Karnataka High Court
Sri Govindegowda T K vs State By Yasaluru Police Station on 4 July, 2023
Author: K.Somashekar
Bench: K.Somashekar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4th DAY OF JULY, 2023
PRESENT
THE HON'BLE MR JUSTICE K.SOMASHEKAR
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL APPEAL NO. 1671 OF 2016
C/W
CRIMINAL APPEAL NO. 1856 OF 2016
IN CRL.A.NO.1671 OF 2016
BETWEEN
SRI. GOVINDEGOWDA T.K,
S/O KOMARIGOWDA,
AGED ABOUT 62 YEARS,
R/O TAMBALGERI VILLAGE,
YALASURU HOBLI,
SAKLESHPURA,
HASSAN - 573 216.
...APPELLANT
(BY SMT. SRIDEVI BHOSLE, AVOCATE FOR
SRI. SANTHOSH, ADVOCATE)
AND
STATE BY YASALURU POLICE STATION,
SAKALESHPURA(TQ),
HASSAN DISTRICT,
REPRESENTED BY STATE PUBLIC PROSEUCTOR,
2
HIGH COURT OF KARNATAKA
BANGALORE - 560 001.
...RESPONDENT
(BY SRI. H.S.SHANKAR, HCGP)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED 08.09.2016 AND
SENTENCE DATED 16.10.2016 PASSED BY THE II ADDL. DIST.
AND S.J., HASSAN IN S.C.NO.208/2014 - CONVICTING THE
APPELLANT/ACCUSED NO.2 FOR THE OFFENCE P/U/S 3 R/W 25
OF INDIAN ARMS ACT.
IN CRL.A.NO.1856 OF 2016
BETWEEN
DAYANANDA T.N,
AGED 33 YEARS,
S/O LATE NAGAPPA,
THAMBALAGERI VILLAGE,
YESALUR HOBLI,
SAKALESHPUR TALUK,
HASSAN DISTRICT PIN-573 137,
(PRESENTLY UNDERGOING
CONVICTIN SINCE 16.09.2016)
...APPELLANT
(BY SRI. RAVINDRANATH N.KAMATH, SENIOR ADVOCATE FOR
SRI. DANIAL FOR SRI. PRAVEN KUMAR K.N, ADVOCATE)
AND
STATE OF KARNATAKA,
REPRESENTED BY YESALUR POLICE,
SAKALESHPUR TALUK,
3
HASSAN DISTRICT-573 137.
REPRESENTED BY SPP
...RESPONDENT
(BY SRI. H.S. SHANKAR, HCGP)
THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE IMPUGNED JUDGMENT AND CONVICTION
ORDER DATED 08.09.2016 AND SENTENCE DATED 16.10.2016
PASSED BY THE II ADDL. DIST. AND S.J., HASSAN IN
S.C.NO.208/2014 - CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE P/U/S 307 OF IPC AND U/S 25 R/W 3 OF INDIAN
ARMS ACT.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 14.06.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, RAJESH RAI.K J.,
DELIVERED THE FOLLOWING:
JUDGMENT
These two appeals are filed by the appellants/accused Nos.1 and 2 against the judgment of conviction dated 08.09.2016 and order of sentence dated 16.09.2016 passed by the II Addl. District and Sessions Judge, Hassan in S.C.No.208/2014 wherein, the learned Sessions Judge convicted accused No.1 i.e. appellant in Crl.A.No.1856/2016 for the offence punishable under Section 307 of IPC and Section 3 r/w Section 25 of the Indian Arms Act and directed him to undergo life imprisonment and also to pay a fine of Rs.40,000/- in 4 default, to undergo 2 years imprisonment for the offence punishable under Section 307 of IPC and simple imprisonment for a period of one year and also to pay a fine of Rs.5,000/- for the offence punishable under Section 3 r/w Section 25 of the Indian Arms Act in default, to undergo one year simple imprisonment. In so far as accused No.2 i.e., appellant in Crl.A.No.1671/2016 is concerned, he is convicted for the offence punishable under Section 3 r/w Section 25 of the Indian Arms Act and to undergo imprisonment for a period of one year and also pay a fine of Rs.5,000/- in default, to undergo one year simple imprisonment.
2. The brief facts of the prosecution case are that, the Yasalur Police of Sakaleshpura Taluk, Hassan District registered the FIR against accused No.1 i.e., Dayananda for the offence punishable under Section 307 of IPC and Section 3 r/w Section 25 of the Indian Arms Act and subsequently, during the course of investigation, accused Nos.2 and 3 were also implicated in the crime based on the voluntary statement of accused No.1. It is alleged in the complaint that there was enmity between CW.1 & 5 accused No.1 in connection with village temple affairs. With that grudge, accused No.1, with an intention to take away the life of CW.1, has fired CW.1 i.e., PW.1 while he was having dinner at his house. The bullet passed through window glasses of the house of PW.1 and the same has caused grievous injuries to the head of P.W.1 and also caused simple injuries to his right arm, back and right shoulder. As such, a complaint has been lodged by PW.1-injured and the FIR came to be registered for the offence punishable under Section 307 of IPC against accused No.1. During the course of investigation, it revealed that the bullet which fired from the gun belongs to accused No.3 and accused No.2 handed over the same to accused No.1. As such, with their common intention to do away with the life of PW.1 i.e., CW.1, accused No.1 fired bullet from that gun. Hence, accused Nos.2 and 3 also got implicated in the crime during the course of investigation for the offence punishable under Section 3 r/w Section 25 of Indian Arms Act and also Section 30 of the Indian Arms Act. Before the committal Court, the charges were framed against the accused for the offence punishable under Section 307 of IPC r/w Sections 5, 25 and 30 of the Indian Arms 6 Act. Though the charges read over to the accused, they denied the same and claimed to be tried.
3. Before the trial Court, in order to bring home the guilt of the accused, the prosecution in all examined 20 witnesses as PW.1 to PW.20 and also got marked 32 documents as Exs.P1 to P32 and MOs.1 to 7. However, the accused neither examined any witness on their behalf nor produced any document. The defence of the accused is one of total denial and that of false implication.
4. Learned Sessions Judge, after assessment of the oral as well as documentary evidence on record and also on hearing the counsel for the accused and the State, came to the conclusion that the accused committed the alleged offence charged against them and thereby, convicted the accused for the offences as stated supra. Being aggrieved by the said judgment of conviction and order of sentence, accused Nos.1 and 2 preferred these appeals to set aside the impugned judgment passed by the trial Court.
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5. We have heard the learned Senior Counsel Sri Ravindranath N.Kamath appearing for accused No.1 in Crl.A.No.1856/2016, learned Counsel Smt.Sridevi Bhosle appearing for accused No.2 in Crl.A.No.1671/2006 and learned Additional State Public Prosecutor for the State.
6. Learned Senior Counsel Sri Ravindranath N.Kamath appearing for accused No.1, vehemently, contended that the judgment under appeal suffers from perversity and illegality. He would contend that learned Sessions Judge failed to appreciate the evidence on record and passed the impugned judgment based on assumption and presumption. As such, the said judgment is liable to set aside. Learned Senior counsel would further contend that the entire case rest on the circumstantial evidence and none of the witness deposed against accused No.1 that he had fired the bullet from the gun. Admittedly, PW.1 sustained injuries while he was having his dinner in the kitchen. According to the prosecution case, the bullet pierced the window and thereafter, hit on the head of the injured i.e., PW.1 and thereby, caused injuries on the head of PW.1. To substantiate 8 the said aspect, the prosecution failed to prove the material witnesses. As such, according to the learned Senior Counsel, the learned Sessions Judge convicted the accused without appreciating the evidence on record. He would further contend that PW.1-the victim in his complaint categorically stated that some unknown persons fired at him while he was having food in the dining hall. Even the said witness failed to depose about the motive for the alleged incident. Even by perusal of the evidence of PW.2, who is none other than the wife of the injured, she also categorically stated in her cross-examination that at the time of the incident, she was not specific that the accused only fired her husband. As such, even she gave a statement before the police only expressing doubt against accused No.1. Learned Senior counsel would also contend that by perusal of the evidence of PW.10-the doctor, who examined the injured, clearly depicts that though there are three injuries mentioned in Ex.P6 i.e., the wound certificate, the said doctor clearly opined that the injuries No.1 to 3 are simple in nature. Further, the other witnesses examined by the prosecution cannot be relied to prove the guilt of the accused. Admittedly, the gun belongs to accused No.3 and 9 accused No.3 handed over the gun to accused No.2 and inturn accused No.2 handed over to accused No.1. To that effect, there is no cogent evidence adduced by the prosecution. Learned Senior counsel would further contend that though the Investigation officer clearly said they have not sent MO.2 for scientific examination, without scientific examination, it cannot be concluded that the injuries were caused from the said gun. Hence, learned Senior counsel would submit that the learned Sessions Judge totally erred in convicting the accused for the aforesaid offences. The learned Senior counsel alternatively contended that the sentencing policy rendered by the learned Sessions Judge i.e., convicting the accused for the offence punishable under Section 307 of IPC by imposing life imprisonment is too harsh and the same cannot be sustainable in the case on hand. Hence, he prays to allow the appeal. Similar contention is made by learned counsel for accused No.2 with regard to role of accused No.2 and seeks for acquittal of accused No.2 for the offence levelled against him.
7. Per contra, Sri. Vijaykumar Majage, learned Additional SPP would contend that the judgment under appeal 10 does not suffers form any perversity or illegality and the same is based on the evidence available on record. According to him, learned Sessions Judge has rightly convicted the accused for the charges levelled against them by considering the evidence of PW.1-the injured, PW.2-the wife of the injured coupled with the evidence of the doctor who conducted the examination of the injured-PW.1. He would further contend that by perusal of the ingredients of Section 307 of IPC, the ingredients of the said section clearly attracts against these accused since there is a clear intention or motive is forthcoming on the part of the accused. Hence, the intention on the part of the accused is clearly proved. He would further contend that the conviction of the accused under Section 307 of IPC and also the sentence rendered for the life imprisonment to the accused is justified. He also contend that in respect of the recovery of Kovi at the instance of accused No.1, PW.12-the owner of the gun clearly stated that the gun belongs to him and licence was also obtained and the same is marked as Ex.P5-Mahazar. He also contend that the FSL officer-PW.13 clearly deposed in his evidence that the bullets were shot to PW.1-injured with the same gun, which 11 recovered at the instance of accused No.1. Hence, according to the learned Additional SPP, by perusal of all these materials, the prosecution clearly proved its case beyond the reasonable doubt. Accordingly, he prays to dismiss the appeals.
8. We have bestowed our anxious consideration on the oral and documentary evidence placed before us and also meticulously perused the material available on record including the trial Court records.
9. Having heard the learned counsel for the appellants and learned Additional SPP for the State, the points that would arise for our consideration are:
(i) Whether the judgment under this appeal suffers from perversity and illegality? and
(ii) Whether the learned Sessions Judge is justified in convicting the appellants for the offence punishable under Section 307 of IPC and Section 3 r/w Section 25 of the Indian Arms Act?
10. This Court being the Appellate Court, in order to re- appreciate the entire material on record, it is relevant to 12 consider the entire prosecution witnesses and the documents relied upon.
(i) PW.1-Prabhakar, who is the injured in this case, lodged the complaint stating that on 29.01.2022 at about 9:30 p.m., when he was in the kitchen and having his dinner, he heard some sound and bullet was hit on his head by piercing the window and due to the same, he was sustained injuries on his right shoulder and on his head. He also deposed that later, he learnt that accused No.1 had fired at him with Kovi belongs to accused No.3 taking it from the possession of accused No.2. Accordingly, he lodged the complaint as per Ex.P1 and he also identified Kovi-MO.1, the blood stained shirt-MO.2 and also window glass pieces as MO.3.
(ii) PW.2-Geetha, who is the wife of PW.1, reiterated the evidence of PW.1 and deposed about the incident dated 29.01.2022 and also about lodging of the complaint. She also identified MOs.1 to 3. In her cross-examination, she stated that at the time of incidence, she was not aware that accused No.1 caused the incident.
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(iii) PW.3-Veeresh is also witness for Ex.P3-seizure mahazar i.e., the seizure of MO.1-Kovi from the coffee estate situated near the house of accused No.1. The mahazar was drawn as per Ex.P3 and the said Kovi was marked as MO.1. According to this witness, MO.1 i.e, the Kovi belongs to accused No.3 and accused No.2 in turned handed over the same to accused No.1.
(iv) PW.4-Lokesh is the witness for Ex.P2-spot mahazar and also Ex.P3-seizure mahazar. This witness supported the case of the prosecution.
(v) PW.5-T.K.Raju deposed about the incident and also Ex.P2-spot mahazar and he deposed that he learnt that the gun allegedly used belongs to accused No.3 and taken by accused No.1 from accused No.2. This witness also deposed about the motive for the commission of the crime i.e., in respect of the financial aspect pertaining to the temple. 14
(vi) PW.6-E.S.Tammegowda is the witness for Ex.P3- seizure Mahazar. According to him, PW.1 informed him about the accused shooting him.
(vii) PW.7-Narayana Shetty deposed that on the previous date of incident, on the instruction of PW.1, he visited the house of the accused for the purpose of asking the temple money. Further, this witness states that the gun, which was allegedly used in the commission of the offence, belongs to accused No.3 and taken by accused No.1 from accused No.2.
(viii) PW.8-Nagarathna, who is none other than the wife of accused No.3, speaks about Ex.P4-seizure mahazar of licence of the gun. She had handed over the licence to police and the same was marked as Ex.P5.
(ix) PW.9-Naveen is the witness for Ex.P4-seizure mahazar of licence of the gun.
(x) PW.10-Dr.K.N.Harini, who treated PW1 and issued wound certificate as per Ex.P6. According to her, PW.1 was admitted with the history of gunshot by unknown persons. She 15 further deposed that the possibility of the wound being caused if the person is shot with MO.1.
(xi) PW.11-R. Manjegowda, who is the Police Constable, submitted the properties to FSL.
(xii) PW.12-Devarajagowda, who is the ASI at Yelasur, assigned the duty of seizing the licence of the gun and speaks about the same as per Exs.P4 and P5.
(xiii) PW.13-B.C.Ravindra is the author of Ex.P11-Ballistic report.
(xiv) PW.14-Dr.H.M.Gopalkrishana, the Deputy commissioner of Hassan, deposed about the sanction granted to prosecute the accused for the offence under the Indian Arms Act as per Exs.P14 and P15.
(xv) PW.15-M.Rathan Singh is the investigating officer, who speaks about conducting the investigation pursuant to the registration of FIR and other investigation procedure and through him Exs.P16 to P19 are marked.
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(xvi) PW.16-Dr.Rohan, who gave higher treatment to PW.1 and Exs.P20 to P31 are marked through this witness.
(xvii) PW.17-Sri B.S.Shivarudra is the investigating officer, who conducted the further investigation in the matter by arresting accused No.2 and recording his voluntary statement.
(xviii) PW.18-Venkatesh.C is the investigating officer, who partially investigated the matter and recorded the voluntary statement of accused No.3.
(xix) PW.19-H.B.Siddesh received the sanction for the District Commissioner to laid the charge sheet against the accused.
(xx) PW.20-Dr.Ullas Shetty who treated PW.1 and issued wound certificate as per Ex.P32 i.e., in respect of the further treatment of PW1.
11. By careful perusal of the evidence on record, PW.1 in his evidence categorically stated that on 29.01.2012 at about 9:30 p.m., when he having his dinner, accused No.1 shot with 17 MO.1-Kovi and thereby, he sustained injuries on his head and other parts of the body. He was admitted in the hospital and thereafter, the police recorded his statement as per Ex.P1- complaint. He also categorically stated that the motive behind the incident i.e., pertaining to the funds of Muneshwara swamy temple. PW.1 also identified the Kovi-M.O.1. In his cross examination, nothing worthwhile was elicited by the defence to disbelieve his version. The evidence of PW.1 is supported by the evidence of PW.2, who is none other than the wife of the injured. Her evidence is quite consistent with the evidence of PW.1 in respect of the incident and injury caused to PW.1 and also she categorically stated that accused No.1 committed the incident due to ill-will pertaining to the funds of Muneshwara Swamy Temple.
12. The motive or the intention part is considered apart from PW.1 and PW.2, PW.3-Veeresh also clearly deposed that the alleged incident was caused due to the difference of opinion raised between PW.1 and accused No.1 in respect of the funds of Muneshwara Swamy Temple. The evidence of injured witness 18 and eyewitness i.e., PW.2 corroborates with the evidence of PW.3. As far as the recovery of MO.1-Kovi at the instance of accused No.1 from the coffee estate situated near to his house is concerned, the said PW.3 categorically deposed that at the instance of accused No.1, the MO.1-Kovi recovered under Ex.P3- Mahazar. Hence, the recovery of MO.1 also proved by \the prosecution.
13. By perusal of the evidence of the Doctor-PW.10 coupled with Ex.P6-wound certificate, there are three injuries found in the body of the victim and those injuries are on the vital part of the body of PW.1. Though, the injured was initially treated at Government Hospital, Somavarapet, subsequently he was shifted to Mangalore City Hospital for higher treatment. The Doctor clearly opined that the injuries found in Ex.P6 could be caused from gunshot. Hence, it is clear that PW.1 sustained gun injuries and the said gun was seized at the instance of accused No.1 and also by perusal of the evidence of PW.1 and PW.2, it is clear that accused No.1 committed the act by shooting PW.1 with an intention to commit his murder. In the evidence of 19 PW.13-FSL officer, he deposed that he examined Kovi-MO.1 and the pellet seized by the police in the house of PW.1 could be fired from MO.1-Kovi. As such, by perusal of the evidence of PW.13, it is clear that accused No.1 committed the alleged offence. PW.1 also treated by PW.16-Dr.Rohan at City Hospital, Mangalore and he clearly deposed that the pellet was found in the head of PW.1 and by surgery, they removed the same and the said pellet was marked as MO.7. Further, he opined that the injuries sustained by PW.1 are grievous in nature. Accordingly, he issued Exs.P20 to P32. Hence, by careful perusal of the evidence of PW.16, it is clear that the act of the accused clearly comes within the ambit of Section 307 of IPC i.e., accused No.1 fired PW.1 with an intention to commit his murder by MO.1 and caused the grievous injuries.
14. Though the case of the prosecution is that MO.1 belongs to accused No.3 and accused No.3 handed over the same to accused No.2 and in turn, accused No.2 handed over the same to accused No.1 and thereby, accused No.1 committed the act and by considering such evidence available on record, 20 the learned Sessions Judge acquitted accused No.3 for the charges levelled against him for the offence punishable under section 307 of IPC and also Section 3 r/w Section 25 of the Indian Arms Act and convicted only for the offence under Section 30 of the Indian Arms Act.
15. However, on careful perusal of the evidence available on record, in order to prove the act of accused No.2 that he obtained MO.1 from accused No.3 and thereafter, handed over to accused No.1, none of the witness deposed before the Court on that aspect of the matter. Though PW.1 and PW.2 stated in respect of the same, it is only assumption and presumption and there is no cogent evidence to prove the same. Hence, in our considered opinion the prosecution failed to prove any of the charges levelled against accused No.2 for the offence punishable under Section 3 r/w Section 25 of the Indian Arms Act. Accordingly, the conviction imposed by the trial Court against accused No.2 is liable to be set aside. However, the prosecution proved the charges levelled against accused No.1 for the offence 21 punishable under Section 307 of IPC and Section 3 r/w Section 25 of the Indian Arms Act.
16. However, the contention of the learned Senior counsel that the sentencing policy rendered by the learned Sessions Judge i.e., convicting the accused for the offence punishable under Section 307 of IPC by imposing life imprisonment is too harsh and this Court may take a lenient view by modifying the same is concerned, we are of the opinion that there is force in the submission made by the learned Senior counsel.
17. Thus, taking into consideration the peculiar facts and circumstance of the case since the prosecution failed to prove the motive on the part of the accused beyond reasonable doubt, we are of the considered opinion that the accused persons have made out a case for reduction of sentence under the provision of Section 307 of IPC instead of life imprisonment.
18. The Hon'ble Apex Court while considering the provisions of Section 307 of IPC in the case of State of Madhya 22 Pradesh vs Harjeet Singh and another reported in AIR 2019 SC 1120 held as under:
"5.6 Section 307 uses the term "hurt" which has been explained in Section 319, I.P.C.; and not "grievous hurt" within the meaning of Section 320 I.P.C.
If a person causes hurt with the intention or knowledge that he may cause death, it would attract Section 307.
This Court in R. Prakash v. State of
Karnataka,1 held that :
"...The first blow was on a vital part, that is on the temporal region. Even though other blows were on nonvital parts, that does not take away the rigor of Section 307 IPC....... It is sufficient to justify a conviction under Section 307 if there is present 1 (2004) 9 SCC 27 an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Sections makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section."
(emphasis supplied) If the assailant acts with the intention or knowledge that such action might cause death, and hurt is caused, then the provisions of Section 23 307 I.P.C. would be applicable. There is no requirement for the injury to be on a "vital part" of the body, merely causing 'hurt' is sufficient to attract Section 307 I.P.C"
19. Section 307 uses the term hurt which has been explained in Section 319 IPC and not grievous hurt within the meaning of Section 320 IPC. If a person causes hurt with the intention or knowledge that he may cause death, it would attract Section 307 of IPC. The Hon'ble Apex Court in the case of Jage Ram vs. State of Haryana reported in (2015) 11 SCC 366 held that for the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 of IPC, it is not essential that fatal injury capable of causing death should have been caused. Although, the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the 24 accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of the injuries and severity of the blows given etc.
20. The Hon'ble Apex Court in the case of Murali vs. State represented by inspector of Police reported in 2021 (1) SCC 726 taking into consideration the age of the accused and complainant has proceeded to reduce quantum of sentence to 1 year 8 months instead of 5 years and in the case of Fireman Ghulam Mustafa v. State of Uttaranchal (Now Uttarakhand) reported in AIR 2015 SC 3101 wherein the Hon'ble Apex Court converted the offence under Section 307 of IPC into Section 325 of IPC and sentenced to undergo 3 years rigorous imprisonment and to pay a fine of Rs.5,000/- and in default, to undergo rigorous imprisonment for one month.
21. Taking into consideration the principles laid down by the Hon'ble Apex Court stated supra and also taking into 25 consideration the peculiar facts and circumstances of the present case that PW.1 and PW.2 have not specifically stated that at the time of lodging the complaint or at the time of the incident that accused No.1 who fired to PW.1. Later, PW.1 informed the police that accused No.1 might have committed the offence. Further, by perusal of the prosecution case, it could be gathered that there is no such intention on the part of accused No.1 to commit the murder of PW.1 for the reason that accused No.1 fired the injured from the outside of the house and admittedly, the bullet pierced the window of the house and hit PW.1. Hence, on the said peculiar circumstance, we are of the considered opinion that, in the interest of justice, the punishment imposed on accused No.1 for the offence punishable under Section 307 of IPC i.e. the life imprisonment has to be reduced for the period which the accused already undergone i.e., two years and with a fine of Rs.1,45,000/- for the offence under Section 307 of IPC instead of Rs.40,000/- imposed by the trial Court.
22. For the reason stated above, the points raised in the present appeals are answered accordingly and the accused 26 persons have made out a case for interference with the impugned judgment of conviction and order of sentence by reducing the sentence. However, the fine amount imposed by the trial Court for the offence punishable under Section 307 of IPC i.e. Rs.40,000/- is enhanced to Rs.1,45,000/-. As far as the other sentences and fine amount imposed by the trial Court in respect of Section 3 r/w Section 25 of Indian Arms Act is concerned, the same is kept intact. The additional fine amount of Rs.1,05,000/- has to be deposited by accused No.1 within one month from the date of receipt of copy of this order.
23. In view of the above, we pass the following:
ORDER
i) Criminal appeal No.1671/2016 filed by accused No.2 hereby allowed.
ii) The judgment of conviction and order of sentence passed in S.C.No.208/2014 dated 08.09.2016 by the II Addl. District and Sessions Judge, Hassan is hereby set aside in respect of accused No.2 for the offence punishable under Section 3 r/w Section 25 of the Indian Arms Act.
iii) Accused No.2 is hereby acquitted of the charges levelled against him.
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iv) The bail bond executed by accused No.2 stands cancelled and the fine amount, if any deposited, before the trial Court, the same shall be refunded to him on due identification.
v) Criminal appeal No.1856/2016 filed by accused No.1 hereby allowed in part.
vi) The judgment of conviction and order of sentence passed in S.C.No.208/2014 dated 08.09.2016 by the II Addl. District and Sessions Judge, Hassan in respect of accused No.1 is hereby modified.
vii) Accused No.1 is sentenced for the offence punishable under Section 307 of IPC and Section 3 r/w Section 25 of the Indian Arms Act for the period which he has already undergone i.e., two years. Further, he is directed to pay a fine of Rs.1,45,000/- for the offence punishable under Section 307 of IPC instead of Rs.40,000/-
imposed by the trial Court in default, he is sentenced to undergo imprisonment for a period of one year.
viii) Accused No.1 shall deposit the fine amount within one month from the date of receipt of copy of this order, failing which, learned Sessions Judge is directed to secure the presence of accused No.1 to commit him to prison to undergo default sentence.
ix) Fine amount, if any, already paid by the appellants/accused Nos.1 and 2, the same shall be adjusted towards the fine amount imposed for the offence punishable under Section 307 of IPC and Section 3 r/w Section 25 of the Indian Arms Act.
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x) In exercise of powers under Section 357(3) of Cr.P.C., we direct that the amount already deposited by the appellants and the remaining fine amount deposited by the accused i.e., a total sum of Rs.1,50,000/- shall be paid to PW.1-Prabhakar (injured) on proper identification.
xi) Registry is directed to send back the trial Court records along with copy of the order to the learned Sessions Judge, forthwith.
Sd/-
JUDGE Sd/-
JUDGE VM