State of Karnataka vs Yashoda

Mohan M. Shantanagoudar, J.—The Judgment and Order of acquittal dated 26.10.2011 passed by the Sessions Judge, Udupi District, Udupi in Sessions Case No. 51 2004 is called in question by the State. By the impugned Judgment, the trial Court has acquitted the accused of the offences punishable under Sections 143, 147, 148, 307, 332, 333 of IPC and under Sections 3 and 25 of the Indian Arms Act.

The case of the prosecution in brief is that five persons namely Yashoda alias Sujatha (the respondent herein), Vishnu, Ananda (both abscondees), Sumathi alias Parvathi alias Saroja alias Kamalakshi and Usha alias Hajima (both dead) came to the house of Rama Poojary (not examined) at about 7 p.m. on 16.11.2003; they requested for the shelter in the house of Rama Poojary; among them Vishnu, Ananda and Sumathi were holding guns; all the 5 persons were wearing black pants and black shirts; the family members of Rama Poojary and Rama Poojary having feared, permitted the aforementioned five persons to stay during the night intervening between 16.11.2003 and 17.11.2003; all the five persons started telling Rama Poojary and his family members that the landless poor should be protected; the Government authorities should not be permitted to evacuate the en-croachers of the forest land; the encroachments made by the poor persons shall be protected etc; they even told family members of Rama Poojary that they should not hesitate to make use of the weapons for protecting their possession on encroached portions of forest land; they introduced themselves as the members of Naxalite groups. The family members of Rama Poojary as well as the aforementioned five persons dined together in the house of Rama Poojary and slept in the house of Rama Poojary; among the five persons Sumathi (deceased) was guarding the house by standing outside the house while the other persons slept inside the house. At about 3.30 a.m. on 17.11.2003 Sumathi suddenly came inside the house and told Vishnu (absconding accused) that the police have come and Vishnu should use his armed weapon i.e., gun to protect everybody; immediately thereafter, the police announced that all the five persons should surrender before them; there were exchange of gun fire between Sumathi, Vishnu, Ananda and the police; during the gun battle Sumathi lost her life. Even Usha sustained grievous injuries. Vishnu and Ananda ran away from the scene. Whereas the respondent herein namely Yashoda was hiding in the house of Rama Poojary. The police entered the house after some time and apprehended the respondent herein. In the meanwhile, respondent herein also had sustained bullet injury, which was simple in nature. The police carried the dead body of Sumathi as well as they took the injured Usha to the hospital. On the way to the hospital, Usha also expired. The respondent herein (original accused No. 2), who had also sustained injuries was treated in Government General Hospital, Karkala by Dr. Nalini (PW.23); she issued the Wound Certificate of the respondent as per Ex.P32. In the meanwhile PW.2 - the Police Inspector, Udupi lodged the Complaint at 7.15 a.m. on 17.11.2003 against five persons (among them two were dead and two were absconding). The complaint lodged by PW.2 came to be registered in Crime No. 140/2003 by the Karkala Nagara Police Station for the offences punishable under Sections 143, 147, 148, 307, 332 r/w. 149 of IPC, Section 121(A) of IPC and Sections 3 and 25 of the Indian Arms Act. The police after completion of investigation, laid the charge-sheet.

Accused was charged for the offences punishable under Sections 121A, 143, 147, 148, 307, 332, 333 r/w 149 of IPC and Sections 3 & 25 of the Indian Arms Act.

In order to prove its case, the prosecution in all examined 41 witnesses; got marked 59 exhibits and 36 material objects. On behalf of the defence, DW. 1 was examined and got marked Exs.D1 to D11.

The trial was held only against the respondent herein inasmuch as out of the five accused, two were dead and 2 were absconding. Case against the absconding accused was split up. The trial Court on evaluation of the material on record acquitted the accused/respondent herein.

Sri. Vijayakumar Majage, learned Addl. State Public Prosecutor taking us through the entire material on record submitted that the trial Court is not justified in dis-believing the evidence of PWs.17. 18 and 19, (inmates of house of Rama Poojary) who are the eye witnesses to the incident: the police personnel were actually present at the spot and they also sustained the injuries; that PWs.17, 18 & 19 have deposed in support of the case of the prosecution; all these witnesses have consistently deposed that the respondent herein was present in the house of Rama Poojary along with four other accused; she was also one of the members of the Naxalite group; she was also preaching the ideology of Naxalism; she shared the common object of committing crime along with the other accused; she was also wearing black pant and black shirt as worn by the other accused; she came along with other accused to the house of Rama Poojary for preaching Naxalism. It is further argued that the presence of respondent at the spot cannot be disputed; she was also an injured in the very incident; the respondent also suffered certain bullet injuries though simple in nature; merely because the respondent did not possess arms and ammunitions and merely because the Investigating Officer did not recover any incriminating substance from the accused, it cannot be said that the respondent did not share common object along with the other accused. Hence, it is contended by Addl. SPP that the trial Court is not justified in acquitting the accused ignoring the provisions of Section 149 of IPC. According to him, it is an attempt to wage war on the part of the accused against the Government and therefore she should be punished for the offence punishable under Section 121A of the Indian Penal Code. He further submitted that though charge under Section 121A of IPC was framed against the respondent, the trial Court has not at all considered the same and has not answered the said charge levelled against the respondent while coming to the conclusion.

Per contra, learned amicus curiae appearing on behalf of the respondent and assisting the Court, submits that it is not a case of waging of war against the State or Government of Karnataka or Government of India, but it is a case of ;in innocent lady who was roped in the crime either by the group of naxalites or by the police officials. He submits that the respondent has not committed any crime as alleged by the prosecution. He disputed the arguments of the learned Addl. SPP that the respondent has committed the offence under Section 121A of IPC in as much as, it is not a case of waging of war against the State. Even believing the entire case of the prosecution, it can be said that the Naxalites had got different ideology.

The complaint - Ex.P3 came to be lodged by the Police Inspector, who also accompanied the jurisdictional Superintendent of Police and other police officials in two vehicles to the spot in question. Hence, PW.2-Complainant is an eye-witness to the incident in question. The complaint discloses about the receiving of information from an informant of Police that the Naxalites were holding meeting in the house of Rama Poojary; accordingly PW.2 gave information to jurisdictional Superintendent of Police, who inturn made arrangements to visit the spot with the police personnel armed with five rifles and 50 bullets; the police party including the complainant (PW.2) went near the house, wherein, the five persons were holding the meeting; it was the house of one Mr. Rama Poojary ; on reaching the spot, they announced in the mike that the naxalites should surrender to the police; however suddenly the bullets were being fired from the house, wherein, the naxalites were present and accordingly, the police also fired to save their lives. There was exchange of gun fire. In such gun battle, two of the five accused lost their lives and the respondent herein was injured to certain extent. Two other persons absconded. From among the police, two Police Personnel also sustained certain injuries. The police went inside the house and apprehended the respondent. Thus, the complaint discloses about the gun battle between the accused and the police and about the apprehension of the respondent from the house of Rama Poojary.

The version as found in Ex.P3 - the complaint is fully supported by PW.2''s version before the Court. PW. 1 is the Superintendent of Police, Mysuru. PW.2 is the Police Inspector and also the complainant. PWs.3 and 5 are the injured Police Personnel. Their Wound Certificates are at Exs.P33 and P34. PW.4 is another Police Personnel, who went along with the Police team. We find from the evidence of PWs.2, 3, 4 and 5 that the group of Police headed by Superintendent of Police went to the spot and thereafter the gun battle took place between the police and the five persons, who were in the house of Rama Poojary and in the said gun battle, two Police Personnel - viz. PWs.3 and 5 sustained injuries, two accused lost their lives and the respondent sustained simple injuries and other two accused fled away from the scene. The evidence of PWs.1 to 5 is consistent, cogent and reliable.

Having regard to the consistent version of these Police officials, who are responsible State Officers, it is clear that the gun battle took place between the persons who were in the house of Rama Poojary and the group of police. It is also clear from the version of these persons that some of the people who were sleeping in the house of Rama Poojary were having guns and bullets and they also exchanged the fire. Consequent upon which the police sustained injuries. So also it cannot be disputed that respondent also sustained certain simple injuries in the very incident.

The respondent who is examined as DW. 1 has admitted her presence on the spot. She also sustained injuries. However, her defence is that she is the law abiding citizen. She contested for Grama Panchayath election but lost; she and other persons used to gather, discuss and protest against the action of the authorities, of clearing the encroachments in forest area; she was one of the member of such protest committee; she used to give lecture at various places regarding encroachment of portions of forest area by the people and to protect their possession over the encroached portions of forest area etc. According to her, she went for a meeting which was called by one Mr. Padmanabha at Idu village at 5 p.m. The meeting commenced in the house of Rama Poojary; 50 persons had gathered in the said meeting; in the said meeting the respondent and others discussed as to how they are being harassed by the officials for clearing the encroachments of the forest land. The meeting went on upto 8''o clock. Some of the persons requested Rama Poojary to provide shelter to them because they could not go to their native places during night time as there was no bus facility. She saw the two absconding deceased for the first time in the house of Rama Poojary in the said meeting and she did not know about them at all. The respondent slept along with the woman folk of Rama Poojary during the night of 16.11.2013 and suddenly in the early morning, the incident of gun battle has taken place between four others and the police. The respondent has explained her presence in the house of Rama Poojary in the aforementioned manner.

It is the case of prosecution that the respondent was not carrying any weapon. It is also not in dispute that the deceased Sumathi w as the leader and she was guarding the house of Rama Poojary; said Sumathi was having a gun. She was also involved in exchange of fire and ultimately Sumathi was shot dead by the police. Another lady namely, Usha sustained grievous injuries in the gun battle. Whereas the other two male persons namely, Vishnu and Ananda fled away from the scene. It is also the case of the prosecution that the said Vishnu and Ananda were having guns in their possession; they used the guns and fired against the police and ultimately they ran away from the scene.

Un-disputably, no overt-acts are attributed to the respondent by the police. But the fact remains that she was apprehended from the house of Rama Poojary. Since no overt-acts are attributed against her and as she did not possess any arms and ammunitions, the charge levelled against her for the offence under Sections 3 and 25 of the Indian Arms Act cannot be held to be proved. So also the other offences under Indian Penal Code with which she is charged cannot be held to be proved, in view of absence of any overt-act by the respondent. There is nothing on record to show that she also participated in the gun battle along with four others.

The evidence of PWs. 18, 19 and 20 who are the eye-witnesses and who are the family members of Rama Poojary clearly reveal the overt-acts on the part of the Sumathi and Usha (both deceased) and two others, who absconded from the scene. However, no overt-act is attributed to the respondent herein. Those three independent witnesses were inside the house and were witnessing the gun battle between the police and accused. In this view of the matter, it is clear that the respondent has not taken law into her hands. However, the learned Addl. SPP takes the help of Section 149 of IPC and contends that since the respondent had shared common object along with four other accused she is liable to be convicted for the offences with which she is charged. We are unable to accept the said submission. There is nothing on record to show that the respondent has shared the common object of committing the crime in question. As already mentioned supra, the family members of Rama Poojary and the five persons including the respondent were holding a meeting in order to protect the landless agriculturists from being evicted from the encroached portion of forest area; they were holding the meeting for protecting their possession over encroached portion of forest area, which was being cultivated by the landless agriculturists from many decades. In that regard, they were holding meetings. However, aforementioned Vishnu and Ananda as well as the deceased Sumathi were holding guns and bullets. They started using those guns and bullets from the time the police came to the spot and advised them to surrender. The deceased Sumathi having seen the police come near the spot, alerted Vishnu and Ananda (absconded respondents) to the effect that the police had come and there-fore they should make use of the gun. Immediately thereafter Vishnu, Ananda and Sumathi started firing at the police and the police also fired back. Consequent upon which, Sumathi and Usha lost their lives and Vishnu and Ananda fled away from the scene. The respondent however was hiding in the house of Rama Poojary and she was apprehended by the police. The incident of gun fire suddenly broke about at 3.30 a.m. and 4 a.m. There was no conspiracy at all by the accused to commit the crime in question, so also they did not have common intention or common object of committing the crime in question. The situation suddenly erupted and the crime has occurred. In view of the same, it cannot be said that the respondent shared the common object with other accused for the commission of the crime in question. She did not possess any weapon or arms or ammunitions so also she did not participate in the gun battle; on the other hand, she was hiding in the house of Rama Poojary. Hence, in our considered opinion, the respondent did not share common object and consequently the arguments of learned Addl. SPP are not acceptable.

Having regard to the aforementioned facts, we are of the opinion that the defence of the accused app ears to be plausible. She has deposed that she attended the meeting in routine manner and slept in the house of Rama Poojary at about 8 p.m. and suddenly in the morning at 3.30 a.m. there were attack and counter attack. According to her, she is innocent and she is not a member of Naxalite group. She was not armed with any arms and ammunitions. She did not know as to how the weapon should be used. As mentioned supra, it is the specific defence of the respondent that she was only giving lectures in order to see that the encroachments made by the poor agriculturists should not be cleared by the authorities. In other words, she wanted to protect the encroached portions of poor coolies.

It is also not the case of waging war against the State. Absolutely no material is found on record to show that the respondent or anybody was waging war against the State. May be the respondent and others had got different ideology altogether, they might have gone against the dictum of the Hon''ble Apex Court that the encroachments of the forest area should be cleared. Merely because, the respondent was giving lectures for the purpose of protecting the encroachments of the forest area by the poor agriculturists, it cannot be said that she was waging war against the State. Moreover, according to the respondent she had not seen either both the deceased or the other two absconding persons namely Vishnu and Ananda at an earlier point of time and that she had met with them on the first time on that date. It is no doubt true that the evidence of prosecution witnesses discloses that the respondent was giving lectures to encourage the people who had encroached the forest land and she used to tell such persons who had encroached, not to clear the encroachments; but that does not mean that she was waging a war against the State at any point of time. According to the respondent, she wanted to protect the lives of the poor and landless persons, who had encroached upon forest land by permitting them to continue with the encroached portions of the land. As mentioned supra, the ideology of the respondent was very much against the judgments of the Hon''ble Apex Court as well as the law of the land. But because of the aforementioned reasons, it cannot be said that she was waging war against the State.

As has been held by the Apex Court in the case of State (Net of Delhi) v. Navjot Sandhu, reported in 2005 SCC (Criminal) 1715: (AIR 2005 SC 3820) War, terrorism and violent acts to overawe the established Government have many things in common. It is not too easy to distinguish them, but one thing is certain, the concept of war embedded in Section 121 is not to be understood in the international law sense of inter-country war involving military operations. Organising or joining an insurrection against the Government of India is a form of war. "Rebellion, revolution and civil war" are progressive stages in the development of civil unrest, the most rudimentary form of which is "insurrection". An act of insurgency is different from belligerency. In order to give rise to the offence of waging war, the avowed purpose and design of the offence need not be to substitute another authority for the Government of India. Even if the conspired purpose and objective falls short of installing some other authority or entity in the place of an established Government, it does not detract from the offence of waging war. The court must be cautious in adopting an approach which has the effect of bringing within the fold of Section 121 A, all acts of lawless and violent acts resulting in destruction of public properties, etc., and all acts of violent resistance to the armed personnel to achieve certain political objectives. The expression "waging war" should not be stretched too far to hold that all the acts of disrupting public order and peace irrespective of their magnitude and repercussions could be reckoned as acts of waging war against the Government. A balanced and realistic approach is called for in construing the expression "waging war" irrespective of how it was viewed in the long past.

In the matter on hand, the accused are admittedly not the terrorists. Even admitting the case of prosecution, the accused can be called as naxalites, having belief in Naxalism. It is absolutely illegal on the part of the accused to have used the gun for commission of the offence. However, we hasten to add here itself that the illegal acts committed by the accused in this matter cannot be either equated to terrorism or waging war against the State. Therefore it cannot be said that the accused has committed the offence punishable under Section 121-A of IPC.

Neither PWs.1 to 5, who are the police officials nor PWs. 18, 19 and 20, the inmates of the house of Rama Poojary, who have witnessed the incident have deposed about the overt-acts of the respondent herein. There is nothing on record to show that the respondent herein possessed any arm or ammunition or any type of weapon.

In the absence of any material against the respondent and since the respondent did not share any common object with other accused, the trial Court is justified in acquitting the accused. The view taken by the trial Court while acquitting the accused is one of the possible views in the facts and circumstances of the case. Hence, no interference is called for. Appeal fails and the same is dismissed.

We place on record the valuable services rendered/by Sri. Somashekar Angadi, learned amicus curiae. In token thereof, we direct the Registry to pay Rs. 10.000/- (Rupees ten thousand only) as honorarium to the learned amicus curiae.