Karnataka High Court
Udachappa Fakirappa Kengar vs State By Naregal Ps on 18 June, 2018
Bench: L.Narayana Swamy, B.M.Shyam Prasad
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 18TH DAY OF JUNE, 2018
PRESENT
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
AND
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
CRIMINAL APPEAL NO. 100177/2014
BETWEEN:
1. UDACHAPPA FAKIRAPPA KENGAR,
AGE: 61 YEARS, OCC: COOLIE,
R/O KENGAR ONI, ABBIGERI, TALUK: RON.
2. MALLAPPA UDACHAPPA KENGAR,
AGE: 33 YEARS, OCC: COOLIE,
R/O -DO-.
3. MAILARAPPA FAKKIRAPPA KENGAR,
AGE: 63 YEARS, OCC: COOLIE,
R/O -DO-.
4. PARASAPPA MAILARAPPA KENGAR,
AGE: 33 YEARS, OCC: COOLIE,
R/O -DO-.
5. MALLAPPA MAILARAPPA KENGAR,
AGE: 31 YEARS, OCC: COOLIE,
R/O -DO-.
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6. MALLAPPA GADIGEPPA KENGAR,
AGE: 41 YEARS, OCC: COOLIE,
R/O -DO-.
7. PRAKASH MALLAPPA KENGAR,
AGE: 21 YEARS, OCC: COOLIE,
R/O -DO -.
8. MAHESH MALLAPPA KENGAR,
AGE: 19 YEARS, OCC: COOLIE,
R/O -DO-.
- APPELLANTS
(BY SRI, M.C. BANDI, ADVOCATE FOR A2, A4, A7 &
A8,
SRI S.N. BANAKAR, ADVOCATE FOR A1, A3 & A6)
AND:
STATE BY NAREGAL P.S. REPRESENTED BY
PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
DHARWAD.
- RESPONDENT
(BY SRI. V.M. BANAKAR, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(3) OF CR.P.C.AGAINST THE JUDGMENT
AND ORDER OF CONVICTION AND SENTENCE
RECORDED BY THE ADDL. DIST. & SESSIONS
JUDGE, GADAG IN S.C. NO. 1/2013 DATED
19.07.2014 AND 22.07.2014 & ETC.
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THIS APPEAL COMING ON FOR FINAL HEARING
THIS DAY, L. NARAYANA SWAMY J., DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal is filed by the appellants-accused challenging the judgment of conviction and sentence dated 19.07.2014 passed in S.C. No. 1/2013 on the file of the Addl. District and Sessions Judge, Gadag (for short, 'Sessions Court'). The accused have been found guilty of the offences punishable under Sections 143, 147, 148, 323, 354, 504, 506 and 302 read with Section149 of IPC.
2. The prosecution's case is that a complaint was lodged by P.W.1 alleging that on 21.09.2012, the accused went to her mother, Seethavva's (P.W.5) house alleging that Seethavva had cooped the chicken belonging to first accused with intention of stealing if 4 and when Setthavva responded saying that if their chicken was indeed cooped at her place they can take it, the accused, not being satisfied with such a response, picked up quarrel with Seethavva and abused her in filthy language. The first accused dragged Seethavva by her hair and the complainant's husband and son who were near the house intervened, the second and fourth accused, being enraged, hit the complainant's husband on the head and face with staffs (the other accused assaulted the deceased by hands) resulting in fatal injuries, and when the deceased was taken to the hospital, the Doctors reported that he was "brought dead". The accused also assaulted other persons, who have been examined as witnesses, causing them simple injuries.
3. On the basis of such complaint, a case was registered against the accused in Crime No. 45/2012 for 5 the offences punishable under Sections 506, 504, 143, 147, 148, 149, 323, 326 and 349 of IPC; and after investigation, the Investigating Officer has filed the Charge Sheet alleging that the accused (eight of them) joined in an unlawful assembly with common intention of committing the offences of murder, molesting P.W.5, criminal intimidation and causing injury to the deceased and injured witnesses with the specific allegation that the second accused hit the deceased on his head with a staff and the fourth accused also hit the deceased with another staff on the deceased's face resulting in deceased's death and the other accused, viz., first, third, fifth and eighth accused assaulted the deceased and the injured witnesses with hands.
4. The case was tried in S.C. No.1/2013 on the file of Addl. Dist. & Sessions Judge, Gadag. On framing of charges, the accused persons did not plead guilty and 6 claimed to be tried. The prosecution examined 20 witnesses as P.Ws.1 to 20 of whom P.W.1 is the complainant, P.W.5 is the mother of P.W.1., P.W.6 is the sister of P.W.1, the other witnesses viz. P.W.5 and P.W.7 (and PW1) are examined as injured eye-witnesses to the incident, P.Ws.5, 6, 7, 8, 9, 10 to 13 are examined as independent witnesses; a FSL Officer was examined as P.W.14, Investigating Officer who filed the charge sheet was examined as P.W.15, a Head Constable who registered the case was examined as P.W.16, a Police Constable who carried the FIR to the Magistrate was examined as P.W.17, the Doctor who conducted autopsy was examined as P.W.18, the Doctor who examined the injured witnesses was examined as P.W.19 and the Assistant Engineer who drew the sketch of the scene of occurrence was examined as P.W.20.
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5. The prosecution marked documents as per Exs.P.1 to P.23; complaint was marked as Ex.P.1, spot mahazar was marked as Ex.P.5, Panchanama for the dead body was marked as Ex.P.6, FSL report was marked as Ex.P.8, Postmortem Report was marked as Ex.P.9, Wound Certificate of Seethawwa (P.W.5) was marked as Ex.P.10, Wound Certificate of Hanamawwa was marked as Ex.P.11, Wound Certificates of Yamavva, Mallappa and Manjunath were marked as Exs.P.12, 13 and 14 respectively and sketch prepared by P.W.20 was marked as Ex.P.15. The prosecution marked material objects as per M.Os.1 to 8. On behalf of the defense, a portion of statement of P.W.10 was marked as Ex.D.1.
6. After conclusion of evidence on behalf of the prosecution, statement of accused under Section 313 of Cr.P.C. was recorded. The accused have denied the incriminating materials against them. The learned 8 Sessions Judge has passed the impugned judgment of conviction and sentence on 19.07.2014.
7. The learned counsel for the appellants submitted that the accused are tried and convicted for the offence punishable under Section 149 of IPC in addition to other substantial offences though the basic ingredient to constitute offence under Section 149 of IPC is that there shall be an unlawful assembly with a common object of committing an offence or knowing that there is likelihood of commission of such other offences, which is not established by the prosecution.
8. The learned counsel for the appellant referred to the complaint and submitted that the complaint, as lodged by the complainant-P.W.1. is that there was an altercation between the accused and P.W.5 9 (Seethavva) because the accused alleged that Seethavva had stolen and cooped the chicken, and when she responded that she had not and they could take if their chicken was found, the deceased and his son intervened; and this shows that the accused initially wanted to enquire with P.W.5 about their missing chicken and that they had neither formed an unlawful assembly to attack the deceased nor there was any object to commit the offence. The learned counsel argued that when the complaint itself establishes that the accused had not come to Seethavva's house in an unlawful assembly with an intention to commit any offence, the question of accused committing offence under Section 149 of IPC does not arise.
9. The learned counsel also urged that the complainant, who is examined as PW1, has deposed 10 that at 7 p.m. when she was at home along with her family, the accused came there and enquired about the hen, and that when the accused started assaulting P.W.5, the deceased and son of P.W.5, namely, Manjunath, came to help P.W.5 and at that time, the incident occurred. The Counsel argued that if the evidence of P.W.1 and contents of Ex.P.1 are analyzed, they run together and it is established that the accused did not come to the house of P.W.5 in an unlawful assembly with any object or knowledge of committing any offence. This clearly indicates the absence of ingredients of Section 149 of IPC and the prosecution has falsely registered the case under Section 149 of IPC against the accused. Hence, the ingredients of offence under Section149 of IPC are not made out and it is a case for acquittal.
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10. It is also argued by the learned counsel that P.W.5, who is also one of the persons who allegedly suffered minor injuries and is the mother-in-law of the deceased and mother of P.W.1., has also spoken about the reason for unfortunate occurrence which is a reiteration of evidence of P.W.1. This witness P.W.5 has stated in her chief-examination that she also rears chicken and on the date of incident at 7 p.m. the accused came to her house alleging that she had stolen their hen, and thereafter, when there was charged atmosphere and altercation, witness has stated that the deceased and his son Manjunath, interfered, that is when the accused assaulted the deceased and his son, Manjunath and that second and fourth accused used staffs to assault the deceased with the second accused assaulting the deceased on the head, the fourth accused assaulting the deceased on the face and the other accused assaulted the deceased with their hands. The 12 other witnesses, viz. P.W.6-Hanamawwa, P.W.7- Yamanappa and P.W.9 -Manjunath and P.W.10- Mallappa Dwasal, who have suffered injuries, have also spoken in similar lines corroborating the evidence of P.W.1 and P.W.5.
11. The learned counsel for the appellants, thus reading the evidence of the witnesses examined as injured eye witnesses and independent eye witnesses, submitted that the witnesses do not support case of the prosecution for the offences under Sections 147, 148 and 149 of IPC. The learned Counsel also emphasized that if the prosecution case for offences punishable under Sections 147, 148 and 149 of IPC is not established, all the accused could not have been convicted for the other substantial offences. 13
12. The learned counsel pointed out that the Sessions Court has also discussed the evidence in similar lines that there was an altercation between the accused and P.W.5 and when the accused started assaulting P.W.5, the deceased and Manjunath interfered, and the accused, who were dragging Seethavva by her hair, let go off Seethavva and assaulted the deceased. Even P.Ws.10, 11, 12, 13, who are examined as independent witnesses and who supported the case of the prosecution, have also deposed that it is the second and fourth accused who assaulted the deceased with staffs and the other accused assaulted the deceased by hand. Therefore, even according to the prosecution there was no evidence of preparation or motive and witnesses have stated it was only the second and fourth accused who assaulted the deceased with staff/s on his head and face resulting 14 in grievous injuries to the deceased, and finally, the deceased died.
13. The learned counsel also took support of the evidence of the Doctor, who is examined as P.W.18, and also Ex.P.9 - P.M. Report, which discloses that the deceased suffered two injuries, one on the head resulting in hemorrhage in the brain and the other on the face and that there were no other visible injuries on the body. When there are no injuries on the body of the deceased, it goes to prove that the other accused did not cause any injury to the deceased. The learned counsel submitted that the aforementioned evidence established that the prosecution has falsely involved these accused Nos.1, 3 and 5 to 8, and hence, they are entitled to be acquitted.
14. As regards second and fourth accused, the learned counsel for the appellants submitted that they, 15 even if the entire case of the prosecution is accepted, would only be liable for punishment under part-II of Section 304 of IPC, and to substantiate the same, the learned counsel submitted that there was no premeditation in these accused to commit murder of the deceased as they had accosted Seethavva (PW5) about allegedly stolen chicken and that was neither with intention nor preparation to commit offence of murder or any other offence. In fact, the accused visited the house of P.W.5 to enquire about the chicken which they believed were stolen and the deceased had nothing to do with quarrel between PW5 and accused No.1 about a missing (or stolen) chicken. Even the prosecution witnesses have stated that when there was some altercation between the accused and P.W.5, the deceased along with Manjunath, intervened and the deceased suffered fatal injuries. On the basis of this evidence and circumstances, the learned counsel 16 submitted, shows that, the accused had not come prepared to assault the deceased and there was no intention to commit murder; and therefore the prosecution's case, at the best, may lead to offence under part II of Section 304 of IPC, against 2nd and 4th accused.
15. In support of this case, the learned counsel for the appellants relied upon the decision of the Hon'ble Supreme Court reported in 2011 SAR (Criminal) 550 [Buddhu Singh V. State of Jharkhand] and referred paragraph No.9. He also relied upon the judgment of this Court in Criminal Appeal No. 100208/2014 [Hanamantappa and Somanna Vs. The State), wherein this Court reduced the punishment from Sec. 302 of IPC to Sec. 304 Part II IPC. The dispute in Hanamantappa's case stated supra was with regard to a land and in the present case 17 the dispute is with regard to a missing chicken; and in both the cases the prosecutions is not able to establish preparation or motive, and therefore, the present case stands on the very same footing and the punishment has to be reduced by invoking Sec.304-II of IPC.
16. It is further submitted that the second and fourth accused are undergoing/serving sentence for the last five years and nine months and the other accused i.e., the first, third accused and fifth to eighth accused have served sentence for more than two years and now they are on bail granted by this Court.
17. On the other hand, the learned Addl. SPP appearing for the respondent-State argued for dismissal of the appeal. He argued that the prosecution witnesses
- P.W.1 (complainant and an injured eyewitness), P.Ws.1, 5 and 17 (injured witnesses) and P.Ws.9, 10, 11 18 and 13 (independent witnesses) have not only supported the prosecution case but also have corroborated to each other. The learned Addl. SPP submitted that the Sessions Court has relied upon the evidence of P.W.1- complainant and evidence of other prosecution witnesses, namely, injured witnesses, P.Ws.1, 5, 7 and 9, and their evidence is that these accused formed an unlawful assembly with common object and committed offence of murder using staff/s resulting in death of Parasappa (the deceased) when he tried to pacify the dispute. Hence, these overt acts attract Sec.149 of IPC as well as Section 302 of IPC.
18. The learned Addl. SPP submitted that the witnesses have deposed that the second and fourth accused used staffs: the second accused hit the deceased on the head and the fourth accused hit the deceased on the face, and that the Doctor, who treated 19 the deceased initially and also conducted the postmortem, has also spoken about the injury to the deceased on the head resulting in hemorrhage. This evidence establishes that the second and fourth accused assaulted the deceased on the vital part of the body with staffs, and these circumstances establish, the second and fourth accused have committed the offences with a motive and they knew very well that if the deceased was hit on the vital part of the body using the staffs, the deceased would die, and therefore, conduct of these accused amount to offence under Section 300 of IPC which is punishable under Section 302 of IPC with imprisonment for life and also liable for fine.
19. In response to the submission by the learned counsel for the appellants for punishment under part II of Sec. 304 of IPC, the learned Addl. SPP submitted that by no stretch of imagination, because of the evidence on 20 record as regards the accused conduct, the punishment under Section 304-II would be justified. Hence, the learned counsel requested for dismissal of the appeal.
20. We have thus heard the learned counsel of both sides and also perused the evidence and materials on record, and the following point arises for consideration of this Court:
Whether the appellants have made out a case to hold that the prosecution has failed to establish the case against the accused for punishment under Sections 143, 147, 148 and 149 of IPC and whether the punishment of the accused should be brought down to punishment under Sec. 304 - Part II of IPC from Section 302 of IPC, and consequently should the conviction and sentence by the Sessions Court be modified?21
21. The answer to the above points is in the affirmative for the following reasons.
22. The Complainant lost her husband on the ill-fated day on 21.09.2012 when she was with her husband along with her son Manjunath. The complainant has stated that P.W.1 is her mother, she has also stated that the accused alleged that her mother (P.W.5) had cooped the first accused chicken with intention to steal, and when in response P.W.5 replied that she had not hidden the chicken and further told the accused that if they find their chicken at her home they could take it, the first accused assaulted P.W.5 by pulling her hair, and it is then the deceased and his son Manjunath came to rescue P.W.5. This narration is so even as per Ex.P.1, the complaint and until the first accused pulled PW5 by her hair, the deceased and his son Manjunath were not involved, and there is no 22 evidence on any previous enmity between the accused and the deceased. This shows that the deceased intervened to rescue P.W.5. These materials do not indicate that the accused formed an unlawful assembly in front of the house of P.W.5 either to injure or cause the murder of the deceased or that they armed to commit any offence. It is not even the case of the prosecution that these accused came with weapons to assault either the complainant or the deceased. This shows that there was no unlawful assembly with the common object to commit offence against the deceased.
23. The provisions of Sec. 147, 148 & 149 of IPC read as follows:
"147. Punishment for rioting.--Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.23
148. Rioting, armed with deadly weapon.--Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.--If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of committing of that offence, is a member of the same assembly, is guilty of that offence".24
24. It is obvious from reading of Sec. 149 of IPC that it can be invoked only in cases where offences are committed by a person of an unlawful assembly with common object of committing offences or when the members of such unlawful assembly knew that an offence would be committed. Unless such ingredients are made out, there cannot be an offence under Section149 of IPC.
25. The prosecution witnesses, including the P.Ws.1, 6, 7, 8, 9, who are examined as injured eye witnesses, P.Ws.10 to 13, who are examined as independent witnesses, have nowhere stated that the accused assembled with an object of assaulting the deceased or that the first and second accused, as part of an unlawful assembly which had knowledge of commission of offence, assaulted the deceased. 25
26. In fact, the widow of the deceased herself (PW1) has deposed that the deceased (and her son) interfered when there was an altercation between the first accused and her mother (PW 5) and the deceased was assaulted when the deceased intervened to help her with his son, Manjunath. This shows that prosecution has not placed any material to establish the ingredients for convicting the accused under Sec.149 of IPC or under Section 302 IPC.
27. The prosecution case is that the first, third, and fifth to eighth accused assaulted the deceased by hand and caused minor injuries to the deceased and injured witnesses. The Doctor who conducted the post mortem has stated that there was no visible injuries on the deceased except injury on the head and face, and the Doctor, who treated the injured witnesses and 26 issued wound certificate, has stated that these injured suffered simple injuries. If this is the case made out, these accused are liable to be punished under Section 323 of IPC, but they have suffered imprisonment under Section 149 of IPC, and since ingredients of Sec. 149 of IPC are not established, the accused, other than second and fourth accused, have to be punished for the offences which are individually established against them.
28. The prosecution case against the second and fourth accused is that it is established beyond reasonable doubt, that they assaulted the deceased on his head and face, vital parts of the body, and this would suffice to attract punishment under Section 302 of IPC. Hence, no discretion is left with this Court to reduce the punishment to the one under Section 304-II 27 of IPC. Hence, the accused ought to suffer either imprisonment for life or with death sentence, and the Sessions Court has sentenced them to undergo imprisonment for life.
29. In this regard, we have given our serious thought to the submissions with reference to the records. P.W.2 and P.W.3 are the panchas to Ex.P.5 panchanama under which M.O Nos. 2 and 3 viz., babul tree staffs measuring 4 ft. and 3 ft. 8 inch were seized. These were used by the second and fourth accused as spoken to by the different witnesses, to cause injuries to the deceased on the skull and the face. The Post Mortem Report discloses that the deceased suffered head injuries and another injury on the toe and that there were no other injuries on the body of the deceased. Thus, there is evidence to conclude that the 28 second and fourth accused assaulted the deceased on the head and face.
30. Therefore, the next question is whether the second and fourth accused assaulted the deceased with criminal intention of committing his murder. For that, once again we have to go back to the complaint - Ex.P.1, evidence of P.W.1 and the evidence of P.Ws.5, 6, 7, 8 and 9 and 10 to 13, injured/independent witnesses and the medical evidence. The Doctor who conducted Postmortem as per Ex.P.9 discloses that death is due to head injury, and the evidence by the aforementioned witnesses also establish that such injury was inflicted by the second and fourth accused by using staff.
31. Insofar as the intention of the second and fourth accused, the same is considered in the context of the prosecution case that the reason for quarrel was the 29 suspicion by the accused that PW5 had stolen the chicken, and it is not the case of the prosecution that these accused came to the scene with any preparation to commit the offences. As per the complainant herself, when altercation was going on between the accused and P.W.5, the deceased entered the scene. In view of the above, we can safely hold that the accused did not come with any intention to commit murder of the deceased. Therefore, the ingredients to establish offence under Section 300 of IPC punishable under Section 302 of IPC are not made out even against the second and fourth accused. This Court in similar circumstances in Criminal Appeal No. 100208/2014 [Hanamantappa and Somanna Vs. The State) has held as under:
20. Though the evidence on record suggests that there was animosity and hostility between the accused and the deceased on account of the property dispute, it is an established fact that the deceased 30 had sustained only one injury. Though, the said injury was inflicted on the vital part of the body, yet, the weapon used was not specially dangerous. None of the accused were armed with any sharp edged or deadly weapon. Even though PW.1 and PW.6 have stated that all the accused persons assaulted the deceased all over the body, the medical evidence goes to show that no external or internal injuries were suffered by the deceased except the fracture of the skull on account of the assault on the head. The evidence on record further indicates that when the deceased fell down on the ground, all the accused went away from the spot throwing the clubs at the spot. All these circumstances indicate that the accused did not intend to cause the death of the deceased.
But the said injury having been inflicted on the vital part of the body leading to the death of the deceased, the accused could be imputed with the knowledge that they intended to cause the said injury which was 31 sufficient to cause the death in the ordinary course of nature, thus, bringing the case within clause, thirdly of Section 300 of IPC attracting punishment under Part 2 of Section 304 of IPC. To this extent, the impugned judgment calls for modification."
32. The Hon'ble Supreme Court reported in 2011 SAR (Criminal) 550 has held as under:
"9. Considering the overall material, we are of the view that there is hardly anything on record which can be said against the accused Ledwa Singh and Balchand Singh though the common intention on their part could be attributed since they had done the overt act of grappling with and pinning down the deceased. Now, seeing his father and brother had been grappling with the deceased, the accused Buddhu Singh dealt an axe blow which could not be said to be intended towards the head. It could have landed anywhere.
However, it landed on the head of the 32 deceased. Therefore, the element of intention is ruled out. Again the defence raised on behalf of the accused that there could not have been the intention to commit the murder of the deceased is justified by the fact that the accused Buddhu Singh did not repeat the assault. Under the circumstances, we feel that the prosecution has been able to establish the guilt of the accused persons under Section 304 Part II IPC.
10. Accused Buddhu Singh is stated to be in jail for the last five years whereas other accused persons namely, Ledwa Singh and Balchand Singh are stated to be in jail for the last ten years. They be released from the jail forthwith unless they are required in any other case"
---
33. It is already concluded that the prosecution has failed to prove the ingredients of Sec.149 of IPC, and the aid thereof cannot be taken. Then it is 33 indisputable that each of the accused will have to be convicted for their individual culpable acts.
34. As discussed above, even according to the evidence on record, the accused never intended to quarrel with the deceased and their quarrel was only with P.W.5 because they suspected that she had cooped the first accused chicken, and when the deceased and his son intervened, in that spur of moment the second and fourth accused assaulted the deceased with staff. Though, no intention to commit murder is established, but in view of the injury being caused by the second and fourth accused to the vital part of the body of the deceased, these accused have to be held guilty of culpable homicide not amounting to murder punishable under part-II of Sec. 304 of IPC. As such, the second and fourth accused are held guilty of offences punishable under Part II of Sec. 304 of IPC. 34 Accordingly, their conviction by the trial Court is modified.
35. The punishment under Part-II of Sec. 304 of IPC can extend to a maximum period of 10 years or fine or both. The second and fourth accused have been in custody for over five years nine months, and in the given facts and circumstances of the case, these accused are sentenced to undergo imprisonment for a period of five years nine months and it is held that they are entitled for set off of this period of custody in terms of Sec. 428 of Cr.P.C.
36. According to the evidence of P.Ws.5, 6, 7, 8 and P.W.1, it is only the accused No. 1 who dragged P.W.5 by a hair, and this was when the first accused went to her house to enquire with the accused about why she had cooped his hen. The accused cannot be, as already noted, said to have constituted unlawful 35 assembly with the common object of committing any offence, and the overt act of pulling P.W.5 by her hair is only against the first accused, and this has been consistently stated by each of the aforesaid witnesses. Therefore, the first accused is guilty of the offence punishable under Section 354 of IPC.
37. The punishment for the offence punishable under Section 354 of IPC may extend to one year or fine, or both, and the first accused is sentenced to undergo simple imprisonment of one year and sentences to run concurrently. Under Section 428 of Cr.P.C, the first accused is entitled to set off for the period of custody.
38. The Sessions Court has convicted each of the said first, third and fifth to sixth accused under Sections 504 and 506 of IPC for criminal intimidation and provoking and insulting knowing such insult and provocation would result in commission of other 36 offences, and as such, conviction of these accused for the offences punishable under Sections 504 and 506 of IPC is justified. Each of the first, third and fifth to eighth accused have been in custody for over two years and three months until they were discharged from jail in this proceedings, and as already noted, the second and fourth accused have been in custody of about five years and nine years.
39. The punishment for the offence punishable under Section 323 of IPC may extend to one year or fine upto Rs.1,000/-, or both, while the offence punishable under Sections 504 and 506 of IPC may extend upto two years or with fine or with both. However, in the given circumstances that resulted in altercation and the commission of offence, the accused are held guilty under Sections 323, 504 and 506 of IPC and they are sentenced to undergo imprisonment of two years for 37 each of the offences running concurrently and even insofar as the second to fourth accused such sentences to run concurrently with the sentence under Section 304 Part II of IPC and that the accused shall be entitled for set off for the period of custody undergone by them as contemplated under Section 428 of Cr.P.C.
40. In view of the aforesaid discussion, we pass the following:
ORDER Appeal is allowed in part. The judgment of conviction passed by the learned Addl. Dist. & Sessions Judge, Gadag, in S.C. No. 1/2013 dated 19.07.2014 is modified to the following extent.
(i) Appellants-accused Nos.1 to 8 are acquitted for the offences punishable under Sections 143, 147 and 148 of IPC.38 (ii) The appellants-accused Nos.1 to 8
are convicted for the offences punishable under Sections 323, 504 and 506 of IPC and sentenced to undergo simple imprisonment for a term of one year, the appellant-accused No.1 is convicted for the offence punishable under Section 354 of IPC and sentenced to simple imprisonment for a term of one year, and appellants-second and fourth accused are convicted for the offence punishable under Section 304 part II of IPC and sentenced to undergo simple imprisonment of five years and nine months.
(iii) The appellants-accused Nos.1, 3 and 5 to 8, who have been in custody for over 2 years and 9 months; and the accused Nos.2 and 4, who are in custody for over 5 years and 9 months, are sentenced for these term which sentences shall run concurrently and are allowed set off as contemplated under Section 428 of Cr.P.C. including for the period of default imprisonment.
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Registry of this Court is directed to communicate forthwith this order to the concerned jail authorities to release the appellants-accused Nos.2 and 4, namely, Mallappa Udachappa Kengar and Parasappa Mailarappa Kengar, if they are not required in any other case.
The bail bonds executed by the appellants- accused Nos.1, 3 and 5 to 8 are canceled.
Sd/-
JUDGE Sd/-
JUDGE bvv