MUNISHAMAPPA & ORS. versus STATE OF KARNATAKA
[2019] 2 S.C.R. 386, Supreme Court of India, 2019
Outcome: Disposed off
Segment: Ratio
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 MUNISHAMAPPA & ORS.
v.
STATE OF KARNATAKA
(Criminal Appeal Nos. 96-97 of 2011)
JANUARY 24, 2019
[DR. DHANANJAYA Y CHANDRACHUD AND
VINEET SARAN, JJ.]
Criminal Law – Appeal against acquittal – Long-standing
dispute between families of two brothers, accused no.5 (since
deceased) and CW-29 in regard to ancestral property – Litigation
ensued – Officials from the Survey Department came to conduct
survey of the property – Altercation between the two families– Survey
officials left the scene – Later, the accused persons returned to the
scene, armed with lethal weapons and assaulted the family of
complainants – ‘KR’ and ‘KE’, sons of CW-29 died – Trial court
acquitted eleven accused persons tried for offences inter alia
u/ss.143, 148, 323, 324 and 302 r/w s.149, IPC – High Court allowed
the appeal in part and convicted ten accused persons-appellants
inter alia u/s.304 Part I r/w s.149, IPC – On appeal, held: In case of
appeal against acquittal, such as the present one, the High Court
should not interfere with an order of acquittal merely because two
views are possible – Only when the appreciation of evidence by the
Trial Court is capricious or its conclusions are without evidence
that the High Court may reverse order of acquittal – PW-1 (daughter
of ‘KR’) narrated the manner in which the accused assaulted the
family members of the prosecution witnesses, which was
corroborated by other eye-witnesses – Trial court acquitted the
accused persons primarily on the ground that the injuries on the
accused persons (except accused no.2) was not satisfactorily
explained – Pellet injuries suffered by accused no.3 were traceable
to the bomb blasts caused by bomb carried by accused no.2 which
exploded in the course of the incident – Injuries suffered by accused
nos.4 and 5 were simple – None of the persons in the family of the
complainant were armed – It was the accused’s side which was armed
with weapons and explosives – Judgment of the High Court
convicting accused nos.1-4, 6-8 and 11 u/s.304 Part I affirmed –
Sentenced to undergo ten years rigorous imprisonment – No
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consistent deposition with respect to accused nos.10 and 12, they
are given benefit of doubt and acquitted– Penal Code,1860– ss.143,
148, 323, 302, 324, 304 Part I r/w s.149 – Explosive Substances
Act, 1908– ss.3, 4 and 5.
Long-standing dispute between the families of two brothers,
accused no.5 and CW-29 with regard to their ancestral property.
Litigation ensued. On the date of the incident, at about 8:30 a.m.,
officials from the Survey Department came to conduct survey of
the property. After the house of CW-29 was surveyed, they
proceeded to the house of accused no. 5, who opposed the survey.
Altercation took place between ‘KR’, one of the son of CW-29
and accused no. 5. Survey officials left the scene. Later on, the
accused returned to the scene, armed with lethal weapons. Case
of the prosecution that accused no.1 assaulted ‘KR’ with dagger.
His brother ‘KE’, who was standing near him, was stabbed by
accused no. 3. Both, ‘KR’ and KE’ died. Trial court acquitted
eleven accused persons tried for offences inter alia u/ss.143, 148,
323, 324 and 302 r/w. s.149, IPC. High Court allowed the appeal
in part and convicted ten of the accused-appellants u/s.304 Part I
read with Section 149, IPC. Hence, the present appeals.
Disposing of the appeals, the Court
HELD: 1.1  In case of an appeal against acquittal, as the
present case, 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 should not interfere with an
order of acquittal merely because two views are possible. 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. [Para 14] [399-C-E]
1.2  PW 1 narrated the course of the incident and the manner
in which the other accused had assaulted the members of the
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family of the prosecution witnesses. The account of the incident
furnished by PW 1 has been corroborated in the testimonies of
the other eye-witnesses. [Para 15] [400-A, C-D]
1.3 The evidence of PW 20, the doctor noted the injuries
which were sustained by accused No. 2. These injuries were 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. [Para 19] [404-G; 405-B-C]
1.4  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 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. 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. [Para 20] [405-D-E]
1.5  The principal basis on which the Trial court acquitted
the accused is contrary to the evidence on the record. The
evidence on the record is indicative of the following
circumstances:
(i) As a result of the incident, two persons – ‘KE’ and ‘KR’
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;
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(iii) On the contrary, it was the side of the accused which came
to the house of the complainant armed with weapons 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.
The judgment of the Trial Court 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. [Para 21] [405-F-H; 406-A-D]
1.6 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. The High Court was correct in coming to the conclusion
that the provisions of Section 149, IPC stand attracted. Two
elements are crucial to the definition of Section 149, IPC: (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 the present case, the common
object within the meaning of Section 149 is evident from the
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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. [Para 22]
[406-E, G-H; 407-A-B; 408-B]
1.7  The finding of the High Court that the conviction must
be based on the provisions of Section 304 Part I of the Code, not
interfered with. However, the sentence which has been imposed
by the High Court should be enhanced to ten years rigorous
imprisonment. 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 is accordingly affirmed. The conviction under Section 324
read with Section 149 of the Code is affirmed. There is no
consistent deposition with respect to accused Nos. 10 and 12.
They are given the benefit of doubt and stand acquitted.
[Para 23] [408-D-E]
Amar Malla v. State of Tripura  (2002) 7 SCC 91 ; State
of M P v. Ramesh (2005) 9 SCC 705 : [2004] 6  Suppl.
SCR 152 ; Raghubir Singh v. State of Rajasthan
(2011) 12 SCC 235 : [2011] 10 SCR 739; Sikandar
Singh v. State of Bihar  (2010) 7 SCC 477 : [2010] 8
SCR 373 ; Sanjeev Kumar Gupta v. State of Uttar
Pradesh (2015) 11 SCC 69 : [2015] 5  SCR 122 ;
Ramachandran v. State of Kerala (2011) 9 SCC 257 :
[2011] 13 SCR 923 – relied on.
Lakshmi Singh v. State of Bihar (1976) 4 SCC 394 ;
Mijazi v State of UP AIR 1959 SC 572 :  [1959]  Suppl.
SCR  940 ;  Masalti  v  State of U.P.
(1964) 8 SCR 133
– referred to.
Case Law Reference
(1976) 4 SCC 394
referred to
Para 10
(2002) 7 SCC 91
relied on
Para 19
[2004] 6 Suppl. SCR 152
relied on
Para 19
[2011] 10 SCR 739
relied on
Para 19
[1959] Suppl. SCR  940
referred to
Para 22
(1964) 8 SCR 133
referred to
Para 22
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[2010] 8 SCR 373
  relied on
Para 22
[2015] 5 SCR 122
  relied on
Para 22
[2011] 13 SCR 923
  relied on
Para 22
       CRIMINAL APPELLATE JURISDICTION :  Criminal Appeal
Nos. 96-97 of 2011.
From the Judgment and Order dated 14.09.2010 of the High Court
of  Karnataka at Bangalore in Criminal Appeal No. 468 of 2004 c/w.
Criminal Revision Petition No. 61 of 2004
With
Criminal Appeal Nos.995-996, 622, 1362-1363 of 2011.
V. Krishnamurthy, Sr. Adv., Shekhar G. Devasa, Manish Tiwari,
Luv Kumar, M/s. Devasa & Co., T. Harish Kumar, V. N. Raghupathy,
Somiran Sharma, M/s. Devasa & Co., Advs. for the appearing parties.
The Judgment of the Court was delivered by
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 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
MUNISHAMAPPA & ORS. v. STATE OF KARNATAKA
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.
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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
(accused No. 9) was tried as a juvenile. The family tree of the accused
appellants is depicted below:
2 Criminal Appeal No. 622 of 2011
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The family tree on the side of the prosecution witnesses is depicted
below for the sake of clarity:
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.
MUNISHAMAPPA & ORS. v. STATE OF KARNATAKA
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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 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 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.
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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 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
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(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 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,
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cycle chain and clubs. Hence, it was proved that the accused had taken
part in the incident on the 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
(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.
3 (1976) 4 SCC 394
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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 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;
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(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:
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 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
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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 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.
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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.
3. A contused abrasion of 1.5 c.m. above both medial end of eye-
brows.
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.
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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.
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.
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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.
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”
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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:
“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:
4 (2002) 7 SCC 91
5 (2005) 9 SCC 705
6 (2011) 12 SCC 235
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“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
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;
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(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.
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
7 AIR 1959 SC 572
8(1964) 8 SCR 133
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elements are crucial to the 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 heldthus:
“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.”
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:
9 (2010) 7 SCC 477
10 (2015) 11 SCC 69
11(2011) 9 SCC 257
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“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 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. 1362-1363 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.
Divya Pandey
                          Appeals disposed of.