Chikkarange Gowda And Ors. vs State Of Mysore

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 9 May 1956

Coram: S.K. Das

Chikkarange Gowda and others filed an appeal by special leave against a judgment of the High Court of Mysore dated 22‑7‑1954. The High Court had affirmed the convictions and sentences of the appellants and had dismissed their separate appeals. The appeal was heard by Justice S K Das of the Supreme Court of India, who authored the judgment. The appellants comprised four individuals: Chikkarange Gowda, identified as accused number 1; Govindaraju, identified as accused number 3; Govinda Gowda, identified as accused number 14; and Mathi Kulla, identified as accused number 19. Together with several other persons, these four were tried before the learned Sessions Judge of Mysore. The trial court found them guilty of offences punishable under Section 148 of the Indian Penal Code, under Section 302 of the Indian Penal Code, and under Section 302 read with Sections 34 and 149 of the same Code. Accordingly, the Sessions Judge sentenced each of the appellants to rigorous imprisonment for three years for the offence under Section 148 and directed that they be transported for life for the murder‑related offences under Section 302, both alone and in combination with Sections 34 and 149. Neither the trial judge nor the appellate court made any specific delineation as to which appellant was convicted of the principal offence of murder under Section 302, which was convicted under Section 302 in conjunction with Section 149, nor which was liable on the principle of common intent embodied in Section 34. The High Court’s decision likewise contained no such distinction; its concluding paragraph simply reiterated that the convictions and sentences were confirmed and that the appellants’ appeals were dismissed.

The judgment notes that it is unnecessary to describe the other persons who were also convicted by the Sessions Judge and whose convictions were upheld by the High Court, because those individuals did not file appeals before this Court. The material facts relevant to the present appeal are therefore briefly recounted. On 18‑4‑1951, two brothers named Putte Gowda and Nanje Gowda were present in the house of a woman named Madamma, who was the concubine of Putte Gowda, in the town of Talkad. Talkad was described as a fairly populous town, a place of pilgrimage, situated approximately thirty miles from Mysore. At about noon on that day a mob consisting of more than one hundred persons advanced on the house, doused the roof with kerosene, and set it alight. When the occupants fled the burning building, the two brothers were brutally assaulted. Putte Gowda died instantly at the scene, while Nanje Gowda was left unconscious, carried to a hospital, and died there later the same evening. The first information report concerning the incident was dispatched by the Daffadar to the Inspector of Police, who arrived that night and began the preliminary investigation.

The investigation that began after the incident indicated that the four accused were alleged to have been part of the mob that attacked the house. According to the allegation, appellant 1, identified as Chikkarange Gowda, is said to have struck Putte Gowda on the abdomen with a cutting instrument. Appellant 4, named Mathi Kulla, is alleged to have struck Putte Gowda on the knee with a chopper. The second appellant, Govindaraju, is alleged to have hit Nanje Gowda with a spear, and the third appellant, Govinda Gowda, is alleged to have struck Nanje Gowda on the head with an axe. Several charges were framed against the accused. It is necessary to examine at least one of those charges, namely the charge formulated for the offence described as being under Section 302 read with Sections 149 and 34 of the Penal Code, because much of the argument presented before this Court revolved around that charge. The fifth charge against appellant 1 read in these terms: “That you on or about the 18th day of April, 1951 at Talkad were member of an unlawful assembly and in prosecution of the common object or intention or such as you knew to be likely to be committed in prosecution of that object or intention, namely, in killing Putte Gowda, caused the death of Putte Gowda and Nanje Gowda, and you are thereby under Section 149 read with Section 34, Penal Code, guilty of causing the said murders, an offence punishable under Section 302, Penal Code and within the cognizance of the Court of Session.” Similar charges in comparable wording were framed against the other appellants. For the principal offence of murder, a charge under Section 302 was framed against appellant 1 for the killing of Putte Gowda. Appellant 4, who was alleged to have struck Putte Gowda on the knee with a chopper, was not charged with murder for Putte Gowda’s death, although he faced a murder charge for the death of Nanje Gowda. The two remaining appellants, Govindaraju and Govinda Gowda, each faced a charge for the substantive offence of murder relating to the death of Nanje Gowda. All the accused were also charged under Section 148 of the Penal Code. In each of those charges, as well as in the charge framed under Section 302 read with Sections 149 and 34, the common object of the unlawful assembly was expressly described as the killing of Putte Gowda.

The learned Sessions Judge, it appears, concluded that the appellants possessed reasons for anger against Putte Gowda, and in his view those reasons were sufficient to establish a motive for the offences committed. He held that the common object of the unlawful assembly, or the collective intention of the appellants, was not merely to assault Putte Gowda but to kill him. In contrast, the learned Judges of the High Court found that no evidence existed to prove or establish any plan for a concerted action or any common object to kill Putte Gowda. They observed that “the evidence on record is altogether insufficient to prove expressly the common object alleged in the charge so far as the appellants are concerned.” Upon reviewing the evidence, they concluded that, irrespective of the reasons that might have caused local residents to be vexed with Putte Gowda, the common object that could properly be ascribed to the assembly as a whole was to give Putte Gowda a severe and open chastisement only. The High Court further stated that any of the accused who were members of the assembly must be deemed to have had this object, and not the object of killing Putte Gowda. Accordingly, they held that the accused were liable only for acts committed in prosecution of that object, and any acts not warranted by the common object were the responsibility of the individual participants. After arriving at that finding regarding the common object, the High Court proceeded to examine the individual acts of the appellants, holding that, as to appellants 1 and 4, they assaulted Putte Gowda—one striking the abdomen and the other striking the knee—along with another person who caused…

The High Court observed that the evidence did not establish the common object alleged in the charge as it pertained to the appellants. After examining the material, the Court held that although the people of the locality might have been angry with Putte Gowda, the object that could properly be attributed to the whole assembly was merely to give Putte Gowda a severe and public chastisement, not to kill him. Accordingly, the Court stated that every member of the assembly should be deemed to have possessed this limited object and should be liable only for acts carried out in furtherance of that object; any acts beyond the common object were to be attributed to the individual persons who performed them. Having made this finding on the common object, the Court proceeded to examine the individual acts of the accused. It concluded that appellants 1 and 4 had struck Putte Gowda—one on the abdomen and the other on the knee—and that they, together with another person who inflicted the fatal neck injury, had acted jointly with the common intention of killing Putte Gowda. The Court noted, however, that the particular accused who caused the neck injury (accused 6) was acquitted because the evidence against him was insufficient for a conviction. Regarding appellants 2 and 3, the Court held that both had severely assaulted Nanje Gowda and were therefore guilty of murder. In summary, the High Court found that the four appellants were each liable for the specific acts attributed to them, with the first two implicated in the death of Putte Gowda and the latter two found guilty of murdering Nanje Gowda. The appellants’ principal defence was that they were not guilty and that the evidence against them was false. Counsel for the appellants argued before this Court that, given the High Court’s finding on the common object of the unlawful assembly, the convictions under Section 302 read with Section 34 or Section 149 of the Penal Code were legally untenable. Counsel further contended that no clear charge under Section 34 had been framed against the appellants, that the mixing of the charge under Sections 149 and 34 denied the appellants proper notice and a reasonable opportunity to meet the charge, and that the convictions for murder of Nanje Gowda were not justified by the High Court’s findings. Additionally, counsel raised a grievance that the provisions of Section 342 of the Criminal Procedure Code had not been complied with, and that the appellants were prejudiced by the failure of the learned Sessions Judge to give them an opportunity to explain the circumstances that had been used against them.

The Court indicated that the accused must be afforded an opportunity to explain the circumstances that have been set against them. Counsel for the accused also raised several factual issues that required an assessment of the evidence. In particular, counsel submitted that the witnesses who claimed to have seen the assault on the two brothers from the threshold of the house were not actually in a position to observe the assault from that spot. The Court noted, however, that it is a well‑settled practice that, except in cases where there has been an illegality, a procedural irregularity, or a breach of the principles of natural justice that results in the denial of a fair trial or a gross miscarriage of justice, a third review of evidence on questions of fact is not permitted when two lower courts of fact have already examined and evaluated the evidence on those issues.

Accordingly, the Court resolved to address the specific contentions advanced by counsel. These contentions were: (a) that the findings of the High Court do not support the convictions of the appellants; (b) that there has been a failure to comply with the provisions of Section 342 of the Criminal Procedure Code; and (c) that the appellants received neither proper notice nor a reasonable opportunity to meet a charge based on a separate common intention of three persons, distinct from the common object of the unlawful assembly. The Court found it clear that, on the basis of the High Court’s finding regarding the common object of the unlawful assembly, the conviction of the appellants under Section 302 read with Section 149 of the Penal Code could not be sustained. Section 149 requires two essential elements: first, that an offence be committed by any member of an unlawful assembly; second, that the offence be committed in prosecution of the common object of that assembly, or be an offence which the members knew was likely to be committed in furtherance of that common object. The High Court had held that the common object of the unlawful assembly was merely to administer a chastisement to Putte Gowda. The High Court did not hold that the members also knew that the chastisement was likely to result in Putte Gowda’s death. Because that knowledge was absent, the conviction under Section 302 in conjunction with Section 149 was not legally justified.

The Court also referred to an earlier decision dating back to 1873 in Queen v. Sabed Ali, reported in 20 Sudd W R (Cr) 5 (A). That decision explained that Section 149 does not attribute every offence that might be committed by a single member of an unlawful assembly, while the assembly exists, to every other member of the assembly. Rather, the statute attributes an offence to other members only under one of two alternative conditions: either the offence is committed by a member in prosecution of the common object, or the offence is one that the members knew was likely to be committed in prosecution of that object. This principle underlies the Court’s conclusion that the appellants cannot be held liable for the murder of Putte Gowda solely on the basis of Section 149, given the High Court’s findings.

Section 149 of the Penal Code sets out two alternative forms of liability. The first form requires that the offence be committed by a member of the unlawful assembly while pursuing the common object of that assembly. The second form covers an offence that the members of the assembly knew was likely to be committed in the course of pursuing that common object. In the decision of Barendra Kumar Ghosh v. Emperor, the Court explained the distinction between Section 149 and Section 34 of the Penal Code. The Court observed that Section 149 presupposes an assembly of five or more persons who share a common object, which must be one of the objects listed in Section 141, and then looks at acts performed by members of the assembly in prosecution of that object or at acts which the members knew were likely to be committed in prosecution of that object. The Court further pointed out that a common object does not automatically entail a common intention, because, although the object may be shared, the individual intentions of the members may differ. The leading feature of Section 34 is the element of participation in the criminal act, whereas the essential element of Section 149 is the presence of the accused as a member of the assembly at the time the offence is committed. Although the two provisions bear some resemblance and may overlap to a limited extent, they cannot be said to have identical meaning. This distinction was reaffirmed in a more recent decision of this Court in Nanak Chand v. State of Punjab, Criminal Appeal No. 132 of 1954, decided on 25 January 1955.

In the case presently before the Court, the charge framed against the appellants conflated the two sections in an unusual manner. The charge, which has been quoted earlier in this judgment, was in substance a charge under Section 149 of the Penal Code. It failed to give the appellants any notice that three of them possessed a separate common intention to kill Putte Gowda, an intention that was distinct from the common object of the remaining members of the unlawful assembly. The charge made no reference to such a separate common intention. Moreover, the findings of the learned High Court judges regarding the common object of the unlawful assembly concluded that none of the members intended to kill Putte Gowda, nor did any of them know that Putte Gowda was likely to be killed in the course of carrying out the common object of chastisement. In these circumstances, the learned High Court judges erred in holding two of the appellants, namely appellant 1 and appellant 4, guilty of murder on the basis of the liability principle contained in Section 34 of the Penal Code. While it is correct that Section 34 embodies a principle of joint liability for a criminal act, the essential basis of that liability is the existence of a common intention among the participants. In the present case, the two appellants found liable under Section 34 are appellant 1, identified as Chikkarange Gowda, and appellant 4, identified as Mathi Kulla. None of these two persons

In the matter of the injury to Putte Gowda, the court observed that neither appellant caused a fatal wound. Appellant 1, identified as Chikkarange Gowda, struck Putte Gowda on the abdomen with a cutting instrument. The medical evidence recorded in the case file indicated that the abdominal injury was not fatal. The second appellant, Mathi Kulla, delivered a blow to the knee with a chopper, an injury that was also clearly non‑fatal. Based on these findings, the court concluded that the two appellants could not be held liable under Section 302 read with Section 34 of the Penal Code. Moreover, the charge that had been framed against them failed to give any notice of a joint liability arising from a separate common intention to kill Putte Gowda. The high court had previously determined that none of the members of the unlawful assembly possessed the intention to kill Putte Gowda. The present court further held that the way the charge under Section 302 together with Sections 149 and 34 was drafted did not provide the appellants with effective notice that they needed to meet a case of a distinct common intention among three persons, separate from the common object of the other assembly members. Consequently, the issue was not whether a specific charge under Section 34 was required, but rather that the appellants had neither notice nor a reasonable opportunity to defend against an allegation of a separate common intention divergent from that of the other participants. In view of these considerations, the conviction of Chikkarange Gowda and Mathi Kulla for an offence under Section 302 read with Section 34 could not be sustained. The court further noted that, as the high court itself had expressed, the appellants would be liable only for those individual acts that exceeded the common object of the unlawful assembly. Accordingly, while the conviction of the appellants under Section 148 of the Penal Code was upheld, their convictions under Section 302 read with Section 149 and under Section 302 read with Section 34 were set aside.

The court then turned to the specific acts of the individual appellants. It recorded that Chikkarange Gowda, appellant 1, had hit Putte Gowda on the abdomen with a sickle. The medical evidence showed that the wound was an oblique, boat‑shaped, incised lesion measuring six inches by three‑and‑a‑half inches by three inches, penetrating into the abdominal cavity. The court affirmed that there was no doubt that the wound had been inflicted by a cutting instrument such as a sickle and that it endangered the victim’s life. The injury therefore qualified as grievous hurt as described in the last clause of Section 320 of the Indian Penal Code. For this act of assault, the court found Chikkarange Gowda unquestionably guilty of an offence under Section 326 of the Penal Code. Although a substantive charge under Section 302 of the Penal Code had been framed against him for the alleged killing of Putte Gowda, the court held that there was no legal difficulty in convicting him of the lesser offence of causing grievous hurt under Section 326 of the Indian Penal Code.

In this case the Court described the acts of each accused. The fourth appellant, Mathi Kulla, struck Putte Gowda on the knee with a chopper. That conduct could, in principle, fall within Section 324 of the Penal Code. However the prosecution had not charged Mathi Kulla under Section 302 of the Penal Code for the assault on Putte Gowda. Because Mathi Kulla had already been convicted and sentenced under Section 148 of the Penal Code, the Court held that it was unnecessary to analyse whether Section 324 applied. A separate charge under Section 302 of the Penal Code had been framed against him for the alleged killing of Nanje Gowda, but the learned Judges of the High Court had not convicted him of that charge. The Court then turned to the second appellant, Govindaraju. It was alleged that Govindaraju had hit Nanje Gowda with a spear. The Court examined the medical evidence relating to the injuries suffered by Nanje Gowda. No spear wound was found that could be positively linked to the blow alleged to have been delivered by Govindaraju. In the absence of such medical corroboration the Court concluded that the conviction of Govindaraju for the offence under Section 302 of the Penal Code, pertaining to the death of Nanje Gowda, could not be sustained. Finally the Court considered the third appellant, Govinda Gowda. Govinda Gowda was said to have struck Nanje Gowda on the head with an axe. The medical report showed that Nanje Gowda sustained six distinct injuries to the head. The prosecution’s medical witness testified that each of those injuries, taken individually, was sufficient to cause death in the ordinary course of nature. Accordingly the Court found that Govinda Gowda’s individual act of hitting the victim with an axe was enough to establish his guilt under Section 302 of the Penal Code for causing Nanje Gowda’s death. The Court also observed the procedural defect regarding Section 342 of the Criminal Procedure Code. It reiterated that compliance with Section 342 is not a mere formality. The Court agreed with the High Court that the examination of the appellants was not fully satisfactory, but it held that the deficiency did not cause a serious prejudice that would invalidate the entire trial. The appellants contended that they were not part of the mob and that the evidence against them was false. The lower courts had considered that defence, and the Court noted that any further questioning about the weapons used would have only produced denials, as suggested by the appellants’ counsel. Consequently such questions were directed to Govinda Gowda, whose conviction the Court upheld. The result, therefore, is that though there are no reasons for interference with the

In this case, the Court set aside the convictions and sentences that had been recorded against the appellants under Section 148 of the Penal Code. The Court also set aside the convictions and sentences that had been recorded against the appellants under Section 302 of the Penal Code taken together with Section 149, and the convictions and sentences that had been recorded under Section 302 taken together with Section 34 of the Penal Code. Regarding the first appellant, Chikkarange Gowda, the Court acquitted him of the charge under Section 302 of the Penal Code. Instead, the Court convicted him of the offence punishable under Section 326 of the Penal Code and imposed a term of rigorous imprisonment of five years. The Court further affirmed the conviction of Govinda Gowda under Section 302 of the Penal Code for causing the death of Nanje Gowda. The Court confirmed that the sentence of transportation for life that had been imposed on Govinda Gowda was to remain in force. As for the remaining two appellants, Govindaraju and Mathi Kulla, the Court acquitted them of every charge except the one under Section 148 of the Penal Code. Consequently, the convictions and sentences that had been recorded against Govindaraju and Mathi Kulla under Section 148 were left unchanged.