REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 296 OF 2006

VIJI & ANR. … APPELLANTS

VERSUS

STATE OF KARNATAKA … RESPONDENT

J U D G M E N T C.K. THAKKER, J.

1. The  present  appeal  is  filed  by  two

appellants, who were original accused Nos. 1

and 7 respectively, against the judgment and

order  of  conviction,  dated  July  28,  2004

recorded by the Fast Track (Sessions) Court-II,

Bangalore City in Sessions Case No. 460 of 1996

and  partly  confirmed  by  the  High  Court  of

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

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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

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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

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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.

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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,

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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

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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

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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

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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

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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.

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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

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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

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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

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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.

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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

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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

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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.

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21. Ordered accordingly.

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

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

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