PEERAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The three appellants herein are accused nos. A2, A3 and A4 in Sessions Case No. 30 of 1989 on the file of I Addl. Sessions Judge, gulbarga. They, along with nine others, were charged with the offences under Sections 147, 148 and 302 read with 149 IPC. The actused no. 7 died during the pendency of the sessions case. The other 11 accused including the appellants herein were acquitted by the trial court. The State of Karnataka filed the appeal in the High Court questioning the acquittal. During the pendency of the appeal, the accused no. 1 died. Hence the appeal had abated against him. The High court, on reappreciation of evidence, held that the trial court acquitted the accused nos. 1 to 4 "on flimsy grounds by rejecting the evidence of PWs 4 and 5 and other circumstantial evidence". The high Court observed that no second view was possible as far as the guilt of the accused nos. 1 to 4 was concerned. The High Court felt that the trial Judge gave undue importance to minor aspects in rejecting the testimony of pws 4 and 5. Accordingly, the High Court allowed the appeal to the extent of convicting the accused nos. 2 to 4 (appellants herein). As A1 died, he was not convicted, though a1's complicity was held proved. The three appellants were convicted under Section 302 IPC read with Section 149 IPC and sentenced to life imprisonment. As regards the other accused persons, the High Court was of the view that A5 to A12 reached the spot only after the other four accused attacked the deceased Mahadevappa and that these persons did not share the common object with the accused nos. 1 to 4 and the attack did not continue after they came to the scene. Hence accused nos 5 to 12 were acquitted on benefit of doubt.

(2.) Aggrieved by the reversal of acquittal by the High Court, the present appeal is filed by the accused nos. 2 to 4.

(3.) At the outset, we may point out that there is a palpable error in the judgment of the High Court concerning the provision under which the appellants were convicted. As unlawful assembly consists of five or more persons and the accused other than A1 to A4 having been acquitted on the ground that they did not share the common object, the conviction under Section 302 with the aid of Section 149 IPC is clearly unsustainable. On the finding of the high Court, the number of persons of the unlawful assembly is less than five. If at all they can be convicted under Section 302 read with Section 34 IPC or Section 302 simplicitor. Another patent error in the high Court's judgment is the reason given by the High Court for acquitting A5 to A12. The High Court wrongly assumed that A5 to A12 reached the spot after the assault by A1 to A4 and that none of them were with the other four accused initially. But the very evidence of the eyewitnesses on which the High Court placed reliance is otherwise. They attributed varied roles to the accused nos 5 to 12 at verious ctages of the incident Thus the ground of acquittal of the other eight accused was an irrelevant ground, though, in the view we take, the ultimate conclusion is correct