Karnataka High Court
Anji Gowda S/O Nanjappa vs State Of Karnataka By Chintamani Rural ... on 12 November, 2013
Author: N.Ananda
Bench: N. Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF NOVEMBER 2013
BEFORE
THE HON'BLE MR.JUSTICE N. ANANDA
CRIMINAL APPEAL No.2736/2006
BETWEEN:
1. ANJI GOWDA
S/O NANJAPPA
AGED ABOUT 35 YEARS
2. PAPANNA
S/O NANJUNDEGOWDA
AGED ABOUT 35 YEARS
3. CHIKKANARAYANASWAMY GOWDA
S/O NARAYANAPPA
AGED ABOUT 32 YEARS
4. CHANNAKRISHNAPPA
S/O CHANNAPPA
AGED ABOUT 40 YEARS
ALL ARE R/AT GADADASANAHALLI
CHINTAMANI TALUK
KOLAR DISTRICT. ... APPELLANTS
(BY SRI M R NANJUNDA GOWDA, ADV.)
AND:
STATE OF KARNATAKA
BY CHINTAMANI RURAL POLICE STATION. ... RESPONDENT
(BY SRI B T VENKATESH, SPP-II)
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THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C.,
AGAINST THE JUDGMENT DATED 29.11.2006 PASSED BY THE
ADDITIONAL SESSIONS JUDGE, PRESIDING OFFICER, FAST
TRACK COURT-III AT KOLAR IN S.C.NO.55/2006, CONVICTING
APPELLANTS/ACCUSED & ETC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants (hereinafter referred to as 'accused 1, 3, 5 & 6') were tried along with accused 2 & 4 for offences punishable under sections 143, 144, 147, 148, 504, 324, 326, 307, 427 & 436 r/w 149 IPC. The learned trial Judge acquitted accused Nos.2 & 4 of offences punishable under sections 324 & 326 IPC. Accused Nos.1 to 6 were acquitted of offences punishable under sections 143, 144, 147, 148, 504, 307, 427 & 436 IPC. Accused no.3 was acquitted of an offence punishable under section 324 IPC. Accused 5 & 6 were acquitted of an offence punishable under section 326 IPC. Accused 1 and 3 are convicted for offences punishable under sections 326 and 324 IPC. Accused 5 and 6 are convicted for an offence punishable under section 324 IPC. 3
2. I have heard Sri M.R.Nanjunda Gowda, learned counsel for accused and Sri B.T.Venkatesh, learned State Public Prosecutor for State.
3. The State has not preferred an appeal against acquittal of accused 1, 3, 5 & 6 of offences punishable under sections 143, 144, 147, 148, 504, 307, 427 & 436 IPC, so also acquittal of accused 2 & 4 of aforestated offences.
4. In this appeal, the following points would arise for determination:-
(1) Whether prosecution has proved that accused No.1 assaulted PW1-
Munivenkatappa with a club and committed an offence punishable under section 324 IPC?
(2) Whether prosecution has proved in the course of same transaction, accused No.1 assaulted PW3-Venkateshappa with a club and voluntarily caused grievous hurt and thereby committed an offence punishable under section 326 IPC?
4(3) Whether prosecution has proved that in the course of same transaction, accused No.3 assaulted PW3-Venkateshappa and voluntarily caused grievous hurt and thereby committed an offence punishable under section 326 IPC?
(4) Whether prosecution has proved that in the course of same transaction, accused 1, 5 & 6 voluntarily caused hurt to PW5-Jayaram and thereby committed an offence punishable under section 324 IPC?
(5) Whether learned trial Judge has properly appreciated evidence on record?
(6) To what order?"
5. The prosecution, in order to bring home guilt of accused has relied on the following:-
(i) Motive;
(ii) The evidence of injured witnesses namely PW2-
Muniswamy, PW3-Venkateshappa, PW4-Manjunatha, PW5- 5 Jayaram and PW6-Gangapathi and also evidence of eye- witnesses namely PW8-Varalakshmamma & PW9- Parvathamma;
(iii) The medical evidence of PW14-Dr.Aruna Selvi.
(i) Motive:
6. It is seen from cross-examination of injured witnesses that there was enmity between accused on one side and some of the prosecution witnesses, in particular, injured eye-
witnesses on other side. The accused and injured eye- witnesses are residents of Gadadasanahalli Village, Chintamani Taluk. On the previous date of incident i.e., on 12.04.2005, it appears there was a quarrel between children of two groups. Therefore, both parties had gone to police station and lodged complaints and police had come to Gadadasanahalli Village and summoned some of prosecution witnesses to police station. It is the case of prosecution after the police left the village, injured witnesses had gathered near the house of PW3-Venkateshappa to go to police 6 station, accused 1, 3, 5 & 6 along with other accused armed with deadly weapons came and assaulted them and caused simple and grievous to them. The injured witnesses were treated by PW14-Dr.Aruna Selvi in General Hospital at Chintamani.
7. PW1-Munivenkatappa was injured in the incident of assault. PW1 has deposed; accused No.1-Anjigowda assaulted on his left hand and caused injury; PW1 fell down; accused No.2 assaulted on waist of PW1 with a club; accused No.6-Chinnakrishnappa assaulted PW2 with a chopper on his left forehead and caused injuries to him; accused No.1 also assaulted PW2-Muniswamy on his waist with a club; incident of assault was witnessed by Parvathamma (PW9), Najappa (PW11), Krishnappa (PW10), another person by name Krishnappa, Varalakshmamma (PW8) and Anand (PW13).
During cross-examination, PW1 has deposed; he was not aware if accused No.2 had suffered injuries in same 7 incident and he had been admitted to hospital. PW1 has deposed; he was taken to Hospital at about 2 p.m. along with other injured persons namely PW2-Muniswamy, PW3- Venkateshappa, PW4-Manjunatha and PW5-Jayaram. PW1 has deposed; after incident, police of Gadadasanahalli Village visited place of incident and shifted injured to hospital. PW1 has admitted when police visited village and admitted injured to hospital, PW1 had informed about the incident of assault. PW1 has admitted on the basis of first information lodged by accused No.2-Chowdegowda, a criminal case was filed against PW1 and some of the prosecution witnesses and they were tried in the said case on the file of learned JMFC at Chintamani and they were acquitted in said case.
8. PW2-Muniswamy was also an injured witness. PW2 has deposed; accused No.6 assaulted on forehead of PW2 with a chopper; PW2 suffered bleeding injury; accused No.1 assaulted on left hand of PW2 with a club; PW2 fell down; 8 PW2 was shifted to General Hospital at Chintamani and later he was shifted to a hospital at Bangalore.
During cross-examination, PW2 has deposed; at the first instance, PW2 was assaulted by accused No.1; thereafter PW2 fell unconscious; PW2 was not able to notice who had caused injuries to other prosecution witnesses. PW2 has admitted that he does not remember whether he had stated before police that accused No.1 had assaulted him with a club.
9. PW3-Venkateshappa was an injured eye-witness. PW3 has deposed; on the date of incident, accused 1, 3, 5 & 6 along with other accused came near the house of PW3; accused were armed with deadly weapons; accused No.6 was armed with a chopper & other accused were armed with clubs; there was hue and cry near place of incident; at that time, PW3 came to place of incident and found that PW1 & PW2 had suffered injuries and fallen on ground; when PW3 9 intervened, accused No.1 assaulted PW3 with a club and PW3 suffered fractures of both bones of left forearm; accused No.3 assaulted PW3 with a club on his right hand; PW3 suffered fractures of both bones of right hand; thereafter, accused No.2 assaulted PW3 on his waist with a club. PW3 has deposed about presence of eye-witnesses namely Parvathamma (PW9), Nachappa (PW11), Krishnappa (PW10), another Krishnappa, Varalakshmamma (PW8) and Anand (PW13). PW3 has deposed; police came to place of incident and shifted him to General Hospital at Chintamani; after preliminary treatment, PW3 was admitted to SNR Hospital and Jalappa Hospital at Kolar; PW3 was treated for a period of three months due to fractures of bones of both hands; during said period, PW3 was not able to take food and he was not able to do physical work.
During cross-examination, PW3 has deposed that before police, he has deposed about assault on his left hand. PW3 has deposed; when he came out of house, PW3 had seen 10 persons near place of incident; he cannot say the 10 names of those persons; they were onlookers; PW3 has deposed; when he came out of house, accused were armed with clubs. PW3 has denied suggestion that PW3 & other prosecution witnesses assaulted accused No.2 and caused injuries to accused no.2. PW3 has admitted that a criminal case was filed by accused No.2 against them and they were acquitted in the said case.
10. PW4-Manjunatha was an injured witness. PW4 is the son of PW3-Venkateshappa. PW4 has deposed; accused No.3-Papanna and accused No.1-Anjigowda assaulted PW3 with clubs; when PW4 question accused as to why they were assaulting his father (PW3); accused No.2 assaulted PW4 on his right shoulder; accused No.5 assaulted PW4 on his head with a club and caused injuries to PW4; police came to place of incident and shifted injured to General Hospital at Chintamani; after preliminary treatment, PW2 was shifted to NIMHANS at Bangalore; PW4 and his father (PW3) were 11 shifted to a hospital at Kolar; the father of PW4 (PW3) was also treated in Jalappa Hospital at Kolar.
During cross-examination, PW4 has deposed; at about 1.30 p.m. or 2 p.m., police came near place of incident and stayed there for half an hour; at that time, PW4 did not inform police as to who are the assailants. During cross- examination, PW4 has deposed; before police, he had not stated that accused No.1 assaulted PW2; similarly, before police, PW4 had not stated that accused Nos.1 & 3 assaulted PW3; PW4 has stated before police that accused No.2 had assaulted on his right shoulder.
11. PW5-Jayaram was also one of the injured eye-witness. PW5 is the son of PW3. PW5 has deposed; on hearing incident of assault on his father (PW3) and his brother (PW4), PW5 reached place of incident and found PW2 & PW3 had been assaulted, so also brother of PW5 (PW4) had been assaulted; when PW5 intervened; accused No.1 assaulted 12 PW5 on his limbs and back with a club and caused injuries to PW5; incident of assault was witnessed by Parvathamma (PW9), Nachappa (PW11), Krishnappa (PW10), one more person by name Krishnappa, Varalakshmamma (PW8) and Anand (PW13).
During cross-examination, PW5 has deposed; police came to place of incident at about 2 p.m. PW5 has denied suggestion that PW5, his father (PW3) and his brother (PW4) had assaulted accused No.2-Chowdegowda and in order to escape from consequences of first information lodged by accused no.2, they initiated a false case against accused.
12. The evidence of PW6-Gangapathi relates to burning of his house and the house of his elder brother (PW3) regarding which there is no charge. Therefore, evidence of PW6 need not be considered, so also evidence of PW7-Nagaraj.
13. PW8-Varalakshmamma is an independent witness. PW8 has deposed; on the date of incident, at about 1.30 13 p.m., (afternoon), when she was cooking food, she heard hue and cry and came out of house; at that time, accused Nos.1 to 3 were present; PW1 & PW2 had suffered injuries. PW8 has deposed; accused 1 to 3 were armed with clubs. PW8 has deposed; accused 1 to 3 assaulted Venkateshappa (PW3) with clubs; hands of PW3 were broken. PW8 has given details of assault.
The learned Public Prosecutor has treated this witness as a hostile witness as PW8 has partly supported the case of prosecution.
During cross-examination by learned counsel for accused, PW8 has reiterated the version of assault given in examination-in-chief. There is nothing on record to discredit evidence of PW8.
14. PW9-Parvathamma has deposed; on hearing the noise of quarrel and assault on PW3 by accused, PW9 came out of her house; PW3 was assaulted by accused 1 to 3 with clubs; 14 hands of PW3 were broken; accused No.1-Anjigowda, accused No.2-Chowdegowda and accused No.3-Papanna assaulted PW4-Manjunatha with clubs.
During cross-examination by learned counsel for accused, PW9 has reiterated her version. PW9 has admitted that when her statement was recorded by police, she has stated that accused 1 to 3 assaulted PW3, so also accused Nos.1 to 3 assaulted PW5-Jayaram and PW4-Manjunatha.
15. PW10-G.M.Krishnappa had not witnessed incident of assault. PW10 is a post-occurrence witness. The evidence of PW10 is rather ear-say in nature.
16. PW11-Najappa is an independent witness. PW11 has deposed; on the date of incident, PW11 heard noise of quarrel near the house of PW3; accused were near the house of PW3; accused No.6 was armed with a chopper; the rest of accused were armed with clubs; accused No.2 & 3 assaulted PW1 with clubs on his backside and left shoulder; accused 15 No.6 assaulted PW2 with a chopper on his forehead; accused No.1 assaulted PW2 on his waist and left shoulder with a club; accused No.1 assaulted PW3-Venkateshappa on his left shoulder; accused No.2 assaulted on right shoulder of PW3; both hands of PW3 were broken; accused No.2 assaulted PW4 with a club; accused 2 & 3 assaulted PW5 with a club on his shoulder and waist.
During cross-examination, PW11 has deposed; he reached place of incident after hearing noise of quarrel; thereafter, other witnesses came there; the incident of assault came to an end 10 minutes after he reached place of incident; PW11 has denied that he had political enmity with accused; injured were shifted to hospital at about 1.30 pm; incident of assault was intimated to police by some one through phone; when police reached place of incident, accused had left village. PW11 has admitted that accused No.2 had filed a criminal case against some of prosecution witnesses.
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17. PW12-Nanjundagowda has not supported the case of prosecution. Therefore, evidence of PW12 is of no avail to the case of prosecution, so also evidence of PW13-Anand.
18. PW14-Dr.Aruna Selvi was working as Medical Officer in General Hospital at Chintamani. PW14 has deposed; on 13.04.2005 at about 2.30 p.m., she examined PW3- Venkateshappa and found following injuries:-
(i) Fracture of right radius
(ii) Fractures of both bones of left forearm
(iii) Fracture of neck of left fibula PW14 has deposed that injuries found on PW3 could be caused due to assault with clubs.
PW14 has deposed; on the same day, at about 2.30 p.m., she had examined PW2-Muniswamy and found following injuries:-
(i) a cut lacerated injury measuring 7 cms x 2 cms x 1 cm on forehead 17
(ii) fracture of frontal bone PW14 has deposed; PW2 was referred to NIMHANS at Bangalore.
On the same day, at about 7 p.m., PW14 has examined PW5-Jayaram and found following injuries:-
(i) An Abrasion measuring 1 cm on stomach
(ii) An Abrasion measuring 2 cms x 1 cm on right lower limb.
PW14 had examined PW4-Manjunatha at about 2.30 p.m., on the date of incident and found following injuries:-
(i) a cut injury measuring 2 cms x 2 cms on right portion of head
(ii) pain over right upper limb.
PW3-Venkateshappa was referred to SNR Hospital at Kolar. PW14 made entries in MLC register as per Ex.P.19.
During cross-examination, PW14 has admitted that on 13.04.2005 at about 2.15 p.m., she examined accused No.2- Chowdegowda and found following injuries:- 18
(i) an abrasion measuring 1 cm x 1 cm on stomach
(ii) pain on right shoulder and left side of head.
PW14 has deposed that accused No.2 was referred to SNR Hospital at Kolar.
19. The evidence of PW15-Venkateshappa, PW16- Mohammad Rafi, PW17-N.Ambarisha and PW18- G.Rangaswamy relates to investigation and seizure of incriminating articles from place of incident. The witnesses to mahazar have not supported the case of prosecution, yet seizure of incriminating articles is proved from evidence of Investigating Officer.
20. From the evidence of aforestated witnesses, we find that prosecution has proved motive. There was enmity between injured prosecution witnesses on one side and accused on other side. The evidence of injured witnesses bear certain minor variations as to the manner of assault and nature of weapons wielded on them, yet broad features and substratum of their evidence regarding assault on some 19 of prosecution witnesses, PW2 to PW5, by accused 1, 3, 5 & 6 do not suffer from discrepancies.
21. As could be seen from evidence of these witnesses, in particular, injured witnesses namely PW2 to PW5, accused had simultaneously assaulted them. In the circumstances, it is not possible for prosecution witnesses to depose graphic version of assault. When PW2 to PW5 were simultaneously attacked by accused, they cannot give minute details of assault on each of injured and weapon wielded on injured. It is sufficient if their evidence is consistent and credible regarding broad features of incident of assault. Above all, PW2 to PW5 being injured witnesses would be least disposed to leave real assailants and substitute them with accused. The evidence of PW2 to PW5 finds substantial corroboration from evidence of PW14-Dr.Aruna Selvi. There are no reasons to suspect the medical evidence.
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22. The learned counsel for accused has made following submissions:-
I. There are variations and discrepancies in the evidence of injured eye-witnesses. II. The prosecution has suppressed genesis of occurrence. In other words, prosecution has suppressed that accused No.2 had suffered injuries in the same accident and injured witnesses and other prosecution witnesses had been prosecuted for causing injuries to accused No.2-Chowdegowda. III. The learned trial Judge ought to have tried this case along with counter case viz C.C.No.404/2005 filed against PW11-Najappa, PW10- G.M.Krishnappa, PW3-Venkateshappa, PW4- Manjunatha and PW6-Gangapathi.
IV. The evidence of eye-witnesses is not consistent with medical evidence. The learned trial Judge should 21 have given due weightage to evidence of DW1 & DW2.
23. The law is fairly well settled that evidence of injured witnesses cannot be lightly brushed aside. The injured witnesses would be least disposed to spare real assailants to substitute accused. The evidence of injured witnesses is supported from medical evidence. It is true that there are minor discrepancies in the evidence of injured witnesses and other eye-witnesses. As already stated, witnesses were simultaneously assaulted by accused. It would be hardly possible for the prosecution to give graphic version of assault and the court cannot expect to prove minute details of assault. The injured witnesses and other prosecution witnesses have given evidence of broad features of version of incident as could be perceived by them. Therefore, submission of learned counsel for accused that there are variations and discrepancies in the evidence of prosecution witnesses cannot be accepted.
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24. It is true that accused No.2 had suffered an injury, which had been discussed supra. In my considered opinion, injury suffered by accused No.2 was simple in nature.
25. The law is fairly well settled that prosecution need not explain simple injuries found on accused. On the other hand, presence of simple injuries on accused would confirm presence of accused near place of incident. Considering the nature of injuries suffered by accused No.2 and persons involved in alleged assault, the case on hand cannot be called as a counter case to C.C.No.404/2005, on the file of learned JMFC at Chintamani.
26. In a decision reported in ILR 2012 KAR 509 (in the case of State of Karnataka, by Circle Inspector of Police Vs. Hosakeri Ningappa & another), a Full Bench of this court has held:-
(a) If the case and counter case are not tried simultaneously as held by the Supreme Court in the case of Nathi Lal Vs. State of U.P. (Supra) and in the 23 case of Sudhir and others Vs State of M.P. (Supra) the proceedings ipso facto do not get vitiated. But, where the irregular procedure adopted by the Trial Court has caused prejudice to the accused and has occasioned failure of justice, the proceeding and the trial vitiates. Otherwise, the proceedings are protected under section 465 of the Code.
(b) The evidence recorded in one case cannot be looked into in the other case. The Trial Judge can only rely upon the evidence recorded in that particular case and the evidence recorded in the cross case cannot be looked into. Each case must be decided on the basis of the evidence which has been placed on record in that particular case. However, if the evidence recorded in one case is brought on record in accordance with procedure known to law in the other case, then, such evidence which is legally brought on record can be looked into. Otherwise, the evidence recorded in one case cannot be looked into in the other case.
(c) If the Trial Court disposes of the case and counter case on different dates acquitting the accused therein and no appeal is preferred in one of the cases and the appeal is preferred in the case decided later, the proceedings in the later case do not automatically get 24 vitiated. Each case has to be judged on its own merits.
Unless prejudice is shown to have been caused to the accused, the proceedings in the later case do not get vitiated."
In the case on hand, injury suffered by accused No.2 was an abrasion measuring 1 cm x 1 cm on stomach. It was a superficial injury. Therefore, prosecution is not bound to explain injury suffered by accused No.2. Even otherwise, case against some of the prosecution witnesses in C.C.No.404/2005, on the file of learned JMFC at Chintamani has ended in acquittal of accused therein. Considering the injuries suffered by witnesses of instant case and injuries suffered by accused No.2 and persons alleged to have assaulted accused No.2 in C.C.No.404/2005, on the file of learned JMFC at Chintamani, which had been initiated against some of the prosecution witnesses, in relation to incident of assault on accused No.2 cannot be called as a counter case. The aforestated incident of assault and nature of injuries suffered by accused No.2 when compared with 25 nature of injuries suffered by some of the prosecution witnesses in the instant case and number of injured persons of instant case, it is not possible to hold that there was a clash between group of accused on one side and group of prosecution witnesses on the other side. In other words, this is not a case of mutual fight between accused and some of the prosecution witnesses. It may be when accused No.2 had assaulted some of prosecution witnesses, he might have been assaulted by one of the prosecution witnesses. That incident is not sufficient to brand the case initiated against prosecution witnesses as a counter case. In view of what has been held in the aforestated decision, failure of learned trial Judge to try the case and counter case together would not automatically vitiate proceedings, unless it is established by accused that the same had resulted in failure of justice.
In the case on hand, it is not demonstrated that trial of case and counter case and incident of assault on accused No.2 had resulted in failure of justice and caused prejudice to the case of accused No.2, more particularly when nature 26 of injuries suffered by accused No.2 has been brought on record in the instant case.
27. The law is fairly well settled that oral evidence need not be supported by medical evidence, in all, minute details if the evidence of eye-witnesses is broadly supported by medical evidence that would be sufficient to prove the case of prosecution.
28. The learned counsel for accused has contended that independent witnesses have not supported the case of prosecution.
29. In the discussion made supra, I have referred to evidence of some of independent witnesses. Though independent witnesses have not given details of entire incident, evidence of independent witnesses regarding assault on some of the prosecution witnesses would lend corroboration to evidence of injured witnesses. 27
30. The learned counsel for accused would submit that prosecution has not produced x-rays and x-ray reports to prove that PW2 & PW3 had suffered grievous injuries.
31. PW14-Dr.Aruna Selvi has deposed; she examined PW3-Venkateshappa at about 2.30 p.m. on 13.04.2005 in General Hospital at Chinthamani and found following injuries:-
(i) Fracture of right radius
(ii) Fracture of both bones of left forearm
(iii) Fracture of neck of left fibula
PW3 was referred to SNR Hospital at Holar. PW3-Venkateshappa has deposed that he had suffered aforestated fractures; he was treated as an inpatient for three months. The evidence of PW3 & PW14 has not been controverted.
It has not been suggested to PW3 that he had not suffered fractures. The medical evidence of PW14 has remained uncontroverted. In the circumstances, there was 28 no need for prosecution to produce x-rays and x-ray reports to prove fractures suffered by PW3.
PW2-Muniswamy had suffered fracture of frontal bone. PW14-Dr.Aruna Selvi had given evidence that PW2 had suffered a cut lacerated injury on forehead measuring 7 cms x 2 cms x 1 cm. The evidence of PW14 regarding fracture suffered by PW2 has not been controverted. Therefore, non- production of x-rays and x-rays report by prosecution cannot be a ground to hold that PW2 & PW3 had not suffered fractures.
32. The defence has examined DW1 & DW2 to prove injuries suffered by accused No.2 and also to prove that there was a clash between two groups.
During cross-examination, DW1-B.V.Erappa has admitted that he had not seen assailants and injured. DW1 had also not seen injured and nature of injuries suffered by them. Therefore, evidence of DW1 is of no avail to the accused.
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33. DW2-Nanjunde Gowda has deposed; on the date of incident at about 1.20 p.m., when he was near a temple in Gadadasanahalli Village he heard noise of quarrel; at that time, accused No.2 was being assaulted by one Gangapathi, Munivenkatappa (PW1), Muniswamy (PW2), Manjunatha (PW4), Najappa (PW11), Krishnappa (PW10) and Venkateshappa (PW3). DW2 has deposed; these persons were assaulting each other with clubs; accused No.2 had suffered injuries to his head; accused No.2 was shifted to hospital.
During cross-examination, DW2 has admitted that witnesses namely PW1, PW3, PW4 & PW5 had suffered injuries. However, DW2 was not aware as to how they had suffered injuries. DW2 has admitted that when accused No.2 had suffered injuries, he had been surrounded by number of people, therefore, DW2 was not able to find out as to how accused No.2 had suffered injuries. DW2 has admitted that witnesses namely PW2, PW3 & PW6 had filed criminal case 30 against DW2. DW2 has denied suggestion that he has given false evidence in the instant case, as he was implicated by some of the prosecution witnesses.
34. Thus, on careful consideration of evidence of DW1 & DW2, I find their evidence is complacent and lacking on material particulars. It is true that evidence adduced by accused to prove the case of defence, need not be beyond reasonable doubt, nevertheless evidence adduced by accused should stand the test of preponderance of probabilities. In my considered opinion, evidence of DW1 & DW2 is hardly sufficient to prove that accused No.2 had suffered injuries at the hands of prosecution witnesses and there was a clash between two groups.
35. The learned trial Judge on proper appreciation of evidence has held accused No.1 guilty of offences punishable under sections 326 & 324 IPC; accused No.3 guilty of an offence punishable under section 326 IPC; accused Nos.5 & 6 guilty of an offence punishable under section 324 IPC. 31
36. The learned counsel for accused would submit that accused and prosecution witnesses are from same village. They have reconciled their differences. The accused and prosecution witnesses are living in amity. Therefore, sentence imposed by trial court requires modification.
37. The learned trial Judge has sentenced accused No.1 to undergo rigorous imprisonment for two years and pay fine of Rs.1,000/-, in default to undergo imprisonment for three months for an offence punishable under section 326 IPC. Accused No.1 is further sentenced to undergo imprisonment for three months for an offence punishable under section 324 IPC. Accused No.3 is sentenced to undergo rigorous imprisonment for two years and pay fine of Rs.1,000/-, in default to undergo imprisonment for three months for an offence punishable under section 326 IPC. Accused Nos.5 & 6 are sentenced to undergo simple imprisonment for three months and pay fine of Rs.1,000/- each, in default to 32 undergo simple imprisonment for one month for an offence punishable under section 324 IPC.
38. Accused No.1 had caused grievous injuries to PW3- Venkateshappa, who had suffered multiple fractures at the hands of accused No.1. PW2-Muniswamy had suffered fracture of frontal bone at the hands of accused No.6. Accused 1, 3, 5 & 6 were armed with clubs assaulted the injured witnesses. The assault on injured witnesses was rather pre-meditated. In the circumstances, there are no mitigating circumstances in favour of accused. Therefore, sentence imposed by trial court does not call for interference.
39. In the result, I pass the following:-
ORDER The appeal is dismissed.
Sd/-
JUDGE SNN