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1994 Supreme(SC) 92
SUPREME COURT OF INDIA
MALLAPPA
Vs.
STATE OF KARNATAKA
Decided on January 20, 1994
Headnote:
Indian Penal Code Sections 148, 302 and 302/149 – Appellants, original accused, along with one Narasappa, original accused 1 were tried by the learned additional Sessions Judge Gulbarga for offences punishable and they were acquitted – State preferred an appeal and a division bench of the High court reversed the order of acquittal and convicted all the 14 accused – Thereafter Narasappa, original accused 1 died. During the pendency of this appeal in this court, it is reported, appellant 8, original accused 9 died – They were told that the shop owner Chammallappa was not there and his son-in- law was present who told them to come after two days. As it was hot they took rest for some time. Both of them then started to walk to their village they could not get the bus and they wanted to go by walk as their village was not far away – Deceased 2 and deceased 3 also joined them – On their way, pw 2 Khasim Patel who was also going to the same village accompanied them –Held, Medical evidence shows that there are only three lacerated wounds on D-l and six lacerated wounds on D-2 totalling 9 and the abrasions were due to fall – Question is whether, seven in number who are said to have attacked two deceased with sticks indiscriminately caused only 9 lacerated injuries and not even a single contusion. No overt act has been attributed to A-8 throughout – As pointed out in cases of this nature, the overt act test need not only be a decisive test but is one of the legitimate tests to be applied while scrutinising the evidence – If such overt acts are mentioned consistently right from the stage of the FIR and if the medical evidence supports it, then such of those accused to whom such overt acts have been attributed could safely be held to be members of the unlawful assembly with the common object of committing those offences – In the earliest report Public Witness 1 attributed specific overt acts – No doubt he mentioned that A-12 being was also present and was instigating without being armed with any kind of weapon. Wethink it is highly unsafe to accept it so far A-12 is concerned – Appeal is partly allowed.
Key Points: - (!) The case involves interpretation of sections 148, 302, and 302/149 IPC and whether multiple accused could be convicted or acquitted based on evidence of overt acts and medical injuries. - (!) The court emphasizes the overt act test as a legitimate method to scrutinize evidence for associating accused with unlawful assembly with a common object. - (!) Public Witness 1 is described as partisan, but not alone sufficient to reject prosecution; need careful scrutiny of his testimony and corroboration by others and medical evidence. - (!) Medical evidence shows specific numbers of lacerated wounds on deceased and injuries to PW-1, with discussion on whether the injuries correspond to alleged acts. - (!) Delay in FIR and conduct of witnesses cannot by themselves wholly reject the testimony, though court scrutinizes such factors in context. - (!) On appeal, some accused were acquitted while convictions against others were upheld or set aside, showing partial affirmation and partial reversal of judgments. - (!) The High Court’s approach to evaluating eyewitness presence and the consistency of FIR details with initial statements is discussed. - (!) The judgment confirms that overt acts must be consistently mentioned from FIR and supported by medical evidence to establish membership in unlawful assembly. - (!) The appeal is partly allowed, with some accused convicted and others acquitted or their convictions set aside. - (!) Narasappa (A-1) dies before filing of appeal; some co-accused died during pendency; proceedings address survivals and abatement.
How to determine liability under sections 148, 302, and 302/149 of the Indian Penal Code in a case involving multiple accused and alleged overt acts?
What is the role and reliability of overt acts and eyewitness testimony in establishing unlawful assembly with common object?
What is the proper treatment of delays in FIR and enmity between witnesses when evaluating an acquittal or conviction in a murder case?
( 1 ) THIS is an appeal under Section 2-A of the Supreme court (Enlargement of Criminal Appellate Jurisdiction) Act. The 13 appellants, original accused 2 to 14, along with one Narasappa, original accused 1 were tried by the learned additional Sessions Judge Gulbarga for offences punishable under Sections 148, 302 and 302/149 Indian Penal Code and they were acquitted. The State preferred an appeal and a division bench of the High court reversed the order of acquittal and convicted all the 14 accused. Thereafter Narasappa, original accused 1 died. During the pendency of this appeal in this court, it is reported that Mookappa alias Sabanna son of Shivrappa, appellant 8, original accused 9 died. The prosecution case is as follows :
( 2 ) THERE are three deceased persons in this case. Doida Galib Patel, marappa, Bheemanna, the deceased persons and the material witnesses PWs 1, 2, 3 and 4 belong to Village Mundergi within the limits of Yadgiri Police station. The 14 accused also belong to the same village. There had been long- standing enmity between Public Witness 1 and some of the accused. On the day of occurrence namely, 7/5/1980, Public Witness 1 went to Yadgiri to purchase some groundnut seeds along with D-l. They reached Yadgiri at about noon time. They were told that the shop owner Chammallappa was not there and his son-in- law was present who told them to come after two days. As it was hot they took rest for some time. Both of them then started to walk to their village at about 5 p. m. as they could not get the bus and they wanted to go by walk as their village was not far away. Deceased 2 and deceased 3 also joined them. On their way, pw 2 Khasim Patel who was also going to the same village accompanied them. They were passing through the footpath, near Tambara Kere, another witness namely Bukkappa (not examined) also joined them. When they covered some distance they saw two ladies Chanbasamma and Narsamma also going. When they reached near Shivanas land, they heard the sound of footsteps and when they turned back then they saw A-1 to A-14 coming behind them. Public Witness 1 was hit by a stone on the left side of his hip. Out of 14 persons, except A-12, the others were holding sticks, axes and knives. Deceased I was hit by another stone as a result of which he fell down and D-2 and D-3 wanted to raise him. By that time a-1, A-2, A-6 and A-7 started attacking with axes and A-10, A-11, A-14 beat with the sticks as a result of which D-l died after sustaining bleeding injuries. A-3 and A-5 and A-4 and A-7 axed the deceased Marappa as a result of which he also died. Bhimanna deceased was grappling with A-1 and when A-1 cried out, he was bitten, A-9 and A-13 went and beat Bhimanna with sticks as a result of which he moved to the side and then A-1 took out a jambia and hit him and when he fell on the ground, A-2 and A-6 hit him with the axes. A-12 was instigating others. Public Witness 1 who received injuries due to the stone hits ran to the village. Meanwhile the accused persons ran away from the place. Public Witness I informed the father of D-l about the occurrence and thereafter went to his own house and informed his family members. On that night he could not go to the police station as he was afraid and on the next morning at about 7 a. m. on coming to know that nobody lodged the report, at about 8. 30 a. m. went to the police station and gave the FIR which was reduced to writing by ASI - Public Witness 19. A case was registered and investigation commenced. The investigating officer visited the scene of occurrence, sent the dead bodies for post-mortem and also pw I for medical examination. The doctor who conducted the post-mortem on the dead bodies found number of injuries. He also found some injuries on Public Witness I which could have been caused by a stone hit. Some of the accused were arrested and at their instances, recoveries were effected. After completion of the investigation, the charge-sheet was laid. The prosecuti
