Sri Ramesh Vs. State Of Karnataka

R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE17H 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 AND19392016 IN CRL.A. No.1869/2016: BETWEEN:

1. ASHOK C.R., S/O RANGAIAH @ PANCHE RANGAIAH, AGED ABOUT31YEARS, 2. MALLIKARJUNA S/O SIDDALINGAPPA, AGED ABOUT35YEARS. 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 ABOUT38YEARS, 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, AGED53YEARS, 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 ABOUT50YEARS, 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 ABOUT29YEARS, R/OF CHENNAVADERAHALLY, KORATAGERE TALUK, TUMKUR DISTRICT. PIN57212. …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 ABOUT37YEARS, R/OF CHENNAVADERAHALLY, KORATAGERE TALUK, TUMKUR DISTRICT. PIN57212. …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 SECTION3742) OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE THE IMPUGNED

OF CONVICTION AND

OF SENTENCE, DATED0510.2016 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 SECTIONS143 147, 148, 302, 307 READ WITH149OF 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:

JUDGMENT

These criminal appeals are filed by the appellants - Accused Nos. 2 to 8 against the impugned judgment of conviction and order of sentence dated 5th 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 CASE2 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 COURT6 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 AND3IN 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 AND6IN 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 No.880/2015 and connected matters decided on 15th December 2020. V. ARGUMENTS ADVANCED BY SRI CHANDRASHEKAR R.P., LEARNED COUNSEL FOR ACCUSED NOS.4 AND7IN CRIMINAL APPEAL NOS.1870/2016 AND19392016 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 SCC33(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 STATE15 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 CONSIDERATION17 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 by 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 UPON19 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 Panchayath 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 panchas 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. CONSIDERATION20 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 Panchayath 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 Panchayath 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 15th 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 SCC33 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 PW8- Mullo Bai recorded under Section 161 Cr PC 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 PW8- 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 - PW8and whether PW8is 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 PW8is 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. PW8in her statement recorded under Section 161 Cr PC 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 Cr PC 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 PW8is 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 PW8has supported the case of the prosecution. Though, according to PW8 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 Cr PC. The High Court has observed relying upon her statement recorded under Section 161 Cr PC 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 Cr PC 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 Cr PC 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 PW8recorded under Section 161 Cr PC while observing that the appellants were having the lathis. 13.2. As observed hereinabove in her statement under Section 161 Cr PC, 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 PW8 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 PW8 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, PW8is consistent in her statement under Section 161 Cr PC 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 PW8recorded under Section 161 Cr PC 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 Cr PC 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 SC116 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 SCC600 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 SC116:

1956. Cri LJ291 and Gurbachan Singh [Gurbachan Singh v. State of Punjab, AIR 1957 SC623:

1957. Cri LJ1009 , this Court in Main Pal v. State of Haryana [Main Pal v. State of Haryana, (2010) 10 SCC130: (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 SCC577:

2001. SCC (Cri) 358]. , this Court considered the meaning of the expression “failure of justice” occurring in Section 464 Cr PC. 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 SCC166:

1989. SCC (Cri) 513]., State of A.P. v. Thakkidiram Reddy (1998) 6 SCC554:

1998. SCC (Cri) 1488, Dalbir Singh v. State of U.P. [(2004) 5 SCC334:

2004. SCC (Cri) 1592]., Dumpala Chandra Reddy v. Nimakayala Balireddy (2008) 8 SCC339: (2008) 3 SCC (Cri) 493 and Sanichar Sahni v. State of Bihar (2009) 7 SCC198: (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 SCC476: (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 Cr PC, 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 SCC300: (2011) 3 SCC (Cri) 498]., SCC p. 320, para 36; Rattiram v. State of M.P. [(2012) 4 SCC516: (2012) 2 SCC (Cri) 481]. and Bhimanna v. State of karnataka, [(2012) 9 SCC650: (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. I70along 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 SCC272: (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 SC199:

1957. Cri LJ325 . 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. CONCLUSION46 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. i) The 1st 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. ii) The 2nd 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. iii) The 3rd 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 by 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. RESULT47 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 sentence dated 5th 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*