Karnataka High Court
Mallikarjunappa vs Thammanna @ Basavarajappa on 2 July, 2019
Bench: Ravi Malimath, H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 2ND DAY OF JULY, 2019
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL APPEAL NO.118 OF 2013
BETWEEN:
MALLIKARJUNAPPA
SON OF KARIYAPPA
AGED ABOUT 42 YEARS
OCC: AGRICULTURIST
RESIDENT OF SHEELAVANTHAPURA
GUNDLUPET TALUK
CHAMARAJANAGARA DISTRICT. ... APPELLANT
(BY SRI. ANNAIAH C.V., ADVOCATE)
AND:
1. THAMMANNA @ BASAVARAJAPPA
SON OF PUTTAPPA
MAJOR IN AGE.
2. PUTTAPPA @ GIDDAPPANA PUTTAPPA
SON OF LATE PUTTAPPA
MAJOR IN AGE
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3. SWAMY
SON OF SHIVASHANKARAPPA @ SHANKARAPPA
MAJOR IN AGE
4. SHEKAR
SON OF PUTTAPPA
MAJOR IN AGE
5. DODDASWAMY
SON OF PUTTAPPA
MAJOR IN AGE
6. SWAMY @ CHIKKASWAMY
SON OF PUTTAPPA
MAJOR IN AGE
7. PARAMESHWARAPPA @ MOBILE
SON OF KUNNAPPA
MAJOR IN AGE
8. GURUSIDDAPPA
SON OF GURAPPA
MAJOR IN AGE
9. RAGHU
SON OF GURUSIDDAPPA
MAJOR IN AGE.
10. RAJAPPA
SON OF SANGAPPA
MAJOR IN AGE
11. SHEKARAPPA
SON OF SANGAPPA
MAJOR IN AGE
12. SANGAPPA
SON OF SIDDAPPA
MAJOR IN AGE
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13. BELLAMMA
WIFE OF RAJAPPA BIN PUTTAPPA
MAJOR IN AGE.
14. SURESHA
SON OF GADDIGE SIDDAPPA
MAJOR IN AGE
15. KUMARA @ SHIVAKUMARA
SON OF MAHADEVAPPA
MAJOR IN AGE.
16. SHIVAPPA
SON OF KUNNAPPA
MAJOR IN AGE
17. SIDDAPPA
SON OF KALLAHALLI MAHADEVAPPA
MAJOR IN AGE
18. MAHADEVAPPA
SON OF SHIVAPPA
MAJOR IN AGE.
19. GADDIGE SIDDAPPA @ COFFEE SIDDAPPA
SON OF GADDIGE SHIVAPPA
MAJOR IN AGE.
20. SHIVAPPA
SON OF PUTTAPPA
MAJOR IN AGE.
21. SIDDALINGAPPA
SON OF SHIVAPPA
MAJOR IN AGE.
ALL ARE RESIDING AT
SHEELAVANTHAPURA VILLAGE
GUNDLUPET TALLUK
CHAMARAJANAGARA DISTRICT.
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22. THE STATE OF KARNATAKA
BY THE POLICE OF TERAKANAMBI
POLICE STATION
GUNDLAPET TALUK
CHAMARAJANAGARA DISTRICT. ...RESPONDENTS
(BY SRI. M. SHARASS CHANDRA, ADVOCATE FOR
RESPONDENTS NO.1 TO 21
SMT. NAMITHA MAHESH, HCGP FOR RESPONDENT NO.22)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
372 CRIMINAL PROCEEDURE OF CODE PRAYING TO SET
ASIDE THE JUDGMENT OF ACQUITTAL DATED 06.11.2012
PASSED BY THE PRESIDING OFFICER, FAST TRACK
COURT, KOLLEGAL SITTING AT CHAMARAJANAGAR IN
S.C.NO.81/2010 -ACQUITTING THE
RESPONDENTS/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 143, 144, 147, 148, 114,
341, 504, 324, 326, 448, 427, 323, 120B READ WITH
SECTION 149 OF INDIAN PENAL CODE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 29.05.2019 COMING ON THIS DAY,
H.P. SANDESH, J., PRONOUNCED THE FOLLOWING:-
JUDGMENT
This Criminal Appeal is filed by the complainant being aggrieved by the judgment of acquittal passed in S.C.No.81/2010 dated 06.11.2012 on the file of Sessions Judge and Presiding Officer, Fast Track, Kollegal sitting at Chamarajanagar.
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2. The brief facts of the prosecution case are that there was an ill-will between the families of C.W.1, C.Ws. 13 to 21 and the accused in Sheelavanthapura Village and often they were quarreling with each other since the above C.Ws belong to Basaveshwara, Mahadeshwara and Parvathi God's Vakkaludararu whereas accused belongs to Siddapaji God's Vakkaludararu. There was a festival of Hullalu Siddappaji in Sheelavanthpura village in the year 2009 and villagers have collected chanda amount and there was a difference of opinion in respect of performing jathra between Sheelavanthapura villagers and Somanapura Villagers. Out of chanda amount collected by Sheelavanthpura villagers, Rs.38,000/- remained and the accused were demanding to utilize the said amount for Siddappaji kandaya and the injured persons were demanding to utilize the said amount for Basaveshwara Samudaya Bhavana and as per the decision of the villagers, the said amount has been used for Basaveshwara Samundaya Bhavana. On account of the same, verbal clashes took place between them and enmity increased. 6 That on 26.02.2010, the villagers have demanded Devara Kandaya to perform Allamaprabhu Aradane. The accused No.1 and other accused did not give the amount for repairing of kandaya and refused to give the said kandaya to perform Allamaprabhu Aradane and there were verbal clash while taking meals on 26.02.2010.
3. It is further case of the prosecution that on account of said ill-will dated 26.02.2010, after the completion of Allamaprabhu Aradane Utsava, the accused persons have conspired in the house of accused No.7 with an intention to kill C.W.1 and his family members. Accordingly, on 27.02.2010 at about 10.00 am in front of the house of C.W.9 at Terekanambi-Bommalapura road when C.Ws.11 to 14 and 16 were standing, accused Nos. 1 to 6 with an intention to kill C.Ws.1, 11, 14 to 21 were holding machete, repiece patti, yelekottu and bandiguta by forming unlawful assembly shouted that they are going to kill them and ready to go to jail and quarreled with them. Accused No. 6 assaulted C.W.15 with a repiece patti on his 7 right hand and caused bleeding injuries. Accused No.4 assaulted C.W.16 with a repiece patti on his head, both legs and right hand finger and caused bleeding injuries. Accused Nos.7 to 9 and accused Nos. 19 and 20 joined the said unlawful assembly by holding deadly weapons and accused No.20 in order to kill C.W.11 caught hold him and made him to fall down and accused No.18 assaulted C.W.11 on his chest and body with his legs and caused pain to him. Accused No.5 assaulted C.W.11 with a bandiguta on his head, both legs and caused bleeding injuries and accused No.3 assaulted C.W.4 with a reaper on his back and left knee and caused bleeding injuries. When C.W.1 tried to rescue, accused No.1 assaulted C.W.1 with a machete on his head. When C.W.1 tried to escape, a blow was given on his right hand as a result he sustained injuries to his right hand and accused No.1 assaulted C.W.1 with the said machete on his waist and caused bleeding injuries and accused No.6 assaulted C.W.1 with a yelekottu on his left hand and caused bleeding injuries. Accused No.5 assaulted C.W.1 with a bandiguta on his 8 both legs, when C.W.17 came to rescue, accused No.7 assaulted with a bandiguta on his head and caused bleeding injuries. Accused No.8 assaulted C.W.17 with his hands and caused pain. Accused No.9 assaulted C.W.17 with a bandiguta on his left hand and caused bleeding injuries, when C.W.14 ran away from that spot and when C.Ws. 18 to 21 came to rescue, accused Nos. 1, 3, 4, 5 chased C.W.14 and accused Nos. 10 to 17, accused Nos.19 and 20 were holding chilly powder, yelekottu, reapers in their hands by forming themselves into unlawful assembly with an intention to kill, came from Shivappa's house and accused No.1 assaulted C.W.14 with a machete on his left knee and caused bleeding injuries and accused No.16 assaulted C.W.21 with a reaper on his left hand and his body and accused No.13 threw chilly powder on all the injured persons and accused No.21 assaulted C.W.18 with yelekottu on his head, both hands, right leg and caused bleeding injuries. C.W.19 and C.W.20 came running. Accused Nos.10, 11, 12, 14, 15, 17 chased them, when C.W.19 went inside the house and closed the door, 9 accused Nos.10, 14 and 17 shouted in front of the house of C.W.10 in a filthy language and told him to come out from the house and threatened. Accused No.17 pelted stones on the door of the house and tried to gain entry into the house illegally and also he has broken the tiles of the house and dragged C.W.19 to the street. Accused No.14 assaulted C.W.19 with a kontu on his right knee and caused bleeding injuries and accused No.10 assaulted C.W.19 with a reaper on his left knee, left shoulder, right hand and accused Nos.11 and 15 hit C.W.20 and accused No.15 caught hold C.W.20 and accused No.11 pelted the stone on the door of the shop of C.W.20 and broke the said door and he has broken the weighing scale and instruments and also he assaulted C.W.20 on his left leg with a reaper and caused bleeding injuries and caused pain on his back and accused Nos.2, 12 and 19 joined the said unlawful assembly and gave instructions to the other accused to kill the injured persons even if Rs.1,00,000/- is spent, they will look after, as a result, the accused caused grievous and simple injuries to C.Ws.1, 16, 18 to C.W.20 10 and C.W.11 who had sustained grievous injuries later succumbed to the injuries and the accused have caused simple injuries to C.W.14, C.W.15, C.W.17 and C.W.21 and thereby committed the offences punishable under Sections 143,144, 147, 148, 114, 341, 504, 324, 326, 448, 427, 323, 120-B, 307, 302 read with Section 149 of Indian Penal Code.
4. The Court below after securing the accused persons has framed the charges for the offences punishable under Sections 143, 144, 147, 148, 114, 341, 504, 324, 326, 448, 427, 323, 120-B, 307, 302 read with Section 149 of Indian Penal Code.
5. The prosecution in order to prove their case, examined 19 witnesses as P.Ws.1 to 19 and got marked 31 documents as Exs.P.1 to Ex.P.31 and material objects as M.Os.1 to 37. Ex.D1 is confronted during the course of cross-examination and after recording the 313 statement, the Court below considering the material on record both 11 oral and documentary evidence acquitted the accused persons.
6. The complainant being aggrieved by the judgment of acquittal in the present appeal, contends that the Court below even though sufficient material were placed on record and the case being proved beyond reasonable doubt erroneously acquitted the accused persons. The learned trial Judge has not properly appreciated both oral and documentary evidence. The Court below brushing aside the evidence of injured witnesses as well as eye witnesses, was not justified in acquitting the accused persons and the very finding of Court below is improper, unjust and perverse and no proper reasoning is assigned while acquitting accused persons.
7. The learned counsel Sri. Annaiah, appearing for appellant contends that the Court below has committed an error in acquitting the accused persons and inspite of consistent evidence adduced by the prosecution, has 12 erroneously acquitted the accused persons and it is a fit case for interference by re-appreciating the evidence available on record and prayed this Court to convict accused persons for the offences alleged against them.
8. Per contra, Sri. M. Sharass Chandra, learned counsel appearing for accused persons in his arguments vehemently contends that the Court below while coming to the conclusion of acquittal has assigned the reasons that there is no corroboration and the prosecution did not establish the presence of all the accused persons with deadly weapons with an intention to kill C.W.1 and his family members. Hence, there is no reason to interfere with the order of acquittal.
9. Learned counsel appearing for the State in her arguments vehemently contends that the witnesses who have been examined before the Court particularly P.Ws. 1 to 3, P.Ws. 6, 9, 10, 12 and 13 in their evidence, they have categorically deposed the overt act of each of the accused persons, particularly accused Nos.1, 3, 4, 5, 10, 13 14, 15, 17, 18, 20 and in spite of the evidence of witnesses and evidence of the doctor who has been examined as P.W.11, the trial judge did not discuss anything about the consistent evidence, but failed to appreciate both oral and documentary evidence and erroneously acquitted the accused persons. Therefore, accused persons are liable to be convicted for the charges leveled against them.
10. Having heard the arguments of learned appellant's counsel as well as learned respondents' counsel and learned HCGP, the point that arises for our consideration is:
"Whether the Court below has committed an error in acquitting the accused persons for the offences charged against them?"
11. The sum and substance of the case of the prosecution is that there was an ill-will between the two groups in connection with performing pooja and also in connection with the chanda amount which was collected. 14 On the previous day of the alleged incident, there was exchange of words between two groups and all these accused persons gathered in the house of accused No.7, with an intention to kill C.W.1 and his family members, conspired each other and particularly, accused Nos. 1 to 6 on 27.02.2010 at about 10.00 am in front of the house of C.W.9 on Terakanambi-Bommalapura road, when C.Ws.2, 11 to 14 and 16 were standing with an intention to kill C.Ws.1, 11, 14 to 21 came with machete, repiece patti, yelekottu and bandiguta. Thereafter, other accused persons have joined the unlawful assembly and assaulted the injured persons. As a result, C.W.11 who sustained grievous injuries, succumbed to injuries.
12. The prosecution in order to prove the charges leveled against the accused persons, examined P.Ws.1 to 19 and relied upon the documents at Exs.P.1 to P.31 and M.Os.1 to 37.
13. On careful evaluation of the oral and documentary evidence, the injured witnesses i.e., P.Ws. 1, 15 9, 10, 12 and 13 who have deposed before the Court as to who assaulted them and the prosecution has also relied upon the eye witnesses who have been examined as P.Ws.2, 3 and 6.
14. P.W.1 is an injured and P.W.6 is an eye witness. They have deposed in detail before the Court with regard to the overt-act of each of the accused persons. We have considered the evidence of prosecution and also the answers elicited in the cross examination of these witnesses and also the evidence of P.W.11-Doctor who has deposed with regard to the nature of injuries sustained by the deceased and injured persons. The prosecution did not examine other injured witnesses and some of the injured witnesses who have been examined did not support the case of prosecution. The evidence of injured witnesses P.Ws.1, 6, 9, 12 and 13 are consistent and corroborates with each other, particularly causing of death of deceased-C.W.11. PWs.6, 9, 10 and 12 have categorically deposed with regard to holding the collar 16 patti of C.W.11 and dragged him on the ground by Accused No.20. The evidence of PWs.6, 9 and 11 that C.W.11 was dragged and made the deceased to fall on the ground and also it is consistent evidence of P.Ws. 6, 9 and 11 that accused No.18 stamped him and it is consistent evidence of all these witnesses that accused No.5 had inflicted the injury with the repiece patti on the head of injured as a result of which C.W.11 sustained grievous injuries and succumbed to the injuries. Though, the defence made an effort to elicit the answers in favour of accused in the evidence of witnesses, no worth while answers are elicited in the cross-examination to disbelieve the evidence of P.W.1, P.W.6, P.W.9, P.W.10 and P.W.12 with regard to the overt-act of accused Nos.5, 18 and 20 and other evidence is also consistent. Hence, we are of the opinion that the prosecution has proved the cause of death of C.W.11 and the same has not been properly appreciated by the Court below. The consistent evidence shows the C.W.11 was murdered by accused Nos.5, 18 and 20 by their overt act.
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15. The prosecution also examined injured witness as P.W.1. He has categorically stated that accused Nos.1, 4 and 5 assaulted him with a chopper, club and reaper respectively on his left knee and leg with M.0.3 and 4 i.e, bandiguta and repiece patti and also assaulted on his back. The evidence of P.W.1 is specific that accused No.1 assaulted him with a chopper and he had sustained injuries on his left knee. P.W.6 also consistently deposed that accused Nos.1 and 5 assaulted P.W.1. P.W.1 deposed that accused No.1 assaulted him with the chopper, as a result of which he sustained injuries which are grievous in nature and prosecution relied upon Ex.P.4-Wound Certificate of P.W.1 which discloses that he has sustained nine injures. Out of them injury No.8 i.e., tenderness over right leg is grievous in nature and other injuries are simple in nature. X-ray shows fracture of upper one-third of right fibula and P.W.11-doctor reiterates that he has sustained nine injuries. Out of them, one is grievous in nature and other is simple in nature. Hence, it is clear that Accused Nos. 1, 4 and 5 assaulted P.W.1 and therefore, they are guilty for 18 an offence punishable under Section 326 of Indian Penal Code.
16. The prosecution also examined P.W.9 who is another injured eye witness and in his evidence, he categorically deposed that accused No.3 assaulted him with reaper on his head, shoulders and knees. He says accused No.13 sprinkled chilly powder on him. Apart from his evidence, P.Ws.1 and 6 also say that accused Nos.1 and 3 assaulted P.W.9. PW9 specifies the overt-act of accused No.3 and PW13 also deposed that accused No.1 assaulted PW9. The prosecution relies upon the wound certificate which is marked as Ex.P.7 and it discloses that PW9 sustained five injuries and said injuries are simple in nature and in the cross examination of witnesses viz., P.W.1, P.W.6, P.W.9 and P.W.13 an attempt is made that accused Nos.1 and 3 have not assaulted P.W.9 and the same has been denied and evidence of PW1, PW6 and PW9 is specific that accused Nos.1 and 3 assaulted PW9 and their evidence is consistent. Prosecution has proved the 19 case against accused Nos.1 and 3 causing injuries to PW9 which are simple in nature and the injuries inflicted with club and reaper and hence the accused Nos.1 and 3 are guilty of an offence punishable under Section 324 of Indian Penal Code.
17. The prosecution has also examined injured eye witness-P.W.10 and he has categorically stated that accused No.4 assaulted him on his head, hands and leg with reaper. On perusal of evidence of PW10, he says that accused No.4 assaulted him with reaper and in his cross examination, the defence did not suggest anything about accused No.4 assaulting him with reaper and only suggestion was that a false theory is created and the said suggestion is denied. The prosecution in order to prove the injury sustained by PW10 got marked Ex.P.10. PW11- Doctor has reiterated that he has sustained one injury and same is simple in nature. Hence, prosecution has proved the case against accused No.4 having inflicted the injury 20 with reaper and thereby committed an offence under Section 324 of Indian Penal Code.
18. Another injured eye witness is P.W.12 and in his evidence he has categorically stated that accused No.17 assaulted him with reaper on his body and none of the other witnesses speaks anything about the overt-act of accused No.17 in respect of assault on P.W.12 and the evidence of P.W.12 is clear that accused No.17 assaulted him. He admits that he has not stated that some persons are sprinkled chilly powder and he does not know what police have written. He categorically says in the cross examination that accused No.17 dragged from his house and assaulted with a repiece patti and he further says that accused No. 10 assaulted him with a reaper, as a result, he sustained injuries. He further says that Accused No.11 assaulted him with a club on his right knee. P.W.11-doctor also says that he has sustained injuries. In support of the case, prosecution got marked Ex.P.11-wound certificate and it discloses that P.W.12 sustained six injuries, out of 21 them, injury No.2 is grievous in nature and X-ray shows fracture of head of 5th metacarpal bone of right hand. In the cross examination of P.W.12 nothing is elicited to disbelieve the case of prosecution and it is specific that accused Nos. 10, 14, 17 assaulted P.W.12. The injuries correspond with the evidence of P.W.12. Hence, prosecution has also proved the overt-act of accused Nos.17, 10 and 14 against the P.W.12. Hence, the Accused Nos.10, 14 and 17 are guilty of the offence under Section 326 of Indian Penal Code.
19. We have perused the evidence of P.W.13. In his evidence, he has spoken that accused No.15 has assaulted him with reaper on his left hand and also gave evidence that accused No.15 assaulted him with reaper on his left leg. P.W.13 has deposed that accused No.4 and 15 assaulted him with reaper on his left leg. P.W.13 has deposed against accused No.4 and 15. The other witness P.W.2 who is an eye witness, in her evidence says that accused Nos. 11 and 15 assaulted P.W.13 on hands and 22 legs with reaper. But P.W.13 did not say anything about the assault on him by the accused No.11.
20. The prosecution in order to prove the injuries sustained by P.W.13 relied upon the wound certificate which is marked as Ex.P.12 and P.W.11-doctor says that P.W.13 sustained four injuries. Out of them, injury No.1 is grievous in nature and other injuries are simple in nature and X-ray shows fracture of lower third of left ulna. The evidence of doctor supports the evidence of P.W.2 and P.W.13. Accused Nos. 4 and 15 assaulted P.W.13 and there is consistent evidence of P.Ws.2 and 13 regarding assault on P.W.13 by the accused Nos.4 and 15 and injuries mentioned in the wound certificate corresponds with the evidence of P.Ws.2 and 13. Hence, Accused Nos. 4 and 5 are liable to be convicted for an offence punishable under Section 326 of Indian Penal Code. The accused are also liable to be convicted for an offence punishable under Section 448 of Indian Penal Code, since both of them 23 chased P.W.13, entered into the shop and dragged him from the shop.
21. The prosecution would contend that several persons are injured in the said incident but only P.Ws. 1, 9, 10, 12 and 13 injured are examined and also witnesses P.Ws.6, 9, 10 and 12 particularly deposed that accused Nos.5, 18 and 20 assaulted the deceased. P.W.5 injured witness turned hostile to the case of prosecution. Having taken note of the oral and documentary evidence available on record, we do not find any incriminating evidence against accused Nos.2, 6, 7, 8, 9, 11, 12, 13, 16 and 19 and none of the witnesses have spoken with regard to these accused persons about their overt-act in committing the offences alleged against them. Though PW6 refers the overt-act of Accused No.6 against PW1, the same is not spoken by PW1. PW6 also deposed that Accused Nos.8 and 9 assaulted CW17 and CW17 is not examined and there is no corroboration. Hence, we are of the opinion that above accused persons are liable to be acquitted for the charges 24 leveled against them and we do not find any reasons to interfere with the order of learned Sessions Court in respect of these accused persons in acquitting them.
22. Further, taking note of the oral and documentary evidence available on record before the Court, though PW1 says that accused No.21 assaulted C.W.18 on his head and left hand, C.W.18 has not been examined. PW12 in his evidence says that accused No.21 assaulted PW9. But PW9 does not say anything about the overt-act of accused No.21. Hence, we are of the opinion that accused No.21 is entitled for the benefit of doubt. There is no evidence against accused No.21 also and the evidence with regard to the overt-act of accused No. 21 is not corroborated with the evidence of any other witness and particularly the injured PW9 does not say anything about the overt-act of accused No.21. Hence, he is also entitled for acquittal and the finding of acquittal of this accused is also confirmed.
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23. Having considered the oral and documentary evidence available on record, though some of the witnesses say that the accused persons have formed unlawful assembly, conspired with each other, came and assaulted the injured persons; there is no any specific material before the Court that they went to the house of accused No.7 and conspired each other to commit the offences. Though PW1 says that C.W.12 came and told that the accused persons gathered in the house of Accused No. 7 forming unlawful assembly, he has not been examined and none of the witnesses have spoken about formation of unlawful assembly with the common object of inflicting the injuries but the overt act of respective accused is deposed. In the absence of evidence of forming unlawful assembly with a common object, the Court cannot invoke Sections 143, 144, 147, 148 of Indian Penal Code and there is no sufficient material to invoke Sections 114 and 120-B against the accused persons and in order to prove the abatement and conspiracy, no material is produced. However, we find the material with regard to 26 the causing injuries to other injured persons i.e., for the offences punishable under Sections 324 and 326 of Indian Penal Code and no material in order to arrive at conviction for the offences under Sections 427, 504, 307 read with 149 of Indian Penal Code. Hence, all the accused persons are entitled for the benefit of doubt in respect of other offences.
24. Having considered the oral and documentary evidence and the evidence of the injured and eye witnesses coupled with the evidence of doctor, PW.1, PW.16-Investigating Officer, PW.7 and mahazer witness, evidence of PW.18 and PW.19, the acquittal of accused Nos.2, 6, 7, 8, 9, 11, 12, 13, 16, 19 and 21 are confirmed and acquittal of accused Nos.1, 3, 4, 5, 10, 14, 15, 17, 18 and 20 are set aside.
25. Having considered the evidence of P.Ws. 6, 9, 10, 12 as against accused Nos.5, 18 and 20, we do not find any material with regard to all of them having an intention to take away the life of the deceased, gave blow 27 and accused No. 5 gave single blow to the deceased. If really, they had an intention to take away the life of C.W.11, he would have inflicted more injuries. When such being the case, this case comes within the purview of explanation under Section 300 of Indian Penal Code and in the absence of pre meditation and intention to take away the life and it is a mob fury and the evidence discloses that the other accused persons gathered subsequently but did not come at a time. Hence, it is a fit case to bring within purview of 304 (II) of Indian Penal Code. Having considered the same, accused Nos.5, 18 and 20 are liable to be convicted under Section 304(II) of Indian Penal Code.
26. Having considered the injury inflicted by accused No.5 which was likely to cause death, he has to suffer imprisonment for a period of 7 years and having considered the evidence available on record, accused Nos. 18 and 20 made C.W.11 to fall on the ground and kicked him. Hence, it is appropriate to sentence them for a period 28 of 5 years. The deceased was an agriculturist but lost the life at the age of 50 years which is confirmed by Ex.P.28 Post Mortem Report. C.W.11 is bread earning member of his family and it is just and necessary to impose fine of Rs.75,000/- to accused No.5 and Rs.25,000/- each to the accused Nos. 18 and 20 and out of Rs.1.25,000/-, Rs.1,10,000/- is payable in favour of family members of the deceased. In default of payment of fine, they shall undergo simple imprisonment for a further period of one year.
27. P.W.1 has sustained grievous injuries in terms of wound certificate coupled with the evidence of P.W.11. It is clear that he has suffered fracture of upper 1/3rd of right fibula. The evidence of witnesses is specific that accused Nos.1, 4 and 5 assaulted him with repiece patti. Hence, accused Nos. 1, 4 and 5 are liable to be convicted for the offence punishable under Section 326 of Indian Penal Code. Accused No. 1, 4 and 5 are liable to be sentenced for a period of six months and ordered to pay a 29 fine of Rs.10,000/- each. The said amount of Rs.30,000/- is payable in favour of P.W.1. In default of fine, undergo another three months simple imprisonment.
28. P.W.9 sustained simple injuries and there is specific evidence that accused Nos.1 and 3 assaulted P.W.9. Accordingly, accused Nos.1 and 3 are convicted for an offence punishable under Section 324 of Indian Penal Code as they have sustained simple injury. Hence, fine of Rs.5,000/- each against the accused Nos.1 and 3 is just and reasonable and no imprisonment. Out of Rs.10,000/-, Rs.8,000/- is payable in favour of P.W.9. In default of payment of fine, undergo imprisonment for a period of two months.
29. P.W.10 has suffered simple injuries in terms of wound certificate and the injury is caused by accused No.4. Hence, he is convicted for an offence punishable under Section 324 of Indian Penal Code sentenced him to pay a fine of Rs.5,000/-. Out of Rs.5,000/-, Rs.3,000/- payable to P.W.10. No sentence of imprisonment. In case 30 of default of payment of fine, he shall undergo another simple imprisonment for a period of two months.
30. P.W.12 suffered grievous injuries in terms of wound certificate. His evidence is specific that accused Nos.10, 14 and 17 assaulted them with a repiece patti, as a result sustained injuries. Hence, taking into note of the evidence of P.W.12, Accused Nos. 10, 14 and 17 are liable to be convicted for the offences punishable under Sections 326 of Indian Penal Code and sentenced to undergo simple imprisonment for a period of six months and to pay fine of Rs.10,000/- each, out of Rs.30,000/-, Rs.25,000/- payable to PW10. In case of default of payment of fine, he shall undergo further simple imprisonment for a period of three months.
31. The evidence of P.W.13 is specific that accused No. 4 and 15 assaulted him and P.W.2 is also specific that accused No.15 assaulted P.W.13. Having considered the said evidence, he sustained grievous injuries and it comes within purview of Section 326 of Indian Penal Code and 31 accused Nos.4 and 15 are convicted for an offence punishable under Section 326 of Indian Penal Code. Hence, Accused Nos.4 and 15 are sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.10,000/- each and out of Rs.20,000/-, Rs.15,000/- is payable to P.W.13 and in case of default of payment of fine, they shall undergo another simple imprisonment for a period of three months.
32. Accordingly, we pass the following:
ORDER This Criminal Appeal is partly allowed I) The judgment of acquittal is set aside insofar as accused Nos.1, 3, 4, 5, 10, 14, 15, 17, 18 and 20 are concerned.
II(A). Accused Nos.5, 18 and 20 are convicted under Section 304(II) of Indian Penal Code. Accused No.5 is sentenced to undergo simple imprisonment for a period of 32 7 years and to pay a fine of Rs.75,000/-. In default of payment of fine, he shall undergo simple imprisonment for a further period of one year. Accused Nos.18 and 20 shall undergo simple imprisonment for a period of 5 years and pay a fine of Rs.25,000/- each. In default of payment of fine, they shall undergo simple imprisonment for a further period of one year. Out of the fine amount of Rs.1,25,000/-, an amount of Rs.1,10,000/- is payable equally to the legal heirs of the deceased after ascertaining the same with proof. Balance fine amount shall vest with the State.
II(B). Accused Nos.1, 4 and 5 are convicted for the offence punishable under Section 326 of Indian Penal Code. Accordingly, they are sentenced to undergo simple imprisonment for a period of six months and ordered to pay a fine of Rs.10,000/- each. In default of payment of fine, they shall undergo further three months simple imprisonment. The said amount of Rs.30,000/- is payable in favour of P.W.1.
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II(C). Accused Nos.1 and 3 are convicted for an offence punishable under Section 324 of Indian Penal Code and sentenced to pay a fine of Rs.5,000/- each. In default of payment of fine, they shall undergo imprisonment for a period of two months. Out of Rs.10,000/-, Rs.8,000/- is payable in favour of P.W.9. Balance fine amount shall vest with the State. No sentence of imprisonment, if fine is paid.
II(D). Accused No.4 is convicted for an offence punishable under Section 324 of Indian Penal Code and sentenced to pay a fine of Rs.5,000/-. In case of default of payment of fine, he shall undergo further simple imprisonment for a period of two months. Out of Rs.5,000/-, Rs.3,000/- is payable to P.W.10. Balance fine amount shall vest with the State. No sentence of imprisonment is imposed, if fine amount is paid.
II(E). Accused Nos.10, 14 and 17 are convicted for the offence punishable under Section 326 of Indian Penal Code and sentenced to undergo simple imprisonment for a 34 period of six months and to pay fine of Rs.10,000/- each. In case of default of payment of fine, they shall undergo simple imprisonment for a further period of three months. Out of Rs.30,000/-, Rs.25,000/- is payable to PW10. Balance fine amount shall vest with the State.
ii(F). Accused Nos.4 and 15 are convicted for an offence punishable under Section 326 of Indian Penal Code. Hence, Accused Nos.4 and 15 are sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs.10,000/- each. In case of default of payment of fine, they shall undergo another simple imprisonment for a further period of three months. Out of Rs.20,000/-, Rs.15,000/- is payable to P.W.13. Balance fine amount shall vest with the State.
III) Insofar as accused Nos.2, 6, 7, 8, 9, 11, 12, 13, 16 and 19 are concerned, the judgment of acquittal is confirmed.
IV) The trial Court is directed to secure the above accused persons and subject them to serve sentence. 35 Needless to state that if any of the accused persons were in custody during the course of trial, they are entitled for the benefit of set off under Section 428 of Cr.P.C.
Sd/- Sd/-
JUDGE JUDGE
akc/ST/NBM