Viji & Anr vs State Of Karnataka

2. To appreciate the contentions of the appellants herein, facts in brief may be stated.

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.

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.

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.

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

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.

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.

21. Ordered accordingly.