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CASE NO.: Appeal (crl.)  1026-1027 of 2003

PETITIONER: Rudrappa Ramappa Jainpur and others      

RESPONDENT: State of Karnataka

DATE OF JUDGMENT: 02/08/2004

BENCH: N. SANTOSH HEGDE & B.P. SINGH

JUDGMENT: J U D G M E N T  WITH

CRIMINAL APPEAL NOS. 1028-1029 OF 2003

Nanagouda Shankargouda and others                            \005Appellants

Versus

State of Karnataka                                                   \005Respondent

AND

CRIMINAL APPEAL NOS. 991-992 OF 2003

Ashok Irangouda Patil                                         \005Appellant

Versus

State of Karnataka                                                     \005Respondent

B.P. SINGH

       This batch of appeals arises out of an incident which is  alleged to have taken place on November 2, 1993 in village Utnal  at about 7.00 p.m. in which one Sangondappa lost his life while  several witnesses, namely PWs, 2, 3, 4, 5 and 6 received injuries at  the hands of the assailants.   The case of the prosecution is that  there were nine persons who formed themselves into an unlawful  assembly with the common object of causing the death of the  deceased, and in pursuance of the unlawful object of that assembly  the deceased was done to death and the prosecution witnesses  abovenamed were injured.  

       The charge-sheet had been submitted against nine accused  persons namely, Nanagouda (A-1), Appasab (A-2), Rudrappa (A- 3), Siddappa (A-4), Ashok (A-5), Rannugouda (A-6), Raju (A-7),  Lalsab (A-8) and Shankaragouda (A-9).  However A-9 died during  the pendency of the trial, but the remaining accused were tried   by  the IInd Additional Sessions Judge, Bijapur in Sessions Case No.  49 of 1994 charged variously under Sections 148/302/326 and 324  all read with Section 149 IPC.  The learned Sessions Judge after an

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exhaustive scrutiny of the evidence on record came to the  conclusion that the case of the prosecution as against A-5, A-7 and  A-8 was not established and he, therefore, acquitted them of all the  charges levelled against them.  He, however, found A-1 and A-2  guilty of the offence under Section 302 IPC and sentenced them to  undergo imprisonment for life and to pay a fine of Rs.500/-, in  default to undergo one month’s rigorous imprisonment.  He found  A-6 guilty of the offence under Section 326 IPC and sentenced him  to undergo rigorous imprisonment for three years and to pay a fine  of Rs.500/-, in default to undergo one month’s rigorous  imprisonment.  A-3 and A-4 were found guilty of the offence  under Section 324 IPC and they were sentenced to undergo simple  imprisonment for one month.   

       Several appeals were preferred by the accused as well as by  the State of Karnataka.  Criminal Appeal No.1821 of 2001 was  preferred by the State against the acquittal of A-5, A-7 and A-8 by  the trial court.  Criminal Appeal No. 1829 of 2001 was preferred  by the State contending that A-3, A-4 and A-6 had not been  adequately punished by the Sessions Court.  Criminal Appeal  No.1300 of 2002 was preferred by the State for consolidating the  appeals preferred by it and against the acquittal of A-3 to A-8 of  the charges under Sections 148 and 302/149 IPC.  A-1 and A-2  preferred Criminal Appeal No.1512 of 2001 against their  conviction and sentence while A-3, A-4 and A-6 filed Criminal  Appeal No.1402 of 2001 against their conviction and sentence.

       The High Court by its impugned judgment and order of  November 26, 2002 dismissed Criminal Appeal No.1512 of 2001  preferred by A-1 and A-2 against their conviction and sentence  under Section 302 IPC.  It also dismissed the appeal preferred by  A-3, A-4 and A-6 against their conviction and sentence.  So far as  the State appeals are concerned, it dismissed Criminal Appeal No.  1829 of 2001 but partly allowed Criminal Appeal No.1821 of 2001  and found A-5 also guilty, who had earlier been acquitted by the  trial court.  It also partly allowed Criminal Appeal No.1300 of  2002 inasmuch as it held A-1 to A-6 guilty of the offences under  Sections 302/149 IPC and 148 IPC and sentenced them to  imprisonment for life and rigorous imprisonment for 3 years  respectively.  It did not pass any separate sentence against A-3, A- 4 and A-5 under Sections 324 and 326 IPC.  It also upheld the  conviction of A-1 and A-2 under Section 302 IPC.   

       Before this Court A-1 and A-2 have preferred Criminal  Appeal Nos. 1028-1029 of 2003 against the judgment and order of  the High Court in Criminal Appeal Nos. 1512 of 2001 and 1300 of  2002.  A-3, A-4 and A-6 have preferred Criminal Appeal Nos.  1026 and 1027 of 2003 against the judgment and order of the High  Court in Criminal Appeal Nos. 1402 of 2001 and 1300 of 2002.   Criminal Appeal Nos. 991-992 of 2003 have been preferred by A-5  against his conviction by the High Court in Criminal Appeal  Nos.1821 of 2001 and 1300 of 2002.   

       The facts of the case are that the deceased Sangondappa and  the accused as well as some of the prosecution witnesses are  related to each other.  The occurrence took place on November 2,  1993.  According to the prosecution, the deceased and his family  members as well as the accused were on cordial terms till about 2  weeks before the date of occurrence.  15 days earlier, an  occurrence is alleged to have taken place which strained the  relationship between the parties.  The case of the prosecution is  that Srikanth, son of the deceased, had assaulted the younger  brother of A-1 when he tried to remove the public tap in village  Utnal.  According to the prosecution, this provided the motive for  the offence.

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       On November 2, 1993 at about 7.00 p.m., according to the  prosecution, all the nine accused variously armed with axes, sticks  and cycle chains came to the house of the deceased.  It is not  disputed that A-5 to A-7 do not belong to village Utnal but belong  to another village Masabinal.  It is alleged that they are related to  A-1.  When the accused approached the house of the deceased they  were noticed by the deceased and his family members.  PW-2,  Shivabai, wife of the deceased warned her husband as well as her  son Irasangappa (PW-16) and the son of the brother of the  deceased Shantappa (PW-11) that they should not leave the house  apprehending danger at the hands of the approaching mob.  In fact  she took PW-11 and PW-16 inside and kept them in a room, but  her husband Sangondappa, deceased, paid no heed to her warning  and proceeded towards the front door of his house saying that the  accused will not harm him.  The case of the prosecution is that on  reaching the house of the deceased, A-1 assaulted the deceased  with an axe causing an injury behind his right ear.  The remaining  accused dragged the deceased to a point in-front of the house of  Bapuraya (PW-4).  There the deceased was assaulted by the  members of the mob.  While A-2 assaulted the deceased on his  chest with the blunt portion of the axe, the others assaulted him  with sticks and cycle chains. Many neighbours rushed to the place  of occurrence which included PW-1, PW-3, PW-4, PW-5 and PW- 6.  The neighbours who rushed to the rescue of the deceased were  also assaulted.  We shall consider the details of the assault on the  prosecution witnesses at the appropriate place.  As a result of the  assault, the deceased fell down and the accused ran away believing  him to be dead.  All along, according to the prosecution, A-9 (since  deceased) exhorted the other accused not to spare the deceased  saying that he would spend any amount of money to save them.    

       The evidence on record discloses that a telephonic message  was received in Police Station Bijapur about an occurrence having  taken place in Village Utnal.  PW-46 Police Inspector Batakurki  immediately left for Utnal with a police party.  On reaching the  village he found all the injured including the deceased waiting at  the bus stand.  Soon a bus came and all the injured were sent to  Bijapur hospital accompanied by a constable.  Sangondapa,  deceased, however breathed his last while on way to Bijapur  hospital.    

       On coming to know that the injured had been brought to the  hospital, PW-44 H.C. Mulla went to the hospital and recorded the  statement of Shivabai (PW-2) Ext.P/2 between 10.45 and 11.30  p.m.  He then came back to the police station and registered Crime  No.247 of 1993 at 11.40 p.m. under Sections 143/147/148/  324/302/504 and 506 read with Section 149 IPC.   On return from  village Utnal PW-46 took up the investigation of the case.  He held  inquest proceeding on the dead body of the deceased at the Bijapur  hospital and thereafter visited the place of occurrence and took  other steps in the course of investigation.  The body of the  deceased was sent for postmortem examination which was  conducted by Dr. Sangappa (PW-30) and the post-mortem report is  Ext.P/22.  The injured witnesses were examined by PW-29, Dr.  Ramappa.  On the following morning the statements of the  witnesses were recorded by the police in the course of  investigation.  After investigation PW-46 filed the charge-sheet  against the accused who were put up for trial before the IInd  Additional Sessions Judge, Bijapur in Sessions Case No. 49 of  1994.

       The trial court on appreciation of the evidence on record  came to the conclusion that the charge under Sections 302/149 was  not proved.  According to the trial court there was no common

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object of the assembly, and each of the accused acted on his own.   On an analysis of the evidence on record it came to the conclusion  that the participation of A-5, A-7 and A-8 was highly doubtful and,  therefore, acquitted them of all the charges levelled against them.   It held that A-1 and A-2 were the only persons who assaulted the  deceased and the injuries caused by them resulted in his death.   They were, therefore, guilty of the offence under Section 302 IPC.   A-6 was found to have caused a grievous injury to PW-4.  He was  accordingly found guilty of the offence under Section 326 IPC.  A- 3 and A-4 were found guilty of the offence under Section 324 for  causing minor injuries.

       On appeal the High Court came to the conclusion that so far  A-7 and A-8 are concerned their acquittal was well merited.  So far  as the other accused are concerned, the High Court held that they  were all members of an unlawful assembly, the common object of  which was to commit the murder of the deceased.  It, therefore,  held A-1 to A-6 guilty of the offence under Section 302/149 IPC as  also of the offence under Section 148 IPC.  It affirmed the finding  of the trial court that A-1 and A-2 had caused injuries resulting in  the death of the deceased and they were, therefore, also guilty of  the offence under Section 302 IPC.  The High Court, however,  passed no separate sentence against A-3, A-4 and A-6 for their  conviction under Sections 324 and 326 IPC.

       The question which arises for consideration before us is  whether the High Court was justified in coming to the conclusion  that A-1 to A-6 alongwith A-9 (since deceased) formed themselves  into an unlawful assembly, the object of which was to commit the  murder of the deceased.  Before we deal with this moot question,  we shall deal with some other aspects of the matter which can be  conveniently disposed of at this stage.

       So far A-7 and A-8 are concerned, the courts below have  concurrently held them not guilty of any offence.  We propose to  consider at this stage the question as to whether the deceased was  assaulted by any other accused, apart from A-1 and A-2.  In this  connection we notice that the trial court has meticulously  considered the evidence on record.  So far as the assault on the  deceased by A-1 and A-2 is concerned, the evidence is consistent  that these two caused injuries to the deceased.  So far as the other  accused are concerned, the evidence is not consistent.  PW-2, the  informant, alleged in the course of her deposition that A-6 and A-7  had also assaulted the deceased with the wooden handle of the axe  and a cycle chain respectively.  However, the informant in her first  information report did not say so and, therefore, her evidence in  court as against A-6 and A-7 assaulting the deceased was not  found acceptable by the trial court.

       PW-6 asserted that A-4, A-5 and A-7 had also assaulted the  deceased but it was found that he had not said so in the course of  investigation in his statement recorded under Section 161 Cr. P.C .   The trial court, therefore, did not accept this part of the evidence of  PW-6.  PW-4 stated that as many as 5 other accused, apart from A- 1 and A-2 assaulted the deceased and in this connection he  involved A-3,  A-4, A-6, A-7 and A-8.  No other witness had  stated so and, therefore, the trial court did not accept this part of  his evidence.  On the other hand PWs. 3, 5 and 8 deposed that only  A-1 and A-2 had actually assaulted the deceased.  On the basis of  such evidence on record, we do not find any fault with the finding  of the trial court that only A-1 and A-2 assaulted the deceased and  no other accused assaulted him.

       So far as the assault on injured witnesses is concerned, the  trial court found that PW-2 stated that she had been pushed by A-4

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with the blunt portion of the axe.  PW-3 alleged that A-3 assaulted  him with stick.  PW-5 made an allegation of assault against A-4  but he had not made such a statement in the course of investigation  under Section 161 Cr. P.C.  The trial court, therefore, did not  accept his allegation as against A-4.  Similarly PW-6 had alleged  that A-2 and A-7 had assaulted him but this fact was conspicuously  absent from his statement under Section 161 Cr. P.C.  PW-4 stated  that he had been assaulted by A-4 and A-6.  So far as the allegation  against A-4 is concerned, PW-4 did not involve him in the assault  on him in his statement recorded under Section 161 Cr. P.C.  The  trial court, therefore, concluded that in the assault on other  witnesses only A-3, A-4 and A-6 had participated.  A-5, A-7 and  A-8 had not taken part in the assault on either the deceased or  injured witnesses.  As noticed earlier A-7 and A-8 have been  acquitted by the trial court as well as by the High Court.  We are of  the view that A-5 is also entitled to the benefit of doubt because we  are satisfied, on the evidence of record, that he did not take part in  the assault, even though he may have been present when the  occurrence took place.  The High Court was not justified in setting  aside his order of acquittal.            

       We shall now consider the evidence on record which relates  to the involvement of A-9 (since deceased).  It is no doubt true that  A-9 died during the pendency of the trial, but his involvement in  the occurrence is of some significance particularly on the question  as to whether the accused had formed themselves into an unlawful  assembly with the object of killing the deceased.  This is because  the case of the prosecution is that when accused persons proceeded  towards the house of the deceased, A-9 was exhorting them to kill  the deceased assuring them that he would spend whatever money  was required for their defence.  PWs. 9 and 10 deposed that they  were called to the house of A-9 and told by A-9 that persons had  come from village Masabinal and that they had decided to beat the  deceased.   Inspite of their dissuading him from doing so, the  accused persons proceeded towards the house of the deceased and  committed the offence.  Of the several witnesses examined on this  aspect of the matter, PWs. 3, 4, 5, 6 and 8 do not ascribe any role  to A-9.  PW-2 did not mention his name in the course of  investigation and for the first time while deposing in Court stated  that he was exhorting his accomplices to finish the deceased.   Similarly PW-7 deposed that A-9 was exhorting his accomplices to  finish the deceased but as stated by the Investigating officer, PW- 46, he had not said so in the course of investigation when his  statement was recorded under Section 161 Cr. P.C.  So far as PWs.  9 and 10 are concerned, the story that they had been called by A-9  who disclosed to them their intention of assaulting the deceased  does not find place in their statements recorded under Section 161  Cr. P.C. as deposed to by the Investigating officer, PW-46.  This  part of the story was for the first time narrated by them in the  course of their deposition.  The trial court has considered these  discrepancies in the testimony of the above mentioned witnesses.   It held that the presence of PW-7 was doubtful because she being  the daughter-in-law of PW-2, she would not have omitted her  name from the First Information Report when she mentioned the  presence of so many other witnesses.  In any event, as earlier  noticed,  PW-7 in her statement recorded in the course of  investigation did not mention about exhortation by A-9.  For the  same reason we find the versions of PW-2, PW-9 and PW-10 not  reliable in so far as they relate to the involvement of A-9.   Admittedly A-9 did not cause any injury to anyone and the only  role ascribed to him was of exhorting his companions to finish the  deceased.  We find this part of the story to be unacceptable.   

       In view of the foregoing, we are of the considered view that  in the occurrence that took place, only A-1 and A-2 assaulted the

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deceased while A-3, A-4 and A-6 assaulted some of the  prosecution witnesses.  So far as A-9 (since deceased) is  concerned, his involvement in the occurrence is doubtful.   Similarly the evidence does not establish the involvement of A-5.   A-7 and A-8, as earlier noticed, have been acquitted by the trial  court as well as by the High Court.

       The next question is as to the offence made out against the  appellants.  The trial court was of the view that there was no  unlawful assembly at all and the appellants whose involvement  was proved could be punished for their individual acts.   Accordingly it found A-1, A-2 guilty of the offence under Section  302 IPC and A-3, A-4 and A-6 guilty of the offences under  Sections 324 and 326 IPC.  The High Court on the other hand was  of the view that A-1 to A-6 had formed themselves into an  unlawful assembly, the common object of which was to commit  the murder of the deceased and they were, therefore, guilty of the  offence under Section 302/149 IPC.   

       Having regard to the facts of the case we have no doubt that  A-1, A-2, A-3, A-4 and A-6 had formed themselves into an  unlawful assembly.  But the moot question which arises, at this  stage, is as to whether the common object of the unlawful  assembly was to commit the murder of the deceased or whether the  common object was to give him a beating and cause grievous hurt  to him.  To answer this question scrutiny of the medical evidence  on record is necessary to find the nature of injuries inflicted.  It  also involves looking into other circumstances of the case.

       The injured witnesses were examined by Dr. Ramappa (PW- 29).  He found no external wounds on PWs. 1 and 2.  PW-3,  according to him, had suffered an abrasion on left hand anklets  which could have been caused by her bangles but she had also  suffered a lacerated wound on the left shoulder which was a simple  injury.  On PW-4 he found one abrasion behind the right shoulder  and four of his ribs fractured.  Obviously the injury was grievous  in nature.  PW-5 had an abrasion behind his head which was a  simple injury.  Similarly, PW-6 suffered an abrasion which was a  simple injury.  It is, therefore, apparent that apart from PW-4 the  other five witnesses had suffered very minor injuries.  The post- mortem on the body of the deceased was conducted by Dr.  Sangappa (PW-30).  He found the following ante mortem injuries  on the deceased:-        

"1.     Abrasion wound on right side of head i.e.  behind ear, measuring 4 x 1 inch broad and  deep to the bone, lower bone was broken.

2.      Lacerated wound on left side of face, chin,  

3.      Lacerated wound on left side of chest.

4.      Abrasion lacerated wound crossed to right  side on ribs, measuring 6 x 1 inch.

5.      Incised wound on left side below shoulder.

6.      Abrasion wound on centre finger of right  side hand and on left index finger.

7.      His chest, neck leveled, below it air was  filled, ribs were broken and wound was in  lungs, the hole was found through it air was  passing in smooth vessel and spreading on  to chest & necks.  It is called surgical

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ampixoma.

8.      Lacerated wound on right side of chest  lower side just outside, one rupees coin type  wound was found."   

       According to him there was no injury to the brain nor was  death caused by injury No.1 on the head.  In his view death was the  cumulative effect of the injuries suffered by the deceased.  The  doctor has not stated any one of the injuries was sufficient in the  ordinary course to cause the death.  According to him death was  due to shock and hemorrhage as a result of injuries to vital organs.   The medical evidence, therefore, discloses that though the  deceased had suffered serious injuries, none of them by itself was  sufficient to cause the death in the ordinary course.  The death was  the result of the cumulative effect of all the injuries.  Apparently,  therefore, even though A-1 and A-2 were armed with axes, as  deposed to by the witnesses, they caused injuries to the deceased  only from the blunt side of the axes.  Injury No.1 was no doubt  caused by the sharp side of the axe but that injury was not of a very  serious nature, though having fractured a bone, it was grievous in  nature.  Having regard to the nature of the injuries and the other  facts and circumstances of the case we are of the view that the  object of the unlawful assembly was not to commit the murder of  the deceased but certainly to cause grievous hurt to him.   Learned  counsel for the appellants drew our attention to paragraph 9 of the  judgment reported in 1994 Supp (3) SCC 235 : Shivalingappa  Kallayanappa and others  vs.  State of Karnataka where in similar  circumstances this Court found the appellants guilty of the offence  under Sections 326/149 IPC and only two of the accused who had  caused injuries resulting in the death of the deceased were held  liable for their individual acts and punished under Section 302 IPC.   That was also a case where some of the appellants, though armed  with axes, did not use the sharp side but only gave one or two  blows on the head with the butt ends.  Some of the accused, who  were armed with stick dealt blows only on the legs and/or on the  hands which were not serious.  In these circumstances this Court  came to the conclusion that the common object of the unlawful  assembly could not be said to be to cause murders and at any rate it  could not be said that all the accused shared the same and that they  had knowledge that the two deceased persons would be killed and  with that knowledge they continued to be the members of the  unlawful assembly.  It was observed that whether there existed a  common object of the unlawful assembly to commit murder  depended upon various factors.  

It is true that when  such a question arises for consideration  by the Court, no judgment can be cited as a precedent howsoever  similar the facts may be.  As was observed by this Court in  Pandurang and others   vs.  State of Haryana : AIR 1955 SC 216   each case must rest on its own facts and the mere similarity of the  facts in one case cannot be used to determine a conclusion of fact  in another.  In the instant case, we find that the alleged motive for  the commission of the offence was rather flimsy.  Members of the  prosecution party as well as the members of the defence party were  related to each other and so were most of the witnesses.  It is also  the consistent case of the prosecution that till 15 days before the  occurrence their relationship was cordial.  Only two weeks before  the occurrence the son of the deceased had assaulted the younger  brother of A-1 who had tried to dismantle the public tap in the  village.  This could hardly provide a motive for committing the  murder of the deceased.  The grievance, if any, was against the son  of the deceased and in any event, even if it is assumed that this

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may have led to ill will between the parties, it would be too much  to infer that for this reason the appellants would have decided to  commit the murder of the deceased.   The injuries found on the  witnesses are simple in nature except the fracture of ribs suffered  by PW-4.  The injuries were not on vital parts of the body.  It,  therefore, does not appear that A-3, A-4 and A-6 shared the  common object to commit murder.  So far as the deceased is  concerned, injury no.1 caused by A-1 did not endanger the life of  the deceased nor was any one of the other injuries sufficient in the  ordinary course of nature to cause the death of the deceased.  The  serious injuries found on the chest of the deceased by the doctor  were caused by use of the axe from its blunt side.  Death was the  cummulative effect of all the injuries.  These facts do indicate that  the appellants did not intend to cause the death of the deceased,  and the object of the unlawful assembly could not be to cause the  death of the deceased.   Of course they must have known that if  they assaulted the deceased with such weapons as they carried, it  may result in grievous hurt to him.  We are, therefore, of the view  that in the facts and circumstances of this case, the appellants must  be held to have formed an unlawful assembly, the common object  of which was to cause grievous hurt to the deceased.  They are,  therefore, guilty of the offence under Sections 326/149 IPC.  Since  none of the injuries found on the person of the deceased was in  itself sufficient in the ordinary course to cause death, neither A-1  nor A-2 can be held guilty of the offence under Section 302 IPC on  the basis of their individual act.   

       In the result Criminal Appeal Nos. 991-992 of 2003 are  allowed and A-5 is acquitted of all the charges levelled against  him.   Criminal Appeal Nos. 1026 to 1029 of 2003 are partly  allowed and the appellants therein are acquitted of the charge  under Sections 302/149 IPC and A-1 & A-2 of the charge under  Sections 302 IPC.  They are, however, found guilty of the offence  under Section 326/149 IPC and sentenced to undergo rigorous  imprisonment for five years each and to pay a fine of Rs.500/-, in  default to undergo imprisonment for one month each.  In view of  the conviction of the aforesaid appellants under Section 326/149  IPC we do not consider it necessary to pass separate sentence  against them under Sections 148 and 324 IPC.  The appellants  must now surrender to their sentence subject to the provisions of  Section 428 Cr. P.C.