Munishamappa Vs State of Karnataka

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 96-97 OF 2011

MUNISHAMAPPA & ORS. .....APPELLANTS

Versus

STATE OF KARNATAKA .....RESPONDENT

WITH

CRIMINAL APPEAL NOS. 995-996 OF 2011

LAKSHMANA & ORS. .....APPELLANTS

Versus

STATE OF KARNATAKA .....RESPONDENT

WITH

1

CRIMINAL APPEAL NOS. 622 OF 2011

RANI .....APPELLANT

Versus

VENKATESHAPPA & ORS. .....RESPONDENTS

WITH

CRIMINAL APPEAL NOS.1362-1363 OF 2011

VENKATESHAPPA & ORS. .....APPELLANTS

Versus

STATE BY MALUR POLICE ETC. .....RESPONDENTS

Dr DHANANJAYA Y CHANDRACHUD, J

1 By a judgment dated 31 October 2003, the Principal Sessions Judge, Kolar

acquitted eleven persons who were tried for offences under Sections 143, 148,

323, 324 and 302 read with Section 149 of the Indian Penal Code 1860 (“penal

code”) and Sections 3, 4 and 5 of the Explosive Substances Act 1908. The State

challenged the order of acquittal in a criminal appeal while the injured

complainant assailed the acquittal in a criminal revision. By its judgment dated 14

2

September 2010, the Karnataka High Court allowed the appeal in part and

convicted ten of the accused (accused Nos 1 to 4, 6 to 8 and 10 to 12 before the

Trial Court) of offences punishable under Section 304 Part I read with Section

149 of the Penal Code and sentenced them to rigorous imprisonment for a period

of seven years each. Further, each of them was convicted under Section 324

read with Section 149 of the Code and sentenced to suffer rigorous imprisonment

for a period of one year with a fine of Rs.5000/- and in default, to suffer simple

imprisonment for three months.

2 In these proceedings, three sets of criminal appeals have been filed by the

ten accused.1 The original complainant, PW 1 has filed a criminal appeal2

primarily against the judgment of the High Court finding the accused guilty under

Section 304 Part I read with Section 149 instead Section 302. A plea for

enhancement of sentence was also made.

3 The genesis of the incident, as it emerges from the evidence, is that

Gopalappa and Bachappa (accused No. 5 since deceased) were brothers. They

were living separately. Accused No. 1 (Venkatesappa), accused No. 2 (Nagappa),

accused No. 3 (Dhanegowda), accused No. 4 (Munishamappa), accused No. 6

(Lakshmana), accused No. 7 (Shekar), and accused No. 8 (Srinivasa) are sons of

accused No. 5. Accused No. 10 is the wife of accused No. 2, while accused No.

12 is the wife of accused No. 1. The daughter of accused No. 1, Bhagayamma

1 Criminal Appeal Nos. 995-996 of 2011 is by accused Nos. 6, 10, 11 and 12. Criminal Appeal No. 1362 of 2011 is by accused Nos. 1 to 3 and Criminal Appeal Nos. 96-97 of 2011 is by accused Nos. 4, 7 and 8.

2 Criminal Appeal No. 622 of 2011 3

(accused No. 9) was tried as a juvenile. The family tree of the accused appellants

is depicted below:

A5- Bachappa (D) brother of Gopalappa CW29 (NE)

Venkatesappa Nagappa Dhanegowda Munishamappa Lakshmana Shekar Srinivasa

A1 A2 A3 A4 A6 A7 A8

Wife (Munithayamma) 1st Wife Lalithamma

A12 A10

Daughter (Bhagyamma) 2nd Wife (Sumithramma) A9- Juvenile A11

The family tree on the side of the prosecution witnesses is depicted below for the

sake of clarity:

CW29 Gopalappa (Grandfather of PW1) (NE) CW 25 Venkatamma (Grandmother of PW1) (NE)

Krishnappa (D1) Kenchappa(D2) Govindappa Narayanansamy Anjanappa (PW5) Sriramappa (Father of PW1) (PW6) (PW2) (PW4)

Wife (Shivamma) (PW13) Wife (Bhagayamma)

(PW7)

Daughter (PW1) Rani

4

4 Kenchappa and Krishnappa, who died a homicidal death, were the sons of

Gopalappa (CW 29). There was a dispute between Gopalappa and his brother

Bachappa (accused No. 5) and a civil litigation over several decades had ensued

amongst them in regard to their ancestral property. The relationship between the

families was strained and they were not on talking terms. A vacant site separates

the houses of CW 29 and accused No. 5.

5 On 15 March 1995, at about 8:30am, officials of the Survey Department,

including PW 19 visited Nallappanahalli village for a survey of the houses. The

survey of the house belonging to accused No. 5 was completed. Between 10 am

and 10:30 am, the survey officials came to survey the house of CW 29. At that

stage there was a verbal exchange between accused No. 5, Krishnappa and CW

29, during the course of which, accused No. 5 sought to prevent survey of the

house of CW 29 on the ground that there was a dispute in regard to the property

in the civil court. There was an altercation between the two sides as a result of

which the survey officials left the location. Subsequently, at around 12 noon, the

accused came to the house of CW 29, allegedly armed with deadly weapons

including a baku, knife, cycle chain and explosives. The case of the prosecution is

that accused No. 1 assaulted Krishnappa with a dagger. Accused No. 6 assaulted

him with a cycle chain. As a result, Krishnappa sustained severe injuries and

collapsed on the ground. Kenchappa, who was standing near Krishnappa was

assaulted with a knife in the stomach by accused No. 3. Accused No. 2 was

handling an explosive, which he threw on the road which injured Sriramappa. After

exploding the bomb, accused No. 2 tried to run away but in that attempt, he fell

5

and the bomb which he was carrying in his pocket, exploded. As a result of this,

he sustained injuries. The case of the prosecution is that accused No. 4 assaulted

CW 29. Accused No. 6 assaulted Krishnappa with a cycle chain. Accused Nos. 7

and 11 assaulted PW 7 while accused No. 8 assaulted CW 4 with a cycle chain. A

role is sought to be ascribed to three women i.e. accused Nos. 10, 11 and 12 from

the family who are alleged to have assaulted the side of the complainants with

clubs. Both Kenchappa and Krishnappa died as a result of the injuries suffered by

them in the incident.

6 The First Information Report (FIR) was lodged by PW 1 Rani (the

complainant) at 14:15 hours on the date of the incident at the Malur circle police

station. The prosecution examined twenty five witnesses in order to establish its

case. The defence of the accused was of total denial. The complainant was

examined as PW 1. PWs 3, 5, 6 and 7 are injured witnesses. They, together with

PW 1, are crucial eye-witnesses on which the case of the prosecution has turned.

PW 20 - Dr K Srinivasan examined the injured prosecution witnesses as well as

the injured accused. PW 20 also conducted the post-mortem.

7 The Trial court acquitted all the accused of the charge of having committed

the murder of the two deceased. After evaluating the evidence of the prosecution

witnesses, the Trial court observed thus:

“A careful perusal of the cross-examination of PW 4

Anjanappa, PW 5 Srirammappa, PW 6 Govindappa, PW 7

Bhagyamma, PW 8 Krishnappa and PW 13 Shivamma clearly

demonstrates that the accused persons did not come to their

6

house armed with deadly weapons. It was only after hot

exchange of words started between A1 and the deceased

Krishnappa, then the remaining accused persons stated to

have entered the scene of offence. However, the evidence of

these witnesses uniformly indicates that A1 stabbed with a

baku on the right shoulder of Krishnappa and A6 hit with a

cycle chain on the back of deceased Krishnappa. A3 stabbed

with the knife on the abdomen of Kenchappa, it pierced

towards his back. Further it is also uniformly states A2 hurled

a hand bomb, it exploded, due to which PW5 Sriramappa

sustained injuries. When A2 tried to run, he fell into the

roadside ditch. Another hand bomb, which he was holding,

exploded and therefore A2 himself sustained injuries on both

the thighs. In this way it is stated by all these witnesses that

deceased Krishnappa and deceased Kenchappa were

murdered by these accused persons.”

However, the Trial Court came to the conclusion that the accused were entitled to

acquittal for the following reasons :

(i) The evidence of PW 20 indicated that accused Nos. 2, 3, 4 and 5 had

sustained injuries in the course of the incident. The injuries which were

sustained by the accused were severe in nature. This indicates that the

incident had taken place in the course of a free fight between the families

of Gopalappa and Bachappa; (ii) Except for explaining the injury which was sustained by accused No. 2,

PWs 1 to 8 and 13 gave no explanation as to how the injuries were

sustained by accused Nos. 2 to 4; (iii) A cross complaint by accused No. 4 to the Malur Police Station against PW

3 was registered as Crime No. 112 of 1995 in which a B-final report was

7

submitted in 1999 to the JMFC, Malur. The prosecution has not explained

the circumstances in which the B summary report was submitted; (iv) In the absence of an explanation by the prosecution witnesses of the

injuries sustained by the accused, their evidence “loses credence” and an

inference must be drawn that the prosecution witnesses have suppressed

the truth; (v) The evidence of PW 20 Dr K Srinivasan indicates that the injury sustained

by Krishnappa extended from the left loin to the lower border of right

scapula. Since the deceased was 6 feet in height, if he was hit with a

weapon like MO 5 by accused No. 1 whose height was 5.1 feet, the nature

of the injury would not have been slanting but vertical; (vi) The Investigating officer had not collected the bloodstained earth for

analysis; (vii) While the case of the prosecution is that Krishnappa was stabbed with a

knife, what has been seized was a baku or dagger which is stated to have

been used to stab him, which was marked as MO 5; and (viii) CW 29, who was one of the eye-witnesses, had not been examined.

Besides, there were certain contradictions in the evidence of PW 3 and

PW 4.

8 The High Court, in the course of its judgment, adverted to the principles

which it was required to follow in an appeal against acquittal, formulating them in

the following terms :

“1. In an appeal against acquittal, the Appellate Court would

be slow in reversing the judgment of the Trial court unless

miscarriage of justice has thereby ensued.

2. The Appellate Court would not interfere with the order of

acquittal even if, based on the evidence on record two

8

views are possible and the view taken by the Trial court is

equally plausible.

3. If the Appellate Court finds that the appreciation of

evidence by the Trial court is without evidence or

capricious or against the interest of justice, then only the

Appellate Court would venture to reverse the order of

acquittal.

4. If after appreciation of the evidence, the Appellate Court

independently finds that order of acquittal is not in

accordance with law and the conclusion arrived at by the

Trial court are not based on the correct appreciation of the

evidence on record, and the incident cannot be explained

except with the guilt of the accused and is totally

inconsistent with the innocence of the accused, in such

cases only the Appellate Court would reverse the order of

acquittal.”

9 After analyzing the evidence on the record, the High Court held that the

version of PW 1 specifically mentions the presence of lethal weapons and the

presence of explosive substances in the hands of accused No. 2. Moreover, it

was specifically stated that accused No. 2 was injured, as the explosive

substances in his custody exploded as he was fleeing. In the view of the High

Court, the evidence of the injured eye-witnesses namely PWs 3, 5, 6, and 7

adverted to the overt acts of each of the accused. PWs 2, 4, 8 and 13 were eye-

witnesses to the incident. The evidence of the injured eye-witnesses could not be

lightly brushed aside. The High Court noted that none of the injured witnesses

were armed with any weapons at the time of the offence. On the other hand, the

accused were in possession of weapons including baku, knife, cycle chain and

clubs. Hence, it was proved that the accused had taken part in the incident on the

9

date of the offence and had caused the death of two persons and injuries on four

others. As regards the alleged failure of the prosecution to explain the injury on

the accused, the High Court noted that the FIR adverts to the injury sustained by

accused No. 2. As far as the other injured accused were concerned, the police

filed a B-report, which was accepted by the Magistrate and had not been pursued

further by the accused. While reversing the acquittal of the accused, the High

Court nonetheless noted that there was an age old enmity between the side of

the accused and the family of the deceased, as a result of which a quarrel took

place and the offence cannot be regarded as having been committed with an

intention to cause the death of the deceased. The High Court held that having

regard to the nature of the weapons in their custody, the accused would have the

knowledge that their acts would cause the death of Kenchappa and Krishnappa.

Hence, the conviction was ordered under Section 304 Part I, besides the

conviction under Section 324, both read with Section 149.

10 Assailing the judgment of the High Court, Shri V Krishnamurthy, learned

Senior Counsel appearing on behalf of the accused appellants urged the

following submissions:

(i) In an appeal against acquittal, the High Court has not found the judgment of

the Trial court to be either perverse or resulting in a miscarriage of justice. The

presumption of innocence gets fortified by the acquittal of the accused by the Trial

court;

(ii) The High Court has transgressed the settled principles which govern an

appeal against acquittal; and

10

(iii) The evidence indicates that accused Nos. 2, 3, 4 and 5 were seriously

injured during the course of the incident. Except for the explanation of the

injury sustained by accused No. 2, the prosecution has failed to explain the

injuries caused to the rest of the accused persons. This constitutes a serious

omission which casts a doubt on the theory propounded by the prosecution.

The decision of this Court in Lakshmi Singh v State of Bihar3 (Lakshmi

Singh) governs the field on the basis of which the accused are entitled to

acquittal.

11 On the other hand, learned counsel appearing on behalf of the State urged

the following submissions:

(i) The judgment of the Trial court is primarily founded on the hypothesis that the

injuries sustained by the accused were not explained. Of the four injured

accused, the evidence elaborately explains that accused No. 2 was injured

while handling the explosive substances which he was carrying;

(ii) As regards the injuries sustained by the other accused, they are relatively of a

minor nature. Besides, the judgments of this Court subsequent to the decision

in Lakshmi Singh (supra) which is relied upon by the accused appellants,

indicates that the prosecution is not bound to explain every injury, if any,

sustained by the accused and the decision must turn on the facts and

circumstances including the nature of the weapons which the accused were

carrying;

(iii)The judgment of the Trial court suffers from a clear perversity of approach.

Besides the manifest error in appreciating the legal position as adverted to

3 (1976) 4 SCC 394 11

above, the Trial court has failed completely to assess correctly the clear and

cogent accounts of the injured eye-witnesses; and

(iv) The injured eye-witnesses and PW 1 have furnished a consistent account of

the nature and genesis of the incident and the role of each accused. The High

Court was, in these circumstances, entirely justified in reversing the judgment

of acquittal.

12 Supporting the submissions which have been urged on behalf of the State,

Mr Shekhar G Devasa, learned counsel appearing for the complainant PW 1

submitted that:

(i) Except for the evidence of PW 1, the Trial court did not correctly evaluate the

nine eye-witnesses including the four (PWs 3, 5, 6 and 7) who were injured;

(ii) The subsequent decisions of this Court have clarified the position in law and it

is now well settled that the question as to whether there was a failure on the

part of the prosecution to explain the injuries sustained by the accused must be

evaluated in the context of the nature of the injuries, the weapons wielded by

the accused and all relevant facts and circumstances;

(iii)The present case in fact does not warrant the application of Section 304 Part I

and a clear case of an offence under Section 302 of the Code has been made

out; and

(iv) The High Court had correctly applied the provisions of Section 149 of the

Code and a common object emerges on the basis of the evidence on the

record.

13 The rival submissions now fall for analysis:

12

14 The High Court in the present case was dealing with an appeal against

acquittal. In such a case, it is well settled that the High Court will not interfere with

an order of acquittal merely because it opines that a different view is possible or

even preferable. The High Court, in other words, should not interfere with an

order of acquittal merely because two views are possible. The interference of the

High Court in such cases is governed by well established principles. According to

these principles, it is only where the appreciation of evidence by the Trial Court is

capricious or its conclusions are without evidence that the High Court may reverse

an order of acquittal. The High Court may be justified in interfering where it finds

that the order of acquittal is not in accordance with law and that the approach of

the Trial court has led to a miscarriage of justice. The High Court, however, must

be satisfied that the incident cannot be explained except on the basis of the guilt

of the accused and is inconsistent with their innocence.

15 In the present case, PW 1, who is the daughter of Krishnappa, deposes that

there was a long-standing dispute between the families of the two brothers:

Bachappa (accused No.5) and Gopalappa (CW 29). Litigation ensued. On the

date of the incident, at about 8:30 am, the officials from the Survey Department

came to conduct a survey. After the house of CW 29 was surveyed, they

proceeded to the house of accused No. 5, his brother. Accused No. 5 intervened

to oppose the survey at which stage a heated exchange of words took place

between Krishnappa and accused No. 5. In view of the verbal altercation, the

survey officials left the scene. Later on, before noon, the accused returned to the

scene, armed with lethal weapons. PW 1 deposed that accused No. 1 stabbed her

13

father Krishnappa and accused No. 6 assaulted him with a cycle chain. As a

result, Krishnappa collapsed in a pool of blood. His brother Kenchappa, who was

standing near him, was stabbed by accused No. 3 as a result of which, his

intestines came out. PW 1 narrated the course of the incident and the manner in

which the other accused had assaulted the members of the family of the

prosecution witnesses. Accused No. 2 was holding a bomb and threw it on the

road in front of the house of CW 29, as a result of which the eyes, face and hands

of Sriramappa were burnt. After exploding the bomb, accused No. 2 attempted to

flee from the scene. At this stage, another bomb which was in his pocket

exploded, as a result of which he suffered injuries. Following the incident, at 12

noon the two deceased were transported in a bullock-cart for admission at Malur

hospital. The remaining injured persons were also taken to the hospital. PW 1,

together with her maternal aunt, walked to the Malur police station to lodge the

complaint. The weapon of offence namely, baku was recovered and marked as

MO 5. The account of the incident furnished by PW 1 has been corroborated in

the testimonies of the other eye-witnesses. Among them, PWs 3, 5, 6 and 7 are

injured eye-witnesses.

16 Along with PW 1, PWs 2 to 8 and 13 have deposed that Krishnappa

stabbed Kenchappa on his right shoulder with a baku. PWs 1 to 7 and 13 deposed

that accused No. 2 hit CW 25 on her right arm/shoulder with a knife. PWs 1 to PW

8 and PW 13 testified that accused No. 2 threw a bomb on the road which

exploded, causing injuries to PW 5. They have also testified that accused No. 3

stabbed Kenchappa, on his stomach with a knife, in such a manner that it

protruded out of his back. It was further stated that accused No. 3 stabbed CW 29

14

in the abdomen with a knife and assaulted PWs 3, 6 and 7 with a knife. PWs 1, 4,

5 and 6 deposed that accused No. 4 assaulted CW 29 on the back with a club.

PW 7 deposed that accused No. 4 hit her on the back with a club. PWs 1, 2, 3, 5,

6 and 13 deposed that accused No. 6 assaulted Krishnappa with a cycle chain.

PWs 1, 4, and 5 have deposed that accused No. 7 assaulted PW 7 with a club.

PWs 1, 3, 4 and 13 deposed that accused No. 8 hit PW 3 on his back with a cycle

chain. PWs 3 and 4 deposed that accused No. 11 had a club and PWs 1, 2, 5 and

7 deposed that accused No. 11 assaulted CW 26 with a club. There is no

consistency in the deposition against accused Nos. 10 and 12. PW 1 deposed that

accused No. 10 hit CW 29. PW 4 deposed that accused No. 10 had a club and

PW 2 deposed that accused No. 10 hit CW 4 and CW 26 with a club. PW 1

deposed that accused No. 10 kicked CW 29 with the foot. PW 1 deposed that

accused No. 12 hit CW 29 and PW 4 deposed that accused No. 12 hit CW 25 with

a club.

17 PW 20 Dr Srinivasan examined these injured eye-witnesses on the date of

the incident. His evidence indicates the nature of the injuries to be as follows:

“PW 3 : Dhanegowda

1. An irregular 1 c.m. cut injury superficial over the left

deltoid (shoulder).

2. A contusion of 3”x ½” over medial aspect of left scapula.

3. An irregular contusion of 7” x ½” running across from the

top of right scapula to left loin.

4. An ½” length clean cut injury by scalp depth over vertex.

5. Another contusion 2 ½ x ½” over left chest.”

“PW 5 : Sriramappa

1. A clean cut injury over vertex 1 ½ “ x scalp depth.

2. An irregular wound 1’ x superficial depth over left bizen.

15

3. A contused abrasion of 1.5 c.m. above both medial end of

eyebrows.

4. 4-5 pellet injuries over the chest.

5. A clean cut injury across left thigh 1” superficial depth.”

“PW-6 : Govindappa

1. A clean cut injury 1” in length to the left of 3-9 vertebra

cutting the erecto spine longitudinally to the left the

midline.”

“PW-7 : Bagayamma

1. ¾” superficial cut injury over dorsum of right hand wrist.

2. 1 c.m. superficial cut injury diskful to it.

3. Tenderness over left buttock.”

PW 20 opined that the injuries on the body of the injured persons may be caused

by means of a knife or a baku, the contusion caused by clubs and the irregular

injuries by means of a cycle chain. Venkatamma (CW 25) and CW29 were

included among other members of the family whose injuries were examined by

PW 20.

18 PW 20 conducted the post-mortem of the body of Krishnappa which

revealed external and internal injuries. He deposed thus:

“..On examination I found the following external injuries:

1. An interrupted long contused abrasion of 10” x ½”

extending from left loin to the lower border of right

scapula lateral end.

2. A penetrating clean cut injury of 1 1/2” x ½” width is seen

over the mid right supra scapula force with inverted edges

vertically with tilling edge below.

The above injuries are antemortem in nature.

16

On dissection of the chest a vertical clean cut 1 ½” x ½” injury

present over the mid right supra scapular area with a tailing

left edge with everted edges seen inside with 200 ml. of blood

in the right hemithorax. Right lung is shrunken.

Lung:- A clean cut vertically over the abical segment of right

lung. Right upper lob has a penetrating injury which has

extended upto the medial segment of middle lobe cutting the

branchiol, veils and arteries.

The other parts of the body were intact and pale.

I am of the opinion that the death was a result of peripheral

circulatory failure due to haemorrhage as a result of injury to

the lung. I have issued PM report vide Ex.P.16. Ex.P.16(a) is

my signature.

The injuries found on the body of deceased Krishnappa can

be caused by means of weapon like MO 5.”

Similarly, the post-mortem examination of the body of Kenchappa by PW 20

revealed the following injuries:

“1. A vertical clean cut perforating injury with inverted edges

2” lateral and above the umbilicus of 1 ½” x ½” gape is

present with 1” contusion of lateral inferior angles of the

wound through which 10” of small intestine has come out.

The injury has perforated the tomentum. The ascending colon

and descending part of duodenum and ¼” in length. The exit

wound is present on the back 1 ¾” lateral to midline and has

cut in transverse pro cess of L1 vertebra and is 1” in length

with ½” gape and has everted edges.

The all the injuries are anti mortem in nature.

On internal examination of the abdomen perforating wound

present as described above. Peritoneum and tomentum has

been perforated.

Duodenum in its descending part has been pierced and is ¼”

in length anterior to right kidney. The ascending part has

been pierced and it is one quarter inch in length anterior to

right kidney.

A liter of blood is seen in the abdominal cavity in left flank.

17

Right kidney has been cut through and through at the junction

with hylum, measures ¼” in length.

All other parts of the body were intact and normal and pale. I

have issued the PM report vide Ex.P.17. Ex.P.17(a) is my

signature.

I am of the opinion that the death was as a result of Shock,

Massive Haemorrhage due to injury to vital organ Kidney.”

Krishnappa had suffered serious injuries to his lungs and the medical evidence

indicates that he died due to circulatory failure. Kenchappa had suffered injuries

on his kidney and died as a result of shock and haemorrhage.

19 The Trial court, as we have noted earlier, was persuaded despite this state

of the evidentiary record to acquit the accused primarily on the ground that the

injuries on the accused (except accused No. 2) had not been satisfactorily

explained. In Lakshmi Singh (supra), a two judge Bench of this Court held thus:

“12...Indeed if the eyewitnesses could have given such

graphic details regarding the assault on the two deceased

and Dasain Singh and yet they deliberately suppressed the

injuries on the person of the accused, this is a most important

circumstance to discredit the entire prosecution case. It is well

settled that fouler the crime, higher the proof, and hence in a

murder case where one of the accused is proved to have

sustained injuries in the course of the same occurrence, the

non-explanation of such injuries by the prosecution is a

manifest defect in the prosecution case and shows that the

origin and genesis of the occurrence had been deliberately

suppressed which leads to the irresistible conclusion that the

prosecution has not come out with a true version of the

occurrence”

18

The decision in Lakshmi Singh has been considered in a later judgment of this

Court in Amar Malla v State of Tripura4. A two judge Bench this Court held thus:

“9...From the nature of injuries said to have been received by

these accused persons, it would appear that the same were

simple and minor ones. It is well settled that merely because

the prosecution has failed to explain injuries on the accused

persons, ipso facto the same cannot be taken to be a ground

for throwing out the prosecution case, especially when the

same has been supported by eyewitnesses, including injured

ones as well, and their evidence is corroborated by medical

evidence as well as objective finding of the investigating

officer.”

The same principle has been followed by another Bench of two judges in State of

M P v Ramesh5 where it was held that:

“11...Non-explanation of the injuries sustained by the accused

at about the time of occurrence or in the course of altercation

is a very important circumstance. But mere non-explanation

of the injuries by the prosecution may not affect the

prosecution case in all cases. This principle applies to cases

where the injuries sustained by the accused are minor and

superficial or where the evidence is so clear and cogent, so

independent and disinterested, so probable, consistent and

creditworthy, that it far outweighs the effect of the omission on

the part of the prosecution to explain the injuries.

(See Lakshmi Singh v. State of Bihar [(1976) 4 SCC 394 :

1976 SCC (Cri) 671 : AIR 1976 SC 2263] ).”

In Raghubir Singh v State of Rajasthan6, a two judge Bench of this Court held

thus:

4 (2002) 7 SCC 91 5 (2005) 9 SCC 705 6 (2011) 12 SCC 235 19

“14...each and every injury on an accused is not required to

be explained and more particularly where all the injuries

caused to the accused are simple in nature (as in the present

case) and the facts of the case have to be assessed on the

nature of probabilities...”

The evidence of PW 20 notes the injuries which were sustained by accused No. 2

thus:

“1. A white blast injury tearing of the skin cub-cutaneous

tissue and partly of quadriceps muscle covering almost entire

half of left thigh with profused bleeding a doubtful fracture of

left femur.

2. Multiple pellet wounds are present over left inguinal area in

lower left iliac area and supra pubic area.”

These injuries have been duly explained in the evidence of the prosecution

witnesses as having been sustained when the bomb which accused No. 2 was

carrying exploded in the course of the incident. The injuries sustained by the

other accused were evidently simple injuries. The pellet injuries suffered by

accused No. 3 were traceable to the bomb blasts caused by accused No. 2. The

injuries suffered by accused Nos. 4 and 5 were of a simple nature.

20 On the above state of the record, it is abundantly clear that the judgment of

the Trial court suffers from a manifest perversity. The Trial court at one stage,

adverted to the injuries sustained by the four accused persons as “fatal injuries”

ignoring that there had been no death in the course of the incident on the side of

the accused. At other places in the course of the judgment, the Trial court opined

that the injuries were severe. Here again, there was an evident and manifest

error on the part of the Trial court in failing to notice that the pellet injuries which

20

were sustained by accused No. 3 were a result of the explosion of the bomb

which had been handled by accused No. 2. The other injuries sustained by the

accused were relatively of a minor nature. That apart, it has emerged on the

record that in the cross complaint which was filed by the side of the accused, the

police, after investigation, submitted a B summary report which was accepted by

the Magistrate.

21 The principal basis on which the Trial court acquitted the accused is

contrary to the evidence on the record and suffers from a manifest perversity.

The evidence on the record is indicative of the following circumstances:

(i) As a result of the incident, two persons – Kenchappa and Krishnappa

suffered homicidal death in the family of the complainant and as many as six

persons were injured;

(ii) None of the persons in the family of the complainant were armed;

(iii) On the contrary, it was the side of the accused which came to the house of

the complainant armed with weapons such as baku, knife, cycle chains and

explosives;

(iv) The injury sustained by the two deceased persons were on vital parts of the

body namely, lungs and kidney; and

(v) After the initial altercation took place at 10:30 am and the survey officers had

left the location, the accused returned armed with lethal weapons and during

the course of the incident caused serious injuries on Krishnappa and

Kenchappa resulting in their death.

21

Besides the perversity in the judgment of the Trial Court noted earlier, it is evident

that the judgment proceeded on the basis of surmises. The Trial court

hypothesised that since the deceased was 6 ft. in height and accused No. 1 was

5 ft. in height, the injuries, if caused by a dagger, would have been slanting and

not vertical in nature. This has completely ignored the vital aspects of the medical

evidence on the record. The contradictions which the Trial court adverted to in

the evidence of PWs 3 and 4 were not of a nature that should result in

discrediting the entire case of the prosecution.

22 For these reasons, we have come to the conclusion that the High Court

was fully justified in reversing the judgment of acquittal, having due regard to the

parameters which govern the exercise of its jurisdiction in an appeal against

acquittal. Having regard to the facts and circumstances of this case, we are of the

view that the High Court was correct in coming to the conclusion that the

provisions of Section 149 of the Code stand attracted. Section 149 reads thus:

“Section 149. 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 to be committed in prosecution of that object, every

person who, at the time of the committing of that offence, is a

member of the same assembly, is guilty of that offence.”

The provisions of Section 149 have been explained by this Court in Mijazi v

State of U P7 and in Masalti v State of U.P8. Two elements are crucial to the

7 AIR 1959 SC 572 8 (1964) 8 SCR 133 22

above definition: (i) the offence must be committed by a member of an unlawful

assembly; (ii) the offence must be committed in prosecution of the common

object of that assembly or must be such as the members of that assembly knew

to be likely to be committed in prosecution of the common object. Once a

common object of an unlawful assembly is established, it is not necessary that all

persons who form the unlawful assembly must be demonstrated to have

committed the overt act. The common object is ascertained from considering the

acts of its members and on the basis of all surrounding circumstances. In

Sikandar Singh v State of Bihar9, this Court held thus:

“17. A “common object” does not require a prior concert and a

common meeting of minds before the attack. It is enough if

each member of the unlawful assembly has the same object

in view and their number is five or more and that they act as

an assembly to achieve that object. The “common object” of

an assembly is to be ascertained from the acts and language

of the members composing it, and from a consideration of all

the surrounding circumstances. It may be gathered from the

course of conduct adopted by the members of the assembly.

For determination of the common object of the unlawful

assembly, the conduct of each of the members of the unlawful

assembly, before and at the time of attack and thereafter, the

motive for the crime, are some of the relevant considerations.

What the common object of the unlawful assembly is at a

particular stage of the incident is essentially a question of fact

to be determined, keeping in view the nature of the assembly,

the arms carried by the members, and the behaviour of the

members at or near the scene of the incident. It is not

necessary under law that in all cases of unlawful assembly,

with an unlawful common object, the same must be translated

into action or be successful.”

9 (2010) 7 SCC 477 23

In a more recent decision in Sanjeev Kumar Gupta v State of Uttar Pradesh10,

this Court held that a common object does not always require a prior concert and

it may form even on the spur of the moment. In taking this view, this Court relied

on the earlier decision in Ramachandran v State of Kerala11 and held thus:

“32. In this case all the accused were very well known to the

witnesses. So their identification, etc. has not been in issue.

As their participation being governed by the second part of

Section 149 IPC, overt act of an individual lost significance.”

In the present case, applying the same rationale, we are of the view that the

common object within the meaning of Section 149 is evident from the genesis of

the incident, the manner in which the accused returned after the initial altercation

armed with lethal weapons and the nature of the injuries which were inflicted in

concert.

23 Having carefully considered the submission which has been urged on

behalf of the complainant, we are not inclined to interfere with the finding of the

High Court that the conviction must be based on the provisions of Section 304

Part I of the Code. In coming to this conclusion and affirming the view of the High

Court, we have based ourselves on the background of the dispute, circumstances

in which the incident took place and all the surrounding circumstances. However,

we are of the view that the sentence which has been imposed by the High Court

should be enhanced to ten years rigorous imprisonment. We accordingly affirm

the judgment of the High Court convicting accused Nos. 1, 2, 3, 4, 6, 7, 8, and 11

of the offence under Section 304 Part I. However, they are sentenced to undergo

10 (2015) 11 SCC 69 11 (2011) 9 SCC 257 24

rigorous imprisonment of ten years. The conviction under Section 324 read with

Section 149 of the Code is affirmed. Criminal Appeal No. 622 of 2011 filed by the

complainant is partly allowed in these terms. There is no consistent deposition

with respect to accused Nos. 10 and 12. They are given the benefit of doubt and

stand acquitted.

24 Criminal Appeal Nos. 995 and 996 of 2011 are partly allowed in these

terms. Criminal Appeal Nos. 1362 of 2011 and 96-97 of 2011 shall accordingly

stand dismissed. Accused Nos. 1, 2, 3, 4, 6, 7, 8 and 11 shall surrender forthwith

to serve the sentences imposed. A copy of the judgment shall be forwarded in

addition to the Chief Judicial Magistrate to secure compliance.

……….…...............................................J [Dr DHANANJAYA Y CHANDRACHUD]

…………...............................................J [VINEET SARAN]

New Delhi; January 24, 2019.

25

MUNISHAMAPPA Vs STATE OF KARNATAKA

MUNISHAMAPPA Vs STATE OF KARNATAKA