Karnataka High Court
Tippanna S/O. Kariyappa Pujar, vs State Of Karnataka, on 19 March, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19TH DAY OF MARCH, 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL APPEAL NO.2807 OF 2011 (C)
BETWEEN:
1. TIPPANNA S/O. KARIYAPPA PUJAR,
AGE: 71 YEARS, OCC: AGRICULTURIST,
R/O: GOBBARGUMPI, TQ: NAVALGUND,
DIST: DHARWAD.
2. FAKIRAPPA S/O. TIPPANNA PUJAR,
AGE: 31 YEARS, OCC: AGRICULTURIST,
R/O: GOBBARGUMPI, TQ: NAVALGUND,
DIST: DHARWAD.
3. KARIYAPPA S/O. TIPPANNA PUJAR,
AGE: 23 YEARS, OCC: AGRICULTURIST,
R/O: GOBBARGUMPI, TQ: NAVALGUND,
DIST: DHARWAD.
4. YALLAPPA S/O. TIPPANNA PUJAR,
AGE: 44 YEARS, OCC: SERVICE EXCISE GUARD
R/O: GOBBARGUMPI, TQ: NAVALGUND,
DIST: DHARWAD.
5. RAYAPPA S/O. MALAPPA SHEBANNAVAR,
AGE: 41 YEARS, OCC: AGRICULTURIST,
R/O: GOBBARGUMPI, TQ: NAVALGUND,
DIST: DHARWAD.
6. NINGAPPA S/O. HANUMANTAPPA BELLAD,
AGE: 41 YEARS, OCC: AGRICULTURIST,
R/O: GOBBARGUMPI, TQ: NAVALGUND,
DIST: DHARWAD.
7. FAKIRAPPA S/O. HANUMANTAPPA SHEBANNAVAR,
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AGE: 38 YEARS,
R/O: GOBBARGUMPI, TQ: NAVALGUND,
DIST: DHARWAD.
8. MANJU S/O. HANUMANTAPPA SHEBANNAVAR,
AGE: 35 YEARS, OCC: AGRICULTURIST,
R/O: GOBBARGUMPI, TQ: NAVALGUND,
DIST: DHARWAD.
9. MUTTAPPA S/O. HANUMATAPPA SHEBANAVAR,
AGE: 33 YEARS, OCC: AGRICULTURIST,
R/O: GOBBARGUMPI, TQ: NAVALGUND,
DIST: DHARWAD.
10. SIDDAPPA S/O. HANUMANTAPPA SHEBANAVAR,
AGE: 31 YEARS, OCC: AGRICULTURIST,
R/O: GOBBARGUMPI, TQ: NAVALGUND,
DIST: DHARWAD.
.... APPELLANTS
(BY SRI V.G.HOLEYANNAVAR, ADVOCATE)
AND :
STATE OF KARNATAKA,
R/P BY SPP, CIRCUIT BENCH,
(NAVALGUND POLICE STATION,
NAVALGUND)
... RESPONDENT
(BY SRI V.M.BANAKAR, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF
CR.P.C. SEEKING TO SET ASIDE THE ORDER OF FOUND
GUILTY OF ACCUSED/APPELLANT NOS.1 TO 10 ON
18.07.2011 FOR THE OFFENCE UNDER SECTIONS 143, 147,
148, 323, 324, 504, 506 AND READ WITH SECTION 149 OF
I.PC. AND ORDER DATED 27.08.2011 PASSED BY THE PRL.
DIST. & SESSIONS JUDGE, DHARWAD, IN S.C.NO.63 OF
2009 AND ACQUIT THE ACCUSED/APPELLANT NOS. 1 TO 10
FOR THE CHARGE FOUND GUILTY AGAINST THEM.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THIS COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The present appeal has been preferred by the accused Nos.1 to 10 assailing the Judgment of conviction and order of sentence passed by the Principal District and Sessions Judge, Dharwad in Sessions Case No. 63 of 2009 dated 18.07.2011.
2. I have heard the learned counsel for the appellants and the learned Additional S.P.P. for the respondent-State.
3. The brief facts of the case of the prosecution is that, on 02.08.2008 between 2.00 p.m. to 3.00 p.m. when complainant and others were sitting in their land for lunch after sowing the crop, at that time, all the accused persons came there by holding deadly weapons with common object to takeaway the life of the complainant. Accused No.7 asked the complainant why he has sown in more area than what they were possessing and he assaulted him with axe and club. When P.W.3 tried to intervene, he has been also assaulted. So also P.W.4 and 5 came for the rescue of the :4: complainant, the accused person also assaulted them. The injured have been shifted to the Government Hospital, Navalgund.
4. On the basis of the M.L.C. intimation, P.S.I. visited the hospital and recorded the statement of the complainant, on such complaint and thereafter a case has been registered in Crime No.170 of 2008. After investigation charge sheet was laid as against the accused Nos.1 to 11. Thereafter, the learned Magistrate took the cognizance and committed the case to the Sessions Court. Sessions Court secured the presence of the accused and heard the matter with regard to framing of the charge, and accused No.11 was discharged from the case and charge was framed as only against the accused Nos.1 to 10
5. In order to prove the case of the prosecution, prosecution got examined 08 witnesses and got marked 08 documents and 06 material objects. Thereafter, the statement of the accused was recorded under Section 313 of :5: the Cr.P.C. by putting incriminating materials as against them and they denied the same. The accused persons have not led any oral evidence or produced any document. After hearing the learned counsel for the accused and the learned Public Prosecutor, the trial Court acquitted the accused Nos.1 to 10 for the offence punishable under Sections 447 and 307 read with Section 149 of I.P.C., but convicted them for the offence punishable under Sections 143, 147, 148, 323, 324, 504 and 506 read with Section 149 of I.P.C. Thereafter, after calling the report from the Probation Officer under the Probation of Offenders Act, the accused persons have been enlarged on Probation. Challenging the legality and correctness of the Judgment of conviction, the accused Nos.1 to 10 are before this Court.
6. The main grounds urged by the learned counsel for the appellants are that, the Judgment of conviction and order of sentence is contrary to law, evidence and material placed on record. It is his submission that though there is no sufficient material regarding unlawful assembly the trial :6: Court has wrongly convicted the accused. Fundamental requirement is existence of unlawful assembly as defined under Section 141 of IPC. In order to bring home the guilt it has to be established. Though, there is no sufficient evidence the trial court has wrongly convicted the accused persons for the alleged offences. It is his further submission that in order to convict the accused under Section 149 of I.P.C. a clear finding regarding nature of unlawful common object has to be made. In the absence of such finding and without there being any overt acts on the part of the accused merely because the accused were armed is not sufficient to prove the common object. Without looking into the said aspect, the trial Court has wrongly convicted the accused persons. It is his further submission that, P.W.1 in his evidence has not deposed any overt act or presence of the accused No.4, so also P.W.1, 3, 8 and 10. It is his further submission that, P.W.8 the Investigating Officer, during the course of cross- examination has clearly admitted the fact that the accused No.4 was working as a Excise Guard on 02.08.2008, he was :7: on duty from 10 O' clock and from 12-30 p.m. to 8.00 p.m. and the department has given a letter in this behalf. The learned Sessions Judge without considering the said fact has erroneously convicted the accused No.4 though; accused No.4 was not present at the place of incident. It is his further submission that there is no corroboration to the evidence of P.W.1, 3, 5 and 6 in so far as accused Nos.1, 3, 4, 8 and 10. It is his further submission that the main allegation of the prosecution is that it is accused No.11 who instigated or at his instigation the alleged offence has taken place. But when he has been discharged from the case by holding that there is no material as against him and no charge has been framed. Under such circumstances, the trial Court ought to have given the same benefit to the remaining accused and all the accused could have been acquitted for the alleged offences. It is his further submission that the injuries which have been suffered are simple in nature and the trial Court ought to have acquitted all the accused. On these grounds he prayed to allow the appeal and to acquit the accused. :8:
7. Per Contra, the learned Additional S.P.P. strongly contended that the evidence of P.W.1 is cogent, clear, specific and the motive was very clear, civil disputes are also pending between the appellants-accused and the complainant. In that light, the accused persons constituting an unlawful assembly by holding deadly weapons came and assaulted the complainant and P.W.3, 4. When P.W.5 and 6, who were eyewitnesses tried to rescue them, they have been also assaulted. Their evidence corroborates with the evidence of P.W.7. The Wound Certificates which have been produced at Ex.P.3 to 5, clearly goes to show that the P.W.1- complainant has suffered with fracture and other two persons have suffered with simple injuries. Taking into consideration of such evidence and material placed on record, the trial Court has rightly convicted the accused. There are no grounds to interfere with the order of the trial Court. Order of the trial Court deserves to be confirmed. On these grounds he prays to dismiss the appeal. :9:
8. I have carefully and cautiously gone through the submissions made by the learned counsel for the appellants- accused and the learned Additional S.P.P. for the respondent-State and perused the records including the trial Court records.
9. In order to prove the case of the prosecution, prosecution got examined 08 witnesses. P.W.1 is the injured-complainant, he has reiterated the contents of the complaint and has deposed that on 02.08.2008 they had been to the field for the purpose of sowing the land and at about 2.30 p.m. or 3.00 p.m. when they were sitting for lunch, accused Nos.1 to 10 who were cultivating in the side by land, they came by holding lethal weapons and out of them accused No.2-Fakirappa Pujar and accused No.7- Fakirappa Shebannavar asked him (complainant) why they are sowing extra land and accused No.2 assaulted with axe on his head. Accused Nos.5 and 6 assaulted him on his left thigh with axe. Accused No.9 assaulted him with hand on his back. Accused No.6 by snatching axe from the hand of : 10 : accused No.2, assaulted on the left side of the head and as a result of the same he fell down. Accused No.6 also assaulted to his brother and accused No.5 assaulted with hands. During the course of cross-examination, it has been elicited that, one Shakuntala and Shailabai have executed an agreement and there was an order to maintain status quo, to this question he has shown ignorance about the said orders. But nothing has been elicited to discard the evidence of this witness.
10. P.W.2 is the spot mahazar panch to Ex.P.2 he has spoken with regard to the recovery of an axe and five clubs by drawing the mahazar as per Ex.P.2. In his evidence also nothing has been elicited to discard his evidence. P.W.3 and 4 are the injured eyewitnesses, they have stated that at about 12.00 noon when they were sowing the land, at that time, accused persons came there and started to assault him with axe and the accused No.1 assaulted him with axe. P.W.4 has further deposed that, accused Nos.4, 5, 6 and 8 have assaulted. P.W.5 and 6 are the eyewitnesses to the : 11 : alleged incident, who were present at the time of incident and they have reiterated the evidence of P.W.1, 3 and 4.
11. P.W.7 is the doctor who has treated the injured, he has deposed that the patients were got admitted on 02.08.2008 with a history of assault with stick and axe. In so far as P.W.1 is concerned, he has found 4 injuries and P.W.3 is concerned, he has found three injuries and he has issued wound certificates as per Ex.P.3 to 5. During the course of cross-examination, he has admitted that in order to diagnose the fracture radiological report is necessary. He has further admitted that they used to treat in their hospital only the simple injuries cases and normally they used to refer the grievous injuries cases to the K.I.M.S. Hubballi. Apart from that nothing has been elicited from the mouth of this witness. P.W.8 is the Investigating Officer, who has investigated the case and filed the charge sheet against the accused persons.
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12. In order to prove the case of the prosecution, the prosecution has to clearly establish the fact that there exists an unlawful assembly as defined under Section 141 of the I.P.C. Until and unless the prosecution establishes the cogent and reliable evidence that the accused cannot be convicted for the offence punishable under Sections 146, 148 and 149 of the I.P.C. What is the scope and the amplitude of the said section has been explained by the Hon'ble Apex Court in the case of Vinubhai Ranchhodbhai Patel vs. Rajivbhai Dudabhai Patel and others, reported in (2018) 7 SCC 743 at paragraph Nos.24 to 32 it has been observed as under :
"24. To understand the true scope and amplitude of Section 149 IPC it is necessary to examine the scheme of Chapter VIII (Sections 141 to 160) of the IPC which is titled "Of the offences against the public tranquility".
Sections 141 to 158 deal with offences committed collectively by a group of 5 or more individuals.
25. Section 141 IPC declares an assembly of five or more persons to be an "unlawful assembly" if the common object of such assembly is to achieve any one : 13 : of the five objects enumerated in the said section. One of the enumerated objects is to commit any offence.
"The words falling under section 141, clause third "or other offence" cannot be restricted to mean only minor offences of trespass or mischief. These words cover all offences falling under any of the provisions of the Penal Code or any other law." The mere assembly of 5 or more persons with such legally impermissible object itself constitutes the offence of unlawful assembly punishable under Section 143 IPC. It is not necessary that any overt act is required to be committed by such an assembly to be punished under Section 143.
26. If force or violence is used by an unlawful assembly or any member thereof in prosecution of the common objective of such assembly, every member of such assembly is declared under Section 146 to be guilty of the offence of rioting punishable with two years' imprisonment under Section 147. To constitute the offence of rioting under Section 146, the use of force or violence need not necessarily result in the achievement of the common object. In other words, the employment of force or violence need not result in the commission of a crime or the achievement of any one of the five enumerated common objects under Section
141.
27. Section 148 declares that rioting armed with : 14 : deadly weapons is a distinct offence punishable with the longer period of imprisonment (three years). There is a distinction between the offences under Sections 146 and 148. To constitute an offence under Section 146, the members of the "unlawful assembly" need not carry weapons. But to constitute an offence under Section 148, a person must be a member of an unlawful assembly, such assembly is also guilty of the offence of rioting under Section 146 and the person charged with an offence under Section 148 must also be armed with a deadly weapon.
28. Section 149 propounds a vicarious liability in two contingencies by declaring that (i) if a member of an unlawful assembly commits an offence in prosecution of the common object of that assembly, then every member of such unlawful assembly is guilty of the offence committed by the other members of the unlawful assembly, and (ii) even in cases where all the members of the unlawful assembly do not share the same common object to commit a particular offence, if they had the knowledge of the fact that some of the other members of the assembly are likely to commit that particular offence in prosecution of the common object.
29. The scope of Section 149 IPC was enunciated by this Court in Masalti v. State of U.P. (1964) 8 SCR 133: : 15 :
"17. . . . . The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this court in the case of Baladin assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, 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 : 16 : 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."
30. It can be seen from the above, Sections 141, 146 and 148 create distinct offences. Section 149 only creates a vicarious liability. However, Sections 146, 148 and 149 contain certain legislative declarations based on the doctrine of vicarious liability. The doctrine is well known in civil law especially in the branch of torts, but is applied very sparingly in criminal law only when there is a clear legislative command. To be liable for punishment under any one of the provisions, the fundamental requirement is the existence of an unlawful assembly as defined under Section 141 made punishable under Section 143 IPC.
31. The concept of an unlawful assembly as can be seen from Section 141 has two elements;
(i) The assembly should consist of at least five persons; and : 17 :
(ii) They should have a common object to commit an offence or achieve any one of the objects enumerated therein.
32. For recording a conclusion, that a person is (i) guilty of any one of the offences under Sections 143, 146 or 148 or (ii) vicariously liable under Section 149 for some other offence, it must first be proved that such person is a member of an "unlawful assembly'"
consisting of not less than five persons irrespective of the fact whether the identity of each one of the 5 persons is proved or not. If that fact is proved, the next step of inquiry is whether the common object of the unlawful assembly is one of the 5 enumerated objects specified under Section 141 IPC."
13. Therein, it has been explained that the concept of unlawful assembly has to elements; it should consists of at lest five persons and they should have a common object to commit an offence or achieve any objects enumerated therein. For convicting the said persons under the said section, it must be proved that such a person was a member of unlawful assembly irrespective of fact whether identity of each one of the five persons was proved or not a common object of unlawful assembly one of the five objects specified : 18 : under Section 141 of the I.P.C. keeping in view the said proposition of law on analyzing the evidence of P.W.1, 3 to 6 nowhere they have deposed with regard to the unlawful assembly and the common object. In order to attract the provision under Section 149 of the I.P.C. it must be shown that incriminating act was done to accomplish the common object of unlawful assembly; it must be within the knowledge of other members as one likely to be committed in prosecution of unlawful assembly. The essential ingredients as stated under Section 141 of the I.P.C. needs to be established. In the instant case, there was no material to show that all the accused shared the common object, the object itself not been proved and their participation it was not made out by credible evidence. This proposition of law also laid down by the Hon'ble Supreme Court in the case of Kuldip Yadav and others vs. State of Bihar, reported in (2011) 5 SCC 324 at paragraph Nos.36 to 43 it has been observed as under :
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"36. In order to understand the rival claim, it is useful to refer Section 149 which reads as follows:-
"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."
The above provision makes it clear that before convicting the accused with the aid of Section 149 IPC, the Court must give clear finding regarding nature of common object and that the object was unlawful. In the absence of such finding as also any overt act on the part of the accused persons, mere fact that they were armed would not be sufficient to prove common object. Section 149 creates a specific offence and deals with punishment of that offence. Whenever the court convicts any person or persons of an offence with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under Section 149 IPC, the essential ingredients of Section 141 IPC must be established. : 20 : The above principles have been reiterated in Bhudeo Mandal vs. State of Bihar.
37. In Ranbir Yadav vs. State of Bihar, this Court highlighted that where there are party factions, there is a tendency to include the innocent with the guilty and it is extremely difficult for the court to guard against such a danger. It was pointed out that the only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on acceptable evidence which in some measure implicates such accused and satisfies the conscience of the court.
38. In Allauddin Mian and others Sharif Mian and another vs. State of Bihar, this Court held:
"8....Therefore, in order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly. Under this section, therefore, every member of an unlawful assembly renders himself liable for the criminal act or acts of any other member or : 21 : members of that assembly provided the same is/are done in prosecution of the common object or is/are such as every member of that assembly knew to be likely to be committed. 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 strictly 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 liable for the same. Therefore, any offence committed by a member of an : 22 : unlawful assembly in prosecution of any one 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, IPC."
39. It is not the intention of the legislature in enacting Section 149 to render every member of unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to attract Section 149, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly and 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 IPC.
40. In Rajendra Shantaram Todankar vs. State of Maharashtra and others, this Court has once again explained Section 149 and held as under:
"14. Section 149 of the Indian Penal Code 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 : 23 : 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.
The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly. The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly, nevertheless, the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case, every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly. A mere possibility of the commission of the offence would not necessarily enable the court to draw an : 24 : inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge.
An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime. Unless the applicability of Section 149 - either clause - is attracted and the court is convinced, on facts and in law, both, of liability capable of being fastened vicariously by reference to either clause of Section 149 IPC, merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act.": 25 :
The same principles have been reiterated in State of Punjab vs. Sanjiv Kumar.
Summarization of the principles attracting Section149
41. In the earlier part of our order, we have analysed the evidence led in by the prosecution and also pointed out several infirmities therein. In our view, no overt act had been attributed to any other accused persons except Brahmdeo Yadav (A-1) towards the murder of Suresh Yadav. Had the other accused persons intended or shared the common object to kill Suresh Yadav, they must have used the weapons allegedly carried by them to facilitate the alleged common object of committing murder.
42. The Sessions Judge, on analysis, held that no case under Section 307/149 against all the 11 accused persons be made out for causing murderous assault and hurt to Naresh Yadav, Munshi Yadav, Bindeshwar Yadav and Ganauri Yadav. The learned Judge further observed that it appears that at least 4 of the accused persons were armed with gun but no gun shot injury was inflicted against any of the aforesaid injured prosecution witnesses. Had the accused persons intended to kill the witnesses, they must have used the surest weapon of committing : 26 : murder i.e. gun against any of the aforesaid witnesses. In view of the fact that common object was not known to anybody and in the light of the principles enunciated over application of Section 149 IPC and with the available material on the side of the prosecution, we hold that it is not safe to convict the accused persons under Section 149 IPC.
Summary of all the issues:
43. (a) Though both the FIRs (Nos.11/97 and 12/97) were investigated by the very same IO, he had not acted in good discipline and not drawn the attention of the trial Judge about the cross cases arising out of the same incident.
(b) By reading the statement of prosecution witnesses under Section 164 of the Code and their evidence before the Court clearly show their improvements with due deliberation and consultation and in the absence of credible explanation, conviction based on their testimony cannot be sustained.
(c) The prosecution is not sure, especially about the actual place of occurrence since some witnesses demonstrated that it occurred near diesel engine and some said the occurrence had taken place in the field of Aziz Mian. We have already noted down the contradictions among the prosecution witnesses on : 27 : material facts and it is not safe to convict all the accused based on the same.
(d) Even, on description of injuries alleged to have been sustained, the details furnished by the prosecution witnesses and the medical evidence vary on material aspects.
(e) Non-examination of diesel mechanic Mohan Yadav is fatal to the prosecution case. Though, his presence at the scene of occurrence was mentioned by the prosecution witnesses under Section 164, it is not clear why the prosecution did not examine him.
(f) Likewise, though the IO collected blood stained clothes and other objects including earth from the site, there is no information whether the same were examined by the forensic science laboratory and the outcome of the same.
(g) There is no material to show that all the accused shared in common object, the object itself not being proved and their participation in it is not made out by credible evidence. Without a clear finding regarding common object and participation therein by each one of the accused members, there can be no conviction with the aid of Section 149 IPC. : 28 :
(h) The place of occurrence has been shifted by the informant and the investigating officer has admitted not making any site plan of the place of occurrence and casually acted on the basis of the statement of the informant without carrying its own investigation to ascertain the actual place of occurrence.
(i) As it was morning time, at least some villagers in their routine work must have been present in the neighbouring field who could have deposed regarding the occurrence and manner in which it did take place, if they were examined.
(j) The injuries on the accused, particularly, firearm injury on Brahamdeo Yadav has not been explained by the prosecution despite the fact that the informant parties were charge-sheeted for causing those injuries on the person of Brahamdeo Yadav, Darogi Mahto, Musafir Yadav and Sunil Yadav.
(k) The weapons alleged to be used in the offence were not seized and no effort was made to recover them. Hence, there is nothing on record to link the accused persons to the crime.
(l) The bloodstained clothes, bloodstained earth of the place of occurrence were not sent to forensic laboratory for chemical examination.
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(m) The bullet found by the doctor who conducted the post-mortem of the deceased was not seized and preserved for court's observation.
(n) The version given by eyewitnesses who were also interested witnesses on account of their relationship with the deceased and being inimically deposed against the accused persons is highly exaggerated, contrary to each other and not fully corroborated with medical evidence and there are discrepancies about the number of accused persons, weapons and ammunitions carried by them and they are not in tune with what (PW-9) the informant has stated in his deposition. In other words, the prosecution has not presented a true version on most of the material parts and therefore the witnesses and material placed on their side does not inspire confidence and cannot be accepted on its face value.
(o) The findings of the High Court and ultimate conclusion dismissing the appeals are perverse and resulted in failure of justice."
14. In the light of the ratio laid down in the above said decisions and on perusal of the records, it clearly goes to show that, there is no iota of material to show that all the accused persons shared the common object. In the absence : 30 : of such material conviction entered into by the learned Sessions judge for the offence punishable under Sections 143, 147, 148 and 149 of the I.P.C. is not sustainable in law and the same is liable to be set aside.
15. In so far as the offences under Sections 323, 324, 504 and 506 of the I.P.C. is concerned, the evidence of P.W.1, 3 to 6 it clearly goes to show that the accused Nos.2, 5, 6, 7 and 9 have participated and there are some overt acts as against each of them. They have categorically stated that the accused Nos.2, 5, 6, 7 and 9 have assaulted the complainant, nowhere the presence of the accused No. 1, 3, 4, 8 and 10 has been stated by P.W.1 neither in his evidence nor during the course of cross examination. Even, P.W.3, 5 and 6 have also not stated any overt acts or assault said to have been committed by the 4th accused. Though, P.W.4 has deposed with regard to the presence of accused No.4 and has deposed that accused Nos.4, 5, 6 and 8 have assaulted him. But the evidence of P.W.9-Investigating Officer, in his evidence he has deposed and admitted the fact that the : 31 : accused No.4 was working as Excise Guard and he was on duty on 02.08.2008 upto 10 O' clock, thereafter 12.30 p.m. to 8.00 p.m. Under such circumstances, the trial Judge held, the presence of accused No. 4 at that place and could not have convicted the accused No.4. Though there is no evidence in sofar as presence of the accused and the assault is concerned. So also there is no specific overt acts have been alleged in so far as accused Nos.1, 3, 8 and 10 are concerned, even there is no material, in so far as these accused persons are concerned, though the trial Court has erroneously convicted the accused. In that light, the appellant/accused Nos.1, 3, 4, 8 and 10 have made out a case that their presence has been proved and no serious overt acts so also they were the members of unlawful assembly. Then under such circumstances, the appellants- accused are entitled to be acquitted. Taking into consideration the above said facts and circumstances, I am of the considered opinion that the accused Nos.1, 3, 4, 8 and 10 have made out a case. On perusal of the records and : 32 : evidence of all the witnesses there is no incriminating material as against accused Nos. 1, 3, 4, 8 and 10. Trial Court without looking to this aspect of the matter has erroneously convicted them. When it has already allowed for the offence u/s 149 of IPC by answering the said point again convicting accused person for other offence along with sec. 149 of IPC is not justifiable. This aspect has been lost sight and convicted them.
In that light, the appeal is partly allowed and the Judgment of conviction and order of sentence passed by the Principal District and Sessions Judge, Dharwad in Sessions Case No.63 of 2009 dated 18.07.2011 is set aside in so far the accused Nos.1, 3, 4, 8 and 10 have been acquitted of the charges leveled against them. In sofar as accused Nos.2, 5, 6, 7 and 9 are concerned, there is material, as such, the same is confirmed and accused persons are enlarged on probation as ordered by the trial Court.
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The bail bond and surety bonds executed by accused Nos. 1, 3, 4, 8 and 10 stand cancelled.
SD JUDGE ckk