Karnataka High Court
State Of Karnataka vs Mudagal Sab And Ors. on 31 May, 2002
Equivalent citations: 2002CRILJ3992, 2003(2)KARLJ358
Author: Manjula Chellur
Bench: Manjula Chellur
JUDGMENT Kumar Rajaratnam, J.
1. A-1 to A-9 were charge-sheeted by the Kushtagi Police Station for offences punishable under Sections 143, 147, 148, 302, 324 and 504 read with Section 149 of the IPC. The Trial Court in S.C. No. 125 of 1995 on the file of the Additional Sessions Judge, Raichur, convicted A-l and A-7 for offences punishable under Section 302 of the IPC. A-4 and A-5 were convicted under Section 324 of the IPC.
2. A-l and A-7 have been sentenced to imprisonment for life for offence under Section 302 of the IPC and also to pay a fine of Rs. 2,000/-in default to undergo R.I. for six months.
3. A-4 and A-5 were sentenced to undergo R.I. for a period of two months and since they have already undergone the said period in judicial custody they were set at liberty.
4. A-2, A-3, A-6, A-8 and A-9 were acquitted of all the charges.
5. The State has preferred Cri. A. No. 36 of 1998 against those accused who are acquitted by the Trial Court.
6. A-l and A-7 have preferred Cri. A. No. 949 of 1997 against their conviction and sentence for offence punishable under Section 302 of the IPC. A-4 and A-5 have preferred Cri. A. No. 950 of 1996 against their conviction under Section 324 of the IPC.
7. All the appeals are taken up together since they arise out of a common judgment in B.C. No. 125 of 1995.
8. The prosecution case in brief is as follows.--
In a village known as Sirugumpi Village, there were two groups of a Muslim community performing Muharram function by turn. During that function Tajias are installed in a mosque situated at Sirugumpi. At the end of the festival a function is also to be celebrated which is known as Ziarat. Under Ziarat it is a common custom to feed poor people. The cooking utensils are provided by the mosque. The utensils were in the custody of the accused during the relevant point of time. In the year 1995 it was P.W. 11's and his family members who were to perform the function.
9. With respect to the motive for the occurrence it appears that there was a long standing enmity between the accused party and the deceased party. The prosecution case is that the father of A-1 was murdered some time in the year 1992. The criminal case was filed against the father of P.W. 11, P.W. 11 and the some other persons. The case ended in an acquittal. The accused believed that the father of P.W. 11, P.W. 11 and his brother were responsible for the death of A-1's father. This had enhanced the bitterness between the accused party and the deceased party.
10. P.W. 11 went to the accused and requested A-l to give the utensils, so that he could prepare food for the function. A-l flatly refused to hand over the utensils. P.W. 11 used his own utensils and cooked food and served the poor.
11. After the function was over the key to the mosque was to be handed over to the accused as it was the turn of the accused to celebrate the Muharram festival next year. Since there was some bitterness between the parties and since the utensils were not handed over to P.W. 11, P.W. 11 wanted to hand over the key to the accused in the presence of the Panchayatdars. The deceased party as well as the accused party were present at the panchayat. At the panchayat the key was handed over to A-l. P.W. 11 at the panchayat made a provocative statement stating that since the accused did not hand over the utensils to him the utensils should not be given to any persons for cooking food. This enraged the accused persons. A-4 got up and abused P.W. 11 in vulgar language. A-5 picked up a cart-peg and assaulted P.W. 11 causing bleeding injuries. The father of P.W. 11-Hassansab (D-1) who was present in the panchayat tried to rescue P.W. 11 and asked accused persons as to why they are assaulting P.W. 11. At that time, A-3 grabbed D-l stating that the last year, father of A-l by name Hassansab was killed by him, but the case ended in an acquittal and therefore the entire family of D-l has to be wiped out. A-3 instigated others to catch hold of D-l and thereupon A-l went inside his house and brought a sword and assaulted D-l on head, neck, left side of chest and the hands several times; in the result D-l fell down and died on the spot. Seeing this incident, D-l's another son Abdulsab (D-2) and brother of P.W. 11 intervened and tried to rescue his father D-1 asking the accused not to assault his father. Again D-2 was grabbed by A-6, A-5, A-4, A-3 and A-7 and A-1 assaulted D-2 with the same sword on the right side of neck, on the face, on the hands, on legs and on the head as a result D-2 also fell down and died at the spot. The house of P.W. 11 is just 5 away from the panchayat katte and on hearing the shouts and cries, the wife of D1-Alyasha Bee (D-3) along with her daughter Hussain Bee (D-4) rushed to the spot. On seeing D-3 and D-4, A7-Murtuza Sab declared that two more persons of the family have come and they shall be wiped out and by that time A-l assaulted D-3 and D-4 on their head, neck, stomach and hands several times causing bleeding injuries.
12. Even though there were large number of witnesses to this incident, they were terribly afraid of accused persons and they did not try to save the injured. Thereafter accused went away from the spot taking the sword with them. The cart-peg which was used to assault P.W. 11 was thrown at the spot. Abdulsab (D-2) and Hassansab (D-1) died at the spot. However, Alyasha Bee (D-3) and Hussain Bee (D-4) were still alive and in order to save their lives P.W. 11 made immediate efforts to put them in the cart and to take them to nearest hospital for treatment at Kushtagi. In the meanwhile on hearing the commotion, P.W. 15-Sha-ranappa who is the Dalpathi of the village contacted the Kushtagi Police over phone and on receiving the phone message P.W. 27-P.S.I., Sureshbabu rushed to the spot. On reaching the spot, he found two persons lying dead at the spot and two persons were seriously injured. He made arrangements to shift the injured persons to Kushtagi Hospital and then recorded the statement of P.W. 11 at the spot and obtained his signature and the said complaint, Ex. P. 30 was sent through P.W. 18-Gurushan-tappa, P.C. 405 to the Kushtagi Police Station and he handed over the same to P.W. 25-Somangouda, P.S.I. who was the S.H.O. at that time. P.W. 25 registered a case against accused persons in his P.S. Cr. No. 62 of 1995 and submitted the FIR to the jurisdictional Magistrate. In the meanwhile two injured persons who were being shifted to the hospital succumbed to the injuries on the way and then their dead bodies were shifted to Kushtagi Hospital. The injured P.W. 11 was also sent to hospital for treatment.
13. The investigation was taken up and during the course of investigation, inquest mahazars on the four dead bodies were prepared and they were subjected to post-mortem examination. P.W. 7-Dr. Ashok not only examined P.W. 11 but also conducted post-mortem examination on the dead bodies of D-l and D-2. P.W. 8-Dr. Abdul Salam conducted post-mortem examination on the dead bodies of D-3 and D-4. During the course of investigation, a spot mahazar was prepared and large number of bloodstained mud was obtained and the same was sent for chemical examination. A cart-peg lying at the spot was also seized. P.W. 24-Neelakantappa, Assistant Engineer at the request of P.S.I, prepared a sketch of the scene of offence as per Ex. P. 34. P.W. 16-Sharanappa was the driver of the bullock cart who took the injured persons to the hospital. P.W. 26-Sadanand, CPI, P.W. 27-S.N. Suresh, P.S.I, and P.W. 28-Ja-gadish, CPI have conducted investigation and after completing the investigation filed charge-sheet against accused persons for the alleged offences.
14. The prosecution has examined P.Ws. 1 to 28 and has relied on Exs. P. 1 to Ex. P. 35 and marked M.Os. 1 to 19 and during the course of cross-examination Exs. D. 1 to D. 12 were marked.
15. To appreciate the veracity of the case of the prosecution it would be necessary to deal with the injuries sustained by P.W. 11. P.W, 11 is perhaps the only eye-witness who can speak about the incident and being an injured witness there cannot be any doubt that he was an eye-witness to the gruesome murder of four persons belonging to his family. P.W. 11 was examined by Dr. Ashok, P.W. 7 on 13-6-1995 at about 10.15 a.m. He noticed the following injuries on P.W. 11:
"One lacerated wound over the right parietal region, vertically situated, measuring 3" x 1/4" x bone deep. Hairs matted with clotted blood, surface red, contusion of surrounding area present, edges regular and retracted. Clotted blood present in the wound".
He opined that the injury sustained by P.W. 11 was simple in nature.
16. Undoubtedly, the evidence of P.W. 11 being an injured witness will have to be taken into account when dealing with the case of the prosecution as an eye-witness.
17. For the sake of completion it would be appropriate to deal with the injuries on the deceased D-1 to D-4 as per the post-mortem reports.
18. D-l is the father of P.W. 11. Ex. P. 13 is the post-mortem report of D-l. The post-mortem report indicates the following external injuries:
"1. Cut lacerated wound in the occipital region of the head, vertical in direction, measuring 2" x 1" x brain deep. Edges are smooth, regular and swollen and ecchymosed, edges are retracted and gaping present, wound contains clotted blood. There is comminuted fracture of occipital bone underneath and fragments in brain matter.
2. A cut lacerated wound on left side of the forehead, oval in shape, skin is separated and attached to the flap of the skin, posteriorly; measuring 2" x 1" x bone deep, underlying bone visible, surface is red, contained clotted blood, edges are regular, swollen and ecchymosed. There is a gaping of edges. There is comminuted fracture of left frontal bone, and there is a laceration of meninges and brain.
3. A cut lacerated wound, on the left side of the neck, transversely equated, behind the sternomastoid 1" below angle of mandible, measuring 2" x 1" x muscle deep. Edges are regular, swollen, ecchymosed and retracted, gaping of wound present, contained dark clotted blood. Laceration of muscle underlying present.
4. Cut lacerated wound over the face at left angle of mandible, oblique in direction, measuring 2" x 1/2 x bone deep. Clotted blood present in wound, edges are regular, swollen, ecchymosed and retracted, gaping of wound present. There is comminuted fracture of angle of mandible.
5. Cut lacerated wound on the chin x left side oblique in direction, measuring 1 1/2" x 2" x 1". Edges regular swollen, ecchymosed, retracted. There is gaping of wound contained clotted blood. It is bone deep. There is comminuted fracture of mandible, beneath and fracture, dislocation of 2" incisors, 1 canine, 1 premolar.
6. Traumatic amputation of the right index finger, at middle phalanx, amputated part is missing, edges are smooth, regular swollen, ecchymosed and retracted. Bone edges are regular. It is the middle phalanx.
7. Cut lacerated wound on the dorsum of middle finger, vertical measuring 2 1/2" x 1/2", edges are smooth, regular, swollen, ecchymosed, retracted. Contained clotted blood. The wound is muscle deep.
8. Abrasion on left shoulder triangular, measuring 2" x 1/2" blood clots present, edges are swollen, ecchymosed".
All the injuries are ante-mortem in nature. They were caused by sharp heavy cutting object like sword (M.O. 2). However, Doctor, P.W. 7 says that the cause of death was due to injury Nos. 1 to 4. He has failed to state that whether the injuries are fatal. It is safe to assume that the injuries of D-1 are necessarily fatal.
19. We shall now deal with the injuries sustained by D-2, Abdulsab. Ex. P. 14 is the post-mortem report of D-2. P.W. 7-Doctor noticed the following external injuries on D-2:
1. Cut lacerated wound on the forehead extending from just above left temple, descending downwards to left eyebrow, then traversing horizontally across the bridge of nose, measuring 7" x 1/2". Edges of wound are regular, retracted, swollen, ecchymosed. The surface is formed by the bone. There is horizontal fracture of left frontal and comminuted fracture of left temporal bone. Meninges and brain underneath are torn.
2. A cut lacerated wound across the face, situated just above left maxillary process, extending upto right cheek through tip of nose. It is parallel, and 1 c.m., below injury No. 1, injury measuring 7" x 1/2" x bone deep. Edges are regular, retracted and swollen, with ecchymotic changes, there is comminuted fracture of left maxilla and right maxilla. Right eyeball is lacerated. Clotted blood present in the wound. There is a fracture of cartilage of nose, gaping of wound present.
3. A cut lacerated wound on the chin, extending from 1 c.m., below right angle of mouth, remaining horizontally over the chin, extending upto middle of right mandibular area measuring 5 x 1/2" x clotted blood present, edges are regular, retracted, swollen and ecchymosed, there is a comminuted fracture of mandible and lower incisor broken, comminuted fracture of right half of mandible. Gaping of wound present.
4. A cut lacerated wound on right lateral aspect of neck, extending anteriorly, from base of right angle of mouth posteriorly upto the spine of 3rd cervical vertebrae, injury measuring 6 1/2" x 1/2" x 1 1/2" edges are regular, swollen, ecchymosed, clotted blood is present, in and around wound, gaping of wound present. The vertebrae column as cut at level of 3rd cervical vertebrae and spinal cord is cut.
5. A cut lacerated wound on the dorsum of right hand extending from base of middle finger, upto the thinner minance, measuring 3" x 1 1/2" edges smooth, regular, ecchymosed, the medial of metacarpal are completely cut-off from proximal of the hand, and attached by 5th metacarpal to distal part. The edges of wound are retracted, contained clotted blood.
6. Traumatic amputation of right index finger at the middle of phalanx, edges smooth, regular, ecchymosed and retracted, amputated part is missing. Exposed phalanx, edges smooth, regular.
7. A cut lacerated injury of the middle and ring finger with partial amputation, attached by flap of skin (ventral surface), and there is traumatic amputation of right little finger at lower level of middle phalanx, edges of wound are regular, swollen, ecchymosed.
8. A cut lacerated wound in the middle of right thigh, in front, situated horizontally, measuring 3 1/2" x 1 1/2" x bone deep, edges are regular, swollen, ecchymosed, retracted, gaping of wound is present, clotted blood is present in wound, underline muscle is torn, exposed thigh bone (femur). There is comminuted fracture of soft of femur.
9. The lacerated wound in the middle of left thigh situated in front, it is horizontal, measuring 3 1/2" x 1" x muscle deep, edges are regular, swollen, ecchymosed, retracted, gaping of wound is present, wound contained clotted blood and underlying muscle is torn".
20. The doctor again makes the same mistake by not stating that the injuries are necessarily fatal. However, from the nature of the injuries and taking into account that the deceased died on the spot it can be safely said that the injuries on D-2 are necessarily fatal.
21. P.W. 8-Dr. Abdul Salam conducted post-mortem on Asha Bee, D-3, mother of P.W. 11. Ex. P. 19 is the post-mortem report. The doctor noticed the following injuries on D-3:
"(i) One elliptical shaped cut lacerated wound, situated over the top of the head and extending posteriorly to the occipital protuberance. It is situated at distance of 1 1/2" to the right of midline. It is gaping, surface of the wound is red in colour. The edges are regular, retracted, the underlaying bone is fractured, the main fracture line corresponding to the external injury. The fracture is having fine edges with some comminution; on dissection of the wound, 4 small fragments of the bone are found, deep in the wound. The meninges are torn and brain matter underlaying the wound is lacerated to a depth of 1". There is clotted blood present. This external injury measures 8" x 1" x brain deep.
(ii) There is a circular (roughly) shape lacerated wound adjacent to the injury No. 1, over the head, surface of the wound is red in colour, the edges are fine, regular, retracted, flap of the skin attached marginally at the posterior aspect. This ante-mortem injury measures 6" in circumference, and it is brain deep. The underlaying bone is fractured (comminuted). On dissection of the wound, the brain matter corresponding to the injury is lacerated to a depth of 3/4" and clotted blood present.
(iii) There is a cut lacerated wound, situated over the adjacent and to the left of injury No. 1 (stated above), it is parallel to injury No. 1, mentioned and to the midline and extends from the top of the head to the backward and onwards upto the occipital protuberance and where it diverges laterally. The surface of the wound is red in colour, the edges are fine, regular and retracted, gaping present. There is clotted blood present in the wound. This wound measures 6" x 3 1/4" x 1" (depth), in frontal aspect of 2" depth at the posterior aspect of it. On dissection of this wound, I found underlaying bone was having comminuted fracture and there was laceration of meninges and brain matter underneath.
(iv) There is punctured wound situated over the right iliac region of the abdomen, it was penetrated the abdomen cavity. It is gaping, dark fluid blood is dripping through it. The edges are regular and retracted. This injury measures 1 1/2" x 1/8" x depth to abdominal cavity.
(v) A traumatic amputation of middle and ring finger of right hand at the level of middle of phalanx the stum has regular edges and smooth surface, clotted blood present. The distal part are absent.
(vi) Cut lacerated wound, situated over the right hypochondria region of the abdomen, horizontal in direction, gaping, the edges are retracted. The surface of the wound red in colour, this external injury measures 1" x 1/4" x stomach deep".
Doctor gave his opinion that the cause of the death was due to coma as a result of brain laceration.
22. The P.W. 8 also conducted the post-mortem of D-4, Hussain Bee, sister of P.W. 11. Ex. P. 20 is the post-mortem report of D-4. The doctor noticed the following external injuries:
"(i) There is cut lacerated wound situated over the left temporal region of the head. It is traversely placed and extends from lateral angle of the left eye, traverses back over the temporal region posteriorly, there is a dark clotted blood in and around the wound. The surface of the wound is red, edges are smooth. Retracted, wound is gaping, the underlaying bone (temporal bone) has comminuted fracture, there is dent (gap) in the fracture, through which the brain matter can be palpated with the tip of finger. The wound measures 6" x 1" x brain deep at its anterior aspects (1/4) and bone deep at its posterior aspects (2/3).
(ii) There is cut lacerated wound situated over the back of the neck at the level of 2nd cervical vertebra, traversely placed, extending and traversing over the left lateral aspect of the neck, and ending at the posterior of the sternocleidomastoid muscles. The edges of wound are fine, regular, retracted, ecchymosis present, the surface of the wound is red. The wound measures 4" x V" x 2", laterally and bone deep posteriorly on palpation with the fingers, the transverse process underlaying muscles over the lateral external aspect of neck are lacerated.
(iii) There is cut lacerated wound situated over the anteromedial aspect of right elbow joint, oblique in direction, traversing medially upwards. The edges are smooth and retracted. The surface is red, clotted blood present, on and around the wound. Blood vessels, tendon, are exposed and lacerated at the cubital fossa. There is fracture of the medial-epicondyle of humerus (arm bone). The wound measures 3" x 1/2" x variable depth.
(iv) There is a lacerated wound situated over the dorsum (back) of the left forearm, edges are clear, regular, retracted, surface of wound is red, clotted blood present, wound is gaping. The wound measures 11/2" x 1/2" x bone deep. The underlaying bone i.e., ulna has a compound comminuted fracture, at middle 1/3rd.
(v) There is a traumatic amputation of the left hand. The wound passing from the web space between thumb and index finger passing obliquely, medially and proximally, towards the base of 5th metacarpal bone. The separated (distal) part is attached only through a flap of skin. The wound has fine regular edges. The surface is smooth and red clotted blood present.
(vi) There is cut lacerated wound, situated on the lateral aspect of left knee, it is oblique, gaping, edges regular, retracted, surface red, clotted blood present. The wound measures 1 1/2 x 1/4" x bone deep.
(vii) A cut lacerated wound situated over the lateral aspect of middle l/3rd of left leg. It is transverse. It has regular and retracted edges, the surface is red. Clotted blood is present. It measures 2" x 1/4" muscle deep".
The doctor opined that the death was due to coma as a result of the injury to the brain and spinal cord.
23. Undoubtedly, from the nature of the injuries sustained by D-1 to D-4 one must inevitably conclude that the accused assaulted the deceased D-1 to D-4 with venom, ferocity and with incredible brutality.
24. P.W. 11 is an injured witness. We shall now deal with the evidence of P.W. 11 with respect to the occurrence that took place which resulted in his entire family being wiped out. P.W. 11 states that at about 8.30 a.m. he and his father, D-1 and elder brother, D-2 and his two other elder brothers along with A-1 to A-9 were sitting at the panchayat katte. P.Ws. 1, 2, 3 and 6 were the panchayatdars. The purpose of the panchayat was to enable P.W. 11 to give the keys of a mosque to the panchayatdars who in turn were to give it to A-3 since it was A-3's turn for performing the Muharram festival the next year.
25. At the panchayat A-4 abused P.W. 11 and his family by using filthy language. At that time A-5 took a bullock cart-peg, M.O. 1 and assaulted P.W. 11. The father of P.W. 11, D-1 intervened. It appears that there was total commotion after that. A-7 was grabbling with D-1. A-2 to A-6, A-8 and A-9 caught hold of D-1. A-1 proclaimed that justice will be done to their family if D-1 is assaulted. A-1 went inside his house and brought out a sword, M.O. 2 and assaulted D-1 mercilessly. When D-2 tried to intervene he was also assaulted by A-6, A-5, A-4, A-3 and A-7 along with A-1. D-1 and D-5 following the brutal attack died on the spot. Then the mother of P.W. 11-Asha Bee (D-3) and the sister of P.W. 11-Hussain Bee (D-4) came running and started weeping. A-7 took the sword from A-1 and assaulted the mother (D-3) of P.W. 11 on her head mercilessly. A-7 also assaulted the sister of P.W. 11-Hussain Bee (D-4). Both D-3 and D-4 also fell down.
26. According to P.W 11 the panchayatdars did not come to the rescue of the deceased due to fear. In the words of P.W, 11 it is stated as follows:
"At that time P.W. 1, P.W. 2, P.W. 3, P.W. 6 and Mahantappa by sitting on the katte of panchayat were seeing this incident and they did not come for the rescue of us, due to fear, that accused will assault them. After assaulting us, all the accused, went away to their house".
27. P.W. 11 realised that his father and brother D-1 and D-2 were dead, but there was some hope for his mother (D-3) and sister (D-4), since they were alive and therefore he was in search of a bullock cart for transporting D-3 and D-4 to hospital.
28. In the meanwhile the police arrived. The P.S.I. on a telephonic message rushed to the scene of occurrence and took the complaint from P.W. 11 as per Ex. P. 30. After giving the complaint D-3 and D-4 were shifted in a bullock cart to Kushtagi Government Hospital. When the bullock cart was at a distance of 10 k.ms. from Kushtagi, D-3 and D-4 died. After that P.W. 11 took the dead bodies to the Government Hospital, Kushtagi. P.W. 11 was given treatment by P.W. 7 and was discharged after two hours.
29. This would obviously be an open and shut case for an offence of murder against the accused, but for certain vital and crucial admitted facts which were not a part of the prosecution case. By this we mean the unexplained grievous injuries sustained by the accused party. Before we deal with the injuries on the accused and members of their family it is necessary to note that P.W. 11 himself admits that when the police came to the scene of occurrence there were 7 injured persons near the house of A-l. He however, categorically denies that A-1, A-2, A-4 and A-5 had sustained injuries.
30. It is imperative we record that portion of the cross-examination of P.W. 11 which deals with this crucial aspect, which is as follows.--
"On the date of incident the accused 1, A-2, A-4, A-5 had not sustained any injury in this incident. On the date of incident or during the incident whether father of A-4 namely, Murtuza Sab had sustained any injury, is not known to me. Mother of A-7 namely, Hussain Bee in this incident had not sustained any injuries. In this incident Raja Bee, the mother of A-2, had not sustained any injury during this incident. Again I say in this incident only four persons had sustained injuries and all these four injured had died".
31. Now we deal with P.W. 1, who appears to be a coward. He denies that he ever went to the panchayat and also denies seeing the occurrence. He was treated hostile. Nothing much was elicited by the State in the cross-examination.
32. P.W. 2 who was also a panchayatdar denies that he was a witness to the occurrence. He was also treated hostile. There does not appear to be any useful information to support the prosecution in the cross-examination.
33. The prosecution suffers the same fate with respect to P.W. 3, who was also a panchayatdar, P.W. 3 was treated hostile and denies seeing the occurrence.
34. P.W. 4 who was an eye-witness also did not support the prosecution.
35. P.W. 5, another eye-witness claims that he was present at the panchayat, but does not support the prosecution with respect to the assault by the accused on the deceased. He was obviously treated hostile.
36. P.W. 6 is the mahazar witness to the inquest. Even he does not support the prosecution.
37. P.W. 7 is the doctor who examined P.W. 11 and conducted postmortem on D-1 and D-2 whose evidence we have referred to earlier. P.W. 7, the Doctor is a vital witness, who explains the injuries on the accused which we shall deal with in detail in the later part of the judgment.
38. It is rather unfortunate that the injuries on the accused and on their family members had to be brought out only in the cross-examination of P. W. 7.
39. Time and again the Supreme Court has held that if the injuries on the accused are brought out during the case of the prosecution the Courts will be in a better position to understand the genesis.
40. By bringing out the entire case of the prosecution the Courts will be better placed to do complete justice taking into account the whole of the prosecution case.
41. In a gruesome ghastly murder of four persons including two womenfolk the prosecution would have been better placed to bring out the entire case of the prosecution including the injuries sustained by the accused. If that was done it will not in any way whittle down the case of the prosecution. On the contrary it will enhance the credibility of the prosecution case, which will certainly result in the accused not going scot-free. This is not a case where the accused could have denied their presence at the scene of occurrence since the accused also sustained grievous injuries and their presence by inference was admitted. The Division Bench of this Court in the case of Rame Gowda and Anr. v State of Karnataka, 1999(3) Kar. L.J. 5 : ILR 1999 Kar.1120 : 1999 Cri. L.J. 1759 (SC) has held as follows.--
"39. Needless to say that if the injuries on the accused are superficial it would not be necessary to explain the injuries found on the accused. Ultimately, it depends on facts of each case. However, if the injuries found on the accused are serious in nature and the injuries are on a vital part of the body it would be the duty of the prosecution to explain the injuries.
40. In this case it is most unfortunate that serious injuries sustained by A-1 during the occurrence had to be brought out in evidence only during cross-examination.
41. The prosecution ought to have placed the entire evidence before Court including the evidence by the doctor who treated A-l and A-2.
42. Suppose for a moment the defence was not able to lay hands on the wound certificate given by the doctor with respect to the injuries on the accused, it would have lead to a travesty of justice. If the whole truth is placed before the Court, the Court would be in a better position to appreciate the evidence. This not having been done, the Court will have to determine what is the nature of the offence committed by A-2 and A-3".
42. It is also the case where the police were aware that the accused party sustained grievous injuries. As stated earlier the injuries sustained by the accused will be dealt with in detail later. When the prosecution had the benefit of the wound certificate of the accused there was a duty cast on the prosecution to explain the injuries sustained by the accused. It is not necessary that in all cases that the injuries on the accused should be explained by the prosecution, for example if the injury on the accused is a superficial injury then it is not necessary to explain the injury. Again for example to the injuries on the accused from the nature of the evidence could be understood to have been sustained by the accused during the brutal attack on the deceased, then those injuries on the accused may not be fatal to the prosecution. However, where the accused have sustained grievous injuries on the vital parts of the body in the course of the same occurrence then there is a gap in the prosecution case and the case of the prosecution loses some credibility.
43. In the light of this statement of law it would be necessary for this Court to analyse carefully the injuries sustained by the accused and to determine whether the injuries occurred during the course of the occurrence and if so whether the non-explanation of the injuries on the accused would have bearing on the prosecution case. The doctor who examined P.W. 11 on the date of the occurrence also examined six more injured persons at the hospital. The details given in the cross-examination of the doctor, P.W. 7 are a sad testimony to the way the prosecution has suppressed injuries sustained by the accused in the course of the occurrence. We quote from the testimony of P.W. 7 in cross-examination starting with paras 20 to 26 of his evidence, which is as follows.--
"20. It is true that on the same day (13-6-1995) the police, Kushtagi had sent me 6 more injured persons. In my hospital I have maintained the medicolegal register. Today I have not brought that register to the Court. It is true that on 13-6-1995 at about 11.20 a.m. A-2 was sent by P.S.I., Kushtagi through P.C. 781 for his examination and I had examined him and found following injuries.--
1. A lacerated injury on the distal phalanx of right index finger, from ventral aspect towards dorsum of upto nail bed, measuring 3/4" x 1/4". It is muscle deep, clotted blood present. Bleeding on touch, edges smooth and regular. There is a gaping, surface of wound is red, oblique in direction.
2. A lacerated injury on the dorsum of right little finger, it is longitudinal direction, its gaping surface is red, edges are smooth and retracted, clotted blood present in the wound. Injury measures 3/4" x 1/4" x, skin deep. The above said injuries are simple in nature, can be caused by sharp weapon aged about 1 to 12 hours. Ex. D. 1 is the certified copy of injury certificate of A-2. If the said person is assaulted with M.O. 2, injury Nos. 1 and 2 of Ex. D. 1 can be caused to him. A-2 was sent to me with the history of assault on him.
21. On 13-6-1995 at 11.00 a.m. the P.S.I., Kushtagi, had sent A-1 to me with the history of assault for the examination and I had examined him, and found the following injuries.--
Lacerated wound situated over the dorsum of the left forearm, 2" below elbow front, it is V shaped, with angle direction distally and skin flap is turned upward, surfaces of wound is red in colour, edges of wound are regular, retracted, clotted blood present in the wound. The wound each lived of V measured 1 1/2", it is muscle deep. The said injury is simple in nature can be caused by sharp object. The age of injury is about 1 to 12 hours.
I have issued the injury certificate of A-1 and Ex, D. 2 is the certified copy of injury certificate of A-l. The injury of Ex. D. 2 can be caused by M.O. 2 to A-l.
22. It is true that on 13-6-1995 at about 10.00 a.m. the police Kushtagi has sent to me with the PC, A-5 injured with history of assault for examination. I had examined him and found following injury.--
1. Amputation of right forearm, at the level of lower 3rd skin was retracted, wound covered with clots. The cut ends of bones have exposed. Blood clots and bleeding present, cut edges of bone were regular, sharp, edges of the skin were retracted, red, swollen, both forearm bones were cut, edges were sharp and regular.
The said injury is grievous in nature. It may be caused by sharp cutting heavy object, age of injury is 1 to 12 hours prior to my examination. I have issued the true copy of the injury certificate of A-5. It is Ex. D. 3. Ex. D. 3(a) is my signature on it. Its contents are true and correct (P.W. 7 had produced this certificate). As per Ex. D. 3, there is a complete cut of the hand from wrist portion. When I had examined A-5 at that time the cut hand portion of A-5 was brought before me, by A-5 separately to my hospital. In my hospital there was no facility to attach the cut portion of the hand to the wrist portion by carrying on operation. I had referred this A-5 for further treatment to KMC Hospital, Hubli. I have not preserved the cut portion of the hand in the ice and did not send it to KMC Hospital with A-5. If A-5 is assaulted with M.O. 2 the injury shown in Ex. D. 3 can be caused to him.
23. It is true that on 13-6-1995 at 11.30 a.m. the police, Kushtagi had produced before me one Murtuza Sab S/o. Mudgal Sab, with injuries having the history of assault and I had examined him and found the following injury.--
1. Abrasion on the top of parietal region measuring 1 c.m. x 1/2 c.m., oval in shape, blood clots present, dark red colour edges, were swollen surface.
In my opinion the said injury is simple in nature can be caused by sharp object aged about 1 to 12 hours. Ex. D. 4 is the certified copy of the injury certificate of Murtuza Sab. The wounds of Ex. D. 4 were fresh aged between 6 hours.
24. On 13-6-1995 at about 11 a.m. the P.S.I., Kushtagi, had sent me A-4 with injuries for his examination and treatment to the history of assault. I had examined him and found the following injuries.--
1. A lacerated wound on the top of head measuring 2 1/2" x 1/4" x bone deep. I had referred this A-4 to the KMC Hospital, Hubli, for further treatment. I referred this A-4 to the KMC Hospital, Hubli, thinking it to be grievous, but I had not received any report from KMC Hospital, Hubli. I suspected intracranial damage, so I sent him to KMC Hospital. The injury was fresh add it was within 6 hours. The injury to A-4 can be caused by any sharp object.
25. On 13-6-1995 at about 10.50 a.m., the P.S.I., Kushtagi, had sent to the P.S. to Hospital, Hussain Bee W/o. Hassansab for examination and treatment with history of assault. I had examined her and found following injuries.--
1. Lacerated injury on the inner aspect of left forearm at the junction of the wrist and forearm, measuring 2 1/2" x 1/4", the wound was covered with blood clots and few bleeding points present underlaying muscles, tender were exposed. The edges of wound were swollen, red, retracted, crepitus was felt at the base of wound.
2. Lacerated injury on the left little finger attached only piece of phalanx skin, blood clots present, bleeding present, underlaying bone expose, edges of wound red, retracted, swollen, crepitus.
13. The above said injury is grevious in nature, can be caused by sharp cutting weapon, the age of injury is within 12 hours. I have issued true copy of injury certificate as per Ex. D. 5. Ex. D. 5(a) is my signature on it and its contents are true and correct. If this injured Hussain Bee is assaulted with M.O. 2, the injury Nos. 1 and 2 of Ex. D. 5 can be caused to her. I have also referred this injured for further treatment to KMC Hospital, Hubli. I have received a report from KMC Hospital, stating that X-ray report shows fracture of styloid process of left ulna and fracture of left third metacarpal bone which is corresponding to injury No. 2. I have endorsed this observation of KMC Hospital on the back side of Ex. D. 5.
13-A. On the back side of Ex. D. 3, I have written the report sent by KMC Hospital, Hubli, pertaining to the accused A-5. The KMC Medical College Hospital Doctor had healed injury of A-5 and sent him back and he had not carried on any operation.
On 13-6-1995 at 11.50 a.m. the P.S.I., Kushtagi had sent through PC, one injured Smt. Raja Bee W/o. Murtuza Sab with history of assault, I had examined her and found on her the following injury.--
1. A lacerated wound on anterior aspect of right leg, at the juncture of upper and middle third of foreleg, 1 1/2" below the left knee joint measuring 3" x 1" x bone deep. The injury was covered with blood clots, edges of wound swollen, red and retracted, few bleeding points present, edges of wound were regular. Underlaying bone was exposed and crepitus present, cut edges were sharp and regular.
26. The said injury is grevous in nature, can be caused by sharp weapon like M.O. 2, the age of injury might be 1 to 12 hours. I have referred this case to KMC Hospital, Hubli for further treatment and KMC Hospital later reported that comminuted fracture of tibia was present. Ex. D. 6 is the true copy of injury certificate of Raja Bee, it bears my signature at Ex. D. 6(a) and its contents are true and correct".
44. P.W. 9 is a mahazar witness at the scene of occurrence. He did not support the prosecution and was accordingly treated hostile.
45. P.W. 10 is a panch witness during the inquest. He was also treated hostile.
46. We have already dealt with the evidence of P.W. 11 perhaps the only survivor of the family, who is an injured eye-witness.
47. For the reasons best known to P.W. 7, P.W. 7 emphatically states in cross-examination that A-1, A-2, A-4 and A-5 had not sustained any injury during the occurrence.
48. P.W. 12 is the younger sister of P.W. 11. She is an eye-witness. She speaks of the occurrence as stated by P.W. 11. Even P.W. 12 states as follows.--
"In the quarrel none of the accused had sustained any injuries".
49. When a specific question was posed to P.W. 12 whether certain members of the accused party sustained injuries, she has categorically stated that although she saw the incident right from the beginning none of the members of the accused party sustained any injuries.
50. P.W. 13 is the elder brother of P.W. 11. He corroborates the evidence of P.W. 11 in his testimony as he claims to be an eye-witness in the cross-examination. At paragraph 7 of his evidence he states as follows.--
"7. During this quarrel, A-1, A-2, A-4 and A-5 have not sustained injuries. Now I see A-5, A-5's right hand is cut-off. During this incident, 1 did not see that, the right hand of A-5 was cut-off. During this incident, I did not see Murtuza Sab S/o. Mudgal Sab, Hussain Bee W/o. Hassansab, Raja Bee W/o. Murtuza Sab sustaining any injuries. During this incident, only 5 persons had sustained injuries and except these 5 persons, no other person had sustained injuries. The injury sustained persons were, all 4 deceased and P.W. 11. At about 10 a.m. or 10.30 a.m. police came to my village".
51. P.W. 13 however states that all the accused were taken by the police.
52. P.W. 14 is the granddaughter of D-1 and D-2 and the daughter of D-4. She is a child witness. She also claims to have seen the occurrence and corroborates the evidence of P.W. 11. She also states that none of the accused party were injured during the occurrence.
53. P.W. 15 is the Dalapathi, who informed the police. Curiously even the Dalapathi does not support the prosecution and was accordingly treated hostile. P.W. 16 is the person who carried D-2 and D-3 to the hospital. Even he does not support the prosecution.
54. P.W. 18 is the PC who accompanied the P.S.I, to the scene of occurrence after receiving the message about the incident. Strangely, P.W. 18 contrary to the case of the prosecution states that he admitted P.W. 11 to the Government Hospital, Kushtagi. But he did not see any of the accused being admitted to the hospital or did not see any of the accused undergoing treatment at the hospital.
55. P.W. 26 is the CPI during the relevant period. He received information from the ASI that murders had taken place at Sirugumpi and he rushed to the village Sirugumpi and took up further investigation. He held inquest over the dead bodies of D-1 and D-2 and examined witnesses. He arrested some of the accused and made recoveries.
56. We have necessarily referred to the evidence of P.W. 26 (CPI). He states in his cross -examination that A-1 on 13-6-1995 at about 1.45 a.m. filed a complaint before the P.S.I., Kushtagi against P.W. 11 and the deceased and others and a case was registered in Crime No. 63 of 1995 under Sections 143, 147, 148, 302, 324 and 149. The complaint given by A-l is marked as Ex. D. 11. P.W. 26 further states that as per Ex. D. 11, the complaint, A-l, A-2, A-4 and A-5 were injured. He states that father of A-4 was also injured and further states that the mother of A-l also sustained injury. He further stated that mother of A-2 also sustained injury. He states that A-l and A-2 were admitted to the Government Hospital, Kushtagi for treatment.
57. P.W. 27 was the P.S.I, at Kushtagi. On receiving a telephonic message from one Sharanappa he rushed to the scene of occurrence and was responsible for putting D-2 and D-3 in a bullock cart to enable them to be sent to the hospital. He waited for the CPI to come to the scene of occurrence.
58. P.W. 28 took up further investigation of this case from the Sub-Inspector, Kushtagi and filed the charge-sheet. P.W. 28 in the cross-examination states that he did not record any statement from the injured persons belonging to the accused party namely, mother of A-l and mother of A-2. He also states that he did not collect the wound certificate of A-1, A-2, A-4 and A-5. He however admits that the complaint given by P.W. 11 was registered as Crime No. 62 of 1995 and the counter-case given by A-l was registered as Crime No. 63 of 1995. What is amazing is he states that Crime No. 62 of 1995 and a counter-case Crime No. 63 of 1995 arose out of the same incident which took place on 13-6-1995 at 8.30 a.m. near Hanuman temple and near the panchayat katte. He also states that he does not know what happened to the counter-case in the Crime No. 63 of 1995.
59. P.W. 28, the CPI who filed the charge-sheet states on oath that the complaint given by P.W. 11 is registered as Crime No. 62 of 1995. He further states that the complaint given by A-l at the Police. Station was registered as Crime No. 63 of 1995. He also states that the case and the counter-case arose out of the same incident which took place on 13-6-1995 at 8.30 a.m. near Hanuman temple. By this it can be safely said that the accused had sustained injuries in the course of the same incident. Even P.W. 11 states that there were six injured persons lying at the spot when the police came. The case of the prosecution itself is that the accused were also sent to the hospital. From this it is clear that the accused were injured in the course of the occurrence. It is nobody's case much less the prosecution case, but the accused had suffered injuries after the occurrence perhaps in retaliation to the attack by the accused after the occurrence. In other words, the occurrence in which the accused were injured must have happened simultaneously.
60. In the light of the evidence of the police witnesses and the medical evidence and the injured witness, P.W. 11 (who says there were six injured persons lying at the scene of occurrence when the police arrived). One has to necessarily conclude that the accused were also injured in the scuffle at the same time.
61. Now, we shall deal with the injuries sustained by the accused party which has not been explained by the supporting eye-witnesses, P.Ws, 11, 12, 13 and 14 (family members of the deceased).
62. We have already referred to the evidence of the Doctor, P.W. 7 who examined the accused and their family members. Exs. D. 1 to D. 5 related to the injuries on the accused party marked through the Doctor, P.W. 7.
63. Ex. D. 1 is the wound certificate of A-2. According to the wound certificate, A-2 was brought by the police to the doctor at 11.20 a.m. on 13-6-1995. A-2 suffered the following injuries.--
"1. A lacerated injury on the distal phalanx of right index finger extending from ventral aspect towards dorsum upto nail bed, size 3/4 x 1/4 inch. It is muscle deep. Clotted blood present, bleeding on touch. Edges smooth and regular. There is gaping, surface of wound is red, oblique in direction.
2. A lacerated injury in the dorsum of right little finger. It is longitudinal direction. It is gaping, surface is red, edges are smooth and retracted, Clotted blood present in the wound. Size 3/4 x 1/4 inch. It is skin deep".
The doctor was of the opinion that the injuries are simple in nature and can be caused by a sharp weapon.
64. Ex. D. 2 is the wound certificate of A-1 (A-1 is a person who gave the complaint to the police almost contemporaneous which was registered as Crime No. 63 of 1995). A-l was also examined about the same time. He has suffered the following injuries.--
"1. Lacerated wound situated over the dorsum of left forearm 2 inches below elbow joint. It is V shaped with angle directed distally skin flap is turned upwards. Surface of the wound is red in colour. Edges of wound are regular and retracted. Clotted blood present in the wound. The wound of each limb of V measures 1 1/2 inches. It is muscle deep".
The doctor was of the opinion that the injuries are simple in nature.
65. Ex. D. 3 is the wound certificate of A-5. A-5 was also examined at about 10.30 a.m. on 13-6-1995 by P.W. 7-Doctor. He noticed the following injuries.--
"Amputation right forearm at the level of lower third. Skin was retracted, covered with dots and cut ends of bones have exposed. Cut edges of bone were regular and sharp. Blood clots and bleeding was present. Edges of the skin were retracted, smooth and regular. Edges of skin red and swollen. Both forearm bones were cut and cut edges were sharp and regular".
The doctor was of the opinion that the injuries are grievous in nature and it may be caused by sharp heavy cutting objects.
66. Ex. D. 4 is the wound certificate of A-7, who has suffered a simple injury which read as follows.--
"1. Abrasion on the top of parietal region 1 c.m. x 1/2 c.m. oval in shape. Blood clots present, dark red colour. Edges over swollen surface is red".
The doctor was of the opinion that the injuries are simple in nature and it may be caused by sharp objects.
67. Ex. D. 5 is the wound certificate relates to the injuries sustained by the mother of A-1. In the accident register it is stated that assault with dagger. The injuries noted in Ex. D. 5 are as follows.--
"1. A lacerated injury at the inner aspect of left forearm at the junction of wrist and forearm, size 2 1/2" x 1/4". The wound was covered by blood clots and few bleeding points present underlying muscles, tendons, bones were exposed. The edges of the wound were swollen, red, retracted. Crepitus was felt at the base of wound.
2. A lacerated injury at the left little finger, attached only piece of phalanx and skin. Blood clots present, bleeding points present. Underlying bone exposed. Edges of wound red, retracted, swollen, crepitus felt".
The doctor was of the opinion that the injuries are grievous in nature and it may be caused by sharp cutting weapon. The mother of A-l was referred to KMC Hospital, Hubli for further treatment.
68. Ex. D. 6 is the wound certificate relates to the injuries sustained by the mother of A-2. In the accident register it is stated that assault with dagger. The injuries noted in Ex. D. 6 are as follows.--
"1. There is a lacerated wound on anterior aspect left leg at the junction of upper and middle third or foreleg, 1 1/2" below the knee joint. Size 3 inches x 1 inch. It was bone deep and covered with blood clots. Edges of the wound swollen, red and retracted. Few bleeding points present. Edges of the wound were regular. Underlying bone was exposed and crepitus present. Cut edges were sharp, regular".
The doctor was of the opinion that the injuries are grievous in nature and it may be caused by sharp cutting weapon. The mother of A-2 was referred to KMC Hospital, Hubli for further treatment.
69. The Investigating Officer, P.W. 28 in his cross-examination has stated at paragraphs 3 and 4 as follows.--
"3. During my investigation I did not record the accused side injured persons namely, Murtuza Sab (father of A-1), Hussain Bee (mother of A-l) and Raja Bee (mother of A-2). I did not collect the wound certificates of the accused A-2, A-l, A-5 and A-4. I did not record the statements of injured Murtuza Sab, Hussain Bee and Raja Bee. I had not sent M.O. 2 (sword) to the doctor to give his opinion, whether with this MO. 2 injuries sustained by A-1, A-2, A-4 and A-5, Murtuza Sab, Hussain Bee and Raja Bee can be caused. I had not produced in this case the copy of FIR and scene of offence mahazar of Cr. No. 63 of 1995 (cross-case). It is true that, the offence registered in the present case Cr. No. 62 of 1995 and counter-case Cr. No. 63 of 1995 are arising out of the one and same incident, which took place on 13-6-1995 at 8.30 a.m. at Sirugumpi, near the Hanuman temple or near the panchayat katte. I have not recorded the statement of doctor who had treated A-1, A-2, A-4, A-5 and injured Murtuza Sab, Hussain Bee and Raja Bee. It is false to suggest that in this case, as per the say of P.W. 11, I have put the facts before the Court which are helping to P.W. 11 and I have suppressed the real facts, which are in favour of the accused.
4. In that counter-case of Cr. No. 63 of 1995, whether A-l had filed complaint or not is not known to me in Cr. No. 63 of 1995 the P.S.I., Ravi Patil took the investigations and investigated the case. And Ravi Patil had filed the charge-sheet in Cr. No. 63 of 1995. It is false to suggest that I at the instance of P.W. 11 and P.W. 11's relatives I have falsely implicated to A-l to A-9 in this case and I have filed falsely charge-sheet in this case. As the Ravi Patil had recorded the statements of the injured witnesses Hussain Bee, Raja Bee and Murtuza Sab in Cr. No. 63 of 1995, so, I have not recorded their statements in this case".
70. In the result it would not be out of place to conclude that A-1, A-2, A-5 and A-7, mother of A-l and mother of A-2 (wife of A-7) were injured in the scuffle. Out of them A-5's right forearm had suffered amputation (Ex. D. 3), mother of A-l also suffered grievous injuries by cutting weapons (Ex. D. 5), mother of A-2 and wife of A-7 also suffered grievous injuries (Ex. D. 6). The three other accused namely, A-l, A-2 and A-7 suffered simple injuries.
71. Once we conclude that the injuries caused on the accused had occurred during the course of the occurrence and the injuries are not superficial then there is a duty cast on the prosecution to explain injuries on the accused. It is not the case of the prosecution that the injuries suffered by the accused was in retaliation for the gruesome murder committed by the accused. On the contrary it is the case of the prosecution (P.W. 28-CPI) that the injuries on the accused had taken place in the same occurrence. If that be so we have no doubt that the unexplained injuries which were brought out in the cross-examination have certain bearing on the prosecution case. It is particularly so since the Investigating Officer says that A-1 also registered a case against P.W. 11, deceased and others almost simultaneously in Cr. No. 63 of 1995. The Supreme Court in the case of Lakshmi Singh and Ors. v State of Bihar, pronounced as follows.--
"It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences.--
1. That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
2. That the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
3. That in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant-Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the Court to rely on the evidence of P.Ws. 1 to 4 and 6, more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v Bai Fatima and Anr., there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises".
72. On the perusal of the evidence and the facts set out by the prosecution coupled with the injuries on the accused it can be culled out that there was a sudden fight in the heat of passion leading to a sudden quarrel. Exception 4 in Section 300 reads as follows.--
"Culpable homicide is not murder if it is committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault".
73. Taking an overall view of the matter we feel that the occurrence must have occurred in such a way that Exception 4 to Section 300 would apply to the facts of this case.
74. The conviction of A-1 and A-7 under Section 302 is modified to the extent that A-l and A-7 are found guilty for an offence under Section 304, Part I of the IPC by causing the death of D-1 to D-4 and are sentenced to undergo R.I. for a period of 7 years and to pay a fine of Rs. 1,00,000/- each, in default to undergo R.I. for 1 year. A-l and A-7 shall pay the fine within 9 weeks from the date of receipt of this order in the Trial Court. On payment of fine the Trial Court shall disburse Rs. 50,000/- each to P.Ws. 11 to 13 (children of D-1 and D-3) and P.W. 14 (granddaughter of D-l).
75. We do not propose to interfere with the conviction rendered by the Trial Court against the A-4 and A-5 and accordingly dismiss Cri. A. No. 950 of 1997.
76. We also dismiss the State appeal against the acquitted accused, since overt act is attributable only to A-1 and A-7 and no case is made out for an offence under Section 149 against the acquitted accused.
77. In the result we convict A-l and A-7 for an offence under Section 304 of the IPC and sentenced them to undergo R.I. for a period of 7 years and to pay a fine of Rs. 1,00,000/- each in default to undergo R.I. for 1 year. A-l and A-7 shall pay the fine within 9 weeks from the date of receipt of this order in the Trial Court. On payment of fine the Trial Court shall disburse Rs. 50,000/- each as compensation to P.Ws. 11 to 13 (children of D-1 and D-3) and P.W. 14 (grand daughter of D-l). The Trial Court shall report compliance.
78. Accordingly, the State appeal Cri. A. No. 36 of 1998 stands dismissed and the appeal preferred by A-4 and A-5 in Cri. A. No. 950 of 1997 also stands dismissed. The appeal preferred by A-l and A-7 in Cri. A. No. 949 of 1997 is allowed in part.