conclusion that there is material as against the accused, the same may be independently assessed and those persons who have assaulted the deceased, is without any pre-meditation or intention. In that light, the accused may be given the benefit under Section 304 Part II of IPC and sentence for the period which they have already undergone. On these grounds he prays to allow the appeal.
12. Per contra Sri V.M.Banakar, learned Addl. S.P.P. vehemently argued and submitted that, PWs 5 and 6 are the injured eyewitnesses. They have categorically deposed about the incident and overt acts of each of the accused persons. : 14 : Much weightage has to be given to the evidence of the injured witness in the occurrence as it presumed that he was speaking the truth. In order to substantiate his contention he has relied upon the decision in the case of Chandrashekhar & another Vs. State reported in 2017 (13) SCC 585.
13. It is his further submission that the accused persons have chosen vital part of the body and caused grievous hurt and because of the grievous hurt, Basappa sustained grievous injuries and subsequently died. Apart from PW5 and 6 there are eyewitnesses, i.e., PWs 1, 3, 4, 8, 9 and 10, who were present at the place of incident, their evidence is also corroborated with the evidence of other witnesses, including the Doctor who conducted postmortem examination. Further, the Doctor who has conducted postmortem has clearly deposed that the death : 15 : is due to the injuries sustained by the deceased and such injuries can be caused by the weapons like MOs 9, 10, 2, 11 and 12. He further submitted that the presence of accused at the place of incident is not disputed. It is his further submission that the trial Court after appreciating all the material, has come to a right conclusion and there are no good grounds to interfere with the judgment of the trial Court and the same deserves to be confirmed. On these grounds he prayed to dismiss the appeal by confirming the judgment of the trial Court.
14. We have considered the submissions made by the learned counsels and perused the records including the trial Court records.
15. It is contended by the learned Senior Counsel that the prosecution has utterly failed to prove the guilt of the accused beyond all : 16 : reasonable doubt, but, as could be seen from the evidence produced before the trial Court, PWs 1, 2, 4, 5, 6, 9 and 10 are the eyewitnesses to the alleged incident. On perusal of the evidence of these witnesses it is clear that they have deposed that three years prior to the alleged incident there was a quarrel for having left the cattle in the field and a case has also been registered. It is further deposed that, the accused No.9-Santosh requested C.W.11 Chowdappa to give his daughter Sharadamma in marriage to him but he has been properly advised. Again on 25.02.2014 accused No.9 came and requested that Sharadamma should be given in marriage to him, otherwise they will face the consequence, but he was again advised to behave properly. They have further deposed that when CW10 Mareppa was proceeding on his motorcycle, at that time accused No.1 told that : 17 : he should not be left, intercepted his motorcycle and assaulted. They have further deposed that accused No. 2-Veeresh and accused No.10- Huchengappa assaulted with stone to CW10- Mareppa, a scuffle was going on and at that time the deceased Basappa intervened and asked why they are assaulting, at that time Kalappa- accused No.4 took a re-piece and assaulted on the head of Basappa and blood started oozing, accused No.3 and his son accused No.6-Kotresh also assaulted with the stone to Basappa.
16. When once Chowdappa went to rescue the injured Basappa, at that time the accused No.7- Hanumantappa also assaulted with club and accused No. 5-Kenchappa assaulted Chowdappa with a stone, other accused persons also assaulted with stone. Immediately thereafter, the ambulance was called and all the injured persons were taken to the hospital. PW1 has : 18 : further deposed that he has filed complaint as per Ex.P.1. During the course of cross- examination of these witnesses nothing has been brought on record so as to discard the evidence of these witnesses.
17. On going through the evidence of these eyewitnesses and the recovery of the incriminating materials, it can be safely held that the prosecution has proved the fact that on the date of alleged incident accused persons have assaulted and caused injuries to the deceased and other witnesses. When the injured eyewitnesses have come before the Court and have deposed about the overt acts of each of the accused persons, then under such circumstances, the occurrence of the incident is to be held as proved by the prosecution. A greater weightage has to be given to the evidence of injured witnesses as of their presence at the : 19 : place of incident can not be denied and to be presumed that they are speaking the truth. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Chandrashekhar & Another, quoted supra at paragraph Nos.10 and 28 it has been observed as under:
"10. Crimin al jurisprudence attach es great we ightage to the evidence of a person in jured in the same occurrence as it presu mes th at he was speak ing the tru th unless sho wn other wise. T hough the law is well settled and precedents abound, ref erence may usef ully be made to Brah m S waroop v. S tate of U.P. observing as f ollows: (SCC P. 302 PARA 28).
28. Where a witness to the occurrence has h imself been injured in the incident, the testimony of such a witness is gener ally cons idered to be very reliable, as he is a witness th at co mes with an in built guar an tee of his presence of the scene of the crime and is unlikely to spar e his actu al as sail ant(s) in order to f alsely implic ate so meone."
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: 20 :Keeping in view the ratio laid down in the above decision and the circumstances which have been produced, we are of the considered opinion that evidence of prosecution is cogent, consistent, trustworthy, reliable and sufficient to hold that the accused persons are guilty for the alleged offences.
18. It is submitted by the learned Senior Counsel that the evidence produced being in conflict with medical evidence, with reference to the time of occurrence has not been correctly stated and therefore the whole case looks to be doubtful. But, on perusal of evidence though there is some variation in the time mentioned by the doctor, when there are injured eyewitnesses to the alleged incident, it cannot be held that no such incident had taken place as contended. In that light, whole case of the prosecution cannot be thrown to wind. It is well settled preposition : 21 : of law that when there is conflict between medical evidence and ocular evidence, the ocular evidence has to be given weightage and it is to be accepted. We are of the considered opinion that for the reasons stated above, there is no force in the contention of the learned Senior Counsel and the same is not acceptable.
19. It is the contention of the learned Senior Counsel that the finding given by the trial Court holding that the accused persons by constituting an unlawful assembly came and got assaulted, is not correct. It is his further submission that the evidence goes to show that the complainant- party are the aggressors. There is no pre- meditation. In that light, he says that Sec. 149 of IPC is not applicable to the case on hand.
20. We have carefully and cautiously gone through the evidence by giving our thoughtful : 22 : consideration. Though all the witnesses have deposed with regard to the presence of the accused persons mere presence in the assembly does not make a person the member of unlawful assembly and no such person could be convicted for any offence with the aid and assistance of Sec. 149 of IPC. No doubt u/S 149 of IPC it is like a vicarious liability as held in the decision of the Hon'ble Supreme Court in the case of Ramachandra & Others Vs. State of Kerala reported in 2011 (3) SCC (Crl.) 677 wherein at paragraph Nos.17, 18 and 19 it has been observed as under:
"17. Section 149 IPC has essentially two ingredients viz. (i) off ence co mmitted by any me mber of an unla wf ul asse mbly consis ting of f ive or more members, and ( ii) Such off ence must be co mmitted in prosecution of the co mmon object (under Section 141 IPC) of the asse mbly or me mbers of that assembly kne w to be likely to be committed in prosecution of the co mmon object.: 23 :
18. For "co mmon objec t", it is not necessary th at there should be a prior concern in the sense of a meeting of the me mbers of the unla wf ul asse mb ly, the co mmon object may f orm on the spur of the mo men t; it is enough if it is adopted by all the me mbers and is sh ared by all of the m.
19. In order th at the case may f all under the f irs t par t, the off ence co mmitted must be connected imme diately mus t be connec ted immed iately with the co mmon objec t of the unla wf ul asse mbly of wh ich the accused were me mbers (Vide Bhan war S ingh v. State of M.P). Even if the off ence co mmitted is not in direc t prosecu tion of the co mmon object of the asse mbly, it may yet f all under the second par t of Section 149 IPC if it c an be held th at the off ence was such as the me mbers kne w was likely to be co mmitted. T he expression "kno w"
does no t me an a mere possib il ity, such as might or might not h appen. For ins tance, it is a matter of common kno wledge that if a body of persons go ar med to take f orcible possession of the land, it would be righ t to say that so meone likely to be killed and all the members of the unla wf ul asse mb ly must be aware of that likelihood and wo uld be gu ilty under the second part of Section 149 IPC. T here may be c ases : 24 : wh ich would co me with in the second p art, but not with in the f irst. T he distinc tion between the two par ts of Section 149 IP C cannot be ignored or obliterated."
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21. But the essence of the offence is the common object of the persons forming unlawful assembly but whether the object is in their mind when they come together or whether it occurs to them afterwards, is not material. However, it is necessary that the object should be common to the persons who compose the assembly. Further, what is to be proved in a case for the offence under Sec. 149 of IPC is to be looked into. In such a case what is important is to find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed. There must be an access between the common object and the offence committed : 25 : and if it is found that the same was committed to accomplish the common object, in that event every member of the assembly will become liable for the same. This proposition of law has been laid down by the Hon'ble Supreme Court in the case of Radha Mohan Singh alias Lal Saheb and Others v. State of Uttar Pradesh reported in 2006 (2) SCC 450 wherein at paragraph Nos.21 and 22 it has been held as under:
"21. The question arises whether the conviction of the remaining accused under Section 302 read with Section 149 IPC is legally sustainable. The scope of Section 149 I.P.C. was explained in Mizaji v. State of U.P. AIR 1959 SC 572, which decision has been followed in many later cases, in the following manner :
"The first part of section 149 IPC means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is : 26 : shared by all of them. In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression 'know' does not mean a mere possibility, such as might or might not happen. Though it can be said that when an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object that does not make the converse proposition true; there may be cases which would come within the second part but not within the first. The distinction between the two parts of Section 149 Indian Penal Code cannot be ignored or obliterated. In every case it would be an issue to be determined whether the offence committed falls within the first part of Section 149 as explained above or it was an offence such as the members of the assembly knew to be likely to be committed in prosecution : 27 : of the common object and falls within the second part."
22. In Alauddin Mian v. State of Bihar AIR 1989 SC 1456 the import of Section 149 IPC was explained as under :
"....... This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be safely construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly. What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was one which the members knew to be likely to be committed. There must be a nexus between the common object and the offence committed and if it is found that the same was committed to accomplish the common object every member of the assembly will become : 28 : liable for the same. Therefore, any offence committed by a member of an unlawful assembly in prosecution of anyone or more of the five objects mentioned in Section 141 will render his companions constituting the unlawful assembly liable for that offence with the aid of Section 149, it is not the intention of the legislature in enacting Section 149 to render every member of an unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to invoke Section 149 it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. Even if an act incidental to the common object is committed to accomplish the common object of the unlawful assembly, it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object, they would be liable for the same under Section 149.
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On going through the above said decision, the important ingredients of an unlawful assembly : 29 : is the number of persons involved. Common object could be formed on the spur of the moment and does not require prior deliberations. To consider the said aspect whether the said assembly was unlawful assembly with common object, the Court has to appreciate the entire evidence placed before the Court and if there is such basic relevant factors are to be seen, i.e., the course of conduct adopted by the members of such assembly, their behaviour before, during and after the incident and the arms carried are few basic and relevant factors to determine the common object. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Manjit Singh Vs. State of Punjab reported in 2019 (8) SCC
529. At paragraph Nos.14.1 to 14.5 it has been observed as under:
"14.1. The relevant part of Section 141 IPC could be usefully extracted as under:: 30 :
141. Unlawful assembly.- An assembly of five or more persons to designated an "unlawful assembly", if the common object of the persons composing that assembly is-
xxx xxx xxx Third.- To commit any mischief or criminal trespass, or other offence; or xxx xxx xxx Explanation.- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly."
14.2. Section 149, rendering every member of unlawful assembly guilty of offence committed in prosecution of common object reads as under:-
"149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.- 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."
14.3. We may also take note of the principles enunciated and explained by this Court as regards the ingredients of an unlawful assembly and the vicarious/constructive liability of every member of such : 31 : an assembly. In Sikander Singh,this Court observed as under:-
"15. The provision has essentially two ingredients viz. (i) the commission of an offence by any member of an unlawful assembly, and (ii) such offence must be committed in prosecution of the common object of the assembly or must be such as the members of that assembly knew to be likely to be committed in prosecution of the common object. Once it is established that the unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act. For the purpose of incurring the vicarious liability for the offence committed by a member of such unlawful assembly under the provision, the liability of other members of the unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object.
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17. A "common object" does not require a prior concert and a common meeting of minds before the attack. It is enough if each member of the unlawful assembly has the same object in view : 32 : and their number is five or more and that they act as an assembly to achieve that object. The "common object" of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful.
18. In Masalti v. State of U.P.: AIR 1965 SC 202 a Constitution Bench of this Court had observed that: (AIR p. 211, para 17) : 33 : "17. ... Section 149 makes it clear 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; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly."
14.4. In the case of Subal Ghoral (supra), this Court, after a survey of leading cases, summed up the principles as follows:-
"52. The above judgments outline the scope of Section 149 IPC. We need to sum up the principles so as to examine the present case in their light. Section 141 IPC defines unlawful assembly to be an assembly of five or more persons. They must have common object to commit an offence. Section 142 IPC postulates that whoever being aware of facts which render any assembly an unlawful one intentionally joins : 34 : the same would be a member thereof. Section 143 IPC provides for punishment for being a member of unlawful assembly. Section 149 IPC provides for constructive liability of every person of an unlawful assembly if an offence is committed by any member thereof in prosecution of the common object of that assembly or such of the members of that assembly who knew to be likely to be committed in prosecution of that object. The most important ingredient of unlawful assembly is common object. Common object of the persons composing that assembly is to do any act or acts stated in clauses "First", "Second", "Third", "Fourth" and "Fifth" of that section. Common object can be formed on the spur of the moment. Course of conduct adopted by the members of common assembly is a relevant factor. At what point of time common object of unlawful assembly was formed would depend upon the facts and circumstances of each case. Once the case of the person falls within the ingredients of Section 149 IPC, the question that he did nothing with his own hands would be immaterial. If an offence is committed by a member of the unlawful assembly in prosecution of the common object, any member of the unlawful assembly who was present at the time of commission of offence and who shared the common object of that assembly would be liable : 35 : for the commission of that offence even if no overt act was committed by him. If a large crowd of persons armed with weapons assaults intended victims, all may not take part in the actual assault. If weapons carried by some members were not used, that would not absolve them of liability for the offence with the aid of Section 149 IPC if they shared common object of the unlawful assembly.
53. But this concept of constructive liability must not be so stretched as to lead to false implication of innocent bystanders. Quite often, people gather at the scene of offence out of curiosity. They do not share common object of the unlawful assembly. If a general allegation is made against large number of people, the court has to be cautious. It must guard against the possibility of convicting mere passive onlookers who did not share the common object of the unlawful assembly. Unless reasonable direct or indirect circumstances lend assurance to the prosecution case that they shared common object of the unlawful assembly, they cannot be convicted with the aid of Section 149 IPC. It must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stages and shared the : 36 : common object of the assembly at all stages. The court must have before it some materials to form an opinion that the accused shared common object. What the common object of the unlawful assembly is at a particular stage has to be determined keeping in view the course of conduct of the members of the unlawful assembly before and at the time of attack, their behaviour at or near the scene of offence, the motive for the crime, the arms carried by them and such other relevant considerations. The criminal court has to conduct this difficult and meticulous exercise of assessing evidence to avoid roping innocent people in the crime. These principles laid down by this Court do not dilute the concept of constructive liability. They embody a rule of caution."
14.5. We need not expand on the other cited decisions because the basic principles remain that the important ingredients of an unlawful assembly are the number of persons forming it i.e., five; and their common object. Common object of the persons composing that assembly could be formed on the spur of the moment and does not require prior deliberations. The course of conduct adopted by the members of such assembly; their behaviour before, during, and after the incident; and the arms carried by them are a few basic and relevant factors to determine the common object. : 37 :
22. Whether an accused person is a member of an unlawful assembly, it needs to be seen, whether such act was committed in prosecution of the common object of the assembly and alternatively whether the member of the assembly knew that the offence was likely to be committed in prosecution of such common object, is further has to be determined from facts and circumstances of each case. This proposition of law has been laid down in the case of case of Bal Mukund Sharma Alias Balmukund Chaudhary and Others V. State of Bihar reported in 2019 (5) SCC 469. At para 24 it has been observed as under:
"It is well settled that to deter min e whe ther an accused, being a me mber of an unlawf ul asse mbly, is liable f or a given of f ence, it needs to be seen whe ther such ac t was co mmitted in prosecu tion of the co mmon object of the asse mbly, and al ternatively whe ther the me mbers of the asse mbly kne w th at the off ence : 38 : was likely to be co mmitted in prosecution of such co mmon object. T his, in turn, has to be deter mined f rom the f ac ts and circums tances of each case."
Keeping in view the aforesaid principles of law, let us consider the evidence which has been produced by the prosecution to know whether it constitute an unlawful assembly with common object.
23. On perusal of the evidence of the eyewitnesses, it indicates that accused No.9- Santosh had asked CW11 to give him his daughter Sharadamma in marriage and was advised. Subsequently, when CW10 Mareppa was proceeding on his motorcycle at that time his motorcycle was intercepted by accused No.1 and he assaulted and at that time the other accused persons pelted stone and in the meanwhile the deceased Basappa intervened to : 39 : pacify the quarrel and at that time it is the accused No.4 assaulted the deceased with wooden re-piece piece on his head and inflicted bleeding injuries, so also the accused Nos.3 and 6 assaulted the deceased with stones on the head and the other accused persons have also assaulted CWs 11, 10 and other witnesses.
24. Though during the course of evidence of these eyewitnesses it has been deposed that all the accused persons have assaulted but their evidence does not speak with regard to the common object as contemplated u/S 141 of IPC where exactly they have assembled prior to the alleged incident or even at the time of incident. Even on careful perusal of the evidence, when the galata was going on, at that time deceased Basappa intervened and tried to pacify the quarrel. At that time, it is the accused who assaulted him and other accused persons pelted : 40 : stones. In that light, it cannot be held that the accused persons had common object or they knew that the offence of murder of Basappa is going to be committed, in prosecution of such common object. In this behalf, nothing is forthcoming. In the absence of any such material in the evidence, it is very difficult to come to the conclusion that the accused persons have conspired by constituting an unlawful assembly and assaulted the injured and the deceased. Even on close scrutiny of the evidence, what are the overt acts of some of the accused has not been properly elucidated by the prosecution. In the absence of essential aspects of the offence mere presence of some of the accused persons will not attract the provision of Sec. 149 of IPC. In that light, the evidence is lacking.
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25. It is well settled that some persons in an assembly do not make such a person a member of the unlawful assembly unless it is shown that he has done something or omitted to do something which should make him a member of an unlawful assembly or unless the case falls u/S 141 of IPC. Mere presence in an assembly does not make such person a member of unlawful assembly unless he has done something which would make him a member of unlawful assembly. This proposition of law has been laid down by the Apex Court in the case of Baladin and Others v. State of Uttar Pradesh reported in AIR 1956 SC 181 wherein at paragraph No. 19 it has been observed as under:
"(19) It is manifest that the first three grounds do not make out a case for special leave but we think that the fourth ground does. It is well settled that mere presence in an assembly does not make such a person a member of an unlawful assembly unless it is shown : 42 : that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under Section 142, Indian Penal Code.
In this case there is no doubt that the original inhabitants of the village were all inimically disposed towards the new-comers. From the site plan (Ex. P-18) of the houses of the refugees, it is clear that the houses of the accused persons and of the refugees are situate close to one another. The house of Mangal Singh which was the scene of the occurrence was surrounded by the houses of the original inhabitants of the village including some of the accused persons.
According to the prosecution case, one party of the members of the unlawful assembly entered the first floor of the house of Mangal Singh through the roof of the house of Parichhat Lodhi , adjacent to the south- east and attacked the three persons who were there. The other party of the miscreants collected at the front door of Mangal Singh's house facing west. In front of Mangal Singh's house is the house of Mahabir, appellant, and on the other three sides of that house are the houses of Baladin Lodhi, Parichat Lodhi and Ajodhia Lodhi, appellants.
It would thus appear that the place of occurrence is surrounded on all sides by the houses of the : 43 : appellants. If members of the family of the appellants and other residents of the village assembled, all such persons could not be condemned 'ipso facto' as being members of that unlawful assembly. It was necessary, therefore, for the prosecution to lead evidence pointing to the conclusion that all the appellants before us had done or been committing some overt act in prosecution of the common object of the unlawful assembly.
The evidence as recorded is in general terms to the effect that all these persons and many more were the miscreants and were armed with deadly weapons, like guns, spears, pharsas, axes, lathis, etc. This kind of omnibus evidence naturally has to be very closely scrutinised in order to eliminate all chances of false or mistaken implication. That feelings were running high on both sides is beyond question.
That the six male members who were done to death that morning found themselves trapped in the house of Mangal Singh has been found by the courts below on good evidence. We have, therefore, to examine the case of each individual accused to satisfy ourselves that mere spectators who had not joined the assembly and who were unaware of its motive had not been branded as members of the unlawful assembly which committed the dastardly crimes that morning. : 44 :
It has been found that the common object of the unlawful assembly was not only to kill the male members of the refugee families but also to destroy all evidence of those crimes. Thus even those who did something in connection with the carrying of the dead bodies or disposal of them by burning them as aforesaid must be taken to have been actuated by the common objective.
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26. Keeping in view the ratio laid down and on perusal of the evidence produced by the prosecution it goes to show that the place of occurrence is surrounded by the houses. If the members of the family of the appellants and other residents, assembled at the place of incident, when such act is going on, such persons could not be condemned ipso facto as being the members of that unlawful assembly. The Court while appreciating the evidence has to keep in mind the situations which will arise in the village. Generally in villages, villagers and other persons would gather whenever a galata : 45 : takes place between the two groups and sometime, it is possible to include such persons though they have not participated in such an incident. In that light, the scrutiny of the evidence is very much essential as held in the decision quoted supra. It was necessary for the prosecution to lead evidence pointing out to the conclusion that all the accused persons had done or been committed some overt acts in prosecution of the common object of the unlawful assembly such evidence is lacking.
27. Be that as it may, even the evidence produced would indicate that there was some scuffle between the appellants-accused and the complainant and his men. In that light, the deceased came over there to pacify the quarrel and at that time the alleged incident has taken place. The evidence which has been produced is in general terms and not specific. Even the : 46 : accused persons were not armed with lethal or deadly weapons and accused No.4 assaulted with re-piece piece and other accused persons suddenly started pelting stones. In that light, if the evidence is scrutinized, the appellants were neither have any knowledge nor aware of its motive. In that light, it cannot be branded accused persons as members of the unlawful assembly which committed the dastardly crimes of that nature. In that light, if the judgment of the trial Court is looked into, it appears the trial Court without taking into consideration the niceties of law, facts and circumstances, without proper discussion on the issue properly, has convicted all the accused persons for the offences punishable u/S 148, 341, 504, 302, 324, 307, 506 r/w Sec. 149 of the IPC. In that light, conviction of appellant Nos.1 to 3, and 5 to 10 for the offence punishable u/S 302 of IPC : 47 : by invoking the provisions of Section 149 of IPC is not maintainable in law.
28. When the evidence produced goes to show that all the accused persons are not the members of unlawful assembly with common object, a duty is cast upon the Court to take into account the overt acts of each of the accused persons so as to independently bring home guilt for the offences which they have committed. Keeping in view the above said aspect and on perusal of the evidence of eyewitnesses PWs1, 2, 4 to 6, 9 and 10 they have deposed that accused No.4 assaulted the deceased with re-piece piece and Halappa (accused No.3) and Hanumanthappa (accused No. 7) assaulted with stone. But as could be seen from the postmortem report-Ex.P.20 and the evidence of PW19 the Doctor who conducted the postmortem, it reveals that the deceased had : 48 : sustained lacerated wound over the right parietal region of the head with depression of the parietal bone, abrasion on the left shoulder joint, abrasion on the right side of the face near the angle of the mouth, small abrasion over the left knee joint. PW19-The Doctor has opined that the death is due to haemorrhage and shock as a result of injury to vital organ-brain and such injury could be inflicted by re-piece piece and it would result in the death of the deceased. In that light, if the evidence is closely scrutinized it shows that it is the accused No.4 who has assaulted with re-piece piece and caused the fatal injury but the injuries which have been caused by accused Nos.3 and 6 are minor injuries. Even the other witnesses also sustained minor injuries as per the wound certificate produced in this behalf. : 49 :
29. On perusal of the evidence of eyewitnesses produced before the Court, it goes to show that there was no unlawful assembly with an intention to cause death of the deceased Basappa. But, however the evidence also goes to show that it is the accused No.4-Kalappa who has taken the wooden re-piece piece and accused No.8-Shivakumar kicked the motorcycle and assaulted, the accused No.4-Veeresh and accused No.6-Kotresh assaulted the deceased with stone and accused Nos.3, 4 and 6 have also abused in a filthy language and assaulted and caused the injuries. In that light, if the overt acts of each of the accused persons are looked into, under such circumstances, that too with reference to the evidence of the Doctor, it goes without saying that the accused No.4 who has hit the deceased with wooden re-piece piece, has caused the grievous injuries which is considered : 50 : to be fatal injury and he is liable to be causing the death of the deceased Basappa. But, however the evidence goes to show that he was not having any premeditation and intention to cause death.
30. At this juncture, it is the contention of the learned Senior Counsel that the act of accused No.4 falls within the provisions of Sec. 300 of IPC. In order to consider the case under Section 304-I and II of IPC, the case has to be made out under exceptions No. 1 or 4 of Section 300 of IPC. For the purpose of brevity we quote Section 300 of IPC and exceptions (1) and (4) which reads as under;
300. Murder.-Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or -
2ndly. - If it is done with the intention of causing such bodily injury as the offender knows to be : 51 : likely to cause the death of the person to whom the harm is caused, or -
3rdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or - 4thly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Exception 1. - When culpable homicide is not murder. - Culpable homicide is not murder if the offender, whilst deprived of the power of self- control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:-
First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.: 52 :
Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception 2.- xxx xxx xxx Exception 3.- xxx xxx xxx Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault.
19. On going through exception 1 of Section 300 of IPC, culpable homicide is not murder if the offender while doing the act deprived of the power of self control, by grave and sudden provocation. In order to bring the : 53 : case under the said exception accused has to show that he deprived of the power of self control, by grave and sudden provocation whichis caused by the person whose death has been caused.
Second aspect is in order to attract exception No.4, four requisites must be satisfied by the accused (i) it was a sudden fight (ii) there was no premeditation (iii) the act was committed in heat of passion and (iv) assailant has not taken undue advantage or acted in cruel manner.
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31. Keeping in view the above said proposition of law and on perusal of evidence produced the prosecution has established the guilt of the accused-appellants. Though accused No.4 assaulted the deceased with re-piece piece on the head, it is only when the deceased suddenly entered into the galata but there was no premeditation. The act was committed by him in a heat of passion. In that light, the exception No.4 to Sec. 300 of IPC would attract. In that light, the trial Court instead of convicting and : 54 : sentencing all the accused persons for the offence punishable u/S 302 of IPC, it ought to have convicted accused No.4 for the offence punishable u/S 304-II of IPC.
32. On perusal of the prosecution evidence, it is clear that there is evidence for having participated by the other accused person in the said crime and their presence is also noticed. In that light, accused Nos.1 to 3 and 5 to 10 are liable to be convicted for the offences punishable u/Ss 341, 504, 324 of IPC.
33. We place on record our appreciation for the valuable assistance rendered by the learned Senior Counsel Sri Ravi B. Naik and the learned Special SPP Sri V.M. Banakar.
For the aforesaid discussion, we pass the following order.
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ORDER The appeal filed by the appellants-accused is allowed in part. The judgment of conviction and order of sentence passed by the learned 3 r d Addl. District and Sessions Court, Ballari (sitting at Hosapete) in S.C. No. 5068/2014 dated 12.07.2017 is modified to the extent that;
(i) The appellant-accused No.4 is convicted for the offence punishable u/S 304-II of the IPC instead of convicting him for the offence punishable u/S 302 of IPC and is sentenced to undergo imprisonment for a period of Five years and to pay the fine of Rs.5,000/-. In default of payment of fine, he shall undergo further period of imprisonment for a period of six months.
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(ii) He is also convicted for the offence
punishable u/S 307 of IPC and
sentenced to undergo imprisonment for a period of three years and to pay a fine of Rs.5,000/-. In default of payment of fine amount, he shall undergo further period of imprisonment for a period of six months. Both the sentences shall run concurrently.
(iii) Insofar as the other accused, i.e., accused Nos.1 to 3 and 5 to 10 are concerned, they are convicted for the offences punishable u/S 341, 504 and 324 of IPC and sentenced to undergo imprisonment for the period which they have already undergone and each of them have to pay a fine amount of Rs.1,000/- for : 57 : each of the offences and in default to undergo simple imprisonment for a period of one month.
SD JUDGE SD JUDGE bvv