Karnataka High Court
Sri. Santosh S/O Mahadevi Hiragannawar vs The State Of Karnataka on 31 August, 2020
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 31ST DAY OF AUGUST 2020
BEFORE
THE HON'BLE MRS.JUSTICE M.G.UMA
CRL.APPEAL NO.2716/2011
BETWEEN:
1. SHRI. SANTOSH S/O. MAHADEVI
HIRAGANNAWAR,
AGE: 25 YEARRS, OCC: DRIVER,
R/O: AADIJAMBAV NAGAR,
GOKAK, DIST: BELGAUM.
2. SHRI. LAKKAPPA S/O. YASHWANT KALLIMANI,
AGED: 28 YEARS, OCC: COOLIE,
R/O: AADIJAMBAV NAGAR,
GOKAK, DIST: BELGAUM.
....APPELLANTS
(BY SRI.M.J.PEERJADE, ADV.)
AND:
THE STATE OF KARNATAKA,
THROUGH P.S.I. GOKAK TOWN POLICE STATION,
REPRESENTED BY SPP, DHARWAD.
... RESPONDENT
(By SRI. VINAYAK KULKARNI, AGA)
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THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) Cr.P.C. SEEKING TO SET ASIDE TE
JUDGMENT OF CONVICTION AND SENTENCE PASSED
BY THE FAST TRACT COURT AND ADDITIONAL
SESSIONS JUDGE, HUKKERI SITTING AT GOKAK IN
S.C.NO.61/2010 ON 20.01.2011 AND ACQUITTED OF
THE CHARGES UNDER SECTIONS 307, 384 AND 342
READ WITH SECTION 34 OF IPC.
RESERVED FOR JUDGMENT ON: 25.08.2020.
JUDGMENT PRONOUNCED ON : 31.08.2020.
THIS APPEAL HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY,
THE COURT PASSED THE FOLLOWING:
JUDGMENT
Appellants/accused Nos.1 and 2 have preferred this appeal aggrieved by the impugned judgment of conviction and order of sentence dated 20.01.2011 passed in S.C.No.61/2010 by the learned Presiding Officer, Fast Track Court and Additional Sessions Judge, Hukkeri (for short referred to as the 'trial Court'), convicting them for the offences punishable 3 under Sections 307, 384 and 342 read with Section 34 of IPC and sentencing them to undergo imprisonment and also to pay fine with default sentence.
2. Heard the learned counsel Sri.M.J.Peerjade for the appellants/accused and the learned AGA Sri.Vinayak Kulkarni for respondent-State.
3. The brief facts of the case of the prosecution are that, accused Nos.1 and 2 along with deceased-accused No.3 with a common intention to commit the offence, called the complainant-PW1 over phone on 19.09.2009 at 5.00 pm, asking to come to room No.25 of Hatapaki Chawl to discuss about taking the JCB on rental basis. When the complainant reached the spot, accused Nos.1 and 2 and the decease- accused No.3 took him to room No.25 of the Chawl and wrongfully restrained him by tying his legs and hands with chains and bolting the room from inside. Further these accused have demanded 4 Rs.60,00,000/- as ransom and robed cash of Rs.35,000/-, which was with the complainant. In the attempt to commit wrongful restraint and extortion, the accused have assaulted the complainant with a stick and a knife and caused the injuries and thereby attempted to commit his murder. Therefore it is said that appellants/accused Nos.1 and 2 along with the deceased-accused No.3 committed the offences punishable under Sections 307, 384 and 342 read with section 34 of IPC.
4. In order to prove its contention, the prosecution examined 10 witnesses, got marked 22 documents and identified 5 material objects. Accused have denied all the incriminating materials available on record in their statements recorded under Section 313 of Cr.P.C. but they have not chosen to lead any evidence in support of their defence.
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5. The trial Court after taking into consideration all the materials on record, came to the conclusion that the prosecution is successful in proving the guilt of the accused for the aforesaid offences and convicted them as stated above.
6. Aggrieved by the said judgment of conviction and order of sentence passed by the trial Court, accused Nos.1 and 2 have preferred this appeal on various grounds.
7. Learned counsel for the appellants submitted that the impugned judgment of conviction and order of sentence passed by the trial Court is illegal, perverse and the same is liable to be set aside. He submitted that even though there are no clinching materials placed before the Court to constitute the offences alleged against these appellants, the trial Court proceeded to convict them without any basis. 6
8. Learned counsel submitted that it is the specific contention of the prosecution that the accused have extorted Rs.35,000/- which was with him. Rs.35,000/- during 2009, when the incident had taken place, was quite a huge amount and the prosecution has not explained as to how the complainant was in possession of such huge amount with him. In this regard, the contention of the prosecution is not acceptable. He also contended that admittedly the said amount of Rs.35,000/- was never recovered from the appellants and there is no investigation in this regard. Therefore the contention of the prosecution that the accused have committed extortion by robbing Rs.35,000/- or by demanding Rs.60,00,000/- from the complainant, is without any basis. He further contended that to constitute an offence of extortion, there must be an intention to put the person in fear of any injury and there must be dishonest intention to 7 induce such person to put him in fear to take away the property or valuable security. In the present case, the prosecution has not made out that there was any dishonest intention on the part of the appellants at the time of alleged offence. To constitute dishonesty, there must be an intention of causing wrongful gain to one person or wrongful loss to another person as the word 'dishonesty' is defined under Section 24 of IPC.
9. Learned counsel submitted that if the allegations made against the accused are taken into consideration, the main allegation is against accused No.3 and not against these appellants. Accused No.3 is already dead during investigation and therefore commission of the offence cannot be attributed to these appellants. Learned counsel further submitted that when the prosecution has not proved the commission of the offence under Section 384 of IPC, the allegation made against these appellants for 8 commission of the offence of wrongful confinement of the complainant, is also not proved. The evidence lead by the prosecution with regard to wrongful confinement of the complainant cannot be believed and no independent witnesses are examined to prove the same. As per the case made out by the prosecution, the incident had taken place in the middle of the town, where several persons used to be their. Under such circumstances, it cannot be believed that the complainant was subjected to wrongful confinement and there was extortion by the accused.
10. Learned counsel further submitted that even though the prosecution contended that the accused have attempted on his life, the said contention is also not supported by any materials. Admittedly, the complainant had not sustained any fatal injuries. Ex.P6-the wound certificate discloses that the complainant had sustained only simple 9 injuries. It is alleged that the accused have used a stick to commit the offence. Under such circumstances, no intention or knowledge can be attributed to the appellants and the injuries are not sufficient to cause his death and under such circumstances, Section 307 of IPC cannot be attracted. It is pertinent to note that the so called injuries mentioned in Ex.P6, are not on the vital part of the body and therefore it cannot be concluded that accused were having any intention to cause his death.
11. Learned counsel submitted that the so called voluntary statement or the confession statements as per Exs.P8 and 9 are also not proved. Ex.P9 even do not bear the date on which it was recorded. There was inordinate delay in recording the so called confession statements, which led to the recovery of chain and the knife. It is not the recovery at the instance of accused Nos.1 and 2, as required 10 under Section 27 of the Evidence Act. Therefore, these weapons said to have been seized under Ex.P5, cannot be linked to these accused.
12. It is submitted that the version of PW7, who is the witness to mahazar-Ex.P5, cannot be believed even for a moment. This witness is not the resident of the locality, where the mahazar was drawn. The investigating officer has not made any attempt to secure the presence of a localite, to witness the recovery and so also the mahazar. PW7 states that he was the resident of Tigadi village and had come to Gokak, which was 22 kms away. This version of PW7 creates serious doubt about his credibility. PW7 stated that he waited for the police for about 2 hours at the spot which also make his evidence suspicious and he cannot be termed as an independent pancha for the recovery and the mahazar.
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13. Learned counsel further stated that recovery of the stick and the handkerchief from the scene of offence under the mahazar-Ex.P4, also cannot be linked to this accused. When the prosecution is not successful in connecting the accused to the alleged offence, its version cannot be believed. The burden is on the prosecution to prove the guilt of the accused beyond reasonable doubt. But in the present case, except the interested testimony of PW1, there is absolutely no material against the accused for having committed the offence.
14. PW3 examined by the prosecution is the relative of the complainant and he is an interested witness. PW4 is the owner of the building. He has not supported the case of the prosecution. The version of PWs6 and 7 is not helpful to the case of the prosecution. PW5 is the son of the complainant and he deposes about the hearsay evidence. Evidence of 12 PW10 is also not helpful to the case of the prosecution. Under such circumstances, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. But the trial Court proceeded to convict the accused without any basis. Hence, he prays for allowing the appeal by setting aside the impugned judgment of conviction and order of sentence and acquitting the accused in the interest of justice.
15. Per contra the learned AGA Sri.Vinayak Kulkarni supporting the impugned judgment of conviction and order of sentence submitted that the complainant is examined as PW1. He fully supported the case of the prosecution.
16. Learned AGA submitted that PW3 is the owner of the building who released the complainant from the chains. He partly supported the case of the prosecution and his version is not shaken during cross 13 examination. PW6 being the spot mahazar pancha and PW7 being the mahazar witness to recovery mahazar- Ex.P5, have fully supported the case of the prosecution, thereby seizing of MOs.2 to 5, is proved. The wound certificate is per Ex.P6, wherein it is stated that the complainant-PW1, sustained multiple injuries which corresponds to the weapons seized in the case.
17. Learned AGA further submitted that, PW8 is the doctor who deposed in support of the injuries sustained by the informant. PW10 is the Tahasildar who conducted test identification parade to identify accused Nos.1 and 2 by the complainant. His version is also not shaken during cross examination. Therefore it is clear that there is no mistake in the identification of accused Nos.1 and 2. The materials on record clearly proves the commission of the offence by these accused along with the deceased-accused No.3. 14
18. Learned AGA further submitted that the incident in question had occurred on 19.09.2009. Accused No.3 had committed suicide on 07.10.2009 and the UDR complaint was registered as per Ex.P10. Under such circumstances, the extorted amount of Rs.35,000/- which was held by accused No.3, could not be recovered. But non recovery of this amount will not falsify the contention taken by the prosecution. Nothing has been elicited from PW1 to disbelieve his version. Under such circumstances, the prosecution was successful in proving the guilt of the accused beyond reasonable doubt. The trial Court rightly formed an opinion that the accused are liable to be convicted for the above said offences. No grounds are made out to interfere with the impugned judgment of conviction and order of sentence. Hence he prays for dismissal of the appeal as devoid of merits. 15
19. I have perused the materials on record including the trial Court records.
20. In support of the case of the prosecution, it has examined PW1, who lodged first information as per Ex.P1. Ex.P1 which was lodged on 20.09.2009 at 12.30 noon, the informant stated that he owned a JCB and he is a contractor by profession. Accused No.3- Raju used to take the JCB on rental basis. On 19.09.2009, accused No.3 called the informant over phone and stated that he wanted to take the JCB on rent and called the informant to come near Corporation Bank. Accordingly, the informant came near Corporation Bank and found accused No.3 standing near Hatapaki Chawl and asked the informant to come to the room in the first floor of the Chawl, to discuss about the terms of taking the JCB on lease. Both of them went to the room in the first floor of the building. Two other persons have come 16 following them and bolted the room from inside. All the accused together chained his legs and hands and demanded for Rs.60,00,000/- and threatened that already 12 other persons are near his house and he will take away the lives of his family members. The informant afraid of these accused, handed over Rs.35,000/-, which was with him. In the meantime, the miscreants have assaulted the informant and caused hurt. They let the informant in chains till the next day morning i.e.20.09.2009 upto 8.00 am. At that time, the owner of the room came and talked with the accused and insisted to release the informant. Thereafter the informant was released. The informant ran towards the bus stand and informed the fact to his family members. The informant also stated that two other persons who were accompanying accused No.3 in commission of the offence were aged 25 to 26 years and he can identify them. It is stated 17 that all the three accused were attempted on his life to cause his death and therefore, he requested the police to register the case.
21. The informant was examined as PW1 and the witness reiterated the facts stated in the first information-Ex.P1. He identified accused Nos.1 and 2 as the assailants, who accompanied accused No.3 in commission of the offence. He also stated that in the test identification parade held by the Tahasildar, he could identify accused Nos.1 and 2. During cross examination, witness stated that he could not raise hue and cry, as the accused criminally intimidated to cause his death. He denied the suggestion that no such incident had taken place as stated by him and that he is deposing falsely against the accused.
22. PW2 is the scribe who wrote Ex.P1. PW3 is the owner of the building stated that since about three months before the incident, accused No.3 was staying 18 in room No.25 on rental basis, where the incident had taken place. On 19.09.2009, he came to know about the suspicious move of accused No.3 and on the next day morning at 7.00 am, his workers in the Chawl had called him. Accordingly, he went there at 7.30 am and found accused No.3 standing near room No.25 by locking it and holding the key. When he went inside after opening the door, he found the informant tied to a cot with chains. He managed to release the informant who had sustained injuries. Witness stated that accused Nos.3 and 2 others have tied the informant with chains and have caused the injuries. He identified MO4 as the chain used in commission of the offence. Witness has not identified accused Nos.1 and 2 and also denied the suggestion that he had identified them in test identification parade conducted by the Tahasildar. So he was treated partially hostile and during cross examination by the learned public 19 prosecutor, witness admitted that he was called for test identification parade conducted by the Tahasildar to identify other accused, but denied the suggestion that he had identified accused Nos.1 and 2.
23. PW4 is the occupier of the neighbouring room in the Chawl and has not supported the case of the prosecution. PW5 is the son of the accused who states that on the date of the incident, his father had called him over phone. Thereafter he took him to Umarani hospital at Gokak, as he had sustained injuries.
24. PW6 is the mahazar witness to Ex.P4-spot mahazar. Witness stated that on 20.09.2009, he along with Siddharudh was called to room No.25 of Hatapaki Chawl, where the mahazar as per Ex.P4 was drawn after the seizure of clubs, dhoti and a handkerchief and identified those articles as MOs1 to 3. During cross examination, witness admitted that he is the 20 resident of Belgaum but denied the suggestion that on 20.09.2009, he was not in Gokak. Witness stated that he had come to his wife's house and while proceeding near Hatapaki Chawl, police called him for a mahazar and admitted that after mahazar, he went to his wife's house. He denied the suggestion that he is deposing falsely as he and the informant belong to same caste.
25. PW7 is the mahazar witness to Ex.P5-the seizure mahazar. Witness stated that about 1 year back police called him to come in the jeep. Accused Nos.1 and 2 were in the jeep and they asked to turn the jeep towards the place filled with bushes. After getting down from the jeep, accused Nos.1 and 2 produced a knife and a chain from inside the bushes. The mahazar-Ex.P5 was drawn seizing those articles. Witness identified the knife and the chain seized under Ex.P5 as MOs. 4 and 5. During cross examination, witness denied the suggestion that the informant is 21 his relative, but admitted that he belongs to his caste. He had come to Gokak on the said date at about 7.00 am on his personal work. The police have called him at about 8-9.00 am. But denied the suggestion that accused Nos.1 and 2 have not taken him and they had not produced MOs.4 and 5. He denied the suggestion that he is deposing falsely in order to help the informant.
26. PW8 is the doctor who examined the injured PW1 and issued wound certificate as per Ex.P6. Witness stated that PW1 had sustained 5 simple injuries, which were fresh in nature. He has stated that if the hands and legs were tied with MO4- chain and if he was assaulted with MO3-stick, the injuries mentioned in Ex.P6 could be caused. During cross examination, witness denied the suggestion that he had issued a false certificate. He also denied the suggestion that if a person moves around any 22 agricultural land, he could sustain such injuries. He denied the suggestion that MOs.3 and 4 could not cause such injuries.
27. PW9 is the PSI who registered the FIR as per Ex.P7, conducted spot mahazar, apprehended accused Nos.1 and 2, arranged for test identification parade, recorded their voluntary statements as per Ex.8 and 9 and recovered MOs.3 and 4 at their instance. Witness stated that after completing the investigation, he filed charge sheet against the accused. During cross examination, he denied the suggestion that he had not recovered MOs.4 and 5 at the instance of the accused nor he had seized MOs.1 to 3 from the scene of occurrence. He denied the suggestion that a false charge sheet was filed against the accused.
28. PW10 is the Tahasildar who conducted test identification parade. Witness stated that he was 23 working as Taluka Executive Magistrate and as per the order of the Jurisdictional Magistrate, held test identification parade on 07.11.2009 in the presence of CW1, 13 to 15, 17 and 18. He deposed in detail regarding the procedure he adopted in conducting test identification parade and the proceedings drawn there. He stated that all these witnesses have identified accused Nos.1 and 2 during such parade. During cross examination, this witness denied the suggestion that he had not conducted test identification parade and that he has given a false report.
29. If these materials are taken into consideration in the light of the documents and the material objects produced before the Court, it is clear that the informant PW1 identified accused Nos.1 and 2 and stated that they are the persons who followed him and after entering the room, bolted the door from inside and they are the accused who accompanied 24 accused No.3 in commission of the offence. PW3 even though not fully supported the case of the prosecution, stated that he was the owner of Hatapaki Chawl and also stated that on 20.09.2009, had been to room No.25, where accused No.3 was standing outside by locking the door with key in his hands. He also spoke about the informant who was inside the room chained to a cot, with injuries on his body and releasing him after gaining entry into the room.
30. PW10 the Tahasildar speaks about test identification parade and identification of accused Nos.1 and 2 by PW1 and other witnesses. Even though all these witnesses were cross examined at length, nothing has been elicited from them to disbelieve their version. The suggestions which were baldly put to these witnesses, were denied by them and it did not enure to the benefit of the accused. 25
31. PW9 the investigating officer spoke about the spot mahazar and seizure of material objects, including the dhoti stained with blood and also about recording of the voluntary statement of accused Nos.1 and 2 as per Exs.P8 and 9. He also spoke about recovery of MOs.4 and 5 at the instance of accused Nos.1 and 2. This say of the investigating officer is supported by PW7-an independent witness. Even though PW6 the spot mahazar pancha and PW7 the pancha for recovery mahazar and PW9 the investigating officer were cross examined at length, nothing has been elicited from them to contend that they are deposing falsely in favour of the prosecution or against the accused.
32. PW8 the doctor who examined PW1 categorically stated that the injuries on his body could be caused if he was tied with MO4-chain and assaulted with the stick-MO3.
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33. It is borne out by records that accused No.3 had committed suicide on 07.10.2009 i.e. immediately after the incident. Ex.P10 the UDR is produced before the Court which has not been denied. It is stated that the extorted amount of Rs.35,000/- was with accused No.3 and since he died, the said amount could not be recovered. I do not find any reason to reject the version of the prosecution in this regard. Therefore, the contention of the learned counsel for the appellants that there was no recovery of the so called extorted money of Rs.35,000/- and it has falsified commission of the offence by the accused, cannot be accepted.
34. Proving of commission of the offences, alleged against the accused, do not depend upon the recovery of the amount extorted from PW1 by keeping him under threat. As observed above, the prosecution is successful in proving that the accused Nos.1 and 2 27 along with the deceased-accused No.3 kept PW1 under wrongful confinement and extorted Rs.35,000/- with common intention to commit such offence. Therefore, both the accused are liable to be convicted for the offences punishable under Sections 384 and 342 read with Section 34 of the Act.
35. The learned counsel for the appellants alternatively submitted that the charge against the accused for the offence punishable under Section 307 of IPC is not proved. It is his contention that to prove the commission of the offence under Section 307 of IPC, the prosecution is required to prove the intention or knowledge on the part of the accused and his act if causes death, the accused would be guilty of murder, then only the accused could be convicted for the said offence.
36. He submitted that in the present case, it is not the contention of the prosecution that the accused 28 have assaulted PW1 with any deadly weapon. It is his contention that there were no grievous injuries on the vital part of the body of the injured. The wound certificate discloses that the injured had sustained only simple injuries that too not on the vital part of the body. Under such circumstances, Section 307 of IPC cannot be attracted. He further submitted that even to attract Section 326 of IPC, the prosecution is required to prove causing of grievous hurt by dangerous weapon or means. When the prosecution has not contended nor proved causing of grievous hurt by dangerous weapon, even Section 326 cannot be attracted. Therefore he submits that if at all the Court comes to the conclusion that the accused have committed the offence and caused injuries, it is only Section 323 of IPC, could be attracted.
37. Learned AGA strongly opposing this submission contending that the nature of the offence 29 committed by the accused by wrongful restraining the injured by tying the legs and hands with chain and assaulting the injured with stick and knife on all over his body, attracts Section 307 of IPC, as it was the intention of the assailant to cause the death of the injured. Therefore, he prays for rejection of the claim made by the learned counsel for the appellants to scale down the offence committed by the accused.
38. I have perused the materials raised before the Court in the light of the above submissions.
39. The wound certificate is as per Ex.P6. As per this document, the injured had sustained the following injuries:
a) Cut lacerated wound of 1inch x ½ inch over the middle phlaynx of the left middle finger.
b) Four small cut lacerated wound over the inner aspect of the lower lip.
c) Chain marks over both ankle and wrist.
d) Contusion both legs.
e) Contusion face.
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40. The doctor is of the opinion that injury Nos.1 and 4 might have been cause due to hit by hard and blunt object like stick. Injury Nos.2 and 5 might have been caused by fisting and injury No.3 could be caused by tying with the chain.
41. PW8 the doctor has reiterated his opinion about these injuries in his evidence. The injured is examined as PW1 and stated that accused No.1 had fisted him on his mouth. Deceased-accused No.3 had assaulted him with knife and accused No.2 with a stick.
42. EX.P4 is the spot mahazar, where under a small club was said to have been seized. The size of the club is not described but subsequently this weapon is described as stick. As per Ex.P5, iron chain and a knife was said to be recovered at the instance of accused Nos.1 and 2. The size of the knife is also not mentioned in the mahazar.31
43. As noted earlier, the doctor during enquiry given his opinion in the wound certificate-Ex.P6, that none of the injuries were caused by assault with a knife. On the other hand, he has specifically mentioned that injuries might have been cause with a stick, by fisting and by tying with the chain and the injuries sustained by the injured was on his left middle finger, on his lower lip, on his ankle, wrist, both the legs and face. Nothing has been placed before the Court nor it was elicited from the doctor PW8, that these injuries are sufficient to cause the death or that the stick and the chain used in commission of the offence or fisting by accused Nos. 1 and 2 could result in his death. Under such circumstances, as rightly contended by the learned counsel for the appellants, Section 307 of IPC cannot be attracted. When the weapons used by the assailant were not dangerous weapons, and admittedly, a stick and chain was used 32 to cause hurt on non vital parts of the body, even Section 326 or 324 of IPC also cannot be attracted and it is only Section 323 of IPC could be attracted.
Therefore I am of the opinion that the prosecution is successful in proving the guilt of the accused for the offences punishable under Section 323, 384 and 342 read with Section 34 of IPC. Since the incident had taken place more than 10 years back. Some leniency may be shown while sentencing the accused.
44. I have gone through the impugned judgment of conviction and order of sentence. The trial Court has taken into consideration the materials placed before it in proper perspective and had arrived at right conclusion to convict the accused for the offences punishable under Sections 384 and 342 read with Section 34 of IPC. But committed an error in convicting them for the offence punishable under Section 307 read with Section 34 of IPC even though 33 there are no such materials to support such conviction. I do not find any reason to interfere with the same. Hence, I proceed to pass the following:
ORDER Appeal is partly allowed.
The impugned judgment of conviction and order of sentence dated 20.01.2011 passed by the trial Court in SC No.61/2010, convicting the accused Nos.1 and 2 for the offences punishable under Section 384 and 342 of IPC read with Section 34 of IPC is confirmed.
The said judgment convicting accused Nos.1 and 2 for the offence punishable under Section 307 of IPC, is set aside. On the other hand, accused Nos.1 and 2 are convicted for the offence punishable under Section 323 read with Section 34 of IPC. The accused Nos.1 and 2 are sentenced to under go simple imprisonment for a period of one month and to pay fine of 34 Rs.1,000/- and in default to pay fine to undergo simple imprisonment for a period of seven days for the offence punishable under Section 323 read with Section 34 of IPC.
The trial Court is directed to secure the presence of accused Nos.1 and 2 to serve the sentence.
Send back the trial Court records along with the copy of the judgment.
SD/-
JUDGE KGK