Full Judgment Text
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CASE NO.:
Appeal (crl.) 577 of 2008
PETITIONER:
Huchappa @ Hucharayappa & Ors
RESPONDENT:
State of Karnataka
DATE OF JUDGMENT: 01/04/2008
BENCH:
DR. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
JUDGMENT
CRIMINAL APPEAL NO. 577 OF 2008
(Arising out of SLP (Crl.) No. 7463/2007)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a learned
single judge of the High Court upholding the judgment of learned
Principal Sessions Judge, Shimoga in SC No.37 of 1995
convicting the three appellants for offence punishable under
Section 326 of the Indian Penal Code, 1860 (in short the ’IPC’)
and sentence each one of them to undergo rigorous
imprisonment for five years and to pay a fine of Rs.2,000/- each
with default stipulation. There were originally 14 accused
persons. The trial court found the present appellants guilty and
others were found not to be guilty under Section 235(1) of the
Code of Criminal Procedure, 1973 (in short the ’Cr.P.C.’).
Originally all the accused persons were charged for having
committed offence under Sections 143,144,147, 148, 109, 504,
324, 323 and 506 read with Section 149 IPC. In view of death of
Mahadevappa (hereinafter referred to as ’deceased’) on
28.11.1994, Section 302 IPC was added.
3. The prosecution version as unfolded during trial was as
follows:
The accused persons 1 to 14 forming themselves into
members of unlawful assembly, with deadly weapons assaulted
CW-1 and caused fracture of his left leg. CW-1 consequent to the
injuries and septicemia died after five days while under
treatment. The F.I.R. is lodged by the deceased. The contents of
the F.I.R. implicated all the accused persons. PWs. 2 and 5 are
the eye witnesses to the incident. They also implicate A1 to A-14
as assailants who caused grievous injuries on CW-1, ultimately
resulting in his death.
4. As noted above, after the death of the deceased, another
complaint was filed and the case was registered as one in relation
to the offence punishable under Section 302 IPC. The trial court
as noted above found accused 4 to 14 to be not guilty. An appeal
was preferred by the appellants which, as noted above was
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dismissed. The High Court disposed of the appeal observing as
follows:
"The trial court has grossly erred in
acquitting A4 to A14. Since Section 149 is
invoked and acquitted accused would be
equally and vicariously liable for the acts of
A1 to A3 as they have shared common object
and they had also participated in the assault.
The State has not filed an appeal against
illegal acquittal.
The trial court convicted A1 to A3 for
committing offence under Section 326 I.P.C.
The injury was caused on the non-vital part,
no intention to cause the injury which is
likely to cause death and no knowledge of
causing death could be inferred from the
overt acts. Therefore conviction u/s 326 IPC
is sound and proper. Looking into the
consequence and ghastly act, the sentence
imposed is also sound and proper and do not
call for interference. The appeal is
dismissed."
5. Learned counsel for the appellants submitted that the High
Court’s judgment is clearly unsustainable being unreasoned.
6. Learned counsel for the respondent-State supported the
judgment.
7. To say the least the High Court’s judgment is a bundle of
confusion. The High Court held that the trial court has erred in
acquitting A4 to A14, since Section 149 was invoked and
acquitted accused persons should be equally and vicariously
liable as they shared common object of A1 to A3 and also
participated in the assault.
8. The High Court noted that the State has not filed an appeal
against the "illegal acquittal". The High Court upheld the
conviction holding that injury was caused on the non-vital part
which was likely to cause the injury which is likely to cause
death and no knowledge of causing death could be inferred from
the overt acts. Therefore the conviction was maintained and the
appeal was dismissed.
9. Since the High Court has not applied its mind to various
contentions raised on behalf of the appellant and has in a casual
manner disposed of the appeal, we have no hesitation in setting
aside the impugned judgment. We remit the matter to the High
Court for fresh disposal in accordance with law. Since the
Criminal Appeal is to the year 2001, we request the High Court
to dispose of the appeal as early as practicable preferably by the
end of October, 2008.
10. It is stated that an application for suspension of the
sentence of the accused persons and grant of bail moved in the
High Court. If the same is filed, it shall be dealt with in
accordance with law.