Karnataka High Court
Sri. Sadashiv S/O Basappa Hugar, vs The State Of Karnataka, on 13 March, 2019
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IN THE HIGH COURT OF K ARNAT AKA
DHARWAD BENCH
DATED THIS THE 13 T H DAY OF MARCH, 2019
BEFORE
THE HON'BLE MR. JUSTICE BELLUNK E A .S.
CRL.A.NO.2765/2010
BETWEEN :
1. SRI SADASHIV
S/O BASA PPA HUGAR,
AGE : 56 YEARS, OCC: AGRICULT URE,
R/O : BANAHATTI, TAL: JAMKHANDI,
DIST: BAGALK OT.
2. SMT.KAMALAWWA
S/O SADASHIV HUGAR,
AGE : 46 YEARS, OCC: HOS UEHOLD
& AGRICULTURE,
R/O : BANAHATTI, TAL: JAMKHANDI,
DIST: BAGALK OT.
3. SRI GOPAL
S/O SADASHIV HUGAR,
AGE : 25 YEARS, OCC: AGRICULT URE,
R/O : BANAHATTI, TAL: JAMKHANDI,
DIST: BAGALK OT.
4. SMT.SANGEETA
S/O GOPAL HUGAR,
AGE : 19 YEARS, OCC: HOUSEHOLD
& AGRICULTURE,
R/O : BANAHATTI, TAL: JAMKHANDI,
DIST: BAGALK OT.
...APPELLANTS
(BY SRI SHIDDA NAGOUDA S KOT I, ADV OCATE F OR
SRI SRINAND A PA CHCHPURE, ADVOCATE)
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AND :
THE STATE OF KARNATAKA,
THOUGH PIS, BAN AHATTI POLICE ST ATION,
TAL: JAMKHANDI,
NOW REP. BY HCGP.
...RESPONDENT
(BY SRI ANTHONY R RODRI GUES , AGA.)
THIS CRIMINAL APPEA L IS FILED UNDER
SECTION 374 (2) OF CODE OF CRI MINAL PROCEDURE
SEEKING TO S ET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED
25.08.2010 PASSED BY THE DISTRICT AND SESSION S
JUDGE AND PRESI DING OFFICER, FA ST TRACK COURT,
JAMKHANDI, IN SESSIONS CASE NO.116/ 2009 FOR
THE OFFENCE PUN ISHABLE UNDER S ECTION 323, 324,
447, 326, 307 504 AND 506(2) READ WITH SECTION
34 OF IPC.
RESERVED FOR JUDGMENT ON : 07.02.2019
JUDGMENT PRON OUNCED ON : 13.03.2019
THIS CRIMINAL APPEAL HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT , COMING ON F OR
PRON OUNCEMENT OF J UDGMENT, THIS DAY, THE
COURT DELIV ERED THE F OLLOWING :
JUDGMENT
This is an appeal filed by accused persons aggrieved by the judgment of conviction and sentence passed in S.C.No.116/2009 on the file of Fast Track Court at Jamkhandi dated 25.08.2010, wherein the accused were convicted for the offences punishable under Sections 323, 324, 447, 3 326, 307, 504 and 506 Part-II read with section 34 of Indian Penal Code.
2. Brief facts of the case are as under:
Accused No.1 was cultivating the lands in Sy.No.184/3 of Jagadal village and Sy.No.72/1C of Banahatti village on lavani basis. They were given to him by father of the complainant as he had no male children. Accused No.1 without paying any proper Lavani and in order to grab the properties started making construction in Jagadal land Sy.No.184/3. On hearing the said fact, the complainant and CWs.4 to 7 went to the said land on 24.08.2009 at about 1.00 p.m. They asked the accused not to construct any house. At that time all the accused persons abused CWs.4 to 7 in filthy language and beat them with their hands. Accused No.1 to 3 assaulted CWs.4 to 7 with bamboo sticks and beat them by chasing. Accused No.2 pull down the complainant and caught hold of her legs. She 4 asked accused No.1 to finish her. Accused No.1 sat on the chest of the complainant and attempted to strangulate her. The complainant raised her voice.
The accused No.1 beat her with the stick on her back and other parts of the body. When CW.5 tried to intervene, accused assaulted CW.5 with bamboo stick. Accused No.3 assaulted CW.4 with bamboo stick and also caught hold of legs of CW.4 and asked accused No.1 finish thereof. When CW.6 tried to intervene, accused assaulted her and thereby caused simple and grievous injuries. They threatened to the life of the complainant. That is how the incident is said to have occurred.
3. The complainant filed a complaint before the jurisdictional police narrating the incident as per Ex.P.1. On the basis of the said complaint, Crime No.135/2009 was registered. Investigating Officer conducted investigation. Thereafter a 5 charge sheet came to be filed for the alleged offences.
4. Since the offence alleged under Section 307 of IPC is exclusively triable by the Sessions Court, the learned JMFC after following due process of law committed the case to the Sessions Court for trial.
5. The Sessions Court after registering the case, secured presence of the accused. After hearing both sides, charge came to be framed for the offences punishable under Sections 323, 324, 447, 326, 307, 504 and 506 Part-II read with section 34 of Indian Penal Code.
6. After holding trial, the learned Sessions Judge found accused Nos.1 to 4 guilt of the aforesaid offences. Consequently, learned Sessions Judge convicted and sentenced accused Nos.1 to 4 for the aforesaid offences as stated below: 6
1) The accused shall undergo simple imprisonment for two months and fine of Rs.500/- each for the offence punishable under Section 447 of the Indian Penal Code in default to pay fine, accused shall suffer simple imprisonment for 15 days.
2) The accused shall undergo simple imprisonment for six months for the offence punishable under Section 323 of the Indian Penal Code.
3) The accused shall undergo simple imprisonment for one year and fine of Rs.1,000/- each for the offence punishable under Section 324 of the Indian Penal Code, in default to pay fine, accused shall suffer simple imprisonment for 30 days.
4) The accused shall undergo imprisonment for a period of 3 years and fine of Rs.500/- each for the offence punishable under Section 326 of the Indian Penal Code, in default to pay fine, accused shall suffer simple imprisonment for one month.7
5) The accused shall suffer imprisonment for a period of five years and shall pay fine of Rs.1,000/- each for the offence punishable under Section 307 of the Indian Penal Code, in default to pay fine, shall undergo further imprisonment of six months.
6) The accused shall undergo imprisonment for a period of three months for the offence punishable under Section 504 of the Indian Penal Code.
7) The accused shall undergo imprisonment for a period of one year for the offence punishable under Section 506 Part-II of the Indian Penal Code.
7. Being aggrieved by the said judgment, the appellants/accused have preferred this appeal on following grounds:
The ingredients of sections 323, 324, 447, 326, 307, 504 and 506 Part-II read with section 34 of Indian Penal Code are not proved beyond any reasonable doubt. There is no cogent evidence 8 to prove the same. PWs.1, 3 to 7 and 11 are all interested witnesses. They are related to each other. Their evidence cannot be accepted without corroboration. The prosecution has utterly failed to prove the guilt of the accused beyond any reasonable doubt. The bloodstained cloths of the injured witness and the building materials like cement, stones bricks etc. have not at all been seized. Sentence imposed is too harsh, therefore the appellants have sought for setting aside the impugned judgment.
8. Learned counsel for the appellant argued at length nearly for two sessions. Then ultimately he has filed written arguments also. Therefore, sufficient opportunity is given to the accused in arguing the case. It was argued that there is a cloud of doubt regarding the genesis for the incident. The real cause is suppressed. The parties are thickly related to each other. There 9 was no mensrea, motive, preparation or any intention or knowledge on the part of the accused to assault PWs.1, 3, 4 and 5. It seems that these witnesses who are injured might have provoked suddenly by initiating the quarrel with accused No.1.
9. The possession of the land by accused No.1 is admitted. Accused No.1 was residing with other accused in the shed nearby as stated by the prosecution witnesses. Accused No.1 and his family members are cultivating the land in Sy.No.184/3 of Jagadal village. It was given on lease to him by his brother one Srishala. Accused No.1 and Kalavati had money transaction. There was some dispute in respect of paying the lease amount. An offence punishable under Section 447 of IPC could not have been leveled against the accused and therefore it is bad in law. There is no evidence to show that the accused trespassed in 10 the land. Such trespass should be with an intention to commit the offence. PW.1-Saroja W/o Malleshi Hugar, PW.3-Jyoti W/o Gurdev Hugar, PW.4-Tanuja D/ow Shrishail Hugar and PW.5- Savita D/o Shrishail Hugar abruptly came to the land and initiated quarrel. Every trespass act would not attract the criminal provision. The act done must have been done with an intention to commit an offence. There is no evidence to show that weapons alleged to have been used were the dangerous weapons and that the witnesses have suffered by grievous hurt as such.
10. It was further argued that, the evidence of PW.1, 3, 4, 5 and 11 is exaggerated one. Considering the status of the witnesses and their relationship it cannot be believed that accused No.1 would have gone to extent of sitting on the chest of PW.1 Smt.Saroja. There is an improvement in the evidence of prosecution. The 11 presence of PW.11 is not spoken by the witnesses even injured witness alone had gone to the offence. PW.11 is not an eye witness.
11. Further argued that there is also doubt as to where PW.2 received the complaint in the police station or in the hospital. There was a concoction of the case against the accused. The Police Constable who carried the FIR has not been examined. There is inordinate delay in filing the FIR.
12. There was no case to connect with the accused for an offence punishable under Section 326 read with section 34 of IPC. There is contradiction between evidence of doctor - PW.10 and the injured witnesses. The ingredients of section 307 of IPC are not at all proved. There is no radiologist report, though X-ray films are produced. The doctor had advised the injured persons to go to a particular doctor. The report 12 has been written on backside of the wound certificate at Ex.P.8. The doctor had no opportunity to see X-ray films at Exs.P.4 to 7. The prosecution has utterly failed to prove the guilt of the accused for the offence punishable under Section 326 of IPC. There is no evidence to show that the injured witness took treatment for about 22 to 24 days. The Trial Judge has hastily relied on the evidence of these witnesses. The treatment given to the injured witnesses is also not forthcoming from the records. The trial judge has wrongly believed the evidence of PWs.1, 3, 4 and
5.
13. Further argued that there is no evidence to prove any intention on the part of the accused. The conviction of the accused for the offence punishable under Sections 504 and 506 is not based on the material evidence on record. The accused had no knowledge or intention or 13 anticipation about initiating of quarrel with accused No.1. This happened suddenly in a spur of movement. The entire family members have been falsely implicated in this case. Application of Section 34 of IPC is neither justifiable nor acceptable. Age of Accused No.1 is more than 60 years and he is bedridden on account of cardiac problem. His health is in precarious condition. Accused No.4 is only aged about 19 years at the time of incident. She had just married and come to her husband's house few days earlier to the incident. Therefore she had no intention to commit any offence. PW.11 Malleshi Hugar is architect behind this complaint. The conviction and sentence passed by the Trial Court imposing sentence and fine on all these accused persons is perverse, capricious and against the evidence on record. Therefore, he prayed to set aside the impugned judgment of the Trial Court and acquit the accused 14 persons. In support of the arguments some authorities have been relied on.
14. Learned Additional Government Advocate submitted that as per Ex.P.17 and Ex.P.18 record of rights, the name of the complainant's family member is mentioned. As per the mutation entry for the year 2004-05. Motive, intention and preparation on the part of the accused has been proved. It is the accused who came to the complainant's house and then had also assaulted him. Since accused No.1 was paternal uncle, land was given for cultivation as there was no male member in the family of the complainant. There are no reasons to disbelieve the evidence of injured witnesses. The medical evidence is also consonance with the oral evidence adduced. The X-ray reports themselves have been marked. It is alleged that the accused sat on the chest of the complainant and attempted to kill her. 15 If act was completed, accused would have been no more.
15. The construction of the house by the accused was questioned by the complainant. At that time the incident was occurred. There is no discrepancy in the evidence of prosecution. In a case of this type, the first priority would be, to take the injured witnesses to the hospital for treatment. The evidence of complainant proves the facts stated in the complaint i.e., corroborated by the medical evidence on record. Merely because the parties have gone to a private doctor would not be a ground to disbelieve the evidence of injured witnesses. Therefore, looking from any angle, the learned Additional Government Advocate submitted that the conviction and sentence imposed on the accused is sustainable in law. Ingredients of the offenses are proved beyond 16 any reasonable doubt and hence prayed for dismissal of the appeal.
16. Learned counsel at the fag end of the arguments produced certain medical records of accused No.2. It was specifically questioned as to whether he wants to plead leniency for imposing lesser sentence. But the counsel did not clarify on that point. It was also submitted that the parties have forgotten the incident having regard to their close relationship and they wanted to settle the matter.
17. But the court told the counsel that the offences are not compoundable. On the basis of medical evidence, if he wants to argue for reduction in the sentence imposed by the trial Court, then he has to make an alternative plea. suddenly the counsel got angry and dumped the written argument in the Court went away by saying that the parties will go to Hon'ble Supreme Court.
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18. This conduct of the learned senior counsel was unwarranted. Even after arguing for two long sessions, this court permitted to file a written argument. If at all the written argument are to be filed, it should have been filed at the very first instance, which would have saved the valuable time of this Court. Anyhow leaving the conduct of the counsel to his own conscious, I proceed to examine the appeal on its own merits without being any influenced in any manner by conduct of the learned counsel.
19. On the basis of the above said facts and arguments, the following points that would arise for consideration of this Court.
"1) Whethe r the prosecutio n had pro ved beyond any reaso nable do ubt that on the date , time and place of incide nt, accused Nos.1 to 4 unde r a common trespassed in the land in S y.No .184/3 of Jagadal village picke d up a quarrel with the PW.1 and PWs.3 to 5 and abuse d them in filthy language and assaulted with cane clubs 18 i.e ., MOs.1 and 2 and there by caused simple injuries and grievo us injuries to PW.1 and PWs.3 to 5 and threatening to their live s there by had committe d an offence s punishable unde r Sections 323, 324, 326, 447, 504 and 506 Part-II read with Sectio n 34 of IPC?
2) Whethe r the prosecutio n had proved beyond any reaso nable do ubt that on the date , time and place of incide nt, accused Nos.1 to 4 under a common inte ntio n attempted to murder of CW1 and her siste rs and the reby committed the offence punishable unde r Section 307 read with section 34 of IPC?
3) What order?"
20. It is the bounden duty of the
prosecution to prove the guilt of the accused
beyond any reasonable doubt. The burden of proof is on the prosecution. The fact that the complaint party and the accused are closely related to each other is not in dispute. It is also not in dispute that the disputed land was given to Accused No.1 on lavani basis as there was no male member in 19 the family of Accused No.1 to cultivate the same.
The incident is said to have occurred, when accused No.1 tried to construct a house or shed in the disputed land. On hearing the news the complaint and his party went there to question the same, at that time the incident is said to have been occurred.
21. Paragraph No.4 of the written argument of the appellant, it is contended that "it seems that these witnesses who are injured might have been provoked suddenly by initiating quarrel with accused No.1 who was residing with other accused in the shed nearby" and it is as per the evidence of the prosecution. It is also stated in the written argument that there is some dispute in respect of paying lease and receiving lease amount. Therefore, under these circumstances the conviction of the accused under section 447 of IPC is bad in law.
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22. The ingredients of section 441 of IPC reveal that the trespass should be with a common intention to commit an offence or even having lawfully entered may commit trespass if any offence is committed.
23. The complainant PW.1 had deposed in her evidence that her father had got four acres of land in a partition and other brothers including accused No.1 and one Mahadev also got the same extent of land after the death of her father, the lands that had come to her father were being cultivated by accused No.1 on lavani basis. Since the payment of lavani was refused, and he was threatening when that was asked. Therefore, a panchayath was held. They claim to have constructed a shed in Sy.No.72. Accused No.1 was cultivated their lands and therefore he is residing with his family in that hut. But the allegation is 21 with regard to Sy.No.184/3, wherein the accused tried to construct a shed or house.
24. In the cross-examination of PW.1 admitted that it is not stated in her statement that there was a partition between her father and his brothers. After this complaint and when the accused Nos.1 to 4 were in custody, they have sold the land in Sy.No.184. She denied that her father had not at all received any order in Sy.No.184 under a partition. However, it is suggested that accused No.1 and deceased brother Mahadev gave up two acres of land to her father as he has no land. Their names also came to be entered in the revenue records as legal heirs. They denied that they received rupees one lakh from accused No.1 as loan and as a security they had given two acres of land on lease to accused No.1. The said suggestions are all denied.
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25. From the above said evidence record would go to show that there is a serious land dispute between the parties. Therefore, entry into the land under the bonafide excise of the civil right would not constitute an offence under Section 447 of IPC. Therefore, having regard to totality of the evidence available on record, I find that the guilt of the accused persons for the offence punishable under Section 447 read with section 34 of IPC has not been proved beyond any reasonable doubt. The incident might have occurred in a land where both the parties met. But it would not prove the offence of trespass. Therefore the finding of the trial court to that extent for the offence under section 447 read with section 34 of IPC is not sustainable in law, facts and evidence on record.
26. Now this Court proceed to examine, where the other offences alleged against accused 23 had been proved or not. PW.1 in her evidence deposed specific overt-act that, she was beaten by accused No.1 by chasing. Accused No.2 pulled her legs and accused No.1 sat on her chest and pressed her neck and rolled her over the ground and beaten with stick. Accused No.2 abused in filthy language. When the sister of the complainant PW.4 intervened to rescue her, accused No.1 abused and assaulted her with stick then also threatened. The other witnesses including the husband of the complainant who came to rescue stayed away as accused No.1 threatened them with dire consequences. Then her sisters PW.3-Jyoti and PW.5-Savita were also assaulted and abused in filthy language when they tried to rescue the complainant and others. Accused No.3 is said to have beaten CW.4 with stick on left hand and back. When the accused No.4 wife of Accused No.3 also rolled the legs of CW.4 and instigated accused No.3 to beat her. 24 Thereby she sustained injuries. When CW.6 intervened to rescue CW.4, Accused No.3 chased and beat her. Thereafter husband of PW.1 and others came and pacified and stopped the quarrel. This evidence has been materially corroborated by the other witnesses i.e., PW.3, 4, 5 and 6.
27. PWs.9 and 10 are the doctors. PW.10 had first examined he injured witnesses and had given wound certificate and her opinion with regard to the nature of injuries and where such injuries could have been caused by MOs.1 and 2.
28. PW.9 - private doctor who had conducted X-ray examination of the injured witnesses and gave the X-ray films in the evidence and speaks about the fracture suffered by the PW.3 and PW.4. The X-ray report of other injured Savita at Ex.P.7 is also produced. Her report is at Ex.P.8. In the cross-examination, PW.9 admits that there was no reference in 25 writing referring her by PW.10 - doctor. He has not mentioned in Ex.P.8 regarding date of admission of the injured persons or discharge from his hospital. The cause for the injuries on the injured is also not mentioned in Ex.P.8. He had given only X-ray report to the Investigating Officer. Therefore, it was strenuously urged that, this evidence cannot be believed to hold that the witnesses have suffered any grievous injuries as such. Admittedly he is a private doctor and he has no responsibility as such as that of a Government doctor. He is a disinterested person. No malafide can be attributed to him so as to give false X-ray reports. It was also argued that there was no radiologist report. Therefore, the evidence should not be believed. X-ray reports are the primary films, where fracture could be noted by an expert. Therefore, non-giving of written radiologist report would not be a ground by itself to reject the evidence of PW.9, who is an Orthopedic Surgeon. 26
29. Since PW.10 is not an Orthopedic Surgeon and she is working only in a primary health center had advised the injured witnesses to go an expert. Evidence of PW.10 proves the injuries suffered by the witnesses based on the X- ray report. She has stated that, the injuries suffered by PW.1 namely Saroja at Sl.No.1 to 7 are simple in nature. The injuries suffered by PW.3-Jyoti at Sl.Nos.1, 4 & 5 are simple in nature and at Sl.Nos.2 and 3 are grievous in nature. The injuries suffered by the PW.4-Tanuja at Sl.No.1 & 2 are grievous wounds and at Sl.No.3 is the simple injury. The injuries suffered by PW.5 - Savita said to have suffered 4 simple injuries. She has also stated specifically, the injuries on the witnesses could have cause by MOs.1 & 2. Wound certificates are at Ex.P.9 to 12. It is elicited that in her wound certificate she has not mentioned that the injuries were sustained by assault with stick. But she mentioned that the injured persons 27 had come to the hospital with a history of assault. She admits that Police Sub-Inspector had not come to the hospital while she was examining the injured witnesses. Though she had given recommendation to injured persons to go to District Hospital, Bijapur, but they have gone to private hospital. This was made much at the time of arguments by the defence counsel. It is a choice of injured to go to any hospital. There is no compulsion that they should go to Government Hospital only.
30. Merely because the witnesses have stated that, the police took them to hospital for treatment and witnesses saying that Police Sub- Inspector had not come to the hospital would not by itself a ground to discard the medical testimony. No contradiction is brought between the medical evidence and the ocular evidence of the injured witnesses. How the medical evidence 28 is to be appreciated is well settled by catena of decisions (2011) 7 SCC Page 421, Bhajan Singh Alias Harbhajan Singh Vs. State of Haryana can be referred. The same reads as follows:
L. Criminal Trial - Appreciation of evidence - Medical evidence vis-à-vis ocular evidence - Contradiction between medical and ocular evidence - Manner of appreciation, restated.
Though in present case there is no contradiction between ocular and medical evidence, the position of law in this regard is that the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence goes so far that it completely rules out all possibility of the 29 ocular evidence being true, the ocular evidence may be disbelieved.
31. Therefore, unless it is shows that the medical evidence completely rules out all possibilities of ocular evidence being true, in such cases, the ocular evidence can be disbelieved. On examining the above said evidence on record, this Court find that the evidence of injured witnesses cannot be disbelieved for the lapses or on the fault of a medical officer.
32. It was strenuously urged that the complaint was got written by PW.11 who is husband of PW.1 and he is architect behind in building this case. It is admitted by PW.1 that before going to hospital after the incident, her husband-PW-11 had taken her to hospital and on seeing the injured condition they sent her to hospital by afternoon. In the hospital the police had come and she had given complaint about the 30 incident, the complaint was written by her husband PW.11 on her instructions at Ex.P.1.
33. It was further stated by the defence counsel that this witness was not at all present at the time of alleged incident. If the evidence of PWs.1, 3 to 5, the injured witnesses is believable and it is corroborated by the medical evidence, then there are no grounds to discard the case of prosecution on the ground that PW.11 was not present at the time of incident.
34. PW.12 - the Investigating Officer has stated that the injured persons had come to police station. On seeing the said persons he found that the medical treatment was essential. Hence he sent the injured persons with his police constable to the Government Hospital for treatment. Then PW.1 who gave statement which was given in the hospital was received and a crime was registered. That looks nothing unusual 31 as contend by the defence counsel. The carrier of FIR need not be examined unless there is any delay in filing FIR. The conducting of mahazar Ex.P.2 is proved by his evidence also. Photographs of the scene of offence at Exs.P.14 to 16 were taken. The said photographs show that there was some attempt to make construction of a full-fledged house. MOs.1 and 2 are the material objects which are identified. The sketch of the offence drawn by him only. He has conducted investigation and filed charge sheet.
35. In the cross-examination of PW.12, it is admitted by him that along with PWs.1 and 3 to 5 no other persons had come along with them. When he went to Banahatti Government Hospital, the complaint was being written. For having received the same in the hospital, he has not made any endorsement. He had forgotten to produce the photographs of the scene of offence 32 at Exs.P.14 to 16. It is not mentioned where this Exs.P.14 to 16 were received. The taking of photographs is not mentioned in the spot mahazar. The photographer has not been made as witness. Even assuming that those photographs are not believed that itself would not disbelieve the case of prosecution.
36. According to PW.12, he has not seized any bloodstained cloths of the injured and no blood marks were found on the place of incident. Looking the nature of injuries suffered, it cannot be accepted that there was a sever bleeding injury. In fact doctor in his cross-examination has stated that, wherever there are abrasions small amount of bleeding would there. Therefore, I find that there might not have been heavy bleeding either on the cloths or in the place of incident. Therefore non-seizure of any bloodstained cloths or the bloodstained mud would be a ground to 33 disbelieve the evidence of injured eye witnesses. The evidence of injured eye witnesses stand on high pedestal. The dispute of land could be motive for the accused to assault also. It is double edged weapon. When the defence contends that on account of land dispute false case has been concocted the very same motive can be attribute for assault also.
37. Therefore, on appreciation of the evidence available on record, I find that the prosecution had proved beyond any reasonable doubt that the accused under a common intention had assaulted PW.1 and PWs.3 to 5 with dangerous weapons. They had assaulted PWs.1 & 3 to 5 caused hurt and grievous hurt threatened to their lvies. When common intention is forthcoming from the evidence on record then each act of the accused would bind on the others. Therefore, having regard to all the above said 34 evidence on record, I find that the defense has been miserably failed to probablize the defence raised in this case. The voluminous arguments do not lead to any conclusion towards acquittal. Therefore I do not find any merit in the arguments of the learned counsel for the appellants. Therefore, I find that except the offence punishable under Section 447, rest of the offences are proved against accused Nos.1 to 4 beyond any reasonable doubt.
38. Now the question would be whether accused Nos.1 to 4 had a common intention to commit the murder of PW.1 and PWs.3 to 5. To constitute an offence under Section 307 of the Indian Penal Code, the act done by accused should be done with an intention or knowledge and under such circumstances that, if that act caused death, he would be guilty of murder. 35
39. PW.10 doctor has stated that there were abrasions on both the sides of the neck of the complainant PW.1. The said injuries are simple in nature. PW.1 in her evidence had stated that when she fell down on account of pulling of her legs by accused No.2, accused No.1 sat on her chest and pressed her neck accused No.1 rolled her and beat her. If at all accused No.1 or any other accused persons had any intention to kill the injured then certainly he would not have rolled her and beat her. He would have easily strangulated her.
40. Looking at the nature of incident occurred and only abrasions being found on the either side of the neck goes to show that they must have been caused in the quarrel that ensured between them. By itself it cannot be inferred an intention on the part of the accused to kill her by strangulation. In that case, with the 36 help of other accused persons by holding the hands and legs of the complainant, accused No.1 could have easily strangulated the complainant. Therefore, manner in which the incident has occurred would go to show that the intention of the accused was only to cause hurt and grievous hurt and nothing more than that.
41. Further the injuries suffered by the PWs.3 to 5 and the portion of the body on which they were assaulted would clearly goes to show that there was no intention on the part of the accused persons to cause death of the witnesses. Therefore, the trial court committed an error in finding that there was a common intention on the part of the accused to commit murder of injured witnesses. Therefore, to that extent, the judgment of the trial court is liable to be set aside.
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42. However, the evidence on record has clearly proved that under common intention the accused persons had assaulted PWs.1 and PWs.3 to 5 and they caused grievous hurt to them. MOs.1 and 2 are also found to be dangerous weapons. Therefore, the injuries caused to two witnesses are grievous wounds. Therefore, the prosecution has proved guilty of the accused for the offences punishable under Sections 323, 324, 326, 504 and 506 Part-II read with section 34 of the Indian Penal Code. Therefore, this court answer Point No.1 partly in the affirmative and Point No.2 in the negative.
43. In view of the above said findings the judgment of conviction and sentence passed by the Trial Court is liable to be modified. There is no appeal by the prosecution for enhancement of the sentence.
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44. Further counsel for the appellant has produced medical records in respect of accused No.1 has taken into consideration. However, there is no specific argument or prayer from the defence counsel for reduction of any sentence.
45. The Accused Nos.1 to 4 had filed application under section 482 of Cr.P.C. This Court has disposed off the said application with an observation. It is as under:
"Having regard to the facts, and circumstances of the case and in view of the affidavit filed by the injured witnesses PWs.1 & 3 to 5, I am of the considered opinion that leniency can be shown with regard to sentence of imprisonment and fine imposed by the Trial Court."
Hence, the accused are entitled to for modification of the sentence imposed by the Trial Court.
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46. On perusal of the trial Court judgment, it is found that the accused have undergone pretrial imprisonment for a period of 2 months 09 days. Out of the offences except the offence under Section 326 of IPC rest of the offences are not severely punishable. The sentence of imprisonment and fine imposed by the Trial Court on the accused for the aforesaid offences (other than offences punishable under sections 447 and 307 of IPC, which I have acquitted the accused), the Trial court has imposed six months imprisonment for the offence punishable under Section 323 without fine, for offence punishable under Section 324 sentence of one year and fine of Rs.1,000/- on each accused with default sentence is imposed. For the offence punishable under Section 326 of IPC, the trial court had imposed three years imprisonment and a fine of Rs.500/- each with default sentence. For the offence punishable under Section 504 the trial 40 court had imposed three months imprisonment without fine and one year imprisonment for the offence punishable under Section 506-II of IPC without fine.
47. Therefore, In view of the injured witnesses consenting for a compromise, this Court proposed to impose sentence of imprisonment and fine in the following manner.
1) The appeal is allowed in part.
2) The judgment of conviction and sentence imposed against accused Nos.1 to 4 by the District and Sessions Judge and Presiding Officer, Fast Track Court, Jamkhandi in S.C.No.116/2016 for the offences punishable under Sections 447 and 307 of the Indian Penal Code, is hereby set aside.
The fine amount, if any, deposited for those offences shall be refunded to them.
3) In view of the observation made by this Court by disposing off the application filed under Section 482 of Cr.P.C., this Court proposed to modify the sentence of imprisonment and fine imposed by the Trial 41 Court in the following manner while upholding the conviction of the accused persons for the offences punishable under Sections 323, 324, 326, 504 and 506 Part- II read with section 34 of IPC.
4) For the offence punishable under section 323 of IPC, each of the accused Nos.1 to 4 shall pay fine of Rs.1,000/-, in default they shall undergo 30 days simple imprisonment.
5) For the offence punishable under section 324 of IPC, each of the accused shall pay fine of Rs.1,000/-, in default they shall undergo 30 days simple imprisonment.
6) For the offence punishable under section 326 of IPC, the pretrial detention of accused i.e., two months nine days is imposed as sentence of imprisonment on each accused Nos.1 to 4, each accused shall pay fine of Rs.1,000/-, in default they shall undergo 30 days simple imprisonment.
7) For the offence punishable under section 504 of IPC, each of the accused Nos.1 to 4 shall pay fine of Rs.500/-, in default they shall undergo 7 days simple imprisonment. 42
8) For the offence punishable under section 506 Part-II of IPC, each of the accused Nos.1 to 4 shall pay fine of Rs.800/-, in default they shall undergo 30 days simple imprisonment.
9) Accused shall deposit the fine amount, less the fine amount if already deposited before the Trial Court.
10) The bail bonds and surety bonds stand cancelled.
11) Send LCR to the trial Court along with a copy of this judgment.
Sd/-
JUDGE EM