IMPORTANT POINT
The factum of causing injury or not causing injury would not be relevant, where accused is sought to be roped in with the aid of Section 149 IPC. The relevant question to be examined by the court is whether the accused was a member of an unlawful assembly and not whether he actually took active part in the crime or not.

Judgment :-

H.L. Dattu, J.

1) Delay Condoned and Leave granted in SLP(Crl.) No. ....… of 2012 (Criminal Miscellaneous Petition No.23190 of 2011).

2) Since both Criminal appeals arise out of the common judgment of the High Court, we propose to dispose of the same by this common judgment.

3) These appeals are directed against the common judgment and order passed by the High Court of Karnataka at Gulbarga in Criminal Appeal No. 1185 of 2006 and Criminal Appeal No. 824 of 2006, dated 16.06.2009, whereby and where under, the High Court has reversed the order of acquittal of accused Nos. A1, A15, A16, A21 and confirmed the order of conviction of accused Nos. A13 and A14 passed by the Sessions Judge, Bijapur, in Sessions Case No. 82 of 2002. The appellants are convicted under Section 302/149 IPC and sentenced to imprisonment for life.

4) The facts of the case, in brief, as put forth by the prosecution are:-

Shri. Bhimappa Biradar (deceased), the father of the Complainant had long standing enmity with Mansani family and Sirabur family, as 30 years ago, members of Mansani and Sirabur family had murdered the grand father of the deceased. Subsequently, this enmity further intensified due to political rivalry and their relationship became more hostile.

5) It is the case of prosecution that, at 10.00 am on 15.09.2001, the deceased Bhimappa Biradar (for short `Bhimappa’) was sitting on the platform of village well and his son PW1 was getting his motor cycle tyres filled with air in the shop of PW-11, situated right opposite to the village well. PW-4 (grand daughter of deceased) informed the Bhimappa (deceased ) that his presence was required in his house; the Bhimappa (deceased) got up and started proceeding towards his house. At that time, Maningappa Sannasiddappagol (A1) holding axe, Tippanna Ningappa Kundaragi (A13) holding club, Shivappa Tippanna Kundaragi (A14) holding axe, Krishnappa alias Kristappa Shashappa Biradar (A15) holding club, Jaggappa Mallappa Biradar (A16) holding club, Prakash Mallappa Shirabur (A17) holding chopper and Malappa Shashappa Biradar (A21) holding club came running from the side of the well. In response to this, the Bhimappa (deceased ) tried to flee away but the above accused persons caught hold of him. Thereafter, the deceased sat down pleading not to assault. A13 and A14 unperturbed to deceased’s imploration for mercy, assaulted him with axe due to which deceased’s fingers of hand got cut. He sustained severe head injuries and fell down on the ground. Thereafter, A1, A15, A16 and A21 dragged Bhimappa (deceased ) to a couple of feet to the road. Then, A13, A14 and A17 again assaulted the Bhimappa (deceased ) on the neck, shoulders and legs. The above accused also threatened the bystanders with dire consequences, if any one attempt to intervene to rescue the deceased. Thereafter, A2 to A12, A18 to A20, A22 and A24 came running to the scene and assaulted the deceased with hands and kicked him. After this assault, the above accused persons went away from the scene along with their weapons.

6) After this incident, PW1 went to his elder brother Venkappa who was constructing a house and from there, they both went to Babaleshwar Police Station at about 11:15 am to file a complaint but PSI (SHO)- PW18 was on duty at some other village. On arrival of PW18, the written complaint of PW1 was lodged at 12:00 Noon. On the basis of said complaint, the First Information Report dated 15.09.2001 in Crime No. 122/2001 was registered and sent to the Court of CJM, Bijapur.

7) Thereafter, all the accused were arrested within a week from the date of incident. Further, recoveries of blood stained weapons used for the commission of offence were made under a mahazar. The blood stained clothing of the deceased along with blood stained weapons were sent to the Forensic Science Laboratory. The Serology report and FSL confirmed that stains on the articles found are of human blood.

8) After investigation, the police charge-sheeted a