Viji & Anr vs State Of Karnataka

and partly confirmed by the High Court of 2

Karnataka on July 13, 2005 in Criminal Appeal

Nos. 1348 and 1631 of 2004.

2. To appreciate the contentions of the

appellants herein, facts in brief may be

stated.

3. It was the case of the prosecution

that on June 1, 1996, at about 6.15 a.m. on the

foot path in front of property bearing No.

57/63, 1st Main Road, Tippu Nagar, Mysore Road,

Bangalore, accused Nos. 1 to 7 as members of

unlawful assembly with the common object to

commit murder of John Peter @ Kumar, armed with

lethal weapons assembled and in furtherance of

the said common object, committed various

crimes including an offence of murder of John

Peter. They thereby committed offences

punishable under Sections 143, 144, 147, 148,

149 and 302, Indian Penal Code, 1860 (IPC).

4. According to the prosecution, on that

day, John Peter (deceased) was proceeding on

cycle to sell milk along with PW1-K.C. Nagaraj.

Both of them i.e. the deceased John Peter and 3

PW1-K.C. Nagaraj were prevented by accused Nos.

1 to 3, who caught hold of deceased John Peter

and the remaining accused i.e. accused Nos. 4

to 7 administered several blows on the person

of John Peter. Multiple injuries were caused to

John Peter. He succumbed to the injuries and

died at 8.30 a.m. on the same day. A complaint

was registered, usual investigation was made

and the 1st Additional Chief Metropolitan

Magistrate, Bangalore committed the case under

Section 209 of the Code of Criminal Procedure,

1973 (`Code' for short) since the case was

exclusively triable by a Court of Session. All

the accused were called upon to face the trial.

All of them pleaded not guilty to the charge

and claimed to be tried.

5. The prosecution, in order to prove the

case against the accused, examined 29

witnesses, out of them three were shown to be

eye-witnesses being PW1-K.C.Nagaraj, PW5-

Mathaias and PW6-Pratap Singh @ Babu. The Court

also examined PW14-Dr. Shivanagouda, to prove 4

injuries sustained by the deceased John Peter.

The Court considered evidence of other

witnesses and the documents produced by them

and also the evidence of defence witnesses. It

heard the learned counsel for the parties and

by a judgment and order dated July 28, 2004

held all the accused guilty of the offences

with which they were charged. In accordance

with the provisions of Section 235 of the Code,

the Court afforded hearing to the accused on

the quantum of sentence and by an order dated

July 29, 2004, the Court ordered all the

accused to suffer rigorous imprisonment for

life for the offence punishable under Section

302 read with Section 149, IPC. Separate

sentences were also awarded for other offences.

All the sentences, however, were ordered to run

concurrently.

6. Three appeals were filed in the High

Court being Criminal Appeal Nos. 1348, 1396 and

1631 of 2004. The High Court, by the impugned

judgment, allowed Criminal Appeal No. 1396 of 5

2004 preferred by accused Nos. 3 and 6. The

Court also allowed Criminal Appeal No. 1348 of

2004 so far as accused Nos. 2, 4 and 5 were

concerned. Thus, accused Nos. 2 to 6 in

Sessions Case No. 460 of 1996 were ordered to

be acquitted of all the charges.

7. Criminal Appeal No. 1348 of 2004

preferred by accused No.1 as also Criminal

Appeal No. 1631 of 2004 preferred by accused

No.7 were partly allowed. Both the accused were

acquitted of the offences punishable under

Sections 143, 144, 147 and 148, IPC. Their

conviction under Section 302 read with Section

149, IPC was modified and converted into

conviction for the offence punishable under

Section 302 read with Section 34, IPC and both

of them were ordered to undergo rigorous

imprisonment for life and also to pay fine of

Rs.5,000/- in default to undergo rigorous

imprisonment for six months. The said order has

been challenged by the present appellants

(accused Nos. 1 and 7) in this Court. 6

8. Notice was issued on October 21, 2005.

Respondents entered appearance. Meanwhile, the

appellants were asked to put on record relevant

part of original record along with the

translation. Additional documents were also

filed. On March 3, 2006, leave was granted but

bail was refused. Again, on February 22, 2007,

prayer for bail was rejected but the appeal was

expedited for hearing and the Bench presided

over by Hon'ble the Chief Justice of India

directed the Registry to place the matter for

final hearing during vacation and that is how

the matter has been placed before us.

9. We have heard learned counsel for the

parties.

10. The learned counsel for the appellant

contended that the High Court has committed an

error of law in convicting the appellants

herein. It was submitted that when the appeal

of accused Nos. 2 to 6 was allowed by the High

Court and they were ordered to be acquitted of

all the offences with which they were charged, 7

the same benefit ought to have been granted to

the appellants herein. It was submitted that no

appeal against an order of acquittal recorded

by the High Court has been filed by the State

in this Court. The order of acquittal of those

accused thus has attained finality. The order

of acquittal of accused Nos. 2 to 6 clearly

goes to show that the case of the prosecution

was not believed by the High Court and the

genesis of the prosecution was held doubtful.

In that case, according to the counsel, the

said benefit ought to have extended to present

appellants as well. By not recording acquittal,

the Court has committed an error which deserves

to be corrected by this Court.

11. It was also submitted that there were

inherent improbabilities in the case of the

prosecution. Though PW1-K.C. Nagaraj was with

the deceased, he did not intervene even though

the deceased was attacked by the accused. It

was also submitted that it has come on record

that PW1-K.C. Nagaraj had reported the incident 8

to the police. But that complaint has not come

on record and suppressed by the prosecution. It

creates doubt about the prosecution story and

involvement of as many as seven accused.

Doubtful version of the prosecution is also

clear from the Accident Register which was

produced in the Court wherein the history as to

incident had been narrated by the deceased

himself wherein he stated that only two persons

attacked him i.e. present appellants-accused

Nos.1 and 7. The prosecution witnesses,

however, involved other five persons as well

and they were even convicted by the trial

Court. The High Court took into account the

said fact which was important and material and

granted benefit of doubt to accused Nos. 2 to

6. The High Court, however, failed to

appreciate in its proper perspective, the

defence version that in such eventuality,

prosecution witnesses could not be relied upon

even for convicting the present appellants-

accused Nos. 1 and 7. It was also submitted 9

that the prosecution story, from the beginning,

was that accused No.1 had not caused even a

single injury to the deceased. The allegation

was that accused Nos. 1 to 3 caught hold of

deceased John Peter and the remaining accused

i.e. accused Nos. 4 to 7 administered blows and

caused injuries to the deceased. Accused No.1,

therefore, could not have been convicted by the

High Court for an offence punishable under

Section 302 read with Section 34, IPC. As to

accused No.7 (appellant No.2), the counsel

contended that in view of acquittal of other

accused and particularly, accused Nos. 4, 5 and

6 who also alleged to have participated in

causing injuries to deceased John Peter,

accused No.7 (appellant No.2) could not have

been convicted for an offence punishable under

Section 302 read with Section 34, IPC. In such

cases, even if the appellants are liable to be

convicted, the doctrine of `minimum liability'

ought to have been invoked by the High Court

and at the most, they could have been convicted 1

for an offence punishable under Section 326

read with Section 34, IPC. The counsel

submitted that appellant No.2 (accused No.7)

who was alleged to have participated in the

beating of deceased John Peter is in jail since

more than seven years. Likewise, accused No.1

(appellant No.1) who, as per the evidence of

the prosecution itself, did not cause any

injury to deceased John Peter is in jail since

more than four years. On the facts and in the

circumstances of the case, even if this Court

is of the view that the findings recorded by

the High Court cannot be said to be contrary to

law or against the evidence on record, this is

a fit case in which the sentence which the

appellants had undergone should be treated as

sufficient and adequate and the appeal deserves

to be allowed to that extent.

12. The learned counsel for the State, on

the other hand, supported the order of

conviction and sentence recorded by the trial

Court and modified by the High Court. According 1

to the learned counsel, on the basis of

prosecution evidence, the trial Court recorded

a finding that all the accused were responsible

for committing murder of deceased John Peter

and the said finding did not call for

interference.

13. The counsel submitted that it is true

that the High Court partly set aside the order

of conviction and sentence recorded by the

trial Court and accused Nos. 2 to 6 were

acquitted of all the charges and the State

accepted the said order and did not challenge

that part of the order of the High Court. But

that does not mean that accused Nos. 2 to 6

were innocent. Even the High Court did not

record such a finding. Keeping in view the

entry in the Accident Register and disclosure

of two names by the deceased himself as the

persons who attacked him being accused Nos. 1

and 7 (present appellants), the High Court

thought it proper to give `benefit of doubt' to

the remaining accused i.e. accused Nos. 2 to 6. 1

But, so far as the present appellants are

concerned, on the basis of Accident Register as

also on appreciation of evidence of prosecution

witnesses, the High Court partly allowed the

appeals and set aside conviction of the

appellants for the offences punishable under

Sections 143, 144, 147 and 148, IPC. In view of

acquittal of accused Nos. 2 to 6, the High

Court rightly altered conviction of appellants

for the offence punishable under Section 302

read with Section 149 to Section 302 read with

Section 34, IPC. It was, therefore, submitted

that no interference is called for and the

appeal deserves to be dismissed.

14. Now, this Court has held in several

cases that there are situations in which

several accused participate in an assault and

there is often the tendency to spread the

liability to all of them whenever a conviction

is recorded and vice-versa where an acquittal

results, regardless of the very fundamental

proposition of criminal law that even in such 1

instances where there may be a charge of common

intention, unlawful assembly or rioting, that

the Court is still required to sift the

evidence and decide as to whether there is

evidence of commonality of intent on the part

of all the accused or whether a distinction

will have to be made between some of them and

the rest. Criminal law undoubtedly admits to

the proposition that commonality of intent may

develop on the spot but on the other hand,

citing the present case the intention of the

group may have been to assault the victim

whereas one or more of the persons may have

acted otherwise and would possibly qualify

individually for a heavier conviction and

sentence. Undoubtedly, the Court will go by the

weapons used, the overt acts attributed, the

degree of force that was exerted and such other

finer features of the incident while recording

its findings. This is very important because it

is equally essential that no accused person

should end up with a heavier liability than 1

what is strictly contemplated by the law and

conversely, that there should not be a failure

of justice through too light a consequence or

wrongful exoneration. These are all very

fundamental principles of evaluation of

evidence and of criminal jurisprudence.

15. It is equally well-settled that where

a crowd of assailants who are members of an

unlawful assembly proceeds to commit an offence

in pursuance of common object of the unlawful

assembly, it is often not possible for

witnesses to describe accurately the part

played by each one of the assailants. Besides,

if a large crowd of persons armed with weapons

assaults a victim, it is not necessary that all

of them must take part in the actual assault.

Even in absence of actual assault, all members

of unlawful assembly may be held vicariously

liable for the acts of others provided there

was common object to commit a crime.

Appreciation of evidence in such a complex

situation is indeed a difficult task, but 1

courts exercising powers in administering

criminal justice have to do their best in

dealing with such cases and it is expected of

them to discharge their duty to sift the

evidence carefully and to decide which part of

it is true and which is not [vide Masalti v.

State of U.P., (1964) 8 SCR 133].

16. In the instant case, the High Court

acquitted accused Nos. 2 to 6 giving them

benefit of doubt. In the circumstances, in our

opinion, the submission of the learned counsel

for the appellants deserves serious

consideration that only two persons

participated in assault and it was accused No.7

alone who had caused injuries to the deceased.

Hence, even if Section 34, IPC is attracted and

is applied and accused No.1 is also held liable

for the act of accused No.7, the order of

conviction for an offence punishable under

Section 302 read with Section 34, IPC cannot be

said to have been made out by the prosecution. 1

17. It was the case of the prosecution

that accused Nos. 1 to 3 caught hold deceased

John Peter and other accused, i.e. accused Nos.

4 to 7 attacked the deceased and caused

injuries on his person which resulted in his

death. The trial Court believed the ocular

evidence of prosecution witnesses and convicted

all the accused for offences punishable under

Section 302 read with Section 149, IPC. The

High Court, however, allowed the appeals filed

by accused Nos. 2 to 6 fully and acquitted them

of all the charges. The High Court, in the

light of the entry in Accident Register, held

that when the deceased himself had stated that

he was assaulted by two persons, i.e. accused

Nos. 1 and 7, benefit of doubt should be given

to accused Nos. 2 to 6 and accordingly, they

were acquitted. The High Court did not record a

finding that along with accused Nos. 1 and 7,

other unidentified persons also attacked the

deceased and caused his death in furtherance of 1

common object of unlawful assembly. Precisely

for that reason, conviction of accused Nos. 1

and 7 (present appellants) was converted from

an offence punishable under Section 302 read

with Section 149 to Section 302 read with

Section 34, IPC. The said decision has attained

finality as the State has not come to this

Court against the decision of the High Court.

18. We find considerable force in the

argument. In view of acquittal of accused Nos.

2 to 6 and in the light of the ocular evidence

that accused No. 7 assaulted deceased John

Peter while accused No.1 merely caught hold the

deceased, in our opinion, ends of justice would

be met if we convict accused No.7 for an

offence punishable under Section 326, IPC and

accused No.1 for an offence punishable under

Section 326 read with Section 34, IPC.

19. We have already observed in the

earlier part of the judgment that accused No. 7

has remained in jail for more than seven years

while accused No.1 has remained behind the bars 1

for more than four years. In the circumstances,

in our considered view, it would be appropriate

if the sentence already undergone by the

appellants is treated as adequate and

sufficient.

20. For the aforesaid reasons, the appeal

is partly allowed and the conviction recorded

by the High Court against the appellants is

modified. Appellant No.2 (accused No.7) is

convicted for an offence punishable under

Section 326, IPC whereas appellant No.1

(accused No.1) is convicted for an offence

punishable under Section 326 read with Section

34, IPC. Since appellant No.1 has remained in

prison for more than seven years and appellant

No.2 has suffered imprisonment for more than

four years, in our considered opinion, the

interest of justice would be served if we

reduce substantive sentence already undergone

by the appellants. The sentence of fine remains

unaltered.

1

21. Ordered accordingly.

..................................................................J. (C.K. THAKKER)

NEW DELHI, ..................................................................J. OCTOBER 20, 2008. (LOKESHWAR SINGH PANTA)