Karnataka High Court
State Of Karnataka vs Kumara on 6 February, 2012
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
«"4
IN THE HIGH COUR"F:O§fHK/.§AI§NZA\T:A"AT BANGALORE
DATED THIS THE t£,REgévf{l'1QF"EE.BR.LjAVRV, 2012
THE HON'BLE AA'P.fTUS:T1C'EA:f:¢Q'Hfi.N SHANTANAGOUDAR
THE tE?T*AxweRAT»vé2T9ETaT%2Té»"as;/aE;°o4;W
TTTT ._uC'_'RViA)\'I:£\!ALj'APPEA*LNC3746/2007
IN CRIly\INAtVrTP._..P_EA'lTNlV
§FaIc\éVE<E)ifE'§a:=rTiaTtaka--
By Kesthur Rural PQ-{_ice.v_ ..AppeHant
_(By
"
. 5/0. My Madajra-h
'Age 26 y'e}:fr§
Vt:--kka__i'i'ga,*'Agriculturist
R/o ~An'%{anthapura
---- .. Athagooru Hobli
" _M'addur Taluk.
* .2B.":l<»'ddangi Madaiah
M.M. Madaiah
7. Mayanna
S/o M. Madaiah
Age 28 years
Vokkaiiga, Agriculturist
R/o Ankanthapura
Athagooru Hobli
Maddur Taluk.
8. Chikkamayi Raja
S/o Chikkamayi Manchaiah
Age 38 years
Vokkaiiga, Agriculturist
R/o Ankanthapura
Athagooru Hobli
Maddur Taluk
Mandya District. _ ..Respondents
(By Sri Hashmath:'Pasha:,'Abidvfiiy) it 3 This Crirnin__ai~-.App'eai,_i_s~f_iIe'd uindger Section 378(1) & (3) Cr.P.C. by the State 'Pub_iic['Prosecu'to'r for the State praying to grantVy.!.e--ayeVfr_o fi3:e.._an_appea'i---against the Judgment dated 9.4.2006 in No:.49o./99 on the file of the P.O., FTC-III, Mandyalacquitting'fjthe.,respondents/accused for the offence punishabI'eVu'nde'r,Ser:tio'n~._3'26} 114, 307 R/w Section 149 of IPC. i 3 . 2 r .
, (VIN c:2?:AA:.\iAL }\i=PEA_L.i\io.74s/2oo7 VW_VAE3ET'v"!EE..|§i":i _ S',-Co MV_,~Maidaiah Aged about 38 years AA R/o Ankanthapura Village Athagooru Hobli "M.addur Taluk.
. Kodangi Madaiah @ M.M. Madaiah S/o Purusanalingi Madegowda Aged about 62 years R/o Ankanthapura Village Athagooru Hobli Maddur Taluk.
. Jayaramu S/o Karigowda Aged about 36 years R/o Ankanthapura Village Athagooru Hobli Maddur Taluk.
. Ramesha S/o Karigowda H Aged about 32_ye_ars R/o Ankanth2apu'u;ra'Village Athagooru. " V' Maddur Ta|_Vukj._ 2 . Dhod;ioHu"@?}Nafi§3aViah:yt'«~.:'y'V Q 5/0 Ningappsa Aged about 33 years ' = R/o Ankanthaypura V.iIIa~ge' Athagooru Ho_bli-7' " ' Mad:dur'~TaIuk."-~.__ S./.o f~'!.o't--eg"ow~d 'Aged about 42 years R/.9 Anykanthapura Village Athagooru Hobli Maddur:TaIuk.
._ 'M,ay.anna '-ZS/o M. Madaiah to ___Aged about 34 years R/o Ankanthapura Village Athagooru Hobli Maddur Taluk.
8. Chikkamayi Raja S/o Chikkamayi Manchaiah Aged about 43 years R/o Ankanthapura Village Athagooru Hobli I Maddur Talu k. " S .v'Ap'.pell"a:ht.sV'l': _ AND:
State of Karnataka By Kesthur Police MaddurTaluk . A " , Mandya District. V " u ..Respondent (By Sri P.M. Na:l)va;f:j,.}'lC.G::§?,,jl:. This Cr_im:i_n'a_l A'ppea!]*is"filed under Section 374(2) Cr.P.C. _b.y..._th'e_ ad:;{o_ca~te~--._for"-thev' appellants against the Judgment dat'ed.. 9.'4.2O4O7_ passed by the P.O., FTC-III, Mandya lien =S.C.No.90/'99"»<;o'nvicting the appellants/accused No.1 to 6; 288; 9' for...the"'a_ffen"ces punishable under Sections 143, 148, 341, .324. r/yv" Section 149 of IPC and sentencing them to. pay a fine» of Rs.500/-- each for offence punishable unde.r3Section 14"3.r/wgSection 149 of IPC and in default to 'nay'lve1thei--.t'v+salid. fine Wamount they shall undergo simple A"2impr--ison.m'ent._for one month each. They shall pay fine of 'P..s.5_OO* fo-rvtoffence punishable under Section 341 r/w Section 149"io.f LPC and in default to pay the said fine amount they-_shal.l~unjdergo simple imprisonment for 15 days each. _ -They are""sentenced to undergo rigorous imprisonment for 2 years each" for the offence punishable under Section 324 r/w _ ' ;3.,e"ct'lo._n 149 of IPC the imprisonment if any undergone by '- an'y'.,of.-'the accused as under trial prisoner shall be se off to sentence of imprisonment passed against them.
-6.
These Appeals coming on for hearing this SHANTANAGOUDAR, 3., delivered the following-:2 . JunGMEa1~ns CrLA.No.1405/2007 Eytfled byathegscate,«~héreasf= CrLAlwL746/2007 s ffled by the convnied accused. Both the appeals arise"'--out7Qfff.tiJefifudgment and order dated 9.4.2007_fpvassed'°b§{ t:hej,_Fastw:Track Court--III, Mandya, in C prosecution in brief is that accused l\:os.l1 relatives inter se. They V are all;'c'oI..isin.s"o.f_V_VP\lVs.v'1 and 2. Accused Nos.6 and 7 are .to«--..the family of accused No.1, but they are friendsof7fa.m'i.l;'y".of other accused. The dispute between the a'ccu'*sged"son the one side and PWs.1 and 2 on the "..jo.ther,._wiVth regard to darkast/7 land is existing since long There are civil as well as criminal litigations "flpending between the parties. At about 7.00 a.m. on ~'\ xi
-7 4.8.1998, the complainant (PW.2) and were proceeding from their hous'e"'toiNai':ds_..th'ef_!and}for the purpose of sowing the seeds, near the house of one "M,:r';~K_alasannanav-._ K.a"rigowda,"~' accused No.1 (Kumar), alonVg...dv§(ivt.h"wQthe.r "acc,usc=d, came armed with deadly weéporis clubs and rods, etc., and rmrongifuiiy and 2 and questioned going. Accused started that point of time, accused 2, consequent upon which they sui"f'e_red the wife of PW.1 on hearing the cri-e_s,"came to the spot and intervened. She ~'"~,.YVas..'...:'é2l9.O.. 3._Ssau"l"tevd.----~bY the accused. Accused No.1-
V"--._Ku.r'r'.a.r_ with machhu (MO.No.1) on the right ha'n'd=of'VP'iAJj;:_i,1=.Vconsequent upon which the right hand of nevarhthe wrist, came to be amputated. There is ".fpro'i'u.se'bleeding from the hands of PW.1. Accused No.1 to--oi<"severed portion of the hand of PW.1 and ran away _3- from the scene. PW.4~Billaiah and others canj.e,V_i'toi~the spot after hearing the news. Thereafter,»§V_:AF5\/V':.?i--«fa-nd others shifted the injured to __l.<..esthur_*H"Ho:s;Vp'ital'_'_sand'"» thereafter to Mandya Hospital. Whil_e Hospital, the injured as well went Police"? Station. However, injured PlN".*i.."did"-not'enterthe Police Station, but he was talcento' PW.2 lodged the complaint§a:§.P;_e.r on 4.8.1998. Based on came to be registeVred...:vf§vn Pol.ic"efl:Station. The injured were trveate-dd bx/'tjl'iVe'"~l§oct'or-PW.16, who issued the wound._, certificates asljjlllper Ex.P11, P12 and P13 'Kjirespuectivlelyi.During the course of investigation, the p'oli'cf'e chopper, clubs, rods, etc. However, the 's~eve'red:"'portion of the hand of the injured PW.1 be recovered and panchanama with regard to hiding the severed portion of hand of PW.1 was "vigrelcorded as per Ex.P15. Police after completion of Y9
-9_ investigation, laid the charge sheet against nine. for the offences punishable under Secti_o.n'si':V».1413:, l.._1.17'~, 148, 341, 324, 326, 307 r/w. se¢tion1,49~.or1pc.; f'
3. During the course of't.r:i"'a.l, the 'prose_'1:uti,o'n"'in all, V' examined 19 witnesses.,a_&'nd'.go't'*n*i'ari<eAd 2"(«)'Ex'hvibits and 15 Material Objects. defence, one witness i.e., DW.1 and one Exhibit wasithe course of trial, _a._ndv'trial against him was abated. The Trial_ AC':<.),'ur:_§,g§:,r1'hearing and on evaluation of the mgaterial on reclord, convicted accused Nos.1 to 6, 8 forf,.the«.._offences punishable under Sections 143, Section 149 of IPC and has acquitted
--Vaccus"ed "the offences punishable under Sections 326, f:o'7,1--114S r/w. Section 149 of IPC. The State has filed appeal questioning the order of acquittal, whereas _ convicted accused have filed the appeal questioning the order of conviction made against them. S \i\----.
-10- Both the appeals are heard together.
4. Sri Hasmath Pasha, learned advocate for the convicted accused submitted 't'ha_t".rhe« prcisevcuftioii has suppressed the origin and'f¥__g:e..n.esisffgofg"»ti~1e'=,'ireva'i'«.cL incident and it has tried to ro'pe"i»in as"'maAny persons as possible in the crime; jtl'i~«at 2 and 3 have sustained _'very except the injury of PW.1, itself goes to" to 9 are totally innocent. has to be viewed from the backgroun"dc'_"thVat'* the are litigating in various Court;is:"Vw~ith to lands and that therefore the '":_Vpojssibili,ty«.pof:r*oping them as accused in Crime is on the hi'gh'er lzooking to the injuries sustained, it would [not be ..pc-«ssifble to conclude that the seizure of chopper, A 5cluVbs;~«_.rods, etc. seized allegedly behest of the accused not be true; PWs.1 to 3 have tried to improve the fcase before the Court and such omissions and xi"
-111-
improvements are proved from the evidenjce of Investigating Officer. The evidence of witnesses, i.e., PWs.1 to 3 is contradictory..t_o-.ea:ch l'othe'r., on material aspects; that the material jjongbre,cord:c.|_ea.rly' reveals that PWs.1 and 2 hr'av__e prCvol<ed at the relevant point of that stretch of imagination it cannot't3ieV:"said No.1 had got intention to commit any other two injured intention of the accused_,to. any injured persons, they would doing so particularly when PWs.1 to 3"w%ereVu-na'.:m'e'd. Lastly, he submits that even ,_of tAh'evv--pro'secution is believed, according to the offence may fall under Section 335 of'I!?;C, th.a't€--.,.too, against accused No.1 only. On these 3"»-'4.___"among" other grounds, he prays for allowing the appeal if the convicted accused.
Kn -12- Per contra, Sri P.M.Nawaz, learned AdditionVa'l_SPP submits that the names of all the accused the First Information Report. The First well as evidence of PWs.1 ancir2h:rfe*.«{e'.sa__l accused came to the spo:t__arme,dV«é' dégaldlyifi weapons; that the recovery 'o'f~V:_c_i:ogppe'r, :_¢luV'bs.':ianVd rods are made based on by accused Nos.1 ,2 an?!" was no provocation'ei3the:i:_iLj._y)2': as argued by the learned all the accused came to commit the offence holding chopper, clubs, rods, etc. .~-_andV_~t~i3at__l"th_e ac'cu.se_dv have taken disadvantage of the '.7._po.siti--onv._of to 3 who were unarmed; that the evlidence Doctor--PW.16 clearly reveals that V%"'~,_._"amputatio.n of the wrist by portion of the right hand of caused by MO.No.1--chopper; even if there is ll"-.VVsvo_rne confusion in the evidence with regard to medical W -13- evidence of PWs.16 and DW1, the sam.e~--»n.:ejed"*~:not given much importance in viiewg--of? tahei.."consisten_t evidence of three injured eyevwitnesseszg tlw'a'tli"h4eHo.cu|ar--.1"
testimony will have to be to:_:t:he_fiiexperts' opinion. Accused No.i"'*h:as. 't'iiVefp:o~.!i_ce to the place wherein the sevei'e_d DQ'rt'io*n:of' was hidden and «.V.r__Q' as per Ex.P15, but unfo.rt--u.naA'te'ly0V':'1t;h.Ve was not detected in that p"l.ac'e'_; other animals might have eaten or con--s%ume:dv._the 'severed portion of hand of PW.1 ..l_iAnterre'gnulm; that the Trial Court is not ivfdiisbelieving the case of the prosecution mefrely on.the'0V;ground that the injured PW.1 has taken ~.0f'_j';-V'4.___treAatménté'at 10.00 a.m. in Mandya Hospital and by that Vifirfthere would have been profuse bleeding, "V':'_'v~con§sequent upon which PW.1 ought to have lost his life; if "it all depends upon the facts and circumstances of each case and there is no hard and fast rule that every gt,/0'?
-14- person who has sustained amputation if not treated early, should loose his life. On these among"-.j'{3f.h'er grounds, he prays for allowing the appeal tlieiétaytleg and for dismissal of the appeal;"fileld« accused. f T x T T f n
5. PWs.1, 2 and .3 are Out of them, PW.1 has to his right hand. The wounc_l cef.rtifi.c.a¥te"'l.to PW.1 is at Ex.P11. iftheillllregion of wrist is a m p utateld... _ ll' PW'.2__,"the._i'nj.u~red..__':wiltness is a complainant He lodgecivthe as per Ex.P1. He has suffered The wound certificate pertaining to lpw : T 1" 2 .
"t/VT3 is the wife of PW.1. She has also suffered injuries. The wound certificate of PW.3 is at T "~v,.._'11lEv_).<_§P13.
-15- PW.4-Billaiah is the uncle of PW.1. He camxevzlcl»-t4:'c_')i.t_he spot immediately after the incident and_..s'h'ift~éVd:__j:t-hé', injured to hospital in a bullocl<-cart"v_ia poi'ic'e*--.s'_'ta't'iori, aforementioned, PW.1, the inj.ure_dA~ji'w'a.s"' Kesthur Hospital and as"l_tl*:.ere "werel'noA"«:._;'ad.ecjuate'it facilities available in the saiVAd-------all-.l'<L3--spit_al, 'thev..in.jvured was advised to be taken to 'kHo_spi'tavli'»a:vt PWs.5,'_V6.:var}1id' are istlatejd b'e"'eye witnesses, but they have_Vtu~VrVn'eci}hostileto case of the prosecution. Pvi/--..8"-is' witness for the mahazar panc/7.anamla" Ex...'-P2}.
,PVl/'_.'9p 'isr"th_e elder brother of PWs.1 and 2. He is ma.haV2arwcitn'ess relating to seizure of blood stained it-__'__'.Vclothes blunder Ex.P6. The blood stained clothes were as Mos.8 to 13.
-15- PW.1O is the Head Con_sta_ble,_-"'Wlio'_';.'a'rresteVd°V accused Nos.1 to 9.
PW.11 is another Headlvtloristable..v§'iro took blood stained clothes to PW.12 isi.::maha::'zAar:"yy:itnVe~ss.._for~ panchanama at Ex.P9, und;e'r"'g_wh"i"c5l.§_ "rold three clubs were recoveredi"'at.t:h,e accused No.2. He has turned hostile. it is Va'n0:th__er hostile witness.
mahazar witness for Ex.P6, the l panAChana'n'7a.:'~"relating to seizure of blood stained clothes PW.15 is the Assistant Sub--Inspector of Police, llfwho registered the case based on the complaint lodged by PW.2. He registered Crime No.57/1998 of Kesthur W -17- Police Station and sent the FIR to the Magistrate as per Ex.P10.
PW.16 is the Doctor, who treated all ,i:m§ The wound certificates of are P12"' P13 respectively.
PW.17 is..the 1.-S'ub}:In's.p'ec'tor Police, who investigated.~tl'~i.e l__n__"part.--.." if P mahflazarvwllllwitness for seizure of chopperiand' who has turned hostile. is At"hev--..--I--n'spector of Police, who completed lbntlheliirives.t:i'g.a'tion and laid the charge sheet. is the Doctor examined on behalf of the According to him, the auto amputation by PW.1 has occurred when blood supply to the got reduced due to diseases of the arteries on account of which blood supply is reduced. On account of \(/x -18- distel part of the limb becoming discoloured and got detached period of months of time.
7. As aforemen*t.i.oned,""'i3lZl/'s'.V'Vi,__A2 and 3': are the injured eye witnesses.""'P'Jl/Vfé-vhais complaint. PWs.2 and 3 and whereas, PW~1 has "i.e., he has suffered amputatiolnv joint. He has also sufferedxifractu of right radius.
:33 jiie case«o.f...t«he prosecution mainly rests on the V."--ev§Vdence-uofPlll/s...1 to 3 and the evidence of the doctors a'n'd'1..V_D:W--1. The seizure panchas relating to V'-..._'seizure"of-chopper, iron rods and clubs viz., PWs.12, 13 have turned hostile. Ex.P--9 is the panchanama .:rel_ating to seizure of iron rods and clubs at the behest of *~'Vaccused No.2. PWs.12 and 13 are the witnesses to such panchanama, but both of them have turned hostile. \/\» -19- Ex.P-14 is the panchanama relating to seizure.' of chopper. PW--18 is the mahazar witness for"4t'ri_~e__:sa:i4d.M panchanama. He has also turned host.i~le....A4.ifj~Th.us«,.A case of the prosecution mainly rests---on theA.e'viden.ce~=::oi' PWs.1 to 3, coupled with the evidence' of and DW--1.
9. The complaint_:'lvodVVoe'_dl per Ex.P-1 reveals the rr1._O't'i:*A.;',e.1"Vfor:'A..'the':.";in'cidVe:nt-inf'duestion. PW-2 has stated there was rivalry betweenHhVis'_A the father of accused No.1 withreg.ard'=to":darkhicaslt land. It is relevant to note V that f§at'rie.r ot PWs."1 and 2 and father of accused Nos.1 arle:.t;ro't.hers inter se. Thus, PWs.1 and 2, as well a"s,~."the VV'a'ccu_se'd'V are cousins inter se. The complaint
--Vreveaul"s..that'on 4.8.1998 at about 7.00 a.m. while PWs.1 "..anAd"2«.._we're proceeding towards their ancestral land for seeds, all the accused Nos.1 to 8 came in a VV"'*V..fi;'group armed with deadly weapons like machchu, V'?
.21.
carrying paddy bags on their heads; at time, accused No.1 came near the' house of_AlVl<ariVg'o:wda and waylaid PWs.1 and 2; accused ll"xlo.1 abused and 2 and asked them as"'*to"".which*._l_a'nd-= were' proceeding'; at that point 2 told accused No.1 that very land; at that point of tigmie';.ca"cc.u--sed_ PWs.1 and 2 with dire they proceeded further allflthe accused came in a group an'd._g4start'e.d PWs.1 and 2 with the V weapcgns .held'" It is specifically deposed by made PW--1 to fall on the ground and th'e.re.afte'r"aa;c.cu;s'ed No.1 assaulted on the right hand of V --PW--1'.u"hynwkeéeping the said hand on the stone slab. upon which, the right hand at the wrist was amputated. PW-3 when intervened, she rfiwas also assaulted by the accused. The evidence of PW- 2 also reveals specific overt acts against other accused -22- with regard to assault on PWs.1, 2 and 3. PW--2, all the accused merci.!-essly assaulted PWs.2 and 3 also on 'part's.,'.o~f,the-:b~ody_ by using the clubs and iron isfurtzherélvdeposedlV that the severed portion of the P\lV?'1 was taken away by the accused if anybody abuses them, wiilqnot be village.
In,thelicrolsseexa-minvatlio-n,,....P§W--2 has admitted that the accused, and 2 are involved in various dispuitesllrelatirig' to the land; that there were .,_and'°*co«u'nter complaints; and that on :.ai'.co'mplaint is lodged by the accused against PV\'/'3._._:1 and based on the same, crime is 7-w___"registe'red~. However, in the said case, PWs.1 and 2 g:"¢'ainejl..A.to be acquitted. Even on 18.7.1998 i.e., about 15 days prior to the incident in question, a complaint came "to be lodged against PWs.1 and 2 by the accused with an allegation that PWs.1 and 2 trespassed into the land t/7 -23- of the accused and cut various trees, includigng,'injawn'g4o tree etc., In the said crime, PWs.1 and 2 and charge sheet was filed againVst'«t._h'e_m-:.' after trial, the said case ended in"ac'quittal,f;rifle"
admits that a civil suit is pend"ing:'consideration before the Trial vi':m_pV.rAo\_zementsumade by PW--2 in his evidencegyflwere VA&'o'rvi~--"V"record by the defence. the evidence of PW--2, consistent with the al|egatio__ns._fouh~'ciV~:i.ni:'thge'v:c.ovmpl-aint in respect of attack on him by accused "lx|o.';'?;. the dispute between accused No.1~a'nd'~PWs:'I«an_d__2. He has further mentioned that "'._1hel"wasany indoor patient at Mandya hospital for about fiveto With regard to instigation by other Va.___'Vaccuslediiristigating accused No.1 to amputate the hand it appears, there is improvement in the Vi"---..fi'ev_'i§dence of PW--2. He has not stated before the police ifduring the course of investigation that other accused \/V
-24_ instigated accused No.1 to assault PW--1 his hand. He has further depos'ed*«that in patient in Mandya Hospital for he has also filed the suit for"-c:l"aiming"-- dasmfagfés against V the accused as his righ't~h_andV'was';anfi'putated'} Though P\4/lg"---.7,_' was V«cxross~examination by the unshaken with regard on PW--1. However, we to the assault by other accused 3_">iVis highly exaggerated and far ' fFOn°;:c.:t:\m)§.l1. A _____ .. e 7Ti_h.e"..e"vidence of the complainant--PW--2 is fully V --Vsupport.e"clVby":the evidence of PW--1. As aforementioned, suffered amputation of his right hand at wrist if He has also deposed on par with the evidence of He has stated on oath that when they were proceeding to the land at about 7.00 a.m. on the date of \/K' _25_ the incident, accused No.1 came from opposite direction and asked to them as to which land _:t~h--e.y.'..'_,j\}¥.i¢:te. proceeding to. PW~1 replied that they a_re.',.Ag:o,in:gV:: to very land (i.e., presumably toT__thergzlfandg':'.i,n*--. Being enraged, accused Noc.1..__thre*aténed with dire consequences. w'e'reV:pvfirAocVvéeding to further extent, all armed with deadly weaponsylilge iron rods and waylaid them assaulted PWs.1 has specifically deposed that acicusegd on his right hand with chopper after Keep_ing,"t'né hand on a stone, consequent ~'"~,.LJ»VWvij..j.i'W;hAi:Ch._,A the"ri~g«lit hand was amputated at wrist the cries, PW~3 -- wife of PW--1 came to 'the she was also assaulted by the accused. 3'~.__VThereaFt,er, according to PW--1, accused No.1 ran away it scene after taking the severed portion of hand 'V :fof--.§PW-1. Accused No.2 pronounced after seeing PW-1 r(/K7 -26- that PW--1 will die within half an hour. gT_h§'r;ea'fQter, injured were shifted to the hoslpitallll ; deposed by PW--1 that arcc_used"._v'No.1 chopper M.O.No.1 and he 'lithe very chopper M.O.No.1 on "However, in the cross-exa.mina:t.io--n..jiiceiieltaignfiimiprolyements were brought out He admits in the dispute between the accused' He further admits that there were°C_r%imin'a.l clasesalso between the parties; that .---he has talcen treatment in Mandya Hospital as indoor V.V,D'atien.tA 11 days and thereafter for three months inésanigalore. He also admits that accused have v%li"«.,.,_tlodged complaint against them on the ground that cut the mango trees standing in the disputed . PW--1 though was subjected to lengthy cross~ " «vexamination by the defence, we find that the evidence of PW--1 is consistent with the case of the prosecution in if?
-27- respect of assault by accused No.1 on PW-1._.l..ThVe're;;are certain improvements and omissions re_la't.iVngf_"-to the overt acts attributed against evidence of PW--1 is consistent withthe pro.s"ecuti'on";case"', that accused No.1 assaulted lvoniithe rigiirlihandilfiof PW--1, consequent upon whi'c..h';:p«~the: at wrist portion of PW--1 was severed. 'v
11. and 2 is again supported"'bv;':%;heV':%;vid'en.ce She is the wife of PW--1. VV"WhenV thgleiin.cideritjx was going on, PW--3 tried to interfere and s_he_was"v.also stated to have been assaulted :,.acc'u.sed.HA'"T'he evidence of PW--3 reveals that the house for proceeding towards it agric4.ultu_ra!.VlA!'~aAnd at about 7.00 a.m. on the date of the Vi"ncid_en't';~~' : Further she heard the cries and immediately 4'_'Aa.'_a'fte'r'"hearing the cries, she rushed to the spot of the T incident. At that point of time, accused Nos.2 to 4 held it PW--1 and accused No.1 assaulted on the head of PW--1. ii' -28- So also, other accused assaulted 2 mercilessly. When she tried to interfere, s_.h_e"w'a,js--«..al'so assaulted. However, she has spe.ci_fical_§y"d'e:pos'ed'_'..that"» accused No.1 after placing the;'=.hain'd~°of"~P_W;"1 stone, assaulted with thelllcihojyppeir,.__cons'eq"u;e"ritw upon"? which, the hand of lv3,\./lj/"-1 gjotwseve-red.' vccused No.1 took away the severed PW--1 while running she has deposed the overt are not consistent with th
12. "'*T_hle,,w'o_und"certificates Exs.P-11, 12 and 13 _.v,,'pertva'i5nsV_litoV thVe""--inj_u,_rlves sustained by PWs.1, 2 and 3 V7__resp'ecti-véelyV;«vl.é:"'The wound certificate of PW--1 clearly reveals has suffered amputation of right it-«.__".uVpper lirn':b above wrist joint and lacerated wound 2" x ":1./_2'.',:>l5e.low right elbow joint. He has also suffered
-----.'jfracture of upper 1/3" of right radius. Except those two iinjuries, PW--1 has not suffered any other injury. PW--2 / W .30- apart from tenderness. However, PW--2 simple incised injury. The incised wQ.u-nA4d:f.,,w'A--o:ul.d caused by the chopper. None, e}:_ceptraiccused'-l\lo§:1._,_V had held the chopper. Thus, fro'rn.__VtheV"a..bove itiis,j.'c.leVar3 that,"
the injuries sustained by .we«lll'_.aS_v,7 injuries sustained by PW.2 Sharp CUWHQ weapon such as_:ch_oppe"r".".*Asv.aAforenfienti'o'.ned, PW-3 has suffered abrasion as well as tendernjess,.,T'A'i§uc'i'::;,3injuries caused even when a person if-a_l|s;on he/she is pushed forcibly. _;_1'4.,Theevildvence of PWs.1, 2 and 3 in so far as it relates by accused No.1 on PW-1 is consistent ':;Th..eir evidence fully supports the case of the 'prosecution as found in the complaint. Accused uV'_"..ji\lo.1*-...is the only person who has assaulted PW--1 with All the three eye witnesses have consistently ubxdeposed that accused No.1 assaulted on the right hand of PW--1 with the chopper, consequent upon which, the I v\
-31.
right hand of PW--1 was severed at wrist joint_4vaV_n-dythe severed portion was taken away by accused'iV..N'o}'i["* injured PW-1 who has suffered _amputa.ti.on%"'h'ja's."'cl_'ear-l.y'AV' deposed that he was assaulted"gby?i_'acculsed consequent upon which, shufferetd"v_:ar*np'u'ta:tion."'V He has further deposedthatA..tl'i'e..'s'evec.red po'rtion§ is taken away by the accused of injury i.e., incised by PW--1 and the 'PW~2 clearly reveal that of the assault by or sharp cutting weapon viz., cho pper l§/I . 1 V. 2 and 3 further have deposed that all the'_t'h'ree.'v'injured were mercilessly assaulted by the id'-..«.4_"0ther a'cc_used also with the clubs and iron rods and that have suffered bleeding injuries. As 'R"-nafoairementioned, the injuries sustained by PWs.2 and 3 ~~are simple in nature. Out of the injuries sustained by v"
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PWs.2 and 3, the only injury that can be of some significance is incised wound measuring 3" x _41,!V2_fl*'..,_4over the middle of the scalp. Such incised caused by the chopper. No injuries. corres'pond;inVg" t_oV._theu V' so called attack by other eight a*ccu'se~d on and PW.3 are found from the:_""-recorhcis, and 3, as well as, PWf,.--.1.,"were"assaulteid mercilessly and repeatedly by all the weapons like clubs and, would have remained .:le:a'jsvt,"'~th',ey~:,§would have sustained grievous"i'n']'uV.r.iesi;'::7fp'Vv'e"V»d.o any corresponding injuriesthe by other accused with rods andggclulbsit 'Even'- otherwise, the evidence of these wiitnésseis'invrespect of assault by other accused is not cons.i-sten.t';s.,,,,,n_ of improvements are found in the _evidé'nce»._'of-these witnesses with regard to complicity of other"accused. Therefore, in our opinion, this is not '"F.iVt"'case to convict accused Nos.2 to 9 based on such l/\ _33c shaky evidence on record. However, wefi-ndvitha'4t'%t'iie_A V' evidence of PWs.1, 2 and unblemished in so far as it_.relate's""*to PW-1 by accused No.1 _cho'ppe'r,"consequent upon which, the right ;:h"a..ndifofil?\i'§'.;'1V_z'i"s.severed at wrist joint. i
16. :'iPavsh~a', learned counsel appearing"'"'on;']:be'h:al'f jlofjtheiaccused argues that the incidentvzhas. taken'j_'jP_la'C_:é'»»«o.ri the spur of the moment, that too, at""'thev.s.udden": provocation of PWs.1 and 2. to ..him,«F5Ws.1 and 2 replied to accused No.1 '2'that.;- to the very land of dispute for agriAc'u_ltura'l-doperations. Such utterances provoked ~M.,i.",',"'~~a"Ccused "No.1 to commit the crime in question. Hence, 4'_'_ArA~acCVo'rd'ing to him, the offence does not fall either under ll :'..:V"S'e'ction 307 or under Section 326 of IPC, but may fall it x under Section 335 of IPC.
R//\ -34- The said submission is opposed by Sri P.M.l\_l.awaz, learned Addl.SPP.
17. We find that the presence of 9 is highly doubtful. Even were present near the scene-.of oflfevnce, v::'e'"of0._v_not§ fivnddv any ground to believethe that all the accused shared--....VcorT'iV:n1onof taking away with the life ofany or to cause there is no pre-
arranged..pl_aA'n.::'as:*1:si..i_ch; accused No.1 met PWs.1 and a.m. on the date of the incident. ill'-i'ebbaslV<Ve-d and 2 as to which land they *a_a're PWs';1vv~----a--«n'd 2 replied to accused No.1 that "-to the very disputed land. Thereafter, according case of the prosecution, all the accused T7-'4.___"c.ame togiether and started assaulting PWs.1 to 2. Since it that there are no corresponding injuries to the " :f_»al!.eged assaults made by accused Nos.2 to 9, we find V'\
-36' Thereafter, he came allegedly alcincj wi'thVall-:th.e_":l'acc,u'sed:; Which means that the inc,ident'ha's. not,'.~"i;a,.ke'n "p«l.ace'g immediately on the spur of 't'lié_V"m_omeiaVtl_":fit taken place after some time' F">JWs.1 and 2, if any, is not so graye.,sb., No.1 to commit the_ hand of PW--1.
Therefore%,<Vth.e Section 335 of IPC, fa._!l--s 3526 of IPC. We also do not find any in"te_ntivon" o'nAV.'tlwe"'_paVrt of accused No.1 to commit _._the murder o'f"'--.F>:\/l(j_'1. or of any of the injured eye A"'._Vwitrie.sse:s';., 'If°aC\cused No.1 had the intention to commit or of any of the eye witnesses, he it-.,_»_44'.would' hayevcommitted the said crime by assaulting on y'i'i:_al portions of the body, particularly, when none of V' injured eye witnesses were unarmed. Therefore, the » uifoffence committed by accused No.1 falls under Section 326 of IPC.
-38-1 agriculturist and because of the alnmpvlutatioin,;.th.,eH |..i3fe%of.i* PW--1 has become miserable,l:""in_asmuc'l1last, he has to depend upon others alltliroughfhis"--life:."
20. Vtalégetn 'i'n:t:o5f"e.o.n~sideration all the aforementioneclfavcts'w'h'~i,l_e.;i"m'po'sing sentence. We are conscious the incident has taken place about 13'\/eadrslprio~r"to"'th'i's'day. We are also conscious of "fact .VtriatV"becv'ause of the crime committed by accuvsedvlll'.ll\lo,fl1«,.,the life of PW-1 has become miserable, pa.rticula'rll'ygv».cwhen he will have to depend on others
--Vduri'n'g "future life. Having regard to the totality of _'..jt.he'ifa,cts and circumstances, in our considered opinion, sentence that can be awarded against accused No.1 sentence of imprisonment for three years and the sentence of fine of Rs.75,000/--. Accordingly, the following order is made :
l/"