State vs Maningappa Sannasiddappagol @ Mantur, Krishnappa @ Krishnappa Shashappa Biradar, Jagappa Mallappa Biradar and Mallappa Shashappa Biradar <BR> Tippanna Ningappa Kundaragi, Shivappa Tippanna Kundaragi and Prakash Mallappa Shirabur Vs State of Karnataka

K. Sreedhar Rao, J.—Since, Crl. A. 1185/2006 and 824/2006 arise out of the same Judgment, they are heard together for common disposal. The case of the prosecution discloses that one Bhimappa Biradar (deceased) had long standing enmity with Mansani family and Sirabur family, since the members of Sirabur and Mansani family had caused murder of grand father of the deceased. That apart, because of political rivalry, the enmity was intensified. The members of Mansani and Sirabur family were virtually pitted against the deceased and they were preventing the deceased from carrying out any of the good deeds for the benefit of the village.

On 15.09.2001 at about 10.00 a.m. the deceased was sitting on the platform of the village well. The PW 1 (son of the deceased) was getting air blown to his motor cycle in the shop of PW. 11 situate right opposite to the village well. The PW. 4 (grand daughter of deceased) came and informed the deceased that he is wanted in the house. The deceased got up to proceed to his house. At that time, Maningappa Sannasiddappagol (A1) wielding axe, Tippanna Ningappa Kundaragi (A13) wielding club, Shivappa Tippanna Kundaragi (A14) wielding axe, Krishnappa @ Kristappa Shashappa Biradar-A15 wielding club, Jagappa Mallappa Biradar-A16 wielding club, Prakash Mallappa Shirabur-A17 wielding chopper and Malappa Shashappa Biradar-A21 wielding club came running from the side of the well. The deceased tried to run away, the above accused persons caught hold of the deceased. The deceased sat down imploring not to assault. The A-13 & A-14 assaulted the deceased with axe, the fingers of the hand got cut, severe head injury is caused and the deceased fell down. The A1, A15, A16 and A21 dragged the deceased to couple of feet. The A13, A14 & A17 again assaulted the deceased. The above accused threatened the bystanders with dire consequences, if they intervene to rescue the deceased. The A2 to A12, A18 to A20, A22 to A24 came running to the scene and they assaulted the deceased with hands and kicked him. All the accused persons after assault went away from the scene taking away the weapons with them.

The PW 1 to PW 6 are the eyewitnesses to the incident. The PW 1 by about 11.15 p.m. goes to Babaleshwar P.S. The PSI (SHO)-PW 18 was on duty at some other village. The police constable reports the matter by wireless to the PSI and on the instruction of PW. 18, some police constables are deputed to the village to maintain law and order. The PW. 1 prepares the written complaint Ex. P.1, P.W. 18 registered it as FIR. PW. 18 visited the spot for tracing the accused. All the accused were arrested on different dates within a period of couple of days. The PW. 17-CPI, took up further investigation. At the voluntary instance of A-13, A-14 & A-17, caused recoveries of the blood stained weapons used for commission of offence under a mahazar. The blood stained clothing of the deceased and the weapons are sent to the FSL. The Ex. P.16-serology report and FSL report reveals that the bloodstains found on the articles are stained with human blood.

The accused are charged for committing offences punishable U/Ss. 143, 147, 148, 504, 506-Part II and 302 r/w 149 IPC. The charge u/s. 143, 147, 504 and 506 Part II is redundant and superfluous since the accused are charged for commission of the higher offence under the same genre.

The trial Court, upon consideration of the evidence, has found that A-13, A-14 & A-17 are guilty of murder punishable U/S. 302 IPC. The presence and participation of A-1, A-15, A-16 & A-21 although held to be proved, the trial court comes to the conclusion that they did not deal any blow and their actions in no way contributed for the death of the deceased. Hence, they are acquitted of the charge. In respect of A-2 to A-12, A-18 to A-20 and A-22 to A24, the trial court holds that the prosecution witnesses do not attribute any overt acts to them, their presence and participation in the incident is held doubtful. Hence, acquitted them.

The convicted accused viz., A-13, A-14 & A-17 have filed Crl. A. No. 824/2006 challenging the conviction for an offence U/S. 302 r/w. 149 IPC.

The State has filed Crl. A. 1185/2006 in respect of acquittal of A-1, A-15, A-16 and A-21 for an offence U/S. 302 IPC. The State however has not challenged the acquittal of remaining accused viz., A-2 to A-12, A-18 to A-20 and A-22 to A-24.

Sri Ravi B. Naik, learned Senior Counsel appearing for A-13, A-14 & A-17 (Crl. A. 824/2006) submitted the following reasons to assail the order of conviction:

i) The FIR allegations do not disclose that A-17 is in the company of A-1, A-13 to A-16 and A-21 who caused assault on the deceased in the first phase of the incident. The rest of the accused came together to the scene after the first phase of assault. In the second phase of assault, A-17 wielding chopper along with A2 to A12, A18 to A20 and A.22 to A24 came to the scene and dealt a blow with the chopper on the deceased. The evidence of PW 1 to PW 6 who are the eyewitnesses to the incident however, indicts that A-17 was one of the participant and assailant in the first phase of assault on the deceased along with A-1, A-13 to A-16 & A-21.

ii) The PW. 1 has indulged in false implication of innocent persons of the rival group vindictively in the FIR and as will in the evidence. The PW 2 to PW 6 also falsely implicate all the accused named in the FIR although no overt acts are attributed to them and there are no corresponding injuries on the deceased to correlate with the manner of assault stated in the FIR and the evidence.

iii) The PW. 1 in the cross-examination done on 10.03.2005 at paragraph-27 states that when he went to police station to lodge complaint, the PSI was not present; the Havaldar was present and he (Havaldar) enquired about the incident. PW. 1 orally tells the Havaldar that "the members of "Mansani and Sirabur family have murdered my father". The PW. 1 if really had witnessed the incident, he would have mentioned the family names of other accused. PW. 1 has manipulated and concocted the names of the accused who do not belong to Mansani and Sirabur family. The PW 1 has falsely implicated the accused persons belonging to different families vindictively to harass them. In the evidence, the persons belonging to different families like Mansani, Sirabur, Kundargi Biradar and Saddappagol, Mantur and Korti have been implicated.

iv) In the FIR, PW. 1 has stated that there is enmity between his family on the one part and Mansani and Sirabur family on the other part. The enmity with the other families is not stated at the earliest point of time.

v) The FIR is registered around 12 noon and the same is entrusted to PW. 14 at 12.15 p.m. The FIR is submitted to the jurisdictional Magistrate at 6.45 p.m. There is a delay of almost six hours, even though the distance between of Babaleshwar P.S. and Bijapur is hardly 20 Kms.

vi) PW. 14 states that as he was suffering from dysentery he went home to go to toilet, after four hours of entrustment, he went to Bijapur and handed over the FIR to the Magistrate. The evidence of PW. 14 is quite artificial and the delay of six hours in forwarding the FIR to the court becomes highly significant in the context of manipulation and false implication of the accused who do not belong to family of Mansani and Sirabur.

vii) The evidence on record discloses that the deceased was a notorious element in the village, had incurred enmity with several sections of people, he was sexually harassing the women of the village and there is every possibility that the villagers went to the deceased to discuss and warn him. In the heat of discussion and quarrel the incident has taken place. In the circumstances the offence would not be U/s. 302 IPC. At the most, it may be U/S. 304-I IPC. The conviction of A-13, A-14 & A-17 for offence U/S. 302 IPC is bad in law.

Sri. Ishwar Choudapur, Advocate submitted the following reasons to justify the acquittal of A-1, A-15, A-16 and A-21:

i) The FIR allegations disclose that the above accused were wielding clubs; they come running along with A-13, A-14 & A-17; they catch hold of the deceased who was running away; A-13 and A-14 assault the deceased with axe on the head. A-1, A-15, A-16 and A-21 do not assault with the clubs but they only drag the deceased to some extent and that no other overt acts of assault with clubs is stated. The version is artificial and unnatural. If really, A-1, A-15, A-16 & A-21 were present at the time of assault, they too would have assaulted with clubs. Their passive conduct appears to be preposterous.

ii) The evidence of PW. 2 in the cross-examination discloses that when the deceased was running, A-1, A-13, A-14, A-16, A-17 and A-21 caught hold the deceased, he was grappled and made to fall down. Thereafter A-13 and A-14 assaulted the deceased with axe. The evidence of PW. 3 with regard to manner of assault is totally inconsistent with the version given in the examination-in-chief FIR, and the version of other eyewitnesses.

iii) The evidence of PW 3, PW 5 & PW 6 discloses that A-1, A-.15, A-16 and A-21 dragged the deceased to some distance after he was assaulted with sickle by A-13 & A-14, but the FIR version states that after the assault with axe by A-14 & A-15 all the accused who are participants in the first phase of the assault dragged the deceased to some distance and thereafter A-18 and A-14 again caused the attack with axe on the neck and legs.

iv) The manner of assault, stated in the oral evidence of eyewitnesses inter se and the FIR is totally inconsistent. The presence of PW. 2 at the scene is artificial and she is a chance witness.

v) The conduct of PW. 1 and other bystanders who are interested in the deceased remained inert and dc not go for the rescue although they are in good number. Hence the conduct of PW 1 and others at the time of incident is preposterous and inconsistent with the probabilities.

In the light of the evidence and submissions made at the bar, the finding of the trial court that A-17 was one of the participants in the first phase of assault along with A-1, A-13, A-14, A-15, A-16 and A-21 appears to be a clear: prevarication and inconsistent with the earliest version in the FIR. The recitals in the FIR disclose that A-17 wielding chopper comes to the scene along with A-2 to A-12, A-18 to A-20 and A-22 to A-24 after A13 and A14 had dealt deadly blows on the deceased and that A1, A15, A16 and A21 wielding clubs present at the scene giving moral support and threatening the bystanders. The evidence of PW 1 to PW. 6 implicate A-17 as one of the assailants along with A-13 & A-14 who caused assault with deadly weapon like axe in the first phase of assault along with A-1, A-15, A-16 & A-21. If really A-17 was the assailant in the first phase of assault, PW-1 would not have omitted to state this glaring fact in the FIR. More so, when he names A1, A-15, A-16 and A-21 against whom no overt acts of assault is attributed. In that view, the order of conviction rendered against A17 does not appear to be sound and proper.

It is sternly argued that the A-1, A-15, A-16 and A-21 are falsely implicated, since in the FIR and evidence it is stated that they were wielding clubs and participated in commission of the offence. The overt acts attributed to them are only limited to dragging the deceased and threatening the bystanders. If really the said accused present and participated in commission of the offence, they too would have dealt blows with the clubs. Their passive conduct at the scene is preposterous. Besides it is said that there are no corresponding injuries on the deceased caused by clubs.

The logic of the above argument may appears to be attractive, but on a deep scrutiny of the evidence we do not think that the conduct of A-1, A-15, A-16 and A-21 appear to be artificial as argued by them. In fact, A1, A15, A16 and A21 wielding clubs come along with A13 and A14. All the said accused chased the deceased. A13 and A14 deal blows with axe. The A1, A15, A16 and A21 who were wielding less dangerous weapons do not deal any blow, but they lend moral support to A13 and A14. They also indulge in dragging the deceased to some distance after A13 and A14 assault the deceased with axe and threaten the bystanders not to come to the rescue. The fact that they did not deal any blow with the clubs is not a ground by itself to infer that they have been falsely implicated. The above overt acts attributed against A1, A15, A16 and A21 is sufficient to establish that they are the members of the unlawful assembly sharing common object of causing the death.

The conduct of the bystanders including PW. 1 who do not to go the rescue of the deceased does not appear to be unnatural, because the accused were wielding deadly weapons and giving fatal blows to the deceased. It is quite natural that the bystanders would not risk their lives in such situation.

The trial Court has given a positive finding on the basis of the version of eyewitnesses that A-1, A-15, A-16 and A-21 did participate in the first phase of assault, but acquits them for flimsy reason that they did not deal any blow on the deceased. The reason given by the trial court is perversely wrong. The evidence on record categorically suggests their active participation with A-13 and A-14 right from the beginning. Their overt acts of chasing and dragging the deceased to facilitate assault by A13 and A14 and threatening the bystanders would clearly establish that they are the members of unlawful assembly and each one of them would be liable for the acts of the other U/S. 149 IPC.

The discrepancy with regard to overt acts of the accused pointed out by Sri. Ishwar Choudapur are only of trivial nature, such discrepancies are natural and bound to occur when the witnesses are called upon to give evidence with regard to the incident which has taken place about 3-4 years prior to the date of evidence. Such discrepancies would not dent the veracity of the evidence rather they would lend a touch of credibility, otherwise branded as parrot like narration.

It is strenuously argued that PW-1 at Babaleshwar P.S., tells the Havaldar orally that members of Mansani and Sirabur family have caused the murder of his father. Hence, there is false implication of the other accused who do not belong to the said families.

After careful consideration of the above contention, we feel that no serious importance can be given to the said discrepancy. The PW. 1 has been cross-examined at length on three different occasions and his evidence in the cross-examination is quite voluminous. In the first instance, he orally states to Havaldar cryptically, when asked to give the complaint in writing, immediately he puts the facts in writing in the P.S. without going out and without loss of time. The written complaint is handed over to the PSI who comes back to the P.S. The written complaint is registered as FIR, The cryptic statement of PW. 1 elicited in the cross-examination should not be read unduly to infer that none of the convicted accused viz., A-13 & A-14 and the acquitted accused viz., A-1, A-15, A-16 and A-21 have not participated in commission of the offence. In the FIR a detailed version of the manner of occurrence of the incident has been stated. The independent eyewitnesses to the incident have testified to the incriminating acts of A-13 & A-14, A-1, A-15, A-16 and A-21. Therefore, we do not find any good reason to reject their testimony regarding presence and participation of A-1, A-15, A-16 and A-21 as members of an unlawful assembly along with A-13 & A-14.

The recovery evidence discloses that the blood stained axes at MO 9 and MO 10 are recovered at the voluntary instance of A13 and A14. The FSL report and the Serologist report disclose that the blood stained clothing of the deceased on MO 4, MO 5 and MO 6 and the blood stains on items 15 and 16 are stained with "O" group blood. The mahazar witness-PW 8 has supported the recoveries. In view of the FSL and the Serologist reports, it gets established at MO 9 and 10 recovered from A13 and A14 are the one used for the commission of offence.

It is strenuously argued that the deceased was a notorious person and a rowdy-sheeter and had incurred displeasure and enmity of several persons of the locality. Therefore, there is possibility of some other persons causing the murder is an untenable argument. If really the persons who are inimical towards the deceased other than the accused bad caused the murder, there is no reason for PW. 1 to shield the real culprits and to implicate the above accused.

The contention that the villagers gathered at the well, questioned the immoral conduct of the deceased and in the heat of quarrel, the incident had occurred also appears to be an untenable argument and it is not based on any credible material on record. The evidence of the eyewitnesses particularly the independent eyewitnesses-PW 2 PW 3, PW 5 and PW 6 would show that A-1, A-13, A-14, A-15, A-18 and A-21 carried on an one-sided and unilateral attack on the deceased with deadly weapons. In the face of such clinching evidence, it is untenable to argue that in a heat of quarrel the deceased was assaulted and that offence would be 304 Part-I IPC.

It is strenuously argued that there is undue delay in submission of FIR and that the explanation for the delay is artificial. PW. 14-P.C. to whom the FIR was entrusted has given evidence that he was suffering from dysentery and therefore, he immediately went to the house to attend the calls of nature and later on he went and submitted the FIR to the Magistrate at Bijapur, The distance may be 20 Kms, there is no evidence with regard to the bus frequency between Babaleshwar P.S. and Bijapur. The reason given by PW. 14 that he was suffering from dysentery cannot be rejected as artificial without proper material in that regard. The prosecution has explained the delay in transmission of the FIR from the P.S. to the court. On overall consideration of the evidence we do not find any good reason to hold that A-1, A13, A-14, A-15, A-16 and A-21 are falsely implicated by manipulation.

In view of the above discussion, the appeal filed by the State in Crl. A. No. 1185/2006 is allowed and the A-1 (Maningappa Sannasiddappagol @ Mantur), A-15 (Krishnappa @ Krishnappa Shashappa Biradar), A-16 (Jagappa Mallappa Biradar) and A-21 (Mallappa Shashappa Biradar) are convicted for having committed the offence punishable U/S. 302 r/w. 149 IPC. The A-. A-15, A-16 and A-21 are sentenced to undergo imprisonment of life.

The appeal of A-13 (Tippanna Ningappa Kundaragi) and A-14 (Shivappa Tippanna Kundaragi) is dismissed. The order of conviction and sentence passed against them is confirmed.

The appeal filed by A-17 (Prakash Mallappa Shirabur) in Crl. A. No. 824/2006 is allowed. The order of conviction passed against A-17 is set aside. A-17 (Prakash Mallappa Shirabur) is acquitted. A-17 (Prakash Mallappa Shirabur) shall be set free forthwith if not required in any other case.