JUDGMENT
Hiremath, J.
1. Respondents were the accused before the trial Court of Sessions who stood charged under sections 143, 147, 324, 302 and 504, I.P.C. The common object of the unlawful assembly was to commit murder of Basappa, Yallappa and Ramappa sons of Huchappa. They not only caused hurt to these three persons by assulting them with clubs in prosecution of the common object of the same unlawful assembly but also caused the death of Renukavva the minor daughter of the complainant Bhimappa by assaulting her with a sickle when she came to rescue her father. Thus according to the charge they were armed with deadly weapons like clubs and sickle. It was A-1 among them that committed the murder of Renukavva by assaulting her with a sickle. Though the injured witnesses gave evidence the trial court rejected the prosecution evidence holding that they are unreliable and acquitted the accused. The State has challenged this Judgment of acquittal in this appeal.
2. The prosecution case briefly stated is that the accused and the prosecution witnesses are of Lingapura village in Dharwad District. A-1, A-3 and A-4 are the sons of A-2 Hanumanthappa, A-5 married the daughter of A-2. A-6 is the brother of A-5 whereas A-7 has given his younger sister in marriage to A-1. A-8 is also related to A-7, P.Ws. 13, 14 and 15 i.e. Basappa, Yellappa and Ramappa sons of Huchappa respectively are the younger brothers of the wife of PW 1 the complainant. They are also living at Lingagpur and in the same locality, having 9 acres of land quite near to the land of A-1 to A-4. There is a channel from which PWs 13 to 15 and A-1 to A-4 were taking water to feed their crops. On the morning of 10-9-1983 when PW 15 Ramappa had gone to his land to feed it with water, at about 1 PM, A-3 abused him and beat him questioning why he was obstructing the flow of water by diverting it to his land. Having returned home he told it to PW 1 his brother-in-law and PW 1 asked him to wait till his brothers returns from the land. In the evening when PWs 13 and 14 his brothers returned home PW 15 told them about the incident in which he was assaulted by A-3. Thereafter all of them went to the house of the complainant PW 1. When they were sitting in his house at about 9 PM. PW 1 engaged himself in thrashing linseed. At that time A-1 went there challenging these witnesses to go to the land preventing him from taking water to his land. A-2 to A-8 had also followed him. They started abusing PW 13. At that time A-1 was armed with a wooden hammer called “Hente-Kodati” used to break mud-lumps and others with bamboo sticks. All the accused assaulted PWs 13 and 14 and when PW 1 intervened his daughter Renukva, 12 years of age came running and attempted to rescue him by hugging him. A-1 assaulted her with the said Kodati and she fell down. He was also assaulted then. She sustained bleeding injury. He sent his son Ramappa to Hamsabavi, Police Station but in the meanwhile Sub-Inspector of Police PW 19 who had received information about rioting at Hansabavi came there on a motorcycle and the injured Renukavva was taken to Hansabavi Government Hospital. By the time they reached the hospital she had died. He filed his complaint as per Ex. P1 before PW 19 the P.S.I. on which a case in Cr. No. 36/84 came to be registered at 11.30 p.m. the same night. PW 19 referred the injured witnesses including PW 1 for treatment to the Government hospital. The following day inquest was held over the deadbody at the hospital and mahazer of the spot of incident was also drawn by him. Material witnesses were examined. A1, A3, A7 and A8 were arrested on 14-9-1984 and A-2 on 16-9-1984. The four accused arrested on 14-9-1984 gave information under section 27 of the Evidence Act to the Assistant Superintendent of Police PW 21 and then produced the wooden hammer and three clubs either from their houses or from near the houses which were seized under mahazars. Even A2 produced a club. On 27-9-1984 the other accused surrendered before the J.M.F.C. Court at Hirekerur and they were arrested. Their statements under Section 27 of the Evidence Act were recorded as per Exs. P-26 to P-28. They also produced a club each. Though the C.P.I., Hirekerur had taken up investigation for some time ultimately it was the A.S.P. PW 21 who completed it and filed the charge-sheet.
3. The trial Court found the evidence given by these witnesses including the injured witnesses as unreliable and discrepant. It was urged on behalf of the State that motive is clearly established by bringing on record that the accused were aggrieved by the act of PW 15 in taking water to his land, there was earlier incident in the land the same morning and at the time of the incident at night the accused clearly showed that they had the common object to commit these offences. The learned Counsel for the respondents however not only supported the Judgment of acquittal but also contended that charge No. 1 was wholly different from the evidence adduced and the evidence has absolutely no bearing on the charge which A1 was called upon to face. Even on that ground the acquittal is proper. We have reappraised the evidence.
4. Attention of the Court was drawn pointedly to the fact that the 5th charge alleges that A1 had committed the murder of Renukavva the minor daughter of the complainant PW 1 by assaulting her with a sickle whereas evidence has now been led that A1 was armed with Hente-Kotati. Thus the evidence is contrary to the charge, the accused were misled and they were not only prejudiced but failure of justice has occasioned. There is no independent charge under section 148 specifying which of the accused was armed with what weapon. In the last charge Sections 143, 147, 148, 324, 302 and 504 and Section 149, IPC have all been rolled up. In the 4th charge all of them are alleged to have caused hurt under section 324, I.P.C. by assaulting PW 13 Basappa, PW 14 Yallappa and PW 15 Ramappa with clubs. Thus to put briefly in the charge framed on 10-7-1985, A-1 is charged with having committed murder of Renukavva by assaulting her with a sickle whereas other accused are charged with assaulting PWs 13 and 15 with clubs thereby specifying that these other accused were armed with clubs. During evidence no doubt these material witnesses consistently deposed that A1 had come armed with Hente-Kotati or wooden hammer whereas other were armed with bamboo sticks and they also consistently deposed that Renukavva was assaulted by A-1 on her head with the said Kodati, none of the witnesses stating that A1 was either armed with a stickle or assaulted Renukavva with sickle, PW 9 the Medical Officer of Chickerur who conducted autopsy over the dead body of Renukavva on 12-9-1984 found an injury measuring 1 and 1/4″ length 1/3rd” deep transversely situated at the upper end posterior part of the skull with margins lacerated and blood cloths present around the injury. Multiple fractures were felt at the upper part of middle part of the skull. Death was due to haemorrhage and shock and it was sufficient to cause the death of the deceased. Seeking MO-1 the wooden Hente-Kotati produced in Court he stated that the injuries on Renukavva could have been caused by it. It was suggested to him that such an injury could be caused if one falls from a ladder with head down and he admitted.
5. The Court has to consider this aspect at the outset to see if by this averment in charge No. 5 the accused was prejudiced and failure of justice has occasioned. It may be stated at the outset that in none of the papers produced in Court copies of which were given to the accused persons before framing charge there is allegation of A1 being armed with a sickle and assaulting Renukavva with sickle. The learned Additional State Public Prosecutor as well as the learned Counsel for the respondents agreed that this averment has been made without any material on record, but the charge does specify in what manner murder of Renukavva was committed and with what weapon. In a trial before a Court of Session if upon consideration of the records of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution the Judge is of opinion that there is ground for presuming that the accused has committed an offence he shall frame in writing a charge against the accused. Thus in the instant case it must be presumed that the IInd Additional Sessions Judge, Dharwad (Shri H. N. Narayan) did peruse the records and the documents and also heard the submissions on behalf of the accused and the prosecution and then framed the charge. It appears till the close of the trial and even after the trial and during arguments neither the prosecution nor the defence urged to the Court that the evidence adduced was contrary to the allegations made against A-1 in the 5th charge regarding the weapon used by him in causing the death of Renukavva. It is only in this appeal that this submission was made. The substance of argument of the learned Counsel for the accused-respondents is that the evidence is not in support of the charge but is contrary to the charge and therefore it has occasioned failure of justice and prejudice is quite apparent on the very face of the charge and the evidence adduced. In the case of Willie (William) Slaney v. State of M.P., 1956 (1) MLJ 100 : (1956 Cri LJ 291) the Supreme Court pointed out at page 105 as follows (at page 298, of Cri LJ) :
“Now there is no doubt that a charge forms the foundation of a sessions trial and is a most important step in it. The accused must know and understand what he is being tried for and must be told in clear and unambiguous terms : Section 271(1). There can be no shirking that or slurring over it, and this must appear on the face of the record. It cannot be established by evidence taken after the trial. But there is, in our opinion, equally no doubt that the Code expressly deals with this and expressly provides that no error, omission or irregularity in the charge, or even total absence of a charge, shall vitiate a trial unless prejudice to the accused is shown. This is repeatedly reiterated in a number of sections. The whole question therefore is whether the ‘charge’ must be formally reduced to writing and expressed as a ritualistic formula in order to save the trial from the fundamental defect of an incurable illegality or whether the information that is the substance of the matter can be conveyed in other ways. The question is whether we are to grasp at the substance or play hide and seek among the shadows of procedure.”
Ultimately their Lordships pointed out that when there is a charge and there is either error or omission in it or both, and whatever is nature, it is not to be regarded as material unless two conditions are fulfilled both of which are matters of fact : (1) the accused has in fact been misled by it and (2) it has occasioned a failure of justice (page 106). Considering the case in error is not observed and corrected during trial and the accused is convicted their Lordships held that the High Court is empowered to direct a retrial only if, in its opinion, the accused was “misled in his defence”. This is so whether there was a total absence of a charge or merely an error in it. It is evident that a conviction cannot stand if the defect cuts at the root of the trial, therefore, defects even of this nature are not regarded as fatal (ibid). The decision was rendered under old Code of 1898 and even though there are some alterations in the Code of 1973 the corresponding provisions with regard to charge and error in charge are pari materia the same. Relying on these observations it was urged that A1 was charged with having assaulted Renukavva with a sickle, but the evidence shows that there was no sickle, but the evidence shows that there was no sickle injury on her and in conformity with the medical evidence now Hente-Kodati has been introduced which on the very face of it shows prejudice to the accused in his defence. Nothing more need be shown. In the case of Suraj Pal v. State of U.P., a number of accused persons were committed to the Sessions by the Magistrate by framing charges under Sections 147, 323/149, 307/149 and 302/149 Penal Code. There were no direct and individual charges against the accused for the specific offences under sections 307 and 302, IPC. The Sessions Judge found all the accused guilty of the various offences as charged and sentenced them. On appeal the High Court acquitted some of them and as regards one of the accused who was suspected of firing his pistol against the deceased, the High Court while setting aside the conviction and sentences fo all the accused under Section 307/149 and 302 convicted and sentenced him under section 307 for transportation for life and to death under section 302, IPC. It was held that there were no direct and individual charges against the accused for the specific offences under sections 307 and 302, Penal Code. The absence of specific charges against the accused under section 307 and 302 was a very serious lacuna in the proceedings and had materially prejudiced the accused. Hence the conviction and sentence under section 307 and 302 could not be maintained against the accused. At para 3 of the Judgment the Supreme Court pointed out that a charge against a person as a member of an unlawful assembly in respect of an offence committed by one or other of the members of that assembly in prosecution of its common object is a substantially different one from a charge against any individual for an offence directly committed by him while being a member of such assembly. The liability of a person in respect of the latter is only for acts directly committed by him, while in respect of the former, the liability is for acts which may have been done by any one of the other members of the unlawful assembly, provided that it was in prosecution of the common object of the assembly or was such as the members knew to be likely to be so committed. Whether or not Section 149, IPC creates a distinct offence, there can be no doubt that it creates a distinct head of criminal liability which has come to be known as “constructive liability” a convenient phrase not used in the Indian Penal Code. There can, therefore, be no doubt that the direct individual liability of a person can only be fixed upon him with reference to a specific charge in respect of the particular offence. Such a case is not covered by Sections 236 and 237, Cr.P.C. The framing of a specific and distinct head of criminal liability constituting an offence, is the foundation for a conviction and sentence therefor. Referring to the ommissions in the charge as to the individual liability of the accused persons found guilty their Lordships observed as follows at page 1008; of Cri LJ;
“The portions underlined in the charge under heads 2 and 3 above are curiously vague. They appear to indicate a definite non-committal attitude on the part of the Public Prosecutor and the Court, which has the ultimate responsibility for the framing of the charge as to who is the active author of the pistol fire referred to under these two heads of charge. When the charge was so pointedly vague, no accused was abound to direct his attention in his defence to the question as to whether he or somebody else was the person who fired the pistol which brought about the gun-shot wounds.
It has been brought to our notice that the appellant has been specifically questioned in the Court of Session under section 342, Criminal P.C. on the footing that he was the person who fired PW 2 and the deceased, Surajdin, and that the accused denied it. But this cannot be said to remove any prejudice that would arise by virtue of the vagueness in the charge at the sessions trial, as to who was the author of the pistol fire. Normally in a sessions trial the accused has no right of cross-examination after the questioning under section 342, Criminal P.C. It has been suggested that since such a question was put also in the questioning by the committing Magistrate under Section 342, Criminal P.C., the accused had ample notice of this specific case before the commencement of the sessions trial. But it does not follow that there could be no prejudice. On the other hand, the very fact that in spite of such questioning the charges framed in Magistrate’s Court, with their vagueness, in so far as this feature therein is concerned, has been maintained, before the Sessions Court without any amendment, is likely to have been misleading.”
Their Lordships further observed that the appellant might well have relied on the absence of any such amendment as being an indication that he was not called upon to defend himself on the footing of his being the author of the pistol fire. In a case so serious as that which involves the sentences of transportation for life, and of death, and particularly in a case like the present one, where the death sentence has been awarded in the trial court by distinguishing this appellant from all the other accused in respect of his individual act by way of pistol fire, it is difficult to say that the accused has not been prejudiced by the absence of specific charges under sections 307 and 302, IPC. Even thought in the instant case when the prosecution cameforth with a specific case and charge that A1 was armed with a sickle and assaulted Renukavva with it and committed her murder the evidence that he assaulted her with Hente-Kodati is altogether different and not in support of the charge. Though a charge under section 302, IPC for murder of a person need not state the manner of committing the murder, when the manner has also been stated in the charge then the evidence must be in support of that manner so alleged.
6. The learned Additional State Public Prosecutor however has relied on the provisions of the Code of Criminal procedure relating to the charges and Illustrations to some of the sections and also Section 464 of the Code. Section 464 reads as follows :
“464. Effect of omission to frame, or absence of, or error in, charge. – (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed in valid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may –
(a) in the case of an omission to frame a charge, order that a charge, be framed and that the trial be recommended from the point immediately after the framing of the charge;
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit :
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction”.
It could thus be seen that in both the sections emphasise is on the irregularity or error or omission occasioning failure of justice. Section 212(1), Cr.P.C. relating to particulars as to time, place and person requires that a charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. Under Section 214 in every charge words used in describing an offence shall be deemed to have been used in the sense attached to them respectively by the law under which such offence is punishable. Section 215 relating to effect of errors reads thus :
“215 Effect of errors. – No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in the fact misled by such error or omission, and it has occasioned a failure of justice.”
The learned Additional State Public Prosecutor while conceding that there has been an error in the framing of charge in the matter of specification of the weapon used in the commission of the murder invited our attention to Illustration (d) to Section 215, Cr.P.C. which reads as follows :
“(d) A is charged with the murder of Khoda Baksh on the 21st January, 1882. In fact, the murdered person’s name was Haidar Baksh, and the date of the murder was the 20th January, 1882. A was never charged with any murder but one, and had heard the inquiry before the Magistrate, which referred exclusively to the case of Haidar Baksh. The Court may infer from these facts that A was not misled, and that the error in the charge was immaterial.”
According to him though the charge specified that A1 has assaulted Renukavva with a sickle and caused her death the copies of the papers furnished to the accused never made mention of the sickle having been used by A1 not there was evidence in this behalf. Even under section 313, Cr.P.C. the questions put to A1 only related to use of Hente-Kodati and not sickle. Therefore under any circumstances it cannot be said that the accused were prejudiced by this charge. He has also invited our attention to certain decided cases.
7. In case of State of West Bengal v. Laisal Haque, reference was made to the case of Willie (William) Staney v. State of M.P., and the observations of His Lordship Justice Vivian Bose. The contention of the State has been that the accused-respondents and especially A1 – respondent No. 1 knew fully well from the papers finished to what was the allegation against him, what was the weapon used and who he had assaulted. He was also represented by a Counsel. At no point of time the accused made a grievance out of it. Even under section 313, Cr.P.C. he was questioned about this circumstance of the assaulting the deceased with a Kodati. Therefore there is no question of there being any failure of justice or prejudice to the accused.
8. To support the argument the learned Additional State Public Prosecutor having invited our attention to Illustration (d) to Section 215, Cr.P.C. urged that the Illustration should be considered as a part of the statute and it affords guidance to the interpretation of the section. The Privy Council as far back as in the year 1918 in the case of Lala Balla Mal v. Ahad Shah, AIR 1918 PC 249 ruled that Illustrations are to be taken as part of the statute. The same view was reiterated in the case of Muralidhar v. International Film Co., AIR (30) 1943 PC 34. Their Lordships ruled that in construing a section an illustration to it cannot be ignored or brushed aside because it is not part of the body of the section. The Madras High Court in the case of Kumaraswami v., Karuppuswami, also relied on these two decisions and held that Illustrations to a section are valuable guides in ascertaining the meaning of a section. The learned Judges also made reference to another decision of the Privy Council in the case of Mahomed Syedol Ariffin v. Yeohooi Gark 1916 2 AC 575 : (AIR 1916 PC 242) at page 386 of the report and the view of the Supreme Court is reiterated as follows :
“Illustrations appended to sections of a statute should be accepted if that can be done as being of relevance and value in construing the text; they should only be rejected as repugnant to the section as the last resort of construction.”
Thus going back to the Illustration (d) to Section 215, Cr.P.C. it was contended for the State that though the person murdered was Haidar Baksh and that even the date of murder was 20th January, and not 21st January, 1882 and in the inquiry before the Magistrate the case of murder of Haider Baksh alone was the subject matter and therefore it cannot be said that the accused was misled. The error in the charge was immaterial. This Illustration projects certain facts which were more erroneous than the facts of the case in hand. The Legislature intended that from such errors alone the entire proceedings cannot be said to have been vitiated. The name of the deceased and the date of the incident were different in charge from the one brought about during inquiry and thereafter for which he was tried. Needless to say that the Code of 1973 has dispensed with elaborate committal proceedings before the committal court and instead copies of all the papers and of statements of witnesses are required to be furnished to the accused in the committal court itself to enable him to acquaint himself with the prosecution case and be prepared to argue when the accused is heard by the Sessions Court under section 227, Cr.P.C. If the Sessions Court does not discharge the accused under section 227 then only it proceeds to frame charge under section 228, Cr.P.C. We must at once say that the Public Prosecutor as well as the Sessions Court were careless while the charge was framed that A1 assaulted Renukava with a sickle without there being even an inkiling in any of the statements or papers of this allegation or averment. It is deplorable that the learned Additional Sessions Judge framed this charge perhaps even without looking into the allegation in the charge-sheet. During arguments the learned Counsel for the respondents admitted that neither in the charge-sheet nor in any of the statements of the witnesses sickle is mentioned as a weapon used by A1. On the other hand he agreed that consistently the statements of all the witnesses examined during investigation reveal that the case of A1 assaulting Renukavva with Hente-Kodati has been stated. The medical evidence also is in conformity with this allegation. The accused was represented by an Advocate throughout and being an Officer of the Court it was equally his duty to point out to the Court that there was no case of A1 assaulting Renukavva with a sickle. He cannot be expected to watch the Court committing a mistake misleading itself and put something in the charge which is totally absent in the material furnished to the accused. To that extent even the defence Counsel cannot escape his duty to the Court. If at all he thinks that he can take benefit of such a mistake committed by the Court under his very nose he should be sadly mistaken. There is also no dispute that at no point of time the defence Counsel argued in the Sessions Court that there was an error in the charge which has occasioned a failure of justice and therefore the prosecution case should be thrown out on that ground alone. It is only for the first time that in this appeal such a grievance is being made.
9. A Division Bench of this Court in the case of M/s. A Amichand & Co. v. State of Karnataka ILR (Kar) 1979 (2) 2556 pointed out that Explanation to Section 537, Cr.P.C. 1898 covers cases of omission, error or irregularity in the charges, including misjoinder of charges providing in Section 535 of the Code also. But the fact that objection to the defective framing of charge was not taken at an earlier stage, if it could and should have been taken, is a material circumstance weighing heavily against the accused particularly when he is represented by counsel throughout. Ordinarily, it will be very difficult to sustain a plea of prejudice unless the court is told just where the shoe pinches. This Court relied on a decision of the Supreme Court in the case of K. C. Mathew v. State of Travancore, Cochin, that it would be very difficult to sustain a plea of prejudice unless the court is told just where the shoe pinches. Even in the decisions relied upon by the respondents’ Counsel it was pointed out that ulimately it is the question of prejudice that should determine whether the proceedings during trial were vitiated. We are of the view that Illustration (d) to Section 215, Cr.P.C. affords sufficient guidance in the interpretation of the scope of Section 215, Cr.P.C. and we respectfully agree with the Division Bench decision of this Court in the case of M/s. A Amichand & Co. (supra). Consequently we are of the considered view that the accused and more particularly A1 was not misled by this error in the charge and no failure of justice has occasioned. All the accused knew fully well right from the stage of committal proceedings till the disposal of the case by the Sessions Court what were the specific allegation against them, what was the part played by each of the accused persons and what were the weapons used.
10. This takes us to the consideration of the appeal on merits. That the land of PWs. 13 to 15 adjacent to the land of the accused does not appear to be in dispute. PW 15 deposed about he going to the land that morning to feed their crops with water and it was 1 PM when A3 abused him as to why he had obstructed flow of water and beat him twice or thrice. He was all alone in the land. He returned home and informed PWs. 13 and 14 what A3 had done in the land. This is how all the three witnesses later went to the house all the three witnesses later went to the house of PW 1 perhaps to complain to him about it. He however admitted that everyday he used to go to the house of PW 1 who happens to be the husband of their sister. He was not cross-examined at all on this evidence of the morning’s incident. PWs 13 and 14 deposed about PW 15 complaining to them on their return from the land about this act of A3. It is thus clear that the genesis of the incident in question was the one of that morning in which PW 15 was beaten by A3 and though PW 15 himself might have aggrieved at the conduct of A3 the accused were harbouring ill-will on account of PW 15 on that morning and his other brothers perhaps previously sometime were taking water to their land obstructing the free flow of water to the land of the accused.
11. PWs 13 to 15 have given a consistent version with regard to the assault on them. According to PW 13 when he and his brothers were complaining to PW 1 about the morning incident all the accused came there led by A1 and A1 was shouting that he would see what may come and these words were addressed to this witness. He and PW 14 were assaulted by the accuse persons. He was particularly assaulted by A2 with a stick whereas others assaulted PW 14. When PW 1 intervened he was also beaten twice and at that time deceased Renukavva came out imploring that her father be spared and even hugged him. At that time A1 addressing her as “Mindry” (the term used to address a woman of immoral character) assaulted her on her head with the Hente-Kodati which he had brought with him. She shouted that she was dead and fell to the ground. People like Huchappa, Basappa and Hulibasappa intervened and the accused ran away. PW 1 then asked his son Ramappa to go to the Police Station and inform the Police, but within 10 minutes the Police arrived at the spot. When the Sub-Inspector arrived Renukavva had not breathed her last. In a cart she was taken to the hospital and among the witnesses Huchappa and Gonibasappa also accompanied them. By the time they reached Hamsabavi which is two miles away from that village Renukavva had breathed her last. According to PW 14 A1 who came near the house of PW 1 along with other accused challenged outside PW 1 and these witnesses to come out if they had guts and they would continue to take water. When PW 1 advised not to create any trouble and that it could be enquired the following morning they did not listen. These three witnesses then intended to leave the house of PW 1 to go back to their houses but in the meanwhile all the accused started assaulting them and when PW 1 intervened he was also assaulted. When Renukavva came from inside and stood before PW 1 she was assaulted by A1 with Hente-Kodati on her head and she fell down with bleeding injury. The Witnesses named by PW 13 intervened and rescued them. PW 15 another brother of PWs 13 and 14 has also deposed about A1 shouting that they would take water come what may and PW 1 advising them to settle it the following morning and when they wanted to go to their houses all the accused assaulting them with sticks. He also testifies about A1 assaulting Renukavva with Hente-Kodati on her head. It was about 8 to 9 PM when this incident occurred.
12. PW 16 Basappa Billolli is an independent witness whose house is in the same lane where the house of PW 1 is situate. These witnesses have unanimously stated that there was clear moon light outside and according to PW 16 that was the following day of the full moon-day. When he was sitting on the katta of his house outside he saw A1 shouting at PW 1 and PWs 13 to 15 to go out if they had guts and they would continue to take water to their land. At that time PW 1 was thrashing linseed stems. Though PW 1 advised them to settle the matter the following morning all the accused assaulted PWs. 13 to 15 with sticks and when PW 1 attempted to rescue, Renukavva came from inside and A1 using filthy language assaulted on her head with Hente-Kodati. When these witnesses like Gonibasappa, Huchappa and himself reprimanded the accused they went away. He also swears about Renukavva breathing her last on the way to hospital.
13. PW-8 Dr. Sharanagouda was the Medical Officer Hamsabavi at the material time and at 10.30 p.m. on 10-9-1984 he examined all the injured persons, namely, PW-1 and PWs-13 to 15 when they were taken by Police Constables. PW-1 Bheemappa had the following injuries :
(1) Complained of pain in the back and right side ribs region;
(2) tenderness on right thumb; and
(3) complained of pain in just 1/3rd of the left ankle joint.
The injuries were simple and could be caused by hard blunt surface. Basappa PW 13 had an abrasion on the back in right scapular region. The injury was simple and could be caused by hard and blunt object. PW-14 Yallappa had the following injuries :
(1) Abrasion just above 1/3rd of the left ankle joint;
(2) complained of pain just above 1/3rd of the right ankle joint; and
(3) complained of pain on left scapular region.
They were also simple and could be caused by hard and blunt surface. PW 15 Ramappa had the following injuries :
(1) Abrasion on left ring finger; and
(2) abrasion on right foot.
They were all simple in nature and could be caused by hard and blunt object. He however ruled out the possibility of simple injuries being caused by assault with force with bamboo sticks shown to him. He did not mention the age of the injuries or their measurement nor the colour. He was however further examined in chief with permission and he changed his opinion and stated that if these four injured persons were hit with stick produced in the case such injuries could be caused and the nature of the injuries depend on the force with which the weapon is used. He rightly stated in the cross-examination for the accused that it was not part of his duty to question the injured as to how they were caused.
14. We have already referred to the evidence of PW-9 who conducted autopsy over the dead body of Renukavva and according to him the injury noted on the head was sufficient to cause the death of the deceased. The possibility of Renukavva sustaining such injury by falling from a height after climbing it over a ladder is the opinion given by PW-9 and it is the function of a medical witness only to state various possibilities for the causation of the injuries noticed by him. Ultimately it is for the Court to decide on the evidence adduced whether such injuries were caused by assault or on account of any other reason. There is absolutely no circumstance of Renukavva failing from a height with her head down as though she was diving in the manner a swimmer dives. Added to this the possibility of involving particularly A-1 for such injuries caused to Renukavva by she falling from a height is wholly out of place and inconceivable. We have therefore to see if the answers elicited in the cross-examination of these witnesses create atleast some doubt in the participation of the accused persons in causing these injuries to these witnesses. PW-1 has also supported the evidence of the aforesaid witnesses by depositing how PWs-13 to 15 and Renukavva sustained injuries. It is he who has filed the complaint Ex. P1 and narration of the same facts is to be found in it and which corroborates his testimony. He identifies Hente-Kodati which was used by A-1 to assault on the head of Renukavva. He was assaulted on his waist. His brothers-in-law PWs-13 to 15 were also beaten. A certain Basavaraj Jamboori was the Secretary of the Village Panchayat and he was present in Court on two days when the trial was in progress. The accused attributed motive to this Basavaraj to falsely implicate them. It is pertinent to note that it was elicited in his cross-examination that all the accused persons not only belong to his caste but are also related to him. It was even suggested that there were two parties in the village on account of Panchayat Elections and some time prior to this incident the said Basavaraj had implicated all the accused persons and the witness in a criminal case. That was in the year 1982. It was even elicited that his wife’s younger sister Lingavva was intended to be given in marriage to A1 but he did not agree for it. For that reason it was suggested that there was ill-will between them. In the criminal case aforesaid compromise petition was filed by him and two other accused persons therein that they had compounded the offence with the complainant Basavaraj and on that account they were acquitted on 17-10-1985. Since then there were very cordial relations between the said Basvaraj and this witness. In a case relating to the murder of one Ajjappa Uppar who was the husband of his younger sister this witness and A-1 to A-5 were witnesses and even Basavaraj was one of the accused therein. It was suggested that while A-1 to A-5 supported true prosecution thus prosecution this witness had turned hostile which was denied by him. He admitted that there were proceedings under section 107, Cr.P.C. against Basavaraj and his elder brother between 1980 and 1986, but denied that he is in the grip of the Society Chairman. Even from these answers elicited in his cross-examination one is inclined to see that at any rate the relations between the accused and PW-1 were not that cordial even though they happen to be distant relatives. Such ill-will may cut both ends. If the prosecution evidence is believed motive could be found in the accused to commit the offence alleged or it could be the reason for false implication of the accused persons. Ultimately whether the evidence of these witnesses is reliable is the point.
15. As far as the incident in question in which Renukavva sustained fatal injury is concerned practically nothing of consequence was elicited in the cross-examination of these witnesses. It was suggested to him that taking advantage of his daughter sustaining injury some how a false case was filed against the accused at the instance of Basavaraj. A suggestion was even made that when the incident occurred he was not in the house at all. In the cross-examination it was suggested that he did not state before Police about A-1 challenging PW-13 and then he suggesting to settle the matter the following morning and that Renukavva was assaulted when she had hugged him and even he admits the words “Avachikondu” to be found in his statement is not correct. These omissions are proved in the evidence of the Investigating Officer. He also asserted that all the accused assaulted the brothers of his wife with bamboo sticks for sometime. The wooden hammer was lifted high when the blow was given on the head of Renukavva. PW-13 stated that he was assaulted by A-2 with the stick MO-2 on his left shoulder. A-2 also assaulted him on left knee. He was standing quiet when he was so beaten observing how other witnesses were being assaulted. He also asserted that all the accused simultaneously assaulted them. He also stated that 10 to 15 persons might have assembled when this incident occurred and even rescued them. He could not remember the names of all of them. According to PW 14 A-6 assaulted him on his right leg. He was thus assaulted by A-6, A-7, and A-8 one after the other and sustained some swelling. According to PW-15 he was assaulted by A-4 and A-5 with sticks by force. He sustained injury over his right wrist and left knee. 10 to 15 persons assembled there when they were so assaulted.
16. The trial Court was not justified in ignoring the evidence of PW-15 that there was quarrel in the morning between him and A-3 and about threat held out by A-3. There was practically no cross-examination on this. Regarding the evidence of actual assault it appears it readily accepted the defence suggestion and case that Basavaraj Jamboori was behind the prosecution. It is stated that there was some case at the instance of Basavaraj in which even the accused and some of the prosecution witnesses were involved. It may also be that as far as PW 1 and his men were concerned there was a compromise. This Basavaraj has not figured as a witness. His mere attending court to watch the proceedings cannot impute him with motive to falsely implicate the accused. The trial Court has dubbed the evidence of these witnesses as interested forgetting for the moment that they could be interested in prosecution of the accused because they were aggrieved and injured. How it includes para 25 of its Judgment is of particular materiality. It says :
“From this part of the evidence of PW-1 it is clear that this Basavaraj Jamburi has come axe to grind against the accused, he happens to be a friend of PW-1 and it is quite likely 7 that this Basavaraj Jamburi, who took extraordinary interest in this particular case might have attempted to magnify a small quarrel and to involve the accused with the murder of the deceased Renukavva who might have died after falling on a stone as observed by me earlier. These things certainly go to show that the evidence of PW 1 and his brother-in-law PWs-13 to 15 is interested. PW 16 by himself has admitted that ‘(Vernacular matter omitted)’. It is quite likely that in keeping with this nature PW-16 might have joined hands with PWs-1 and 13 to 15. However, it is settled law that the evidence of interested witnesses cannot be rejected on the ground of their interestedness only and their evidence can be accepted if it has withstood the test of cross-examination and judicial scrutiny.”
The subsequent discussion of the evidence goes to show that the learned Judge found it unnatural that A-1 could have kept quite without assaulting any of the witnesses till Renukavva came from inside. In our view this approach is not reasonable to say the least. The evidence shows that when these three witnesses were being beaten by the accused persons Renukavva who was preparing food in the kitchen rushed out only to save her father. We have adverted to the injuries sustained by these four witnesses. There is no other incident in which they could have sustained them. The charge is that the accused had the common object of committing the murder of Renukavva. This is unacceptable because only when Renukavva intervened A-1 gave a blow on her head and if she had not come out of the kitchen perhaps she could have been saved. The common object of the unlawful assembly therefore was only to cause hurt to these prosecution witnesses. As injuries were sustained by the three witnesses in prosecution of the common object of the unlawful assembly A-1 to A-8 are guilty under Section 323 R/W Section 149, IPC and cannot be Section 324, IPC because the consistent evidence is that they were armed only with bamboo sticks and not solid clubs so as to make them deadly weapons.
17. This takes us to the cause of death of Renukavva. The trial Court has grossly erred in readily accepting the defence version that she might have sustained injury by falling outside and her head striking against stones outside. It is inconceivable that a mere fall on a stone outside the house would have caused the fatal injury that she sustained over almost the vertex of her head. There is consistent evidence of all these witnesses supported by medical evidence that A-1 was armed with Hente-Kodati and assaulted her on her head. None of the accused could have anticipated that A-1 could have hit her. The injury was so serious and grave that within a short while even before medical aid could be given she succumbed to it.
18. In the matter of filing of the complaint it has come in evidence that PW-19 the P.S.I. incharge of Hansabavi Police Station received information on 10-9-1984 that riot had taken place. He went to Lingapur on information that some trouble was going on there and saw one girl aged 12 years by name Renukavva had sustained injury on the head and was lying in the village. He took her along with injured Bhimappa and three other injured to the hospital. He then reached the Police Station and received the complaint of PW-1. It has also come in evidence that PW-1 had sent his son to inform the Police. This is how PW-19 could have arrived even before the complaint was received by him. Apart from the version given by PW-19 about the information received by him there is nothing to show that a cognizable offence was reported at the Police Station before he went to the spot. Therefore the complaint given by PW-1 could be considered as the first information under S. 154, Cr.P.C. and could be used to corroborate the testimony of PW-1. There is also evidence to show that bamboo sticks MOs 2 and 12 were produced by some of the accused persons. According to PW 21 A-3 Parameshappa produced a stick of 3 1/2 feet in length. That was seized under mahazer Ex. P24 thereafter A-7 Shivanandappa produced another stick from behind the house of Basappa Halappanavar. He also deposed that the accused 8 Ramappa produced a club from the backyard of house. A-2 Hanumanthappa produced another club on 16-9-1984 which was seized under Ex. P3. On 27-9-1984 Gogibasappa A-5 and Umeshappa A-4 and Ghannabasappa A-6 surrendered before the Hirekerur Magistrate Court and on 28-9-1984 according to him A-4 Umeshappa and others produced clubs said to have been used by them in the commission of the offence. The evidence given by these witnesses does not find support in the properties produced and marked and which are shown in the annexure to the Judgment. As we have already pointed out MO-1 is the Hente-Kodati produced by A-1 whereas only MOs 2 and 12 are the two bamboo sticks and rest of the sticks, if any, do not find place in this annexure. Even in the evidence they were not marked. This is how his evidence has become too casual to deserve acceptance with regard to production of the sticks. Even if that part of the evidence is ignored we could only say that clubs which could be described as deadly weapons were not produced in Court and mere non-production of the sticks used in causing hurt to various prosecution witnesses does not affect their testimony.
19. The trial Court doubted the veracity of PW-16 simply because of his antecedents. He was residing in the neighbourhood and the entire case does not rest on his testimony alone. The evidence of PWs-1 and 13 to 15 who were all injured is quite acceptable and the trial court was wholly unjustified in rejecting the same on untenable grounds. On scrutiny of the evidence adduced we find A-1 guilty under section 304, Part II, I.P.C. for his individual act as he had no intention of committing the murder of Renukavva and could not even anticipate her intervention when her father PW-1 was the target of assault. However he had knowledge that such assault on a vital part like head could in all probability cause her death.
For the reasons aforesaid we find A-1 to A-8 guilty under section 323 R/W 149, IPC and convict them for the said offence. We find A-1 guilty under section 304, Part II, I.P.C. and convict him for the said offence. As we are convicting them for the first time in this Court we proceed to hear them on sentence.
Heard on the point of sentence. The learned Additional State Public Prosecutor urges for the maximum sentence prescribed by law for the offence under section 304, Part II, against A-1. The respondent’s Counsel has asked for a lenient view on the ground that he is an agriculturist. We have considered the circumstances under which the offence came to be committed, namely, the accused going to the doors of PW-1 taking law in their hands on a frivolous cause in the morning’s incident and then assaulting PWs-1 and 13 to 15 and then A-1 being armed with a deadly weapon like a wooden hammer called “Hente-Kodati” assaulting the teen aged daughter of PW-1 who had only come out of the kitchen to show her anxiety towards her father. A-1 to A-8 are sentenced to pay a fine of Rs. 500/- each, in default to undergo S.I. for 15 days each for the offence under section 323 R/W Section 149, IPC. Out of the total fine amount Rs. 2,000/- shall be paid to PW-1 as compensation. We further sentence A-1 for the offence under section 304, Part II, IPC to undergo R.I. for three years. One month’s time granted to pay the fine amount.
20. Order accordingly.