YALLAWA & ORS.versusSTATE OF KARNATAKA

                   [2015) 11S.C.R.695


                    YALLAWA& ORS.                             A
                             v.
                 STATE OF KARNATAKA
            (Criminal Appeal No. 1126 of2007)
                                                              B
                   OCTOBER 09, 2015
    [FAKKIR MOHAMED IBRAHIM KALIFULLA AND
            . UDAY UMESH LAUT, JJ.]

      Pena/Code, 1860-ss. 143, 147, 148, 342, 114, 302, C
436 and 506 read withs. 149- Murder- Previous enmity- Ill
will between the parties growing for quite some time before
the occurrence - Prosecution case that on the date of
occurrence the deceased, his son and their men assaulted
'A' -Accused persons (28 in number) infuriated by the said D
act, marched towards the house of the deceased with
weapons - In order to escape from the onslaught, the
decsased and others got inside the deceased's house and
bolted it from inside - Accused persons bolted the house of
the deceased from outside and set it on fire - As a result all E
those inside the house, charred to death - Appellant and
others proceeded against for the offences punishable ulss.
143, 147, 148, 342, 114, 302, 436 ~nd 506 rel'Jd with 149-
Acquittal by trial court however, conviction and sentence by
High Cowt for offences ulss. 148, 302, 506, 342 and 436 rlw F
s. 149 - On appeal, held: Plea of A 11 that he was not present
at the scene of occurrence since he shifted 'A' from the place
where he was assaulted and shifted him to the hospital and .
also went to the police station to lodge a complaint, is not G
sustainable - There is categorical evidence of witnesses
about the manner in which A-11 was movin9 at the place of
occurrence and actively giving commands to set the house
of deceased fire - High Court took no_te of the eye witness
account supported by the medical evidence - Thus, the H
                             695
696         SUPREME COURT REPORTS             [2015] 11 S.C.R.


A     appellants could not be exonerated of the charge found
      proved against them.

           Dismissing the appeal, the Court

B           HELD: 1.1 Ttie High Court took note of the various
      details with reference to the sequence of events spoken
      to by the eye witnesses, specific role played by such of
      those accused who contributed their might in setting fire
      to the house of deceased well as the adjacent house and
c     thereby ensuring that none of the victims who entered
      the house of deceased were allowed to escape from t~e
      clutches of the appellants and other accused and
      ultimately met with their death. Having regard to the
      detailed analysis made by the Division Bench by making
o     specific reference to the eye witness account supported
      by the medical evidence, there is no scope for this Court
      to make any further analysis in order to find out whether
      any of the appellants could be exonerated of the charge
      found proved againstthem. [Para 14, 15] [703-E-G]
E
        1.2 While on the one hand, the grievous attack on
  'A' cannot be said to be justified, A11's mind set to take
  revenge at those who caused the said attack on A cannot
  also be justified. Therefore, when the distance between
F the place of occurrence and the Police Station was hardly
  8 kms in the village, such a distance could be covered in
  a matter of few minutes in a jeep in any case within 1Oor
  15 minutes. Therefore, in the absence of any concrete
  evidence to show that as between 7:45 a.m. and 9:15
G a.m. during the entirety ofthe said period A-11 remained
  only inside the Police Station and did not move out of
  the said Police Station it would not be safe to simply go
  by the version of P.Ws. 43, 48 and 50 who referred to his
  presence at the Police Station at specifie~ hours i.e.
H 7:45a.m., 8:15a.m., 9:00a.m. and 9:15a.m. and  i
                                                    thereby
      YALLAWA& ORS. v. STATE OF KARNATAKA                       697


hold that A-11 could have never made himself present in         A
the place of occurrence in between those hours. [Para
18] [706-D-F]

    1.3 The evidence of other eye witnesses were very
categoric in their statement about the manner in which B
A-11 was moving here and there at the place of
occurrence, actively involving himself in issuing
commands to other accused in the process of setting
fire to the house of deceased and ensured that the said
house was completely burnt with all the ten victims C
inside. Therefore, the conclusion of the Division Bench
in having found A-11 also guilty of the offence for which
he was convicted was fully justified. There is no scope
to deal with A-11 differently. [Para 19] [706-G-H; 707-A-B]
                                                            D
    CRIMINALAPPELLATE JURISDICTION: Criminal Appeal.
No. 1126 of 2007
   From the Judgment and Order dated 31.03.2006 of the
High Court of Karnataka at Bangalore in Criminal Appeal No.
276/1999.                                                 -.:· E
Rajesh Mahale, Krutin R. Joshi forthe Appellants.
   Rash mi Nandakumar, Aparna Appaiah, Vishruti Vijay,
Anitha Shenoy for the Respondents.
                                                                F
   The Judgment of the Court was delivered by

   FAKKIR MOHAMED IBRAHIM KALIFULLA J. 1. This
appeal is directed against the Division Bench judgment of the
High Court of Karnataka dated 31'1 March, 2006 passed in
Criminal Appeal Nos. 276 along with 1201 of 1999. Both the      G
appeals were preferred by the State of Karnataka before the
High Court. In Criminal Appeal No. 276of1999, as many as
24 respondents were arrayed while in Criminal Appeal No.
1201 of 1999 there was only one respondent.
                                                                H
698         SUPREME COURT REPORTS                  [2015] 11 S.C.R.


A       2. Altogether 28 accused were proceeded against in
  Crime No. 134 of 1991 for the offences punishable under
  Sections 143, 147, 148, 342, 114, 302, 436 arid 506 read
  with 149 IPC. One Shobha was a juvenile and. therefore, her
  case was dealt with separately by the Juvenile Justice Board.
B The rest of the 27 accused were tried before the learned First
  Additional Sessions Judge, Jabalpur in Sessions Case No.
  35 of 1992. When the trial was pending, second accused and
  15'h accused died, and, therefore, the criminal case agaim;t
  them got abated. The case against A 18 was separated by
C order dated 12'h October, 1995. Ultimately, by judgment dated
  30'h November, 1998, the trial Court acquitted all the accused.

            3. As against the said acquittal, the State preferred the
      above two Criminal Appeals. Subsequently, the case as
D     against A-18 also ended in acquittal. Thereafter, the State
      preferred the two appeals namely, 276 and 1201 of 1999
      before the High Court. In Criminal Appeal No. 276 of 1999,
      24 respondents were shown and in CriminalAppealNo.1201
      of 1999, A-18 was the respondent. By the impugned judgment
E     and order, the Division Bench of the High Court reversed the
      judgment of the trial Court and convicted the appellants along
      with other accused for offences under Sections 148, 302, 506,
      342 and 436 read with 149 IPC. They were imposed with the
I'"   sentence of life imprisonment for the offences punishable under
      Section 302 IPC apart from a fine amount of Rs. 5,000/-
      (Rupees five thousand) with a default clause to undergo further
      rigorous imprisonment for a period of two years. They were
      also convicted for the offence under Section 436 IPC and
G     sentenced to undergo imprisonment for a period of ten years
      along with a fine of Rs.5,000/-(Rupees Five thousand) with a
      default sentence of one year rigorous imprisonment. The fine
      amount, after its collection, was directed to be distributed
      equally to the heirs of deceased Channabasappa and Pavithra
H     Bai. Both the sentences were directed to run concurrently.
  YALLAWA& ORS. v. STATE OF KARNATAKA[FAKKIR                        699
        MOHAMED IBRAHIM KALIFULLA J.]

      4. It must be stated that as against the Division Bench A
decision, A3, A 10, A 13, A22, A24 and A 18 did not file any
appeal before this Court. Subsequent to the filing of the appeal
before us, appellant no. 18 Vimlabai, wife of Siddarth
Kattimani died and, therefore, her appeal insofar as the said
appellant concerned, the same got abated. Therefore,     we  are B ·
now presently concerned only with the 18 accused, out of whom
appellant Nos. 1,9, 12, 13 and 16 withdrew their appeal and
their appeals were dismissed as withdrawn by order dated
201h_t\ug'ust, 2007 by the Hon'ble Judge in Chamber. Since
out of 19 appellants five have withdrawn their appeal and one C
is no more we are now concerned with only 13 appellants
namely, appellant Nos. 2-8,10,11; 14, 15, 17and19.

      5. The genesis of the case can be culled out from Exhibit
P 1 dated 5th October, 1991 filed by one Shmt. Vatasalabai, D
wife of Chandrashekhar Kattimani who was examined as
P.W.1 before the trial Court.

     . 6. Shorn of unnecessary details, the case of the
 prosecution was that ever since the marriage of P.W.1 which        E
 was 15 years ago, prior to the date of occurrence namely, 5t11
 October, 1991: she was living at the Village Bardol. Her
 husband got five elder brothers including the deceased
 Channabasappa Hawappa Kattimani, that they were all living
 separately, though he was playing leading role in he affairs of    F
 Harijankeri (Harijan Colony) by amicably settling the disputes
 between different persons living in that colony, that about 20
 years prior to the occurrence one, Amoghi, son of Ningappa
 Kambale of Anjutagi village came and settled at Bardol and
 started living in Harijankeri who also started mediating between   G
 the members of persons living in the Harijankeri which in course
,of time created a difference of opinion as between her brother-.
 in-law Channabasappa and the said Amoghi. According to
 P.W. 1, her brother-in-law felt thatAmoghi was not following       H
700         SUPREME COURT REPORTS                   [2015] 11 S.C.R. ·


A     proper course while mediating between the parties and thereby
      injustice was being caused, which ultimately resulted in ill-will
      having been developed as between both of them and on some
      occasions resulted in quarrels as between them.

B             7. On the morning of 5th October, 1991, when P.W. 1
      was in her house she learnt that about 7:00a.m. on that day
      her brother in law Channabasappa, his son Sadashiv and their
      men assaultedAmoghi and thereafter at about 8:00a.m. she
      heard noise of people from the side of her brother-!n-law's
C     house, pursuant to which when she along with her.co-sister
      Subhadra P.W. 2, Mallikarjun, P.W. 21, Malakappa Ramappa
      Kambale, P. W. 3 reached the house of Channabasappa, she
      sawA19, A22,A18, A1 ,A2,A27,A9, A10, A13,A23, A17, A3,
      A4,A6,A24,A26,A15,A16 and others were in the process of
D     setting fire to the house of Channabasappa, While accused ·
      16, 3, 5, 4, 26 and 7 were aiding 0th.er accused with salt,
      kerosene oil and firewood. It was also stated that the male
      accused were throwing fire wood, kerosene oil and salt on the
      doors of the house and there was lowering inferno from the
E     house. P.W. 1 also stated that persons who were inside the
      house were crying for help. While the said action of setting
      fire to the house of Channabasappa was going on, the accused
      also stated to have instructed others to set fire to the adjacent
F     house apart from preventing any one from proceeding near
      the firing house. Every attempt of P.W.1 and others who were
      standing nearby to help the victims from getting rescued was
      of no avail as they were all threatened by the accused of dire
      consequences and that they would also meet with the same
G     fate.

       8. It was stated that as many as ten persons including
  Channabasappa who rushed into his house in order to escape
  themselves from the onslaught of the accused when they
H approached them and who got inside his house and bolted it
   YALLAWA& ORS. v. STATE OF KARNATAKA[FAKKIR                         701
         MOHAMED IBRAHIM KALIFULLA J.]

 inside were burnt alive by the accu.sed by bolting the doors A
 from outside and by setting fire to the house in ·all directions
 with the use of kerosene, firewood and by throwing salt whereby
 infuriating the fire to the peak. It is stated that the police reached
 the place of occurrence at around 9:15a.m. and arrested A 1
 on the spot and sub·sequently arrested all the other accused B
 and that after the arrival of the Police, the other accused
 escaped from the spot whereafter by summoning the fire
 brigade from Jabalpur, the fire was doused and the bodies of
 the ten victims were recovered. The post mortem was held
 on the spot and thereafter the challan was laid before the C
 learned FirstAdditional Sessions Judge, Jabalpurwherein the
 judgment of acquittal came to be passed. The Division Bench
 having reversed the said judgment and imposed the conviction
 and sentence as noted above, the appellants are before us.
                                                                        D
      ·9. We heard Mr Rajesh Mahale, learned counsel forthe
 appellants and Ms. Rashmi Nandakumar, learned counsel for
 the State. Though Mr. Mahale appeared on behalf of some of
 the appellants but on our request he argued on behalf of the
 other appellants also.                                       E

          10. At the very outset, it must be pointed that though the
  sequence of the events narrated above, disclose that ill-will
  between the deceased Channabasappa and Amoghi was
  growing for quite some time before the occurance, on the date· F
  of occurrence i.e. 5th October, 1991, the action of
  Channatiasappa along with his son Sadashiv who was also
· killed ir:i:tflj:S occurrence, stated to have caused some injury on
  the saidAfi)oghi around 7:00a.m. on that day at his place which
  enraged~tf,i~ son of Amoghi and the other appellants who took· G
  it in the affront and in that pursuit, the appellants along with the
  other accused stated to have marched towards the house of
  Channabasappa in an aggressive n:iood carrying weapons
  and fearing serious consequences, Channabsappa and nine H
702         SUPREME COURT REPORTS                  [2015] 11 S.C.R.


A     of his supporters who were all killed in the occurrence, entered
      the house of Channabasappa got them bolted inside to escape
      from the onslaught of the appellants. Unfortunately, it came
      handy for the accused to bolt his house from outside and by
      setting fire to the house on all sides ensured that none of the
B     inmates were able to get out of that house and save their lives.

         11. When as many as 28 persons were involved in that
  process at the early hours of the morning of 51h October, 1991,
  it transpired that before any police force could come and rescue
C the victims in a matter of about hour and half, the fire set by the
  appellants to the house of Channabasappa completely
  engulfed all those who were inside the house who were all
  charred to death. The medical evidence in the form of post
  mortem report have confirmed the manner in which the victims
D died by fire.

        12. As far as the distance between the place of Amoghi
  and the place of occurrence is concerned, it is stated to be
  just two furlongs which could be covered in a matter of few
E minutes. The Police Station is stated to be in a distance of
  about 8 kms. The complaint was recorded at 9:45a.m. at the
  instance of P.W.1. There was also information furnished to
  the Police at around 9:50a.m. by P.W. 23 at the Police Station
  who was aged about 100 years on that day.
F
        13. Earlier on that day A-11 who was owning a jeep
  stated to have carried Amoghi after his assault by
  Channabasappa and his men and arranged for shifting him to
  the hospital at Jabalpurwho was also present in the Police
G Station at around 8:15a.m. At his instance Crime No.133 of
   1991 was registered in the Police Station as against
  Channabasappa and others for the assault on Amoghi.

         14. In the above stated background, the High Court while
 H dealing with the appeal has found that the evidence of P. W.1
  YALLAWA & ORS v. STATE OF KAR NATAKA [FAKKIR                  703
        MOHAMED IBRAHIM KALIFULLA J.]

alongwithP.Ws,2,4, 5,6, 10, 11, 16,21,22and26whowere A
all eye witnesses to the occurrence sufficiently demonstrated
before the Court as to the manner in which the setting fire to
the house of Channabasappa after they entered the house
qnd bolted inside were surrounded and the bolting of.the house
outside by the accused persons and the manner in which the B
house was set on fire, as well as the adjacent house and also
how the accused ensured that none of the victims who entered
the house of Channabasappa were allowed to escape frpm
the clutches of the accused and got themselves charred to
death at the hands of the appellants. The High Court having C
noted the charge against the appellants namely, 147, 148, 302,
436, 504 read with 149 IPC after analysing the evidence of
the eye witnesses made a note of the various specific overt
acts referred to by each of the eyewitnesses vis-a-vis the
                                                               0
concerned accused by setting out a chart in paragraph 24 of
the judgment which runs to 14 pages. We find that the High
Court took pains to make note of the various details with
reference to the sequence of events spoken to by the eye
witnesses, specific role played by such of those accused who E
contributed their might in setting fire to the house· of
Channabasappa as well as the adjacent house and thereby
ensuring that none of the victims who entered the house of
Channabasappa were allowed to escape from the clutches of
the appellants and other accused and ultimately met with their f
death.

         15. Having regard to such detailed analysis made by the
. Division Bench by making specific reference to the eye witness
  account supported by th·e medical evidence, we are of the view G .
  that there is no scope for this Court to make any further analysis
  in order to find out whether any of the appellants could be
  exonerated of the charge found proved against them.
  However, Mr. Ma hale took strenuous efforts to contend before·
  us that at least insofar as A 11 and A23 were concerned, it H
 704         SUPREME COURT REPORTS                  (2015) 11 S.C.R.


  A    could be said that they were not present at all at the place of
       occurrence and, therefore, even with the aid of 149 IPC the
       offence as against both of them cannot be said to be made
       out. In the first instance, when we·consider his submission
       with reference to A 23 (Appellant No. 16) we find that he has
  B    already withdrawn the appeal and, therefore, we do not find
       any necessity to consider his case. We are, therefore, confining
       ourselves toA11.

            16. The contention on behalf of A-11 was that after the
· C assault of Amoghi by the deceased Channabasappa and his
    man at7:00a.m.,A11 shifted the injuredAmoghi from the said
    place of occurrence and arranged for his transportation to the
    hospital at Jabalpur and also simultaneously went to the Police
    Station Chandechan and lodged a complaint which came to
  D be registered as Crime No. 133of1991. A-11 was stated to
    be present in the Police Station at 7:45 a.m. forthat purpose.
    P.W. 23 Hawappa also went to the police station after he
    witnessed setting of fire to the house of Channabasappa by
    around the same time. It has come out in the evidence of P. Ws.
  E 43, 48 and 50 thatA-11 was atthe police station at 7:45a.m.
    initially and going by the version of P.W. 50 he was present in
    the Police Station upto 8:15a.m. Again going by the version
    of P.Ws. 43 and 48, when P.W. 23 went to the Police Station
  F who was present in the Police Station till P.W.50 left the Polipe
    Station which was stated to be at 9:00a.m., A-11 was present
    inasmuch as according to P.W.43, A-11 on hearing the·
    complaint of P.W.23 relating to the firing of the house of
    Channabasappa by the accused, A-11 slapped P.W.23 at the
  G Police Station when the time was noted as 9:10a.m. Again
    P. W. 48 in his evidence stated that A-11 was present in the
    Police Station at 9:00a.m.

           17. The above evidence disclosed that A-11 who went
  H to the Police Station at 7:45a.m.was found present in the Police
  YALLAWA& OR3. v. STATE OF KARNATAKA[FAKKIR                  705
        MOHAMED IBRAHIM KALIFULLAJ.]

  Station at 8:15a.m. and again between 9:00 and 9: 15a.m. As A
  against the above evidence available through P.Ws. 43, 48
  and 50, the evidence of P.W. 1 and the other eye witnesses
  disclose thatA-11 was found to be extorting the other accused
· at the place of occurrence with all vehemence at his command
  for setting fire to the house of Channabasappa by issuing B
  different orders such as for bolting the house of
  Channabasappa from outside, throwing salt and kerosene into
  the burning house and also issuing such other directions to
  ensure that the house of Channabasappa is set on fire totally
  with ten of them inside the house and everyone of them C
  ultimately met with their death.                         ·

       18. The learned counsel, Mr. Mahale, while appraising
the version of P.Ws. 43, 48 and 50 submitted thatA-11 was
present atthe Police Station at 7:40a.m., 8:15a.m. as well as D
between 9:00 and 9:15a.m. which, as spoken to by the above
witnesses who were all police personnel, there was no scope
at all for A-11 to be present at the place of occurrence as
spoken to by other eye witnesses. It must be stated that the
Police Station was hardly 8kms awayfron:i the place of E
occurrence. A-11 had a jeep at his disposal and it was he who
organized for shifting the injured Amoghi to the hospital and
also preferred the complaint with the Police relating to Crime
No. 133 of 1991. It can be stated that immediately after the F
assault onAmoghi at 7:00a.m. A-11 who seems to have been
interested in the welfare of Amoghi took every effort to save
him from injuries sustained by him and also file appropriate
complaint relating to the said incident with the Police which
exercise he was able to successfully carry out. However, when G
we considered the evidence of the other witnesses who have
consistently referred to the presence of A-11 at the place of
occurrence and the nature of activity indulged in by him, and
also the act of A 11 who was present in the Police Station when
saw P. W.23 making a complaint in the Police at;>out setting of H
706          SUPREME COURT REPORTS                   (2015] 11 S.C.R.


A     fire to the house of Channabasappa, got enraged and went to
      the extent of slapping him unmindful of the fact that P. W. 23
      was an old man, aged more than 100 years who stated to
      have fell down as a result of such harsh behaviour ofA 11. Sinc.e,
      the setting of the fire to the house of Channabasappa occurred
B     at 8:00a. m., if A 11 had no hand in it, there was no reason for
      him to get enraged when P. W. 23 reported the firing incident
      to the Police. Therefore, the conduct of A 11 in having sharply
      reacted towards P.W.23 and that too by slapping him in the
      presence of Police only shows that he played key role in the
C     setting fire to the house of Channabasappa or spoken to by
      the eye witnesses. Therefore, it is quite apparent that while
      on the-one hand, the grievous attack on Amoghi cannot be
      said to be justified, A 11 's mind set to take revenge at those
      who caused the said attack onAmoghi cannot also be justified.
0
      Therefore, when the distance between the place of occurrence
      and the Police Station was hardly 8 kms in the village, such a
      distance could be covered in a matter of few minutes in a jeep
      in any case within 10 or 15 minutes. Therefore. ir. the absence
E     of any concrete evidence to show that as bct;;.ce3n 7:45 a.m.
      and 9:15 a.m. during the entirety of the said period A-11
      remained only inside the Police Station and did not move out
      of the said Police Station it will not be safe to simply go by the
      version of P.Ws. 43, 48 and 50 who referred to his presence
F     at the Police Station at specified hours i.e. 7:45a.m., 8:15a.m.,
      9:00a.m. and 9: 15a.m. and thereby hold thatA-11 could have
      never made himself present in the place of occurrence in
      between those hours.

G         19. Therefore, when we analyse the evidence of other
  eye witnesses we find that they were very categoric in their
  statement about the manner in which A-11 was moving here
  and there at the place of occurrence, actively involving himself
  in issuing commands to other accused in the process of setting
H fire to the house of Channabasappa and ensured that the said
      YALLAWA& ORS. v. STATE OF KARNATAKA[FAKKIR                      707.
            MOHAMED IBRAHIM KALIFULLA J.]

    house was completely burnt with all the ten victims inside. We A
    are, therefore, convinced that the conclusion of the Division
    Bench in having found A-11 also guilty of the offence for which .
    he was convicted was fully justified. We, therefore, do not find
    any scope to deal with A-11 differently. Consequently the
    appeal fails and the same is dismissed. All those appellants B
    who were granted bail by an order dated 11-12-2009, their
    bail bonds shall stand cancelled and let them be secured·
    forthwith and imprisoned to undergo the sentence awarded
;   by the High Court as confirmed by us. As at our request, Mr.
    Mahale appeared for those accused who were not otherwise C
    represel)ted, for his valuable assistance to the court as an
    Amicus Curiae, we direct the Registry to pay him a fee of Rs.
    10,000/-(Rupees Ten thousand).

    Nidhi Jain                                   · Appeal dismissed   D