IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9th DAY OF JANUARY, 2019 PRESENT THE HON’BLE MR.JUSTICE K.N.PHANEENDRA AND THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL APPEAL NO.1324/2015 c/w CRIMINAL APPEAL NO.1321/2015 IN CRL.A.NO.1324/2015: BETWEEN:
1. Shankara @ Malla S/o Siddashetty Aged about 31 years.
2. Kumar @ Labbi S/o Mariswamishetty Aged about 29 years.
Both are r/at Kandalli Village Yalandur Taluk Chamarajanagar District-571 313.
(By Sri. Pradeep C.S. Advocate for … Appellants Sri. Arun K.S., Advocate for Appellant No.1; Sri. Parameshwarappa C., Advocate for Appellant No.2) AND:
The State of Karnataka by Yalandur Police Station Yalandur Taluk Chamarajanagar-571 313.
… Respondent (By Sri. Vijayakumar Majage, Addl. SPP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the order of conviction and sentence dated 20.10.2015 passed by the Prl. District and Sessions Judge, Chamarajanagar in S.C.No.114/2011 - Convicting the appellants/ accused Nos.1 and 2 for the offences punishable under Sections 302, 143, 147, 148, 341, 504, 506, 324 of Indian Penal Code.
IN CRL.A.NO.1321/2015:
BETWEEN:
1. Srinivasa @ Sheena @ Malla S/o late Basavashetty Aged about 31 years.
2. Ananda @ Dayan S/o Madashetty @ Kolimadaiah Aged about 29 years.
Both are residing at Kandahalli Village, Yalandur Taluk, Chamarajanagar District-571 313.
… Appellants (By Sri. Parameshwarappa C., Advocate) AND:
The State of Karnataka by Yalandur Police Station Yalandur Taluk Chamarajanagar. … Respondent (By Sri Vijayakumar Majage, Addl. SPP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the order dated 20.10.2015 passed by the Prl. District and Sessions Judge, Chamarajanagar in S.C.No.114/2011 - convicting the appellants/accused Nos.3 and 4 for the offences punishable under Sections 143, 147, 148, 341, 504, 506, 302 of Indian Penal Code.
These Criminal Appeals coming on for hearing this day, B.A.PATIL J. delivered the following:-
J U D G M E N T Criminal Appeal No.1324/2015 has been preferred by accused Nos.1 and 2. Criminal Appeal No.1321/2015 has been preferred by accused Nos.3 and 4 assailing the judgment of conviction and order of sentence passed by Principal District and Sessions Judge, Chamarajanagar in S.C.No.114/2011 dated 20.10.2015 whereunder accused Nos.1 to 4 have been convicted and sentenced to undergo life imprisonment for the offence punishable under Section 302 of IPC and also to pay fine of Rs.5,000/-
each, in default to undergo simple imprisonment for six months.
Accused Nos.1 to 7 are sentenced to undergo simple imprisonment for one month for the offence punishable under Section 143 of IPC and also directed to undergo simple imprisonment for one month for the offence under Section 147 of IPC and also directed to undergo simple imprisonment for one month for the offence punishable under Section 148 of IPC.
Accused Nos.1 to 7 are also directed to undergo simple imprisonment for 15 days for the offence punishable under Section 341 of IPC, they are also directed to undergo simple imprisonment for one month for the offence punishable under Section 504 of IPC and they are also directed to undergo simple imprisonment for two months and to pay fine of Rs.2,000/- each for the offence punishable under Section 506 of IPC and in default, they are directed to undergo simple imprisonment for 15 days.
It is further directed that accused Nos.1, 5 to 7 are also undergo simple imprisonment for two months for the offence punishable under Section 324 of IPC and directed to pay a fine of Rs.1,000/- each and in default, they are directed to undergo simple imprisonment for ten days.
2. We have heard the learned counsel appearing for the appellants as well as the learned Additional SPP for the respondent-State.
3. Before going to consider the submissions made by the learned counsels appearing for the parties, we feel it just and proper to put forth the facts of the case of the prosecution in brief as under:
It is alleged in the complaint that on 29.6.2011 at about 8.00 P.M. when the wife of the deceased Smt.Nagarahtnamma was in her house, Siddaraju who was working as a driver in J.B.S. bus came to the house after completion of his duties and he took the dinner and at that time accused Nos.1 to 4 came in front of their house and picked up a quarrel with the said Siddaraju who was sitting in portico of the said house and at that time accused Nos.1 to 4 abused him in filthy language and accused No.1 asked him as to why he had not come towards their village, as to where he had gone. The husband of the complainant- deceased answered that he had gone to the duty and therefore he had not come to the village. In the meantime, accused No.1 picked up fire wood piece which had fallen on the ground and assaulted the deceased on his head and at that time accused No.2 Kumar, accused No.3 Srinivasa, accused No.4 Ananda assaulted the deceased with iron rod on his head and other parts of the body with an intention to kill him and caused him bleeding injuries. The complainant came and requested the accused persons to leave her husband-Siddaraju and she raised a hue and cry and by hearing the same the neighbourers and relatives came and separated the accused persons. In the meantime, accused No.1 came abused the complainant and assaulted with club on her hand and as such she also suffered injuries on her left hand and all the accused persons by throwing the said weapons ran away from that place. Immediately, the injured was taken to the hospital and there the statement of the complainant was recorded and a case was registered in Crime No.55/2011 for the offences punishable under Sections 324, 504, 307 r/w 34 of the IPC. Subsequently, on 3.7.2011 the injured husband of the complainant died and as such a request was made to include Section 302 of IPC in the charge-sheet.
4. After investigation a charge sheet was laid as against accused Nos.1 to 7 for the alleged offences. Thereafter, the committal Court took the cognizance and after following the procedure laid down under Section 207 of Cr.P.C. a case was committed to the Sessions Court. The Sessions Court took the cognizance and secured the presence of accused Nos.1 to 7 and after hearing the learned Public Prosecutor and the learned counsel for the accused, charge was framed, read over and explained to the accused. Accused pleaded not guilty, they claims to be tried and as such trial was fixed.
5. In order to prove the case of the prosecution, prosecution got examined 19 witnesses as PWs.1 to 19 and got marked 20 documents as per Exs.P1 to P20 and also got marked M.Os.1 to 4. During the course of cross-examination the accused persons have got marked Exs.D1 to D4. Accused persons were questioned by putting 313 statement and accused denied the incriminating material as against them. Thereafter, the accused persons have not led any defence evidence. After hearing the learned counsel for the parties, the impugned judgment of conviction and order of sentence came to be passed. Assailing the same, accused Nos.1 to 4 are before this Court.
6. Before adverting to the evidence which has been led before the Court below we feel it just and proper to place on record the submissions made by the learned counsel for the parties. It is the submission of the learned counsel for accused Nos.2 to 4 that as per the case of the prosecution the alleged incident has taken place in the house of the deceased and the complaint discloses that other persons were also present and other persons have not made as the accused in the present case. He further submitted that the independent witnesses have not been examined by the investigating agency. He alternatively submitted that accused No.1 has assaulted the deceased with fire wood piece, that itself clearly goes to show that they have not come with arm. He further submitted, as the deceased was a driver, he himself was having the said iron rod and they have not come with prepared and as such there is no motive or intention to cause the death of the deceased. He further submitted that who actually assaulted the deceased is not clearly stated by any of the witnesses. He further submitted that the motive for the alleged incident is, deceased was teasing the wife of accused No.6 and they came without arm and in a spur of moment in the altercation the alleged incident has taken place without there being premeditation or without intention and as such the offence under Section 302 of IPC is not attracted and at the most they are liable to be convicted only for the offences punishable under Section 304-I or II of IPC. He further submitted that because of the verbal altercation taken place between the deceased and the accused, the alleged incident has taken place. Under such circumstances, the trial Court ought to have taken into consideration all these aspects and it ought to have convicted the appellants/accused for the offence punishable under Section 304-II of IPC. On these grounds, he prayed to allow the appeal and to set aside the impugned judgment of conviction and order of sentence.
7. The learned counsel appearing on behalf of accused No.1 submitted that the defence of the accused is that of alibi and they were not present at the time when the alleged incident has taken place.
He further submitted that the only independent witness who came to be examined, has not supported the case of the prosecution and he has been treated as hostile. Even the other witnesses who have been examined are all related witnesses and their evidence is not trust worthy and reliable. He further submitted by drawing our attention to the evidence of the doctor PW8 that the semi digested food which was found at the time of post mortem, that itself indicates the fact that the deceased has consumed soft food prior to his death. Then under such circumstances he went in coma and subsequently he died due to coma itself is not acceptable. He further submitted that it is a sudden act under pre-meditation and even in the complaint at the last line it has been subsequently stated that they are going to finish the deceased, that itself clearly goes to show that they were not having any intention. He further submitted that no drastic steps have been taken in this particular behalf to commit the alleged offence. He further submitted that the alleged offence will not fall within the provisions of Section 302 of IPC and it is coming only under Section 304-II of IPC, as the accused persons were not having any pre-meditation or having any intention to cause the death. On these grounds also he prays to allow the appeal and set aside the impugned judgment of conviction and order of sentence.
8. Per contra, the learned Additional SPP vehemently argued and submitted that though accused No.1 has assaulted with fire wood piece, as could be seen from the evidence, accused No.2 carried the iron rod and has assaulted on the vital part of the head and as a result of the same deceased went in coma and subsequently succumbed to the said injuries. That itself clearly goes to show that the accused persons have come to the place with an intention to cause the death of the deceased and there was premeditation and intention was also there to cause the death of the deceased. He further submitted that earlier to the alleged incident so many times glata took place and even cases have been registered against the accused as well as the deceased. That itself clearly goes to show that the accused persons were having enmity and intention to cause the death of the deceased. With that intention they came to the house of the deceased and assaulted both complainant and deceased. He further submitted that the doctor who came to be examined the injured has clearly stated that the injuries suffered by the deceased were fatal injuries and subsequently because of the said injuries the deceased died. He further submitted that there are eyewitnesses to the alleged incident and the said witnesses have categorically deposed before the Court about the overt acts of each of the accused persons. There is ample material to show that it is accused Nos.1 to 4 who have assaulted the deceased on vital part of the body and as a result of the same the deceased succumbed to the injuries. He further submitted that the appellants/accused have not made out any grounds to bring the case either under Section 304-I or II of IPC. On these grounds, he prayed to dismiss the appeal by confirming the judgment of conviction and order of sentence.
9. Before going to consider the submissions made by the learned counsel appearing for the parties, we feel it just and proper to place it on record the evidence which has been produced before the Court below.
PW1 is the eyewitness and she is also the complainant and she is injured witness. She was present when the alleged incident has taken place in the house of the deceased. In her evidence she has deposed that prior to the alleged incident there was a galata between the accused and her husband and about one year three months back at about 8.00 p.m. her husband came to the house and was sitting in the portico and at that time accused Nos.1 to 7 came to the house and galata took place between her husband and the accused and when she saw accused No.1 took a fire wood piece which had fallen there and assaulted on his head and accused No.3 Srinivas, accused No.4-Ananda caught hold of her husband and at that time accused No.2-Kumar by uttering that he will not leave him assaulted with iron rod on his head and other parts of the body and at that time she made a hue and cry and sister-in-laws came there, they caught hold of accused Nos.5 to 7 and at that time accused No.1 assaulted on her left hand and caused the injuries and thereafter by throwing the said fire wood piece and rod went away from that place. She has further deposed that as her husband has sustained bleeding injuries, he was taken to Yalandur hospital and at that time her sari was also stained with blood and as such she filed the complaint as per Ex.P1. She has also identified the iron rod MO.1, pieces of tile MO.2, shirt of deceased MO.3 and one fire wood MO.4. During the course of cross examination it has been elicited that there was a galata in respect of the wife of accused No.6 and there was galata about 4 to 5 years back between the accused and her husband and it is also further elicited in the cross examination that the said assault was on the front portion of the head and on both shoulders and other parts of the body. It is further elicited that about one month prior to the alleged incident there was a galata between her husband and accused persons and at that time all the accused persons have told that they will not allow him to leave.
PW2 is also an eyewitness. She is the wife of brother of the deceased. She has spoken with regard to the galata and previous enmity and also she has seen accused persons assaulting the deceased and PW1. During the course of cross-examination, nothing has been elicited so as to discard the evidence of this witness.
PW3 is also eyewitness. She is also wife of brother of the deceased. She has also reiterated the evidence of PW2. She further deposed that because of earlier enmity galata took place. PW4 is the eyewitness and he is also uncle of the deceased.
Though he was treated as hostile, when he was cross- examined by Public Prosecutor he supported the case of the prosecution. He has also reiterated the evidence of PWs.2 and 3. He has further deposed that they pacified the quarrel, they also caused damaged to Mangalore tiles and door. During the course of cross-examination it is elicited that there used to be galata in respect of Sumathi. He used to be quite as it is normal galata and it is taking place frequently. It is further elicited that when he went to the place blood was oozing after assault by Shankar, blood came, rod was with Kumar, he assaulted from front, injured fell down. PW5 is also an eyewitness to the alleged incident. She is the wife of PW4 and she has also reiterated the evidence of the above said eyewitnesses. PW6 Rajamma is the wife of brother of the deceased. She is also eyewitness and she has also reiterated the evidence of the eyewitnesses. PW7 Madevashetty is an independent witness, he has not supported the case of the prosecution and he has been treated as hostile. Even during the course of cross-examination of the learned Public Prosecutor, nothing has been elicited so as to substantiate the case of the prosecution.
PW8 is the doctor who first treated the injured Siddaraju. In his evidence he has deposed that on 29.6.2011 at about 10.50 P.M. when he was on duty at emergency ward, at that time one Rathna brought the injured Siddaraju and they have given the history as one Kumara, Srinivasa and others assaulted in the galata and thereafter he has treated them and he found the injury on his middle of the head, left eye and right lips and on other parts of the body and when injured was brought to the hospital he was unconscious and the blood was oozing from the mouth and after giving the first aid, for further treatment he has been sent to K.R.Hospital, Mysuru. He has further deposed that the said injuries are fatal and the said injuries can be caused by assault with club and he has issued the wound certificate as per Ex.P6. During the course of cross-examination it has been elicited that the said Rathna is the wife of the injured and she has given the history clearly. She has told two names and totally five persons were there and at that time she has not stated that the assailants have used the rod and the other suggestions which have been made have been denied.
PW9 is the Junior Engineer who has prepared the sketch of the scene of offence as per Ex.P8. PW10 is the Secretary of Duggatti Gram Panchayat and he has issued the assessment extract as per Ex.P9 of house of deceased. PW11 is an eyewitness and he is father of the deceased. He has also spoken with regard to earlier galata and he has also deposed by reiterating the evidence of PWs.2 and 3. PW12 is the doctor who treated the deceased Siddaraju on 30.6.2011 and he has further deposed that while the said injured was under treatment, he died on 3.7.2011 at abut 3.20 p.m. and he has also produced the case sheet as per Ex.P10. PW13 is the spot mahazar pancha to Ex.P3. He has not supported the case of the prosecution and he has been treated as hostile.
PW14 is the Doctor who treated injured complainant-Nagarathnamma and found injuries i) abrasion in between the left index finger and middle finger; ii) swelling of left hand, tenderness present; iii) tenderness present over right shoulder. Issued wound certificate as per Ex.P11.
PW15 is the doctor who has issued the death certificate about the deceased Siddaraju as per Ex.P12. PW16 is the ASI who went to the hospital recorded further statement of PW1 as per Ex.P2. PW17 is the doctor who has conducted the post mortem over the body of the deceased and issued post mortem report as per Ex.P13. PW18 is the ASI who further investigated the case. PW19 is the CPI who further took the investigation and thereafter filed the charge sheet against the accused persons.
On the basis of the above evidence, let us consider the submissions made by the learned counsels appearing for the parties.
10. Insofar as the motive aspect is concerned the prosecution has clearly established the fact that earlier to the incident there used to be galata between the accused and the deceased in respect of he having relationship with wife of accused No.6. Even during the course of cross examination of PW1 it has been elicited that earlier to the alleged incident, even during 2008 there was a galata in respect of the said teasing by the deceased to the wife of accused No.6 and sister of accused No.2 and in that context there was enmity between the accused and the deceased. Even in the evidence of PW1 during the course of cross-examination it has been elicited that prior to one month of the alleged incident there was a galata near the bus stand, that itself clearly goes to show that since 2008 there used to be galata between the accused and the deceased. In this regard the motive for the alleged incident has been clearly established by the prosecution.
11. Insofar as the second aspect is concerned, the prosecution has also proved the fact that the deceased died a homicidal death. In order to substantiate the said fact the prosecution has got examined the doctor PW8 who first treated the injured and in his evidence he has specifically deposed that the injuries which have been sustained by the injured are fatal injuries and even PW17 Dr.M.P.Kumar, who conducted the post mortem over the body of the deceased as per Ex.P13 has also clearly stated that death is due to coma as a result of head injury sustained by the deceased. Even as could be seen from the post mortem report Ex.P13 he has suffered sutured wound above lateral aspect of left eyebrow, sutured wound present over right side of upper lip, grazed abrasion present over right cheek, sutured wound situated over right parietal region, linear abrasion present over lateral aspect of right side of chest, grazed abrasion present over left scapula and over sacral region. All injuries are antemortem in nature. Abrasions reddish brown in colour, blood extravasated at fracture sides, no clothes and articles found on the body.
12. By going through the evidence which has been produced and even the inquest mahazar Ex.P5 and injuries mentioned therein also clearly goes to show that the deceased died due to the injuries which have been suffered in the alleged incident. In this behalf also the prosecution has clearly established the fact that the deceased Siddaraju died homicidal death.
13. Keeping in view the facts and circumstances, let us consider the evidence of the eyewitnesses. There are as many as five eyewitnesses to the alleged incident. By going through the evidence which has been discussed above, it clearly goes to show that the alleged incident has taken place in the house as alleged in the complaint-Ex.P1 and same has been reiterated by PW1. In her evidence, so also in the evidence of PWs.2, 3, 4 to 6 they have clearly deposed the overt acts of each of the accused persons. Even the presence of the accused at the alleged incident is also not seriously disputed in this behalf during the course of cross-examination. By taking into consideration the above said facts and circumstances the alleged incident has taken place in the house of the deceased and even the evidence which has been produced clearly goes to show that it is the accused No.1 who assaulted the deceased with fire wood piece and accused No.2 has assaulted with iron rod and at that time it is accused Nos.3, 4 and 5 were holding the deceased. In this behalf the evidence which has been produced before the Court below is sufficient to establish the fact that it is the accused persons who have assaulted the deceased and caused the fatal injuries. Even the crowning factor is that PW1 is the injured witness in the alleged case. There is reliable ocular evidence of all the eyewitnesses coupled with testimony of injured eyewitness, though she is the wife of the deceased her evidence is most worthy of credence. The said evidence is corroborated with the evidence of PW8. Doctor who treated first deceased coupled with evidence of PW17 who conducted post mortem over the body of deceased and his opinion that death is due to coma as a result of head injury is sufficient to conclude that accused Nos.1 and 2 assaulted on head and other accused person assisted and aided the main accused. There is no material produced by the accused persons for false implication. Even the evidence produced is so strong that the relation between the accused and deceased was not cordial.
14. Whenever there are injured eyewitnesses, the presence of the said witness also can be established with reference injury certificate of PW1 issued by PW14 Doctor as per Ex.P11 and evidence of PW8 and Ex.P6 and even she has also taken injured to the hospital and she has also taken treatment for the injuries suffered by her. Even the medical certificate which have been produced for having taken the treatment by the deceased as well as by PW1, clearly goes to show that the history given in the said certificate clearly goes to show that it is accused Nos.1 and 2 along with three others have assaulted the said two persons. There is corroboration with regard to presence of PW1 with reference to Exs.P3 and P4. All these materials which have been produced corroborates the fact that the alleged incident has taken place as contended by the eyewitnesses. During the course of cross-examination though the lengthy cross-examination has been done, with all these eyewitnesses, nothing has been elicited so as to discard their evidence. However, we have noticed some minor discrepancies in their evidence. Those discrepancies will not take away the case of the prosecution and discard their evidence. Under the said facts and circumstances we are of the considered opinion that the said evidence which has been produced clearly goes to show that immediately after the incident the name of accused persons has been mentioned in medical certificate and the alleged incident has taken place as contended by the eyewitnesses.
15. Be that as it may, coupled with above evidence even MOs.1, 2 and 4 have been recovered from the place of incident. When accused persons were known to the witnesses, accused persons have also not made out any case of animosity against the witnesses and evidence of prosecution is worth of credence. Then it can be safely held that the prosecution has proved the guilt of the accused beyond all reasonable doubt. Said preposition of law has been laid down by the Hon’ble Apex Court in the case of Channdrashekar and Another v/s. State reported in 2017(13) SCC 585, wherein at paragraph-10, it is observed thus:-
10. Criminal jurisprudence attaches great weightage to the evidence of a person injured in the same occurrence as it presumes that he was speaking the truth unless shown otherwise. Though the law is well settled and precedents abound, reference may usefully be made to Brahm Swaroop v. State of U.P. observing as follows: (SCC p. 302, para 28) “28. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an in-built guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.”
16. Keeping in view the said facts and circumstances, we are of the considered opinion that the evidence of the prosecution is sufficient to hold the accused persons guilty for the alleged offences.
17. It is the alternative submission of the learned counsel appearing for the appellants that the alleged incident has taken place without there being any premeditation or intention and the said incident has taken place in a spur of moment when accused persons went to the house of deceased and even at the time of alleged incident they have come to the place without carrying any arms and the rod. That itself clearly goes to show that the accused persons were not having any intention to cause the death of the deceased. In that light, they have requested this Court to consider the case under Section 304-I or II of the IPC.
18. In order to consider the case under Section 304-I and II of IPC, the case has to be made out under exceptions No. 1 or 4 of Section 300 of IPC. For the purpose of brevity we quote Section 300 of IPC and exceptions (1) and (4) which reads as under;
300. Murder.–Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or – 2ndly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or – 3rdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or – 4thly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1. – When culpable homicide is not murder. – Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
The above exception is subject to the following provisos:-
First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2.- xxx xxx xxx Exception 3.- xxx xxx xxx Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation.—It is immaterial in such cases which party offers the provocation or commits the first assault.
19. On going through exception 1 of Section 300 of IPC, culpable homicide is not murder if the offender while doing the act deprived of the power of self control, by grave and sudden provocation. In order to bring the case under the said exception accused has to show that he deprived of the power of self control, by grave and sudden provocation which is caused by the person whose death has been caused.
Second aspect is in order to attract exception No.4, four requisites must be satisfied by the accused (i) it was a sudden fight (ii) there was no premeditation (iii) the act was committed in heat of passion and (iv) assailant has not taken undue advantage or acted in cruel manner.
20. We have carefully gone through the said provision of law by giving our thought, full consideration, in order to invoke the benefit under exception No.1 to Section 300 of IPC, accused persons must show that there was provocation and such provocation was both grave and sudden. There must be simultaneous reaction and which deprived him of the power of self control which is caused by the person whose death has been caused. In order to invoke exception No.4 of Section 300 of IPC accused must show that there exists above said condition, then the cause of quarrel is not material. With the above said ingredients, if we peruse the evidence on record nowhere it is brought on record either in examination in chief or during cross-examination of any of the witnesses to the effect that there was provocation, such provocation was grave and sudden which is caused by the deceased person Siddaraju or injured PW1 nor it was a sudden fight without there being any pre-meditation and alleged incident has taken place in a heat of passion. In this behalf there is absolutely no evidence. Without there being any foundation in the case such a contention has been taken during the course of agreements. In that light, we are not accepting the said contention as the same is rejected.
21. Be that as it may. Even as could be seen from the evidence which has been produced in this behalf, it clearly goes to show that the accused persons were having the intention to cause the death and with that intention came by holding iron rod and assaulted the deceased on his vital part i.e. head and as a result of the same he went in coma and because of the same he ultimately succumbed to the said injuries. Even the words used at the time of assault and other acts, it shows that accused persons have taken the advantage of the situations. In that light also the said contention is liable to be dismissed, accordingly it is dismissed.
22. During the course of argument the learned counsel for the appellants by drawing our attention to the evidence of PW18 contended that there was semi- digested food found in the stomach of the deceased at the time of the post mortem. That itself clearly goes to show that 3 to 4 hours prior to the death of the deceased, he has consumed some food, he has not gone to coma immediately after the assault and died after three days of the incident. But as could be seen from evident of PW18, when PW18 came to be examined, though several questions have been put to PW18, important question whether a person who is in coma, before going to coma, if he has consumed the food, whether it is going to be digested or not has not been clarified or when he regained from coma has been elicited from the evidence of these witnesses. Even it is not suggested to any body that he came out from coma. Even assuming if a person is in coma, in that situated, food will be given by naso gastric tube (feeding tube). This aspect is also not elucidated in cross-examination. Under the said facts and circumstances, the said contention is not going to be acceptable.
23. Be that as it may. When there is a fracture of cervical C5 – C6 and there is dislocation and because of that if the deceased has gone to coma and death was due to coma as a result of head injury sustained by the deceased and because of the assault committed by the accused persons the deceased went to coma and died. Then under such circumstances, the said contention is also not acceptable.
24. As could be seen from the evidence produced accused No.1 assaulted with fire wood piece, accused No.2 assaulted with iron rod, at that time accused Nos.3 and 4 were holding the deceased. On going through Section 149 of IPC it is not necessary that there should be prior consent or meeting of members of that assembly, the object may be on the spot, at that moment, if he is a member of such assembly, it is enough if it is adopted by all the members and is shared by them. If there is overt acts during the course of alleged incident they can be made liable vicariously to all the acts along with other accused persons. This proposition of law has been laid down by the Hon’ble Apex Court in the Case of Ramachandran and Others Vs. State of Kerala reported in 2011(3) SCC (Criminal) 677, wherein at Paragraphs 17, 18 and 19, it is observed thus:-
17. Section 149 IPC has essentially two ingredients viz. (i) offence committed by any member of an unlawful assembly consisting of five or more members, and (ii) Such offence must be committed in prosecution of the common object (under Section 141 IPC) of the assembly or members of that assembly knew to be likely to be committed in prosecution of the common object.
18. For “common object”, it is not necessary that there should be a prior concert in the sense of a meeting of the members of the unlawful assembly, the common object may form on the spur of the moment; it is enough if it is adopted by all the members and is shared by all of them.
19. In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. (Vide Bhanwar Singh v. State of M.P.) Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under the second part of Section 149 IPC if it can be held that the offence was such as the members knew was likely to be committed. The expression “know” does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that if a body of persons go armed to take forcible possession of the land, it would be right to say that someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of Section 149 IPC. There may be cases which would come within the second part, but not within the first. The distinction between the two parts of Section 149 IPC cannot be ignored or obliterated.
25. Keeping in view above preposition of law and evidence on record it shows that accused Nos.3 and 4, other accused persons were members of unlawful assembly, if any one of the person have commit the alleged offence, then under such circumstances all the accused persons are also equally liable to be punished for the alleged offences. As could be seen from the judgment of trial Court accused Nos.1 to 7 have been convicted for the offences under Sections 143, 147 and 148. Accused Nos.5 to 7 have not preferred any appeal in this behalf. In that light it is liable to be confirmed.
26. Taking into consideration the above said facts and circumstances we are of the considered opinion that the appellants/accused have not made out any good grounds to interfered with the judgment of conviction and order of sentence imposed by the trial Court.
27. We have carefully and cautiously gone through the evidence and on re-appreciation of the evidence and by seeing the judgments of the trial Court the trial Court has rightly come to the right conclusion and there is no any illegality or perversity while passing the impugned judgment of conviction and order of sentence. The said judgment is liable to be confirmed.
28. Taking into consideration the above said facts and circumstances the following order is passed:
The appeals are devoid of merits, same are liable to be dismissed and accordingly the appeals are dismissed.
Sd/- JUDGE Sd/- JUDGE *AP/-