IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 26TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL APPEAL NO.1328 OF 2011 BETWEEN:
THE STATE OF KARNATAKA BY CHIKKAJALA POLICE. ... APPELLANT (BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP) AND:
SRI NAGARAJ S/O GANGAIAH, AGED ABOUT 20 YEARS, AGRAHARA EXTENSION, YELAHANKA HOBLI, BENGALURU SOUTH TALUK. ... RESPONDENT (BY SRI SHIVASHANKAR N.R., ADVOCATE FOR SRI M.R.NANJUNDA GOWDA, ADVOCATE SRI K.DIWAKAR, ADVOCATE FOR M/S.DIWAKAR ASSOCIATES FOR APPLICANT ON IA.NO.1 OF 2016- ABSENT) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) CR.P.C., PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 30.09.2011 PASSED IN S.C.NO.265 OF 2001 BY THE DISTRICT AND SESSIONS JUDGE, FAST TRACK COURT-III, BENGALURU RURAL DISTRICT, BENGALURU – ACQUITTING THE RESPONDENT / ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 302, 201 READ WITH SECTION 149 OF IPC. THE STATE PUBLIC PROSECUTOR/ STATE PRAYS THAT ABOVE SAID ORDER MAY BE SET ASIDE.
***** THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, JOHN MICHAEL CUNHA J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is preferred by the State challenging the acquittal of the respondent namely, accused No.1 of the charges under Sections – 302, 201 read with Section–149 of IPC.
2. The case of the prosecution is that there was a financial transaction between accused No.1 and PW-1 Sri.Chandra Shekar Reddy. In that background, at the instigation of Accused No.1, accused nos.2 to 5 abducted the deceased Muralidhar, aged about 5 ½ years and on 27.03.1988, at about 6.00 p.m., accused Nos.3 and 4 caught hold of the hands of the deceased and accused No.2 caught hold of the legs of the deceased and accused No.1 pressed the neck of the deceased and committed his murder. Thereafter, they stuffed the dead body in a gunny bag and with an intention to cause disappearance of the evidence of the murder, dumped the dead body in the Well belonging to Muniswany Reddy and thereafter demanded ransom from PW-1, Sri.Chandra Shekar Reddy.
3. It is not in dispute that the charge-sheet was laid against five accused. Accused No.2 having died before trial, proceedings against accused No.2 got abated. Accused Nos.3 to 5 faced trial before the First Additional Sessions Judge, Bengaluru Rural District, Bengaluru. During the pendency of the trial, the case against accused No.4 was split-up. By judgment and order in S.C.No.3 of 1990, dated 12.02.2002, accused Nos.3 and 5 were acquitted of the charges under Sections – 302, 201 read with Section–149 of IPC.
4. The case against the present respondent namely, accused No.1 having been split-up and numbered as S.C.No.265 of 2001, it was transferred to LPR List in the year 2003, after examining the four witnesses. However after his arrest, he faced trial in S.C.No.265 of 2001 and by the impugned judgment dated 30.09.2011, the III Addl. Fast Track Court, Bengaluru Rural District, Bengaluru acquitted accused No.1 namely, the respondent herein of the charges under Section-302, 201 read with Section–149 of IPC.
5. The appellant-State has come up in appeal against the impugned judgment questioning the correctness and legality of the findings recorded by the trial court in acquitting the appellant. However, on questioning the learned Additional SPP, he would submit that the State has not preferred any appeal so far against the order of acquittal passed against accused Nos.3 and 5 in S.C.No.3/1990 is concerned. As such, the order of acquittal of the said accused nos.3 to 5 has attained finality.
6. The charge framed against the present respondent/accused No.1 in S.C.No.265 of 2001 reads as follows:
“That on 27.3.1988 at 6 p.m. at Agrahara Extension, Yelahanka Hobli, coming within the jurisdiction of Chikkajala P.S., and this court, you A1 along with other accused in S.C.No.3 of 1990 in furtherance of your common object, committed murder intentionally causing the death of Muralidhara son of CW2, and thereby you committed an offence punishable under Section 302 read with Section 149 IPC, and within my cognizance.
That on the aforesaid date, time and place, you A1 along with other accused in SC.No.3 of 1990 in furtherance of your common object, knowing that the offence under Section 302 IPC punishable with death or imprisonment for life, has been committed, caused certain evidence connected with the said offence under Section 302 IPC, to disappear by putting the dead body of Muralidhara in a gunny bag and thrown in the well of Muniswamy situated near Thirumenahalli village thereby you committed an offence punishable under Section 201 read with Section 149 IPC, and within my cognizance.
And I hereby direct that you be tried by this Court on the above said charges.
Dated this the 7th day of April 2010.”
7. The above charges do not disclose the overt acts committed by the respondent/accused No.1. Instead, the respondent/accused No.1 is seen to have been charged with the aid of Section 149 Indian Penal Code. But as already stated above, the co-accused tried in S.C.No.3/1990 on the same charges have already been acquitted and the said order has remained unchallenged by the State. Therefore, the question that arises for consideration is, where there is a common charge against the accused under section 302 r/w 149 Indian Penal Code, if the co-accused are acquitted of this charge, whether the remaining accused could be convicted under section 302 r/w section 149 Indian Penal Code?
8. The law is well settled that section 149 Indian Penal Code creates a specific offence and without applying its provisions, a member of an unlawful assembly could not be made liable for a offence committed by another member of that assembly. From the above, it follows that when the accused are tried with the aid of section 149 Indian Penal Code, if it is found after trial that section 149 Indian Penal Code is not applicable to the facts of the case or that some of the co-accused are acquitted of the principal charge r/w section 149 Indian Penal Code, the principle of constructive liability envisaged in section 149 Indian Penal Code, in our opinion, cannot be applied to the other accused. Consequently, the other accused cannot be convicted without there being a separate charge for the principal offence alleged against him.
9. In the instant case, undisputably, the charges framed against the respondent/accused No.1 do not contain the specific overt acts committed by him constituting the ingredients of the offence under section 302 Indian Penal Code. On the other hand, he is tried on the charge under section 302 r/w 149 Indian Penal Code and is acquitted of the said charge. Since the other co-accused tried on the same charge in S.C.No.3/1990 are also acquitted, in our opinion, in the absence of a separate or alternate charge under section 302 Indian Penal Code, it is not possible to convict the accused under section 302 r/w section 149 Indian Penal Code. That apart, the co- accused who were tried in S.C.No.3/2009 having already been acquitted of the charge under section 302 r/w section 149 Indian Penal Code, in our view, no conflicting decision could be passed in this appeal in respect of the very same offence under section 302 r/w section 149 Indian Penal Code for which the co-accused namely accused Nos.3 and 5 are already acquitted by the trial court. Hence, we are of the view that the appeal is liable to be dismissed. Accordingly, the appeal preferred by the State is hereby dismissed as not maintainable. Pending I.A. stands rejected.
SD/- SD/-
JUDGE JUDGE JJ