Karnataka High Court
State By Circle Inspector vs Vinay on 20 March, 2020
Author: S.N.Satyanarayana
Bench: S.N.Satyanarayana
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF MARCH, 2020
PRESENT
THE HON'BLE MR. JUSTICE S.N.SATYANARAYANA
AND
THE HON'BLE MR.JUSTICE ASHOK G NIJAGANNAVAR
CRIMINAL APPEAL NO.522 OF 2014 (A)
C/W
CRIMINAL APPEAL NO.420 OF 2014 (A)
IN CRL.A.NO.522 OF 2014:
BETWEEN:
STATE BY CIRCLE INSPECTOR
OF POLICE, SULLIA CIRCLE,
D.K.DISTRICT-574239. ...APPELLANT
(BY SRI V.S.VINAYAKA, HCGP)
AND:
1. VINAY,
S/O VISHWANATHA GOWDA B,
AGED 25 YEARS,
R/AT BOLUGUDDE HOUSE,
IVARNADU VILLAGE,
SULLIA TALUK,
D.K.DISTRICT-574239.
2. CHETAN.B,
VISHWANATHA,
AGED 21 YEARS,
R/AT BOLUGUDDE HOUSE,
2
IVARNADU VILLAGE,
SULLIA TALUK,
D.K.DISTRICT-574239.
3. ANIL.B,
S/O YASHAWANTHA GOWDA
@ NAGAPPA GOWDA,
AGED 20 YEARS,
R/AT GUTHIGARU MOOLE HOUSE,
IVARNADU VILLAGE,
SULLIA TALUK,
D.K.DISTRICT-574239.
4. GURUPRASAD,
S/O C.H.NARAYANA GOWDA,
AGED 20 YEARS,
R/AT CHAKOTE HOUSE,
IVARNADU VILLAGE,
SULLIA TALUK,
D.K.DISTRICT-574239. ...RESPONDENTS
(BY SRI N.S.SAMPANGIRAMAIAH, ADVOCATE FOR
R1 TO R4 AS AMICUS CURIAE)
****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AGAINST
THE JUDGMENT AND ORDER OF ACQUITTAL DATED 5.4.2014
PASSED BY THE V ADDL. DIST. AND S.J., D.K., MANGALORE,
SITTING AT PUTTUR, D.K., IN S.C.NO.65/2012-ACQUITTING
THE RESPONDENTS/ACCUSED FOR THE OFFENCE P/U/S 447,
323, 324, 307 R/W SEC. 34 OF IPC.
IN CRL.A.NO.420 OF 2014:
BETWEEN:
SMT HARINAKSHI,
W/O LOKESH CHEMNURU,
AGED ABOUT 33 YEARS,
R/O CHEMNURU HOUSE,
3
AIVARNADU VILLAGE,
SULLIA TALUK,
DAKSHINA KANNADA DIST. ...APPELLANT
(BY SMT.HALEEMA AMEEN, ADVOCATE FOR
SRI VISHWAJITH SHETTY S, ADVOCATE)
AND:
1. SRI VINAYA,
S/O VISHWANATHA GOWDA B,
AGED ABOUT 27 YEARS,
R/O BOLUGUDDE HOUSE,
AIVARNADU VILLAGE,
SULLIA TALUK,
DAKSHINA KANNADA DIST.
2. SRI CHETHAN B,
S/O VISHWANATHA,
AGED ABOUT 21 YEARS,
R/O BOLUGUDDE HOUSE,
AIVARNADU VILLAGE,
SULLIA TALUK,
DAKSHINA KANNADA DIST.
3. SRI ANIL B,
S/O YASHAWANTHA GOWDA
@ NAGAPPA GOWDA,
AGED ABOUT 20 YEARS,
R/O GUTHIGARU MOOLE HOUSE,
AIVARNADU VILLAGE,
SULLIA TALUK,
DAKSHINA KANNADA DIST.
4. SRI GURUPRASAD,
S/O C H NARAYANA GOWDA,
AGED ABOUT 20 YEARS
R/O CHAKOTE HOUSE,
AIVARNADU VILLAGE,
SULLIA TALUK,
DAKSHINA KANNADA DIST.
4
5. STATE OF KARNATAKA,
BY CIRCLE INSPECTOR OF POLICE,
SULLIA CIRCLE, D.K,
REPTD. BY S.P.P,
HIGH COURT BUILDING,
BANGALORE. ...RESPONDENTS
(BY SRI N.S.SAMPANGIRAMAIAH, ADVOCATE FOR
R1 TO R3 AS AMICUS CURIAE,
SRI V.S.VINAYAKA, HCGP FOR R5)
****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
ACQUITTAL DATED:5.4.14 MADE IN S.C.NO.65/2012 BY THE
COURT OF V ADDL.DIST. AND S.J., D.K., MANGALORE, SITTING
AT PUTTUR, D.K, AND ACCUSED MAY BE CONVICTED FOR THE
OFFENCE P/U/S 447, 323, 324, 307 R/W 34 OF IPC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, THIS DAY ASHOK G. NIJAGANNAVAR J.,
PRONOUNCED THE FOLLOWING:
JUDGMENT
Criminal appeal No.522/2014 is filed by the State represented by High Court Government Pleader. Criminal appeal No.420/2014 is filed by the complainant. Both the appeals are against the judgment and order of acquittal dated 05.04.2014 passed in S.C.No.65/2012 by the V Additional District and Sessions Judge, D.K.Mangaluru sitting at Puttur. 5
2. The prosecution case in nutshell is that the complainant's husband is a Congress Party Member and the accused Nos.1 to 4 are the workers of BJP party. There was a quarrel between the complainant's husband and the accused in connection with display of banner in Lok-Sabha election, as such, there was a rivalry between them. On 04.03.2011, evening at about 7.00 p.m. when the complainant was in the shop along with her husband and children, the accused persons came on two motorbikes and asked her husband as to what he has said against them in the temple, when her husband informed that he has not told anything, the accused left by saying they will come later. Thereafter, at 9.10 p.m. her husband viz., P.W.2, got the call from mobile No.9480761198 belonging to accused by name Vinay. Accused Nos.1 to 4 came near the shop at 9.45 p.m. and picked up quarrel with her husband by saying as to what he has told in the temple against them. Then, accused No.2 pulled her husband to the road and assaulted him with the cement asbestos sheet on his left hand right cheek, accused No.1 assaulted him with the bamboo stick on his head. When P.W.1 tried to block the said blow, she sustained injury to her left hand small finger, her husband had sustained injury to head and left ear. P.W.1 6 shouted for help, by looking at C.W.4 coming to the spot, all the accused left the spot on their vehicles. Her husband P.W.2 was taken to Government Hospital Sullia from there he was shifted to Venlock Hospital Mangaluru.
3. On the complaint filed by the injured-victim Smt.Harinakshi the Police registered the case in Crime No.31/2011. After completion of the investigation, the Police have submitted the charge sheet against the accused for the offences punishable under Sections 447, 323, 324 and 307 read with Section 34 of IPC, which was registered as C.C.No.1491/2011.
4. After committal of the case to the Sessions Court and appearance of the accused, the charges were framed. Since the accused denied the charges leveled against them, the trial was held. The prosecution has examined, in all, 14 witnesses as P.Ws.1 to 14 and the documents are marked as Exs.P-1 to P-15. In the cross-examination of P.W.8, Exs.D-1 and D-2 are marked. The material objects are marked as M.Os.1 to 5. 7
5. On appreciation of the oral and documentary evidence placed on record, the trial Court has held that the prosecution has failed to prove the charges and has acquitted accused Nos.1 to 4 of the offences alleged against them. Being aggrieved by the judgment of acquittal, both complainant and the State have preferred the appeal.
6. The grounds urged by both the State and the complainant are similar. It is contended that the impugned judgment and order of acquittal is contrary to the evidence on record. The trial Court has failed to consider the evidence of injured victims and eye-witnesses in proper perspective. The trial Court has concentrated mainly on the minor contradictions and has disbelieved the evidence of some of the witnesses on the reason that they are the relatives of the victims. The evidence of the injured-victims and other eye-witnesses clearly establish the guilt of the accused. The lapse on the part of the Investigating Officer cannot be a ground to acquit the accused.
7. Heard the learned counsel for the complainant, learned HCGP for the State and learned amicus-curiae for the accused. Perused the judgment and trial Court records. 8
8. Learned HCGP for the State would contend that the evidence of P.W.1-injured/complainant, P.W.2-another injured victim and eye-witnesses P.Ws.7, 8 and 10, confirms that the accused, who had rivalry against the accused have picked up quarrel with P.W.2 and have assaulted him with an intention to kill him. The evidence of P.Ws.1 and 2 goes to establish that the accused had motive to commit the alleged offences, but their evidence is disbelieved.
9. Per contra, learned amicus curiae submitted that P.W.1 has stated in her evidence regarding political rivalry , but whereas P.W.2 the injured victim has not stated about the same. The evidence of P.W.2 disclose that there was a quarrel in connection with the display of the banner during elections. The same cannot be the basis to hold that the accused had motive to commit the murder or they have attempted to commit the murder.
10. Having heard the submission of learned counsel and perusal of impugned judgment and records, the point that arises for consideration is:
9
Whether the impugned judgment and order of acquittal is justified?
The first contention is regarding motive.
11. In a decision reported in 2019(1) AICLR 432 (S.C.) in the case of Palani .Vs. State of Tamilnadu, it is observed as under:-
"C. Evidence Act, 1872 - Motive - Eye witness
- Where the case of the prosecution is based on the evidence of eye witnesses, the existence or non-existence of motive, sufficiency or insufficiency of motive will not play such a major role as in the case which is based on circumstantial evidence - If the prosecution is able to prove its case or motive, it will be a corroborative piece of evidence; but if the prosecution had not been able to prove its case or motive or the motive suggested is too slender, that will not be a ground to doubt the prosecution case - When other evidence against the accused is clear and cogent as in the present case, absence of motive or insufficiency of motive is of no importance."
10
12. The present case is also based on the evidence of eye-witnesses and two injured victims. Under these circumstances, the existence or non existence of motive or sufficiency or insufficiency of motive or rivalry between them will not play a prominent role as in the case which is based on circumstantial evidence.
Regarding recovery of incriminating articles:
13. We are not unmindful of the object of Section 27 of the Act, the provision may be misused by the dishonest Investigating Officers, in such cases, safeguards are insisted by the Courts for the purpose of ensuring the regularities and correctness of the actions of the Police Officers. Therefore, the facts and circumstances of each case are required to be considered meticulously. The Court should be alive and alert to examine whether the Investigating Officer has reached the spot on the basis of the information disclosed by the accused and as promptly acted in recovery of material objects at the instance of the accused.
14. In the present case the material objects i.e., asbestos sheets and bamboo sticks, and vehicles used by the 11 accused for reaching the spot, two mahazars have been drawn. Ex.P-3 is the spot and seizure mahazar for recovery of M.Os.3 to
5. It is pertinent to note that these objects have not been seized at the spot at the instance of the accused persons. According to the prosecution, P.W.1 / complainant has shown the spot and the Police have collected the blood stained tar on the spot, but P.W.3 the Medical Officer who has treated P.W.2 -injured Lokesh has clearly stated that there were no bleeding injuries and P.W.8, who had taken the victim to the hospital has not at all spoken about the bleeding injuries or blood vomiting at the spot. Thus, it is quite surprising as to how the police collected the blood stained tar at the spot.
15. Another glaring circumstance to disprove the version of the prosecution regarding seizure of blood stained tar at the spot is that none of the weapons viz., asbestos sheets and bamboo sticks, said to have been used by the accused, are blood stained. If at all the injured-victim P.W.2 had sustained the bleeding injuries, in that event the clothes of the said victim would have had blood stains but no efforts have been done by the Police to seize the blood stained clothes of the victim. 12
16. As far as seizure of the vehicles is concerned, both the mahazar witnesses PW-12 & PW-13 have not supported the case of the prosecution. In respect of seizure of other incriminating articles viz., asbestos sheet and bamboo sticks are concerned, PW-11 has stated about mahazar drawn at the spot while collecting the material objects.
Reliability of evidence:
17. It is the duty of the Court to consider the trustworthiness of the evidence on record as the witnesses are the eyes and ears of justice. Thus, we feel it necessary to ascertain whether the evidence of prosecution is filled with any contradictions, improbabilities and variation to come to the conclusion that these witnesses cannot be relied on to convict the accused, thus, we have given cursory glance to the evidence of the prosecution witnesses.
18. According to Prosecution P.W.1 is a injured complainant and also the wife of another victim viz., her husband Lokesh. P.W.1 has filed the complaint alleging that on 04.03.2011 evening at 7.10 p.m. she was in the shop along with 13 her husband and children, at that time, the accused persons came on two motorbikes and asked her husband as to what he has said against them in the temple, for which her husband informed that he has not told anything. At about 9.10 p.m. her husband viz., P.W.2, got the call from mobile No.9480761198 of accused by name Vinay. Thereafter, accused Nos.1 to 4 came near the shop at 9.45 p.m. and picked up quarrel with her husband by saying as to what he has told in the temple against them. The accused No.2 pulled her husband to the road and assaulted him with the cement asbestos sheet on his left hand and right cheek. Accused No.1 assaulted him with the bamboo stick on his head. When P.W.1 tried to block the said blow, she sustained injury to her left hand small finger, her husband had sustained injury to head and left ear. P.W.1 shouted for help, by looking at C.W.4 coming to the spot, all the accused left the spot on their vehicles. Her husband P.W.2 was taken to Government Hospital Sullia from there he was shifted to Venlock Hospital Mangaluru. Thereafter, P.W.1 filed a complaint to the Police as per Ex.P-1. On the next day the Police conducted the mahazar at a place shown by her and seized broken cement asbestos sheet, two bamboo sticks, blood stained tar and sample tar from 14 the spot and the mahazar was drawn as per Ex.P-3. P.W.1 has identified the material objects collected at the spot, which are marked as M.Os.1 to 5.
19. In the cross-examination, P.W.1 has admitted that in Ex.P-3 police have made some corrections and has also admitted that she has not mentioned in her complaint about the blood vomited by her husband. Further, she has stated that the material objects viz., bamboo sheets and cement asbestos sheets were not having blood stains. She has also admitted that there was a political rivalry between her husband and the accused and she has mentioned about the said rivalry in her complaint Ex.P-1. Further, she has stated that her husband P.W.2 had lost in the Grama Panchayat election held in the year 2011.
20. P.W.1 has stated in her evidence that on 04.03.2011 she has not sustained the injury on her index finger and has not taken treatment from the Medical Officer, which is contrary to the contents of Ex.P-7 injury certificate issued by P.W.3-Medical Officer. Even in the complaint-Ex.P-1 she has stated that her 15 left small finger was injured, but the injury shown in Ex.P-7 wound certificate is contrary to her evidence and complaint.
21. P.W.2 is also the injured victim and husband of the complainant. He has stated in his evidence that during Lok- sabha elections he had put up a banner of Congress Party, therefore, the accused persons had told him to remove the said banner. The accused left the place without doing anything. Thereafter, the Gram Panchayat officials removed the said banner. On 04.03.2007 in the evening, the accused Nos.1 to 4 came on two motorbikes and asked as to what he has said in the Temple and left by informing him that they would come back. Later at 9.10 p.m. accused No.1 called from his Mobile No.9480761198 and enquired about his whereabouts. Then at 9.45 p.m., accused Nos.1 to 4 came back and enquired once again as to what P.W.2 has told in the Temple. The accused No.2 pulled him to the road and assaulted him with asbestos cement sheet on his right cheek and left arm. Thereafter accused No.1 assaulted him with bamboo stick on left ear and back portion of head. At that time, his wife and son were present at the spot.
16
22. In the cross examination, he has admitted that the panchayath officials had removed the banner, but he doesn't know whether accused No.1 had given complaint to remove the said banner during elections. He has further stated that he had lost in Grama Panchayath election. But, there was no enmity between him and the accused persons. Since he had saved the mobile number of the accused No.1, he came to know that it was his call. He doesn't know who has given the information to the Medical Officer regarding the assault done with clubs and kathi (sickle). The incident has taken place within five minutes duration.
23. PW7 is the son of PW1 and PW2 and eye witness to the incident of assault. This witness has given similar version as that of PW2 and has stated about accused coming to the spot at 9.45 p.m. and assault done by them to his father. Further, he has stated that the accused left the spot by looking at his uncle and another person coming towards the spot. In the cross- examination, he has stated that, at the time of the incident, the neighbours did not come and he did not notice the colour of the motor bikes of the accused.
17
24. PW8 and 10 are also the eye-witnesses to the incident. These witnesses have given evidence about the assault said to have been done by accused Nos.1 to 4. But on careful scrutiny of their evidence, several contradictions are found. In Ex.P-1 complaint, there is no mention about the presence of P.Ws.8 and 10, even P.W.2 has not stated about their presence. According to P.W.2, his wife and son alone were there at the spot, but P.Ws.8 and 10 have given their evidence as if they were present at the spot at the time of incident. There is no convincing evidence to prove the presence of P.Ws.8 and 9 at the spot. Thus, their evidence do not inspire the confidence to believe the prosecution version regarding the assault done by the accused.
25. P.W.3 is the Medical Officer who has treated the injured victims viz., P.Ws.1 and 2. He has stated in his examination-in-chief by referring to Ex.P-4 wound certificate that P.W.8 gave the history of assault that P.W.2 was assaulted by sickle and stick, but in cross-examination he has stated that the history was given by P.W.2 injured-victim.
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26. During the course of arguments, learned amicus curiae would contend that there are glaring discrepancies and variations between the evidence of P.W.1 and the complaint averments. He has pointed out that according to the complainant-P.W.1 the incident has taken place at 9.10 a.m. and the accused No.2 assaulted her husband-P.W.2 with broken cement asbestos sheet, which was found at the spot, but in the oral evidence the complainant has changed her version that the accused No.2 had come to the spot with asbestos sheet. In Ex.P- 1 complaint she has stated that on account of the bleeding injuries the blood had fallen on the spot, but according to P.W.3 the Doctor, who has treated P.W.2, has categorically stated that there were no bleeding injuries on the body of P.W.2-victim. P.W.1 has spoken about the political rivalry between her husband and accused persons, but P.W.2 has denied about the political rivalry between them. P.W.8 has admitted in his cross- examination that he has not given statement before the Police that he along with P.W.10 Manthero treated P.W.2-Lokesh and P.W.1-Harinakshi as per Exhibit-D2. Further he has stated that he did not inform either P.W.1-complainant or the police about anything, but P.W.1 has stated in her evidence that P.W.8 19 informed about the blood vomited by P.W.2. In view of these glaring discrepancies, their evidence is not reliable to prove prosecution version.
27. As pointed out by the learned Amicus Curiae, there are several variations, contradictions and discrepancies in the evidence of injured victims and eye witnesses. But, it is pertinent to note that the defence counsel has suggested the PW1 and PW2, the injured victims that the accused had filed a complaint against these injured victims to the same Police Station and it was registered as P.S. Crime No.31/2011. During the cross-examination, the defence counsel has suggested that the injured victim himself has assaulted the accused persons and has filed a false criminal case against them. It was also suggested that said witness -PW2 has sustained injuries by falling from the motor cycle. These suggestions made during the cross-examination regarding filing of the criminal complaint by accused No.3 and another suggestion that assault was done by the injured victim to the accused, clearly indicate the presence of the accused at the spot.
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28. The learned HCGP, in order to prove the presence of the accused at the spot, has tried to bring it to our notice that accused No.3 has lodged a complaint against P.W.2 and his wife P.W.1-Complainant in Crime No.31/2011 regarding the very same incident and on conducting investigation the Police have submitted the B summary report. The filing of the complaint by accused No.3 clearly indicate that on the date of the incident all accused have gone to the shop of P.W.2 and have assaulted both P.Ws.1 and 2. Thus, the defence taken up by the accused that the P.W.2 sustained the injuries in a motor vehicle accident and has tried to falsely implicate these accused does not hold good.
29. As against the said contention, the learned amicus curiae submitted that the complaint is filed by accused No.3 alone. Under these circumstances, no inference can be drawn that all accused had gone to the spot and have assaulted P.W.1 and 2 with an intention to commit the murder. The evidence of P.W.1, 2 and other witnesses clearly goes to show that there was a political rivalry. When the prosecution has failed to place the convincing evidence on record, mere filing of the complaint 21 by accused No.3 cannot be the ground to make a presumption that the accused have committed the alleged offences.
30. In the present case, even though there are some doubtful circumstances, variations, improvements and contradictions pointed out by the learned Amicus Curiae, what is required to be considered is whether on the basis of the said doubtful circumstances alone, the accused persons can be let free, when the accused themselves have admitted their presence at the spot on the date of the incident near the shop of P.W.2.
31. The suggestions in the cross-examination of PW2 and the complaint filed by accused No.3 against PW2 - the injured victim alleging that the injured victim and his family members have assaulted accused Nos.1 to 3 near his shop on the same day and at the same time, clearly indicate the presence of the accused. The evidence placed on record disclose that on the basis of the complaint filed by the accused No.3, P.S. Crime Nos.31/2011 was registered at Sullia Police Station and after investigation, 'B' summary report was submitted to the Court. The said report was not challenged by the complainant - accused No.3. Under these circumstances, it is the duty of the 22 Court to ascertain whether some of the doubtful circumstances pointed out by the Amicus Curiae regarding the defective investigation and trustworthiness of the evidence of the eye witnesses, can be the basis for acquittal of the accused.
32. The minor lapses in the investigation pointed out by the learned Amicus Curiae alone cannot be the ground to disbelieve the prosecution case. In this connection, it is worth to refer to a decision of the Hon'ble Apex Court reported in (2003) 6 SCC between Vishveshwaran and State, represented by SBM, wherein the Hon'ble Apex Court has observed as under:
"Investigation - Defective investigation -Effect of - Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved - The only requirement is of extra caution by courts while evaluating evidence in such cases - Acquittal of accused solely on the ground of defective investigation, held, would not be just and proper."
33. The evidence of proof beyond all reasonable doubt does not mean that there should be a perfect proof. It is the 23 yardstick for the courts to appreciate the materials on record and to come to the conclusion that the charges are proved beyond reasonable doubt or not.
34. In a decision of the Hon'ble Apex Court in the case of Dhanaj Singh Alias Shera and Others Vs. State of Punjab reported in (2004) 3 SCC 654, it is held as under:
"Criminal Procedure Code, 1973 - Ss. 157, 160 to 168 - Investigation - Defective Investigation - Effect of - Non fatal to prosecution where ocular testimony is found credible and cogent - Court has to be circumspect while evaluating the evidence in a case of such type - Thus, accused cannot be acquitted solely on account of defect in investigation - Evidence Act, 1872 - S. 45 - Non-
sending of bloodstained earth for chemical examination and weapons of assault and pellets for ballistic examination - On facts, held, not fatal
- Criminal trial -Infirmities/Lapses;/Omissions - Defective investigation - Effect- Penal Code, 1860
- Ss. 302/34."
35. The principles laid down in the aforesaid cases is that whenever the prosecution places the evidence of interested witnesses, the court has to be cautious in scrutinizing their 24 evidence. In some cases, it will be impossible to find independent persons to come forward and give evidence and in a large number of such cases only partisan witnesses would be natural and probable witnesses. What the law requires is that when the witnesses are interested, the court should approach their evidence with care and caution in order to exclude the possibility of false implication. Once it is found by the court, on an analysis of the evidence of an interested witness that there is no reason to disbelieve him then the mere fact that the witness is interested cannot persuade the court to reject the prosecution case on that ground alone.
36. As could be seen from the evidence of PW1, PW2 & PW7, the accused have come to the shop of PW2 at 9.45 p.m., it is quite possible that at that point of time, the neighbours or other villagers might not have come to the spot at the time of assault despite the efforts made by complainant and her son by shouting for help. No doubt, PW1, PW2 and PW7 are interested witnesses. It is quite impossible for a witness though wholly truthful is liable to be over awed because of the Court's atmosphere. It is also possible that on account of the strained 25 relationship for political reasons, these witnesses might have given the exaggerated version before the Court. Thus, it is very much necessary to separate chaff from grains and to weigh their evidence in order to confirm whether the accused have assaulted the complainant and her husband with an intention to commit the murder.
37. The entire evidence placed on record confirms that on the date of the incident, the accused had gone to the shop of PW2 to seek some clarification about what he had uttered against them in the Temple. At that time, there was a clash between PW1 and PW2 on the one side and the accused Nos.1 to 4 on the other side. Because of the heated discussion and the sudden provocation, members of both groups might have used physical force or have assaulted each other. In the instant case, the medical records pertaining to PW2 have not been produced to show that PW2 had sustained fractures. PW1, the complainant has stated that she has sustained injury to her little finger, but whereas in the Wound Certificate, it is stated that the injury was caused on the index finger. However, the evidence placed on record and circumstances clearly indicate that on the 26 date of the incident, i.e., on 04.03.2011 night between 9.15 to 9.45 p.m., the complainant, her husband - injured victim and the accused have quarreled near the shop of PW2 and there was a clash between them, which has resulted in some injuries. At any rate, there is no convincing or clinching evidence to show that the accused had come to the spot with weapons and with a deliberate intention to commit the murder of PW2.
38. During the course of arguments, the learned Amicus Curiae submitted that, in the event of the Court holding the accused guilty, a lenient view may be taken as the accused being the students had no rivalry or personal grudge against PW2 the victim.
39. On re-appreciation of the entire evidence placed on record, we are of the considered view that on account of strained relationship, there was a clash between complainant's husband and the accused. Due to sudden and grave provocation, the accused have assaulted the complainant - PW1 and victim - PW2, without any intention of committing murder or causing grievous hurt to any person. Thereby, the accused have committed the offence punishable under Section 335 IPC. 27
40. Accordingly, we pass the following:
i. Criminal Appeal No.522/2014 filed by State and Criminal Appeal No.420/2014 filed by complainant are allowed in part;
ii. The accused Nos.1 to 4 are sentenced to pay a fine of Rs.1,000/- (Rupees One Thousand only) each for the offence under Section 335 IPC, in default to pay the fine amount, they shall undergo simple imprisonment for a period of one month.
iii. Out of the fine amount, a sum of Rs.3,000/-
(Rupees Three Thousand only) shall be paid to PW2 - victim.
The Registry is directed to issue intimation to the concerned trial Court and send the records.
We appreciate and place on record the assistance rendered by Sri. N.S.Sampangi Ramaiah, learned Amicus Curiae. The Registry is directed to pay a sum of 28 Rs.10,000/- (Rupees Ten Thousand only) as honorarium for the services rendered by him.
Sd/-
JUDGE Sd/-
JUDGE BSR