Viji & ANR Vs.
State of Karnataka  INSC 1786 (20 October 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 296 OF 2006 VIJI
& ANR. ... APPELLANTS VERSUS
C.K. THAKKER, J.
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 2 Karnataka on
July 13, 2005 in Criminal Appeal Nos. 1348 and 1631 of 2004.
appreciate the contentions of the appellants herein, facts in brief may be
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).
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.
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
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.
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.
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.
was issued on October 21, 2005.
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.
have heard learned counsel for the parties.
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
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.
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
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.
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.
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.
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.
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].
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.
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.
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.
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.
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.