STATE OF KARNATAKA Vs. CHANDRA MARAKALA AND OTHERS

JUDGEMENT

(1.) WE have heard the learned State Public Prosecutor in detail and on merits. In the first instance the appellant assails the acquittal of the accused other than those who have been convicted. On the remaining charges and as far as the charge under Section 302 Indian Penal Code is concerned, the State has filed an appeal against acquittal against all the accused. We shall deal with the two parts of the challenge separately.

(2.) THE learned State Public Prosecutor on the basis of the evidence on record demonstrates to us that the material does establish that even the accused who have been acquitted were present on the spot when the incident took place. Another crucial circumstance which he relies upon is the fact that the evidence also establishes that they were carrying some weapons or the other, particularly, sticks. It is his submission that the law on the point is well settled particularly in cases of rioting and unlawful assembly and that the liability of one is liability of all in so far as once the presence and participation can be established it is no defence to argue that one or more accused did not play a specific role in the assault or that the definite overt act was not attributable to this accused. The principle of law enunciated is undoubtedly correct. The learned State Public Prosecutor therefore submits that an order of acquittal was unjustified on the remaining charges and that interference is necessary. Normally, we would have accepted this submission except for the fact that this happens to be one of those unique cases in which the evidence itself establishes that even though the remaining accused were carrying some sort of weapons such as sticks that for some strange reasons, they did not mingle with the assailants and even though they were present there, it would not be possible to include them as part of the unlawful assembly nor is there any evidence on the basis of which it could be said that they were participants. It is only for this reason and on the special facts of the present case that we decline to interfere as far as the remaining charges are concerned. It necessarily follows that as far as these accused are concerned even the acquittal for the offence under Section 302 Indian Penal Code would be sustainable.