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CASE NO.: Appeal (crl.)  577 of 2008

PETITIONER: Huchappa @ Hucharayappa & Ors

RESPONDENT: State of Karnataka

DATE OF JUDGMENT: 01/04/2008

BENCH: DR. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: JUDGMENT

CRIMINAL APPEAL NO.  577 OF 2008 (Arising out of SLP (Crl.) No. 7463/2007)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by a learned  single judge of the High Court upholding the judgment of learned  Principal Sessions Judge, Shimoga in SC No.37 of 1995  convicting the three appellants for offence punishable under  Section 326 of the Indian Penal Code, 1860 (in short the ’IPC’)  and sentence each one of them to undergo rigorous  imprisonment for five years and to pay a fine of Rs.2,000/- each  with default stipulation. There were originally 14 accused  persons.  The trial court found the present appellants guilty and  others were found not to be guilty under Section 235(1) of the  Code of Criminal Procedure, 1973 (in short the ’Cr.P.C.’).   Originally all the accused persons were charged for having  committed offence under Sections 143,144,147, 148, 109, 504,  324, 323 and 506 read with Section 149 IPC.  In view of death of  Mahadevappa (hereinafter referred to as ’deceased’) on  28.11.1994, Section 302 IPC was added.  

3.      The prosecution version as unfolded during trial was as  follows:

The accused persons 1 to 14 forming themselves into  members of unlawful assembly, with deadly weapons assaulted  CW-1 and caused fracture of his left leg.  CW-1 consequent to the  injuries and septicemia died after five days while under  treatment.  The F.I.R. is lodged by the deceased.  The contents of  the F.I.R. implicated all the accused persons. PWs. 2 and 5 are  the eye witnesses to the incident.  They also implicate A1 to A-14  as assailants who caused grievous injuries on CW-1, ultimately  resulting in his death.

4.      As noted above, after the death of the deceased, another  complaint was filed and the case was registered as one in relation  to the offence punishable under Section 302 IPC.  The trial court  as noted above found accused 4 to 14 to be not guilty.  An appeal  was preferred by the appellants which, as noted above was

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dismissed.  The High Court disposed of the appeal observing as  follows:

"The trial court has grossly erred in  acquitting A4 to A14.  Since Section 149 is  invoked and acquitted accused would be  equally and vicariously liable for the acts of  A1 to A3 as they have shared  common object  and they had also participated in the assault.   The State has not filed an appeal against  illegal acquittal.

The trial court convicted A1 to A3 for  committing offence under Section 326  I.P.C.   The injury was caused on the non-vital part,  no intention to cause the injury which is  likely to cause death and no knowledge of  causing death could be inferred from the  overt acts.  Therefore conviction u/s 326 IPC  is sound and proper.  Looking into the  consequence and ghastly act, the sentence  imposed is also sound and proper and do not  call for interference.  The appeal is  dismissed."

5.      Learned counsel for the appellants submitted that the High  Court’s judgment is clearly unsustainable being unreasoned.   6.      Learned counsel for the respondent-State supported the  judgment.

7.      To say the least the High Court’s judgment is a bundle of  confusion.  The High Court held that the trial court has erred in  acquitting A4 to A14, since Section 149 was invoked and  acquitted accused persons should be equally and vicariously  liable as they shared common object of A1 to A3 and also  participated in the assault.

8.      The High Court noted that the State has not filed an appeal  against the "illegal acquittal".  The High Court upheld the  conviction holding that injury was caused on the non-vital part  which was likely to cause the injury which is likely to cause  death and no knowledge of causing death could be inferred from  the overt acts.  Therefore the conviction was maintained and the  appeal was dismissed.

9.      Since the High Court has not applied its mind to various  contentions raised on behalf of the appellant and has in a casual  manner disposed of the appeal, we have no hesitation in setting  aside the impugned judgment. We remit the matter to the High  Court for fresh disposal in accordance with law. Since the  Criminal Appeal is to the year 2001, we request the High Court  to dispose of the appeal as early as practicable preferably by the  end of October, 2008.

10.     It is stated that an application for suspension of the  sentence of the accused persons and grant of bail moved in the  High Court.  If the same is filed, it shall be dealt with in  accordance with law.