LexVIJI & ANR. versus STATE OF KARNATAKA
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[2008) 14 S.C.R. 761 VIJI & ANR. A II. r). STATE OF KARNATAKA (Criminal Appeal No. 296 of 2006) OCTOBER 20, 2008 B [C.K. THAKKER AND LOKESHWAR SINGH PANTA, JJ.] '-.. >-. Penal code, 1860: s. 34 - Common intention - A-1 to A- 3 caught hold of deceased and A-4 to A-7 attacked deceased c resulting in his death - Conviction under s.302 r.w. s.149 - High Court acquitted A- 2 to A-6 giving benefit of doubt and in case of A-1 and A-7, converted conviction to s. 302 r. w. s. 34 - Appeal by A-1 and A-7 - Held: In view of acquittal of A-2 to A- 6, and in the light of ocular evidence that A-7 assaulted de- D ceased while A-1 merely caught hold of deceased, ends of ;ustice would be met if A-7 is convicted under s. 326 and ac- cused no.1 under s.326 r.w. s.34 !PC - Regarding sentence, since A-7 remained in jail for more than 7 years while A- 1 for """'' I more than 4 years, sentence already undergone by them was adequate and sufficient - s.326. E Criminal Jurisprudence: Administration of Criminal Jus- tice - Punishment/Liability - ·Extent of - Held: No accused -~ should end up with heavier liability than what is strictly con- I. templated by law nor should there be failure of justice by way of wrong exoneration. F Prosecution case was that deceased was proceed- _,, ing on his cycle to sell milk along with PW-1. On the way, .>( accused no.1 to 3, caught hold of the deceased and the remaining accused no.4 to 7 administered several blows G on him. Deceased succumbed to the injuries. The trial Court found them guilty under ss.143, 144, 147, 148, 149 and 302 IPC. All the accused were ordered to suffer rigor- ~ ous imprisonment for life under s.302 r.w. s.149 IPC. Sepa- ~ rate sentences were also awarded for other offences. 761 H 762 SUPREME COURT REPORTS [2008] 14 S.C.R. A The High Court allowed the appeal preferred by ac- cused no.2 to 6. The appeal of accused 1 and 7 was partly '"'r allowed. Their conviction under s.302 r.w. s.34 IPC was modified and converted into conviction under s.302 r.w. s.34 IPC. Hence the instant appeals by accused no.1 and B 7. Appellants contended that when the appeal of ac- cused Nos. 2 to 6 was allowed by the High Court and they were acquitted of all the offences with which they were ~' charged, the same benefit ought to have been granted to c them; that doubtful version of the prosecution is clear from the Accident Register wherein deceased himself stated that only two persons attacked him i.e. appellants- accused Nos.1 and 7, the prosecution witnesses, how- ever, involved other five persons as well and they were D even convicted by the trial Court; that the prosecution story, from the beginning, was that accused No.1 had not caused even a single injury to the deceased; that in view of acquittal of other accused and particularly, accused Nos. 4, 5 and 6 who also alleged to have participated in ·y E causing injuries to deceased accused No.7 (appellant No.2) could not have been convicted for an offence pun- ishable under s.302 read with s.34, IPC; that in such cases, even if the appellants are liable to be convicted, the doc- ,_ trine of 'minimum liability' ought to have been invoked by F the High Court and at the most, they could be convicted for an offence punishable under s.326 read with s.34, IPC. Partly allowing the appeals and modifying the con- v- viction recorded by the High Court, the Court I - G HELD: 1. 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 ~I victim whereas one or more of the persons may have acted H otherwise and would possibly qualify individually for a VIJI & ANR. v. STATE OF KARNATAKA 763 heavier conviction and sentence. Undoubtedly, the Court A has to 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. It is equally essential that no accused person should end up with a heavier liability than what is strictly contemplated B by the law and conversely, 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. [Para 14] [770-E-H] C 2. Where a crowd of assailants who are members of an un
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