Full Judgment Text
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 17 DAY OF MARCH, 2021
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON’BLE MR. JUSTICE RAVI V. HOSMANI
CRIMINAL APPEAL No.1869/2016
C/W
CRIMINAL APPEAL Nos.1381/2019, 1870/2016,
1913/2016, 1936/2016 AND 1939/2016
IN CRL.A. No.1869/2016:
BETWEEN:
1. ASHOK C.R.,
S/O RANGAIAH @ PANCHE RANGAIAH,
AGED ABOUT 31 YEARS,
2. MALLIKARJUNA
S/O SIDDALINGAPPA,
AGED ABOUT 35 YEARS.
BOTH ARE R/O CHANNAVADERAHALLY
KORATAGERE TALUK, TUMAKURU-572 129
…APPELLANTS
(BY SRI MADHUKAR DESHPANDE, ADVOCATE)
2
AND:
STATE OF KARNATAKA
BY KORATAGERE POLICE,
KORATAGERE TQ, TUMAKURU-572129
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA,
BENGALURU-560001.
…RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
*
IN CRL.A. No.1381/2019:
BETWEEN:
JAGANNA,
S/O LATE RANGAIAH,
AGED ABOUT 38 YEARS,
R/O CHANNAVADERAHALLI,
KORATAGERE TALUK,
NOW AT CENTRAL PRISON,
BENGALURU AS CONVICT No.8911.
…APPELLANT
(BY SRI S. VICTOR MANOHARAN, ADVOCATE)
AND:
STATE OF KARNATAKA
R/BY POLICE SUB INSPECTOR,
KORATAGERE POLICE STATION,
NOW REPRESENTED BY SPP
HIGH COURT BUILDING,
BENGALURU-560001.
…RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
*
3
IN CRL.A. No.1870/2016:
BETWEEN:
MR. HANUMANTHARAYAPPA,
S/O VEERAGAMAIAH,
AGED 53 YEARS,
R/O CHANNAVADERAHALLI,
KORATAGERE TALUK,
TUMKUR DISTRICT,
TUMKURU-572129.
…APPELLANT
(BY SRI CHANDRASHEKAR R.P., ADVOCATE)
AND:
THE STATE OF KARNATAKA
REP BY POLICE INSPECTOR OF POLICE,
KORATAGERE POLICE STATION,
KORATAGERE TALUK,
TUMKUR DISTRICT,
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA,
BENGALURU-560001.
…RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
*
IN CRL.A. No.1913/2016:
BETWEEN:
SRI KANTHARAJU,
S/O RANGAIAH C.V.,
AGED ABOUT 50 YEARS,
R/O HANUMANTHAPURA,
4
TUMAKURU TOWN,
TUMKURU-572133.
…APPELLANT
(BY SRI S. VICTOR MANOHARAN, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY KORATAGERE POLIOCE,
REPRESENTED BY SPP
HIGH COURT BUILDING,
BENGALURU-560001.
…RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
*
IN CRL.A. No.1936/2016:
BETWEEN:
SRI DHANANJAYA,
S/O MUTHURAYAPPA,
AGED ABOUT 29 YEARS,
R/OF CHENNAVADERAHALLY,
KORATAGERE TALUK,
TUMKUR DISTRICT.
PIN 572129.
…APPELLANT
(BY SMT. M. GAYATHRI RANGASWAMY, ADVOCATE)
AND:
STATE OF KARNATAKA
KORATAGERE POLICE,
KORATAGERE TALUK,
TUMKUR DISTRICT,
5
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA,
BENGALURU-560001.
…RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
*
IN CRL.A. No.1939/2016:
BETWEEN:
SRI RAMESH,
S/O RANGAPPA,
AGED ABOUT 37 YEARS,
R/OF CHENNAVADERAHALLY,
KORATAGERE TALUK,
TUMKUR DISTRICT.
PIN 572129.
…APPELLANT
(BY SRI CHANDRASHEKAR R.P., ADVOCATE)
AND:
STATE OF KARNATAKA
KORATAGERE POLICE,
KORATAGERE TALUK,
TUMKUR DISTRICT,
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA,
BENGALURU-560001.
…RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
*
6
THESE CRIMINAL APPEALS ARE FILED UNDER SECTION
374(2) OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING
TO SET ASIDE THE IMPUGNED JUDGMENT OF CONVICTION AND
ORDER OF SENTENCE, DATED 05.10.2016 MADE IN SC
No.89/2013, ON THE FILE OF THE IV ADDL. DISTRICT AND
SESSIONS JUDGE, AT MADHUGIRI, CONVICTING AND SENTENCING
THE ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
143, 147, 148, 302, 307 READ WITH 149 OF IPC, BY ALLOWING
THESE CRIMINAL APPEALS AND CONSEQUENTLY ACQUIT THE
APPELLANTS OF THE CHARGES LEVELLED AGAINST THEM, IN THE
INTEREST OF JUSTICE.
THESE CRIMINAL APPEALS COMING ON FOR HEARING THIS
DAY, B.VEERAPPA J. , DELIVERED THE FOLLOWING:
J U D G M E N T
These criminal appeals are filed by the appellants – Accused
Nos. 2 to 8 against the impugned judgment of conviction and order
th
of sentence dated 5 October 2016 made in S.C. No.89/2013 on
the file of the IV Addl. District & Sessions Judge, Madhugiri in so far
as convicting and sentencing them for the offences punishable
under Sections 143, 147, 148, 302, 307 r/w 149 of IPC.
I. BRIEF FACTS OF THE CASE
2. It is the case of the prosecution that there was fire
incident in the land of the deceased Krishnappa on 25.3.2012 at
7
8.00 p.m., in which some trees were burnt and therefore, the
deceased Krishnappa and PWs.2 to 5 had been to the land. When
they were returning back, the deceased Krishnappa was scolding
the accused in view of the fire incident in his land and they were all
going near the gate of their village at about 9.30 p.m.. At that
time, the accused persons forming an unlawful assembly came
there armed with lethal weapons, in the background of earlier
enmity, with an intention to kill Krishnappa by picking up a quarrel
and accused NO.1 assaulted Krishnappa on right hand with
Rotikudlu, Accused No.2 assaulted Krishnappa on right leg with
sickle causing bleeding injury; Accused Nos.5 to 8 assaulted
Krishnappa wherever they could with reaper pieces; Accused Nos.1
and 2 cut off the right hand of Krishnappa, who succumbed to the
injuries at the spot. Accused No.2 assaulted PW.2 with sickle on
her head with an intention to kill her causing simple injuries and
accused Nos.3 and 4 assaulted PW.3 with clubs with an intention to
kill him causing grievous injuries.
8
3. On the basis of the complaint lodged by PW.2 – wife of the
deceased, the jurisdictional Police registered criminal case against
the accused persons for the offences punishable under Sections
143, 147 148, 302, 307 r/w 149 of IPC. After completion of the
investigation, the jurisdictional Police filed the charge sheet. The
learned Sessions Judge framed the charge, read over to the
accused, who pleaded not guilty and claimed to be tried.
4. In order to prove the guilt of the accused persons, the
prosecution examined PWs.1 to 33 and got marked the material
documents – Ex.P1 to Ex.P47 and the material objects – Mos.1
to 14. The defence/accused neither examined any of the witnesses
nor got marked any documents on their behalf.
5. After completion of evidence of the prosecution witnesses,
the statements of the accused persons as contemplated under the
provisions of Section 313 of the Code of Criminal Procedure were
recorded. The accused persons denied all the incriminating
evidence adduced against them and also the case set up by the
prosecution.
9
II. FINDINGS OF THE TRIAL COURT
6. Based on the aforesaid pleadings, the learned Sessions
Judge formulated five points for consideration. Considering both
the oral and documentary evidence on record, the learned Sessions
Judge recorded a finding that the prosecution proved beyond all
reasonable doubt that the accused persons formed an unlawful
assembly to attack the deceased Krishnappa. The trial Court
further recorded a finding that the prosecution proved beyond all
reasonable doubt that all the accused persons committed rioting
armed with sickle, reaper, club etc., The trial Court further
recorded a finding that the prosecution has proved that with an
intention to commit murder of PW.2, accused No.2 assaulted with
sickle causing simple injuries, accused Nos.3 and 4 assaulted PW.3
with clubs, causing grievous injuries to PW.3. The trial Court also
recorded a finding that the prosecution has proved beyond
reasonable doubt that accused Nos.1 and 2 assaulted Krishnappa
with machete and accused Nos.5 to 8 assaulted with reaper and
accused Nos.1 and 2 cut off the right hand of the deceased
Krishnappa and committed the murder of Krishnappa. Lastly, the
10
trial Court recorded a finding that the accused persons assaulted
the deceased with an intention to commit his murder.
Accordingly, the learned Sessions Judge convicted the Accused Nos.
1 to 8 for the offences punishable under Sections 143, 147, 148,
302, 307 r/w 149 of IPC and sentenced each of them to undergo
Simple Imprisonment for three months for the offence punishable
under Section 143 r/w 149 of IPC; Simple Imprisonment for one
year for the offence punishable under Section 147 r/w 149 of IPC;
Simple Imprisonment for 1 ½ years for the offence punishable
under Section 148 of IPC; imprisonment for life with a fine of
Rs.10,000/- each for the offence punishable under Section 302 r/w
149 of IPC; and Simple Imprisonment for five years with a fine of
Rs.10,000/- each for the offence punishable under Section 307 r/w
149 of IPC etc.,
7. Hence, the present appeals are filed by the accused
persons. The State has not filed any appeal for enhancement of
sentence against the impugned judgment of conviction and order of
sentence.
8. We have heard the learned counsel for the parties.
11
III. ARGUMENTS ADVANCED BY SRI S. VICTOR MANOHARAN,
LEARNED COUNSEL FOR ACCUSED NOS.2 AND 3
IN CRIMINAL APPEAL NOS.1381/2019 AND
CRIMINAL APEPAL NO.1913/2016
9. Sri S. Victor Manoharan, learned counsel for the Accused
Nos.2 and 3 contended that the impugned judgment of conviction
and order of sentence passed by the learned Sessions Judge
convicting Accused Nos.2 and 3 for the offence punishable under
Section 302 r/w 149 of IPC and other offences, is erroneous and
contrary to the material on record and cannot be sustained. He
would further contend that absolutely there is no charge against
Accused No.3 for the offence punishable under Section 302 of IPC
and there is also no evidence for implicating Accused NO.3 in the
commission of the offence punishable under Section-302 of IPC and
other offences. In the absence of the same, the trial Court still
convicted the Accused NO.3 for the said offences and the same is
without any basis. He further contended that none of the
prosecution witnesses have whispered anything against Accused
No.3 and there is no direct evidence against Accused No.3.
Therefore, the impugned judgment of conviction against Accused
No.3 for the said offences, cannot be sustained. He would further
12
contend that except PWs.2 to 5, who are highly interested
witnesses, none of the independent witnesses deposed about the
presence of Accused NO.2 on the date of the incident and his
involvement in the commission of the offences. He further
contended that PW.2 (wife of the deceased) has deposed against
Accused No.2. Admittedly, the prosecution has not examined any
of the neighbours/independent witnesses to prove that the Accused
No.2 was involved in the offence punishable under Section 307 of
IPC. The learned Sessions Judge proceeded to convict the
accused No.2 mainly on the basis of the evidence of the interested
witnesses including PW.2 (wife of the deceased). He would
further contend that the post-mortem report – Ex.P29 issued by the
doctor – PW.30 clearly depicts that the cause of death of the
deceased Krishnappa was due to haemorrhagic shock, traumatic
shock, brain injury and due to the injuries sustained. He would
further contend that Ex.P24 – wound certificate of PW.3 dated
12.6.2012 depicts that he came to the hospital with the ‘history of
assault at 7 p.m. on 25.3.202 due to man-handling’. The doctor
further stated that the injured person first seen by him in the
Government Hospital, Koratagere and his examination commenced
13
at 11.00 p.m. on 25.3.2012. The doctor also stated that PW.3 was
under the influence of alcohol and he was unconscious when he was
brought to the hospital and there was alcohol smell in his mouth.
The doctor further stated that PW.3 sustained abrasion over left
parietal region and abrasion over right elbow and right side of the
mouth above the lip (upper) etc., According to the doctor, the
injuries are grievous in nature with two teeth avulsion from upper
jaw. In the cross-examination, the doctor has stated there is
possibility of PW.3 sustaining such injuries if fallen on the ground
after consuming alcohol. The doctor further stated that PW.2
might have sustained the injuries mentioned in the wound
certificate – Ex.P25 by falling on the rough surface. Therefore,
learned counsel would contend that absolutely there is no material
against accused Nos.2 and 3 to attract the offences punishable
under Sections 302, 307, 143,147 and 148 r/w 149 of IPC.
Learned counsel would further contend that the recovery was made
at the instance of Accused NO.2 and except recovery, no other
direct evidence was adduced or produced by the prosecution and
absolutely there is no case made out against Accused Nos.2 and 3.
14
Therefore, he sought to allow the appeals filed by Accused No.2
and 3 in Crl.A No.1381/2019 and Crl.A No.1913/2016.
IV. ARGUMENTS ADVANCED BY SRI MADHUKAR DESHPANDE,
LEARNED COUNSEL FOR ACCUSED NOS.5 AND 6 IN
CRIMINAL APPEAL NO.1869/2016
10. Sri Madhukar Deshpande, learned counsel for Accused
Nos.5 and 6 in Criminal Appeal No.1869/2016 contended that there
are no overt acts against Accused Nos.5 and 6 and the complaint –
Ex.P2 does not depict the names of Accused No.5 and 6 and it only
mentions the names of Accused Nos.1 to 4. He further contended
that PW.2 – complainant (victim and wife of the deceased) has not
stated anything against Accused Nos.5 and 6 and absolutely there
is no material against the said accused, but they have been falsely
implicated in the commission of the offences. He further
contended that Ex.P29 – post-mortem report and Ex.P30 – opinion
of the doctor clearly depict that only Mos.1 and 2 were used against
the deceased and the recovery of the said weapons was at the
instance of Accused Nos.1 and 2 by the Investigating officer –
PW.32. He would further contend that Accused Nos.5 and 6 were
arrested and thereafter, their voluntary statements were recorded
15
on 10.6.2012. MOs.3 and 4 – reaper pieces were recovered under
the seizure mahazar – Ex.P22 in presence of PWs.21 and 22, who
turned hostile to the case of the prosecution. Therefore, recovery
of MOs.3 and 4 was not proved beyond reasonable doubt by the
prosecution. He further contended that the doctor – PW.30 has
not deposed or stated anything in Ex.P29 and Ex.P30 about
recovery of MOs.3 and 4 and involvement of accused No.5 and 6 in
the homicidal death of the deceased. He further contended that
FSL reports – Ex.P27 and Ex.P46 are not in respect of MOs.3 and 4
and they are only in respect of MOs.1,2 and 5 to 14 and no
scientific evidence produced by the prosecution in respect of Mos.3
and 4. He further contended that PWs.2 to 5 are highly interested
witnesses. Except the omnibus statement of PW.2 that all the
accused persons assaulted her husband (deceased Krishnappa),
she has not attributed any specific overt acts against Accused Nos.5
and 6. He also brought to the notice of the Court paragraphs 85
and 86 of the judgment and sought for setting aside the impugned
judgment of conviction and order of sentence passed against
Accused Nos.5 and 6 and allow the appeals filed by them.
16
11. In support of his contentions, learned counsel for
Accused Nos.5 and 6 relied upon the dictum of the Coordinate
Bench of this Court in the case of Santhu @ Santhosh Poojary
and others –vs- State of Karnataka in Criminal Appeal
th
No.880/2015 and connected matters decided on 15 December
2020.
V. ARGUMENTS ADVANCED BY SRI CHANDRASHEKAR R.P.,
LEARNED COUNSEL FOR ACCUSED NOS.4 AND 7 IN
CRIMINAL APPEAL NOS.1870/2016 AND 1939/2016
12. Sri P. Chandrashekar, learned counsel for the appellants
– Accused Nos.4 and 7 in Criminal Appeal No.1870/2016 contended
that charge is framed against Accused No.4 only for the offence
under Section 307 of IPC, but the learned Sessions Judge convicted
him for the offences punishable under Sections 302, 307 of IPC and
other offences. Absolutely, there is no sufficient material against
Accused No.4 for his conviction for the aforesaid offences. He
further contended that it is alleged that Accused No.4 assaulted
PW.3. The wound certificate – Ex.P24 dated 12.6.2012 in respect
of PW.3 depicts the ‘history of assault at 7 p.m. on 25.3.2012 by
17
man-handling’. The doctor, on examination found that PW.3 was
under the influence of alcohol at the time he was brought to the
hospital and alcohol smelled from his mouth and breath and he
sustained injuries which are grievous in nature with two teeth
avulsion from upper jaw. In the cross-examination, the doctor has
stated there is possibility of PW.3 sustaining such injuries if fallen
on the ground after consuming alcohol. Therefore, learned counsel
would contend that PW.3 might have fallen on the land and Accused
NO.4 has been falsely implicated in the commission of the offences.
He would further contend that PW.3 has stated in the examination-
in-chief that Accused Nos.3 to 8 have assaulted and broken his
tooth and jaw, but there is no specific allegation against Accused
No.4 and in the absence of the same, the impugned judgment of
conviction passed against Accused No.4 cannot be sustained. He
further contended that in respect of Accused No.7, his name is not
reflected either in Ex.P2 – complaint or in Ex.P31 – FIR and
admittedly accordingly to the prosecution, it was a mob, but no
Test Identification Parade was conducted to identify Accused No.7,
who alleged to have assaulted the deceased Krishnappa or PWs.2
and 3. In the absence of any material produced, the impugned
18
judgment of conviction against Accused NO.7 cannot be sustained.
He would further contend that the evidence of PW.2 depicts that
Accused Nos.1 and 2 assaulted the deceased as per Ex.P2 –
complaint. The incident occurred in the night in the darkness.
Though in the complaint, it is specifically stated that they were
going after the fire incident with torch, admittedly the torch
referred to in Ex.P2 has not been recovered. In the absence of
recovery of torch, the prosecution is not able to identify either
Accused No.4 or Accused NO.7. Therefore, he submits that the
impugned judgment of conviction against Accused Nos.4 and 7
cannot be sustained and sought to allow the appeals by Accused
Nos.4 and 7.
13. In support of his contentions, learned counsel relied upon
the dictum of the Hon’ble Supreme Court in the case of Parvat
Singh and others –vs- State of Madhya Pradesh reported in
(2020)4 SCC 33 (paragraph 13.1) to the effect that no other
independent witnesses even named by the concerned witness has
supported the case of the prosecution and though according to the
concerned witness, she identified the accused in the light of the
19
torch, there is no recovery of torch and on that ground, the
conviction cannot be sustained.
VI. ARGUMENTS ADVANCED BY SMT. M. GAYATHRI
RANGASWAMY, LEARNED COUNSEL FOR ACCUSED NO.8
IN CRIMINAL APPEAL NO.1936/2016
14. Smt. M. Gayathri Rangaswamy, learned counsel for
Accused No.8 in Criminal Appeal No.1936/2016 has contended that
admittedly, the name of Accused No.8 is not found either in the
complaint or in the FIR – Ex.P31 and he has been falsely implicated
by the prosecution. She further contended that the complainant –
PW.2 has not stated anything against Accused No.8, in particular
and except the omnibus allegation that all the accused are involved,
no overt acts are attributed against Accused NO.8. Further, even
MOs.3 and 4 – two reaper pieces were recovered at the instance of
Accused Nos.5 and 6 and nothing is attributed against Accused
No.8. In the cross-examination, PW.2 has admitted that the name
of the Accused No.8 has not been mentioned before the Police while
recording the statement under Section 161 of the Code of Criminal
procedure. Learned counsel further contended that PW.2 stated in
her evidence that Accused Nos.3 to 8 assaulted him and there is no
20
specific allegation against Accused NO.8. Further, no charge under
Section 307 of IPC is framed against Accused No.8. Mos.3 and 4 –
wooden reaper pieces were not confronted with the doctor, who
examined the deceased, PW.2 and PW.3. In the absence of any
material documents, the impugned judgment of conviction passed
by the trial Court against Accused No.8 cannot be sustained. She
further contended that absolutely there is no material against
Accused NO.8. By invoking Section 149 of IPC, the learned
Sessions Judge erred in convicting Accused NO.8 for the offence
punishable under Section 302 of IPC and other offences. Therefore,
he sought to allow the appeal filed by Accused No.8.
VII. ARGUMENTS ADVANCED BY SRI VIJAYKUMAR MAJAGE,
LEARNED ADDL. SPP FOR THE STATE
15. Per contra, Sri Vijaykumar Majage, learned Addl. SPP for
the State in all the Criminal Appeals while justifying the impugned
judgment of conviction and order of sentence, has contended that
there was previous enmity between the accused and the deceased
and with an intention to kill the deceased, all the accused persons
formed an unlawful assembly and assaulted the deceased on the
21
date of the incident, consequent upon which the deceased died at
the spot. The prosecution case clearly depicts that Accused No.1
assaulted the deceased Krishnappa on right hand with Rotikudlu,
Accused No.2 assaulted the deceased Krishnappa on right leg with
sickle causing bleeding injury, Accused Nos.5 to 8 assaulted
Krishnappa wherever they could with reaper pieces and Accused
Nos.1 and 2 cut off the right hand of the deceased Krishnappa and
ultimately, the deceased succumbed to the injuries at the spot.
Accused No.2 assaulted PW.2 with sickle on his head with an
intention to kill her causing simple injuries and Accused Nos.3 and 4
assaulted PW.3 with clubs with an intention to kill him causing
grievous injuries. The material on record clearly depicts that the
accused persons formed an unlawful assembly and killed the
deceased Krishnappa and made an attempt to murder PWs.2 and 3
and therefore, committed the offences punishable under Sections
302 and 307 of IPC. Therefore, the learned Sessions Judge is
justified in passing the impugned judgment of conviction and order
of sentence against the accused persons. Hence, he sought to
dismiss all the appeals.
22
16. Sri Vijaykumar Majage, learned Addl. SPP as well as
learned counsel for the accused persons, on instructions brought to
the notice of the Court that Accused No.1, who has been convicted
for the offences punishable under Sections 143, 147, 148, 302, 307
r/w 149 of IPC, has died after the judgment of conviction and order
of sentence passed. No appeal filed by the legal representatives of
the Accused No.1. The said submissions are placed on record.
VIII. POINTS FOR CONSIDERATION
17. In view of the rival contentions urged by the learned
counsel for the parties, the points that would arise for our
consideration are:
i) Whether the Accused No.2 has made out any case
to interfere with the impugned judgment and order
passed by the trial Court in so far as convicting
and sentencing him for the offences punishable
under Sections 143, 147, 148, 302, 307 r/w 149 of
IPC ?
ii) Whether the Accused Nos.3 to 8 have made out a
case to interfere with the impugned judgment and
23
order passed by the trial Court in so far as
convicting and sentencing them for the offence
punishable under Section-302 r/w 149 of IPC, in
the facts and circumstances of the case ?
iii) Whether the Accused Nos.3 to 8 have made out a
case to interfere with the impugned judgment and
order passed b y the trial Court in so far as
convicting and sentencing them for the offences
punishable under Sections 143 r/w 149 of IPC,
147 r/w 149 of IPC, 148 r/w 149 of IPC and 307
r/w 149 of IPC, in the facts and circumstances of
the case ?
18. We have given our thoughtful consideration to the
arguments advanced by the learned counsel for the parties and
perused the entire material including the original records carefully.
IX. EVIDENCE OF THE PROSECUTION WITNESSES AND
THE DOCUMETNS RELIED UPON
19. This Court being the appellate Court, in order to re-
appreciate the entire oral and documentary evidence on record, it is
relevant to consider the evidence of the prosecution witnesses and
the documents relied upon:
24
(i) PW.1 – Nagaraju has stated that he does not
know the deceased Krishnappa and he has not
seen the Accused No.1 earlier. He further
stated that he does not know anything about
the case and he is not aware of the incident.
Therefore, he was treated as hostile to the
case of the prosecution.
(ii) PW.2 – Hanumakka, who is the wife of the
deceased Krishnappa while reiterating the
averments made in the complaint, has deposed
that the accused persons have killed her
husband. She further stated that Accused
No.1 assaulted her husband on right hand with
machhu, accused No.2 assaulted her husband
on right leg with kudugolu and all the accused
persons surrounded her husband and assaulted
with machhu, kudugolu and club. When she
went to obstruct, Accused Nos.1 and 2 have
assaulted her and thereafter, they have
chopped right hand of her husband.
Thereafter, all the accused persons went away.
She supported the prosecution case.
(iii) PW.3 – Rangashamaiah, who is the injured
has stated that he is the brother of the
25
deceased Krishnappa and his brother was
doing agriculture and banana leaf business.
He knows all the accused persons. On
25.3.2012, his brother was killed and he was
at the spot at the relevant point of time. He
further deposed that his brother – deceased
Krishnappa had contested for Mandal
Panch ayath election and defeated in the
election and the accused persons insulting
repeatedly and unnecessarily lodging
complaints in the Police Station against the
deceased. On the date of the incident at
about 2.30 p.m. one Mr. Prasad of their village
met with an accident and his brother i.e.,
deceased Krishnappa was scolding the accused
that they had committed the accident. At
about 6.30 p.m. when himself and his brother
came near Mavatur gate, accused came and
threatened them that they would kill them and
went away. At about 8.30 p.m. on the date of
the incident, somebody informed them that
there was fire in their land and at that time,
himself, his brother and CWs.2 and 4 went to
the spot. They have also informed Fire
Extinguishing Department through telephone
and accordingly, they went the land and
26
extinguished the fire. After the fire incident,
when they were returning home, when they
were at about 50 feet from the house of
Accused No.1, his brother was scolding the
accused that they only set fire in his land. At
that time, the accused persons attacked the
deceased with sickle and clubs. When he
(PW.3) requested and cried not to assault, the
accused persons stated that they will kill both
of them. Accused Nos.1 and 2 assaulted the
right hand of the deceased Krishnappa with
sickle and Accused Nos.3 to 7 assaulted with
clubs. Accused Nos.3 to 8 assaulted him
(PW.3) with wooden reapers and clubs on his
right hand, head and lips and broken his teeth.
Accused No.2 assaulted PW.2 with kudugolu on
her head. He supported the prosecution case.
(iv) PW.4 – Arasamma, who is the wife of PW.3 has
stated about previous election dispute and
about the fire incident. She further stated that
P.W.2,3,4, went to the spot of fire incident and
while returning, the incident happened. She
also stated that when they reached near the
house of Accused No.2, deceased was abusing
and accused came from front side and
27
assaulted. Accused No.1 assaulted deceased
on the right hand, Accused No.2 on head and
leg, with chopper and sickle. Accused No.2
assaulted P.W.2 and all other accused
assaulted P.W.3 with clubs. The deceased and
injured were shifter to hospitals. She also
identified weapons and clothes of the
deceased. She supported the prosecution
case.
(v) PW.5 – Kamaraju, who is the son of PWs.3 and
4 also deposed about the fire incident in the
land of the deceased. Deceased himself
telephoned to fire extinguisher department.
When they came near the house of Accused
No.2, deceased started abusing the accused
and thereafter incident happened. He also
stated about the overt acts of Accused Nos.1
and 2. He stated that Accused Nos.1 and 2
assaulted the deceased with chopper on hand
and leg of the deceased. He also stated that
Accused Nos.1 to 5 chased him and PW.4. He
also stated that Accused Nos.4,5 and 7
assaulted PW.3 with clubs. He supported the
prosecution case.
28
(vi) PW.6 – Kenchappa is witness to the spot
mahazar – Ex.P3. He identified his signature
at Ex.P3(a). He supported the prosecution
case.
(vii) PW.7 – Manjunatha (deceased brother’s son) is
resident of Sogenahalli and it is about 40
kilometers from the spot. Except identifying
his signature on Ex.P3 – spot panchanama , he
has not supported the prosecution case.
(viii) PW.8 - Rangadasegowda is the witness to the
inquest report - Ex.P12 and his signature is at
Ex.P12(a).
(ix) PW.9 – Rajanna, who is the brother of the
deceased has stated about the motive,
previous enmity, defeat of the deceased in the
election and about the accused insulting the
deceased and therefore, the deceased was
scolding the accused persons. He also stated
about the place of incident. He supported the
prosecution case.
(x) PW.10 – Manjunatha, who is the son of the
deceased Krishnappa is the hearsay witness.
He does not know as to why the incident
happened. He has seen the dead body of the
29
deceased in the hospital. He supported the
prosecution case.
(xi) PW.11 – Suresh Gandhi received the
information from Manjuanth and Rajanna. He
shifted the dead body of the deceased to the
hospital in an autorickshaw. He has not given
any statement to the Police.
(xii) PW.12- Suresh Gandhi has deposed that he
knows the deceased and he is not aware as to
how the deceased died. He has seen the
deceased in the hospital. He turned hostile to
the case of the prosecution.
(xiii) PW.13 – Rangashamaiah is a panch witness to
Ex.P12 – inquest. He is also a panch to
Ex.P15, recovery of chopper from Accused
No.2. He supported the prosecution case.
(xiv) PW.14 - Hanumaiah is a panch to seizure of
clothes of the deceased under Ex.P16. He
turned hostile to the case of the prosecution.
(xv) PW.15 – Nagappa is a panch witness to Ex.P16.
He identified MOs.5 to 7, clothes of the
30
deceased. He partly turned hostile to the case
of the prosecution.
(xvi) PW.16 – Bankesha is a panch witness to
Ex.P15, recovery of MO.2 at the instance of
Accused NO.2. He supported the prosecution
case.
(xvii) PW.17 – Govindraju is a panch witness to
Ex.P18. He has deposed that Police visited
the spot and seized a chopper from the spot.
He supported the case of the prosecution.
(xviii) PW.18 – Manjunath has deposed that he knows
the deceased Krishnappa and he has seen the
dead body of the deceased in Koratagere
hospital. He does not how as to how the
deceased has died. He is a witness to Ex.P14.
(xix) PW.19 – Kumaraiah is not a localite. He turned
hostile to the case of the prosecution.
(xx) PW.20 – Uddaiah (brother’s son of the
deceased) is a panch to Ex.P20, seizure of
burnt clothes of Accused No.1 and ash (Mos.12
and 13). He supported the prosecution case.
31
(xxi) PW.21 – Vasantha Kumar and PW.22 –
Arunkumar are panch as to Ex.P22 under which
Mos.3 and 4 – clubs from Accused Nos.5 and 6
were recovered. Both turned hostile to the
case of the prosecution.
(xxii) PW.23 – Kiran Kumar is a photographer. He
furnished the prints of the photos in the
camera roll of Koratagere Police. He turned
hostile to the case of the prosecution.
(xxiii) PW.24 – Dr. Sujatha, Medical Officer, Tumkur
Government Hospital treated PW.3 and stated
that he was in a drunken state when he was
brought to the hospital. She also treated
PW.2. She issued wound certificates as per
Ex.P24 and Ex.P25. She supported the
prosecution case.
(xxiv) PW.25 – Purushotham is the Junior Engineer,
who visited the spot with a Police Constable –
Manjunath and prepared a spot sketch –
Ex.P26. He supported the prosecution case.
(xxv) Pw.26 – Shenaz Fathima is the Scientific
Officer, who examined 11 articles sent for
32
examination and furnished her opinion as per
Ex.P26. She stated that some of the articles
were stained with ‘A’ group blood. She
supported the prosecution case.
(xxvi) PW.27 – Shivaram is the Police Constable, who
apprehended Accused No.2. He supported the
prosecution case.
(xxvii) PW.28 – Dilip is the Police Constable, who
apprehended Accused No.1. He supported
the prosecution case.
(xxviii) PW.29 – Chandrashekar is the Police
Constable, who apprehended Accused Nos.5
and 6. He supported the prosecution case.
(xxix) PW.30 - Dr. Prakash has deposed that he
conducted post-mortem examination on the
dead body of the deceased. He has stated that
the deceased sustained the (i) Cut wound
separated the right hand from below the
portion of elbow joint; (ii) Cut wounds
underneath the right knee joint on the back
side; (iii) Abrasions on right shoulder, scapula,
thigh, knee and left leg; and (iv) injury on the
backside of the head and bleeding in the brain.
33
He issued the Post-mortem report- Ex.P29 and
opined that the death was due to
haemorrhagic shock due to injury to head and
other parts of the body. Ex.P30 is the opinion
regarding MOs.1 and 2. He supported the
prosecution case.
(xxx) PW.31 – Manjunath is the Police Constable
who shifted the dead body to the hospital and
produced the clothes of the deceased before
the Investigating Officer (Ex.P16) and shown
the place of incident to Engineer (Ex.P26). He
supported the prosecution case.
(xxxi) PW.32 – K.R. Chandrashekar is the
Investigating officer, who visited the
Government hospital, Koratagere and recorded
the statement of PW.2 as per Ex.P2 –
complaint and registered a case. He visited
the spot and conducted spot mahazar as per
Ex.P3. He got the photographs of the spot as
per Ex.P4 to Ex.P11. He conducted inquest
panchanama as per Ex.P12 and seized the
clothes of the deceased as per
Ex.P16. He arrested Accused No.2 and
recorded his voluntary statement as per
34
Ex.P35 and recovered Mo.2 – sickle and MO.14
– banian. He arrested Accused No.1 and
recorded his voluntary statement as per
Ex.P40 and recovered MO.1 – chopper, MOs.11
and 12 – burnt cloth and ash. He obtained
the opinion of the doctor regarding the
weapons – Mos.1 and 2 with reference to the
injuries on the deceased as per Ex.P30. He
also arrested Accused Nos.5 and 6 and
recorded their voluntary statements as per
Ex.P43 and Ex.P44 and recovered MOs.3 and 4
under Ex.P22 and sent 11 articles to FSL and
obtained the report as per Ex.P27. He
supported the prosecution case.
(xxxii) PW.33 – Puttabasavaiah is the Retired Deputy
Director of FSL, Bangalore. He examined
MO.12 – ash and furnished opinion as per
Ex.P46 and opined that the ash was out of
burnt clothes.
X. CONSIDERATION
20. It is the case of the prosecution that there was fire
incident in the land of the deceased Krishnappa on 25.3.2012 at
35
8.00 p.m., in which some trees were burnt and therefore, the
deceased Krishnappa and PWs.2 to 5 had been to the land. When
they were returning back, the deceased Krishnappa was scolding
the accused on account of the fire incident in his land and they
were all going near the gate of their village at about 9.30 p.m.. At
that time, the accused persons forming an unlawful assembly came
there armed with lethal weapons, in the background of earlier
enmity, with an intention to kill Krishnappa by picking up a quarrel
and accused NO.1 assaulted Krishnappa on right hand with
Rotikudlu , Accused No.2 assaulted Krishnappa on right leg with
sickle causing bleeding injury; Accused Nos.5 to 8 assaulted
Krishnappa wherever they could with reaper pieces; Accused Nos.1
and 2 cut off the right hand of Krishnappa, who succumbed to the
injuries at the spot. Accused No.2 assaulted PW.2 with sickle on
her head with an intention to kill her causing simple injuries and
accused Nos.3 and 4 assaulted PW.3 with clubs with an intention to
kill him causing grievous injuries.
21. A careful reading of the complaint – Ex.P2 clearly depicts
that in the incident occurred on 25.2.2012, Accused Nos.1 to 4 and
36
two others attacked the deceased and others with sickle, roti sickle
and clubs. To be specific, on the date and time of the incident,
Accused Nos.1 to 4 and two others forming an unlawful assembly
came to the spot holding sickle, roti sickle and clubs in their hands
and the Accused No.1 assaulted with roti sickle on right hand of the
deceased and Accused No.2 assaulted with sickle on right leg of
the deceased and the deceased raised voice and fallen on the land.
When PWs.2 and 3 intervened and opposed, Accused Nos.3 and 4
assaulted them with clubs. Accused No.2 assaulted PW.2 with
sickle on her head. Thereafter, Accused No.1 chopped/cut off the
right hand of the deceased using MO.1. In the assault by Accused
Nos.1 and 2, Krishnappa succumbed to the injuries and further
PWs.2 and 3 were assaulted by Accused Nos.3 and 4 and others.
Due to the unfortunate incident occurred, the deceased Krishnappa
died at the spot. Thus, there is no dispute with regard to homicidal
death of the deceased.
22. In support of its case, the prosecution relied upon the
post-mortem report – Ex.P29, wherein while narrating the external
appearance of the deceased, it is clearly stated that the deceased
37
was 45 years old male, moderately built and nourished, height 177
centimeters, both the eyes closed, black hairs over scalp, rigor
mortis present over both the limbs. On examination of the
deceased, it is further noticed that he has sustained a clear cut,
incised, circular wound over below elbow of right upper limb, which
is completely separated from the body (Trauumatic amputation of
below elbow of right upper limb); all traumatized structures
clearly visible to outside; three circular, cut incised wounds over
right lower leg 01-13 cm in length, 8 cm in width; 15 centimeters
length and 4 centimeters width, 13 centimeters length and 3
centimeters width, above the ankle anterior and lateral aspect; and
abrasion wounds over right shoulder, right scapula, right thigh,
right knee, left leg. The doctor opined that cause of death was
due to haemorrhagic shock, traumatic shock, brain injury and due
to the injuries sustained.
23. It is also not in dispute Mos.1 and 2 were recovered at
the instance of Accused Nos.1 and 2 under Ex.P18 and Ex.P15
respectively. PW.13, who is the panch witness to Ex.P15 has
38
supported the prosecution case. PW.17, who is the panch witness
to Ex.P18 has also supported the prosecution case.
24. Ex.P24 is the wound certificate of PW.3 dated 12.6.2012
issued by the doctor – PW.24 and it clearly depicts that PW.3 came
to the hospital with the ‘history of assault at 7 p.m. on 25.3.2012
due to manhandling’. It also depicts that the injured person
(PW.3) was under the influence of alcohol and unconscious at the
time he was brought and alcohol smelled from his mouth and
breath. As per the wound certificate, PW.3 has sustained three
injuries and they were grievous in nature.
25. Ex.P25 is the wound certificate of PW.2 dated 27.3.2012
issued by the doctor – PW.24 and it clearly depicts that PW.2 came
to the hospital with the ‘history of assault by axe on 25.3.2012 at
9.30 p.m’. As per the wound certificate, PW.2 has sustained two
injuries and they are simple in nature.
26. On meticulous examination of the evidence of PW. 2
(wife of the deceased) and PW.3 (brother of the deceased), who are
the eye witnesses to the incident, it clearly depicts that Accused
39
Nos.1 and 2 with a common intention assaulted the deceased
Krishnappa with deadly weapons – Mos.1 and 2 on right hand and
right leg and then right hand of the deceased was chopped off.
Nothing has been elicited in the cross-examination of these
witnesses to discredit their evidence.
27. The evidence of PWs.2 and 3 is supported by the
evidence of the doctor – PW.24 so also the post-mortem report –
Ex.P29 and opinion of the doctor – Ex.P30. The opinion of the
doctor (Ex.P30) depicts that there is possibility of murdering a
person using Mos.1 and 2, which are used by the accused. The
opinion of the doctor further depicts that it is possible to chop off
the right hand of the deceased Krishnappa using Mos.1 and 2. The
opinion also depicts that the injuries sustained by the deceased are
possible to happen if assaulted by MOs.1 and 2 and there is
possibility of death of the deceased Krishnappa because of the
assault by sharp edged weapons like MOs.1 and 2.
28. The FSL report – Ex.P27 clearly depicts that MOs.1 and 2
were stained with blood. The presence of blood was detected on
item Nos.2,3,4,8,9,10 and 11 ( Kudugolu and Rotikudlu are item
40
Nos.2 and 4), Item Nos.2,3,4,8,9,10 and 11 were stained with ‘A’
group blood.
29. Based on the oral and documentary evidence on record,
it clearly depicts though the Accused Nos.1 to 8 have formed an
unlawful assembly on the date and time of the incident, the fact
remains that only Accused nos.1 and 2 were involved in the
homicidal death of the deceased and there is no material against
the other accused for their involvement in the homicidal death of
the deceased.
30. A careful perusal of the evidence of PWs.2,3 and 4, it
clearly depicts that Accused Nos.3 and 4 assaulted PW.3 with clubs
and caused grievous injuries as per the wound certificate – Ex.P24
and Accused No.2 assaulted PW.2 with sickle on her head and
caused simple injuries as per Ex.P2. Considering the evidence of
PWs.2,3 and 4 coupled with the complaint and the FIR, it clearly
depicts that Accused Nos.3 and 4 made an attempt to murder PW.3
and Accused No.2 made an attempt to murder PW.2. Therefore,
the trial Court rightly convicted Accused Nos.2 to 4 for the offence
punishable under Section 307 of IPC.
41
31. The evidence of PWs.2 and 3 and that of the doctor –
PW.24 and the post-mortem report - Ex.P29 and the opinion of
doctor as per Ex.P30 clearly depict that Accused Nos.1 and 2 have
used MOs.1 and 2 to commit the assault on the deceased
Krishnappa and consequently he succumbed to the injuries at the
spot. The prosecution proved beyond reasonable doubt that
Accused Nos.1 and 2 were involved in the homicidal death of the
deceased. In so far as Accused Nos.3 and 4 are concerned, there
is no material against them for implicating in the homicidal death of
the deceased. None of the prosecution witnesses have whispered
anything against Accused Nos.3 and 4 for their involvement in the
homicidal death of the deceased. The learned Sessions Judge
erroneously convicted Accused Nos.3 and 4 for the offence
punishable under Section 302 of IPC and the same cannot be
sustained.
32. It is true that in the complaint and in the FIR, the names
of Accused Nos.5 and 6 not found and only the names of Accused
Nos.1 to 4 are mentioned. The statement of PW.2 and the
material documents clearly depict that it is Accused Nos.1 and 2
42
who assaulted the deceased Krishnappa and caused the homicidal
death of the deceased. The material on record depicts that Accused
Nos.5 and 6 were in unlawful assembly alongwith others and
assaulted the deceased Krishnappa with reaper pieces - MOs.3 and
4. Mos.3 and 4 were recovered at the instance of Accused Nos.5
and 6. Thus, the prosecution proved beyond reasonable doubt that
Accused Nos.5 and 6 used Mos.3 and 4 to assault the deceased
Krishnappa as can be seen from Ex.P22 – seizure mahazar and
spoken to by the Investigating Officer.
33. The material on record clearly depicts that all the
accused persons formed an unlawful assembly and attacked the
deceased Krishnappa, PW.2, PW.3 and others and the prosecution
proved beyond reasonable doubt that Accused Nos.3 to 8 have
made an attempt to murder PWs.2 and 3 so as to attract the
provisions of Section 307 of IPC.
34. It is also not in dispute that the learned Sessions Judge
has not framed any charge against Accused No.4 in respect of
Section 302 of IPC, but still convicted Accused No.4 based on the
omnibus allegations. Though the complaint depicts the name of
43
Accused No.4, but no deadly weapons recovered from him. The
evidence does not depict any specific allegation against Accused
No.4 regarding his involvement in the homicidal death of the
deceased. It is also not in dispute that in Ex.P2 – complaint, the
name of Accused No.7 was not reflected. Admittedly, no Test
Identification Parade was conducted to identify Accused No.7 and
absolutely there is no evidence to show that he was involved in the
homicidal death of the deceased. PWs.2 and 3 specifically stated
that Accused Nos.3 to 8 also assaulted them. The material on
record clearly depicts that the prosecution failed to prove beyond
reasonable doubt the involvement of Accused No.7 in the homicidal
death of the deceased.
35. The material on record clearly depicts that the name of
Accused No.8 not found in the complaint – Ex.P2 or in Ex.P31 – FIR.
The complainant – PW.2 (wife of the deceased) has not stated
anything in particular against Accused No.8, but generally stated
that all the accused persons assaulted her husband. But, no
material document is produced to prove the involvement of Accused
No.8 in the homicidal death of the deceased so as to attract the
44
provisions of Section 302 of IPC. As already stated supra, MOs.3
and 4 were recovered at the instance of Accused Nos.5 and 6 and
rod at the instance of Accused NO.8. In the cross-examination,
PW.2 admitted that the name of the Accused No.8 was not
mentioned before the Police while recording the statement under
Section 161 of the Code of Criminal Procedure. PW.3 specifically
stated that Accused Nos.3 to 8 assaulted him. But, no charge was
made against Accused No.8 for the offence punishable under
Section 307 of IPC. In the absence of supportive evidence and the
material documents, merely because all the accused persons
assembled on the date of the incident, the overt acts cannot be
attributed to all the accused persons. The fact remains that the
deceased defeated in the Mandal Panch ayath election and since
then, the accused insulting the deceased and lodging complaints in
the Police Station unnecessarily against the deceased and thus
there was previous enmity between the accused and the deceased.
Therefore, the unfortunate incident occurred on 25.3.2012 due to
the previous enmity. The material evidence on record clearly
depicts that Accused Nos.1 to 8 formed an unlawful assembly and
came to the spot on the date and time of the incident and only
45
Accused Nos.1 and 2 with a common intention to kill the deceased,
had assaulted and chopped the right hand of the deceased and
assaulted on the right leg of the deceased, thereby the deceased
died at the spot. Merely because Accused No.3 to 8 were members
of the unlawful assembly, they should not be implicated in the
homicidal death of the deceased as they have not assembled with
an intention to kill the deceased and only Accused Nos.1 and 2 had
common intention to kill the deceased and thereby Section 302 of
IPC attracts only in respect of Accused NOs.1 and 2. Therefore,
the learned Sessions Judge is not justified in convicting Accused
Nos.3 to 8 for the offence punishable under Section 302 of IPC by
invoking the provisions of Section 149 of IPC.
36. By a careful reading of the provisions of Section 149 of
IPC, it clearly depicts that 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 be committed in
prosecution of that object, every person who, at the time of the
46
committing of that offence, is a member of the same assembly, is
guilty of that offence. The scrutiny of the provisions of Section
149 on the touchstone of fundamental rights has become the need
of the hour because of the alarming misuse of the said section by
the prosecuting agencies. The Investigating Officers sometime
would violate the fundamental rights guaranteed in the Constitution
under Articles 14, 19 and 21 of the Constitution of India. In
complete disregard of Article 21 and the promise of individual
liberty, the police and prosecution are now using Section 149 as a
presumption of guilt of all persons who happen to be present at the
spot, including those who become part of assembly oblivious to its
unholy intentions or as curious onlookers.
37. Admittedly in the present case, out of Accused Nos.1 to 8
and others who gathered on the date of the incident, except
Accused Nos.1 and 2, others have no intention to kill the deceased.
In the absence of any material either in the complaint or in the
evidence of the prosecution witnesses or in the medical evidence or
scientific evidence with regard to the involvement of Accused Nos.3
to 8 in the homicidal death of the deceased, the trial Court is not
47
justified in convicting Accused Nos.3 to 8 for the offence punishable
under Section 302 of IPC, just because they are members of the
unlawful assembly and that is not the intention of the Legislature
while enacting the provisions of Section 149 of IPC.
38. It is not in dispute that the deceased was defeated in the
Mandal Panch ayath election and since then, the accused was
insulting the deceased repeatedly. Thus, there was previous
enmity between the accused and the deceased and the unfortunate
incident happened because of the previous enmity. Though the
learned counsel for the Accused No.2 made an attempt that
Accused Nos.1 and 2 have not attacked on the vital part of the
deceased, the same cannot be accepted and the material on record
clearly depicts that Accused No.1 assaulted on the right hand of the
deceased with roti sickle and Accused No.2 assaulted the deceased
with sickle and thereafter they chopped the right of the deceased.
The post-mortem report – Ex.P29 clearly depicts that the deceased
Krishnappa died due to the haemorrhagic shock, traumatic shock,
brain injury and due to the injuries sustained. Therefore, the
learned Sessions Judge is justified in convicting Accused Nos.1 and
48
2 for the offence punishable under Section 302 of IPC. But, the
trial court erred in convicting Accused Nos.3 to 8 for the offence
punishable under Section 302 of IPC.
39. It is common in rural area, in any small incident,
naturally there are two groups. The people involved in the attack
and counter-attack. They never know the consequences of the
incident including the punishment in case they found to be guilty.
Therefore, it is the bounden duty of the Court, while considering the
cases arising out of the provisions of Section 307 or Section 302
r/w 149 of IPC that the Court should act as societal parents and
ensure a proper analysis of the evidence on record and merely
because one of the accused committed the alleged offence, the
other members of the unlawful assembly should not unnecessarily
be punished with imprisonment for life, without there being any
contribution of other members with the common object for
commission of the offence, in order to protect liberty of the citizens
like Accused nos.3 to 8 in the present case. Of course such
persons i.e., Accused Nos.3 to 8 are separately punishable for other
offences under Sections 143, 147, 148, 307 r/w 149 of IPC as
49
rightly convicted by the learned Sessions Judge. Therefore,
conviction of Accused Nos.3 to 8 for the offence punishable under
Section 302 r/w 149 of IPC, is without any basis and cannot be
sustained. The learned Sessions Judge proceeded to convict
Accused Nos.3 to 8 for the offence punishable under Section 302
r/w 149 of IPC merely because they are members of the unlawful
assembly, without there being any contribution from Accused nos.3
to 8 for commission of the offence punishable under Section 302 of
IPC. Admittedly, as already stated supra, there is no oral and
documentary evidence and medical evidence against Accused Nos.3
to 8 that they are involved in the homicidal death of the deceased
and committed the offence punishable under Section 302 r/w 149
of IPC. In the absence of the same, the impugned judgment of
conviction and order of sentence convicting Accused nos.3 to 8 for
the offence punishable under Section 302 of IPC, cannot be
sustained. In so far as the conviction made by the learned
Sessions Judge in respect of Accused Nos.1 and 2 for the offence
punishable under Section 302 of IPC, there is abundant material on
record including the medical evidence and the evidence of the eye
witnesses. Therefore, the learned Sessions Judge is justified in
50
convicting Accused Nos.1 and 2 for the offence punishable under
Section 302 r/w 149 of IPC and the Accused NO.2 has not made out
any ground to interfere with the impugned judgment of conviction
and order of sentence passed against him.
40. Our view is fortified by the judgment of the judgment of
the Coordinate Bench of this Court in the case of Santhu @
Santhosh Poojary and others –vs- State of Karnataka in
Criminal Appeal No.880/2015 and connected matters decided on
th
15 December 2020, wherein this Court while considering the
provisions of Section 302 r/w 149 of IPC, has held at paragraphs 42
to 45 as under:
42. The scrutiny of the provisions of section 149
on the touchstone of fundamental rights has become
the need of the hour because of the alarming misuse of
the said section by the prosecuting agencies. The
Investigating Officers sometime would violate the
fundamental rights guaranteed in the Constitution
under Articles 14, 19 and 21 of the Constitution of
India. In complete disregard of Article 21 and the
promise of individual liberty, the police and prosecution
are now using section 149 as a presumption of guilt of
51
all persons who happen to be present at the spot,
including those who become part of assembly oblivious
to its unholy intentions or as curious onlookers. In rural
India, people usually carry agricultural equipments like
farsa/axe/lathis, hand sickle, shovel, spade, pickaxe,
Hoe, mattock etc., with them. In any heated exchange
it is not unlikely that the other residents of village are
vocal about their “views” on the issue between the
warring parties. In such an assembly when an offence
takes place due to miscreance of one of the erring
members the brunt is borne by all members of the
assembly including all the onlookers who happened to
carry a farsa/lathi with them and were curious enough
to stop and look at what is happening. And if any of
them has uttered a sentence then he is doomed for life
imprisonment if ultimately an offence of murder is
committed by one of the person. Over implication and
subsequent arrest is rampant because of rival/ jealous/
motivated/interested parties are eager to volunteer as
eye-witnesses thereby improving the “conviction rate”
for the prosecution.
43. It is high time for the investigating agency
to conduct proper investigation whenever the provisions
of Section 149 are invoked along with the other
provisions of IPC to ensure that there should not be any
52
violation of fundamental rights guaranteed to the
citizens under Articles 14, 19 and 21 of the Constitution
of India and also to ensure that innocent people should
not be implicated. While invoking the provisions of
Section 149 of IPC, the investigating agency shall
confirm after investigation as to whether such persons
really committed an offence along with the other co-
accused, if any. Otherwise, the rival/jealous/ motivated/
interested parties are eager to implicate innocent
people, sometimes with the influence of local politicians
also.
44. It is the bounden duty of the Court, while
considering the cases arising out of the provisions of
Section 307 or Section 302 r/w 149 of IPC that the
Court should act as societal parents and ensure a
proper analysis of the evidence on record and merely
because one of the accused committed the alleged
offence, the other members of the unlawful assembly
should not unnecessarily be punished with
imprisonment for life, without there being any
contribution of other members with the common object
for commission of the offence, in order to protect liberty
of the citizens. Of course, such members are
separately punishable for minor offences under Sections
143, 147,148,323,341 and 504 of IPC etc.
53
45. In the present case, merely because all the
accused came together in two cars as stated in the
averments of the complaint and in one car as stated in
the evidence of the prosecution witnesses and there
was a scuffle between the two parties and in that
scuffle, Accused No.1 without knowledge of others used
Mo.4 – knife against the deceased, it cannot be said
that all the accused persons unlawfully assembled and
scuffled and killed the deceased Kumar with the
common object. Admittedly, Accused Nos.2 to 5 were
totally unarmed and even according the prosecution
witnesses, no material objects were recovered by the
Investigating Officer at the instance of the Accused Nos.
2 to 5.
41. Our view is also fortified by the judgment of the Hon’ble
Supreme Court in the case of Parvat Singh and others –vs-
State of Madhya Pradesh reported in (2020)4 SCC 33, wherein
the Hon’ble Supreme Court while considering the provisions of
Section 302 r/w 149 of IPC, has held at paragraphs 11 to 15 as
under:
11. Heard the learned counsel for the respective
parties at length. We have gone through and considered
54
in detail the entire evidence recorded by the learned trial
court as well as the High Court. We have also considered
in detail the evidence on record more particularly the
statement of PW 8 — Mullo Bai recorded under Section
161 CrPC as well as her deposition before the court.
12. At the outset, it is required to be noted that the
appellants herein — original Accused 2 to 5 are
convicted by the learned trial court and the High Court
solely relying upon the evidence/deposition of PW 8 —
Mullo Bai. It cannot be disputed that there can be a
conviction relying upon the evidence/deposition of the
sole witness. However, at the same time, the
evidence/deposition of the sole witness can be relied
upon, provided it is found to be trustworthy and reliable
and there are no material contradictions and/or
omissions and/or improvements in the case of the
prosecution. Therefore, the question which is posed for
consideration of this Court is whether in the facts and
circumstances of the case, can the appellants herein,
original Accused 2 to 5 be convicted relying upon the
deposition of the sole witness — PW 8 and whether PW 8
is a reliable and trustworthy witness to convict the
appellants herein, original Accused 2 to 5?
55
13. Having heard the learned counsel appearing for
the respective parties and considering the evidence on
record, we are of the opinion that the
evidence/deposition of PW 8 is full of material
contradictions, omissions and improvements.
13.1. It is required to be noted that it was a black
night (Amavasya) at the time of incident. It was a dark
night as the incident has happened between 4-5 a.m.
PW 8 in her statement recorded under Section 161 CrPC
has stated that she has seen all the accused in the light
of the torch. She has stated that Bal Kishan — original
Accused 1 was having an axe and other four were armed
with lathis. She had also stated in her statement under
Section 161 CrPC that Bal Kishan — original Accused 1
gave the axe-blow on the neck of the deceased due to
the enmity and earlier dispute and other accused were
telling to run away immediately and thereafter all the
five accused ran away from behind the cattle
shed/house. She stated that she had identified all the
accused in the light of the torch and also by voice.
According to her after she shouted, other persons came.
However, there is material improvement in her
deposition before the court. In her deposition, she has
stated that accused Santosh and Rakesh caught hold of
Bal Kishan — deceased. In her deposition, she has also
56
stated that there was a chimney light in the cattle shed.
She has also stated in her deposition that the accused
ran away from the nearby agricultural field of sugarcane.
Therefore, the deposition of PW 8 is full of material
contradictions and improvements so far as original
Accused 2 to 5 is concerned. It is required to be noted
that no other independent witness even named by PW 8
has supported the case of the prosecution. Though,
according to PW 8, she identified the accused in the light
of the torch, there is no recovery of torch. There is
material improvement so far as the chimney light is
concerned. In her deposition, she has not stated
anything that the appellants — original Accused 2 to 5
were having the lathis, though she has stated this in her
statement under Section 161 CrPC. The High Court has
observed relying upon her statement recorded under
Section 161 CrPC that the appellants herein — Accused
2 to 5 were having lathis. However, as per the settled
proposition of law a statement recorded under Section
161 CrPC is inadmissible in evidence and cannot be
relied upon or used to convict the accused. As per the
settled proposition of law, the statement recorded under
Section 161 CrPC can be used only to prove the
contradictions and/or omissions. Therefore, as such, the
High Court has erred in relying upon the statement of
57
PW 8 recorded under Section 161 CrPC while observing
that the appellants were having the lathis.
13.2. As observed hereinabove in her statement
under Section 161 CrPC, she has never stated that
accused Santosh and Rakesh caught hold of Bal Kishan,
but stated that the appellants herein told to run away as
other persons have woken. In the facts and
circumstances of the case, there are material
contradictions, omissions and/or improvements so far as
the appellants herein — original Accused 2 to 5 are
concerned and therefore we are of the opinion that it is
not safe to convict the appellants on the evidence of the
sole witness of PW 8. The benefit of material
contradictions, omissions and improvements must go in
favour of the appellants herein. Therefore, as such the
appellants are entitled to be given benefit of doubt.
13.3. Now, so far as the submission on behalf of the
State that relying upon the deposition of PW 8, the
original Accused 1 was convicted and his conviction has
been confirmed up to this Court and therefore to dismiss
the present appeal qua other accused is concerned from
the evidence on record and having observed
hereinabove the case of the appellants — original
Accused 2 to 5, is distinguishable on facts. There are
58
material contradictions and omissions so far as the
appellants — original Accused 2 to 5 are concerned. So
far as the original Accused 1 is concerned, PW 8 is
consistent in her statement under Section 161 CrPC as
well as in her deposition before the court. There was a
recovery of axe used in commission of the offence by
Accused 1 at the instance of Accused 1. Under the
circumstances, the case of the original Accused 2 to 5 is
clearly distinguishable to that of original Accused 1.
14. For the reasons stated hereinabove, we are of the
firm opinion that in view of the material contradictions,
omissions and improvements in the statement of PW 8
recorded under Section 161 CrPC as well as deposition
before the court qua the appellants — Accused 2 to 5
and that there was a prior enmity and no other
independent witness has supported the case of the
prosecution, we are of the opinion that the appellants
herein — original Accused 2 to 5 are entitled to be given
the benefit of doubt.
15. Under the circumstances, the present appeal is
allowed. The impugned judgment and order of conviction
passed by the learned trial court and confirmed by the
High Court convicting the appellants herein — Accused 2
to 5 for the offence under Section 302 r/w Section 149
59
IPC are hereby quashed and set aside and the appellants
herein — original Accused 2 to 5 are acquitted of the
charges for which they were tried. The appellants herein
— Accused 2 to 5 be released forthwith, if not required
in any other case.
42. Admittedly in the statements recorded under the
provisions of Section-313 of the Code of Criminal Procedure, the
accused persons have neither taken any defence nor offered any
explanation for the incriminating evidence adduced by the
prosecution against them. In the absence of the same, the
adverse inference has to be drawn against the accused as held by
the Hon’ble Supreme Court in the case of Prahlad –vs- State of
Rajasthan reported in (2020)1 SCC (Crl.) 381, wherein the Hon’ble
Supreme Court held at paragraph-11 as under:
11. No explanation is forthcoming from the
statement of the accused under Section 313 CrPC as to
when he parted the company of the victim. Also, no
explanation is there as to what happened after getting
the chocolates for the victim. The silence on the part of
the accused, in such a matter wherein he is expected to
60
come out with an explanation, leads to an adverse
inference against the accused.
43. Though a contention was raised by the learned counsel
for Accused NO.8 that no charge under Section 307 of IPC was
framed against Accused No.8 and in the absence of the same, the
impugned judgment of conviction against Accused No.8 cannot be
sustained, the same cannot be accepted. In view of the
provisions of Section 464 of the Code of Criminal Procedure,
absence of charge would vitiate the conviction only if it has caused
prejudice to the accused and has infact been occasioned thereby.
In the case of Willie (William) Shaney –vs- State of M.P ,
reported in AIR 1956 SC 116, the Constitution Bench of the Hon’ble
Supreme Court explained the concept of “prejudice caused to the
accused” and “failure of justice” and held as under:
6. Before we proceed to set out our answer and
examine the provisions of the code, we will pause to
observe that the Code is a code of Procedure and, like
all procedural laws, is designed to further the ends of
justice and not to frustrate them by the introduction of
endless technicalities. The object of the Code is to
61
ensure that an accused person gets a full and fair trial
along certain well established and well understood
lines that accord with our notions of natural justice.
If he does, if he is tried by a competent court, if
he is told and clearly understands the nature of the
offence for which he is being tried, if the case against
him is fully and fairly explained to him and he is
afforded a full and fair opportunity of defending
himself, then provided there is ‘substantial’
compliance with the outwards forms; of the law, mere
mistakes in procedure, mere inconsequential errors
and omissions in the trial are regarded as venal by the
Code and the trial is not vitiated unless the accused
can show substantial prejudice. That, broadly
speaking, is the basic principle on which the Code is
based.
44. The material on record depicts that Accused No.8
alongwith other accused persons made an attempt to murder, so as
to attract the provisions of Section 307 of IPC. The case against
Accused No.8 has been fully explained to him and he is afforded a
full opportunity of defending himself during trial and the accused
62
No.8 has not shown that substantial prejudice has been caused to
him.
45. Our view is fortified by the dictum of the Hon’ble
Supreme Court in the case of Kamil v. State of U.P. reported in
(2019) 12 SCC 600, wherein the Hon’ble Supreme Court held at
paragraphs 14, 15, 16, 18, 21 , 22 and 23 as under:
14. After considering the meaning of the expression
“failure of justice” and after referring to the Constitution
Bench in Willie Slaney [Willie (William) Slaney v. State
of M.P., AIR 1956 SC 116 : 1956 Cri LJ 291]
and Gurbachan Singh [Gurbachan Singh v. State of
Punjab, AIR 1957 SC 623 : 1957 Cri LJ 1009] , this
Court in Main Pal v. State of Haryana [Main Pal v. State
of Haryana, (2010) 10 SCC 130 : (2010) 3 SCC (Cri)
1234] , held as under: SCC pp. 137-38, paras 15-17)
“15. In Shamnsaheb M. Multtani v. State of
Karnataka [(2001) 2 SCC 577 : 2001 SCC (Cri)
358] , this Court considered the meaning of
the expression “failure of justice” occurring in
Section 464 CrPC. This Court held thus: (SCC
p. 585, paras 22-23)
63
‘22. … a conviction would be valid
even if there is any omission or
irregularity in the charge, provided it
did not occasion a failure of justice.
23. … The criminal court,
particularly the superior court should
make a close examination to ascertain
whether there was really a failure of
justice or whether it is only a
camouflage.’
16. The above principles are reiterated in
several decisions of this Court, including State
of W.B. v. Laisal Haque [(1989) 3 SCC 166 :
1989 SCC (Cri) 513], State of
A.P. v. Thakkidiram Reddy (1998) 6 SCC 554 :
1998 SCC (Cri) 1488, Dalbir Singh v. State of
U.P. [(2004) 5 SCC 334 : 2004 SCC (Cri)
1592], Dumpala Chandra Reddy v. Nimakayala
Balireddy (2008) 8 SCC 339 : (2008) 3 SCC
(Cri) 493 and Sanichar Sahni v. State of Bihar
(2009) 7 SCC 198 : (2009) 3 SCC (Cri) 347.
17. The following principles relating to
Sections 212, 215 and 464 of the Code,
relevant to this case, become evident from the
said enunciations:
64
(i) The object of framing a charge
is to enable an accused to have a
clear idea of what he is being tried for
and of the essential facts that he has
to meet. The charge must also contain
the particulars of date, time, place
and person against whom the offence
was committed, as are reasonably
sufficient to give the accused notice of
the matter with which he is charged.
(ii) The accused is entitled to know
with certainty and accuracy, the exact
nature of the charge against him, and
unless he has such knowledge, his
defence will be prejudiced. Where an
accused is charged with having
committed offence against one person
but on the evidence led, he is
convicted for committing offence
against another person, without a
charge being framed in respect of it,
the accused will be prejudiced,
resulting in a failure of justice. But
there will be no prejudice or failure of
justice where there was an error in
65
the charge and the accused was
aware of the error. Such knowledge
can be inferred from the defence, that
is, if the defence of the accused
showed that he was defending himself
against the real and actual charge and
not the erroneous charge.
(iii) In judging a question of
prejudice, as of guilt, the courts must
act with a broad vision and look to the
substance and not to the
technicalities, and their main concern
should be to see whether the accused
had a fair trial, whether he knew what
he was being tried for, whether the
main facts sought to be established
against him were explained to him
fairly and clearly, and whether he was
given a full and fair chance to defend
himself.”
15. In Darbara Singh v. State of Punjab [(2012) 10
SCC 476 : (2013) 1 SCC (Cri) 1037], this Court
considered the similar issue and came to the conclusion
that the accused has to satisfy the court that there is
66
any defect in framing the charge which has prejudiced
the cause of the accused resulting in failure of justice. It
is only in that eventuality the court may interfere. The
Court elaborated the law as under: (SCC pp. 483-84,
paras 20-21)
“20. The defect in framing of the charges
must be so serious that it cannot be
covered under Sections 464/465 CrPC,
which provide that, an order of sentence or
conviction shall not be deemed to be invalid
only on the ground that no charge was
framed, or that there was some irregularity
or omission or misjoinder of charges, unless
the court comes to the conclusion that there
was also, as a consequence, a [ Ed. : The
matter between two asterisks has been
emphasised in original.] failure of
justice [ Ed. : The matter between two
asterisks has been emphasised in original.]
. In determining whether any error,
omission or irregularity in framing the
relevant charges, has led to a failure of
justice, the court must have regard to
whether an objection could have been
raised at an earlier stage during the
proceedings or not. While judging the
67
question of prejudice or guilt, the court
must bear in mind that every accused has a
right to a fair trial, where he is aware of
what he is being tried for and where the
facts sought to be established against him,
are explained to him fairly and clearly, and
further, where he is given a full and fair
chance to defend himself against the said
charge(s).
21. “Failure of justice” is an extremely
pliable or facile expression, which can be
made to fit into any situation in any case.
The court must endeavour to find the truth.
There would be “failure of justice”; not only
by unjust conviction, but also by acquittal of
the guilty, as a result of unjust failure to
produce requisite evidence. Of course, the
rights of the accused have to be kept in
mind and also safeguarded, but they should
not be overemphasised to the extent of
forgetting that the victims also have rights.
It has to be shown that the accused has
suffered some disability or detriment in
respect of the protections available to him
under the Indian criminal jurisprudence.
68
“Prejudice” is incapable of being interpreted
in its generic sense and applied to criminal
jurisprudence. The plea of prejudice has to
be in relation to investigation or trial, and
not with respect to matters falling outside
their scope. Once the accused is able to
show that there has been serious prejudice
caused to him, with respect to either of
these aspects, and that the same has
defeated the rights available to him under
criminal jurisprudence, then the accused
can seek benefit under the orders of the
court. (Vide Rafiq Ahmad v. State of U.P. [
(2011) 8 SCC 300 : (2011) 3 SCC (Cri)
498], SCC p. 320, para
36; Rattiram v. State of M.P. [(2012) 4 SCC
516 : (2012) 2 SCC (Cri) 481]
and Bhimanna v. State of karnataka,
[(2012) 9 SCC 650 : (2012) 3 SCC (Cri)
1210] .)”
16. The question falling for consideration is whether
non-framing of charge has caused prejudice in the
present case. In order to judge whether a failure of
justice has been occasioned, it is relevant to examine
whether the accused was aware of the basic ingredients
69
of the offence for which he is being convicted and
whether they were explained to him and whether he got
a fair chance to defend. The crux of the issue is whether
in this case, omission to frame charge under Section
302 IPC has vitiated conviction of the appellant-
accused.
18. As seen from the above, charge was not framed
against the appellant under Section 302 read with
Section 34 IPC. But it is for the accused to prove that
omission to frame charge has occasioned in a failure of
justice. Though specific charge under Section 302 read
with Section 34 IPC was not framed, the gist of the
charge-sheet filed against the appellant-accused clearly
shows that the accused has been charged for the
offence under Section 302 read with Section 34 IPC as
seen from the following:
“Sir,
On 3-1-1986, the complainant came to
the Police Station Kotwali and orally
informed that his niece went to take water
from the tap.
She was teased by the accused but they
did not make it an issue due to the respect
in the society. However, there was an ugly
quarrel over there. He pacified his niece. I
70
along with Adil and Akhlaq today were going
to my shop situated at Jogipuraat about 4.00
p.m., when we reached near Lalpur Mandir,
accused mentioned in Column Nos. 2 and 3
were present there. Kamil was carrying a
Danda Nasir was carrying a hockey and
Rashid was carrying knife in their hands.
They surrounded us. They abused my
nephew Adil. Adil protested about abusing
and said that it would not be good if you
continue. On this accused hit my nephew
with danda. I snatched danda from Kamil to
save my nephew. Accused Nasir and Adil
caught hold my nephew and Rashid poked
the knife in his chest. My nephew sat down
on the earth and his condition started
deteriorating. I carried him to hospital where
he died. On the basis of this information
Crime Case No. 2 of 1986 under Sections
302/323/34 IPC. Accused Rashid and others
were arrested and were sent to jail. Accused
Kamil is not available and the investigation is
going on against him. The charge-sheet is
filed under Sections 302/323/34 IPC against
these accused persons. Dated 13-1-1986.”
71
In the charges framed, even if the appellant and
accused Nasir were charged only under Section 323
read with Section 34 IPC, the gist of the charge-sheet
clearly alleges their sharing of common intention in
committing the murder of Akhlaq with the first accused
Rashid.
21. It is also to be pointed out that in the High
Court, the appellant has not raised any grievance as to
non-framing of charge under Section 302 read with
Section 34 IPC and that it has caused prejudice to him.
On the other hand, the learned counsel appearing for
the appellant only contended that the appellant Kamil
ought not to have been convicted by invoking the
principle of vicarious liability enshrined by Section 34
IPC. All these aspects clearly show that the appellant
clearly understood that charge under Section 302 read
with Section 34 IPC has been framed against him and
throughout he has been defending himself only for the
charge under Section 302 IPC. In such facts and
circumstances, it cannot be said that the failure of
justice has occasioned to him and the absence of a
charge under Section 302 read with Section 34 IPC
cannot be said to have caused any prejudice to him.
72
22. In Mohan Singh v. State of Bihar [(2011) 9 SCC
272 : (2011) 3 SCC (Cri) 689], where the appellants
therein for the first time raised the points relating to
errors in framing of charge before the Supreme Court,
this Court held as under: (SCC p. 278, para 14)
“14. In a case where points relating to
errors in framing of charge or even
misjoinder of charge are raised before this
Court for the first time, such grievances are
not normally considered by this Court.
Reference in this connection may be made
to the decision of a three-Judge Bench of
this Court in Mangal Singh v. State of
Madhya Bharat [AIR 1957 SC 199 : 1957
Cri LJ 325] . Imam, J. delivering a
unanimous opinion of the Court held in AIR
para 5 at p. 201 of the Report as follows:
‘5. It was, however, urged that
there had been misjoinder of
charges. This point does not seem
to have been urged in the High
Court because there is no
reference to it in the judgment of
that Court and does not seem to
have been taken in the petition for
73
special leave. The appellants
cannot, therefore, be permitted to
raise this question at this stage.’”
23. It is also pertinent to point out that the appeal
preferred by the similarly situated co-accused Nasir has
been dismissed by this Court. A conviction for the
substantive offence without a charge can be set aside
only if the accused shows that prejudice has been
caused to him and that “failure of justice” has
occasioned thereby. No such argument was ever made
before the trial court or before the High Court. As
discussed above in our considered view, no prejudice
has been caused to the accused nor failure of justice
has been shown to have been occasioned warranting
interference with the impugned judgment.
XI. CONCLUSION
46. On re-appreciation of the entire oral and documentary
evidence on record and in the light of the principles enunciated in
the judgments of the Hon’ble Supreme Court and this Court stated
supra, we answer the points raised in the present Criminal Appeals
as under:
74
st
i) The 1 point raised in these criminal appeals is
answered in the negative holding that the
Accused No.2 has not made out any case to
interfere with the impugned judgment and order
passed by the trial Court in so far as convicting
and sentencing him for the offences punishable
under Sections 143, 147, 148, 302, 307 r/w 149
of IPC.
nd
ii) The 2 point is answered in the affirmative
holding that the Accused Nos.3 to 8 have made
out a case to interfere with the impugned
judgment and order passed by the trial Court in
so far as convicting and sentencing them for the
offence punishable under Section-302 r/w 149 of
IPC, in the facts and circumstances of the case.
rd
iii) The 3 point is answered in the negative
holding that the Accused Nos.3 to 8 have not
made out a case to interfere with the impugned
judgment and order passed b y the trial Court in
75
so far as convicting and sentencing them for the
offences punishable under Sections 143 r/w 149
of IPC, 147 r/w 149 of IPC, 148 r/w 149 of IPC
and 307 r/w 149 of IPC, in the facts and
circumstances of the case.
XII. RESULT
47. For the reasons stated above, we pass the following
order:
(i) Criminal Appeal No.1381/2019 filed by Accused
No.2 – Jaganna is hereby dismissed . The
impugned judgment of conviction and order of
th
sentence dated 5 October 2016 made in S.C.
No.89/2013 on the file of the IV Addl. District and
Sessions Judge, Madhugiri in so far as convicting
and sentencing Accused No.2 for the offences
punishable under Sections 143, 147, 148, 302,
307 r/w 149 of IPC, is hereby confirmed .
(ii) Criminal Appeal No.1869/2016 filed by Accused
Nos.5 and 6; Criminal Appeal No.1870/2016 filed
by Accused No.4; Criminal Appeal No.1913/2016
76
filed by Accused No.3; Criminal Appeal
No.1936/2016 filed by Accused No.8; and Criminal
Appeal No.1939/2016 filed by Accused No.7, are
hereby allowed in part .
(iii) The impugned judgment of conviction and order of
sentence in so far as convicting and sentencing
Accused Nos.3 to 8 for the offence punishable
under Section 302 r/w 149 of IPC, is hereby set
aside . Accused Nos.3 to 8 are hereby acquitted
for the offence punishable under Section 302 r/w
149 of IPC.
(iv) The impugned judgment of conviction and order of
sentence in so far as convicting and sentencing
Accused Nos.3 to 8 for the offences punishable
under Sections 143 r/w 149 of IPC, 147 r/w 149 of
IPC, 148 r/w 149 of IPC, 307 r/w 149 of IPC, is
hereby confirmed .
(v) Accused Nos.3 to 8 are entitled to the benefit of
set off as contemplated under the provisions of
Section 428 of the Code of Criminal Procedure.
(vi) All the sentences shall run concurrently.
77
In view of disposal of the main appeal on merits, all the
pending applications would not survive for consideration and
accordingly the said applications are disposed off .
Sd/-
JUDGE
Sd/-
JUDGE
Gss*