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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 984 OF 2010

Krishnappa & Ors.                                                 ………….. Appellants

Versus

State of Karnataka by Babaleshwara  Police Station                                      …………..Respondent

WITH

CRIMINAL APPEAL NO. 1147 OF 2012                       (Arising out of S.L.P.(Crl.) No. 5830 of  2012)

                               (CRL.M.P.No.23190 of 2011)

Tippanna Ningappa Kundargi and Anr.                 ………….. Appellants

Versus

State of Karnataka                   …………..Respondent

J U D G M E N T

H.L. Dattu, J.

1) Delay Condoned and Leave granted in SLP(Crl.)  No. ....… of 2012  

(Criminal Miscellaneous Petition No.23190 of 2011).

2) 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.  

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3) These appeals are directed against the common judgment and order  

passed  by the High Court  of Karnataka  at  Gulbarga in Criminal  

Appeal No. 1185 of 2006 and Criminal Appeal No. 824 of 2006,  

dated 16.06.2009, whereby and where under, the High Court has  

reversed the order of acquittal of accused Nos. A1, A15, A16, A21  

and confirmed the order of conviction of accused Nos.  A13 and  

A14 passed by the Sessions Judge, Bijapur, in Sessions Case No.  

82 of 2002.  The appellants are convicted under Section 302/149  

IPC and sentenced to imprisonment for life.  

4) The facts of the case, in brief, as put forth by the prosecution are:-  

Shri. Bhimappa Biradar (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  grand  father  of  the  deceased.  Subsequently,  this  

enmity  further  intensified  due  to  political  rivalry  and  their  

relationship became more hostile.

5) It is the case of  prosecution that, at 10.00 am on 15.09.2001, the  

deceased Bhimappa Biradar (for short `Bhimappa’) was sitting on  

the platform of village well and his son PW1 was getting his motor  

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cycle  tyres  filled  with  air  in  the  shop  of  PW-11,  situated  right  

opposite  to the village well.  PW-4 (grand daughter of deceased)  

informed the Bhimappa  (deceased ) that his presence was required  

in  his  house;   the  Bhimappa  (deceased)  got  up  and  started  

proceeding  towards  his  house.  At  that  time,  Maningappa  

Sannasiddappagol (A1) holding axe, Tippanna Ningappa Kundaragi  

(A13) holding club, Shivappa Tippanna Kundaragi (A14) holding  

axe,  Krishnappa alias Kristappa Shashappa Biradar (A15) holding  

club,  Jaggappa  Mallappa  Biradar  (A16)  holding  club,  Prakash  

Mallappa Shirabur (A17) holding chopper and Malappa Shashappa  

Biradar (A21) holding club came running from the side of the well.  

In response to this, the Bhimappa  (deceased ) tried to flee away but  

the  above  accused  persons  caught  hold  of  him.  Thereafter,  the  

deceased  sat  down  pleading  not  to  assault.   A13  and  A14  

unperturbed  to  deceased’s  imploration  for  mercy,  assaulted  him  

with axe  due to  which deceased’s  fingers of  hand got cut.   He  

sustained  severe  head  injuries  and  fell  down  on  the  ground.  

Thereafter, A1, A15, A16 and A21 dragged Bhimappa  (deceased )  

to a couple of feet to the road.  Then, A13, A14 and A17 again  

assaulted the Bhimappa  (deceased ) on the neck,  shoulders and  

legs. The above accused also threatened the bystanders with dire  

consequences,  if  any  one  attempt  to  intervene  to  rescue  the  

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deceased. Thereafter, A2 to A12, A18 to A20, A22 and A24 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.  

6) After this incident, PW1 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 am to file a complaint  

but PSI (SHO)-PW18 was on duty at some other village. On arrival  

of PW18, the written complaint of PW1 was lodged at 12:00 Noon.  

On the basis of said complaint, the First Information Report dated  

15.09.2001 in Crime No. 122/2001 was registered and sent to the  

Court of CJM, Bijapur.  

7) Thereafter, all the accused were arrested within a week from the  

date of incident. Further, recoveries of blood stained weapons used  

for the commission of offence were made under a  mahazar.  The  

blood stained clothing of the deceased  along with blood stained  

weapons  were  sent  to  the  Forensic  Science  Laboratory.  The  

Serology report and FSL confirmed that stains on the articles found  

are of human blood.  

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8) 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.   

9) The Principal Sessions Judge, Bijapur had taken cognizance of the  

offence under Section 193, Cr.P.C. and registered the case as S.C.  

No.  82/2002.  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.  

10) In  order  to  prove  the  charges,  the  prosecution  examined  18  

witnesses in support of their case. The accused persons did not lead  

any  evidence,  whatsoever.  The  learned  Sessions  Judge,  after  

recording the statement of the accused persons under Section 313 of  

the Cr.P.C. and after considering the evidence on record, has come  

to the conclusion that A13, A14 and A17 are directly responsible  

for the death of deceased and therefore, guilty of murder punishable  

under  Section  302  read  with  Section  149  of  IPC.  The  learned  

Sessions Judge acquitted A1, A15, A16 and A21 on the ground that  

there acts are not solely responsible for the death of the deceased as  

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they  were  merely  holding  Kalli  Katagi  and  just  prevented  the  

deceased from escaping the assault made by A13, A14 and A17 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,  A13,  A14  and  A17  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 A1, A15, A16  

and A21.

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 A1, A15, A16 and A21, convicting them  

of charges punishable under Section 302 read with Section 149 of  

the IPC and sentencing them to undergo imprisonment for life. The  

appeal filed by the appellants- A13 and A14 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)  

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and the conviction passed against A17 was set aside and he was  

acquitted.

13) Feeling  aggrieved  by  this  judgment  of  conviction  and  order  of  

sentence passed by the High Court, the present appellants-accused  

are before us in these appeals.  

14) Shri. T.S. Doabia, learned Senior Counsel appears for the accused-  

A1, A15, A16 and A21 and accused A13 and A14 are represented  

by  Ms.  Rajani  K.  Prasad.  Ms.  Anita  Shenoy,  learned  Counsel  

appears for the State of Karnataka.  

15) 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.  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 of 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,  

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they are not responsible for the murder of the deceased and deserves  

to be acquitted.  He would submit that PW1’s evidence as an eye  

witness is under serious doubts because PW9 in his deposition says  

that PW1 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 eye witnesses regarding  

the arrival of the accused on the spot.  PW1 stated that the  accused  

came from behind the bench of the well.  PW3 stated that they came  

from behind the road.  PW4 says they came from back side of the  

well, whereas,  PW2, PW5 and PW6 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 eye witnesses with respect to  

the fact whether deceased was dragged or lifted to the road after the  

initial assault on his body. The statements of PW1, PW3, PW4 and  

PW6 shows that  the  deceased  was  dragged to  the  road  but  the  

statement of PW2 and PW5 shows that the deceased was lifted to  

the road. Shri. Doabia would rely on the decisions of this Court in  

Sahdeo v.  State of U.P.,  (2004) 10 SCC 682 and State of  Uttar  

Pradesh  v.  Kishanpal,  (2008)  16  SCC  73  in  support  of  his  

submissions.

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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 am 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 C.J.M.,  Bijapur at 6.45 PM, 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 of 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 eye  

witnesses  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 eye witnesses. She would submit that the Statement under  

Section 166 Cr.P.C. was recorded on the same day of the incidence.  

She would further submit that FIR mentions the name of all the  

accused  persons  and  this  has  been  further  corroborated  by  two  

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independent  witnesses  and  one  witness  is  related  to  both  the  

complainant and the accused.   She would also submit that  Kalli  

Katiga has been recovered from accused- A1, A15, A16 and A21,  

who had prevented the deceased  from escaping the assault  from  

A13, A14, A17 and they further dragged the deceased towards the  

road after the first assault and thereby facilitated A13 and A14 for  

assaulting the deceased for the second time.  

18) In response to the submissions of Shri. Doabia that PW1 came later  

to the scene, Ms. Shenoy would contend that PW1 came back to the  

scene after half an hour along with his brother as explained by PW9  

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 filling  

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 accused and application of  

Section 149 of  IPC.  

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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].  The factum  

of causing injury or not causing injury would not be relevant, where  

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  v.  Krishan  

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Chand, (2004) 7 SCC 629; Deo Narain v. State of Uttar Pradesh,  

(2010) 12 SCC 298].

21) We have carefully perused the relevant records and statements of  

the eye witnesses in the case.  In our opinion, the prosecution has  

clearly established with ample evidence that accused- A13 and A14  

had murdered the deceased.  We are  in agreement with the view  

taken by the Trial Court and High Court. Therefore, the High Court  

is  right in dismissing the  appeal  against  the  order  of  conviction  

passed by the learned Sessions Judge.  

22) We are  also of the opinion that accused- A1, A15, A16 and A21  

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 A13 and A14.  Therefore,  

accused A1, A15, A16, A21 are guilty of murder along with A13  

and A14  under Section 302 read with Section 149 IPC.  

23) 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 the  

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accused- A1, A15, A16 and A21 who dragged the deceased and  

prevented him from escaping the fatal assault to his body.  

24) Moreover,  the  delay  in  registering  FIR  is  justified  as  the  

complainant had to travel 30 kms on a mud road to reach the Police  

Station from the scene of crime. Also, the absence of S.I.  in the  

Police Station further contributed in delay in registering the FIR.  

25) In the result, we do not find any infirmity in the impugned judgment  

and  order  passed  by  the  High  Court.  Therefore,  these  appeals  

deserves to be dismissed and, accordingly, they are dismissed.  

Ordered accordingly.

               ....................................................J.                              (H.L. DATTU)

..........................................................J.               (CHANDRAMAULI KR. PRASAD)

NEW DELHI, JULY 31, 2012.

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