Appellant No. 1, Goudappa (Accused No.3),
Appellant No.2, Chhannappa @ Ajjappa (Accused No.4)
and Appellant No. 3, Mahadevappa (Accused No.5)
aggrieved by their conviction and sentence, have
preferred this appeal with the leave of the court.
Altogether five brothers namely, Basappa,
Vipakshappa, Goudappa, Channappa @ Ajjappa and
Mahadevappa were put on trial for offence under
Section 143, 148, 452, 341, 302, 427, 504 and 506
read with Section 149 of the Indian Penal Code.
The trial court acquitted accused no. 1, Basappa
and accused no. 2 Vipakshappa of all the charges.
Accused no. 3, Goudappa and accused no. 4,
Channappa @ Ajjappa were, however, held guilty
under Section 304, Part II read with Section 109 of
the Indian Penal Code and sentenced to undergo
simple imprisonment for one year. Accused no. 5,
Mahadevappa has been convicted under Section 304,
Part II of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years. They
have, however, been acquitted of all other charges.
State of Karnataka, aggrieved by the order of
acquittal of the aforesaid two accused and
conviction of other three only under Section 304,
Part II, instead under Section 302 of the Indian
Penal Code and those convicted and sentenced also
preferred separate appeals before the High Court.
Both the appeals were heard together and disposed
of by a common judgment. The High Court by the
impugned judgment and order has set aside the
judgment of acquittal and held all the accused
guilty under Section 143 and 148 of the Indian
Penal Code and sentenced them to pay fine of Rs.
1,000/- on each count with a default clause. Those
three found guilty under Section 304, Part II read
with Section 109 or under Section 304, Part II of
the Indian Penal Code simplicitor have, instead,
been convicted under Section 302/34 of the Indian
Penal Code and sentenced to undergo imprisonment
for life with default clause. JUDGMENT
Matrimonial discord between deceased Channappa
and Kalavathi, daughter of accused no. 1, Basappa
is the cause of the crime. All the accused are
brothers and reside in Village Navalur within
Dharwad District of the State of Karnataka.
Kalavathi was married to deceased Channappa, who
was also the resident of the same village, houses
of both being situated within a distance of 100 ft.
from each other. Marriage between them had taken
place on 5th of May, 1996. The relationship between
the couple was not cordial and, according to the
prosecution, as usual the elders of the village
convened a Panchayat in which the father of
Kalavathi i.e. accused no. 1 Basappa wrote an
undertaking (Exh. P-6) to counsel his daughter and
not to blame anyone else, if any untoward incident
happens. However, this did not bring peace and
matrimonial harmony and Kalavathi left the
matrimonial house without informing anybody. This
was not liked by her husband, Channappa and he
stopped her entry in the matrimonial house. All JUDGMENT the accused thus nurtured ill-will against him.
According to the prosecution, on 9th of
January, 1998 at about 9.30 P.M. the deceased
Channappa, his brother Manjunatha (PW-1), mother
Siddawwa (PW-2) and grandson of PW-2, Manjunath
(PW-3) were watching TV. The deceased Channappa at
that time was chewing paan and came out of the
house to spit. Accused Basappa started abusing him
alleging that he failed to keep his daughter,
whereupon all the accused entered the house and
accused no. 3 Goudappa and accused No. 4 Channappa
@ Ajjappa caught hold of the deceased and accused
no. 5 Mahadevappa stabbed him with jambia over the
left side of the chest. The blow was so severe
that it penetrated into the heart and liver.
Prosecution has further alleged that accused no. 1,
Basappa pelted stone over the door of the house
whereas accused no. 2 Vipakshappa damaged its front
door with an axe. Manjunatha (PW-1), Siddawwa (PW-
2) and Manjunath (PW-3) claimed to have seen the JUDGMENT incident. Manunatha (PW-1) conveyed the message to
the Police Control Room and called Dr. Shamsuddin
Kasimsab Jamadar (PW-18) for treatment, but
noticing profuse bleeding, he advised to shift the
injured to the Government Hospital. While
arrangement to shift the injured was being made,
Shashidhar (PW-24), the police constable, Manappa
Siddappa Arer (PW-27), the Sub-Inspector of Police
of Vidhyagiri Police Station and other two police
constables came to the spot and the injured was
shifted to Civil Hospital, Dharwad. He was
examined by the doctor and declared dead.
Manjunatha (PW-1) gave report to Manappa Siddappa
Arer which led to registration of Crime No. 14 of
1998 under Section 143, 147, 148, 323, 427, 452,
302, 504 and 506 read with Section 149 of the
Indian Penal Code.
After usual investigation, police submitted the
charge-sheet and all the five accused were
ultimately committed to the Court of Sessions to face the trial. The trial court framed charges
under Section 143, 148, 452, 341, 302, 427, 504 and
506 read with Section 149 of the Indian Penal Code.
Accused pleaded not guilty and claimed to be tried.
In order to bring home the charge, the prosecution
has altogether examined 28 witnesses and a large
number of documents (Exibits P-1 to P-24) and
material objects (M.Os. 1 to 14) were exhibited.
Out of the aforesaid witnesses, Manjunatha (PW-1),
Siddawwa (PW-2) and Manjunath (PW-3) claimed to be
the eye-witnesses of the occurrence. Dr.
Rajashekara (PW-6) has conducted the post-mortem
examination on the dead body of the deceased. The
defence of the accused is of total denial and they
have led no evidence. There is consistent evidence
of Manjunatha (PW-1), Siddawwa (PW-2) and Manjunath
(PW-3) that relation of Kalawathi, daughter of
accused no. 1 Basappa and her husband, the deceased
Channappa was strained and the accused have
virtually accepted this part of the prosecution
story. Manjunatha (PW-1), has stated in his
evidence that while he along with the other two JUDGMENT eye-witnesses, Siddawwa (PW-2) and Manjunath (PW-3)
and the deceased Channappa were watching TV, all
the accused had assembled in the house of accused
no. 3, Goudappa and were hurling abuses. According
to this witness, the deceased Channappa was in the
habit of chewing paan and, therefore, he had gone
out of the house to spit. At that time accused no.
1 Basappa abused him alleging that he is not able
to lead married life with his daughter. Immediately
thereafter, all the accused entered into the house.
At that time, accused no. 2, Vipakshappa was armed
with an axe whereas accused no. 5, Mahadevappa was
carrying a jambia. According to this witness,
accused no. 3, Goudappa and accused no. 4 Channappa
@ Ajjappa caught hold of the deceased Channappa
whereupon accused no. 5, Mahadevappa assaulted the
deceased with jambia on his chest. It has further
been stated that accused no. 1, Basappa pelted
stone over the door whereas accused no. 2,
Vipakshappa damaged the front door with an axe. In
the cross-examination, this witness has admitted JUDGMENT that all of them including the deceased Channappa,
were inside the house and watching TV when the
accused have come in front of their house and the
occurrence had taken place inside the house. He
has further admitted that in the first information
report he had not mentioned about the availability
of electric light in the house and in the street,
at the time of the incident.
Siddawwa (PW-2), who happens to be the mother
of the deceased, stated in her evidence that all
the accused came to their house, abused and
threatened them of dire consequences as the
deceased was not accepting Kalavathi to lead a
married life. She has further stated that accused
no. 3, Goudappa and accused no. 4, Channappa @
Ajjappa caught hold of deceased’s hands and accused
no. 5, Mahadevappa gave jambia blow on his chest.
Evidence of Manjunath (PW-3), the grandson of
Siddawwa (PW-2), is the same as those of other two
eye witnesses. In the cross-examination he had stated that the deceased Channappa was inside the
house when the accused came to the spot.
Dr. Rajashekara (PW-6), who conducted the post-
mortem examination on the dead body of the deceased
Channappa, had found the following external
injuries on his person:
“1. Punctured wound over the left side
of the chest over 2, 3 and 4th
intercostal space 3” below the
junction of medial 1/3rd and later 2/3rd
of clavicle bone 3” lateral to
midline.”
He also found the following internal
injuries on his person:
“On opening of the skull brain was
pale in colour. On examination of the
chest, crack fracture of 2nd rib on the
left side 3” from sterno costal
junction. Plura opened at the site of
the wound, which was described above.
Containing blood with some clots and
blood was about 1000 ml.
Laryanx and treachea was intact and
pale.
Lungs were intact and pale. Plura was
opened over the left atrium of the JUDGMENT
heart.
Punctured wound over left atrium
1½” x 1” clot blood at the margins and
reddish in colour.”
Mr. Basava Prabhu S. Patil, Senior Advocate
appears on behalf of the appellants, whereas the
respondent-State of Karnataka is represented by Ms.
Anitha Shenoy.
Mr. Patil submits that the claim of Manjunatha
(PW-1), Siddawwa (PW-2) and Manjunath (PW-3) to be
the eye-witnesses to the occurrence and having
witnessed the incident is fit to be rejected as,
according to their own evidence, they were watching
the television inside the house (PADASALE) at the
time of occurrence, whereas the occurrence has
taken place near the front door inside the house.
In this connection, he has drawn our attention to
the sketch map and points out that from the place
where these witnesses were watching the television,
the place where the deceased was assaulted is not JUDGMENT visible. Ms. Shenoy, however, submits that the
house where the incident had taken place is a small
house and the distance between the place of
occurrence and the PADASALE where they were
watching TV is hardly 20 ft. She further submits
that after the accused persons entered into the
house and saw the deceased Channappa, the latter
had raised an alarm which attracted the attention
of the witnesses and they came to the spot and,
hence, witnessed the occurrence.
We have bestowed our consideration to the rival
submissions and we find substance in the submission
of Ms. Shenoy. The house in question is a small
house and the distance between the place where they
were watching TV and the place of occurrence is
about 20 ft. Further, there was an alarm raised by
the deceased Channappa which attracted the
witnesses and, thus their claim of being eye-
witnesses of the occurrence cannot be rejected on
this ground.
Mr. Patil then submits that, according to the
evidence of the prosecution witnesses, when the
deceased came out of the house to spit, the
occurrence has taken place, but the dead body was
found inside the house and, therefore, prosecution
has not been able to prove the place of occurrence
beyond all reasonable doubt. According to him, the
consistent case of the prosecution is that the
deceased along with other eye-witnesses were
watching TV in the PADASALE and the deceased was
assaulted when he came out of the house to spit.
In this connection, he has drawn our attention to
the sketch map which gives the details of the house
and the place of occurrence. This, according to
Mr. Patil, clearly shows that the occurrence has
taken place inside the house. We do not find any
substance in the submission of Mr. Patil and the
same is fit to be rejected. For appreciation of
this submission one has to bear in mind that the
house where the occurrence has taken place is a
small house and the dead body was found 7 ft. JUDGMENT inside the front door. It is the consistent
evidence of the prosecution witnesses that the
deceased Channappa was chewing paan and came out of
the house to spit when accused no. 1 Basappa abused
him alleging that he failed to keep his daughter
whereupon all the accused persons entered the house
and the crime was committed. As stated earlier,
the dead body was found 7 ft. inside the front
door, we do not find any inconsistency in regard to
the place of occurrence.
Mr. Patil lastly submits that, according to the
prosecution itself, role attributed to accused no.
3 Goudappa and accused no. 4 Channappa @ Ajjappa is
that they had caught hold of the deceased Channappa
and from that it cannot be inferred that the crime
was committed in furtherance of common intention.
According to him, these appellants had not intended
to cause the death of the deceased and, hence,
cannot be convicted for the offence under Section
302 with the aid of Section 34 of the Indian Penal Code. In support of the submission reliance has
been placed on the judgment of this Court in the
case of Ramashish Yadav v. State of Bihar, (1999) 8
SCC 555:
“This being the requirement of law for
applicability of Section 34 IPC, from the
mere fact that accused Ram Pravesh Yadav
and Ramanand Yadav came and caught hold of
Tapeshwar, whereafter Samundar Yadav and
Sheo Layak Yadav came with gandasa in
their hands and gave blows by means of
gandasa, it cannot be said that the
accused Ram Pravesh Yadav and Ramanand
Yadav shared the common intention with
accused Samundar Yadav and Sheo Layak
Yadav. Consequently, accused Ram Pravesh
Yadav and Ramanand Yadav cannot be held
guilty of the charge under Sections 302/34
IPC but accused Samundar Yadav and Sheo
Layak Yadav did commit the offence under
Sections 302/34, having assaulted deceased
Tapeshwar on his head by means of gandasa
on account of which Tapeshwar died. The
accused Ram Pravesh Yadav and Ramanand
Yadav are, therefore, acquitted of the
charges levelled against them and they be
set at liberty forthwith.”
Ms. Shenoy, however, submits that from the
manner in which the crime has been committed and
the role played by the aforesaid two appellants
clearly show that the criminal act was done by JUDGMENT several persons in furtherance of the common
intention of all and, hence, each of such person
shall be liable for the criminal act in the same
manner as if it was done by him alone. Reference,
in this connection, has been made to a decision of
this Court in the case of Ramesh Singh v. State of
A.P., (2004) 11 SCC 305.
We have bestowed our consideration to the rival
submissions and the submission made by Ms. Shenoy
commend us. Ordinarily, every man is responsible
criminally for a criminal act done by him. No man
can be held responsible for an independent act and
wrong committed by another. The principle of
criminal liability is that the person who commits
an offence is responsible for that and he can only
be held guilty. However, Section 34 of the Indian
Penal Code makes an exception to this principle.
It lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common
intention, animating the accused leading to the
doing of a criminal act in furtherance of such
intention. It deals with the doing of separate
acts, similar or adverse by several persons, if all
are done in furtherance of common intention. In
such situation, each person is liable for the
result of that as if he had done that act himself.
Section 34 of the Indian Penal Code thus lays down
a principle of joint criminal liability which is
only a rule of evidence but does not create a
substantive offence. Therefore, if the act is the
result of a common intention that every person who
did the criminal act share, that common intention
would make him liable for the offence committed
irrespective of the role which he had in its
perpetration. Then how to gather common intention?
The common intention is gathered from the manner in
which the crime has been committed, the conduct of
the accused soon before and after the occurrence,
the determination and concern with which the crime
was committed, the weapon carried by the accused JUDGMENT and from the nature and injury caused by one or
some of them. Therefore, for arriving at a
conclusion whether the accused had the common
intention to commit an offence of which they could
be convicted, the totality of circumstances must be
taken into consideration.
Bearing in mind the principle aforesaid, when
we proceed to consider the case of these two
appellants namely, accused no. 3 Goudappa and
accused no. 4 Channappa @ Ajjappa, we have no
hesitation in coming to the conclusion that the
deceased Channappa was done to death in furtherance
of their common intention. All the accused had
assembled at one place and the moment deceased came
out of the house to spit, one of the accused
started abusing him. They were armed with axe and
jambia and by catching and immobilizing the
deceased these two accused facilitated the assault
by accused no. 5. Accused no. 5 stabbed the
deceased with jambia over the left side of the chest and the blow was so severe that it penetrated
into the heart and liver. The fact that these
appellants held the deceased and facilitated the
other accused to give the fatal blow and made no
effort to prevent him from assaulting the deceased
leads to irresistible and inescapable conclusion
that these two appellants shared the common
intention with accused no. 5. The intention of
accused no. 5 is clear from the nature of weapon
used and the severity of attack which was in the
area of chest penetrating deep inside up to heart
and liver which caused the death of the deceased.
The view which we have taken finds support from
the judgment of this Court in the case of Ramesh
Singh (supra) in which it has been observed as
follows:
“Once the prosecution evidence tendered
through PWs 1 to 3 is accepted, then it is
clear that when A-2 and A-3 held the hands
of the deceased, they had some intention
in disabling the deceased. This inference
is possible to be drawn because the
appellants in their statement recorded
under
explanation Section why313theyCrPChelddidthe nothandsgiveof anythe
deceased which indicates that the
appellants had the knowledge that A-1 was
to assault the deceased. The fact that the
appellants continued to hold the deceased
all along without making any effort to
prevent A-1 from further attacking, in our
opinion, leads to an irresistible and an
inescapable conclusion that these accused
persons also shared the common intention
with A-1.”
However, we hasten to add that each case rests
on its own facts and mere similarity of the facts
in one case cannot be used to determine a
conclusion of fact in another. Whether the crime
was committed in furtherance of common intention is
determined on appreciation of evidence laid in that
case and the similarity of facts in one case may
not be decisive to come to a definite conclusion of
fact in another. Hence, answer of such question
has to be found in the facts of a given case. In
this connection, it is apt to reproduce the
following passage from the case of Pandurang v.
State of Hyderabad, AIR 1955 SC 216:
“But to JUDGMENTsay this is no more than to
reproduce the ordinary rule about
circumstantial evidence, for there is no
special rule of evidence for this class
of case. At bottom, it is a question of
fact in every case and however similar
the circumstances, facts in one case
cannot be used as a precedent to
determine the conclusion on the facts in
another. All that is necessary is either
to have direct proof of prior concert, or
proof of circumstances which necessarily
lead to that inference, or, as we prefer
to put it in the time-honoured way, ‘the
incriminating facts must be incompatible
with the innocence of the accused and
incapable of explanation on any other
reasonable hypothesis’. (Sarkar's
Evidence, 8th Edn., p. 30)”
From the discussion aforesaid, it is evident
that the High Court has not committed any error in
setting aside the judgment of acquittal and holding
all the accused guilty under Section 143 and 148 of
the Indian Penal Code and convicting the appellants
under Section 302/34 of the Indian Penal Code and
sentencing them to undergo imprisonment for life
with default clause.
In the result, we do not find any merit in the
appeal and it is dismissed accordingly.