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2008(7) Supreme 578
SUPREME COURT OF INDIA
C.K. Thakker and Lokeshwar Singh Panta, JJ.
Viji & Anr. — Appellants
versus
State of Karnataka — Respondent
Criminal Appeal No. 296 of 2006
Decided on : 20-10-08
Criminal Trial – Unlawful Assembly – It is 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 unlawful assembly, it is often not possible for witnesses to describe accurately 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 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. (Para 15)
(1964) 8 SCR 133 – Relied upon.
Facts of the Case :
1. Accused Nos. 1 to 7 were prosecuted herein in the instant case for forming an unlawful assembly with common object to commit murder of deceased. Prosecution case that accused persons armed with lethal weapons assembled and in furtherance of said common object, committed various crimes including offence of murder of deceased. Trial Court convicted accused persons for said offences. On appeal,High Court while acquitting accused 2 to 6, partly allowed appeal of appellant accused 1 and 7 so far as that both accused were acquitted of offences punishable under Sections 143, 144, 147 and 148, IPC and 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.
2. Present Appeal has been filed against said order of High Court.
Findings of the Court :
Instantly High Court acquitted accused 2 to 6 giving them benefit of doubt. In the circumstances submission of appellants deserved serious consideration that only two persons participated in assault and it was accused 7 alone who had caused injuries to deceased. Hence, even if Section 34, IPC was attracted and was applied and accused 1 was also held liable for act of accused 7, order of conviction for an offence punishable under Section 302 read with Section 34, IPC could not be said to have been made out by prosecution. High Court, in the light of the entry in Accident Register, held that when deceased himself had stated that he was assaulted by two persons, i.e. accused 1 and 7, benefit of doubt should be given to accused Nos. 2 to 6 and accordingly, they were acquitted. High Court did not record a finding that along with accused 1 and 7, other unidentified persons also attacked deceased and caused his death in furtherance of common object of unlawful assembly. Precisely for that reason, conviction of accused 1and 7 was converted from an offence punishable under Section 302 read with Section 149 to Section 302 read with Section 34, IPC. In view of acquittal of accused 2 to 6 and in the light of ocular evidence that accused 7 assaulted deceased while accused No.1 merely caught hold deceased, ends of justice would be met if accused 7 was convicted for an offence punishable under Section 326, IPC and accused 1 for an offence punishable under Section 326 read with Section 34, IPC.
Result : Appeal partly allowed.
JUDGMENT
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, Sections 143, 144, 147, 148, 149 and 302, Indian Penal Code, 1860 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 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 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 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
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