Karnataka High Court
Swamygowda And Others, Etc. vs State Of Karnataka on 24 July, 1996
Equivalent citations: 1997(1)ALT(CRI)932, 1997CRILJ423, ILR1997KAR321, 1997(1)KARLJ688
Author: M.P. Chinnappa
Bench: M.P. Chinnappa
JUDGMENT J. Eswara Prasad, J.
1. Criminal Appeal Number 185 of 1994 is by Accused Nos. 1 to 22 against their conviction under Ss. 148, 324, 326, 341 and 302, I.P.C. and the sentences imposed by the Principal Sessions Judge, Mysore in S.C. No. 87/1989. Criminal Appeal No. 494/94 is by the State against the acquittal of respondent Nos. 1 to 7 who were accused Nos. 23 to 29 before the Sessions Court for offences punishable under Ss, 143, 144, 147, 148, 341 r/w. Section 149, I.P.C., S. 326 r/w. S. 149, I.P.C. and 302 r/w. S. 149, I.P.C.
2. The case of the prosecution is as follows :-
Respondent No. 2 is the leader of the Congress Party and was opposed to Kengegowda-deceased No. 1 who belonged to Janatha Party and was the Pradhan of Karimuddenahalli. Deceased No. 2-Gondegowda is the younger brother of Kengegowda and he was the President of the Milk Producers Co-operative Society and both the brothers were leaders of Janatha Party. During the elections to the Mandal Panchayat held in the year 1988, deceased No. 1 was elected to the Panchayat, whereas respondent No. 24 was defeated. P.W. 21 filed a case against some of the respondents and others at the instance of deceased No. 1 and counter cases were filed, leading to rivalry between the deceased and the respondents.
3. On 2-5-1989, PW 29 - Sub-Inspector of Police, Hunsur Police Station, which is at a distance of 18 kms. from Karimuddenahalli, received a message through telephone at about 6.30 p.m. from Karimuddenahalli that some miscreants assaulted deceased Nos. 1 and 2. On receipt of the said message, PW 29 along with PW 25 and other police constables hired a taxi belonging to PW 20 and reached the village by 7 p.m. and found the deceased Nos. 1 and 2 lying at different spots and they were alive at that time. He also found PWs. 1 to 6 and 9 were injured. After recording the statement of PW 1, he sent the deceased and PW 3 to the hospital for treatment. Thereafter PW 32-Inspector of Police came to the spot in a police van and after recording the statements of PWs. 1, 2, 4, 5, 6 and 9 they were also sent in a van to the hospital for treatment along with PW 29. PW 29 went to the police station and prepared a memo Exhibit P. 6 to the Medical Officer and sent them to the hospital for treatment. Crime No. 93/89 was registered by PW 29 at 8.15 p.m. for offences under Ss. 143, 147, 148, 324 and 307 r/w S. 149, I.P.C. against respondents 1 to 22. FIR Exhibit P. 25 was sent through PW 26-Police Constable to the jurisdictional Magistrate's Court which reached at about 1 a.m. on 3-5-1989.
4. PWs. 1, 2, 4, 5, 6 and 9 were treated at the hospital from 1.30 a.m. on 3-5-1989. Deceased Nos. 1 and 2 along with PW 3 were advised to be taken to K.R. Hospital, at Mysore as per the advise of the Doctor and on arrival, the deceased were found to have died and PW 3 was treated for the injuries by the Medical Officer, PW 32 recorded the statements of PWs 10 and 11. Respondent Nos. 7, 12, 14, 16 to 27 were arrested at 11.30 p.m. in the village and PW 32 returned to the police station by 3 a.m.
5. On 3-5-1989, PW 32 again went to the village in the morning at 3.45 a.m. and recorded the statements of PW 16 and others. Exhibit P2-spot mahazar was prepared at the spot where deceased No. 1 was assaulted. PWs 1 and 16 are panch witnesses. Six clubs-M.Os. 22, 26, 25 to 27 and 32 and stones with blood stains M.Os. 10 and 17 were found. The spot mahazar in Exhibit P. 8 was prepared at the place where deceased No. 2 was assaulted. PWs 16 and 32 are the panch and the CPI. Blood stained stones M.Os. 9, 11 to 16, choppers M.Os. 2 to 5 and clubs M.Os. 18, 19, 23, 24, 28 and 29 were seized.
6. On receiving the message on 3-5-1989 in the evening that the deceased have died, PW 29 issued the second FIR converting S. 307 into S. 302, I.P.C. The respondents were produced before the Magistrate. PW 32 recorded the statements of PWs 3 and 4 at the K.R. Hospital at Mysore to which place they were already shifted.
7. Inquest was held with regard to the death of deceased No. 1 by P.W. 30 of Mandi Police Station, Mysore under Exhibit P. 9. PW 31-PSI, Devaraja Police Station, Mysore held inquest relating to deceased No. 2 under Exhibit P. 30. PW 32 recorded the statements of PWs 6, 9 and others in the village and seized the clothes of the deceased. On 9-5-1989, PW 25 apprehended respondent No. 29. On 20-5-1989, PW 29 apprehended respondent No. 5 and they were produced before PW 32, PW 33 took over investigation as PW 32 was transferred on 25-5-1989. Respondent Nos. 4, 6, 8, 9, 13, 15 and 28 were arrested on 25-5-1989. On 31-5-1989, respondent Nos. 1 and 2 surrendered before the police and they were arrested by PW 33. The learned Magistrate committed the accused to stand trial before the Sessions Court.
8. The prosecution examined as many as 33 witnesses and marked Exhibits P. 1 to P. 53 and Exhibits D. 1 to D. 30(a) were marked on behalf of the accused. M.Os. 1 to 63 were produced. The accused when examined under S. 313, Cr.P.C. denied having anything to do with the alleged offence. The learned Judge held appellants 1 to 22 guilty under Ss. 148, 324, 326, 341 and 302 r/w. S. 149, I.P.C. and imposed the sentences as stated earlier and acquitted the rest of the accused.
9. The case of the prosecution in short is that all the accused formed themselves into an unlawful assembly and attacked Kengegowda-deceased No. 1 near Shishuvihar and PWs 1 to 6 and done away with deceased No. 1 with an intention to cause his death.
10. The appeal by the State against the acquittal of accused Nos. 23 to 29 has no material to stand. The prosecution has not substantiated its case so far as those accused are concerned. The learned State Public Prosecutor could not show us as to how the Judgment of the learned Judge with regard to their acquittal is not proper. Apart from the existence of a strong suspicion regarding the participation of these accused persons in the commission of the murder of Kengegowda. There is nothing on record to show that accused Nos. 23 to 29 shared common object of committing the murder. The learned Judge has given convincing reasons for acquitting these accused and we see no reason to interfere with their acquittal. Criminal Appeal No. 494/1994 is accordingly dismissed.
11. So far as the appeal filed by accused Nos. 1 to 22 is concerned, the learned counsel for the appellants contended that the evidence of the so called eye-witnesses, including the injured witnesses is not trustworthy and cannot be relied upon as they are all partisan witnesses. He submitted that no independent witnesses were examined for the prosecution, though they were available. He submits that the medical evidence does not support the ocular evidence tendered by the eye-witnesses. The delay in lodging the FIR would throw any amount of doubt with regard to the place and time of occurrence, according to him. He contends that the prosecution did not establish common object on the part of the accused for causing the death of deceased No. 1 and S. 149, I.P.C. is not attracted. He further submits that the framing of charges was not proper as no independent charge under S. 302, I.P.C. was framed against anyone of the accused and hence the trial was vitiated. Non-examination of material witnesses by the prosecution would throw any amount of doubt as to the fairness of the investigation. He further submits that, as revealed by the suggestions made to the witnesses by the defence, the incident occurred while there were allegations hurled at the deceased for mal-distribution of cotton seeds and the accused can only be found guilty of the offence punishable under S. 326, I.P.C., even if common object is established.
12. P.Ws. 1 to 6 are the injured eye-witnesses. P.Ws. 10 to 12 are also eye-witnesses who were not injured. PW 21 speaks regarding the common object of the accused and their evidence requires close scrutiny as they are not independent witnesses and some of them are also partisan witnesses. We are not concerned with the evidence of PWs 9 to 11 as they are connected with the second incident relating to deceased No. 2. PW 1 deposed that Accused Nos. 1 to 3 assaulted Kengegowda-deceased No. 1 with choppers, accused Nos. 4 and 5 with clubs, accused Nos. 14, 19, 23 and 29 with stones. According to PW 2, himself, PWs. 3 to 6, CW 8 and deceased persons were sitting by the side of Srikantachar's Shop and at that time A. 1 to A. 3 followed by 22 people came from Eshwaragowda's house holding choppers, clubs and stones. He ascribed specific overt acts to certain accused persons. He has given the names of 11 accused persons to PW 8-Dr. Siddegowda. PW 3 supported the evidence PW 2 about the presence of the accuse persons in the group and has also mentioned the names of some of the accused persons as the actual assailants. He however omitted to mention the names of accused Nos. 23 to 29. PW 4 also spoke to the presence of all the accused persons. P.Ws. 5 and 6 also spoke regarding the presence of the accused, the group of 22 to 25 persons coming from the direction of the house of A. 12 armed with clubs, choppers and stones and PW 6 ascribed overt acts to some of the accused persons. PW 12 who comes to the flour mill noticed a group of 22 to 25 persons surrounding deceased No. 1. They were holding choppers, axes and clubs. She specifically identified A. 1 to A. 3 as the persons who assaulted deceased No. 1 with choppers, A. 4 and A. 5 as having assaulted with with clubs, A. 6 and A. 7 attacking her father with clubs and A. 10 and A. 11 attacking her father with choppers. Though there are some improvements in the evidence of this witness, there is nothing to show that their evidence cannot be believed. All these witnesses attributed specific overt acts to accused Nos. 1 to 22.
13. The presence of A. 1 to A. 5 is spoken to by all the injured eye-witnesses. The presence of A. 6 to A. 8, A. 10 to A. 11 is spoken to by PW. 5, presence of A. 6 is also spoken to by PW 2, presence of A. 15, 16 and 18 is spoken to by PW 4, presence of A. 1, 20 and 22 is spoken to by PW 3, presence of A. 12 who abetted the offence is spoken to by PW 4. P.Ws. 1 and 6 have stated the presence of A. 14, 19, 23 and 29, though P.Ws. 2 and 4 have mentioned the presence of A. 29 also. Thus the evidence of all these witnesses clearly discloses the presence of A. 1 to A. 22 in the said group.
14. The statements of P.Ws. 1 to 6 whose evidence we have carefully scrutinised, keeping in view the fact that Karimuddanahalli is a faction ridden village and no independent witness has come forward to support either the prosecution or the defence and the two groups in the village are headed by deceased Kengegowda on the one hand and the other group headed by A. 12. The statements of these witnesses clearly go to show that the accused persons 1 to 22 came towards Shishuvihar side armed with weapons including deadly weapons such as choppers and clubs. Their defence is that no such incident occurred near Shishuvihar and deceased No. 1 and the injured eye-witnesses sustained injuries in different parts of the village, as they were chased by the persons who came to purchase cotton seeds, as there was mal-distribution and black-marketing of seeds by these injured witnesses at the behest of Kengegowda. We are unable to accept the defence version, which by itself would not amount to accepting the prosecution case, dehors there being proved within the version of the eye-witnesses.
15. PW 21 spoke about the assembling of accused Nos. 1 to 22 in the house of A. 12 and their leaving the house of A. 12 in a group armed with deadly weapons. The fact that such accused came from the direction of the house of A. 12 is spoken to by the injured eye-witnesses. It is therefore clear that the accused persons who assembled in the house of A. 12 came out armed with deadly weapons and marched towards Shishuvihar. There is therefore acceptable evidence on record to hold that the accused persons were members of an unlawful assembly who were out to commit a criminal offence. They were armed with deadly weapons like choppers, clubs and stones and committed assaulting deceased No. 1 and his associates on 2-5-1989 at 5.30 p.m. when they were sitting near Shishuvihar by the side of Srikantachari's shop. We are also satisfied that there was rioting by the unlawful assembly consisting of A. 1 to A. 22.
16. Certain minor contradictions in the evidence of the injured and other eye-witnesses were pointed out for discrediting their evidence. It was also argued that the defence has elicited that the Doctor has not mentioned the details of injuries sustained by the injured persons, and therefore some suggestions were made to him regarding the cause of injuries and the nature of weapons used. According to PW 24, all the injured persons were conscious and were able to give details of the assault. A careful perusal of the cross-examination of the injured eye-witnesses would show that discrepancies are very minor in nature and cannot shake the verasity of their evidence. It is to be noted that minor contradictions elicited in the cross-examination of these witnesses who are rustic villagers cannot be blown out of proportion. The next submission of the learned counsel for the appellants is that the recovery of weapons was not made under the instructions of the superior officers. This contention is based under S. 36 of the Criminal Procedure Code which reads as follows :-
"36. Powers of superior officers of police :-
Police Officers superior in rank to an Officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station".
It is clear from S. 36 that the police officers who are superior to an officer-in-charge of a police station are empowered to exercise the same powers throughout the local area to which they are appointed as may be exercised by such officer within the limits of his station. It is in evidence that the police officers carried out part of the investigation only on the direction of the Superintendent of Police as the Superintendent of Police is superior in rank to the officer-in-charge of the police station, he has the power to issue instructions and therefore the inquest held by the investigating officer cannot be held to be illegal and does not suffer from any legal infirmity. The weapons like choppers, clubs, sticks and stones were recovered and nothing can be pointed out against their recovery. It was next submitted that in the face of the medical evidence to the effect that the head injuries found on the deceased Kengegowda cannot be attributed to the choppers, the ocular evidence cannot be believed. It is the contention of the learned counsel that when there is discrepancy between the medical evidence and the ocular evidence, medical evidence has to be believed. In support of the said contention, the learned counsel relied on Mafabhai Nagarbhai Raval v. State of Gujarat, , wherein it was held that in appreciating evidence, most competent witness is the Doctor and that the Court cannot substitute its opinion in place of Doctor's. In that case, the medical opinion was brushed aside by the Sessions Judge for disbelieving the dying declaration, merely based on surmises. It was in those circumstances, the Supreme Court made the said observation. In the case on hand, the evidence of the injured witnesses as well as the eye-witnesses is clear in stating that the that benefit of doubt should be given to the accused in view of the irreconcilable conflict between the testimony of the witnesses and the medical evidence, based on Sri Niwas v. Ram Bharosey, . It was found therein that the nature of injuries indicated that they could have been caused by a very formidable cutting instrument and not by a knife and therefore the oral evidence of the witnesses was irreconcilably in conflict with the medical evidence and therefore they concluded that the prosecution has not placed the true picture of occurrence before the Court without suppressing any part of it. In the present case, the evidence of the witnesses is that choppers were used for hitting on the head of the deceased. Two injuries which are grievous in nature were found on the head of the deceased by the Doctor. He opined that they could have been caused by the blunt edge of the choppers which shows that there was no conflict between the medical evidence and the oral evidence of the witnesses.
17. Reference was made to Niranjan Prasad v. State of Madhya Pradesh, 1996 (2) Supreme 671 : (1996 Cri LJ 1987) (SC), to support the contention that the oral evidence should be rejected. In the said case, the trial Court found it unsafe to rely upon the ocular version of the incident in the state of medical evidence that there was no injury which could be caused by a sharp cutting weapon. This decision also does not help the case of the appellants as the medical evidence could not rule out the use of choppers in inflicting the injuries on the head of the deceased. The decision in Mayappa Dhondanna Padeade v. State of Maharashtra, relied on by the learned counsel will also not help in furthering his case. The possibility of assault by spear was ruled out in view of the deceased sustaining incised wounds caused with cutting instruments and hence benefit of doubt was given. In the present case, as pointed out earlier, the Doctor opined that the injuries on the head of the deceased can be caused with the blunt edge of the choppers. Similarly, the decision in Mohar Singh v. State of Punjab, does not further his case as there were glaring inconsistencies between ocular and medical evidence. There the attack on the deceased was made with spade, whereas the medical evidence revealed that the injuries could be caused only by a pickaxe. Davinder v. Ram Dutta, 1991 SCC (Cri) 152, relied on by the learned counsel, based on the discrepancy between the prosecution story, and the medical evidence, regarding the nature of the injuries and the alleged weapon of attack, could lead to a doubt on the testimony of the eye-witnesses. The Supreme Court refused to interfere with the acquittal of the accused by the High Court which was based on evidence. We do not find any such discrepancy between medical and oral evidence in the present case.
18. The law laid down in Hallu v. State of Madhya Pradesh, referred to by the learned counsel in support of his contention that implicit reliance on the evidence of eye-witness cannot be made is well settled. It is always advisable to test the evidence of witnesses on the anvil of objective circumstances in the case. The learned Sessions Judge did not place any implicit reliance on the evidence of the eye-witnesses and has carefully scrutinised the same. We have also gone through the evidence in detail and we do not find any major discrepancies to disbelieve their
19. Great emphasis was laid on Exhibit P. 4 and the evidence of the Doctor, in contending that injuries Nos. 10 and 11 on the head of the deceased could not have been caused by choppers. It was contended that it cannot be taken that the blunt side of the choppers were used for inflicting the said injuries, unless the witnesses have said so. For this purpose, much emphasis was laid down in Hallu v. State of Madhya Pradesh (1974 Cri LJ 1385) (SC) (supra), in which it was observed "We should have thought that normally when the witness says that an axe or a spear is used there is no warrant for supposing that what the witness means is that the blunt side of the weapon was used. If that be the implication it is the duty of the prosecution to obtain a clarification from the witness as to whether the sharp edged or a piercing instrument was used as a blunt weapon." A spear and a chopper are totally different type of weapons. A spear is essentially a piercing weapon, whereas a chopper is used for cutting as well as hitting heavy blows. We have seen the choppers and we found that the blunt side of the choppers are very heavy and can cause the injuries found on the head of the deceased, which is supported by the medical evidence. There may be a normal presumption that when a spear is used, normally the sharp edge will be aimed at the victim. So far as choppers are concerned, there can be no such presumption, as either the sharp edge or the blunt edge may be used for achieving the objective. It is therefore not necessary for the eye-witnesses to say as to which side of the weapon of the choppers was aimed at the deceased and there was no need for the prosecution to elicit such information. It is also to be noted that the assailants were as many as 22 in number and the victims were merely seven in number and that it may not be possible for any one to notice as to which side of the weapon was used during the assault. The learned counsel argued that the credibility of the eye-witnesses is doubtful in view of the dramatic account which they gave of the incident with minute details of the attack on each of the victims and in support of the contention he relies on Sevi v. State of Tamil Nadu, . We do not find any such dramatic account of the incident in the evidence of the witnesses as found by the Supreme Court in the aforementioned case. The conclusion of the Supreme Court was based on the evidence in that case coupled with the fact that it was found that the investigation itself was tainted. In the present case, in fact, we found certain minor discrepancies in the evidence of the witnesses which did not go to discredit their evidence.
20. Non-examination of C.Ws. 8 and 13 was made much of, on the ground that they are material witnesses. It is well settled law that it is not necessary for the prosecution to examine all the witnesses or independent witnesses and that the case of the prosecution cannot be thrown out on that ground alone. It was observed in Appabhai v. State of Gujarat, :-
"It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilance. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner".
21. The evidence of eye-witnesses cannot be rejected merely because of medical evidence that injuries might be caused by blunt edge and not sharp edge weapon. In Ranmal Samat v. State of Gujarat, , it was held by the Supreme Court that the evidence of the eye-witnesses who are no other than the parents of the deceased could be relied upon though they have not deposed that the sharp edge of the axe was used by accused No. 1 in giving a blow on the deceased and the Doctor merely stated that the injuries found on the deceased could be caused by blunt edge of the axe.
22. The next submission of the learned counsel is that the injured eye-witnesses have either not given out all the names of the accused or given only the names of some of the accused before the Doctors and hence their evidence in Court cannot be believed. This submission is based on Mohanlal Gangaram Gehani v. State of Maharashtra, , wherein it was held that the statement made by victim to Doctor being first in point of time must be preferred to his subsequent statement. This observation of the Supreme Court was based on the evidence in that particular case. In Pattipati Venkaiah v. State of Andhra Pradesh, , it was observed that a Doctor is not at all concerned as to who committed the offence or whether the person brought to him is a criminal or an ordinary person, his primary effort is to save the life of the person brought to him and inform the police in medico legal cases. The contention that the eye-witnesses never care to disclose the names of the assailants to the Doctor when the body of the deceased was taken to the hospital and therefore their evidence in Court cannot be believed, was rejected by the Supreme Court.
23. The contention based on the opinion of the authors in Dr. Narayana Reddy 1994 Edition page 145 that the cut lacerations can be caused only by use of blunt portion of a chopper is of no avail in the face of the oral and medical evidence on record. Dr. Modi in Modi's Medical Jurisprudence and Toxicology 21st Edition opined at page 257 that if the instrument has one blunt edge the injury would show certain amount bruising and raggedness at one end of the wound and laceration can be caused by blunt objects, clubs etc.
24. It was next argued that there was no common object and hence S. 149, I.P.C. is not attracted. This contention cannot be accepted for the reason that A. 1 to A. 22 assembled in the house of A. 12 armed with deadly weapons such as choppers, clubs, sticks and stones and came out of the house and proceeded towards the scene of offence and attacked the deceased as well as the injured eye-witnesses which proved fatal so far as the deceased is concerned a caused grievous injuries to several prosecution witnesses. Specific overt acts are attributed to each one of the accused. In Dalbir Singh v. State of Punjab, AIR 1987 SC 1328 : (1987 Cri LJ 1065), it was held that it is not necessary to decide as to which of the accused persons inflicted what particular injury. In appreciation of evidence, no hard and fast rules can be laid down as it is after all a question of fact and each case has to be decided on the facts as they stand in that particular case. Haramant Laxmappa Kukkadi v. State of Karnataka, , relied on by the learned counsel for the appellant is not applicable to the facts of the present case as the Supreme Court found that there was no common object to commit the murder as the nature of wounds revealed that the assailants did not use much force and therefore the conviction under S. 302 read with S. 149, I.P.C. is altered to one under S. 326 read with S. 149, I.P.C.
25. In Bhajan Singh v. State of Uttar Pradesh, , it was held that S. 149, I.P.C. constitutes, per se, a substantive offence although the punishment is under the section to which it is tagged being committed by the principal offender in the unlawful assembly known or unknown. Dealing with the distinction between "common intention" under S. 34 and "common object" under S. 149, I.P.C., the Supreme Court in Devilal v. The State of Rajasthan, observed that S. 149 speaks of an offence being committed by any member of an unlawful assembly in prosecution of the common object of that assembly. In Amarjit Singh v. State of Punjab, 1992 AIR SCW 2909 : (1992 Cri LJ 3858), it was held that in inferring the common object of unlawful assembly, various factors depending upon the facts and circumstances of each case have to be taken into consideration. The fact that the appellants therein were found to be armed with fire arms and other deadly weapons went in a body and participated in the occurrence was taken into consideration in holding that all of them shared the common object and S. 149 is squarely attracted.
26. Applying the principles enunciated by the Supreme Court to the facts of the present case as found from the evidence on record, it is held that the petitioners formed themselves into an unlawful assembly with the common object of doing away with the deceased and the prosecution has made out the offence under S. 149, I.P.C.
27. The next contention of the learned counsel for the petitioner is that the trial is vitiated for not framing independent charge under Section 302, I.P.C. In support of his contention he relies on Subran alias Subramanian v. State of Kerala, 1993 SCC (Cri) 583 : (1993 Cri LJ 1387) and contends that after framing charge for the offence under Section 302 read with Section 149, accused can be convicted for substantive offence under Section 302 simpliciter. The Constitution Bench of the Supreme Court in Willie (William) Slaney v. State of Madhya Pradesh, held that having regard to the nature of the charge framed, the omission to frame a separate charge under Section 302, I.P.C. was only a curable irregularity which in the absence of prejudice could not affect the legality of conviction under Section 302. This decision was not brought to the notice of their Lordships in Subran alias Subramanian v. State of Kerala (supra). Apart from the fact that this question does not arise in view of our finding that the accused are guilty under Section 149, I.P.C., no prejudice is caused to the accused for not framing an independent charge under Section 302, I.P.C.
28. The last submission of the learned counsel for the petitioner relates to the plea the object of the accused was not to cause death and at the most they can be found guilty of offence under Section 326, I.P.C. Having regard to the fact that as many as 22 persons armed with deadly weapons such as choppers, clubs, sticks and stones attacked the deceased and some of them inflicted the injuries on the deceased which were on the vital part namely the head which was the cause of the death of the deceased. Therefore it cannot be held that the common object of the unlawful assembly was not to cause death but was only to inflict grievous injuries. We are unable to accept this contention.
29. For all the aforesaid reasons, we dismiss Criminal Appeal No. 185 of 1995 and confirm the conviction and sentence imposed against the appellants. Criminal Appeal No. 494 of 1994 filed by the State is dismissed.
30. Appeal dismissed.