(Prayer: This Crl.A. is filed u/s.374 (2) of Cr.P.C by the advocate for the appellants praying that this Hon'ble court may be pleased to, set aside the judgement and order of conviction dated 30.09.2010 passed by the III Addl. Sessions Judge at Bijapur in Sessions Case No. 28/2009, thereby convicting the Appellants / Accused No. 1 and 6 for the offence p/u/s 324 and 326 r/w Sec. 149 of IPC and the Appellants / Accused No. 1 and 6 are sentenced to undergo for a period of six months and to pay fine of Rs. 5,000/- each. in default, they shall undergo further is for a period of one month for the offence p/u/s 326 r/w sec. 149 of IPC further the appellants / accused no. 1 to 6 are sentenced to undergo for a period of three months and to pay fine of Rs. 1,000/- each. in default they shall undergo further is for a period of fifteen days for the offence p/u/s 324 of IPC r/w Sec. 149 of IPC.
This Crl.A. is filed u/s. 372 of Cr.P.C by the advocate for appellant praying that this Hon'ble court to call for records from the court below and modify the judgment and order of conviction for lesser offences dt: 30.09.2010 passed by the III Addl. Sessions Judge, Bijapur in Sessions Case No. 28/2009 and convict the Respondent No.2 to 7 accordance with law in the interest of justice and equtiy.)
1. Appellants were accused nos.1 to 6 in a criminal case in S.C.28/09 which was pending on the file of III Additional Sessions Judge, Bijapur. They had been charged for the offences punishable under Sections 147, 148, 326, 324, 308, 504, 506 read with Section 149, I.P.C. vide charge dated 8.5.2009. They had pleaded not guilty and claimed to be tried. But ultimately the learned sessions judge has convicted the appellants for the offences punishable under Sections 326 and 324 read with Section 149, I.P.C. and has directed them to undergo SI for six months and to pay fine of Rs.5,000/- each for the offence punishable under Section 326, I.P.C. and to undergo RI for 3 months and fine of Rs.1,000/- each for the offence punishable under Section 324, I.P.C., vide judgment dated 30.9.2010.
2. Allegation made against the accused as per the charges framed on 8.5.2009, is that the accused had formed an unlawful assembly holding deadly weapons like sticks, clubs and stones at 11.00 a.m. on 1.1.2008 near Kalasamma temple, Suragihalli village of Sindhgi Taluk, and committed rioting and assaulted witness Basavaraj on his legs, hands and neck and attempted to commit culpable homicide not amounting to murder and also abused him by using filthy language, thus provoking him to break public peace and threatened him with dire consequences to his life and limbs.
3. In order to bring home the guilt of the accused, 13 witnesses have been examined and four exhibits have been got marked. Four M.Os. have also been got marked. After the conclusion of the evidence of prosecution, the accused were examined in regard to the incriminating circumstances emanating from prosecution case. Their case is one of total denial. No evidence is adduced on behalf of the accused.
4. Appellants-accused have filed this appeal under Section 374, Cr.P.C. The injured Basavaraj has filed a separate appeal in terms of Section 372, Cr.P.C. on the ground that the sentence of imprisonment and fine imposed on the accused is grossly inadequate and that in spite of proof of the ingredients of Section 308, I.P.C., they have not been convicted for the said offence. Since both these appeals have arisen out of one judgment passed in S.C.28/09, they are taken up together for common discussion.
5. Learned counsel for the appellants has vehemently argued that the prosecution has not proved the guilt of the accused beyond all reasonable doubt and that serious contradictions and omissions have been ignored by the trial court. He has argued that case came to be registered on the basis of omnibus allegations made by the father of the complainant and that no acceptable medical evidence is placed on record to show that the injured had sustained grievous injury or fracture to be punishable for the offence punishable under Section 326, I.P.C. It is further argued that the inordinate delay in lodging the first information to the police has been virtually ignored, while evaluating the evidence and that this delay weakens the substantum of the prosecution case.
6. Per contra, learned HCGP, Mr.Seshadri Jaishankar has vehemently argued that the prosecution has proved the guilt of the accused beyond all reasonable doubt. He has argued that the act done by one is deemed to have been done by all in view of the constructive liability found in Section 149, I.P.C. and that there is no reason to disbelieve the evidence of PW5 and the eyewitness-PW6 and medical evidence of PW8. It is argued that even in the absence of x-ray report, nothing is placed on record to suspect the medical opinion of PW8. It is argued that overwhelming evidence is placed on record in regard to the forming of unlawful assembly by the accused by holding deadly weapons and assaulting Basavaraj and causing grievous injuries. Hence, he requests the court to confirm the sentence.
7. Learned counsel, Sri R.S.Lagali representing the injured-Basavaraj who is the victim in terms of Section 2(w), Cr.P.C., has argued that a clear case is made out to convict the accused for the offence punishable under Section 308, I.P.C. and that the sentence of imprisonment and fine imposed is grossly inadequate qua the grievous injuries sustained by the injured Basavaraj. Hence he has requested the court to dismiss the appeal filed by the accused and to allow the appeal filed by the victim to convict the for offences punishable under Section 308 of IPC.
8. Perused the entire records. Following points arise for the consideration of this court:
1) Whether the prosecution has placed sufficient evidence to convict the accused for the offence punishable under Section 308, I.P.C. as contended by the learned counsel for the victim?
2) Whether the learned sessions judge is justified in convicting the accused for the offence punishable under Section 326, I.P.C. read with Section 149, I.P.C. and if not, what offence is made out?
3) Whether any alteration is required in regard to the sentence imposed by the trial court and if so, to what extent?
REASONS
9. Point nos.1 and 2: Both these points are taken up together for common discussion since they are inter-related with reference to the nature of injuries sustained by the victim.
10. The incident is stated to have taken place on 1.1.2008 at 11.00 a.m. in the vicinity of Kalasamma temple of Vijayapura district. First information was lodged by Routhappa-father of the victim on 3.1.2008 before Almel police station at 3.00 p.m. A case was registered in Crime No.2/08 of Almel police station for the offences punishable under Sections 147, 148, 324, 308, 326, 504 read with Section 149, I.P.C. The case of the prosecution is that all these accused formed an unlawful assembly holding deadly weapons like clubs, stones, sticks at 11.00 a.m. on 1.1.2008 near Kalasamma temple of Suragihalli village and committed rioting and assaulted Basavaraj on his legs, neck and hands, and attempted to commit culpable homicide not amounting to murder and also used filthy language and thus provoked him to break public peace and threatened him with dire consequences to his life and limb.
11. Criminal investigation agency was set into motion on the basis of first information lodged by Routhappa- father of the victim 2 days and 4 hours after the alleged incident. Ex.P1 is the FIR lodged by Routhappa and Ex.P4 is first information prepared by the police and lodged before the jurisdictional magistrate at 7.00 p.m. on the same day, i.e.3.1.2008. The distance between the place of incident and the jurisdictional police station is 20 kms. and this is evident from the contents of Ex.P4.
12. On a plain reading of Ex.P1-first information, it appears Routhappa was not the present at the spot when his son was allegedly assaulted by these accused with deadly weapons. First informant has 3 sons namely Basavaraj-injured, Srikant and Suryakant. They are all agriculturists by profession. It is the case of PW1 that he had taken the land of Ashoka Siddappa Suryavamshi of the same village on Lavani basis. In Ex.P1, he has mentioned that his son-Basavaraj aged 24 years went towards the land and when he was proceeding near Kalasamma temple, all the accused had held clubs and stones and assaulted him as a result of which he fell down. Bhimaraya and Ashok Suryavamshi pacified them and rescued his son. According to PW1, the incident took place at 11.00 a.m. Both Bhimaraya and Ashok who witnessed the incident, informed him about his son being assaulted. Suddenly himself, his wife-Shantabai and daughter-in-law, Padmavathi went near the temple and found that his son had fallen down and was not speaking. Immediately they shifted him to Tamba Govt. Hospital in a jeep and the doctor there gave first aid treatment and sent him to Bijapur Govt. Hospital. According to the contents of Ex.P1, Basavaraj was not in a position to speak and regained consciousness on 3.1.2008 and on coming to know about the incident from him, PW1 went to the police station and lodged first information.
13. First information could be used for the purpose of corroboration as well as contradiction. As per Ex.P1, Bhimaraya and Ashok were eyewitnesses to the incident in question and both of them informed him when he was in his house. In his cross-examination, PW1 has specifically admitted that he came to know about the incident from Bhimaraya and that Basavaraj did not tell him about the weapons with which his son was assaulted by the accused. He has further admitted that by the time he went to the place of incident, 50 persons had gathered and his son had sustained injury to his hands, legs and neck and he did not enquire with his son about the incident. In his further cross- examination, PW1 has deposed that his son had lost consciousness and he shifted him to hospital in a jeep. He was accompanied by CW9-Kantanagouda-PW10.
14. The assertion of PW1, as found in his cross- examination, is that his son had lost consciousness when he went to the scene of occurrence and that he got consciousness 2 days after the incident. Whether his assertion is corroborated by material particulars, is the question. The best person who can speak about the mental and physical condition of the injured is PW8- Dr.Yashwanth Gouda, medical officer of Tamba Primary Health Centre, Indi Taluk. It was he who initially examined the injured on 1.1.2008 and gave first aid treatment and referred him to Govt. Hospital, Bijapur. According to him, one Siddaram had brought him to the hospital on 1.1.2008.
15. PW7-Siddaram has deposed that he heard some galata going on in front of Kalasamma temple and went to the spot. He saw that Basavaraj had fallen down having sustained injuries. He shifted him to Tamba Hospital in a jeep and later on he was brought to Bijapur Govt. Hospital. It is his version that after two days Basavaraj regained consciousness and the accused who was present before court, assaulted Basavaraj and this fact came to his knowledge later on. Therefore, Siddaram is not an eyewitness and he is only a hearsay witness. His evidence could only be taken to the extent of shifting the injured to the hospital at Tamba and then to Bijapur Govt. Hospital. During the course of his cross-examination, PW7 has deposed that he did not witness the incident and he has not given any statement under Section 161, Cr.P.C. to the police.
16. PW9-Dr.Yashwant Gouda is the author of Ex.P3- wound certificate of Basavaraj. It was issued on 28.7.2008 by PW8 to the PSI of Almel police station. Ex.P3 discloses that one person by name Basavaraj, a resident of Suragihalli village, Sindhgi Taluk, was brought by Siddaram Pawar on 1.1.2008 with the report of sustaining certain injuries as a result of assault. He had sustained the following three injuries:
i) swelling over both elbow joints;
ii) swelling and abrasion on the back; and
iii) swelling and abrasion on the right hand. After the receipt of x-ray report no.1127 (I.P.30) by the District Hospital, Bijapur, the above mentioned injuries were found to be grievous in nature. According to him, the left elbow joint upper end fracture was caused due to the force of a blunt object. In his cross- examination, PW8-Dr.Yashwant Gouda has deposed that Basavaraj himself disclosed about the injuries sustained by him and later on he examined those injuries. PW8 has further deposed that the injured showed the places where he had pain. Normally the time of examination of the injured must be invariably mentioned in the medico-legal case register (MLC register) and that is absent in Ex.P3. The deposition of PW8, as found in paragraph 4, discloses that the injured was very much conscious when he was brought to Tamba hospital and the doctor came to know of the injuries on being explained to him by the very victim with reference to the placed where he had pain.
17. PW8 has opined that the fracture of the elbow of left hand was grievous in nature and this is indicated in the x-ray report sent to him by Bijapur Govt. Hospital. He has made reference to that effect in Ex.P3 and wound certificate which is referred to above.
18. The x-ray report bearing no.1127 dated 1.1.2008 taken in Bijapur Govt. Hospital and referred to in Ex.P3 is not produced before court. Even on the day when PW8 was examined, the MLC register had not been brought by PW8 to the court. Whenever a doctor is to give evidence about the medical certificate which is an extract of the MLC register, he/she is expected to bring the same without fail to court and the court will have the opportunity to compare the relevant contents of the register with the contents of the medical certificate issued.
19. In the present case, PW8 has admitted that normally medico-legal case intimation will be given to the police in writing and that he did not give such information to the police in this case after examining Basavaraj who had been brought to the hospital on sustaining injuries due to assault. PW8 has specifically deposed that he received the x-ray report from Bijapur Govt. Hospital and he has feigned ignorance as to whether he had intimated the police about the same. He had not sent a copy of the reference letter issued by Bijapur Govt. Hospital in respect of Basavaraj. He has specifically admitted that the medical certificate was issued almost 6 months after the incident.
20. The evidence of a doctor will have to be assessed as that of any other evidence and there is no presumption that his evidence is a gospel truth. Principles to this effect have been succinctly laid down by the Hon'ble apex court in the case of MAYUR PANABHAI SHAH .v. STATE OF GUJARATH (1982 Crl.L.J. 1972 SC). Here is a doctor who had attended the court without bring the MLC register and he had not handed over the x-ray report said to have been received by him from Bijapur Govt. Hospital to the police. This is the basis for coming to the conclusion that the injury sustained by the victim-Basavaraj on his left elbow was grievous in nature.
21. It is also pertinent to note that Dr.Yashwant Gouda had not given any opinion about the exact nature of injuries sustained by the injured till he received the x-ray report from Bijapur Govt. Hospital. He had noticed swelling on both elbow joints and abrasion over back and neck and abrasion over the right finger. The date of receipt of x-ray report from Bijapur Govt. Hospital is also not forthcoming. He had only conducted a clinical examination on 1.1.2008 and was not sure about the exact nature of injuries sustained by the injured on that day.
22. In order to ascertain the exact nature of injuries, the doctor felt that the x-ray report was required. Even otherwise, he has not opined about the number of days he was treated as in-patient in the hospital at Bijapur. Even in the absence of a specific report about the exact nature of injuries, Section 320, I.P.C. can be made applicable if the injuries sustained by him made him to suffer during the space of 20 days with severe body pain or he was unable to follow his ordinary pursuits. Mere fact that the accused was in the hospital for more than 20 days would not be enough to conclude that he was unable to follow his ordinary pursuits during the period. This is the clear observation of the High Court of Gujarat in the case of SAMAJ .v. STATE OF GUJARAT (AIR 1969 GUJARAT 337). Mere fact that the injured was in the hospital for more than 20 days would not be sufficient to demonstrate that he had severe physical pain and in the absence of the same, it would be construed as a simple injury.
23. Mr.R.S.Lagali, learned counsel representing the victim has argued that the prosecution has been able to prove that the accused have committed the offence punishable under Section 308, I.P.C. and that an attempt was made by them to commit culpable homicide. Hence he has requested the court to convict them for the said offence and sentence them with maximum punishment as contemplated in the provision.
24. Section 308, I.P.C. is reproduced below along with the illustration appended therein:
308. Attempt to commit culpable homicide. - Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
A perusal of the provisions contained in Sections 307 and 308, I.P.C. show that they make provision for punishing those who attempt to commit certain offences. While Section 307 is linked with murder punishable under Section 302, I.P.C., Section 308 is linked with the offence of culpable homicide punishable under Section 304(I), I.P.C. Section 307 covers those cases where the act has not resulted in death, but if it had resulted in death, it would have amounted to murder. Similarly Section 308, I.P.C. covers cases where the act has not resulted in death, but if resulted in death, the offence would have amounted to culpable homicide not amounting to murder.
25. The provisions contained in Section 308, I.P.C. postulate doing of an act with such intention or knowledge and under such circumstances that, if by that act he caused death, he would be guilty of culpable homicide not amounting to murder. The essential ingredients of Section 308, I.P.C. are as follows:
i) that an act was committed by the accused;
ii) the said act was done with the intention or knowledge that he shall be guilty of culpable homicide not amounting to murder; and
iii) culpable homicide does not amount to murder.
Prosecution is expected to prove that the accused did some act towards the victim and that such act was done with such intention or knowledge and under such circumstances that had it caused death, he would be guilty of culpable homicide not amounting to murder.
26. In the present case, the allegation is that accused assaulted the injured-Basavaraj with clubs and stones and caused severe injuries to his elbows, back and legs. Ex.P3-medical certificate discloses that only one grievous injury was found on the left elbow which was fracture of left elbow. No assault was made on any vital part of the body and the prosecution has not been able to prove that the said assault was made with the intention or knowledge referred to in Section 300, I.P.C.
27. Intention or knowledge has to be ascertained from the nature of injuries suffered by the victim. The doctor, in the present case, has not stated that the injury was sufficient, in the ordinary course of nature, to cause death. If death cannot be caused by such injury, there is no question of the accused being liable under Section 307, I.P.C. In fact, Section 308 stands on a lesser footing when compared to the ingredients of Section 307. The evidence of Dr.Yashwant Gouda discloses that the injured was conscious when he was brought to the hospital and that he spoke to him about the injuries sustained and since he (doctor) could not know the gravity of injury sustained on the elbows, he had to be referred to a bigger hospital, i.e. Govt. Hospital, Bijapur. By no stretch of imagination, the provisions of Section 308 are applicable to the facts of the present case. Therefore there is no merit in the contention of Sri R.S.Lagali that the case on hand is covered under Section 308, I.P.C. Therefore, it is held that the prosecution has failed to prove beyond all reasonable doubt that the accused had committed the said offence punishable under Section 308 of IPC.
28. The learned judge has convicted the accused for the offence punishable under Section 326, I.P.C. read with Section 149. Following are the points raised by the learned judge for consideration as found in pages 4 to 6 of the impugned judgment:
(i) Does prosecution prove beyond reasonable doubt that, all accused on 01.01.2008 at about 11.00 a.m., near Kasamma Devi Temple at Suragihalli village, formed an unlawful assembly holding sticks, clubs, stones in their hands with common object to assault the complainant's son Basavaraj, and thereby they committed the offences U/s. 143, 147, 148 r/w 149 of Indian Penal Code?
(ii) Does prosecution further prove beyond reasonable doubt that, all accused in furtherance of their common object have assaulted the complainant's son Basavaraj with sticks, clubs, stones and caused simple and grievous hurt to Basavaraj and they committed the act with such intention or knowledge and under such circumstances if by that act, they would have caused the death of Basavaraj, and thereby they committed the offences U/s. 324 and 308 r/w 149 of Indian Penal Code?
(iii) Does prosecution further prove beyond reasonable doubt that, all accused in furtherance of their common object have abused the complainant's son Basavaraj in filthy language intending to provoke him to break the peace, and together they committed an offence U/s. 504 of Indian Penal Code?
(iv) Does prosecution further prove beyond reasonable doubt that, all accused in furtherance of their common object have threatened the complainant to take his life, and thereby committed an offence U/s. 506 r/w 149 of Indian Penal Code?
(v) What order?
Point nos.1, 3 and 4 are answered in the negative and point no.2 is answered partly in the affirmative holding that the accused have committed offences punishable under Sections 324 and 326 read with Section 149, I.P.C. Following is the operative portion of the order on sentence passed by the learned sessions judge on 30.9.2010:
ORDER ON SENTENCE
The accused is heard on sentence. The accused submits that, they have not committed the offences alleged against them.
2. The accused have assaulted the victim Basavaraj without any strong reason. They assaulted the Basavaraj with clubs and stones and caused grievous injury simply on the ground that; he (victim Basavaraj) used to wonder in front of their house seeing at the house of accused (Girls of accused family).
3. The learned Counsel for accused submits for taking lenient view. Considering all these aspects, I pass the following:
ORDER
The accused (accused Nos.1 to 6) are sentenced to undergo rigorous imprisonment for a period of six (6) months and to pay fine of Rs.5,000/- (Rupees Five Thousand) each.
In default of payment of fine, they shall undergo further simple imprisonment for a period of one (1) month for the offence u/S.326 r/w 149 of Indian Penal Code.
All accused are sentenced to undergo rigorous imprisonment for a period of three (3) months and to pay fine of Rs.1,000/- (Rupees One Thousand) each. In default of payment of fine, they shall undergo further simple imprisonment for a period of fifteen (15) days for the offence U/S.324 r/w 149 of Indian Penal Code.
If the fine amount is paid, out of the fine amount, a sum of Rs.20,000/- (Rupees Twenty Thousand Only) ordered to be paid to PW.5/Victim Basavaraj s/o Ravutappa Navi, R/o: Suragihalli.
The material objects (M.Os.1 to 4) ordered to be destroyed after the appeal period is over.
Supply the copy of this judgment to the accused on free of costs.
29. In the present case, the doctor has opined that there was fracture on the left elbow joint and it was grievous in nature. He has opined on the basis of the x-ray report stated to have been sent to him by the District Govt. Hospital, Bijapur, where the injured- Basavaraj was treated as in-patient. No material is placed on record to evidence the treatment given to Mr.Basavaraj in Govt. Hospital at Bijapur except making a reference about x-ray being taken. Production of x-ray was absolutely required to substantiate his opinion that the injured had sustained grievous injury.
30. What is the effect of non-production of the x-ray report has been dealt by a Division Bench of this court ion the case of STATE OF KARNATAKA .v. SHEENAPPA GOWDA ([2011] 4 KCCR 759). As per the facts of the said case, PW4 had sustained a grievous injury; x-ray had been taken to confirm that he had sustained a fracture. It is held that 'one cannot say that the injury would be grievous injury in the absence of x-ray report.' In the present case, the opinion of PW8 can only be said to be given on clinical examination. It is well settled that in criminal cases, the burden of proof is always on the prosecution and that burden would not shift unless there is a presumption or defence is taken as enumerated in the Indian Penal Code. In the present case, the defence of the accused is one of total denial of the allegations levelled.
31. It is clear from the evidence of PW8-Dr.Yashwant Gouda that he has described the injury noticed by him as grievous injury. When the prosecution has alleged that the injured had sustained fracture of left elbow and the same is supported by x-ray report, non-production of x-ray report would not help the prosecution to contend that it was grievous in nature. The evidence of PW8 would only show that injured had suffered injuries as described in Ex.P3. Unless the x-ray report is produced for confirmation of the fracture opined by the doctor on clinical examination, it cannot be said that the accused had caused grievous injury, that is fracture.
32. PW8-Dr.Yashwant Gouda has specifically admitted that he received the x-ray report from Bijapur Govt. Hospital and does not remember whether he intimated the police about receipt of the report. Apart from this, he issued injury certificate almost six months after the injured was examined. Taking into consideration all these facts, this court is of the opinion that the prosecution has failed to prove that the injury i.e., fracture of left elbow sustained by Basavaraj was grievous in nature so as to punish the accused for the offence punishable under Section 326, I.P.C. Therefore the injuries found in Ex.P3 issued by PW8 will have to be construed as simple injuries punishable under Section 324, I.P.C. and not 326, I.P.C.
33. The next question is, whether the prosecution has been able to prove the guilt of the accused beyond reasonable doubt. The evidence of PW7 discloses that he was not an eyewitness to the incident in question and that he came to know of it from Bhimaraya (PW6). Though there is a delay of 2 days 8 hours in lodging first information to the police, there is nothing to disbelieve the evidence of PW6. It is not suggested either to PW6 or PW5 that Ex.P1-first information was lodged after due deliberations and it is a concocted story.
34. It is to be seen that the inspector who received the first information on 3.1.2008 went to the spot, drew mahazar and recorded the statements of material witnesses inclusive of Bhimaraya. If there was any delay in recording the statements of witnesses, it would have been something different. Though PW5 and pW6 have not been able to exactly state as to who possessed stones and who had clubs, they have been able to say that all these persons had possessed weapons and had formed an unlawful assembly to commit the offence and this is evident from the injuries sustained by PW5- Basavaraj.
35. In criminal cases, normally the injured will not leave out the assailants in order to rope in persons unconnected with the case. It is not suggested either to PW5 or PW6 that the accused were not at all present at the scene of offence at that point of time. On the other hand, PW7-Siddaram, a resident of the same village has deposed that he saw Basavaraj lying injured and shifted him to Tamba Hospital and later to Bijapur Govt. Hospital. Even PW10-Kantanagouda has deposed that by the time he went near Kalasamma temple, Basavaraj had fallen down and he was shifted to the hospital and his right hand was injured. It is not suggested to him that he did not come to the spot and that he did not see Basavaraj lying injured near the temple on 1.1.2008.
36. The I.O., Bhimappa (PW12) has spoken about recording of evidence of Padmavathi, w/o Basavaraj on 3.1.2008 and drawing of seizure mahazar at the spot. In fact he has stated that he recorded the statements of Basavaraj in Bijapur Govt. Hospital. He has denied that Basavaraj was not at all in-patient in the hospital. There is no reason to disbelieve the manner in which he conducted investigation. It is not suggested to him that he did not record the statements of material witnesses. Considering the totality of the circumstances, it is certain that the prosecution has been able to prove that all the accused had formed an unlawful assembly and assaulted the injured-Basavaraj and caused simple injuries. The evidence of PW5-Basavaraj is corroborated in material particulars with the evidence of PW6- Bhimaraya and medical evidence.
37. Though there is some delay in lodging first information, the accused have not been able to probablise that there was due deliberation before lodging the first information and therefore the case of the prosecution is not embellished. In this view of the matter, the judgment of the trial court will have to be confirmed only insofar as it relates to the accused being guilty of causing simple hurt with weapons and the offence punishable under Section 324 read with Section 149, I.P.C. Accordingly point nos.1 and 2 are answered in the negative.
38. Point no.3: The learned judge has convicted the accused to undergo imprisonment for 6 months and to pay a fine of Rs.5,000/- each for the offence punishable under Section 326, I.P.C. with the aid of Section 149, I.P.C. They have been sentenced to undergo SI for 3 months and to pay a fine of Rs.1,000/- each in respect of the offence punishable under Section 324, I.P.C. In the light of conviction of the accused being set aside under Section 326, I.P.C., imprisonment will have to be given up and in its place, sentence of fine will have to be increased.
39. At this stage, learned counsel for the appellants in Crl.A.3721/10, Mr.Shivanand Pattanshetti has submitted that the 2nd accused has completed M.A. B.Ed. and 5th accused has studied B.B.A. and is employed. He has requested the court to take a lenient view by invoking Section 3 of the Probation of Offenders Act against A-2 and A-5. There appears to be a strong force in the said submission. These two accused are educated and they are sentenced to undergo imprisonment or to pay fine, prospects of getting employment becomes black. Hence, Section 3 of Probation of Offenders Act will have to be liberally applied to these accused.
40. Insofar as the offence punishable under Section 324, I.P.C. in respect of the remaining accused is concerned, namely accused nos.1, 3, 4 and 6, they are liable to pay a fine of Rs.10,000/- each for the said offence instead of Rs.1,000/- imposed by the trial court. Insofar as accused nos.2 and 5 are concerned, the provisions of the P.O. Act will have to be made applicable and report will have to be solicited from the Probation Officer. Accordingly the sentence imposed by the learned sessions judge needs to be altered. Accordingly point no.3 is answered in the affirmative.
41. The result, the following order is passed:
ORDER
I) The appeal filed by the victim-Basavaraj in Crl.A.3611/13 is dismissed.
II) Crl.A.3721/10 filed by the accused is allowed in part. All the accused are found guilty of the offences punishable under Section 324, I.P.C. read with Section 149, I.P.C only. They are acquitted of the offence punishable under Section 326, I.P.C. read with Section 149, I.P.C.
III) Accused nos.1, 3, 4 and 6 are sentenced to pay Rs.10,000/- (ten thousand) each for the offence punishable under Section 324 read with Section 149, I.P.C. , in default, to undergo SI for a period of 3 months.
IV) Insofar as accused nos.2 and 5 are concerned, necessary orders will passed after the receipt of report from the Probation Officer, Bijapur. Office to get report from the Probation Officer by 22.9.2015 under Section 3 of Probation of Offenders Act.
V) Out of the total amount of fine, a sum of Rs.30,000/- (rupees thirty thousand only) be paid to the victim-Basavaraj as compensation under Section 357(3) of Cr.P.C.
The judgment of conviction and sentence passed by the Sessions Court stands modified accordingly.