Holding

The appellants are convicted under s.326 IPC (with s.34 IPC for No.1) and the earlier convictions under s.302 read with s.34 are set aside.

Summary

The deceased John Peter was attacked on a footpath by a group of seven accused. The trial court convicted all of them for offences including murder under s.302 read with s.149 IPC. The High Court acquitted accused Nos.2‑6 and modified the conviction of accused Nos.1 and 7 to s.302 read with s.34 IPC, also acquitting them of other charges. The appellants (accused Nos.1 and 7) challenged this, arguing that only the deceased’s own statement and ocular evidence showed that only the two of them participated, with No.7 delivering the fatal blows and No.1 merely holding the victim. The Supreme Court held that, in view of the acquittal of the other accused and the evidence, No.7 should be convicted under s.326 IPC and No.1 under s.326 read with s.34 IPC, and that the time already served constituted an adequate sentence. Consequently, the appeal was partly allowed, the convictions under s.302 were set aside, and the sentences were reduced to reflect the revised convictions.

Issues considered

The appropriateness of convicting the appellants under s.302 read with s.34 IPC given the acquittal of other accused and the evidence indicating limited participation.
Whether the doctrine of minimum liability requires conviction under s.326 IPC instead of s.302 IPC.
The adequacy of the sentence already served by the appellants in light of the modified convictions.

Legislation cited

Code of Criminal Procedure, 1973s. 209
Indian Penal Code, 1860s. 143, s. 144, s. 147, s. 148, s. 149, s. 302, s. 326, s. 34

Subjects

common intentions.34 IPCs.302 IPCs.326 IPCunlawful assemblybenefit of doubtconviction modificationsentencingcriminal jurisprudence

Judgment

[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-
ceased while A-1 merely caught hold of deceased, ends of D
;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
on him. Deceased succumbed to the injuries. The trial G
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
·y
Nos. 4, 5 and 6 who also alleged to have participated in
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-
I -
viction recorded by the High Court, the Court

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
otherwise and would possibly qualify individually for a
H
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 unlawful assembly proceed to commit an offence in
pursuance of common object of the unlawful assembly, it
is often not possible for witnesses to describe accurately
the part played by each one of the assailants. Besides, if D
a large crowd of persons armed with weapons assault 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 E
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 ex-
pected of them to discharge their duty to sift the evidence F
carefully and to decide which part of it is true and which
is not. [Para 15] [771-A-D] ·
Masafti v. State of UP (1964) 8 SCR 133 - relied on.

_./'\ l 3. The High Court acquitted accused Nos. 2 to 6 giv- G
;. ing them benefit of doubt.. In the circumstanc_es, the sub-
mission of the appellants deserved serious consideration
that only two persons participated in assault and it was
accused No.7 alone who had caused injuries to the de-
ceased. Hence, even if s.34, IPC is attracted and is ap- H
764 SUPREME COURT REPORTS [2008] 14 S.C.R.

A plied and accused No.1 is also held liable for the act of
accused No.7, the order of conviction for an offence pun-
ishable under s.30~ read with s.34, IPC cannot be said to
have been made out by the prosecution. It was the case
of the prosecution that accused Nos. 1 to 3 caught hold
s deceased and other accused, i.e. accused Nos. 4 to 7 at- _.l(r
tacked the deceased and caused injuries on his person
which resulted in his death. The High Court, in the light of
the entry in Accident Register, held that when the de-
ceased himself had stated that he was assaulted by two
c·__, persons, i.e. accused Nos. 1and7, benefit of doubt should
be given to accused Nos. 2 to 6 and accordingly, they were
acquitted. The conviction of accused Nos. 1 and 7 (present
appellants) was converted from an offence punishable
under s.302 read with s.149 to s.302 read with s.34, IPC.
In view of acquittal of accused Nos. ·2 to 6 and in the light
0
of the ocular evidence that accused No. 7 assaulted de-
ceased while accused No.1 merely caught hold the de-
ceased, ends of justice would be met if accused No.7 is
convicted for an offence punishable under s.326, IPC and
accused No.1 for an offence punishable under s.326 read
E with s.34, IPC. The accused No. 7 had remained in jail for
more than seven years while accused No.1 had remained
behind the bars for more than four years. In the circum-
stances, it would be appropriate if the sentence already
undergone by the appellants is treated as adequate and
1
F sufficient.·The interest of justice would be served if sub-
stantive sentence is reduced to sentence already under-
gone ·by, the appellants. The sentence of fine remains un-
altered. [Paras 16-18, 19, 20] [771-D-G; 772-A-F; 773-A-B]

.-· G CASE LAW REFERENCE
(1964) 8 SCR 133 relied on Para 15
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 296 of 2006

H
VIJI & ANR. v. STATE OF KARNATAKA 765
(·
From the Judgment and final Order dated 13.7.2005 of A
the High Court of Karnataka at Bangalore in Crl. Appeal No.
1348 and 1631 of 2004
A.B. Patel, Kiran Suri for the Appellants.
A. Rohan Singh (for Sanjay R. Hegde) for the Respon- B
1.-,__j-.
dent.
The Judgment of the Court was delivered by
C.K. THAKKER, J. 1. The present appeal is filed by two
appellants, who were original accused Nos. 1 and 7 respec- c
tively, against the judgment and order of conviction, dated July
28, 2004 recorded by the Fast Track (Sessions) Court-II, Ban-
galore City in Sessions Case No. 460 of 1996 and partly con-
firmed by the High Court of Karnataka on July 13, 2005 in Crimi-
nal Appeal Nos. 1348 and 1631 of 2004.
t D
-i' 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
E
No. 57/63, 1st Main Road, Tippu Nagar, Mysore Road, Banga-
lore, 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 further-
ance of the said common object, committed various crimes in-
"x eluding an offence of murder of John Peter. They thereby com- F
mitted offences punishable under Sections 143, 144, 147, 148,
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 G
_,/~ 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
H
766 SUPREME COURT REPORTS [2008] 14 S.C.R.

A John Peter. He succumbed to the injuries and died at 8.30 a.m.
on the same day. A complaint was registered, usual investiga-
tion was made and the 1st Additional Chief Metropolitan Magis-
trate, Bangalore committed the case under Section 209 of the
Code of Criminal Procedure, 1973 ('Code' for short) since the
B case was exclusively triable by a Court of Session. All the ac-
cused were called upon to face the trial. All of them pleaded not
guilty to the ch~rge 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
C 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
D 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
E 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
F concurrently.
6. Three appeals were filed in the High Court being Crimi-
nal Appeal Nos. 1348, 1396 and 1631of2004. The High Court,
by the impugned judgment, allowed Criminal Appeal No. 1396
of 2004 preferred by accused Nos. 3 and 6. The Court also
G 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
H
VIJI & ANR. v. STATE OF KARNATAKA 767

(
No.1 as also Criminal Appeal No. 1631 of 2004 preferred by A
accused No.7 were partly allowed. Both the accused were ac-
quitted 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 B
34, IPC and both of them were ordered to undergo rigorous
\., >- imprisonment for life and also to pay fine of Rs.5,000/- in de-
fault 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. c
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 trans-
lation. Additional documents were also filed. On March 3, 2006,
leave was granted but bail was refused. Again, on February 22, D
2007, prayer for bail was rejected but the appeal was expe-
dited 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. E
9. We have heard learned counsel for the parties.
10. The learned counsel for the appellant contended that
the High Court has committed an error of law in convicting the
appellants herein. It was submitted that when the appeal of ac- F
~·Jr
cused Nos. 2 to 6 was allowed by the High Court and they were
ordered to be acquitted of all the offences with which they were
charged, the same benefit ought to have been granted to the
appellants herein. It was submitted that no appeal against an
order of acquittal recorded by the High Court has been filed by
G
the State in this Court. The order of acquittal of those accused
~
• thus has attained finality. The order of acquittal of accused Nos .
2 to 6 clearly goes to show that the case of the prosecution was
not believed by the High Court and the genesis of the prosecu-
tion was held doubtful. In that case, according to the counsel,
H
768 SUPREME COURT REPORTS [2008] 14 S.C.R.
-<r
A the said benefit ought to have extended to present appellants
as well. By not recording acquittal, the Court has committed an,
error which deserves to be corrected by this Court.
11. It was also submitted that there were inherent improb-
abilities in the case of the prosecution. Though PW1-K.C.
B Nagaraj was with the deceased, he did not intervene even _;{_-
though the deceased was attacked by the accused. It was also
submitted that it has come on record that PW1-K.C. Nagaraj
had reported the incident to the police. But that complaint has
not come on record and suppressed by the prosecution. It ere-
c ates doubt about the prosecution story and involvement of as
many as seven accused. Doubtful version of the prosecution is
also clear from the Accident Register which was produced in
the Court wherein the history as to incident had been narrated
by the deceased himself wherein he stated that only two per-
D sons attacked him i.e. present appellants-accused Nos.1 and
7. The prosecution witnesses, however, involved other five per- I
sons as well and they were even convicted by the trial Court.
The High Court took into account the said fact which was im-
portant and material and granted benefit of doubt to accused
E Nos. 2 to 6. The High Court, however, failed to appreciate in its
proper perspective, the defence version that in such eventual-
ity, prosecution witnesses could not be relied upon even for
convicting the present appellants-accused Nos. 1 and 7. It was
also submitted that the prosecution story, from the beginning,
F was that accused No.1 had not caused even a single injury to
the deceased. The allegation was that accused Nos. 1 to 3
caught hold of deceased John Peter and the remaining accused
i.e. accused Nos. 4 to 7 administered blows and caused inju-
ries to the deceased. Accused No.1, therefore, could not have
been convicted by the High Court for an offence punishable
G ~
..( .
under Section 302 read with Section 34, IPC. As to accused I

No.7 (appellant No.2), the counsel contended that in view of
acquittal of other accused and particularly, accused Nos. 4, 5
and 6 who also alleged to have participated in causing injuries
to deceased John Peter, accused No.7 (appellant No.2) could
H
VIJI & ANR. v. STATE OF KARNATAKA 769

not have been convicted for an offence punishable under Sec- A
tion 302 read with Section 34, IPC. In such cases, even if the
appellants are liable to be convicted, the doctrine of 'minimum
liability' ought to have been invoked by the High Court and at
the most, they could have been convicted for an offence punish-
... )- able under Section 326 read with Section 34, IPC. The counsel B
submitted that appellant No.2 (accused No. 7) who was alleged
to have participated in the beating of deceased John Peter is
in jail since more than seven years. Likewise, accused No.1
(appellant No.1) who, as per the evidence of the prosecution
itself, did not cause any injury to deceased John Peter is in jail c
since more than four years. On the facts and in the circum-
stances of the case, even if this Court is of the view that the
findings recorded by the High Court cannot be said to be con-
trary to law or against the evidence on record, this is a fit case
f in which the sentence which the appellants had undergone
D
·---r should be treated as sufficient and adequate and the appeal
deserves to be allowed to that extent.
12. The learned counsel for the State, on the other hand,
supported the order of conviction and sentence recorded by
the trial Court and modified by the High Court. According to the E
learned counsel, on the basis of prosecution evidence, the trial
Court recorded a finding that all the accused were responsible
for committing murder of deceased John Peter and the said
----x finding did not call for interference.
13. The counsel submitted that it is true that the High Court F
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
- -rJ...,_
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 G
Court did not record such a finding. Keeping in view the entry in
the Accident Register and disclosure of two names by the de-
ceased 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 H
770 SUPREME COURT REPORTS [2008] 14 S.C.R.

A Nos. 2 to 6. But, so far as the present appellants are concerned,
on the basis of Accident Register as also on appreciation of evi-
dence of prosecution witnesses, the High Court partly allowed
the appeals and set asid~ conviction of the appellants for the
offences punishable under Sections 143, 144, 147 and 148, IPC.
B 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.
c 14. Now, this Court has held in several cases that there
are situations in yvhich several accused participate in an as-
sault and there is often the tendency to spread the liability to all
of them whenever a conviction is recorded and vice-versa where
an acquittal results, regardless of the very fundamental propo-
D sition of criminal law that' even in such instances where there
may be a charge of common intention, unlawful assembly or
rioting, that the Court is still required to sift the evidence and
decide as to whether there is evidence of commonality of intent
on the part of all the accused or whether a distinction will have
E to be made between some of them and the rest. Criminal law
undoubtedly admits to the proposition that commonality of in-
tent may develop on the spot but on the other hand, citing the
present case the intention of the group may have been to as-
sault the victim whereas one or more of the persons may have
F acted otherwise and would possibly qualify individually for a
heavier conviction and sentence. Undoubtedly, the Court will go
by the weapons used, the overt acts attributed, the degree of
force that was exerted and such other finer features of the inci-
dent while recording its findings. This is very important because
G it is equally e~sential that no accused person should end up
with a heavier liability than what is strictly contemplated by the
Jaw and conversely, that 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.
H
VIJI & ANR. v. STATE OF KARNATAKA 771

15. It is equally well-settled that where a crowd of assail- A
----r ants who are members of an unlawful assembly proceeds to
commit an offence in pursuance of common object of the un-
lawful assembly, it is often not possible for witnesses to describe
accurately the part played by each one of the assailants. Be-
sides, if a large crowd of persons armed with weapons assaults B
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 c
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 evi-
dence carefully and to decide which part of it is true and which
is not [vide Masalti v. State of U.P, (1964) 8 SCR 133]. D

16. In the instant case, the High Court acquitted accused
t
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 per-
E
sons 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
F
34, IPC cannot be said to have been made out by the prosecu-
tion.
,;-'>I-/
17. It was the case of the prosecution that accused Nos. 1
to 3 caught hold deceased John Peter and other accused, i.e.
accused Nos. 4 to 7 attacked the deceased and caused inju- G
ries on his person which resulted in his death. The trial Court
believed the ocular evidence of prosecution witnesses and con-
,-,f victed all the accused for offences punishable under Section
302 read with Section 149, IPC. The High Court, however, al-
-;_ lowed the appeals filed by accused Nos. 2 to 6 fully and acquit- H
772 SUPREME COURT REPORTS [2008] 14 S.C.R.

A ted them of all the charges. The High Court, in the light of the
entry in Accident Register, held that when the deceased himself
had stated that he was assaulted by two persons, i.e. accused ~-
Nos. 1 and 7, benefit of doubt should be given to accused Nos.
2 to 6 and accordingly, they were acquitted. The High Court did
B not record a finding that along with accused Nos. 1 and 7, other
unidentified persons also attacked the deceased and caused
his death in furtherance of common object of unlawful assem-
bly. Precisely for that reason, conviction of accused Nos. 1 and
7 (present appellants) was converted from an offence punish- ,,.,
C able under Section 302 read with Section 149 to Section 302
read with Section 34, IPC. The said decision has attained final-
ity as the State has not come to this Court against the decision
of the High Court.
18. We find considerable force in the argument. In view of
0
· 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 'r'.
E
accused No.1 for an offence punishable under Section 326 read
with Section 34, IPC.
19. We have already observed in the earlier part of the
judgment that accused No. 7 has remained in jail for more than
F seven years while accused No.1 has remained behind the bars
for more than four years. In the circumstances, in our consid-
. ered view, it would be appropriate if the sentence already un-
dergone by the appellants is treated as adequate and sufficient.
G 20. For the aforesaid reasons, the appeal is partly allowed
and the conviction recorded by the High Court against the ap-
pellants is modified. Appellant No.2 (accused No.7) is convicted
for an offence punishable under Section 326, IPC whereas ap-
pellant No.1 (accused No.1) is convicted for an offence punish- -~
H able under Section 326 read with Section 34, IPC. Since ap-
VIJI & ANR. v. STATE OF KARNATAKA 773

pellant No.1 has remained in prison for more than seven years A
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 substan1ive sentence already under-
gone by the appellants. The sentence of fine remains unaltered.
B
21. Ordered accordingly.

D.G Appeals partly allowed.

!