State of
Karnataka Vs. Jinappa Payappa Kudachi [1993]
INSC 370 (21 September
1993)
Reddy,
K. Jayachandra (J) Reddy, K. Jayachandra (J) Ray, G.N. (J)
CITATION:
1994 SCC Supl. (1) 178 JT 1993 (5) 328 1993 SCALE (3)814
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.- This appeal by
the State of Karnataka is filed against the judgment of the Karnataka High
Court questioning the acquittal of the six respondents- accused (original
accused 1 to 6). They along with eight others were tried for offenses
punishable under Sections 148, 302/149, 337/149 and Section 27 of the Arms Act.
The trial court while acquitting the others convicted the respondents under
Sections 148, 302/149, 326/149, 324/149 and 337/149 and sentenced them to
imprisonment for life and various other terms of imprisonment for the other
minor offenses. A-3 alone was also convicted under Section 27 of the Arms Act
and sentenced to undergo three years' RI and to pay a fine of Rs 500 in default
of payment of which to suffer RI for three months. The sentences were directed
to run concurrently. The six convicted accused preferred Criminal Appeal No.
174 of 1978 and the State of Karnataka
filed an appeal questioning the acquittal of the other accused and also filed
another appeal for enhancement of the sentence of the six respondents-accused.
The High Court dismissed the two appeals filed by the State and allowed the
appeal filed by the six convicted accused. The State has come forward with the
present appeal against the said order of acquittal.
2.The
prosecution case is as follows. A-1 to A-13 are the residents of Bastwad
village and A-14 is the resident of Patagwundi village. A-1, A-10 and A-11 are
full brothers and they have been living separately. They had another brother Nemanna
who was subsequently murdered six months prior to the present incident. The
other accused are related to each other. The three deceased persons in this
case namely Babu Kallappa Kasai (D-1), Yallappa Devappa Kasai (D-2) and Paris Adappa
Kasai (D-3) were cousin brothers and were living separately. PW 3 is the father
of PWs 4 and 5 and PWs 1 and 2 belong to the party of D-1. One Kulasambi filed
a suit against her daughter-in-law Chutibi and Kallappa, father of D-1 for
partition of some land. The said Kallappa was helping Chutibi and was
cultivating her land as tenant. After his death, D-1 purchased 19 guntas of the
said land from Chutibi and was also granted occupancy rights in respect of the
remaining land. After his father's death, D-1 was helping Chutibi in the
litigation and the deceased Nemanna, brother of A-1 was helping Kulasumbi, the
opposite party in the said litigation.
3.About
six months prior to the present incident, Nemanna was murdered. His son A-6
filed a complaint to the police against D-1 and D-2, PW 3 and five others. Yallappa,
D-2 and one Paris Bhima Pathani were arrested. Since the police failed to file
the charge-sheet, they were released by the Magistrate on bail and they
returned to the village about two months prior to the incident. Thus, there
were ill- feelings and bitter enmity between the two groups. On the day of the
incident namely September
25, 1978 in the
morning the three deceased persons and PWs 1 and 2 left Bastwad at 7 a.m. by bus for Belgaum to
meet their advocate. They reached Belgaum by 8 a.m. PW 3 and one Sawant also got down
from the bus and they went to Belgaum city
for their own work. The three deceased persons and PWs 1 and 2 then met their
advocate. They returned to the bus-stop to catch the bus to go to Bastwad. They
were waiting at the bus-stop.
Meanwhile,
accused 2, 6, 7 and 8 went to the bus-stop, each holding a satchel. At about 12.15 p.m. a bus came. PWs 1 to 3 and the three deceased
persons boarded the bus and sat on the seats. Accused 2, 6, 7 and 8 180 stood
near the entrance after getting into the bus. On the way, the bus stopped at
Fort bus-stand. There accused 1, 3, 4 and 5 boarded the bus. They were also
holding a satchel each. The capacity of the bus was 39 passengers and about 20
to 30 passengers were standing. The bus stopped at a few stops. Thereafter it
stopped near Bastwad cross for the passengers going to Kondaskoppa to get down.
Some of them got down from the bus. At that time, a white car came from Bagewadi
side and stopped near the bus. From that car, accused 9 to 14 and a boy got
down armed with a sickle each and they proceeded towards the bus. A-1 got down
from the bus and went by the side of the bus and stood near the window where
D-1 was sitting. He gave a blow with the sickle to the window glass of the bus
and it broke into pieces. A-8, who was inside the bus, shouted "come, they
are caught". On hearing that, D-1 got up from his seat and moved towards
the right side seat and stood there resting on the seat. At that time, A-3 took
out a country pistol and fired at D-1 which hit him on the neck. Then accused
1, 2, 14 and others assaulted him with sickles. D-1 fell down dead. A-4 and A-8
assaulted D-2 with sickles causing fatal injuries resulting in his
instantaneous death. Then A-5 assaulted D-3 with a dagger and A-6 and A-8
assaulted him with sickles. D-3 fell down and rolled out of the bus with
bleeding injuries. A-9 and A- IO assaulted PW 1 with sickles. A-2 and A-11
assaulted PW 3. The other passengers of the bus became frightened and got down
from the bus and ran away. The conductor and the driver of the bus also ran
away. A-3 fired one more shot from the pistol causing simple injuries to PW 6. PWs
4 and 5 were working at that time in a land near the Bastwad cross and on
seeing the galata, they went near the bus. A-2 and A-12 assaulted PW 4 with
sickles. PW 5, however, ran away, PW 2 got down from the rear door of the bus
and ran away towards Halga. There he saw a white car and accused 1, 2, 3 and 8
were in it. PW 2 felt that the car was following him. Being afraid, he ran
inside the village. Sawant, who was also with him, went to the house of Jinnappa
Patil and PW 2 went to the house of Gunda Desai, PW 11 and informed him about
the incident.
Thereafter
PW 2, Sawant and PW 11 returned to the spot at about 2 p.m. In the meantime, the conductor and the driver of the bus
went to Belgaum in a truck and informed their
superiors and the police was also informed. Meanwhile, PW 28, the Head
Constable of the Bagewadi police station was informed that some galata was
going on. He made an entry and proceeded to Bastwad cross along with the staff.
At the place of occurrence, he found two dead bodies lying with cut injuries
and D-3 was lying seriously injured. He also noticed that PWs 1, 3, 4 and 6
were injured. A-4 also was found lying injured. By then a jeep from the control
room came and a truck was secured and all the injured persons were sent to the
hospital. PW 2's complaint was recorded by PW 29, a Police Constable who came
in the jeep, on the basis of which the case was registered. The Circle
Inspector conducted the inquest over the dead bodies of D-1 and D-2 and sent
them for postmortem. PW 31, Sub-Inspector arrested A-1 to A-6 who were admitted
to the Civil Hospital and seized a country pistol and sickles from them. On September 26, 1978 PW 35, the Circle Inspector seized
the blood stained clothes from the persons of the accused and he recorded the
statement of the injured witnesses. D-3 died in the hospital on September 26, 1978 and the postmortem was conducted on
his dead body also. After completion of the investigation, the charge-sheet was
laid.
181
4. The
defence of accused 7 to 14 was one of total denial.
Accused
1 to 6, however, Stated that they boarded the bus at the City bus-stand on that
day and they were standing near the rear door, while the three deceased persons
and PWs 1 and 2 were sitting on the seats and that each of them was armed with
a satchel containing sickle, they threatened the accused and when the bus
stopped near the Bastwad cross, PW 2 took out a pistol and others took out
sickles and they started assaulting them and as they apprehended that they
would be assaulted, the accused persons took out their sickles and started
assaulting them. PW 2 fired a shot but the accused did not know who was hit by
the shot and A-6 hit with the sickle on the hand of PW 2 and his pistol fell
down. Then A-6 picked up the pistol and held as if he was about to fire. Then
the rest of them assaulted the three deceased persons with their sickles.
Seeing the galata, the passengers in the bus ran away. Then A-1 assaulted PWs 4
and 5 and all the six accused who were injured, got themselves admitted into
the hospital. A-5 gave a complaint Ex. P-60 to P.S.I., PW 31, who after investigation,
filed the chargesheet. It may be mentioned that the case was committed to the
Court of Session but the same ended in acquittal. The trial court acquitted A-7
to A-14 and convicted A-1 to A-6 who were injured and who admitted their
participation. The High Court accepted all the findings of the trial court, but
held that A-1 to A-6 had the right of private defence and they were fully
justified in causing the death of the deceased persons and they have not
exceeded the right of private defence.
5. In
this appeal, learned counsel appearing for the State of Karnataka submitted
that the prosecution evidence established beyond all reasonable doubt that A-1
to A-6 at least participated in the occurrence, inflicting many injuries
resulting in the death of the three deceased persons and many injuries to the
witnesses and they were necessarily aggressors and that the High Court grossly
erred in holding that they had the right of private defence.
Learned
counsel for the respondents-accused on the other hand submitted that the
prosecution has not at all explained the injuries on the accused persons and
thereby suppressed the genesis of the occurrence. Therefore the High Court was
right in acquitting the respondents-accused.
6. The
effect of non-explanation by the prosecution about the injuries on the accused
persons depends on the facts and circumstances of each case. Normally if there
is such non- explanation, it may at the most give scope to argue that the
accused had the right of private defence or in general that the prosecution
evidence should be rejected as they have not come out with the whole truth
particularly regarding the genesis of the occurrence. In the instant case, the
occurrence took place in the bus itself at the Bastwad cross. A1 to A-6
admitted their presence and also admitted their participation. The evidence of
the injured witnesses amply establishes that these six accused participated in
the occurrence causing the death of the three deceased persons and causing
serious injuries to PWs 1, 3, 4 and 6.
7. Since
the High Court has acquitted these six accused giving them the benefit of the
right of self-defence, it may not be necessary for us to discuss the entire
evidence of the injured witnesses again. However, we have carefully gone
through the evidence of the injured witnesses as well as other circumstances
and we are in agreement with the findings of both the courts 182 below that
these accused were present and participated in the occurrence as stated above.
They were also injured.
Therefore
the only question that remains for consideration is whether they are entitled
to the general exception under Section 100 IPC or whether they have exceeded
the same. In considering the question whether the accused exceeded the right of
private defence, the court has to consider the part played by the accused
persons, gravity of the offenses committed and the nature of the attack made by
them. The Doctor, who conducted the postmortem on the dead body of D- 1 found
20 incised injuries all over the body and also a firearm injury and on
dissection, he found a firearm pellet embedded in the lower part of the neck.
Almost all the incised injuries were of serious nature. On D-2 Yallappa he
found six serious incised injuries. On internal examination he found that
abdominal wall was injured on the left loin region and peritoneum was cut
horizontally. On D-3, the Doctor found 18 incised injuries of serious nature.
On internal examination, he found clotted blood in the pleural cavity and
injuries to the lungs. On PWs 1, 3, 4 and 6 also there were a number of
injuries. On PW 1, there were eight incised injuries, on PW 3, there were three
incised wounds with a fracture, on PW 6 there were two gunshot injuries and on
PW 4 there were four incised injuries. The same Doctor also examined accused
persons also. On A-1, he found five incised injuries which were simple in
nature. On A-5 there were only two incised wounds which were also simple. On A-
2, there were three incised wounds which were simple and one of them was only a
superficial one. On A-3, nine incised injuries were there and all of them were
simple and some of them were superficial. On A-4, the Doctor found five incised
injuries and all of them were simple. As can be seen from the prosecution
evidence, the accused were in larger number and at any rate even accepting that
A-1 to A-6 had the right of private defence, but having regard to the fact that
they attacked three deceased persons inflicting a number of injuries including
firearm injuries and also a number of injuries on PWs 1, 3, 4 and 6, it would
show that they have certainly exceeded the right of self-defence.
What
is more this occurrence has taken place in a public place in a bus where
several people had gathered. In such a situation there could not have been
reasonable apprehension of death or grievous hurt. In any event, the right does
not extend to the extent of causing the death of three persons and inflicting
so many injuries on them as well as on the witnesses.
8. For
these reasons, while agreeing with the High Court that A-1 to A-6 exercised the
right of self-defence, we are of the view that they have exceeded the same. In
the result the acquittal of the respondents-accused is set aside. They are
convicted under Section 304 Part I IPC. The occurrence has taken place a long
time back namely in the year 1978 and also that the accused suffered some
injuries, we think that the ends of justice will be met by sentencing each of
them to undergo four years' RI. The acquittal in respect of other offenses,
however, need not be disturbed. Accordingly the appeal is partly allowed.
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