S.C.No.163/2013 by the learned I Addl. Sessions Judge at
punishable under Section 143 r/w Section 149 of IPC. Further,
147 r/w Section 149 of IPC. Further, sentenced them to
offence punishable under Section 148 r/w Section 149 of IPC.
149 of IPC. Further, sentenced them to undergo imprisonment
307 r/w Section 149 of IPC. Further, sentenced them to
offence punishable under Section 506 r/w Section 149 of IPC.
undergo rigorous imprisonment for a period of two years.
imprisonment for a period of two years. It is also directed that
2. The factual matrix of the prosecution case is as
Somakka followed the accused up to the bus-stand and at the
bus-stand when Mayappa was found collectively, all the
accused dragged Mayappa to a nearby property belonging to
Shivalingappa Konnur. Accused No.1 assaulted Mayappa with
an axe, accused No.5 and accused No.6 assaulted him with
sticks and accused No.2 picked up a stone which was lying
there and assaulted him, at that time, complainant and her
daughter-in-law Abbavva subsided the accused and thereafter,
the injured-Mayappa being accompanied by his wife-Abavva
was admitted to a District Government Hospital, Vijaypur. The
complainant-Somakka lodged a complaint against the
appellants/accused and set the criminal law in motion.
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3. Based on the said complaint, the respondent Police
registered the case in Crime No.64/2013 dated 10.06.2013
against the accused for the offences punishable under Sections
143, 147, 148, 302, 307, 506 r/w Section 149 of IPC and
thereby produced the accused before the jurisdictional
Magistrate and remanded them to judicial custody.
4. During the course of investigation, the Investigating
Officers drew the relevant mahazars and obtained necessary
documents from the concerned authorities and after recording
the evidence of material witnesses, the chargesheet was laid
against the accused for the aforesaid offences before the
committal Court.
5. On committal of the case before the Sessions Court,
the learned Sessions Judge framed the charges for the said
offences and read it over verbatim to the accused. However,
the accused denied the charges and claimed to be tried.
6. In order to prove the charges levelled against the
accused before the Sessions Court, the prosecution in total
examined 20 witnesses as PWs.1 to 20, marked 32 documents
as Exs.P1 to P32 and identified 32 material objects as M.Os.1
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to 32. Albeit the accused did not examine any witness to prove
their defence, however, they marked 5 documents as Exs.D1 to
D5.
7. After completion of the prosecution evidence, the
learned Sessions Judge read over the incriminating evidence of
material witnesses to the accused as stipulated under the
provisions of Section 313 of Cr.P.C. and the accused denied the
same. The defence of the accused is of total denial and false
implication.
8. Post assessment of oral and documentary evidence
placed before the Sessions Court, the learned Sessions Judge
convicted the appellants/accused Nos.1 to 6 for the offences
punishable under Sections 143, 147, 148, 302, 307, 506 r/w
Section 149 of IPC and were sentenced stated supra. The said
judgment of conviction and order of sentence is challenged in
this appeal by the appellants/accused Nos.1 to 6.
9. We have heard the learned counsel Sri Anil Kumar
Navadagi for appellants No.2 to 5, learned counsel Smt.
Ambika S. Patil for appellants No.1 and 6 and learned Addl.
State Public Prosecutor Sri. Siddaling P. Patil for the
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respondent-State, also we have perused the records made
available before us.
10. The primary contention of the learned counsel for
the appellants is that the judgment under this appeal suffers
from perversity and illegality, since the learned Sessions Judge
failed to appreciate the evidence on record in right perspective.
Though the prosecution failed to prove the guilt of the accused
beyond reasonable doubt, the Sessions Judge convicted the
accused based on surmise and conjuncture. By enunciating his
argument, they contended that, the evidence of PW.1 i.e., the
wife of deceased and PW.2 the son of deceased-an injured
witness, are contradicting each other. Therefore, the same
cannot be relied to prove the charges against the accused.
They further contended that, one Bheemappa Hirekurbur
witnessed the incident and informed the same to the
complainant. However, the respondent Police failed to record
his statement, which creates doubt as regards the genesis of
the crime. Further, the statement of PW.5 i.e. wife of PW.4,
claimed to be an eyewitness to the incident, was recorded after
8 days from the date of incident, which proves that she was a
planted eyewitness to the incident. Moreover, the Doctor who
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treated the injured-PW.4 is not examined by the prosecution.
They further contended that, owing to a dispute involving
ancestral property between the deceased family and accused
family, a false case has been foisted against the accused.
Finally, they contended that, to implicate accused Nos.5 and 6
i.e., wives of the accused Nos.2 and 1 respectively, a false
accusation was made against them that they assaulted the
deceased and PW.4 with bamboo sticks. According to the
learned counsel, at any stretch of imagination, it cannot be said
that along with accused Nos.1 to 4 (all men), the accused Nos.
5 and 6 (women) assaulted the deceased and PW.4.
Nevertheless, PW.8 the eyewitness to the incident categorically
stated that, there were about 4 accused persons at the time of
incident. In such circumstance, it is manifestly clear that
accused Nos.5 and 6 were neither present at the scene of
occurrence nor assaulted PW.4. Accordingly, learned counsel
for the appellants prays to allow the appeal by setting aside the
impugned judgment.
11. Refuting the above submissions, the Addl. SPP for
the respondent-State submitted that, there is no perversity or
illegality in the impugned judgment since the learned Sessions
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Judge on duly appreciating the evidence at length, passed a
well-reasoned judgment. As such, interference is not called for
in the impugned judgment by this court. He further contended
that, PW.1-wife of the deceased-Sabu, an eyewitness to the
incident lodged a complaint soon after the incident as per
Ex.P1. She reiterated the averments of Ex.P1 verbatim before
the Court. Further, PW.4-injured, the son of deceased and
PW.1 also stated that, the accused indiscriminately assaulted
him with MOs.3, 7, 8, 18, 21, 24, 27 and 29 and caused
grievous injuries. He identified the weapons used at the time of
commission of crime. Further, the evidence of PWs.1 and 4
corroborates with the evidence of PW.5 i.e., the wife of PW.4
and PW.8-eyewitness to the incident. Hence, a conjoint reading
of the evidence of PWs.1, 4, 5 and 8 along with the medical
evidence, the prosecution has successfully proved the charges
levelled against the accused. Accordingly, the learned Sessions
Judge has rightly convicted the accused for the charges levelled
against them and he prays to dismiss the appeal.
12. We have given our anxious consideration on the
arguments advanced by the counsel for the respective parties,
so also have carefully perused the evidence and documents
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placed before us. The points that arise for our consideration
are:
i. Whether the judgment under this appeal
suffers from any perversity or illegality?
ii. Whether the learned Sessions Judge is
justified in convicting the appellants/accused
Nos.1 to 6 for the offences they have been
charged?
13. In the instant case, albeit the prosecution examined
20 witnesses to prove the charges levelled against the accused,
it is redundant to delve into the nitty gritty of individual
evidence of all witnesses, it is sufficient to appreciate the
evidence of material witnesses.
14. To prove the homicidal death of deceased-Sabu
Poojari, the prosecution predominantly relied on the evidence
of PW.16-medical officer, who conducted autopsy on the corpse
of the deceased and issued a post-mortem report as per
Ex.P17. According to him, the cause of death was due to
"haemorrhagic shock as result of injuries sustained". Further,
he also stated that all the injuries are anti-mortem in nature.
Additionally, the prosecution also placed the inquest
panchanama conducted on the corpse of the deceased as per
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Ex.P4 drawn by PW.20. PWs.6 and 7 are the panch witnesses
for Ex.P4. They both identified the injuries on the corpse of the
deceased. In such circumstance, a conjoint reading of Exs.P17
and P4 along with the evidence of PWs.16, 20, 6 and 7, we are
of the view that, the prosecution has proved the homicidal
death of deceased-Sabu beyond all reasonable doubt. Even
otherwise, the defence has not seriously disputed the homicidal
death of the deceased.
15. To connect the accused in the homicidal death of
the deceased and to the injuries sustained by PW.4, the
prosecution significantly relied on the evidence of PW.1-the
complainant, PW.4-injured, PW.5-wife of PW.4 and PW.8 an
independent eyewitness to the incident. On careful perusal of
the evidence of these witnesses, PW.1 who set the criminal law
into motion by lodging Ex.P1-complaint has stated that there
was a civil dispute history involving ancestral properties
between the deceased's family and accused's family. Against
said backdrop, on the morning of 10.06.2013 when deceased-
Sabu left his house to visit Baram Temple and after sometime
one Bheemappa Hirekurbur informed her that, the accused
were assaulting her husband near Lakappa's house.
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Immediately, she made haste to the spot and witnessed
accused Nos.1 to 6 assaulting her husband with axe, stones
and bamboo sticks i.e. MOs.3, 7, 8, 18, 21, 24, 27 and 29.
Albeit she attempted to pacify the scuffle, however, they
threatened her with dire consequences. Owing to the assault,
her husband succumbed forthwith. Subsequently, the accused
proceeded to bus-stop in search of her son PW.4; she followed
them. Upon finding her son-PW.4 at bus stop, they dragged
him to Shivaningappa's field and assaulted him with the same
weapons. However, she and PW.5 rescued her son. Later, he
was admitted to Hospital at Vijapur for treatment.
Subsequently, she lodged the complaint as per Ex.P1. This
version of PW.1 in Ex.P1 was categorically deposed by her in
her evidence. Though the defence cross-examined this witness
at length, aside from the admission by her pendency of civil
dispute between the deceased family and the accused family,
nothing worthwhile was elicited to disbelieve her testimony.
Further, PW.4 the injured also deposed in his evidence that the
accused Nos.3 and 4 caught hold of him and assaulted with
axe. The accused No.2 pelted stone on his chest and shoulders,
the accused Nos.5 and 6 assaulted him with bamboo sticks
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from head to toe. His statement was recorded after 12 days
from the date of incident. No doubt, there is a delay in
recording the statement of PW.4. However, he clarified the
same by deposing that, immediately after the incident he was
admitted to Government Hospital, Vijayapura and thereafter he
was shifted to Miraj Hospital for higher treatment, following
which the Police recorded his statement. Hence, it could be
gathered that the delay in recording his statement does not
take away his testimony.
16. To strengthen the evidence of PWs.1 and 4, the
prosecution also relied on the evidence of PW.5 the wife of
PW.4 and PW.8-the independent eyewitness. Their testimony
clearly corroborates to the testimony of PWs.1 and 4. They
both categorically stated the assault made by accused to
deceased and PW.4. They also identified the weapons used by
the accused. Though there is a delay in recording the statement
of these witnesses, however they explained the reason for such
delay. Hence, the evidence of these material witnesses-PWs.1,
4, 5 and 8, are consistent in respect of the assault perpetrated
by accused Nos.1 to 4 on the deceased and PW.4. It is
vehemently contended by the learned counsel for the accused
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that much credence cannot be attached to the testimonies of
PWs.1, 4 and 5, since they are the family members and most
interested witnesses who seek to convict the accused owing to
a pending civil dispute between the two families. However, on
meticulous examination of these witnesses, their evidence are
consistent regarding the assault by the accused Nos.1 to 4.
Further, on perusal of the post-mortem report of the deceased
as per Ex.P17 there are as many as 29 injuries observed in the
corpse on the deceased by the Doctor. PW.16-Doctor has
opined that, most of the injuries found on the corpse of the
deceased was caused byMO.18 and 21 i.e. Axes and MO.8 i.e.
the broken handle of the Axe. Further, as per the wound
certificate of PW.4, there were 19 injuries inflicted on him.
According to the eyewitness, the accused also caused injuries
by pelting stones. No doubt, the recovery mahazar witnesses
PWs.2 and 13 tuned hostile to the prosecution case.
Nevertheless, PW.20-Investigating Officer has clearly stated
that, the weapons MOs.5 to 8 were seized during the spot
panchanama-Ex.P6. Further, the Investigating Officer-PW.20
has seized the clothes worn by the accused at the time of
commission of crime based on their voluntary statement i.e., at
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the behest of accused No.2, MOs.16 and 17 based on his
voluntary statement as per Ex.P25, MO.18 to 20 were seized
at the house of accused No.3 based on his voluntary
statement-Ex.P26. MO.21 to 23 were seized from accused
No.4 based on his voluntary statement-Ex.P27. MO.24 to 26
were seized from accused No.5 based on her voluntary
statement-Ex.P28, MO.29 to 31 were seized from accused No.1
based on his voluntary statement-Ex.P29 and MO.32 seized
from accused No.6 based on her voluntary statement-Ex.P30.
All these recoveries were effected under Ex.P2-Mahazar.
Hence, though PWs.2 and 13 turned hostile, the eyewitnesses
to the incident PWs.1, 4 and 5 identified the weapons used by
the accused while perpetrating the crime by them. PW.16 the
Medical Officer who conducted the autopsy has opined that the
injuries found on the corpse could be possible to sustain by
using MO.18 and 21 i.e., axes and MO.8 i.e. the broken handle
of the axe. Hence, we are of the view of that the prosecution
also proved the recovery of weapons used by them for
commission of the crime.
17. No doubt there is delay in recording the statement
of PW.4 and PW.5-the injured and the eyewitness.
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Nevertheless, as discussed supra, both these witnesses have
duly explained the reason for the said delay. Further, the
evidence of these witnesses cannot be disbelieved merely for
the reason that they are the relatives/partisan witnesses. The
Hon'ble Apex Court in the case of Ravasahebgouda Alias
Ravasahebgouda v. State of Karnataka reported in
(2023) 5 SCC 391, held that the evidence of sole related
eyewitness can be basis for conviction, particularly when there
is no vagueness in his/her testimony with respect to the act
committed by the accused. The Hon'ble Apex Court in
Paragraph No.17 of the said judgment held that:
"17. "It is clear that it is the quality and not the
quantity of the witnesses that matters. Further in
Paragraph No.25 of the said judgment, it is stated
that "a witness being a close relative is not a
ground enough to reject his/her testimony.
Mechanical rejection of an even "partisan" or
"interested" witness may lead to failure of justice.
The principle of "falsus in uno, falsus in omnibus" is
not one of the general applications."
18. As per the law laid down by the Hon'ble Apex Court
in the above case, it is evident that, there is no such bar to rely
the evidence of relative witnesses and the same cannot be
discarded solely for the reason that they are the relatives of the
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deceased. In the case on hand, the evidence of relative
witnesses also corroborates with the evidence of other
witnesses, as such, we are of the view that, the contention of
the learned counsel for the appellants does not hold much
water.
19. It is also argued by the learned counsel for the
appellants that, there are contradictions in the evidence of
PWs.1, 4 and 5, on careful perusal, in our view those minor
contradictions does not go to the root of the prosecution case.
The Hon'ble Apex Court in the case of Mallikarjuna and
Others v. State of Karnataka reported in (2019) 8 SCC
359 has held in paragraph No.13, which is quoted verbatim as
under:
"13. While appreciating the evidence of a
witness, the approach must be to assess
whether the evidence of a witness read as a
whole appears to be truthful. Once the
impression is formed, it is necessary for the
court to evaluate the evidence and the alleged
discrepancies and then, to find out whether it is
against the general tenor of the prosecution
case. If the evidence of eyewitness is found to
be credible and trustworthy, minor
discrepancies which do not affect the core of the
prosecution case, cannot be made a ground to
doubt the trustworthiness of the witness."
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20. Albeit this case rests on the evidence of eyewitness
to the incident and motive for the incident does not play much
vital role, nevertheless, the prosecution has successfully proved
the motive for commission of crime by the accused. It is
specifically stated by PWs.1, 4 and 5 and PW.10-son of
deceased that, the deceased has given up 2 (two) acres of land
to accused Nos.1 and 2 out of 64 acres of land and there was a
civil dispute pending between them. As such, the accused was
compelled to perpetuate the crime.
21. As far as, the vehement submission of the learned
counsel for the appellants regarding non-participation of
accused Nso.5 and 6 in the incident is concerned, on careful
perusal of the evidence available on record, though PWs.1 and
4 stated that accused Nos.1 to 6 participated in the incident
and assaulted the deceased and PW.4, nevertheless PW.8 an
independent eyewitness has stated that, 4 accused persons
assaulted the deceased with weapons. Though he stated the
participation of accused Nos.5 and 6 subsequently in his
evidence, there occurs reasonable doubt about the participation
of accused Nos.5 and 6 who are women. PW.8 was very
specific in chief examination where he deposed, 4 accused
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persons participated in the incident. He being an independent
eyewitness to the incident, credibility has to be attached to his
testimony, since the other independent eyewitness PWs.11, 14
and 15 collectively turned hostile to the prosecution case.
Though PWs.1, 4 and 5 stated about the participation of
accused Nos.5 and 6 in the incident, by considering the
evidence of PW.8, we find substantial force in the submission of
the learned counsel for the appellants that the accused Nos.5
and 6 were falsely implicated in the crime for the reason that
they are the wives of accused Nos.2 and 1 respectively. We
concur with the contention of the learned counsel for the
appellants that, it is hard to believe that the accused Nos.5 and
6 assaulted the deceased with bamboo sticks while accused
Nos.1 to 4 assaulted him with deadly weapons like Axe and
stones. It is also hard to believe they the accused Nos.5 and 6,
thereafter went searching for PW.4 holding bamboo sticks to
the bus stop and they again assaulted PW.4 along with accused
Nos.1 to 4. As discussed supra, the medical evidence of PW.16
depicts that, the major injuries found on the corpse of the
deceased was caused by axes, stones and the handle of the
axe. In such circumstances, the bamboo sticks used by the
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accused Nos.5 and 6 appears to be doubtful. Further,
according to PW.20-Investigating officer, the accused Nos.5
and 6, produced bamboo sticks i.e. MO.24 and 27 from their
house. It is further hard to believe, after assaulting the
deceased and PW.4, the accused Nos.5 and 6 carried the
bamboo sticks to their house and hid it at home. Hence, the
evidence of PW.8 appears to be truthful about the non-
participation of accused Nos.5 and 6. It is worth to mention
here that, it is well settled principle of law that where on the
evidence two possibilities are available or open, one which goes
in favour of the prosecution and the other which benefits an
accused, the accused is undoubtedly entitled to the benefit of
doubt. Another golden thread which runs through the web of
the administration of justice in criminal cases is that if two
views are possible on the evidence adduced in the case one
pointing to the guilt of the accused and the other to his
innocence, the view which is favourable to the accused would
be adopted. In the case on hand, the evidence of PW.8 clearly
goes to prove that there were 4 accused persons in the incident
and participation of accused Nos.5 and 6 is an afterthought.
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22. Though, accused Nos.1 to 6 are convicted for the
offences punishable under Section 143, 147, 148, 302, 307,
506 r/w Section 149 of IPC, since the participation of accused
Nos.5 and 6 remains unproved by the prosecution beyond
reasonable doubt, the involvement of accused Nos.1 to 4 in the
murder of the deceased and in inflicting grievous injuries to
PW.4 by sharing common intention is proved by the evidence of
eyewitnesses discussed supra, in such circumstances, they are
liable to be convicted under Section 34 of IPC instead of
Section 149 of IPC along with offences under Section 143, 147,
148, 302, 307 and 506 of IPC. The Hon'ble Apex Court in the
case of Rohtas v. State of Haryana reported in (2021) 19
SCC 465, held in Paragraphs No.15 to 23 as under:
"15. We have given our thoughtful
consideration to all the issues raised on behalf of the
appellants. We first deem it appropriate to avert to
the contention whether a charge framed with the
assistance of Section 149 IPC can later be converted
to one read with Section 34 IPC or even a simpliciter
individual crime? Second, whether lack of
independent witnesses to a violent crime would
undermine the prosecution case and whether closely
related witnesses can be relied upon in such
instances? And third, whether leniency ought to be
shown to the present appellants given the extended
period of liberty which they have enjoyed since being
released on bail?
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(i) Framing of charge and its subsequent alteration
16. The primary attack on the judgment of the
High Court by the learned counsel for the appellants
is on a question of law, which although seems
interesting at first but turns out to be superficial
upon a deeper consideration. The oversight
regarding Sections 148 and 149IPC as highlighted by
the appellants is indeed inescapable. Before the
members of an "unlawful assembly" can be
vicariously held guilty of an offence committed in
furtherance of common object, it is necessary to
establish that not less than five persons, as
mandatorily prescribed under Section 141 read with
Section 149IPC had actually participated in the
occurrence. It is not uncommon, like in the present
facts, when although the number of accused is more
than five at the time of charge-sheeting, but owing
to acquittals of some of them over the course of trial,
the remaining number of accused falls below five. It
may be true in such cases, as rightly urged by the
appellants that the charge under Sections 148 and
149IPC would not survive.
17. This does not, however, imply that courts
cannot alter the charge and seek the aid of Section
34IPC (if there is common intention), or that they
cannot assess whether an accused independently
satisfies the ingredients of a particular offence.
Sections 211 to 224CrPC which deal with framing of
charges in criminal trials, give significant flexibility to
courts to alter and rectify the charges. The only
controlling objective while deciding on alteration is
whether the new charge would cause prejudice to the
accused, say if he were to be taken by surprise or if
the belated change would affect his defence strategy.
[Nallapareddy Sridhar Reddy v. State of A.P., (2020)
12 SCC 467 : (2020) 4 SCC (Cri) 162, paras 16-21]
The emphasis of Chapter XVII CrPC is thus to give a
full and proper opportunity to the defence but at the
same time to ensure that justice is not defeated by
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mere technicalities. Similarly, Section 386CrPC
bestows even upon the appellate court such wide
powers to make amendments to the charges which
may have been erroneously framed earlier.
Furthermore, improper, or non-framing of charge by
itself is not a ground for acquittal under Section
464CrPC. It must necessarily be shown that failure of
justice has been caused, in which case a retrial may
be ordered. [Kantilal Chandulal Mehta v. State of
Maharashtra, (1969) 3 SCC 166 : 1970 SCC (Cri) 19]
18. The contention of the appellants to the
contrary is nothing but hyper-technical. It deserves
mention that the extracts of Subran v. State of
Kerala [Subran v. State of Kerala, (1993) 3 SCC 32 :
1993 SCC (Cri) 583] as relied upon by the
appellants' counsel have been subsequently recalled
and substituted by the Bench in review jurisdiction.
[Subran v. State of Kerala, (1993) 3 SCC 722 : 1993
SCC (Cri) 989] The amended version makes clear
that acquittal in Subran [Subran v. State of Kerala,
(1993) 3 SCC 32 : 1993 SCC (Cri) 583] was not
because of improper framing of charges but on facts.
In that case, the injuries attributed to the accused
failed to satisfy the necessary ingredients of the
relevant provision when his role was assessed
individually. Indeed, such is the right approach.
Courts are free to weigh the evidence and determine
whether an independent conviction is possible in case
group prosecution under Section 149IPC fails.
19. In another case relied upon by the
appellants i.e. Amar Singh v. State of Punjab [Amar
Singh v. State of Punjab, (1987) 1 SCC 679 : 1987
SCC (Cri) 232] , this Court in the penultimate
paragraph notes that :
"13. ... Apart from the fact that the
appellants cannot be convicted under
Sections 148 and 149IPC, it is difficult to
convict them on any charge on the basis of
the evidence of PW 5."
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(emphasis supplied)
This shows that acquittal was based not merely
upon failure by the prosecution to fulfil the
requirements of Section 149IPC, but because even
independently no substantive offence was found to
have been committed.
20. In fact, the law on this point has
continuously been delved into and reiterated by this
Court from time to time. A three-Judge Bench of this
Court in Karnail Singh v. State of Punjab [Karnail
Singh v. State of Punjab, (1954) 1 SCC 104 : AIR
1954 SC 204] , held that :
"7. ... It is true that there is substantial
difference between the two sections but as
observed by Lord Sumner in Barendra
Kumar Ghosh v. King Emperor [Barendra
Kumar Ghosh v. King Emperor, 1924 SCC
OnLine PC 49 : (1924-25) 52 IA 40 : ILR
(1925) 52 Cal 197] , they also to some
extent overlap and it is a question to be
determined on the facts of each case
whether the charge under Section 149
overlaps the ground covered by Section 34.
If the common object which is the subject-
matter of the charge under Section 149
does not necessarily involve a common
intention, then the substitution of Section
34 for Section 149 might result in prejudice
to the accused and ought not therefore to
be permitted. But if the facts to be proved
and the evidence to be adduced with
reference to the charge under Section 149
would be the same if the charge were under
Section 34, then the failure to charge the
accused under Section 34 could not result
in any prejudice and in such cases the
substitution of Section 34 for Section 149
must be held to be a formal matter."
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(emphasis supplied)
21. The above-extracted position of law was
further concretised in Willie (William) Slaney v. State
of M.P. [Willie (William) Slaney v. State of M.P., 1955
SCC OnLine SC 34 : AIR 1956 SC 116, para 49] and
by the majority in Chittarmal v. State of
Rajasthan [Chittarmal v. State of Rajasthan, (2003)
2 SCC 266, para 14 : 2003 SCC (Cri) 514] . The
permissibility of convicting an accused individually
under a simpliciter provision after group conviction
with the aid of Section 149IPC fails, was further
explored in Atmaram Zingaraji v. State of
Maharashtra [Atmaram Zingaraji v. State of
Maharashtra, (1997) 7 SCC 41 : 1997 SCC (Cri) 990]
, wherein this Court held that :
"4. The next question that falls for our
determination is whether, after having
affirmed the acquittal of all others, the High
Court could convict the appellant under
Section 302IPC (simpliciter). The charges
framed against the accused (quoted earlier)
and the evidence adduced by the
prosecution to bring them home clearly
indicate that according to its case, the nine
persons arraigned before the trial court --
and none others, either named or unnamed
(totalling minimum five or more persons) --
formed the unlawful assembly. Consequent
upon the acquittal of the other eight the
appellant could not be convicted with the
aid of Section 149IPC, more particularly, in
view of the concurrent findings of the
learned courts below that the other eight
persons were not in any way involved with
the offences in question.
5. The same principle will apply when
persons are tried with the aid of Section
34IPC. In Krishna Govind Patil v. State of
Maharashtra [Krishna Govind Patil v. State
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of Maharashtra, 1963 SCC OnLine SC 29 :
(1964) 1 SCR 678 : AIR 1963 SC 1413] , a
four-Judge Bench of this Court has laid
down that when four accused persons are
tried on a specific accusation that only they
committed a murder in furtherance of their
common intention and three of them are
acquitted, the fourth accused cannot be
convicted with the aid of Section 34IPC for
the effect of law would be that those who
were with him did not conjointly act with
the fourth accused in committing the
murder.
6. In either of the above situations
therefore the sole convict can be convicted
under Section 302IPC (simpliciter) only on
proof of the fact that his individual act
caused the death of the victim. To put it
differently, he would be liable for his own
act only. In the instant case, the evidence
on record does not prove that the injuries
inflicted by the appellant alone caused the
death; on the contrary the evidence of the
eyewitnesses and the evidence of the
doctor who held the post-mortem
examination indicate that the deceased
sustained injuries by other weapons also
and his death was the outcome of all the
injuries. The appellant, therefore, would be
guilty of the offence under Section 326IPC
as he caused a grievous injury to the
deceased with the aid of jambia (a sharp-
cutting instrument)."
(emphasis supplied)
22. This position of law has finally been
summed up very succinctly in Nallabothu
Venkaiah v. State of A.P. [Nallabothu
Venkaiah v. State of A.P., (2002) 7 SCC 117 : 2002
SCC (Cri) 1615] : (SCC p. 128, para 24)
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"24. On an analytical reading of a
catena of decisions of this Court, the
following broad proposition of law clearly
emerges : (a) the conviction under Section
302 simpliciter without aid of Section 149 is
permissible if overt act is attributed to the
accused resulting in the fatal injury which is
independently sufficient in the ordinary
course of nature to cause the death of the
deceased and is supported by medical
evidence; (b) wrongful acquittal recorded
by the High Court, even if it stood, that
circumstances would not impede the
conviction of the appellant under Section
302 read with Section 149IPC; (c) charge
under Section 302 with the aid of Section
149 could be converted into one under
Section 302 read with Section 34 if the
criminal act done by several persons less
than five in number in furtherance of
common intention is proved."
(emphasis supplied)
23. Although both Sections 34 and 149IPC are
modes for apportioning vicarious liability on the
individual members of a group, there exist a few
important differences between these two provisions.
Whereas Section 34 requires active participation
and a prior meeting of minds, Section 149IPC
assigns liability merely by membership of the
unlawful assembly. In reality, such "common
intention" is usually indirectly inferred from conduct
of the individuals and only seldom it is done through
direct evidence."
23. Applying the principles laid down by the Hon'ble
Apex Court in the above case it could be seen that both the
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common object and common intention are traced back to the
same evidence, the participation of accused Nos.5 and 6
appears to be doubtful in the incident and the prosecution
failed to establish the guilt of accused Nos.5 and 6 beyond
reasonable doubt and it is established by the evidence of
material witnesses that accused Nos.1 to 4 are perpetrator of
the crime and the facts proved and the evidence adduced with
reference to the charge under Section 149 would be the same if
the charge were under Section 34 of IPC, though the accused
Nos.1 to 4 are not charged under Section 34 of IPC,
substitution of Section 34 of IPC for Section 149 of IPC is
permissible. Accordingly, we hold that the conviction and
sentence imposed by the Sessions Court to accused Nos.1 to 4
for the offences punishable under Sections 143, 147, 148, 302,
307 and 506 of IPC shall be read with Section 34 of IPC instead
of Section 149 of IPC.
24. For the forgoing reasons, we are of the considered
view that, the prosecution has failed to prove the charges
levelled against the accused Nos.5 and 6 beyond reasonable
doubt. However, the prosecution has successfully established
the guilt of the accused Nos.1 to 4 for the offences punishable
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under Sections 143, 147, 148, 302, 307 and 506 r/w Section
34 of IPC. In that view of the matter, we answer Points No.1
and 2 raised above in partly affirmative and proceed to pass
the following:
ORDER
i. Criminal Appeal No.200139/2016 is allowed in
part.
ii. The Judgment of conviction and order of
sentence passed in S.C.No.163/2013 dated
28.07.2016 by the 1st Addl. Sessions Judge,
Vijayapur is set-aside in respect of accused Nos.
5 and 6 i.e., appellant Nos. 5 and 6.
iii. The accused Nos.5 and 6 i.e. the appellant
Nos.5 and 6 are acquitted for the offences
punishable under Section 143, 147, 148, 302,
307 and 506 r/w Section 149 of IPC.
iv. The Bail bonds of appellant Nos.5 and 6 stands
cancelled. The fine amount if any paid by them
shall be refunded to them on due identification.
v. The appeal against appellants No.1 to 4 i.e.,
accused Nos.1 to 4 is dismissed.
vi. The conviction and order of sentence against
the accused Nos.1 to 4 passed in
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S.C.No.163/2013 dated 28.07.2016 by the I
Addl. Sessions Judge, Vijayapur in respect of
offence punishable under Section 149 of IPC is
modified for the offence punishable under
Section 34 of IPC. The accused Nos.1 to 4 are
convicted for the offences punishable under
Sections 143 r/w Section 34 of IPC, Section 147
r/w Section 34 of IPC, Section 148 r/w Section
34 of IPC, Section 302 r/w Section 34 of IPC,
Section 307 r/w Section 34 of IPC, Section 506
r/w Section 34 of IPC.
vii. The sentence imposed by the learned Sessions
Judge for accused Nos.1 to 4 for the offences
punishable under Sections 143, 147, 148, 302,
307 and 506 of IPC are confirmed.
viii. Registry is directed to return the trial Court
records along with certified copy of this
judgment to the learned Sessions Judge,
forthwith.
Sd/-
(S.SUNIL DUTT YADAV)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
HKV,VP
