STATE OF KARNATAKA Vs. THIMMAPPA

JUDGEMENT

(1.) ). THERE are situations in which several accused participate in an assault 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 propoition 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 to he made between some of them and the rest. Criminal law undoubt edly admits to the proposition that commonality of intent my develop on the spot but on the other hand, intention of the group may have been to assault the victim whereas one or more of the persons may have acted otherwise then they 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 incident while recording the findings. This is very important because it is equally essential that no accused person should end up with a heavier liability than what is strictly contemplated by the law and conversely, that there should not be a failure of justice through too light a consequence or wrongful exoneration. Even where injuries have resulted in death if the weapons used and the nature of the injuries, the intention. and the circumstances could all bring the offence under S. 304, IPC and not under S. 302 IPC. , it is the sacred duty of the Court to ensure that the ultimate criminal liability is never higher than what the law permits. In this context, there is another rule of caution. While in many instances once the presence is established, a conviction may be justified along with the others if that presence is sufficiently incriminating but the converse is important in so far as if the presence is totally innocuous the Court will have to make a distinction while recording a conviction. Also the same case where there is no commonality of intent, different accused may be liable for convictions of different. gravity depending on what acts the evidence establishes. (Paras 10, 11, 12)While assessing the fine, a very clear and correct enquiry should be done as it should not be over oppressive such as the situation in which a poor farmer has to sell his lands and his wife's jewellery to pay it up and at the same time, it should not be disproportionate. such as in a case where the accused is a rich businessman or a white collared offender in whose case, a very heavy fine is the only meaningful punishment as otherwise, the accused will look it as a huge joke. Finally, the Courts should not be shy or hesitant in imposing very heavy fines where the circumstances warrant but in those instances while directing the payment of compensation the general principles relating to investment etc. , for the long term welfare shall be borne in mind. (Para 13)P. M. Nawaz, Govt. Pleader for Appellant; d. R. Anandeeshwar and Nagabhushana reddy, for Respondents. K. RAMANNA. J. : This appeal is directed against the judgment and order of acquittal dated 29-8-1998 passed by the learned II Addl. Sessions Judge, Kolar, in S. C. No. 8/1992 mainly on the ground that though the prosecution has placed cogent and consistent evidence with regard to the manner in which the incident took place about 50 meters away from the land survey no. 34/4 of Hampanasandra village within the limits of Gowribidanur police station, on account of that incident late Yellappa was severely injured and on the very same day he died while undergoing treatment in the nimhans hospital but the learned Sessions judge has acquitted all the respondentsaccused. without appreciating the medical evidence which corroborated the ocular evidence, both injured witnesses and other eyewitnesses. Hence this appeal.

(2.) THE case of the prosecution is that on 25-11-1990 at about 8 a. m. respondents-1 to 4, 6 to 12 and deceased accused-5 and 13 with a common object to commit rioting, formed themselves into an unlawful assembly armed with deadly weapons like clubs, chopper, whip, etc. and assaulted P. W. 1 aswathappa and P. Ws. 2 to 5. Therefore they were charged with having committed the offence punishable under Sections 143, 147, 148, 149, 447, 302, 307, 324 and 326 ipc. The trial Judge after considering the evidence on record acquitted all the respondents.

(3.) WE heard the learned counsel for both sides on merits.