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1993 Supreme(SC) 1118
SUPREME COURT OF INDIA
G.N.Ray : K.Jayachandra Reddy
Govindappa
Versus
State Of Karnataka
Case No. : 152 of 1982
Date of Decision : 11/25/93
Headnote:
Criminal Procedure Code - Section 379 - Incised wound/injury – Appeal against conviction - Enlargement of Criminal Appellate Jurisdiction - There was a political enmity between and his group on one hand and deceased and his followers - It started with elections supported Congress candidature - After the elections are over it is alleged that had took revenge with rest of villagers as they did not support Congress Party - There were some incidents - Public Witness lawyer who belongs to said village also went up in objection to higher authorities - A night before occurrence it is alleged that the accused had assembled in house – Held, AS mentioned above, Public Witness principal witness who set the law into motion - He claimed to be eyewitness and immediately after the occurrence he gave the report and had mentioned as many as 13 names and later during investigation three more accused were added on the ground that they hatched the conspiracy - Occurrence is said to have taken place near about the village and courts below also have acquitted some of accused on the ground that they did not share the common object - In such a situation important question to consider is whether all persons whose names are mentioned could be held to be members of unlawful assembly - It is always cautioned that wayfarers and sightseers also could be there in that melee and that the courts should take care to see that such persons are not roped in - To avoid the danger of convicting such accused, the courts will have to take into consideration the nature of the gathering and how they assembled and what weapons they were armed with and how they proceeded and further part played by them - In a case of this nature, the participation is one of the sure tests to fix the presence of members of the unlawful assembly – Court think there are several tests to be applied in this case - IN earliest report which is an important document in such cases, Public Witness no doubt mentioned several names but attributed the overt acts only -It is mentioned there that instigated and also dealt a blow with chopper - A-3 thereupon hit the deceased with the sickle in his hand on the left shoulder of the deceased – Then in a general way it is mentioned that also beat the deceased with sickles. No other overt acts are attributed to any one of the other persons mentioned in that report, except staling that they all came in a body. No doubt the scope of Section 149 Indian Penal Code is very wide but when we come to participation and presence in unlawful assembly to be fixed on that basis part played by every one of them assumes importance and in that context the medical evidence also has to be considered - Appeal is allowed
(1) HEARD learned counsel.
(2) THIS is an appeal filed under Section 379 Criminal Procedure Code read with Section 2(a) of the Supreme court (Enlargement of Criminal Appellate Jurisdiction) Act. A rioting took place on 7/08/1977 at about 5 p.m. in Village Gholanayakanahalli within the limit of Yalahanka Police Station in the course of which one Jayarama Reddy the deceased in the case received fatal injuries. PW 2 in the case lodged the First Information Report implicating several persons. In respect of this offence 16 persons were tried. Out of them A-12 and A-13 were ladies. They were tried for offences punishable under S. 143, 148, 302/149 Indian Penal Code. The trial court acquitted five of them and convicted A-1 to A-11 under S. 326/149 Indian Penal Code and sentenced each of them to undergo RI for six years. All of them preferred an appeal to the High court. During the pendency of the appeal. A-11 (Chikka Govindappa) died. Therefore, his appeal stood abated. The State also preferred appeals being Nos. 280 and 281 of 1981 one for enhancement of the sentence and another against acquittal of the accused of the murder charge. The High court dismissed the criminal appeal filed by the convicted accused but allowed the other criminal appeal filed by the State and altered the convictions to one under S. 302/149 and sentenced each of the convicted accused to undergo imprisonment for life. The other appeal for enhancement was, however, dismissed. The ten accused, A-1 to A-10 have preferred this appeal. Out of them A-1 died during the pendency of the appeal in this court. Therefore, we are left with only A-2 to A-10. The prosecution case is as follows:
(3) THERE was a political enmity between A-l and his group on one hand and the deceased and his followers. It started with the Lok Sabha elections in 1977. A-l supported the Congress candidature. After the elections are over, it is alleged that A-l had took revenge with the rest of the villagers as they did not support the Congress Party. There were some incidents. Public Witness 25 a practising lawyer who belongs to the said village also went up in objection to the higher authorities. A night before the occurrence it is alleged that the accused had assembled in the house of A-l. On the day of occurrence, when the deceased was coming out of his house to collect the coolies for his next days work, it is alleged that all the accused formed into an unlawful assembly and tried to attack the deceased. When the deceased reached the fields, he was surrounded and the two ladies are alleged to have thrown mirch powder into the eyes of the deceased and when the deceased pleaded against hitting him, Govindappa (A-1 instigated that the deceased should be finished and dealt sickle blows on the left side of the neck of Jayarama Reddy the deceased. The deceased fell down and then A-l again instigated others to finish him. Then, A-3 dealt a blow on the left shoulder of the deceased, the deceased fell down, A-5 gave a blow on the hand with a dagger. A-7 speared on the left buttock. A-8 speared in the same region. A-7 and A-8 went with the spears against the deceased. In that process, A-9 received injuries on his left hand, Public Witness 2 the cousin brother of the deceased witnessed the occurrence. The other witnesses viz., PWs 3 to 9 also witnessed the occurrence. Public Witness 2 went to the Police Station almost immediately and gave the report. The case was registered and the investigation was taken up. Inquest was held on the dead body and the same was sent for post-mortem. The doctor who conducted post-mortem found as many as six injuries on the dead body of the deceased. The doctor opined three injuries injury Nos. 1 to 3 in the following terms:
1. Chopped injury on the middle of front parietal region 4" x 1 1/4" outer table of the skull bone correspondingly cut.
2. Chopped injury on the left side of the face and neck just below the ear, 6" x 1 " depth at its anteri
