Krishnappa And Others v. State Of Karnataka By Babaleshwara Police Station.

H.L Dattu, J.— Delay condoned and leave granted in SLP (Crl.) No. 5830 of 2012 (Criminal Miscellaneous Petition No. 23190 of 2011). Since both criminal appeals arise out of the common judgment of the High Court, we propose to dispose of the same by this common judgment.

2. These appeals are directed against the common judgment and order passed by the High Court of Karnataka at Gulbarga in State v. Maningappa Sannasiddappagol Criminal Appeal No. 1185 of 2006 dated 16-6-2009, whereby and whereunder, the High Court has reversed the order of acquittal of Accused A-1, A-15, A-16, A-21 and confirmed the order of conviction of Accused A-13 and A-14 passed by the Sessions Judge, Bijapur, in Sessions Case No. 82 of 2002. The appellants are convicted under Sections 302/149 IPC and sentenced to imprisonment for life.

3. The facts of the case, in brief, as put forth by the prosecution are: Shri Bhimappa Biradar (the deceased), the father of the complainant had long-standing enmity with Mansani family and Sirabur family, as 30 years ago, members of Mansani and Sirabur family had murdered the grandfather of the deceased. Subsequently, this enmity further intensified due to political rivalry and their relationship became more hostile.

4. It is the case of prosecution that, at 10.00 a.m on 15-9-2001, the deceased Bhimappa Biradar (for short “Bhimappa”) was sitting on the platform of village well and his son, PW 1 was getting his motorcycle tyres filled with air in the shop of PW 11, situated right opposite to the village well. PW 4 (granddaughter of the deceased) informed Bhimappa (the deceased) that his presence was required in his house; Bhimappa (the deceased) got up and started proceeding towards his house. At that time, Maningappa Sannasiddappagol (A-1) holding axe, Tippanna Ningappa Kundaragi (A-13) holding club, Shivappa Tippanna Kundaragi (A-14) holding axe, Krishnappa alias Kristappa Shashappa Biradar (A-15) holding club, Jaggappa Mallappa Biradar (A-16) holding club, Prakash Mallappa Shirabur (A-17) holding chopper and Malappa Shashappa Biradar (A-21) holding club came running from the side of the well. In response to this, Bhimappa (the deceased) tried to flee away but the above accused persons caught hold of him. Thereafter, the deceased sat down pleading not to assault. A-13 and A-14 unperturbed to the deceased's imploration for mercy, assaulted him with axe due to which the deceased's fingers of hand got cut. He sustained severe head injuries and fell down on the ground. Thereafter, A-1, A-15, A-16 and A-21 dragged Bhimappa (the deceased) to a couple of feet to the road. Then, A-13, A-14 and A-17 again assaulted Bhimappa (the deceased) on the neck, shoulders and legs. The above accused also threatened the bystanders with dire consequences, if any one attempted to intervene to rescue the deceased. Thereafter, A-2 to A-12, A-18 to A-20, A-22 and A-24 came running to the scene and assaulted the deceased with hands and kicked him. After this assault, the above accused persons went away from the scene along with their weapons.

5. After this incident, PW 1 went to his elder brother Venkappa who was constructing a house and from there, they both went to Babaleshwar Police Station at about 11.15 a.m to file a complaint but PSI (SHO), PW 18 was on duty at some other village. On arrival of PW 18, the written complaint of PW 1 was lodged at 12.00 noon. On the basis of said complaint, the first information report dated 15-9-2001 in Crime No. 122 of 2001 was registered and sent to the Court of CJM, Bijapur.

6. Thereafter, all the accused were arrested within a week from the date of incident. Further, recoveries of bloodstained weapons used for the commission of offence were made under a mahazar. The bloodstained clothing of the deceased along with bloodstained weapons were sent to the forensic science laboratory. The serology report and FSL report confirmed that stains on the articles found are of human blood.

7. After investigation, the police charge-sheeted all the accused persons for committing offences punishable under Sections 143, 147, 148, 504, 506 (Part II) and 302 read with Section 149 IPC.

8. The Principal Sessions Judge, Bijapur had taken cognizance of the offence under Section 193 CrPC and registered the case as SC No. 82 of 2002. The learned Judge, on the basis of the allegations made in the charge-sheet, framed the charges against all the accused persons under Sections 143, 147, 148, 504, 506 (Part II) and 302 read with Section 149 IPC. The accused pleaded that they are totally innocent and have been falsely implicated.

9. In order to prove the charges, the prosecution examined 18 witnesses in support of its case. The accused persons did not lead any evidence, whatsoever.

10. The learned Sessions Judge, after recording the statement of the accused persons under Section 313 CrPC and after considering the evidence on record, has come to the conclusion that A-13, A-14 and A-17 are directly responsible for the death of the deceased and therefore, guilty of murder punishable under Section 302 read with Section 149 IPC. The learned Sessions Judge acquitted A-1, A-15, A-16 and A-21 on the ground that their acts are not solely responsible for the death of the deceased as they were merely holding kalli katagi and just prevented the deceased from escaping the assault made by A-13, A-14 and A-17 and further, the post-mortem report does not disclose any abrasion or injury by use of kalli katagi.

11. Aggrieved by the judgment and order so passed by the learned Sessions Judge, the appellants, A-13, A-14 and A-17 preferred Criminal Appeal No. 824 of 2006 before the High Court. Similarly, the State had carried the matter in Criminal Appeal No. 1185 of 2006 before the High Court against the acquittal of A-1, A-15, A-16 and A-21.

12. The High Court, after perusing the entire evidence on record, allowed the appeal filed by the State and found it fit not to accept the conclusion of acquittal arrived by the learned Sessions Judge with regard to acquittal of A-1, A-15, A-16 and A-21, convicting them of charges punishable under Section 302 read with Section 149 IPC and sentencing them to undergo imprisonment for life. The appeal filed by the appellants A-13 and A-14 came to be dismissed and the order of conviction and sentence passed by the learned Sessions Judge was confirmed by the High Court. The High Court has allowed the appeal filed by A-17 (Prakash Mallappa Shirabur) and the conviction passed against A-17 was set aside and he was acquitted. Feeling aggrieved by this judgment of conviction and order Criminal Appeal No. 1185 of 2006 of sentence passed by the High Court, the present appellant-accused are before us in these appeals.

13. Shri T.S Doabia, learned Senior Counsel appears for Accused A-1, A-15, A-16 and A-21 and Accused A-13 and A-14 are represented by Ms Rajani K. Prasad. Ms Anitha Shenoy, learned counsel appears for the State of Karnataka.

14. Shri T.S Doabia, learned Senior Counsel contends that the view taken by the trial court was just and proper and the High Court ought not to have interfered with an order of acquittal. The learned Senior Counsel also submitted that the trial court in its judgment has given plausible and cogent reasons for acquitting these accused as there was no overt act on their part which has caused the death of the deceased in terms of Section 149 IPC. He would submit that these accused were just carrying kalli katagi and had not dealt any blow by their kalli katagi on the deceased and this fact is corroborated by the post-mortem report of the deceased. Therefore, they are not responsible for the murder of the deceased and deserves to be acquitted. He would submit that PW 1's evidence as an eyewitness is under serious doubts because PW 9 in his deposition says that PW 1 and his brother came to the spot after 30 minutes of the occurrence of the offence and asked him to accompany them to police station to file a complaint. He would further submit that there are contradictions in the statements of the eyewitnesses regarding the arrival of the accused on the spot. PW 1 stated that the accused came from behind the bench of the well. PW 3 stated that they came from behind the road. PW 4 says they came from back side of the well, whereas, PW 2, PW 5 and PW 6 stated that they came from the right side of the well. He would further contend that there is another contradiction in the depositions of the eyewitnesses with respect to the fact whether the deceased was dragged or lifted to the road after the initial assault on his body. The statements of PW 1, PW 3, PW 4 and PW 6 shows that the deceased was dragged to the road but the statements of PW 2 and PW 5 show that the deceased was lifted to the road.

15. Shri Doabia would rely on the decisions of this Court in Sahdeo v. State of U.P (2004) 10 SCC 682 and State of U.P v. Kishanpal (2008) 16 SCC 73 in support of his submissions.

16. Ms Rajani K. Prasad, learned counsel would submit that there is a delay in registering the FIR and subsequent delay in submitting the same to the court. She would contend that the incident took place at 10.00 a.m in the morning but the FIR was registered at 12.00 noon, after two hours of the occurrence of such a grievous nature of incident. She would further submit that this FIR was delivered to the Court of CJM, Bijapur at 6.45 p.m, after much unexplained delay, in order to manipulate the facts of occurrence of offence.

17. Per contra, Ms Anitha Shenoy, learned counsel appearing for the State would submit that Section 149 IPC would squarely apply to the accused in the present case as once the membership of unlawful assembly is established, then, every member of the group is vicariously liable. She would submit that the testimony of all the eyewitnesses unanimously depicts that all the accused were carrying weapons and have taken active participation in the occurrence of the offence. She would submit that the incident occurred in a very short span of time, therefore any parrot-like version cannot be expected from the eyewitnesses. She would submit that the statement under Section 166 CrPC was recorded on the same day of the incident. She would further submit that FIR mentions the name of all the accused persons and this has been further corroborated by two independent witnesses and one witness is related to both the complainant and the accused. She would also submit that kalli katagi has been recovered from Accused A-1, A-15, A-16 and A-21, who had prevented the deceased from escaping the assault from A-13, A-14, A-17 and they further dragged the deceased towards the road after the first assault and thereby facilitated A-13 and A-14 for assaulting the deceased for the second time.

18. In response to the submissions of Shri Doabia that PW 1 came later to the scene, Ms Shenoy would contend that PW 1 came back to the scene after half an hour along with his brother as explained by PW 9 in his deposition and this was certainly not the first time he came to the spot. She would further submit that there is no delay in filing the FIR as the complainant had to travel nearly 30 km on the mud road to reach the police station and thereafter, he waited for half an hour for the Sub-Inspector of Police to arrive at the police station.

19. In the backdrop of aforesaid arguments advanced by the parties, we will examine the contentions advanced by the learned counsel for the parties with regard to the role of the accused and application of Section 149 IPC.

20. It is now well-settled law that the provisions of Section 149 IPC will be attracted whenever any offence committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or when the members of that assembly knew that offence is likely to be committed in prosecution of that object, so that every person, who, at the time of committing of that offence is a member, will be also vicariously held liable and guilty of that offence. Section 149 IPC creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. This principle ropes in every member of the assembly to be guilty of an offence where that offence is committed by any member of that assembly in prosecution of common object of that assembly, or such members or assembly knew that offence is likely to be committed in prosecution of that object. (Lalji v. State of U.P (1989) 1 SCC 437, Allauddin Mian v. State of Bihar (1989) 3 SCC 5, Ranbir Yadav v. State of Bihar (1995) 4 SCC 392.)

21. The factum of causing injury or not causing injury would not be relevant, where the accused is sought to be roped in with the aid of Section 149 IPC. The relevant question to be examined by the court is whether the accused was a member of an unlawful assembly and not whether he actually took active part in the crime or not. (State of U.P v. Kishan Chand (2004) 7 SCC 629 and Deo Narain v. State of U.P (2010) 12 SCC 298)

22. We have carefully perused the relevant records and statements of the eyewitnesses in the case. In our opinion, the prosecution has clearly established with ample evidence that Accused A-13 and A-14 had murdered the deceased. We are in agreement with the view taken by the trial court and the High Court. Therefore, the High Court is right in dismissing the appeal against the order of conviction passed by the learned Sessions Judge.

23. We are also of the opinion that Accused A-1, A-15, A-16 and A-21 were members of the same assembly which has caused the murder of the deceased, in terms of Section 149 IPC, as they had dragged the deceased after first assault and contributed in preventing the deceased from escaping the assault of A-13 and A-14. Therefore, Accused A-1, A-15, A-16, A-21 are guilty of murder along with A-13 and A-14 under Section 302 read with Section 149 IPC.

24. We are afraid that the decisions relied on by Shri Doabia, learned Senior Counsel would not come to assist the accused, as in the present case, there is clear evidence of overt act on the part of Accused A-1, A-15, A-16 and A-21 who dragged the deceased and prevented him from escaping the fatal assault to his body.

25. Moreover, the delay in registering FIR is justified as the complainant had to travel 30 km on a mud road to reach the police station from the scene of crime. Also, the absence of SI in the police station further contributed to delay in registering the FIR.

26. In the result, we do not find any infirmity in the impugned judgment and order Criminal Appeal No. 1185 of 2006 passed by the High Court. Therefore, these appeals deserve to be dismissed and, accordingly, they are dismissed. Ordered accordingly.