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Judgment
Anand Byrareddy, J.—These appeals are heard and disposed of by this common judgment. Crl.A. No. 2839/2011 is filed by the State challenging the acquittal of the accused for the offence punishable under Section 307 read with Section 149 of the Indian Penal Code, 1860 (hereinafter referred to as T.P.C. for brevity). Crl.A. No. 2658/2011 is filed by accused No. 1 to 11 challenging their conviction for the offences punishable under Sections 143 , 147 , 148 , 452 , 324 , 326 and 427 read with Section 149 IPC and sentencing them to various terms of imprisonment and fine, the maximum punishment being one year''s rigorous imprisonment and fine of various sums. Crl.A. No. 2842/2011 is again filed by the State seeking enhancement of the sentence against the convicted accused. Crl.A. No. 2557/2013 is filed by the complainant seeking to challenge the acquittal for the offence punishable under Section 307 IPC and also seeking enhancement of sentence against the accused who are convicted.
The facts as claimed by the prosecution was that the complainant Patreppa Rangapure/PW.1 was the owner of land bearing Sy. No. 58/4 and his land bearing Sy. No. 56 was adjoining the land of accused No. 1. Accused No. 1 was Channabasu Revappa Alagundi. It transpires that on 22.6.2007 the complainant had noticed that the accused had encroached the land belonging to the complainant and was growing maize on the encroached portion of the land and therefore he had made enquiries in that regard and a quarrel had broken out. Fearing harm the complainant and his brother are said to have returned home. At about 1.00 p.m., when the complainant and other witnesses were in their farm house in land bearing Sy. No. 58/4, all the accused, namely, accused No. 1 to 12 are said to have come having formed themselves into an unlawful assembly and trespassed into the house of the complainant and indiscriminately attacked the complainant and other witnesses with the sticks and stones.
It was alleged that accused No. 6 assaulted PW.6, namely, Nmgavva on her left elbow; While accused No. 9 had assaulted PW.7, namely, Sawakka Siddappa Rangapure with a stick on her left leg and on her buttock; Accused No. 3 and 5 are said to have assaulted PW.5-Rukamavva Thammanna Rangapure on her left forearm, left hand and thigh, causing grievous injuries including a fracture of the left humerous bone. Accused No. 7 is said to have assaulted CW.7, who was not examined as a witness and also assaulted PW.5 Rukamavva with stones and sticks and when PW.9 Revappa Basappa Patil, PW.2 Malagouda Bhimagouda Patil and PW.3 Huleppa Revappa Patil had tried to intervene and prevent the attack, accused No. 1 is said to have assaulted Revappa Basappa Patil with a stick and stone on his right forehand, left shoulder and stomach causing grievous injuries to his right hand. Accused No. 2 is said to have assaulted Huleppa Revappa Patil on his right forehand while accused No. 10 is said to have assaulted PW.2 Malagouda Bhimagouda Patil on the right side of his head and thoracic lumbar spine area.
It was also alleged that the accused had come fully prepared to assault the victims and intended to cause their murder and in the said manner had caused grievous injuries to PW.5 Rukamavva Rangapure and PW.9 Revappa Patil and simple injuries to the complainant and others. They had also abused the complainant and other victims in foul language and pelted stones and caused damage to the property to the extent of Rs. 5,000/-.
It is in the above background that the complaint was lodged and on further investigation a charge sheet was filed in due course and therefore, the Magistrate having taken cognizance on the bases of the said charge sheet, the accused were produced before the Court and subsequently enlarged on bail. The matter was committed to the Sessions Court, the charges were then framed by the Court below. The accused having pleaded not guilty and having claimed to be tried, the prosecution has tendered evidence and examined 13 witnesses got marked 25 documents as Ex. P.1 to P.25 and M.O.1 to M.O.21 and after having recording the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to ''Cr.P.C.'' for brevity), the accused had denied the alleged incriminating evidence appearing against them. On hearing the parties the Court below framed the following points for consideration.
"1. Whether prosecution proves beyond all reasonable doubt that on 22.6.2007 at 1.00 p.m., in the farm house of complainant Patreppa situated in Sy. No. 58/4, situated about 1 and 1/2 kms. towards Katakabavi in Raibag taluk, all the accused in furtherance of their common object have formed an unlawful assembly holding deadly weapons such as sticks and stones having an intention to assault the complainant and his family members and thereby committed an offence punishable U/s. 143 , 147 , 148 r/w Sec. 149 of IPC?
Whether prosecution further proves beyond all reasonable doubt that on the above said date, time and place all the accused in furtherance of their common object have committed criminal trespass in the farm house of the complainant situated in Sy. No. 58/4 with an intention to assault complainant and other family members and thereby committed an offence punishable U/s. 452 r/w Sec. 149 of IPC?
Whether prosecution further proves beyond all reasonable doubt that on the above said date, place and time, all the accused in furtherance of their common object have assaulted complainant and CW.4 to 7 by stones and sticks causing simple and grievous injuries and when CW.8 to 10 intervened, they were also assaulted and thereby accused had an intention to commit the murder of complainant and other witnesses having knowledge that the weapons used by them are likely to cause death and thereby attempted to murder them and as such they have committed the offence punishable U/s. 307 r/w Sec. 149 of IPC?
Whether the prosecution further proves beyond all reasonable doubt that on the above said date, place and time all the accused, in furtherance of their common object have formed unlawful assembly assaulted complainant and CW.4 to 10 by sticks and stones causing simple injuries to them and thereby committed an offence punishable U/s. 324 r/w Sec. 149 of IPC?
Whether the prosecution further proves beyond all reasonable doubt that on the above said date, place and time, accused in furtherance of their common object assaulted CW.6 Rukamavva by stones and sticks on her left forearm causing grievous injuries to her and accused No. 1 and 11 assaulted CW.8 Revappa by sticks causing fracture of right forearm and grievous injuries to him and thereby committed an offence punishable U/s. 326 r/w Sec. 149 of IPC?
Whether the prosecution further proves beyond all reasonable doubt that on the above said date, place and time, all the accused in furtherance of their common object abused the complainant and other witnesses in filthy language so as to provoke them to break public peace and thereby committed an offence punishable U/s. 504 r/w Sec. 149 of IPC?
Whether the prosecution further proves beyond all reasonable doubt that on the above said date, place and time, all the accused in furtherance of their common object taking boundary dispute pelted stones on the farm house of complainant damaging the doors as well as roof causing loss to the tune of Rs. 5,000/- to the complainant and thereby committed an offence punishable U/s. 427 r/w Sec. 149 of IPC?
What order?"
The Court below has answered point No. 1, 2, 4, 5 and 7 partly in the negative, 3 and 6 in the negative and proceeded to convict the accused No. 1 to 11 for the offences punishable aforesaid. Accused No. 1 to 11 being convicted for the offence punishable under Section 148 IPC are sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs. 500/- each, and in default of payment of fine, to undergo Simple Imprisonment for a further period of 15 days. Accused No. 1 to 11 were also convicted for the offence punishable under Section 452 IPC and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/- each, and in default of payment of fine, to undergo Simple Imprisonment for a further period of one month. Accused No. 1 to 11 were convicted for the offence punishable under Section 326 IPC and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/- each, and in default of payment of fine, to undergo Simple Imprisonment for a further period of one month. Accused No. 1 to 11 were convicted for the offence punishable under Section 324 IPC and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500/- each, and in default of payment of fine, to undergo Simple Imprisonment for a further period of one month. Accused No. 1 to 11 were convicted for the offence punishable under Section 427 IPC and imposed a fine of Rs. 500/- each, and in default of payment of fine, to undergo Simple Imprisonment for a further period of one month. The Court below acquitted the accused No. 12. It is in this background that the present appeals are filed for the reliefs stated as hereinabove.
Having heard the learned counsel for the appellants and having perused the record, on a close examination of the material on record and the reasoning of the Court below, it is seen that the trial Court has very carefully analyzed the evidence and has found that the complainant and other witnesses did sustain injuries on account of the alleged assault by the accused. PW.5 Rukamavva and PW.9 Revappa had sustained grievous injuries as there was a fracture of the humerous bone and ulna, this was supported by medical evidence. Though there was a vehement contention that x-rays were not produced and cross-examination having been made in this regard at length, the Court below has found that the wound certificate disclosed that on the basis of the x-ray report the information was given as regards the fracture and no suggestion was made that the victims did not sustain any fracture. Under these circumstances the Court below categorically found that the complainant and other witnesses sustained simple injuries and PW.5 and PW.9 sustained grievous injuries. Further, the accused were wielding stones and sticks, they had trespassed into the house of the complainant situated on the land bearing Sy. No. 58/4 of the aforesaid village and did assault the complainant and others and also damaged the property and this fact has been deposed by a number of witnesses. Under those circumstances the Court below has held that there was evidence of criminal trespass in the house of the complainant by the accused and also of having caused damage to property.
Though it was vehemently canvassed that the accused intended to murder the complainant and other witnesses, the Court found that there was no evidence forthcoming substantiating this accusation. The Court had even observed that the accused were armed with sticks and stones, they had not assaulted the victims any vital part of their bodies and that, this was evident from the evidence of medical officer that no fatal injuries have been caused. And the Court has further opined that if at all the accused intended to murder the victims, there would have been injuries caused to vital parts of the victims body and since none of the injured victims having suffered grievous injuries to any vital part of the body, it was evident that such intention to cause murder was not present and though PW.5 and PW.9 had suffered grievous injuries, they were not fatal, having suffered fractures to their hands. Hence the contention of the prosecution that there was intention to murder is negated and it is in this background that the Court has opined that the ingredients of Section 307 IPC were not at all established though the offences punishable under Section 324 and 326 were certainly established.
Insofar as the accused having abused and used foul language against the victims is concerned, the Court has found that the witnesses did not specify the words and language used and by which of the accused. Except two witnesses, none of the other witnesses specifically deposed regarding the abusive language or the foul language used. The evidence was totally silent on this aspect and hence the Court has come to a conclusion that the evidence did not support to convict the accused for the offence punishable under Section 504 read with Section 149 IPC.
The Court has further observed, that though there is evidence against accused No. 1 to 11, but none has spoken anything about accused No. 12, though accused No. 12 was part of the unlawful assembly. There was no evidence of any overt acts by the said accused. None of the witness has stated anything as regards accused No. 12 having engaged in any such acts. In the absence of any evidence, the Court below was right in holding that as against accused No. 12 there was no evidence is forthcoming.
The allegation by the accused as to there being a counter case which registered before the same Court as S.C. No. 278/2008, the Court below has found that the incident as stated by the accused, was not at the same spot, but about 300 feet away from the area where the assault had taken place. The Court has concluded that in order to accept the contention of the accused that there was a case and counter case cannot be accepted as the situation does not conform to the principles laid down in the case of Dhanapal Vs. State by Public Prosecutor, Madras, . The Court has also negated the theory of the accused that there was no independent witness and the evidence relied upon was of interested witnesses on the footing that the witnesses could not be called as interested witnesses, however, they were all injured victims and their evidence would have to be given credence as the evidence tendered by several injured victims. After having discussed the case that was stated, at length, the Court below has finally concluded that the documentary evidence clearly established that the accused 1 to 11 committed the offence punishable under Sections 143 , 147 , 148 , 452 , 324 , 326 and 427 read with section 149 IPC. The offence punishable under Sections 143 and 147 are merged with the graver offence under Section 148 IPC and therefore the Court below sentencing the accused for the offence punishable under Section 143 , 147 IPC did not arise.
The evidence was insufficient to prove the guilt of the accused for the offence punishable under Section 307 and 504 IPC and also there was no evidence against accused.
It is in this fashion that the Court below has found the accused guilty of the offences as already stated. Insofar as the punishment is concerned, though it appears that the Court below has again taken a balanced view as to the punishment that could be imposed, given the facts and circumstances and the punishment of imprisonment for three months to the accused with a fine of Rs. 500/- each in respect of the offence punishable under Section 148 IPC cannot be found fault with.
Similarly the punishment of one year with fine of Rs. 500/- each to the accused for the offence punishable under Section 452 IPC as also punishment of one year with fine of Rs. 500/- each for the offence punishable under Section 326 IPC, punishment of six months and fine of Rs. 500/- each for the offence punishable under Section 324 IPC and causing damage to the tune of Rs. 5,000/-, imposing fine of Rs. 500/- to each of the accused in respect of the offence punishable under Section 427 IPC though appears to be in order, however, the fact remains that the two victims who have suffered grievous injuries are PW.5 and PW.9. According to the evidence on record, PW.5 was attacked by accused No. 3 and 5 and insofar as PW.9 was concerned, he was attacked by accused No. 1 and 11. The other accused are said to have caused simple injuries to all the other victims. Therefore the Court below having taken a view that all the accused should suffer uniform punishment is incorrect.
It would therefore be in order if we are to confirm the sentence insofar as accused Nos. 1, 3, 5 and 11 are concerned and insofar as the other accused are concerned, it would be appropriate if a fine of Rs. 1,000/- (one thousand rupees only) each, for the offence punishable under Section 148 IPC. In the event of default of payment of fine, the accused shall undergo Simple Imprisonment for a period of one month.
Insofar as the offence punishable under Section 452 IPC is concerned, it would be appropriate if a fine of Rs. 2,000/- (two thousand rupees only) each, to all the accused. In the case of default of payment of fine, the accused shall undergo Simple Imprisonment for a period of two months.
Insofar as the offence punishable under Section 326 IPC is concerned, it would be appropriate if a fine of Rs. 2,000/- (two thousand rupees only) each, to all the accused. In the case of default of payment of fine, the accused shall undergo Simple Imprisonment for a period of two months.
Insofar as the offence punishable under Section 427 IPC is concerned, it would be appropriate if a fine of Rs. 1,000/- (one thousand rupees only) each, to all the accused. In the event of default of payment of fine, the accused shall undergo Simple Imprisonment for a period of one month.
Accused No. 12 however is acquitted.
The amount so paid as fine shall be given as compensation to PW.5 and PW.9 in a sum of Rs. 10,000/- (ten thousand rupees only) each, and rest of the amount shall be divided equally between PW.6 and PW.7.