BASAPPA BALAPPA BHANGI Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE nine appellants before us were the accused Nos. 1 to 9 in Sessions Case No. 76/1993 decided on 21-1-1996. They were charged with having committed the offences punishable under Ss. 143, 147, 148 and 302, IPC in relation to the murder of Chavappa; as also under Ss. 307 r/w. 34, I. P. C. and 307 r/w. 149 I. P. C. in relation to the injury caused to P. W. 11 Mahantesh whose left fore-arm was amputated in the course of the incident. The prosecution alleges that the nine accused were members of an unlawful assembly, that they were armed with axes and sickles and that on 18-3-1993 at about 11. 30 a. m. on the road in front of the house of A. 1 Basappa situated at Harobelavadi village within the limits of Dharwad Rural Police Station and attacked the deceased-Chavappa Fakirappa Bhangi as a result of which he sustained multiple injuries and died on the spot and further more that P. W. 11 Mahantesh was also injured in the course of the same incident when he went to the assistance of his father Chavappa and that his left fore-arm came to be amputated. The incident took place in broad day-light in the village and prosecution alleges that P. Ws. 7 to 11 who are also relations had witnessed the incident. The matter was reported to the police who came to the village and commenced investigation. The accused came to be arrested on 23-3-1993 and the prosecution alleges that pursuant to a certain statement made by the accused that they led the police and the panchas to a place near the river which is very close to the scene of offence and that the weapons MOs. 3 to 11 namely axes and sickles which are alleged to have been blood-stained were recovered pursuant to those statements. The evidence essentially consists of the oral depositions in this case. The learned trial Judge accepted the oral testimony and held the charges established as against all the accused. They were accordingly convicted and sentenced to undergo imprisonment for various terms as set out in the judgment the longest of which is the sentence of imprisonment for life under S. 302, I. P. C. with the lesser sentences running concurrently with this one.

(2.) BEFORE proceeding further, it would be useful to set out the relationships between the parties which are of some importance. A. 1, A. 2, A. 4, A. 5 and A. 8 are brothers and A. 3 and A. 7 are also brothers. A. 6 is the son of A. 1, A. 9 is the sister's son of A. 1, A. 1, A. 3 and A. 76 are cousins. As far as the deceased-Chavappa is concerned, it is necessary to mention that P. W. 1 Mahantesh is his son. P. W. 7 Madivalappa is the nephew of the deceased, P. W. 8 Somappa is related both to the accused and to the deceased, P. W. 9 Ellavva is the wife of the deceased and P. W. 10 Anasuya is the daughter of the deceased.

(3.) AT the very outset, we need to indicate that the prosecution has put forward two or three possible reasons for the incident in question. The learned counsel who represents the accused appellants in this appeal has devoted sometime towards dealing with this aspect of the matter and he points out to us that none of these so-called motives are in fact acceptable. One suggestion is that the quarrel was in relation to a sum of Rs. 10,000/- which Erappa got from his department and which was to be apportioned between A. 2 and A. 3. We do not propose to devote much time to this because Mr. Sebastian is right in so far as this is only a suggestion but there is hardly anything to support this as being a motive for the commission of such a serious incident. The second ground adduced by the prosecution is that the family of the accused used to hire out utensils from the community hall of which P. W. 11 Mahantesh was the Secretary earlier. It is alleged that the accused family had not paid certain overdue hire charges and that 1 Mahantesh had reported the matter to P. W. 8 Somappa who succeeded him. There are also allegations to the effect that A. 2 had picked up a quarrel with P. W. 11 and that on another occasion A. 3 had picked up a quarrel with P. W. 14 and in the latter of these incidents the deceased had intervened and A. 3 had assaulted the deceased because of which P. W. 11 came and assaulted A. 3. Again, these are all common place incidents of life in a village which are not really serious enough to result in an attack of the present type wherein the deceased received as many as 18 injuries on different parts of his body all of which were the result of a savage attack which in turn left him dead. It is clear to us that there must have been either strong provocation or some background which was extremely serious and which had virtually exploded into fury as otherwise, it is difficult to explain an attack of such intensity. Apart from the death that occurred, when P. W. 11 Mahantesh tried to intervene he was so severely dealt with that his left arm was virtually amputated in the attack. Having regard to the nature of the incident, it is clear to us that even a combination of all the incidents that are referred to by the prosecution could not have been good enough to trigger off such an attack. Though Mr. Koti the learned Addl. Public Prosecutor submitted that each of these incidents fuelled and aggravated the earlier situation and resulted in what happened, we are inclined to accept the submission put forward by Mr. Sebastian that the prosecution has really failed to establish the real motive for the incident. That however does not make very much of difference because it is now well settled law that if the motive is established it only adds to the prosecution case but if the motive cannot be established, it does not in any way affect the validity of the remaining evidence which is capable of sustaining the charge on its own credibility. 3a. The first ground of attack canvassed by Mr. Sebastian hinges around the fact that the dominant role attributed by the prosecution witnesses in this case is to A-3. Even though all the nine persons are named in the F. I. R. and even though they consistently attribute overt acts to all the nine accused and the evidence consistently also mentions that all nine of them were armed with deadly weapons namely axes and sickles, the fact remains that the main role as far as the use of the weapons is concerned has been attributed to A. 3. Mr. Sebastian submitted that his general attack as far as P. Ws. 7 to 11 are concerned is that they are all closely related to the deceased, that obviously there was a lot of ill-will and hostility between the two branches and consequently there is no doubt about the fact that the P. Ws. 7 to 11 were motivated by a very strong sense of vindictiveness as against the accused inter alia because P. W. 11 himself was so badly injured that his fore-arm had been amputated. Mr. Sebastian submits that obviously some incident did take place which resulted in the death and the injury but it is his contention that the main evidence has been directed against A. 3 and it is his case that even assuming without admitting that the evidence establishes the charges as against this accused, that the involvement of the other eight persons is clearly an act of vendetta. He has taken us in detail through the evidence of these witnesses and he submits that even if the Court accepts that they were present when the incident took place that the Court must separate the grain from the chaff in accepting the position that because of the death and the injury, P. Ws. 7 to 11 were determined at all costs to involve and implicate the entire family i. e. A. 1 to A. 9. Mr. Sebastian has in passing requested the Court to test the evidence of P. Ws. 7 to 11 from only two points of view. Firstly, he submitted that if the prosecution version put forward by the P. Ws. is correct, there would have been nothing left of the deceased who is supposed to have been mercilessly attacked by nine persons wielding axes and sickles and he submits that short of making mince meat of the deceased, it is impossible for him to have ended up with just 18 injuries out of which only 12 or 13 were of some consequence. A similar argument has been pressed into service as far as P. W. 11 Mahantesh is concerned where Mr. Sebastian submits that if a group of nine persons were attacking the father when he intervened that Mahantesh would never have survived and that he would have been virtually cut to pieces. Both these arguments have been pressed into operation to support the submission that this was obviously an attack of one person directed against the deceased and that Mahantesh also got the benefit of the fury when he went to his father's rescue. Mr. Sebastian submits that even if the prosecution case is partially accepted, that for the aforesaid reasons the charge of unlawful assembly would have to fail completely in so far as there could not have been five or more assailants for the reasons indicated and secondly, that at the very highest A. 3 would be liable for a conviction.