Karnataka High Court
Haalesh @ Haleshi @ Kurubara Haleshi vs State Of Karnataka on 1 July, 2010
Author: K.L.Manjunath
Bench: K.L.Manjunath
INTHEEHGHCOURTOFKAWMUEKAATBNWHRORE
DATED THIS THE 181" DAY OF JULY 20;
PRESENT:
THE HON'}3LE MR. JUSTICE V
THE HONBLE MR. JUST'CE K.N';K§F:sHAv'«i%.;§t§AYAj5IA'o
ANDo
CRIMINAL APPEVIVXLVVNO. 229 V o.:%'VA2»oV07
gt./_v\zo
CR1MINAL'APPEAL_NQ§_2.Vi9.QF 2oo7VVVV
In Criminal Appeal
BETWEEN: o Li-
/2oo7VV[oF
I-Iaalesh @ HaleshVi V
S/o. Kariyapp~a',"" ow .:
Aged about 26 years,' V'
B. A. Student,VV", V . '
Bhadravathi, -
Native of ChannapVura'Vil£ago_, V
Santhepenugr Hobli,
Ch;a;i1Vn.3,girvio.. V{'VI'a.1-1,1k}». A.
[By Adfiojszate}
, Kargatoka,
V" --,7 ..Represeni:$d..1by Pubiic Prosecutor,
.. _ " H_igh= Court Building,
V Barigajom.
....Appel1ant
. . Respon dent
o. B. Raja Subramanya Bhat, I-ICGP]
X. ..
This Criminal Appeal is filed under Section 374(2)
of the Code of Criminal Procedure, praying this Court to
grant leave to file an Appeal against the Judgement
dated 22 / I 1/ 2006 passed by the Principal' »~Ses'sipo:1s
Judge, Shirnoga, in S.C. No. 25/ 2000- e-3nvie'tir;g
Appellant/Accused No.7 for the offenee's.._pqnishable
under section 143, 144, 147, 1_48.,,3407,_"3O2=R/W"section'up
149 ifIPC Etc.
In Criminal Appeal No. 219/'2OC)47--
BETWEEN: M N
1. Maliikarjuna @ l\;'I:a'ilika.;VAC i
S/ o. Parashuramappa,
Aged about_32 years, '
Residing at pflaanumanthappparcpoloi
Behind EIaladamn31ar1_a Keri; V "
A
2. Panda. urajm
S'/o. Paras'huram;«vl. _ .
Aged about yea_rs--~,,_
Residing at"E)odtia/liurubara Keri,
Behind ~HaiaVdVam--rna' 'Temple,
" C 'O1d"TOWfi' Bhadra vathi.
if *3. t:shas:;:;§umar @ Shasi @ Shesha,
_'S,/_o«.,}{air1a11na,
-..Agedu_abo'g1t 49 years,
C A Resid.i_ngat Kanchibagiiu.
'Bzha.dravat}:1i. . . .Appella1'1ts
C' ._f.pByV"'Sri. H. Kantharaja, Advocate]
..
The State of Karnataka, By Old Town Police, Bhadravathi, //"' Represented by its Z:$§»»«"/ 3 Office of Advocate General, Karnataka High Court Building, Bangalore. . . Respondent [By Sri. B. Raja Subramanya Bhat, HCGP] This Criminal Appeal is tiled under Sectioi1~'--374(2) of the Code of Criminal Procedure, praying this..VCourt to grant leave to file an Appeal against the.g..J11d'gem'ent dated 22/ i 1/2005 passed by the Principal"
Judge, Shimoga, in S.C. No. 25/2000- conVi'c.ti"I1g'ths"
Appellant/Accused No.7 for the_ offences-.,'jpunis.hableup under section 143, 144, 147, 1:48, a,<y-e,seehsn - 149 if IPC Etc. Reserved on : i8.O6;i5,Q'i.Q Pronounced on : 01.07.20i'l..(g):l' _ These Criminajiiappcéialstconiingon for hearing this day, Keshavanarayana. J.g.f:de1iyered"the following» hydUDoMENT "l'hese by accused Nos.4 to 7 are diijected 'the judgment and order dated by the Prl. Sessions Judge, Shimoga _ convicting the accused Nos. 4 to 7 accused Nos.l to 3 for the offences " punishable under Section 143, 144, 147,148, 448, 307. 4302 1'/w 149 EPC and sentencing each of them to undergo imprisonment for various periods for offences punishable under section l43,l44,l47,l48,448,307 & 149 IPC and imprisonment for life and aiso to pay fine 4 for the offence punishable under Section 302 I'/W 149 IPC.
2. These appeliants and five others }*.f3,'lO4._:l'lVV€re arraigned as accused Nos.1 to 9 took the learned Sessions Judge, j'.V"lS'ni._rjnoga_' S.C.No.25 / 2000. Accused Nosll the offences punishable Secti.or1s'VglVi'-43:;"i'44';j l47',' V 148, 448 1-/w 149 Ipc, 3Q*?"'rif__V*J"l-él.9 IPC',~--30é r/W 149 IPC, accused No. 8 for the offence punishable unider 1C:)v'.3)~v:.l'1f--,/._\;s/V' i'4f3 IPC. In addition, accused" independently charged for the offence " pur1i.sVhaht¢'..:1j11d¢.r f Section 302 IPC; accused Nosfi toll"? jvere~. iri,dep'endently charged for the offence piinisphiable under"'Section 307 IPC while accused No.8 were independently charged for the o£fence~pu.nishable under Section 109 IPC. l' The allegations made against the accused "persons were that on account of the long standing civil ilitigation between accused No.9 and his younger brother deceased Shivanna, there was iII~wiIl between the two families and in this background, accused Nos. 1 to 9, on 5 259.1999 at about 9.15 am. formed themselves into an unlawful assembly the common object of whichyvas to commit murder of Shivanna and his family--'jme"m:bers and in furtherance of the said common object; accused persons armed witilimdeadiy _we'apon'sC like choppers came near the house__ of_ ShiV'a_n'I1»a'.situatedV near Kanchibagilu in Bh--ad1*avathi after trespassing into house' said "VVShivanna, accused Nos.1 to 3 Shivanna and assaulted l1i41ln1'p.r::'Nitl'i1--. Nos.4 and 5 caught"'t'11o:l<1 "Sa'vlithlrarriir1a'V: Wife of Shivanna and assaulted and dragged her by holding her tuftllwh'ile_acc'used Nos.6 and 7 assaulted Girija, daughte1"-- of sifivanha with choppers and dragged her by and at that time accused Nos. 8 and 9 by! outside the house of Shivanna instigated _ accused bios} to 7 to kill Shivanna and his family 'frrzernbers and as a result of the injuries sustained,
--lshivanna died, while his wife and daughter sustained rievous in'uries. ,.
Lt?"
6
4. Upon their appearance before the Learned Sessions Judge, all the accused persons pleaded not guilty for the charges levelled against them an'd'cl'aifned to be tried. The prosecution, to bring home' :
the accused persons examined:-i3Ws«.l' to 'g'o_tVV:ni.arl{epdV ' i EXs.P.l to £3.63 and M.Os.l the examination of PWs.4 & V.defen.ce_= Vinarkedf EXs.D.l and D12. .'I"'i:.e' accusedjppersonsé not choose to lead any defence evrdfenicet. After.';h_iearing both sides and on appre'Criation=._ of: the ovral-:.avs_Wfell as documentary €VidCIiC€."a.V.I:§:( th?:"'ju'dgrnent""under appeal, the learned accused Nos.1 to 7 for the offences ipunishable under Sections 143, 144, 147. 148, andx'3O2"R/W 149 IPC and sentenced them to undergo "imprisonment and also to pay fine. However, the Sessions Judge acquitted accused Nos. 8 pp and of the charges levelled against them. Being naggrieved by the said judgment of conviction, accused
-T§Nos.4, 5 and 6 have preferred Crl.A.No.219/2007 While accused No.7 has preferred Crl.A.No.229/2007. It appears accused Nos.l to 3 have not preferred any 7 appeal in respect of conviction and order of sentence passed against them. Similarly, the State has not filed any appeal against the acquittal of accused.'.;Zf\"os'.-.:"8,:'and
9.
5. Before considering thcee»'eo,nte.':1tioiits'I.ufged behalf of the appellants, it is of the prosecution in brief: 3 (1) Deceased,' Shjvaxuga and 'accused No.9-
Ramanna are brothersfbeitng :so3:is-.tofVt'o;1'1e Thimmanna. Accused No.2--Prabhu, accused .No'.'£3V-Vij'aykufa.ar, [accused No.6--Shash.ikuInar and accused "No':E§--Sfi'niVasa are the sons of accused Accused:l\To.%:--Mallikarjuna, accused No.5--Pandu . :'oeVing' 'oroth-ers and accused No.7--Halesh are friends of gaL:cuée&"_t~LN¢s;'ti to 3, 6 & 8. PW.3--SaVithramma is the strife, PW.4--Gi1'ija, PW.7--Rukmini are the daughters and CW.22--Hemanth Kumar is the son of '",deceased Shivanna. PW.1--Chandrash.ekar is- husband of PW.7. All the accused except accused No.7 as well as deceased, PWs.l, 3, 4 and 7 are residents of Bhadravathi Town while accused No.7 is the resident of »-
Le"
8
Channapura village in Channagiri Taiuk. Deceased Shivanna had filed civil suit in O.S.No.202/89 on the file of the First Additional Munsiff and JMFC, Bhadravathi against his brother accused for partition and separate possession of his iinqail the properties described therein and for---cuanceliationp"'of reiinquishment deed dated hg_«l9e 9 been executed by him. The.__said7suit 9. accused No.9. However afteif-full.V_vdresse:d: the said suit came to be decreed. as for-.»pby judgment and decrveéllldaigejdl as""'e'videnced by EXs.P.45 and
46. decree came to be affirmed in VR_V.A.No;2x6/.95 pér Ex.P.53 and by this Court in appeal.""""'i'ri the early part of 1999, deceased 'fina1_j..decree proceedings wherein the civil court directed revenue authorities to effect the division in pp terrnsfiof Section 54 of CPC, pursuant to which the fofficials of the survey department carried out work of
-flineasuring the land on 20.4.1999. Accused No.9 and his sons were annoyed by this development and they were apprehensive that they are bound to part with the // 9 properties and they were of the View that finishing of Shivanna and his family members is the onlyyyay to avoid parting with the properties. To accompiis'hg:"this act, they sought the help of accused No.4--,.,':5 were known rowdies of Bhadraji'athi«tovjn.L (11) On 25.9.1999 at abdo,ut,dti9.ii15ii'iai,m',, Nos.8 and 9 came near house of VShiVa;m'1a and stood outside. Thereafter "Nos. itito-A.7i.veame near the house of Shivan'na"in~--a1:i autoricltshaw. At that time, accus_ed--:,N'o..2 After getting down' accused Nos.1 and 3 to 7 went run by accused No.1 which situated side of the house of Shivanna and 'oi;-iti"'choppers hidden behind the name board of ._/they faiiorifiétvtshop. After seeing accused 1\}'os.1 to 7 geéttixntga ddwri from the auto rickshaw and pulling out they choppers from behind the name board of the Ahtaiioring shop, Shivanna as well as I'-'.Ws..'3 and 4 who were sitting in front of their house, went inside the house fearing danger to their iives. At that juncture, after hearing the galata near the house of Shivanna, ..f, .
2 '/ 5.9%/' 10 PWs.1 and '7 came there. Similarly, PWs.5 and 6 who are neighbours also came there. Accused Nos_.___l to 7 trespassed into the house of Shivarina and house, accused Nos.1 to 3 caught hold of assaulted him with choppers ion" the l f and other parts. On seeing tried to intervene, accused'Nt5s,4 With Choppers on h<51'..,_back","'rightlVsh_Qulder;' on the back of right ear and on the and thereafter accused 'holding-itluft l~1PW_7.3ldragged her, while accused" PW.4 with chopper on her and ears and dragged her by holding her" t1J;ft.AA",bAs"'tla result of this, PWs.3 and 4 'l suffered 'viseveredinjuries. At that time, accused Nos.8 standing outside were instigating the o»til1erv_ persons to assault and kill Shivanna and n his llfariniiy members. Fearing danger to their lives 1, 5 and 6 did not go to the rescue of Shivanna and .-Flhis family members. Nevertheless, they witnessed the incident of assault. After assaulting the deceased, ll.
PWs.3 and 4, all the accused persons went away from the place.
(iii) When PWs.1, 7 and others were arrangement to shift the injured persons tothe on coming to known about the galat.-a~,~.-4:':W:.E§C--Troff1cV. Sub--Inspector and PWs.31--T.}M.B_asavaraj-,.' there and shifted the injined pea-'sons On the way, Shivanna PVli?s.3 and 4 were first taken to Bhadravathi and from there ,_they"Were shifted.'to..:..éll7I'c'.Gann Hospital. Thereafter:'1?W:if:tE oral""co;rnp1aint before PWs. 31 aboutthe same came to be recorded as per_Ex.Pfi~~, based on 'Which PW.31 registered the case in Ciridrne-rV.No,.138;/Qgagainst the accused for the offences Sections 143, 1414, 147, 148, 448.
149, 302 r/W 149 IPC and submitted FIR to the AA juiisdictionai Magistrate as per EX.P.25. [iv] Inquest over the dead body of Shivanna was plconciucted and later dead body was subjected to post mortem examination. During the investigation, accused Nos}. to 9 were arrested and at their instance and :} "I2 pursuant to their voluntary statements, the choppers as per lV£.Os.l to 6 were seized. Statements of witnesses were recorded, necessary documents and cei'ti_fica,tes were collected and after completing 4_ charge sheet came to be filed. As"alrpea.-filly ié;boa,»,¢,ii ' 9. 2 the accused persons pleaded the levelled against them to--._h_"e The defence of the accused waiS"'o1"iej' dfeitotalbderiial and that of false irnplicationh l'V'vc'o:uld:_l:"feel','seen from the suggestions pu,t:_'to the,materia1{_witn,esses during cross» exainination, 'defence of the accused was that iPW.3 had 'illicitvirjeiationship with CW.6~Krishnappa _thislflWas not tctthé liking of the deceased Shivanna diiring theilight of 24.9.1999, the deceased saw with CW6 and on the next day when de_ceasedfl'qiiestioned PW.3 as to why she was talking to pp C1Wl6.._.AA:she retorted by challenging his rnanliness as he afflicted with paralysis, at that time, deceased
-f§Shivanna being enraged, gave a blow to PW.3 with a chopper, at that juncture CW.6 came to the spot, snatched the chopper from the hands of Shivanna and .4 l3 gave a blow to Shivanna with chopper and in the meanwhile when l3W.4 came to the rescue of her father, she also received blows from CW6 with a noticed earlier, learned Sessions Judge afte'r'-- co.n'side:rii1gt'v. the evidence on record. convicted-..accuse'd":N0s.vl,_:',.to'V..7u' and acquitted accused Nos.8 A' it
6. We have heard Sri'.l§antharaju', 'counsel appearing for accused and"'~6~'V:who are appellants in Advocate appearing accused appellant in Crl.Ap.No..i2l2Q-,f also Sri.Raja Subramanya Bhat, I-l.C.G'.AP..p4l llappearirlgli respondent -- State. Itiisvnecessary to note that the arguments of the for the appellants were heard in part on and heard in full on 2.6.2010. However, from A' that date, the cases were adjourned by one Week since learned counsel for the appellants submitted that they have some more submissions to make. Thereafter when the appeals were listed on 9.6.2010 once again on the request of the learned counsel for the appellants, submissions on""i8'.V6.2OlO assisted counsel '14 the appeals were directed to be listed on 15.6.2010. When the cases were again listed on 17.6.2010, a submission was made to the effect that accused No.4, the first appellant in Crl.A.No.219/2007 to engage another counsel, therefore, sought for permission to retire from the_-case:~in"'so ifpaijasi. ' it relates to accused No.4. However;' having reg'a__rd:;_to the fact that we had already arginnentgs ' and it was only on the request" 'l.earned« counsel for the appellants, appeals" be.en"--tf:a.jdjourned as they submitted..V.tl;iatAV'ti:1'ey"have fe"W'In'ore submission to make, Sri.Kantl1_arajn':'§wasv._:ntit" permitted to retire from the case. Tihercaft-er.'=_lSi'i.Kantharaju made his further "W-«,2 95¢ KW:
by .«-«~""'#' been engaged by accused No.4. We have the further submissions of Sri.Balan, learned appearing for the appellant in i,V'cri;--A.No.229/2007.
8. It is the submission of both Sriiiantharaju and Sri.Balan, learned counsel appearing for the appellants that the judgment under appeal in so far as it relates to 3'.
{gs}; 7 I5 conviction of accused Nos.4 to 7 is perverse, illegal and contrary to the evidence on record as well as:V.the_l'vvell settled principles of law. It is their that even according to the...specificWlcaseVl"of}_theft' prosecution, as alleged in the as projected during the evidler1:vC€,,_ acc'us__ed.'N-os';:.{l""to "7 did". not assault Shivanna, as, toltheprdsecution, it was only accusedVNo:s_,'l to Shivanna, therefore, not justified in convicting themoffence punishable aid of Section 149 IPC.
It is their that there is absolutely no evidence fmich, V.less=._sat'isfactory evidence placed by the p1.:§isecgirtion to""estab1ish that these appellants had »v4corri_;I1on object with accused Nos.l to 3 to murder of Shivanna, therefore, these appellants could not have been convicted for the offence punishable under Section 302 r/w 149 IPC. It is their _gV_f§urther submission that the following circumstances would negative the case of the prosecution regarding L./' 16 these appellants sharing a common object of committing the murder of said Shivanna:
1. Admittedly accused Nos. 4, § and 7
family members of accused No.9 had no motive or ill-wifl 'against.gthe«_deceased ii' at Shivarma;
At no point of tirj-'1~é~;\':'v.(;:,ccLisedV_ and have threatened fir family members nor civil dispute between' the deceased 'i-andgaccused No.9. No "oV;ert acT=i"is'"attribnt'ed' 'against accused N0s.4, 5, 6 and '7".':e«Qnv«thedeceased;
'I'f.haccnsed--,_SNas.4 to '7 had shared a common objectV'o--f------«rnurdering deceased Shgivanna, they not have kept quite without assauiting . deceased;
. There is discrepancy in the evidence of material witnesses with regard to the nature of weapon held by these appellants and also the part of the body chosen for assau}t on PWS. 3 & 4; 5;' 17
5. Even according to the evidence of PWS. 3 and 4, these appellants were not armed any weapons when they said to have aligh'te.d--«_lfrom the auto rickshaw at the scene and the theory of these'--acciuisedl ontllj choppers from behind" '.,':boa1éd"
tailoring shop is V-,irnprove'rne_r:.t the trial;
6. All the incieperigiemfl for the alleged recov"ery-- ofg the instance of " have' turned hostile, therefore, if the choppers is not proved and _ _v 7. if 8: 7 are not rowdy sheeters even to the evidence of the Investigating S3', ' The above circumstances, according to the A. counsels, would indicate that these appellants lfhad not shared any common object of committing the 'lrnurder of Shivanna, therefore these appellants could not have been convicted for the offence of murder of Shivanna with the aid of Section 149 of IPC. It is their 18 further submission that the material witnesses PWs.3, 4 and '7 being close relatives of the deceased, are__highly interested, inimical and motivated witnesses--«jtl1e1*e'fore, their evidence, in the absence of corrobloration""fromk4 independent witness, could not "have l:}_eenthe basis for f recording conviction against thles_e"appellants.. it further submission that ev_§n,if the evid'en'ce""oflll these Witnesses are accepted, be"'sufficient to hold that the of unlawful assembly 3.i1d"7:.t}lat a common object and ~'in'"'fur'5;heréi;nce'-.of the""said common object, they committed actsfofgassa-uli§i.. It is their further submission that in any satisfactory evidence, that appellants' We're members of unlawful assembly the lllobjlect of which was to commit murder of S.hiva1rm_aj'..--and his family members, even if the evidence AA of thelmaterial witnesses as to the alleged assault by
--.l"th.ese appellants on PWs.3 & 4 are accepted, at best, each of them would be liable for the individual acts committed by them. Therefore, the learned Sessions Judge is not justified in convicting the appellants for the £9 offences punishable under Sections 143, 147, 148. 302 r/W 149 IPC. it is their further submission the evidence of PWs. 3, 4 and '7 do not establ;is--hl..'f£l¥'__i_at the appellants assaulted PWs.3 and 4 'to' commit their murder as staieh :...CQfnV1Tction these l appellants for the offencespunishable ; r/w 149 IPC is perVerse.ll:4pd:a.;;1:(p'1_il1egal..u:fllheitefore, the learned counsels' Court, by re-
appreciating the enti1'teh-- should set aside tlje and acquit the appel1'a;r1tst':pofiflgltlite :"ehalrgles"""1ei;e11ed against them. In supplortll loft that the appellants were not_tneriibets.Qf.d11lav{tfu1 assembly and that they had shared corrirnon object of committing murder of learned counsel sought to place reliance the follmiving decisions:
1. Bhfideo Manda! 82. Others Vs. State of Bihar " '*-,[AIR 1931 Supreme Court 1211 "'--§2.»'l."A1'iannant Laxmatta Kukkadi Vs. State of Karnataka [Am 1994 Supreme Court (Cr-E.) 326]
3. Raghubir Singh and others Vs. State of Punjab [1996 Supreme Court Cases [Cri.) 980}
4. Sukhbir Singh Vs. State of Haryana [AIR 2002 Supreme Court [Cri.) 616 20
5. Nooralias Nooruddin Vs. State of Karnataka [AIR 2007 Supreme Court (Cri.) 5244
6. Siyaram 8: Others Vs. State of Madhya'Pradesh [AIR 2009 Supreme Court {Cri.) 602]
7. Viji and another Vs. State of Karnataka [(200'£T3"j'»e. 3 Supreme Court Cases 1214]
8. Pandurang chandrakant Mhatre and State of Maharashtra [(2009) 10 Sup_1je:V_n'e.Co.:urt Cases 773} j " » *
10. Per 'contra, »Sri.Raja,'"'Subrariiatiyaii learned I-ICGP appearing""f'si-'.theV. State sought to justify apllaeal further contended that on proper appi*eciation~"of..oral"a.nd.__documentary evidence has held that there was motive for the accused to the "murder of Shivanna, on account of long » V:V'dravvn=.civi'l. litigation and in that background, all the " themselves into an unlawful assembly sharing common object of committing murder of or V Shivanna and his family members, came near the house of the deceased and armed with deadly weapons committed the acts of rioting and assaulted deceased as well as PWs.3 and 4 and there by caused fatal injuries to Shivanna & grievous injuries to PWS. 3 8:: 4 and the "/ 21 findings recorded by the learned Sessions Judge in this regard do not suffer from any perversity or illegality, as such there are no grounds to set aside the judgment of conviction recorded against the appellants. his further submission that totality of the read as a whole would clearly' all the accused Nos.1 to 7 in the background deceased Shivanna and his.._famiIy 1 iembiemvwere bent upon to get the properties"divided.'pursuant to the decree passed by they.ci*.fili[(:ourt and since accused Nosff to family members were not willing to property, they decided to do away with the.vi"LfeA'OffS'hivanna and his family members A in that background, accused Nos.l to 7 came near their the deceased and assaulted deceased his wife and daughter with dangerous by weapohs like choppers and from these circumstances if 'igiriescapable inference one can draw is that all the accused had shared common object of committing the murder of Shivanna and his family members and in furtherance of that common object they committed acts 22 of assault and ultimately Shivanna died While his wife and daughter survived in spite of sustaining grievous injuries. Therefore, according to Sri.Bhat,W'~1earnAed Sessions Judge is justified in holding;
appellants were members of gu"r1iawfu.l common object of committing judgment of conviction passed. aga1'n--st does not call for interfere:1ce"l§jz. court; "He further submitted that merely thesejappellants did not assault decgeased be said that the appe'll'a;rits..:':ii,had:-3' the common object. According V to the background and the circumstancesin which the assault on the deceased as la"nd'V4 was made would clearly indicate "that shared common object and therefore, the Sessions Judge is justified in convicting the _ appeilants for the charges leveled against them. He in glfur*ther contended that PWs.3 and 4 being the Wife and daughter of the deceased, their presence at the scene of occurrence was quite natural and the fact that they had sustained injuries in the very same incident, proves 23 their presence at the scene of occurrence, therefore, theféf testimony carries more weightage and __merely .g"/. pr because they are wife and daughter of -«jd-eceasged Shivanna their testimony can neither pg rejected. According to Sri.Bh-at,' -the Sessionstt ' j Judge is justified in accepting the and 7 to record a finding"vt,hat prosecuVtio_nVVa'htas' proved' the incident of assauit on"t'r1e';dee.eased,"PWs.3 and 4 and there is no error 'Learned Sessions Judge in this««g,.rfegai?d.; He "«fu'rt11er,_,:Vc0ntended that the presenceof5,appe:iia'nts'~ committed by them at the tit'-sce.ne .0f.7.occur,rence has been proved by overwheifming.'evidence placed on record, therefore, learned 'Sessions""Judge is justified in convicting the further submitted that mereiy because panch ~vv1fj't1*iesses regarding recovery of weapons have _ notsutpported the case of the prosecution, that by itseif
-..v"wr.iuld not cast any doubt as to the case of the prosecution. According to him at best it may be saidfhat an the recovery of the weapons have not been proved. Nevertheless having regard to the oral evidence of ax-
gr.
24 PWs.3, 4 and '7 which is corroborated to some extent by the evidence of PWs.1, 5, 6 and 8 would clearly establish the user of the choppers by these appellants for assaulting PWs.3 and 4. Sri.Bhat furtheryygsubrriits that the learned Sessions Judge has effect of the panch witness notggAsuppoi'tiI1g:l'the:Case,of . the prosecution regarding recoveify of 'w_ea.p'Cn's:"ia.t'i.he instance of accused persons atninorl' discrepancies found in 'eVidence__oAfv§ material witnesses and has of the defence couns'el"i'n;:fiegard:"by assigning proper reasons. He further it ,.aé, observed by the learned Sessions °Ju'dge;-. the independent eye witnesses did not wghe of the prosecution fully only on threat from the accused persons and this circunqstance would also indicate the guilty mind of the pg appellants therefore there are no grounds to interfere ll the well reasoned judgment of the learned Sessions
-FlJudge. Under these circumstances, he sought for dismissal of the appeal. With regard to various decisions relied upon by the learned counsel for the appellants, 25 Sri.Bhat submitted that the observations made in these decisions are based on the peculiar facts and circumstances of those cases, therefore those decisions are not applicable to the facts of the case on as such no sustenance can be drawn from those
11. We have bestowed ourserious"eo}:1sideratiQns~, to the submissions of the learI?=;ed:' courisel 'ft):r.,.pbifL'h sides. We have perused'l_the records as the"
judgment under appeal. ..c1ose1y.scr1.1tinized the evidence on record. ""Iln--.the ffa.cts-- ;ar1d*». circumstances of the ease.-- .p.o'i'nts~_tha_t arise for our consideration in this appeal are;:
Whethenlearned Sessions Judge is justified in that the prosecution has proved the "'i:£t:ic1e.{n£ofi assault dfishivanna, his wife PW.3 and e. s...
if z '"'c:la1.rghter PW/i?
" it Whether the learned Sessions Judge is justified in holding that these appellants along with accused Nos.l to 3 were member of unlawful assembly and that they had shared common object of 26 committing murder of Shivanna and his family members?
3. Whether the learned Sessions Judge is in convicting the appellants for the ye against them with the aideof section
4. Whether the judgment undcrllappeai-thin.' so fa;/aswit -' relates to the appellants' calislllforftiinterference by this Court'? V
12. Leaifried scssioiilg. iju§ige,VV-ha§'ing regard to the medical' o'n'V"'-relclorrllland the nature of the injuries: ,.dead body of the deceased Shi_v_annia-as well as the opinion furnished by the doctor ' ' v.rti'o zp-onducted'ti'ieVpost mortem examination, as to the which has not been seriously disputed agcclused persons, while answering point no.1. x has held that the prosecution has proved that the death it Shivanna was homicidal. In fact, the learned Sessions Judge in the Judgment under appeal has noticed that the accused have not seriously disputed the fact that the death of Shivanna was homicidal. In 27 fact during the cross-- examination of PW.3 on behalf of accused Nos.1 to 3, it was suggested to her that on that day since she questioned the manliness of her husband Shivanna, he was enraged by that and assaulte_d~.V_her with chopper and at that time CW.6»Kris_h3n.appa*i:
to the spot, snatched chopper ..from the' deceased and then assaulted 1'_'_th'e chopper. PWs. 3, 4 int' their evidence that Shivangn-a d'ied'--~on accou.nt..'of injuries suffered by him as with choppers.
The ~"o"1"1'13t A:"i5corit?r:*oversy was"""whether accused were responsible forf'su"chll'cinjuries found on the person of dece_ased"'~ 'Shi\';.anr_1a'.'*"' The medical evidenc which is e"i4ttei'aCt.edp. byl"'t'r1e" learned Sessions Judge in his atflpara 7 would clearly establish that the degceaseldl sustained the following injuries:
.A Lian-erated wound of 6" X 12" X 1" starting from below right labule transversely set extending upto back of the occipital region. The exposing the arteries, veins, H bones, major blood vessels the neck, profuse bleeding present: 444444 {__, 2.8
2. Lacerated injuries of 1" X 1/2" on the front of neck at the level of trachea, parallel to each other;
3. Compound fracture of right shoulder fracture of cloricle present bones and auto rickshaw exposed;
4. Lacerated injury of 2" x the ' shoulder.
13. According..'_ t_rJt'W_'PVS/f.i'8:'Dr.Urfiadevi, who conducted the post mortein the death was due to shogckgand. h.emgor;rh'age'*:."as.Hail result of injury to vitai'i'or°gansi,rnajor'b1ood"Vessels of head and neck. There-is «no cros:s,_ex.afnin~ation to PW.18 with regard to the. _Cause _ofV.d'eathV"of deceased Shivanna. Therefore A lriafriiig reggardfltdthe nature of the evidence available on record-,.._!weV"sarje of the opinion that the learned Sessions ti-adge~ hialsfrightly held that the death of Shivanna was _ hornicidai. The fact that the Accused Nosl to 3 have if filed any appeal questioning the judgment of
--{conviction and order of sentence, would indicate that they have accepted the findings of the learned Sessions Judge that the injuries inflicted by them by assaulting 29 Shivanna with choppers, were responsible for homicidal death of said Shivanna.
14. In these appeals, the grievance of the appellants is that they could not have been conarictedlfor the offence punishable under Section of 149 IPC as there was neitherrr»unlawfulv"'assembly nor * . they shared a common object V of Shivanna, therefore, thefioynviction' recor"d,ed"agains't them for the offence .puni&sl'1'abVlc 'under 'Section 302 r/W 149 IPC is liable to ;_be" =__It is also their grieyance recorded against them for Off€I1C€vVv'i211:lI1iSll.'il4)Vlf3 "under Section 307 r/W 149 IPC is sustainable for the reason that they had no ' .-Vii'utention~i.to-commit murder of PWS. 3 and 4 as such'), of Section 307 IPC are not attracted.
Therefore, in these appeals what is mainly required to considered is as to, 'whether the appellants along with Al to 3 were members of an unlawful assembly and whether they had shared a common object of committing murder of Shivanna and his family merIibers?'.
30
15. According to Section 141 of IPC, an assembly of 5 or more persons is designated as an unlawful assembly, if the common object of the persons composing such assembly is to commit any or1e'~«.of~.the acts enumerated thereunder. If the comrliongg such assembly is to commit.;~Aar3y niischief, VCri1r1i'n_alu'o. tresspass or any other offences, such assembly _i'w.oi;!.d be an unlawful assemb1y.--..;A;sggperV' Section lPC','l whoever, being aware of" --falcts-»r..Which'*~A render any assembly an unlawfulldassernbly,__iintentionally joins that assembly cof'=;tinues'- in i't","isV said to be a member of an unlawful ,.As per Section 149 IPC, every memberltof _un1awfL1lV'assembly is guilty of the offences infldvprosecution of common object of the sis.' As held in Bhudeo Manda! Vs. State of * .2'3.i_hcii, [AIR 1981 so 121]where the Court convicts any liieijerson or persons of an offence with the aid of Section H 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed 31 must show not only the nature of the common object but also that the object was unlawful.
17. It is well settled law that comm,on_ .. the unlawful assembly has membership, weapon usec_l'«--.._an<:l"s-they injuries as well as ~.._other _'_su1%ii'ounding circumstances. Of the Supreme Court in the ucaseyof Kukkadi and others 1319a; scc (Cri) 326], going aldeeisive factor in inferring the other factors also have to be takeninto consideration and the prosecution has to p1'o:3ve;y_._ltl1at thle'-p.exson concerned was not only the A unlawful assembly at some stage but the common object of the unlawful assembly at all the crucial stages.
18. in the case on hand it is the case of the prosecution that accused Nos. 1 to '7 forming themselves into an unlawful assembly by sharing common object of committing murder of Shivanna and z;>>~/ 32 his family members in the back ground of civil dispute pending between accused Nos.1 to 3, 6 and theirwtlfaiinily members on the one hand and deceased __a1.1_dg_ his family members on the otherA,Vhand,"carn:e '* house of the deceased in an a'ut'o 'icricl<sl1a'V§*~--..'and thereafter pulled out weaponshidden board of the tailoring..shop,.ri.i'n_by accused N50. 1 and thereafter trespassedlliiltoe deceased and assaulted --' who were in the iniuries sustained by it being taken to the hospital." to the prosecution, the circu_msta'ncVes.i_n--. Wnicii accused came near the house of d'ece'axsedgH'assaulted him and also his family dangerous weapons like choppers, would cle__ar1y~ indiclate that all of them shared a common object of committing murder of Shivanna and his family it 'A.ppV1ne.tnbers, therefore it is the contention of the learned ~7§Government Pleader that the learned Sessions Judge is justified in holding that these appellants are also responsible for the acts committed by accused No.1 to 3 33 in assaulting the deceased and causing his death, in addition to their individual acts of assaults on PWs.8 and 4.
19. As held by the Apex Court in the cfase of Sukhbir Singh Vs. State of Haryana Court (Cri) 616] an accused is vicarious1y,'V_'4gui1ty' offence committed by other accused..pefi'sons_'onIy. if proved to be a member of a11._un1aWfu} ass.ernbIy shiaringi' e. its common object. Once .existence'' of; common object of unlawful asseinbiy each member of such:',an__ __'b-ehable for the main offence not actual participation in the coyr.1§imission"of_Vthe offence and it is not necessary that e _Vof.pth:e~-.accused, forming the unlawful assembly, Committed the offence with his own hands. the case of Sachchey Lal Tiwari v. State of ., "{i';!f.[(2bO4] 11 Supreme Court Cases 410], which is relied Siyaram v. State of M.P.[(2009) 2 Supreme Court cases (Cri.] 602, the apex court has stated the legal #7 » 34 position thus with regard to the application of constructive liability under Section 149 of IPC. 4 "12. A plea which was emphasized by the [appellant] relates to the question"-..p whether Section 149 IPC has any application-<._4 for fastening the constructive liability whichs-"e~ is the sine qua non for its operatiorin. emphasis is on the common objectand not on common intention. Mere .prese'nce'=in» an' unlawful assembly cannot re_n(:ier'«_ga'7pe_rson_g"__ A liable unless there was a common objedcf yang he was actuated by that cornrnon objiectvand 3 that object is one of those set"o.ut inv~Se'ction
141. Where common object of analunlawful assembly is not--- proved; accused' persons cannot be convicted ,th.e'»help of Section
149. The crucialghquesti;Jn_to"determine is whether the asserr_1'bly--. cons'istedy." of five or more p.crs_o'_ns and v_vhetheijl.the":said persons entertaine'_d ._.one or more 9 of""the common objects,. as"~.s"peci--fied in Section 141. It cannot be laid down as a general proposition __of law 'tha'1'--: unless an overt act is proved against' person, who is alleged to be a member of"a1'1' unlawful assembly, it cannot _p _be_said, that he is a member of an assembly. The-on1'y.: thing required is that he should ' have "understood that the assembly was u~1'i1awful and was likely to commit any of the 9 Z acts which fall within the purview of Section V1/ll. The word 'object' means the purpose or design and, in order to make it 'common', it 5 must be shared by all. In other words, the object should be common to the persons who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members ggé e:....../ 38 part. However, there may be cases which would be within the first part but offences-.__ committed in prosecution of the common_*._V object would be generally, if not always-,-- within the second [part], namely, o_ffen'c€:'s---._ -5 which the parties knew to be likely.__toj*be' b _, committed in the prosecution of the"Comvm'on* _ object." V. V
21. In the case of "V;:j'i..,.vqnd"~¢1V:notherA boftl' Kamataka [(2009) 3. Suprezire-"v.Court "Cases @214], the Supreme Court has 9.0 and 21, , Dlxéow in several cases» tliere are; in which se\ie.ral. in an assault thlevvlltendency to spread of them whenever a co11Vbictio'n_ is,_vrec'orded and vice versa where can acquittal results, regardless of the very proposition of criminal law in such instances where there ..'be a charge of common intention, .unlawfu1 assembly or rioting, that the court still required to sift the evidence and decide as to whether there is evidence of commonality of intent on the part of all the accused or whether a distinction will have to be made between some of them and the rest.
39 2l. Criminal law undoubtedly admits. to the proposition that commonality;'~.oi"4._4l_l'-.. intent may develop on the spot but other hand, citing the present h intention of the group :inay"'h.atre assault the victim whereas the persons may hay'e---.Vactedv. otheriyise"»a_Vnd..'3 would possibly qualiufy":individually for a heavier con'v~i_ction"'V_ it t 1. _ sentence.
Undoubtedly, by the weapons used;'Vthe:overt:iacts~ attributed, the degree u4}.ajs,"'ei§e'fted and such other 'i:fiV:'ier v"feat'uTr_'e.s""of the incident while recording._ 1' ' findings. This is very "irnportarit it is equally essential _ _ that accus_eV'p"erson should end up with a Efleavier liability than what is strictly conte-rriplated by the law and conversely. it should not be a failure of justice too light a consequence or wrongful * exoneration. These are all very fundamental Nprinciples of evaluation of evidence and of criminal jurisprudence."
22. In the case of Maranadu v. State [(2008) 16 Supreme Court Cases 529}, the Apex Court for 40 determination of "Common Object" of unlawful assembly stated the legal position, thus:
" For determination of the -I~ object of the unlawful assembly, of each of the members ue11.la;wfuvl":V"
assembly, before and at and thereafter, the 1lno'ti.ye of the some of the relevant H' What the common object unlavsrful assembly is at a particularl'VstagEe:'V o_f:_ll'th{3fiiicident is essentiafly IQ V" be determined, keep«ing__ View nature assembly, the Vliiinembers, and the at or near the scene' It is not necessary under .law_ 2 all cases of unlawful f if assembly,lwith an unlawful common object, same be translated into action or Under the Explanation to 141, an assembly which was not z when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at . - ' 42 five or more persons and whether the said persons entertained one or more of common objects as specified by Sectiogppppiéfit While determining this question, it ti"
relevant to consider whether the consistent of some persons fjvv'ere4.yn1erei3:p:_'ViV passive Witnesses 4i:r.ad.. joined."
assembly as a matt,'ei'V--tp of it idle-._ without intending to:v.e--nt'ertain tiie'~eon1.fnon object of the assei'nbiy."?.itp' iv it 24-.: (ieeisi_o1is";have been referred in Chandrakant Mhatre "V$L»Staté "of Maharashtra [(2009) 10 77:3V],~:f"C2ounse1s for appellants sought to _ _ place re1iapn_ceA~-on'~.-the observations made by the Apex 3;Cv:O"J._1% atx"Pa-ra«'74 in Pandurang Case {Supra}, which it " » _ " asunder;
1 .'''74. in a case such as the present one, .. vtttaitliough having regard to facts, the number of participants could not be less than five, it is better to apply rule of caution and act on the side of safety and convict only A~»2, A-3 and A- 12 under Section 302 read with Section 149 {PC whose presence as members of the party of ')__,.=.- ' 3;
43 assailants is consistentiy mentioned and their overt acts in chasing and assaulting the deceased are clearly proved. A~-ii, A»5, A-6, A-- 10 and A41 get the benefit of doubt regard to offence under Section 302 --'= Section 149 IPC since evidence again.s't"the1_n _ chasing and assaulting the consistent. However; ' ia11__~.the if e.ig'htV are guilty of the under Section 148 Section 149 IPC. ._This and the J(':af'1'11ot beu_"sa'1d to have erred in 'holding f . dg .. hf A. Asvffffeotild be seen from the above Apex Court having regard to the facts and citrcftrnifstance of that case has held that it is better AA to afppfiy rule of caution and act on the side of safety, as 'fthere were several assailants. and there was no consistency as to the overt acts on the part of some of the accused persons, therefore, benefit of doubt was 1 _«9 . -
.. - ,,, ,.
fin, 44 extended to some of them. Therefore, the observation found at Para. 74 cannot be applied as a precederityflpe
26. In the light of the above principles of law, we shall proceedltcw y_c'onsidfer«_the--:riv.a} contentions urged in these appea_1sVt_o finldgout the conviction recorded these 'appellants with the aid of Section 14i~§:3"lPC or not."
27. the learned counsel for 4, 5 and 7 are not oflftheflg other accused persons. According to the prosecution, the civil dispute .betW'eer1"i the deceased and his family ' IIif3iI1b'(31'S"- A. on o'ne'"'hand and his brother Rarnanna and his sons namely, accused Nos.1 to 3*-,..4__V6 on the other hand. In so far as the civil dispute is concerned, there is overwhelming evidence it those facts are admitted by the accused persons
--false. Deceased Shivanna admittedly filed a civil suit seeking partition and separate possession of his share in all the family properties and also for cancellation of 45 relinquishment deed said to have been executed by him in favour of his brother. The said suit was contestedg by his brother Ramanna. However, after full _ the said suit came to be decreedmin favour gd'eV:ce-a.se:d.'~» Though Ramanna (accused judgment and decree in afiqpeal, the appealrtovdbett' dismissed and the secondVAaitt3u:r'f)»e.ai~»_fi1e<.i.dbyivhi;-lai also met the same fate. It is on record that thereafter 'V final decree dtltiidfiddtddirections in final decree revenue authorities surveyed the to be given to the share of the. decease_d.v_".What"'ren1ained was actual delivery of 'possession of theproperty so identified to the deceased. Vxltuisthafejstage, according to the prosecution, the accusedlvtipersons thought of eliminating deceased and _ his iarliily members as the only solution for avoiding the it figdparting of the land as ordered in the civil suit. There is no serious challenge on the part of the accused with regard to civil dispute and reluctance on the part of Ramanna and his sons to part with the property 46 identified to be given to the share of the deceased. It is on the basis of these overwhelming evidence_.fi.the learned Sessions Judge held that the prosecuti_on__V'c.i;asp_ satisfactorily proved the InotiveMAattribute'd-:'against thee» accused persons. No doubt a"ccu_fs'ed' Nos: E3f'ea,nt3,e_~'7 being not members of fanii.ly'~..of Ra1nVannai..aI'i.d~his--3sons.f do not have any connectio1wxl.fWh'atsoeifer.izvith the civil litigation and theta' ilanldrg by the family. NeVertheles:;3§.::§t.:__js of PWS. 3,4 and 7 7 are friends of accused to 3 and 6 sought the helpiz'-of and 7' in eliminating the deceased" a_Vnd_'Vhis=_ faiiiily members. The consistent 'l V. A ex}ide,i1ce'l- of thesewitnesses that accused Nos.4, 5 and 7 .are accused No.1 is not disputed nor Achaliexigedlin the cross--examination. In fact, it is in the or Vpevidence on record that accused Nos.1_. 4 and 5 are it rowdy sheeters in Bhadravathi Town. PW.32-- it M.B.Nagaraj. Circle Inspector, in his examination--in-- chief at para 40 has stated that accused Nos.1, 4 and 5 are rowdies in Bhadravathi town and rowdy sheets are 47 maintained in respect of these persons and copies thereof are produced as per Exs.P.59 to P61. Though PW.32 has been cross--exarnined at length, this of the evidence of PW.32 has not been challenged':
this, it is clear that accused Nos. 4 and_.5g'are 'friends accused No. 1 and they are I .
evidence of PWs. 3, 4, and 7 thatgaccusegj,."i~]oV'.' 7 friend of accused No.1 'seriously' iriipeached. Therefore rnerely be'ca"use and 7 have nothing to do with," between the deceased hifsbrotdher,«'it"'c'a:unot be said that they had niotive, accused No.6 is concerned, overvyhelrning eViide';_1ce"'ton record clearly indicates that 'l he,._.ha,di. strong nio"tiVe to eliminate his uncle Shivanna « ~4t"arnily members, to avoid the delivery of off the property to Shivanna as per the decree of the-civii court. Therefore we find no substance in the
-flzonltention of the learned counsels appearing for the = ..----appel1an'@that accused Nos.4, 5, and 7 had no motive. s Assuming for the purpose of argument that as against accused Nos.4, 5 and 7, the prosecution has not been 48 able to prove the motive, since the prosecution relies on direct evidence, the motive, pales into insignificance. PWs.3 and 4 in their evidence have cor1sisten«ti§,¥ stated that on the i11~fated day all the accused Nosfl 4_ near the house in an auto rickshaw -and ivvhenvallvof f them got down, accused No. a and thereafter all the accu-se"d, vveynt-. shop run by accuse"d..V_No..1""ahd; from beh'ind"the name board they took out ~.'chop"tpers.:.:Varidz_jthereafter they trespassed iiit'-affiile h._ou;se~'of and assaulted themr'ar1d. defeeased;. "1"he'"fae"t that accused No. 1 was running: :_a' beside the house of the deceasedis 'not}_ser_iious1y disputed. Of course there is some:/_A--disp11te a's""t'o"the existence of a name board with 'behind, as according to the accused the had been painted on the wall. However AA PyWs'.v.3:'and 4 have consistently stated that there existed board hung to the wall of the shop with some sispace behind.
28. The defence tried to point out that this part of the evidence of PWs.3 and 4 is only an improvement fix' 49 during evidence but have failed to prove the same. According to the defence, PW.4 in her staternentbefore the police has not disclosed this fact as evidence in this regard before the 4_ improvement and omission togdi's'closel, thisffactl diiriiig ' her statement before the po1ice:is=_a mate.ri'al amounting to contradiction,'ll"-We find riofsubstance in this argument for the simple" reas'on thatin" the entire cross--exarnination, there isfno s_u._ggesti()n to her to the effect that ;'silieg,,:,I'l1as:=__ disclosure to the police" «her "sta-ter3:ient.'": It is only While the Investigating. in witness box a suggestion was _putl4'toll1ir,ri--. in=_th'i's regard. As, this fact has not a_p,ut~ to PW;'4"'While she was in the witness box, it "can11.,ot..,_bcl' construed as an omission. The presence of l4 in their house is quite natural as they are _ mernbers of family of the deceased and residents of the house. The fact that PWs.3 and 4 along with
--deceased sustained injuries on that day in their house is not seriously disputed by the accused as according to their own defence, the deceased assaulted PW.3 with a 50 chopper and at that juncture CW.6 caine there, snatched the chopper from the hands of the deceased and assaulted the deceased and when PW.4 i_n.te1fyGned she also received chopper blows. No are close relatives of deceased, howevejf' on 'tlf1at"'a,c'count". their testimony cannot be evidence on record wouidlclearly establish presence. ' of the injuries on the perso.nslo--f PW.3 'an-d.,4,..'l'herefore, PWs. 3 and 4 are yveitniiesses. Presence of injuries on their. of proof regarding theirvi"pre*se"nCe the"'scene""of occurrence. Therefore they are .natural"w'itne--sses and their testimony can be acCVeptedl'"'~ v}fith,C>ut"~_ looking for corroboration from ' V' independent witness as these injured eye witnesses had 'no' = exculpating the real culprits by i11.cu1patirj.gl innocent persons. Therefore, the learned AA Sessions Judge is justified in accepting the testimony of 3 and 4 with regard to accused No. 1 to 7 Coming
--}near the house of the deceased in an auto rickshaw. It was argued on behalf of the appellants that the say of PWs. 3 and 4 that 7 accused persons came in an auto 51 rickshaw is highly improbable as seven persons could not be carried in an auto rickshaw. We find no substance in this argument also for the reasontno where it is demonstrated that 7 persons" cann'ot.."'bel'~.g carried in an auto rickshaw. It'''is---not--'_4an.,tinitpossibility. ' Auto drivers carrying more ";pa--ssengers * ..than:"~..the permitted numbers and its"-capacityis' a_con1'mo'n scene' in urban as well as "rL_1ral 'l'iierefore';"i't" cannot be said that the evidence '_c,~§t'-ii>vvSt,:_ i"3;_gan.d 4 that all 7 accused persorigs -.t~in"«a"u--fo.rickshaw cannot be termV.ed"'i' l or improbable. Thus the consistent 3 and 4 clearly established that _ all thee'?attcuvsedlpersons came together near the ' trouser. of the d'ece'ased in one auto rickshaw. Their turtlier establishes that when all of them got down.~fro'rjnlauto rickshaw, accused No. 2 was armed x with ichopper and thereafter all of them went near the =._V'11arne board of the tailoring shop and from behind the
--Fname board they took out choppers hidden there. From this evidence it is further clear that all the accused persons had the knowledge of the weapons having been ' 52 hidden behind the name board, as otherwise they could not have gone near the name board soon after aiighting from the autorikshaw. This further probahiI'iae'sgg""the prosecution theory that the accused had a-~.p:i*ior:
of mind and all of the:_m""'were theu' weapons are hidden behind they_n"-ame board..an'd:_"'s.oonV after they get down from th'ep:'a--uto ric3:;si1ay~z go near the name board and puil out thedvweapons. This circumstance would indicate' 'that.._a11t;the. accused Nos. 1 to 7 had shiyfed No doubt the Cornp'1'aintr.AIt)dgeél"~byt--.}>'N.1A"is"';si1ent about the accused coming -- near V of occurrence in an auto rickshawédanvd .ptv--1l1Aii1»gV"o;i1t the choppers from behind the ' nafne.A*-rbovard. '1'his circumstance has not in any way 'the.yjs3racity of the evidence of PWS. 8 8: 4, as, accordi~n_gj'..~to PW.1 he came to the scene of occurrence pp aftervvhtearing the gaiata and by the time he came near '' house of the deceased, accused persons were
--dalready inside the house of the deceased. Therefore, PW.1 did not have the knowledge of the accused persons coming near the scene of occurrence in an auto
-
53 rickshaw and puliing out the weapons from behind the name board. According to the evidence of PW.1,_.I?Ws.3 and 4 had sustained grievous injuries and they "We_"re"not in a position to speak. Therefore, he w:asV.nVo't"
position to collect the first han~d"'in-forniativon'V:vti'oVrn--'.iPWs. it 3 and 4 about the incident. "is:
daughter of the deceased"'arid, the w_ife._¢f also came to the scene" of along" with PW.1. Therefore, she also of accused No. 1 to 7 corI1ir1'g"'to1"the_ sacene"'of ~:.occufrrence in an auto ricksli'a"w-ar:d pi:l'ling,po-ut the'"\X7eap0ns from behind the name'.board.. T«h'erefore.,4there are no reasons to discard the _veVide'nce of 3 8: 4 as such, the learned tludgelias rightly held that the prosecution fact that accused No. 1 to 7 on the date o»f.__the.~}n_c:ident came near the house of the deceased in pp an auto rickshaw and after getting down from the auto i' --..V":*iel§shaW all of them went near the name board of the
--ltailoring shop and pulled out weapons hidden behind the name board and by holding the choppers so puiled out all of them went inside the house of the deceased. "7 532/ 54 No doubt even according to the case of the prosecution these appellants did not inflict injury to the deceased, as, according to the case of the prosecution; Nos. 1 to 3 caught hold of the deceased i..~~:§)f§'} . "
him $1 the choppers as a resu1ti''of«wIr1'ich_.hesustained ' grievous injuries to which he s'u___ccurI1bed._-. 'Fhus--,'th,eseu appellants have not assaiilted it The question is vvhether" th'ils"'grojund._pcanA i't"b'e said that the appellants are not .convicted for the offence puriishable with the aid of 149VvIPC'.~A_;l'§tie 'doe"s"n'ot stop only by accused No.1vV"to Shivanna. While accused No. _1_ to 3"w;_=;re Vassaulting deceased. accused No.4» and 5 assiaultedjjPWl3'"vvhile accused No. 6 and 7 assaulted tried to rescue Shivanna. Both PWs.3 and sustained severe injuries. The medical AA evidenoe on record prove the grievous nature of injuries
-..V'V'sustained by I-"W5. 3 and 4, and also the user of chopper as the Weapon for assault. The injuries inflicted on the persons of PWs. 3 and 4 are on vital parts. These facts indicates the intention on the part of these accused. ' V' . under-:«.
55 Their intention appears to be to eliminate Shivanna and his family members. If these appellants had notshared such an intention, they would not have assaulted PWs. 3 and 4 and on the othcripp would have prevented assault""o--n the Accused l to 3. The presence app.ei1a_n.ts scene of occurrence and th'ep'"oVert acts is proved' by the consistent evidence "of and 7. "I'he'ir evidence further gains corroboration"Iron1.~..the;e"V_idence PWs. L5 and 6 though'~they l1av;e.supported the case of the prose'-ciijtionifii: "It ;inte1'*e'sting to note the suggestion put to.PW.3 duri'ng'the--~cr.oss~examination g the learned counsel i"orV"acVc';:.iseVd'No. 5. The suggestion reads as i or to suggest that accused No.5 gave only one chopper"
it From this suggestion it is noticed that it --..VV'ac.c'used No.5 did not dispute his presence at the scene of occurrence and also the act of assault by him on PW.3.
_~/ 56
30. T he suggestion put to PW.18 by the learned counsel for the accused about the possibility of user of 3 to 4 different types of weapons for assaulting would completely belie the defence theory' snatching the chopper ' from his hands on seeing deceased-Shivanna .assaultir1g PW.3. Thus the consistentueiiidencerof and clearly established, 'that to 7 after trespassing into the along with accused Nos.' lgto 3:;__whi~le 1 to 3 assaulted ShiVann'a,.x; 5 assaulted PW.3 and accused' No. PW.-4 with choppers. Of course fromV.Vthe'Ve\}idei'1ce on record it is noticed that the sdealt byllllacctised No.7 to PW.4 was on non--Vital 'VV};§art.:::"Neirertheless, it indicates that accused No.7 has in the act of assault along with other AA accused persons but blow has fallen on non--vital part of if body of PW.-4. Reading of evidence on record as a .--lwhole, would clearly indicate the object with which accused Nos. 4 to 7 came near the house of the deceased on that day along with Accused Nos. 1 to 3, Z":
57
was to commit murder of deceased Shivanna and his family members and in furtherance of said common object all of them committed acts of assatilt--:o'n:"the deceased as well as PWs.3 & 4. The evidenee would clearly indicate that me' '*appella_ntsV:v riotu' merely passive witnesses and not the assembly as a matter:i"of idle: Without' intending to entertain th'e"»Vs.ojommon Aobjeet of the assembly. If the appellants _-~.._\}Verei»__'_'_merely passive members of a:=ssern'bly'V had joined the assembly' a"::i1i'atter'- of éid'le"V4curiosity, there was no reason for Vtherrlftod'vptillyiout the choppers from behind the_na1ne"~bo'ard',-. aAn_dV'tl1ereafter trespass into the house ofthe'-sdeeeased"along with A~1 to A-3 and then commit 'acts on PWS. 3 8.: 4. Therefore, the irresistible ooncltxsiaonillthat can be draw from the totality of the AA oirctimstance is that all these appellants along with it 'i.V:A.-ooused Nos. 1 to 3, shared a common object of dcomrnitting murder of Shivanna and his family members to see that Shivanna does not get any property. The members of the assembly being more 58 than 5 and since the totality of the circumstance indicate that they had shared a common of eliminating Shivanna and his family member?s,"it5W--as unlawful assembly, within the rneaning"of IPC. The Consistent evidence, of"rr;ateria]_:"v.dtriesses clearly established that i'r_1_v"'-furtherariee A5_"tb.esaid"ii' common object, after trespassi'ng"i.ntoithedhouse of the deceased, accused with choppers whil4e::'accus'ed:'i'\i'f:_§, PW.3 and accused _6V The assault by accused---l\IogV,g:'~/in cannot be segregated from the Shivanna. The assault on the deceased as PWs. 3 8.: 4 were part of same ;l;he----assault on PWs. 3 & 4 is the part of was shared by all the assailants.
Iiaying to the physical frame of the deceased, as '*..,eould"be7-seen from the photographs, it is quite possible V'.that:",ithe assailants might have thought that only three Vb __p_ersons are sufficient to eliminate the deceased it therefore, other assailants appears to have chosen to attack PWS 3 & 4. Therefore in our consider opinion, 59 the iearned Sessions Judge is justified in holding that the appeliants herein shared common object with Accused Nos.1 to 3 and the common object":.o'fg:"the assembly was to eliminate Shivanna and hiisg'-famgi_iyb"» members as such it was an uifiiawful £1SS{3]I;i'1D1}',V a-ndnin furtherance of such common - of"
trespassed into the house o'f4i.t:'he deceased f2m2€i.:assau1tedV Shivanna as well. :"i'a,nd daughter with choppers causing ali injuries and ultimately ;_"Sii;i.x5anIi--a =igs'uccu_1"'ribe.d__...1 to the injuries. The1jefo'fe'a..t}1e Judge is justified in holding that -the'siev_api:jei:Iants though did not inflict any injury to4thev'deceased;'"they are also liable for the acts of ' ac-.cCuse.d 'No. 1 to'"'3'in assaulting Shivanna and causing virijiuries. Having regard to the facts and Ci-,I_'_C'L.1D_'i.'.":t_v<i'A34:'i1AC(','S of the case, we do not find any error in _ the Z judgment of the learned Sessions Judge in it '~iV_V'oorivicting these appeilants under Section 302 with the
--aid of section 149 IPC.
31. We find no merits in any of the contentions urged by the learned counsel for the appeliants. The 60 discrepancy in the evidence of PW.5 with regard to the nature of' the weapon held by him vis-a-vis evidence of the PW.3 and 4 is not a material circun1stancexto:' "doubt the presence of Accused No.7. PW.5 supported the case of the prosecutitjnttyytpand Vhhe'_:.Vwa_s« declared hostile. A stray sentcncet'in Vopf PW.5 that he saw accused_i"N_o.7A.'ho1di.1jig:arfiron rods» cannot take away conpsistevn-tiuexzidentce-of.~15Ws. 3, 4» and 7. Of course the case of prosecution .. vrijth. ifto-..Vthe~_Voyejrtsacts of accused persons.' P'W;'7":has deposed as to the overteacts of 7. PW.1 has been declared hostile theaprosetcution and he has been cross-
" V' Aeifi-a}ni.ned thetmletarned prosecutor. In the complaint to the overt--acts of A1 to A?' has been stated" an admitted fact that PW.1 is the son of _ sisteruof deceased Shivarma and his brother Ramarma. it sons of Ramanna are related to PW. 1. Reading of Vientire evidence of PW.1 shows that out of fear of A-1. 4 and 5 who were known rowdies of Bhadravathi Town, he has not deposed about the overt-acts of the 61 appellants. In fact in the cross--examination of PW.1 on behalf of A-1 to A-3, it has been suggested that even from the jail, A-1 was writing letters to him. PW.1 appears to have been won over or threatened the accused persons, as suc1'i,""l'1'e. has ,not._ deposed ' regarding the individual overt-acts"o_f accpased per_sons~._ In View of this, the fact""t'lf:i"a1; 'has stated anything in his ev'ide'nce ,,..povert§VactVs of these appellants, has not in evidence of PWS. 3, the case of the pr0S¢¢',fiiGfi':LV;t'0 :gg;;j§ent,A'.."'1\I'ov4 doubt the witnesses to the allege«d Vreclovery' offchoppers at the instance of these appe}1ants",_:have d"not'"V supported the case of the pp"ro<'se5cuti'on. on that ground the case of the I VVprosecu_ti'orie-cannot be doubted. Even if it is assumed that t__he.p~rosecution has not been able to satisfactorily _ prove'~---the recovery of choppers, the consistent evidence it K_VvOf --?WS. 3, 4 and '7 clearly establishes the user of the
-"choppers by these appellants for committing acts of assault on PW. 3 and 4, and the identify of the choppers produced before the Court as the weapons of offence. J, 62 Therefore there is no substance in the contention urged in this regard. Of course as contended by Sri._B_alan, accused No.7 is not a rowdy sheeter by that does not in any way alter the case No. 7. Presence and the overt a'ets"of accused" 'N_o."?=ha-S been spoken to by PWs. and Therefore.
no substance in the contentionvthat smce accused No. 7 is not a rowdy sheeter, the" prosecution cannot be accepted against
32. assault on PWs.
3 4' ygfurt_heI'a.t1ce of the common object shared bylall_llthe*.lacci;;s4ed persons. Having regard to natulre'of the "injuries sustained by PWS. 3 and 4 on the ' 'Vital -parts, also the weapons used for assauit, there "is":io in holding that the assault on PWS. Band
4.» these appellants was with an intention to commit 5' murder. Therefore the learned Sessions Judge is lfijustified in convicting these appellants for the offence punishable under Section 307 r/w 149 of IPC. Having regard to discussions made above, we find no perversity in the judgment of learned Sessions Judge. Appreciation 64 from the said finding recorded by the learned Sessions Judge. In this View of the matter, we find no" in these appeals.
33. Accordingly, the 7 judgment of conviction and _order-- Aoi'V-sentenieedpassjedAhy.L the learned Sessions Judgedvisfiflere R5:f/ *' as