NINGAPPA BALAPPA HADLI AND Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The appellants, Ningappa Palappa Hadli and Gudigeppa Balappa Hadli, were respectively the first 2nd the second accused in Sessions CaSe No. 48 of 1957 on the file of the Additional Sessions Judge, Dharwar. They and 7 others were tried together upon the charge that on or about the 18th day of July 1957 at Huilgol village they formed themselves into an unlawful assembly armed with deadly weapons, with the common object of coni rnitting the murders of Sivappa Gangappanavar and Ningappa Gangappanavar and that, in proseeu tlon of the said common object, some of them did intentionally cause the deaths of the said Sivappa Gangappanavar and Ningappa Gangappanavar and thereby all of them committed offences punishable Under Section 148 and Under Section 302 read with Section 149 of the Indian Penal Code. Accused Nos. 3 to 9 were acquitted. The appellants were found to be guilty only of causing grievous hurt to Sivappa and Ningappa punishahle Under Section 325 of the Penal Code. Each of them has been awarded two sentences, each of 5 years' rigorous imprisonment, one in respect of grievous hurt caused to Sivappa and the other in respect of grievous hurt caused to Ningappa; the sentences are to run consecutively.

(2.) The plea of self defence is not confined to the appellants alone before us but was raised in the lower Court on behalf of all the accused. It involves an admission that all the 9 accused were present on the scene of offence or at any rate, their presence is implicit in the plea. It means that all the 9 of them acted with the common object of warding off the alleged aggression on part of the deceased and that therefore all of them acted in concert with that common object. Now the plea of self defence means that the harm which the accused had inflicted on the alleged aggressors is not an offence because the circumstances entitled them to exercise the right of sell defence. If, therefore, the plea of self defence fails, the harm so caused would undoubtedly be a punishable offence. If, in addition, the accused acted in concert in the purported exercise of the right of sell defence to which they were not entitled, there is no escape from the conclusion that they together constituted an unlawful assembly with the common object of committing the offence constituted by the harm inflicted by them. Apart from the admission so implicit in the plea of self defence, there is, as a matter of fact, no doubt as to the presence of all the 9 accused as well as of the second, accused's son Basappa on the scene of offence. None of the accused, except the 5th, has in fact denied his presence. Even as to him, the evidence of his presence is clear and convincing. Not only does Siddappa speak to the 5th accused having dealt blows on Sivappa at several places, but he Is one of the three persons whom Sivangoud P.W. 6 clearly recognised, whom he knew as Yella ppa and whom he identified in court. Even the trial Judge who, without examining the question of common intention or common object, proceeded t0 deal with the evidence against each individual accused and came to the conclusion that all the accused except the appellants before us should be acquitted, has done so on the view that the evidence when taken as against each of them is weak or inadequate in his opinion to convict them and not because they or any of them were not present on the scene of offence. Taking all the circumstances and the entire evidence into consideration and examining the same carefully ourselves, we have no doubt that all the 9 accused persons as well as the 2nd accused's son Basappa were present on the scene of offence and did participate in the offence m some form or other.

(3.) The question arises whether the trial Judge having acquitted accused 3 to 9 and the State having failed to appeal against their acquittal, we are precluded from assessing the evidence afresh and examining the correctness of findings recorded by the trial Judge, for the purpose of deciding the question of guilt or otherwise of the appellants before us. The powers of an appellate Court are set out in Section 423 of the Code of Criminal Procedure separately in respect of an appeal horn an order of acquittal and an appeal from a conviction. In the former, the Court upon reversing the order of acquittal, may either order further enquiry or trial or may itself find the accused guilty and pass sentence upon him; in an appeal from a conviction, the appellate Court may