B. Ananda S/O Babu Poojari, Vs. State of Karnataka by Its State Public Prosecutor - Court Judgment

Excerpt:
criminal - unlawful assembly - indian penal code, 1860 - before incident during night hours there used to be stone pelting on house of accused - accused suspected deceased of this act - accused carried clubs and went to house of deceased - deceased denied his role - accused got enraged and assaulted deceased - deceased admitted to hospital - accused charged for offence of unlawful assembly - accused to be convicted only for offence under section 326 and not under section 302 - hence, present appeal - held, it was in evidence that all accused came, armed with weapons and each one actively participated in the assault of the deceased which proved the sharing of common object - evidence adduced was sufficient to warrant conviction of all the accused under section 148 read with section 149 - accused indulged in indiscriminate assault on the non-vital parts, therefore no intention or knowledge to cause death could be inferred -cause of death was not the one which was comprehendible by the accused, therefore the accused had to be convicted only for an offence under section 326, ipc - all the accused deserved to be convicted for an offence under section 326 read with section 149, ipc - conviction was recorded on the basis of individual overt acts of each of the accused which was bad in law - in an appeal filed by the accused, this court could not alter the conviction for higher offence nor could impose any higher sentence - conviction of accused no. 1 for offence under section 326 and conviction of accused nos. 2 and 5 for offence under section 324 confirmed - accused no. 3 held liable only for offence under section 323 - sentence of trial court confirmed - - the conviction is recorded on the basis of individual overt acts of each of the accused which is bad in law.k. sreedhar rao, j.1. a.1 is convicted for an offence under section 326 ipc. a.2, a.3 and a.5 are convicted an offence under section 324 ipc. a.4 was dead at the time of trial. the accused are acquitted of the offence under section 143, 148, 302 r/w. section 149 ipc.2. the prosecution case discloses that for some time before the incident during night hours there used to be stone pelting on the house of a.2. in that connection the accused suspected the deceased. hence on 4-11-1993 at 8 p.m. all the accused carrying clubs and other weapons went to the house of deceased and questioned him. the deceased denied his role. the accused got enraged saying that by polite enquiries, he is not going to budge thus the accused persons assaulted the deceased with clubs on the neck, legs and on the face. p.w.7 is the wife of deceased a witness to the incident. p.w.1 and 2 sons of the deceased have gone to rescue. a.3 assault p.w.1. on the next day morning the deceased is admitted to hospital. it is found that the deceased had sustained fracture of both bones of left leg. p.w.1 had sustained simple abrasion injuries. the statement of the deceased is recorded by the police and registered as fir marked at ex.p.1. in the course of the treatment on account of fat embolism, the deceased succumbs. the fir serves as dying declaration for the prosecution.3. p.w.1 to p.w.7 testified to the incriminating circumstances narrated above. the evidence of the said witnesses proves beyond reasonable doubt the occurrence of incident. besides the p.m. report and wound certificate ex.p.21 corroborates the prosecution version.4. the accused were also charged for offence of unlawful assembly under section 148 r/w. section 149 ipc. the contents of the fir disclose that a.1, a.2 assault the deceased with clubs. a.4 with iron chain and a.5 with club. a.3 assaults p.w.1. it is in evidence that all accused come, armed with weapons and each one actively participated in the assault of the deceased which proves the sharing of common object and the evidence adduced is sufficient to warrant conviction of all the accused under section 148 r/w. section 149 ipc. the accused indulged in indiscriminate assault on the non-vital parts, therefore no intention or knowledge to cause death could be inferred. the cause of death is not the one which could be comprehendible by the accused, therefore the accused have to be convicted only for an offence under section 326 ipc and cannot be convicted for an offence under section 302 ipc, but all the accused deserve to be convicted for an offence under section 326 r/w. section 149 ipc but the trial court strangely comes to the conclusion that the offence of unlawful assembly is not proved. the conviction is recorded on the basis of individual overt acts of each of the accused which is bad in law. the state has not filed any appeal challenging the conviction of a.2, a.4 and a.5 for lesser offence in respect of offence under section 326 ipc. therefore in an appeal filed by the accused this court cannot alter the conviction for higher offence nor can impose any higher sentence. in that view, the conviction of a.1 for an offence under section 326 ipc and the conviction of a.2 and a.5 for an offence under section 324 ipc is confirmed.5. the fir allegation discloses that a.3 assaults only the p.w.1 and causes simple injury. hence a.3 can be held liable only for an offence under section 323 ipc and not 324 ipc. a.3 is sentenced to r.i. for a period of one month and to pay a fine of rs. 1,000/-in default to undergo s.i. for a period of one month.6. the conviction of a.1 for an offence under section 326 ipc and a.2 and a.5 for an offence under section 324 ipc is confirmed. the sentence imposed by the trial court is also confirmed.