Karnataka High Court
Basavaraj S/O. Irappa Balikai vs The State Of Karnataka on 25 January, 2017
Bench: Ravi Malimath, K. Somashekar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 25th DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE K. SOMASHEKAR
CRIMINAL APPEAL No.2866 OF 2011 [C]
C/w.
CRIMINAL APPEAL No.2611 OF 2012 [C]
IN CRL. A. No.2866 OF 2011:
BETWEEN:
1. BASAVARAJ S/O. IRAPPA BALIKAI
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O. KALLATTI ONI, TERDAL,
TQ: JAMAKHANDI, DIST: BAGALKOT
2. MALLAPPA @ MALLU S/O. IRAPPA BALIKAI
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O. KALLATTI ONI, TERDAL,
TQ: JAMAKHANDI, DIST: BAGALKOT
3. SHRISHAIL S/O. MURAGEPPA BALIKAI
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O. KALLATTI ONI, TERDAL,
TQ: JAMAKHANDI, DIST: BAGALKOT
4. IRAPPA S/O. HANAMANTH BALIKAI
AGE: 21 YEARS, OCC: STUDENT ,
R/O. KALLATTI ONI, TERDAL,
TQ: JAMAKHANDI, DIST: BAGALKOT
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5. IRAPPA S/O. CHANNABASAPPA BALIKAI
AGE: 25 YEARS, OCC: AGRICULTURE ,
R/O. KALLATTI ONI, TERDAL,
TQ: JAMAKHANDI, DIST: BAGALKOT
... APPELLANTS
(By Sri. SRINAND A PACHHAPURE ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH ASI, TERDAL POLICE STATION,
NOW REPTD. BY SPP
... RESPONDENT
(By Sri.V.M.BANAKAR, ADDL.SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF THE CODE OF CRIMINAL PROCEDURE, SEEKING TO SET
ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 31.10.2011 PASSED IN S.C NO.60 OF 2009 BY
THE LEARNED DISTRICT & SESSIONS JUDGE AND PRESIDING
OFFICER, FAST TRACK COURT, JAMKHANDI, IN S.C NO.60 OF
2009 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 143,
147, 148,324, 326, 504 & 506(2) READ WITH SECTION 149 OF THE
INDIAN PENAL CODE AND ACQUIT THE APPELLANTS, IN THE
INTEREST OF JUSTICE
IN CRL. A. No.2611 OF 2012:
BETWEEN:
THE STATE OF KARNATAKA
REPTD. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
CIRCUIT BENCH, DHARWAD.
... APPELLANT
(By Sri.V.M.BANAKAR, ADDL.SPP)
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AND:
1. BASAVARAJ S/O. IRAPPA BALIKAI
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O. KALLATTI ONI, TERDAL.
2. MALLAPPA @ MALLU S/O. IRAPPA BALIKAI
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O. KALLATTI ONI, TERDAL.
3. SHRISHAIL S/O. MURAGEPPA BALIKAI
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O. KALLATTI ONI, TERDAL
4. IRAPPA S/O. HANAMANTH BALIKAI
AGE: 22 YEARS, OCC: STUDENT,
R/O. KALLATTI ONI, TERDAL
5. IRAPPA S/O. CHANNABASAPPA BALIKAI
AGE: 26 YEARS, OCC: AGRICULTURE,
R/O. KALLATTI ONI, TERDAL
... RESPONDENTS
(By Sri. SRINAND A PACHHAPURE ADVOCATE)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
& (3) OF THE CODE OF CRIMINAL PROCEDURE, SEEKING TO
GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 31.10.2011 PASSED BY THE
DISTRICT AND SESSIONS JUDGE AND PRESIDING OFFICER,
FAST TRACK COURT, JAMKHANDI IN SESSIONS CASE NO.60 OF
2009, THEREBY ACQUITTING THE ACCUSED / RESPONDENTS
FOR THE OFFENCE PUNISHABLE UNDER SECTION 307 READ
WITH 149 OF THE INDIAN PENAL CODE AND SOUGHT FOR
ALLOWING THE APPEAL AND CONVICT THE ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTION 307 READ WITH
149 OF THE INDIAN PENAL CODE
THESE APPEALS COMING ON FOR FINAL HEARING THIS
DAY, K.SOMASHEKAR, J. DELIVERED THE FOLLOWING:
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JUDGMENT
Criminal Appeal No.2866 of 2011 is filed by the appellants- accused Nos.1 to 5 against the impugned judgment of conviction and sentence dated 31st October 2011 passed in Sessions Case No.60 of 2009 by the learned District and Sessions Judge and Presiding Officer, Fast Track Court, Jamkhandi, whereby the accused Nos.1 to 5 were convicted of the offences punishable under Sections 143, 147, 148, 324, 326, 504 and 506(2) read with Section 149 of the Indian Penal Code.
Criminal Appeal No.2611 of 2012 is preferred by the State against the same impugned judgment insofar as it relates to acquittal of the accused Nos.1 to 5 of the offence punishable under Section 307 read with Section 149 of the Indian Penal Code.
2. These two appeals, which arise out of the same impugned judgment of conviction and sentence passed by the learned Sessions Judge, are heard and disposed off by this common judgment.
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3. The factual matrix of the case of the prosecution is as under:
On 23rd January 2009 at about 09.30 p.m., on the main road situated in front of Shetty Lunch Home, Teradal Town, when the complainant/PW-1 was standing by the side of his motorcycle and talking to his friends, namely PW-4/Prashant @ Puttaswamy Ramachandra Shetty and PW-5/Laxman Mudakappa Hosamani, at that time, the accused Nos.1 to 5, formed an unlawful assembly in order to prosecute their common object, holding deadly weapons, like hammer, iron rods and wooden sticks in their hands, came near PW-1 and the accused No.1 started abusing PW-1 in filthy language stating that it is too much of him in his village, as he being the active party worker of "SriRamasena". Saying so, the accused abused him in filthy language and extended life threats. In the meanwhile, accused No.1 assaulted PW-1 on his forehead with hammer and caused bleeding injury; accused No.2 assaulted PW-1 with iron rod on his shoulder, hands, legs and stomach and thereby caused grievous hurt; accused No.3 also assaulted PW-1 with means of iron rod on his right and left hand 6 fingers and when PW-4 and PW-5 came to rescue PW-1, at that time, accused No.4 assaulted PW-4 with wooden club and caused internal pain and accused No.5 assaulted PW-5 with wooden club on the right leg ankle and caused internal pain and thereby, all the accused attempted to commit murder of PW-1.
It is further alleged in the additional statement given on 24th January 2009 by PW-1 to the investigating officer disclosing the motive for the assault on PW-1 and others on that date. The injured PW-1, PW-4 and PW-5 were shifted to the hospital wherein they took treatment by PW-10/Dr.M.S.Danigond. During treatment in the hospital of PW-10 at Teradal, the complainant/PW-1 gave a complaint as per Ex.P-1 and based upon which, a case was registered in Crime No.9 of 2009 for the offences punishable under Sections 143, 147, 148, 307, 324, 326, 504 and 506(2) read with Section 149 of the Indian Penal Code against accused Nos.1 to 5.
Thereafter, the investigating officer proceeded with the investigation, recorded the statement of witnesses, conducted 7 mahazars and laid the charge-sheet against accused Nos.1 to 5 for the alleged offences before the committal court. Subsequently, the learned Sessions Judge framed the charges against the accused for the offences punishable under Sections 143, 147, 148, 307, 324, 326, 504 and 506(2) read with Section 149 of the Indian Penal Code. The accused pleaded not guilty and claimed to be tried. Accordingly, the plea of the accused was recorded.
4. The prosecution, in order to bring home the charges, examined in all 14 witnesses as PWs-1 to 14, marked 11 documents as Exs.P-1 to 11 and exhibited three material objects as per MOs-1 to 3. Subsequent to the closure of the evidence of the prosecution, the incriminating aspects in the prosecution case against the accused were put to the accused and their statements under Section 313 of the Code of Criminal Procedure, 1973 was recorded to enable them to explain the incriminating aspects. The accused denied the imputations appeared against them and did not choose to lead any defence evidence on their behalf. 8
5. After hearing the learned counsels for both sides, the learned Sessions Judge, appreciating the evidence put forth by the prosecution, acquitted the accused Nos.1 to 5 of the offence punishable under Sections 307 read with Section 149 of the Indian Penal Code, however, the accused Nos.1 to 5 were found guilty for the commission of the offences punishable under Sections 143, 147, 148, 324, 326, 504 and 506(2) read with Section 149 of the Indian Penal Code and the accused were convicted and sentenced to undergo imprisonment as mentioned hereunder, with a direction for concurrent running of all the sentences imposed:
(i) to undergo rigorous imprisonment for three months for the offence punishable under Section 143 read with Section 149 of the Indian Penal Code;
(ii) to undergo rigorous imprisonment for three months for the offence punishable under Section 147 read with Section 149 of the Indian Penal Code;
(iii) to undergo rigorous imprisonment for six months for the offence punishable under 9 Section 148 read with Section 149 of the Indian Penal Code;
(iv) to undergo rigorous imprisonment for three months for the offence punishable under Section 504 read with Section 149 of the Indian Penal Code;
(v) to undergo rigorous imprisonment for six month for the offence punishable under Section 506(2) read with Section 149 of the Indian Penal Code;
(vi) to pay fine of `5,000/- each for the offence punishable under Section 324 read with Section 149 of the Indian Penal Code and in default to pay fine, they were sentenced to undergo rigorous imprisonment for three months;
(vii) to undergo rigorous imprisonment for three years and to pay fine of `2,000/- each and in default to pay fine, they were sentenced for rigorous imprisonment for three months for the offence punishable under Section 326 read with section 149 of the Indian Penal Code. 10
6. Aggrieved by the impugned judgment of conviction and sentence, these two appeals have been filed, as stated herein above.
7. Heard Sri.Srinand A.Pachhapure, learned counsel appearing for the accused Nos.1 to 5 and Sri.V.M.Banakar, learned Additional State Public Prosecutor for the State in these appeals.
8. The learned counsel for the appellants-accused during the course of his arguments has contended that though, the prosecution has examined PWs-1 to 14, marked documents Exs.P-1 to 11 including the wound certificate of PWs-1, 4 and 5 as per Exs.P-3 to 5 issued by PW-10, so also two x-ray films of PW-1 as per Ex.P-11, the prosecution has not placed cogent, corroborative and positive evidence to probabilise that the accused had motive to commit the murder of PW-1 by assaulting with means of MOs.1 to 3, namely a hammer with wooden handle, two iron rods and two wooden clubs, which were allegedly used by the accused at the time of committing the 11 offence viz. attempt to commit murder of PW-1, who is the injured and also the author of the complaint/Ex.P-1. MOs-1 to 3 have been allegedly seized by the investigating officer during the course of investigation, but, it has not been proved through the evidence of PWs-2 and 3 as they have turned hostile to the case of the prosecution.
9. He has further contended that as there are discrepancies in the medical evidence and also the oral evidence which was placed by the prosecution to prove the guilt of the accused, there arises a doubt in the case of the prosecution, as such, the entire evidence requires to be re-appreciated in these appeals. He contends that the learned Sessions Judge has not analysed the evidence of the prosecution in proper perspective and erroneously came to the conclusion that the prosecution has proved the guilt against the accused. Therefore, the learned counsel for the accused in this appeal has taken up a contention that though the prosecution has examined PWs.1, 4 and 5, their evidence has not been completely supported by other independent witnesses to prove the guilt of the accused. Despite of it, the learned Session 12 Judge erred in holding the accused guilty of the offences punishable under Sections 143, 147, 148, 324, 326, 504, 506(2) read with Section 149 of the Indian Penal Code, without noticing the major discrepancies and inconsistencies in the evidence of prosecution witnesses.
10. That the learned Sessions Judge misdirected as well as misread the evidence of the prosecution, though the prosecution has not established the case against the accused beyond reasonable doubt. It is further contended that the prosecution has failed to establish that there was any motive behind committing the alleged offence of assault either on PW-1 or PWs.4 and 5 with means of MOs-1 to 3, which were allegedly seized by the investigating officer during course of investigation. Inspite of it, the learned Sessions Judge misread the evidence of the prosecution and found guilt against the accused and convicted them for the charges, as aforesaid. Therefore, the evidence on record needs to be re-appreciated in these appeals. 13
11. It is further contended, insofar as the appeal filed by the State in Criminal Appeal No.2611 of 2012 questioning the legality of the impugned judgment of conviction and sentence imposed against the accused and seeking for imposition of sentence for the offence punishable under Section 307 read with Section 149 of the Indian Penal Code against these accused, that no ingredients have been put forth by the prosecution to prove the guilt against the accused for the offence punishable under Section 307 read with Section 149 of the Indian Penal Code and the same has been fortified by the evidence of the prosecution witnesses, namely PWs.1, 4 and 5 who are the injured eye- witnesses. They were examined by the prosecution but nothing worth is elicited in their evidence, as there are inconsistencies and discrepancies and the same runs contrary to the evidence of PW-
10. Therefore, the appeal filed by the State does not hold any substance, as such, it deserves to be rejected. Hence, he prays for allowing his appeal by setting aside the impugned judgment of conviction and order of sentence and acquit the accused of the offences alleged.
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12. Per contra, learned Additional State Public Prosecutor appearing for the State in these appeals, submitted that the prosecution in order to establish the guilt of the accused, examined PWs-1 to 14 so also got marked Exs.P-1 to 11 and exhibited material objects as per MOs-1 to 3, which were used by the accused in the commission of the crime. This evidence was analaysed by the learned Sessions Judge and has rightly convicted and sentenced the accused for the offences punishable under Sections 143, 147, 148, 324, 326, 504, 506(2) read with Section 149 of the Indian Penal Code.
13. However, he contended that the learned Sessions Judge has not appreciated the evidence on record in proper perspective and erred in arriving at the conclusion that the accused Nos.1 to 5 are not guilty of the offence punishable under Section 307 read with Section 149 of the Indian Penal Code. The learned Sessions Judge misdirected himself in acquitting the accused of the offence punishable under Section 307 read with Section 149 of the Indian Penal Code, since, the overt-acts against 15 each of the accused Nos.1 to 5 have been clearly narrated by PWs.1, 4 and 5. PW-1 in his evidence has clearly stated that accused No.1 assaulted PW-1 on his forehead with hammer, accused No.2 assaulted PW-1 with iron rod on his shoulder, hands, legs and on his stomach, accused No.3 assaulted PW-1 with iron rod on his right and left hand fingers. When PW-4 and 5 came to rescue PW-1, at that time, accused Nos.4 and 5 assaulted them with wooden clubs, which is clearly an attempt to take away the life of PW-1. When this being the case, the learned Sessions Judge ought to have convicted the accused for the offence of attempting to murder, punishable under Section 307 read with Section 149 of the Indian Penal Code as well.
14. The learned Additional SPP further contended that the prosecution has proved the guilt of the accused beyond all reasonable doubts by examining the witnesses PWs-1, 4 and 5 who are the injured eye-witnesses and have fully supported the case of the prosecution. Hence, he prays for convicting the accused for the offence punishable under Section 307 read with 16 Section 149 of the Indian Penal Code, by allowing the appeal filed by the State.
15. It is further contended that Criminal Appeal No.2866 of 2011 preferred by the accused Nos.1 to 5 alleging erroneous grounds for setting aside the impugned judgment of conviction and sentence imposed against them for the alleged offences, does not call for any interference, as there are no justifiable grounds urged in the said appeal. Therefore, he prays for allowing Criminal Appeal No.2611 of 2012 filed by the State seeking conviction and for imposition of sentence for the offence punishable under Section 307 read with section 149 of the Indian Penal Code against accused including other offences under which the accused were already found guilty and sentences were imposed against them. Further, he prays for rejection of the Criminal Appeal No.2866 of 2011 filed by the accused Nos.1 to 5 questioning the impugned judgment of conviction and sentence held against them.
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16. It is further contended, while defending the impugned judgment in Criminal Appeal No.2866 of 2011 insofar as it relates to imposition of sentences under other offences and seeking conviction for the offence under Section 307 of the Indian Penal Code against the appellant/accused, as they had attempted to take away the life of PW-1, who being the injured, sustained grievous injuries in the hands of accused Nos.1 to 5 substantiated by the X-ray films as per Ex.P-11 produced by the prosecution to prove the guilt of the accused. Further, Ex.P-10 is the certificate issued by CW-18 who gave further treatment to PW-1. PW-10 is the doctor who examined the injured and gave treatment initially as the injured were shifted to that hospital. Ex.P-11 is two x-ray films of PW-1.
17. Perused the evidence available on record, so also the documents which were got marked by the prosecution to prove the guilt against the accused.
18. PW-1 is the complainant and injured witness; PWs-2 and 3 are the pancha witnesses for the spot panchanama 18 produced at Ex.P-2; PWs-4 and 5 being the injured eye-witnesses, are friends of PW-1; PWs-6 to 8 are also eye-witnesses; PW-9 is stated to be the scribe of the complaint; PW-10 is the practicing doctor at Terdal who treated PWs-1, 4 and 5 and issued wound certificates as at Exs.P-3 to 5; PW-11 is the owner of Shetty Lunch Home at Teradal who has turned hostile to the case of the prosecution; PW-12 is the ASI in Teradal PS who arrested the accused Nos.1 to 3 and released them on bail; PW-13 is the investigating officer working as ASI in Teradal PS who conducted the investigation and laid charge-sheet against the accused; PW-14 is the Assistant Doctor working under PW-10.
19. Ex.P-1 is the complaint; Ex.P-2 is the scene of offence panchanama; Exs.P-3 to 5 are the wound certificates of PWs-1, 4 and 5 respectively issued by the doctor/PW-10; Ex.P-6 is the in patient case sheet of PW-1; Ex.P-7 is the statement of PW- 7/owner of the Mess; Ex.P-8 is the FIR in Crime No.9 of 2009; Ex.P-9 is the hand-sketch of the scene of offence dated 24th January 2009; Ex.P-10 is the medical certificate of PW-1 issued by CW-18; Ex.P-11 is two X-ray films of PW-1.
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20. Having regard to the substantial contentions urged by the learned counsels for the accused as well as the learned Additional SPP, it is relevant to state that according to the prosecution, PWs-1, 4 and 5 are the injured eye-witnesses. PW-1 being the author of the complaint/Ex.P-1 is working as Secretary of 'SriRamasena' party of North Karnataka Unit and was an active party worker. Due to this reason, accused nurtured ill-will against him and holding that motive, accused Nos.1 to 5 picked up a quarrel with PW-1 on 23rd January 2009, assaulted him and his friends PWs-4 and 5 by means of MOs.1 to 3 and caused injuries as indicated at Exs.P-3 to 5 issued by the doctor, PW-10 who gave treatment to them.
21. Having bestowed our anxious consideration to the material contentions advanced by the learned counsels and gone through the entire oral and documentary evidence, it is pertinent to state that there are inconsistencies and discrepancies in the evidence of PW-1 and PWs-4 and 5 who are the injured eye- witnesses. PW-10 is the doctor who treated the injured initially 20 and registered it as a medico-legal case. CW-20 who visited the hospital on 24th January 2009 between 01.00 am and 01.30 am and took the complaint as per Ex.P-1 from PW-1 being the injured and registered a case against the accused Nos.1 to 5 in Crime No.9 of 2009 and thereafter, at 02.30 am recorded the first information report as per Ex.P-8 and forwarded the same to the Court of JMFC, Banhatti.
22. That the PW-1 being the author of the complaint as per Ex.P-1, PWs-4 and 5 being the injured witnesses, have stated in their evidence that on the alleged date and time of the incident, when the complainant/PW-1 was standing by the side of his motorcycle and talking to his friends in front of Shetty Lunch home, accused Nos.1 to 5 came there and picked up a quarrel with him, abused him in filthy language and assaulted over his person with deadly weapons like, hammer, iron rod and wooden clubs, with an intention of taking away his life. When PW-4 and 5 came to his rescue, they were also assaulted by the accused by means of same weapons. As a result of which, PWs.1, 4 and 5 21 sustained injuries, which is evident from the wound certificates at Ex.P-3 to 5.
23. PW-1 has stated in his evidence that the police visited the hospital of PW-10 during 2.00 a.m. to 02.30 a.m. Since, his both hands were got injured, he could not write the complaint and as such, it was written by PW-9 as per his instructions, the contents of which was read over to him and thereafter, he affixed his thumb mark on the complaint. PW-1 identified the complaint on confrontation at Ex.P-1 and his LTM mark at Ex.P1(a) and also the signature of the scribe as at Ex.P-1(b). He further identified the seized material objects like, one hammer with wooden handle, two iron rods and two wooden clubs.
24. PW-2, who being the panch witness to the spot panchanama as per Ex.P-2 conducted by the investigating officer, has deposed that he was called by Terdal Police about 11 months ago at about 08.30 a.m. and police conducted mahazar. He identified his signature at Ex.P2(b). PW-2 has deposed that he was secured by the Police by informing him that there was a 22 quarrel at the scene of offence on the previous day. He deposed that the material objects mentioned in Ex.P-2 were not seized in his presence, but stated that chilli powder was sprinkled on the floor at the scene of offence. PW-2 turned hostile to the extent of seizure of MOs.1 to 3 used by the accused, but admitted that two wooden clubs were seized in his presence as mentioned in Ex.P-2/spot panchanama.
25. PW-3 being another witness to the spot panchanama/Ex.P-2 whose signature appears at Ex.P-2(b). He too denied in his cross-examination that MOs-1 to 3 were seized in his presence, but admits his signature on MOs-1 to 3.
26. Thus, PWs-2 and 3 being the pancha witnesses to the spot panchanama and seizure of MOs.1 to 3, have turned hostile and nothing worth is elicited in their evidence to prove that MOs.1 to 3 have been used by the accused at the time of committing the offence and caused injuries over the person of PWs-1, 4 and 5 as indicated in Exs.P-3 to 5/injury certificates issued by the doctor/PW-10 who had given treatment to them. 23
27. PWs-4 and 5, being injured eye-witnesses to the prosecution, have also been examined to prove the guilt of the accused, who have deposed regarding the incident took place in front of Shetty Lunch Home at Teradal on 23rd January 2009 at about 09.30 a.m., and also stated in their evidence about the overt-acts of each of the accused.
28. Having gone through the entire evidence particularly of PWs-1, 2 and 3 coupled with evidence of PWs-4 to 6, it appears that there is shadow of doubt caste upon the theory of the prosecution, as contended by the learned counsel for the accused during the course of his arguments.
29. PW-10 being the practicing doctor at Terdal had given treatment to the injured PWs-1, 4 and 5 on 23rd January 2009 who were brought with an history of assault in the incident took place at Shetty Lunch Home in Terdal and he upon examination, noticed injuries as indicated in the wound certificates as per Exs.P-3 to 5. However, in the cross-examination, he admitted that there are discrepancies in Ex.P-3/the wound certificate issued 24 in respect of PW-1, i.e., the non-mentioning of age of the wounds and the size of the wounds has been shown wrongly. The said discrepancies were explained by the prosecution by examining PW-14/who is the author of Ex.P-3.
30. As PW-11 being the owner of the Mess, has deposed that he is running hotel business since 15 years. He has stated that the shop of PW-4 works till 10 to 11 p.m. He having identified the accused stated that he knew them as they were the residents of Terdal. He states that the material objects, namely hammer with wooden handle, two iron rods and two wooden clubs, which were allegedly used by the accused in the commission of the crime, were seized by the investigating officer from the scene of offence during the course of investigation. However, PW-11 has not supported the case of the prosecution and turned hostile, as such, he was cross-examined by the prosecution. But, nothing worth has been elicited to trust or give credence to the case of the prosecution that the accused committed assault on PWs-1, 4 and 5 and caused injuries as indicated in their wound certificates at Exs.P-3 to 5. 25
31. PW-12 is the ASI in Teradal PS who arrested the accused Nos.1 to 3 and released them on bail. PW-13 is the investigating officer working as ASI in Teradal PS who conducted the investigation and laid charge-sheet against the accused.
32. Whereas the learned Sessions Judge, having gone through the evidence of the prosecution examined PWs-1 to 14, documents Exs.P-1 to 11 and Mos.1 to 3, which were allegedly used by the accused and caused injuries to PWs-1, 4 and 5 as indicated in Exs.P-3 to 5, has accepted the case of the prosecution insofar as it relates to causing grievous hurt to PW-1, simple injuries to PWs.4 and 5 and abusing PWs.1, 4 and 5 and extending life threats to their life and accused being members of unlawful assembly with the common object assaulted them holding MOs.1 to 3 and held them guilty for the commission of the offences punishable under Sections 143, 147, 324, 326, 504 and 506(2) read with Section 149 of the Indian Penal Code. Further, the learned Sessions Judge acquitted the accused of the offence punishable 26 under Section 307 read with Section 149 of the Indian Penal Code.
33. The prosecution has examined PWs-1, 4 and 5 who are the eye-witnesses who have suffered injuries as indicated in Exs.P-3 to 5 issued by the doctor PW-10 who gave treatment to them. On a close scrutiny of this evidence, coupled with the evidence of PW-13 who laid the charge-sheet against the accused, by securing wound certificate and also the scene of offence panchanama as per Ex.P-2 and also drew the map of scene of offence as per Ex.P-9 and secured Ex.P-11 two x-ray films of PW-1, as he being the author of the complaint/Ex.P-1 which was filed by him on 24th January 2009 with regard to the incident occurred on 23rd January 2009. MO-1 is a hammer, MO-2 is two iron rods and MO-3 is two wooden clubs which were allegedly used by the accused at the time of committing the offence.
34. Keeping in view all these evidence which was placed by the prosecution, it is necessary to state in these appeals that the prosecution has not placed the material evidence for the offence 27 punishable under Section 307 of the Indian Penal Code, so also for the offence under Section 326 of the Indian Penal Code as alleged in the complaint, since the case was registered by recording the FIR/Ex.P-8 in Crime No.9 of 2009. Based upon the complaint as per Ex.P-1, PW-13 set the criminal law into motion. But, on a meticulous consideration of this evidence, which was put forth by the prosecution to prove the guilt against the accused, it is necessary to state that in order to meet the ends of justice if the judgment of conviction as against accused for the offence punishable under Section 324 of the Indian Penal Code is affirmed, by setting aside the conviction under other offences, including under Sections 307 and 326 of the Indian Penal Code.
35. Keeping in view the evidence adduced by the prosecution by examining PWs-1, 4 and 5 and also the wound certificates as at Exs.P-3 to 5 as they suffered injuries at the time of incident allegedly committed by the accused. In this appeal we are of the opinion that it would meet the ends of justice if the judgment of conviction as held against the accused is modified by 28 setting aside the conviction for the offences punishable under Sections 143, 147, 148, 326, 504 and 506(2) read with Section 149 of the Indian Penal Code and convicting them by holding them guilty for the offence punishable under Section 324 of the Indian Penal Code and sentence of fine imposed is enhanced appropriately, since, on re-appreciation of evidence, we are of the considered view that the injuries which were inflicted over the person of the injured are concerned, same do not substantiate conviction held and sentence imposed against the accused by the learned Sessions Judge, but the conviction held to the extent of sentence of fine imposed against the accused for the offence punishable under Section 324 read with Section 149 of the Indian Penal Code is concerned, the same requires to be modified, keeping in mind the fact that accused Nos.2, 4 and 5 were in judicial custody for one month during trial, which, in our view, would meet the ends of justice.
36. Considering the reasons assigned as held herein above, we have no hesitation to hold that the sentence of fine awarded is inadequate based on the injuries sustained, as such, the sentence 29 to be awarded on conviction requires to be modified. In view of the injuries sustained by PWs-1, 4 and 5, we deem it just and appropriate that the fine amount be directed to be paid to them.
37. Insofar as Criminal Appeal No.2611 of 2012 preferred by the State seeking conviction of accused Nos.1 to 5 of the offence punishable under Section 307 read with Section 149 of the Indian Penal Code in addition to the sentence imposed under other offences, is concerned, we are of the considered view that the prosecution has not placed cogent, corroborative and acceptable evidence nor brought up the ingredients to constitute an offence under Section 307 of the Indian Penal Code, against the accused, though the charge-sheet was filed by the investigating officer for the said offences by conducting mahazar for having seized deadly weapons/MOs-1 to 3 which were allegedly used by the accused. Apart from that, the prosecution has miserably failed to produce any substantial and independent evidence to probabilise that the accused have made an attempt to commit the murder of PW-1, wherein PW-4 and 5 suffered injuries as indicated in Exs.P-3 to 5 wound certificates. Besides, the 30 intention to commit murder could not be gathered as injuries were not sufficient in ordinary course to cause the death. As such, no offence under Section 307 was made out by the prosecution. Therefore, the grounds which were urged by the learned Additional State Public Prosecutor appearing for the State in this appeal do not hold any substance, to convict the accused for the offence punishable under Section 307 read with Section 149 of the Indian Penal Code. Therefore, Criminal Appeal No.2611 of 2012 filed by the State deserves to be rejected.
38. For the aforesaid reasons, Criminal Appeal No.2866 of 2011 filed by the accused Nos.1 to 5 deserves to be allowed in part. The judgment of conviction and sentence imposed on accused Nos.1 to 5 for the offences punishable under Sections 143, 147, 148, 326, 504 and 506(2) read with Section 149 of the Indian Penal Code is set aside, as it would meet the ends of justice.
39. Whereas, the sentence imposed on accused for the offence punishable under Section 324 read with Section 149 of 31 the Indian Penal Code is concerned, same requires to be modified as under:
The sentence of fine imposed against Accused Nos.1 and 3 for the offence punishable under Section 324 read with Section 149 of the Indian Penal Code is enhanced from `5,000/- to `20,000/- each and the sentence of fine imposed against Accused Nos.2, 4 and 5 for the offence punishable under Section 324 read with Section 149 of the Indian Penal Code is enhanced from `2,000/- to `10,000/- each.
40. Out of the total amount of `70,000/- fine imposed, a sum of `40,000/- shall be paid to PW-1/complainant and `15,000/- each shall be paid to PW-4 and PW-5, to meet the ends of justice.
41. In the result, we pass the following:
ORDER
(i) Criminal Appeal No.2866 of 2011 filed by accused Nos.1 to 5 is allowed in part;32
(ii) The judgment of conviction and sentence dated 31st October 2011 passed in Sessions Case No.60 of 2009 by the learned District and Sessions Judge and Presiding Officer, Fast Track Court, Jamkhandi, is altered.
(iii) The judgment of conviction and sentence imposed on accused Nos.1 to 5 for the offences punishable under Sections 143, 147, 148, 326, 504 and 506(2) read with Section 149 of the Indian Penal Code is set aside;
(iv) However, judgment of conviction held against accused Nos.1 to 5 for the offences punishable under Section 324 read with Section 149 of the Indian Penal Code is affirmed;
(v) The sentence of fine imposed against Accused Nos.1 and 3 for the offence punishable under Section 324 read with Section 149 of the Indian Penal Code is enhanced from `5,000/-
to `20,000/- each and as against accused Nos.2, 4 and 5, the fine is enhanced from `5,000/- to `10,000/- each. Appellants undertake to make the deposit within one week from today before this Court. In default 33 of payment of fine amount, accused Nos.1 to 5 shall undergo simple imprisonment for a period of six months;
(vi) Out of the total fine amount of `70,000/-, i.e., `20,000/- each imposed against Accused Nos.1 and 3 and `10,000/- each imposed against accused Nos.2, 4 and 5, a sum of `40,000/- shall be paid to PW-1/complainant and `15,000/- each shall be paid to PW-4 and PW-5;
(vii) Criminal Appeal No.2611 of 2012 filed by the State seeking conviction of the accused Nos.1 to 5 of the offence punishable under Section 307 read with Section 149 of the Indian Penal Code is hereby dismissed, by modifying the impugned judgment of conviction as stated supra.
Sd/-
JUDGE Sd/-
JUDGE RK/-