- (1.) Challenge in this appeal is to the judgment of a Division Bench of the Karnataka High Court partially allowing the appeal filed by the respondent who were convicted for offence punishable under Sections 148,302 read with Section 149 of the Indian Penal Code, 1860 (in short the 'IPC'). By the impugned judgment the High Court held that the respondents were to be convicted under Section 148 and Section 326 read with Section 149 IPC.
(2.) Background facts as projected by the prosecution in a nutshell are as follows: Eight persons faced trial for allegedly committing murder of one Rajanna (hereinafter referred to as the 'deceased') on 13.7.1992. It was also alleged that they committed offence punishable under Sections 143, 147 & 148 IPC. First Information Report (in short the 'FIR') was lodged on 13.7.1992 at about 9.30 p.m. It was alleged that in an incident that took place at Bandihalli at about 7 p.m. on 13.7.1992, the eight accused who were members of an unlawful assembly had assaulted the deceased Rajappa with machus, sticks and a wooden reaper and as a result of the injuries sustained by him, he died shortly thereafter. The accused are all inter-related and there was some rivalry between the two groups which is of a long standing nature and that this was the real reason for the incident. The mother of the deceased Ningamma (P.W.l) stated that the accused persons had come to her house shortly before the incident and some of them were armed with machus and remaining persons had clubs and a wooden reaper with them. They asked her as to where her son Rajanna was. She informed the persons who had come there that Rajanna had gone out and she bolted the door because they were in an aggressive mood. According to her, they threw stones on the house and once again enquired about Rajanna and since she told them that he was not in the house, they left the place stating that they would finish him. Shortly after this, she went in the direction in which these persons have proceeded and saw Rajanna approaching from the opposite side. On seeing the accused persons, he tried to escape from them but the accused caught hold of him and severely assaulted him. Rajanna fell on the ground with several injuries on his head and different parts of the body and the lower limbs and that he was bleeding. The accused left the place with the weapons stating that Rajanna was finished. Attempt was made to take the injured person to the hospital at Huliyurdurga in a car. Rajanna died on the way and ultimately, the body was taken to the Police Station and from there to the hospital. The complainant Ningamma (PW1) lodged the complaint at 9.30 p.m. and this complaint which has been treated as the F.I.R, was ultimately sent to the J.M.F.C., Kunigal, which reached him at 7.30 am, the next morning. Accused No.4-Lokesh had also sustained two injuries of considerable seriousness on his left thigh and right leg respectively and he came to be admitted to the hospital at Huliyurdurga on the same evening at about 7.30 p.m. A-4 had lodged a complaint with the police to the effect that deceased Rajanna and two other persons had assaulted him near his house at about 5.30 p.m. on 13.7.1992 and that he had sustained the injuries in the course of that incident. Ultimately, the Police filed a report in respect of this complaint. As far as the complaint lodged by Ningamma is concerned, the Police registered an offence being Crime No. 92/1992 under Section 302 IPC read with Section 149 IPC and after completion of the investigation, put up eight accused for trial. The learned trial Judge found the eight accused persons guilty of the offences punishable under Sections 302 read with 149 IPC and convicted all of them and sentenced them to suffer R.I, for life under the main charge along with a fine of Rs.5,000/- in default, to undergo further R.I. for a period of one year. The accused were also convicted of offence punishable under Section 148 IPC and imposed fine of Rs.500/- in default, to undergo simple Imprisonment for three months.
(3.) In appeal, the High Court found that A4 i.e. Lokesh was not guilty but the rest of the accused persons were responsible for the death of the deceased. But, however altered the conviction as noted above. The High Court for the purpose of altering the conviction noted as follows: "On behalf of the appellants, it was pointed out to us that on the basis of the oral evidence, it has not been established as to which accused dealt which blow and the number of blows that each of the accused had inflicted. Secondly, on a careful scrutiny of the medical evidence, we find that there is a serious lacunae is in so far as the doctor has not indicated as to which of them are not. Of the twenty injuries that were found on the person of deceased Rajanna, it is true that two of them are on the head, the majority of them are aimed at the lower part of the body and the limbs and consequently, having bestowed our very serious attention to the cumulative effect of this record. We find that it was incorrect on the part of the trial court to have invoked the provisions of Section 302 IPC. Having regard to the weapons used and the nature of injuries that have been inflicted, the accused would be liable to be convicted of the offence punishable under Section 326 read with 149 IPC.";