Arali Nagaraj, J.
1. The appellant Nos. 1 to 4 herein who were respectively accused Nos. 1 to 4 in Special Case No. 21/03 on the tile of the learned Special Judge, Udupi (hereinafter referred to the 'Trial Court' for short) have challenged the legality and correctness of the judgment and order of conviction and sentence dated 9.5.2006 passed in the said case convicting all these accused-appellant Nos. 1 to 4 for the offences under Sections 448, 323, 326 and 506(2) r/w Section 34 of IPC.
2. Stated in brief the case of the prosecution as alleged in the complaint (Ex.P1) dated 20.10.2003 filed by the complainant Govinda Naika S/o. Annaiava Naika of Kalkunjebailu, Santhekatte, Kalathur Village of Udupi Taluk is as under:
a) The complainant has been residing at the said address along with his wife Smt. Suma (PW3) and his son Raghavendra (PW4). His daughter Smt. Baby (PW2) has been residing near the residence of the complainant along with her husband Karunakar and her children. The said Karunakar who was earlier working in a Bar at Brahmavar left his said job and went to Bangalore in connection with his another job.
b) On one day about 15 days earlier to filing, of the said complaint accused No. 1 Vijaya Kumar Shetty met the complainant's said daughter Suit. Baby and demanded from her money, saying that, her husband Karunakar was due to him. When he demanded so she told him that she did not know about, her husband owing any money to him.
c) On 19.10.2003 at about 11 p.m. the said Vijaya Kumar Shetty (A1) came near the house of the complainant's daughter, on two motor cycles along with his men (employees) viz., Prashanth Shetty (A2) Ashok Poojary (A3) and Suresh Poojary (A4) and forcibly entered into her house. When the complainant and his son Raghavendra both went into the house of PW2 Smt. Baby on hearing the galata, they saw accused No. 1 Vijaya Kumar Shetty asking her the whereabouts of her husband while abusing her in filthy language and saying that if the amount due by her husband to him is not paid, he would snatch their residence. On seeing it, the complainant and his son Raghavendra both intervened and tried to pacify him (A1). Then the accused No. 1 Vijaya Kumar Shetty went to assault the complainant with a sharp edged weapon like knife and, during the incident, the knife held by the said accused came into contact with the complainant's leg and consequently he sustained bleeding injury.
d) When the complainant's wile Smt. Suma (PW3) went to rescue the complainant, accused No. 2 Prashanth Shetty put his hand on her neck and pushed her, consequently she dashed against the wall and fell down and sustained injury to her hand. At that time, Vijaya Kumar Shetty (A1) threatened the complainant's said daughter Suit. Baby end told her that if her husband were not to pay the amount, he would not allow them to stay in the said house. Thereafter, all the said lour accused persons went away from the said place on their motor cycles. The complainant lodged the said complaint on the next day i.e., on 20.10.2003 at about 12.15 P.M.
3. Trial Court tried all the accused Nos. 1 to 4 for the offences under Sections 448, 323, 326 and 506(2) IPC and under Section 3(1)(xi) of SC and ST (Prevention of Atrocities) Act, 1989 (hereinafter-referred to as 'SC & ST Act' for short) all r/w Section 34 of IPC. On appreciation of the oral evidence of PWs.1 to 9 and documents at Exs.P1 to P21 and also after considering the MO Nos. 1 to 4, the Trial Court convicted ail the accused Nos. 1 to 4 for the offences under Sections 448, 323, 326 and 506(2) r/w Section 34 of IPC, but acquitted them of all the offences under Section 3(1)(xi) of SC & ST Act.
4. The appellants herein have challenged the impugned judgment and order of conviction and sentence passed against them for the said offences. But the complainant-State has not chosen to prefer appeal against the impugned judgment and order insofar as it relates to the acquittal of these appellant-accused Nos. 1 to 4 of the offence under Section 3(1)(xi) of SC & ST Act r/w Section 34 IPC.
5. I have heard the arguments of Sri. Dinesh Kumar, the learned Counsel for the appellant-accused and also the arguments, of Sri. B. Raja Subramanya Bhat, the learned HCGP and perused the impugned judgment and order of conviction and sentence and also the entire material in the original records obtained from the Trial Court.
6. Sri. Dinesh Kumar, the learned Counsel for the appellant - accused Nos. 1 to 4 strongly contended that the allegations in the complaint do not constitute the ingredients of the offences under Section 502(2) r/w Section 34 IPC inasmuch as the accused No. 1 is alleged to have threatened PW2 Suit. Baby that if her husband were not to repay the amount due to him, he would not allow them to live in the said house, but he. is not alleged to have threatened her that he would cause her death or grievous hurt to her person or that he would destroy her property i.e., residential house by fire, and therefore, the very framing of charge against all the accused Nos. 1 to 4 thereto for the offence under Section 502(2) r/w Section 34 of IPC was not .justified. He further submitted that through presence of accused Nos. 3 and 4 at the scene of occurrence has been spoken to by the complainant and other witnesses, nothing further is alleged to have been done by any of these accused and therefore, their conviction for all the said offences invoking Section 34 IPC is not sustainable.
7. Sri. Dinesh Kumar, the learned Counsel for the appellant - accused farther submitted that the accused has to be convicted for the culpable act committed by him with intent to commit the said act and therefore even if the entire incident is field to have been proved, it could not be said that accused No. 1 intended to cause any grievous injury on the person of the complainant by assaulting him with knife and therefore even though there is evidence that the complainant, sustained fracture of Tibea of his right leg, it could not be held that the accused intended to cause fee said grievous injury on the person of the complainant He further, submitted that the entire circumstances under which the incident occurred go to show that the accused No. 1 had come to the house of PW2 along with, other accused, only to threaten her that if her husband were not to repay the amount due to him, he-would not allow, them to stay in the said house and therefore, he had no intention to cause any hurt to PW1 complainant, who intervened. Therefore it could not be held that the injuries sustained by the complainant during the said incident were intentionally caused by the accused No. 1 and other accused shared the said intention with the accused No. 1.
8. Per contra, the learned HCGP, white supporting the impugned judgment and order of conviction, strongly contended that the evidence of the complainant and other Witnesses clearly establishes that accused No. 1 threatened PW2 that if her husband were not to pay the amount he would certainly kill them all and therefore, the Trial Court was quite justified in convicting ail the accused Nos. 1 to 4 for the offence under Section 506(2) r/w Section 34 IPC. He further submitted that though no overt act is alleged in the complaint Ex.P1 against accused Nos. 3 & 4, in view of the undisputed fact that both of them, being his employees, had shared their common intention to commit all the said offences for which the accused Nos. 1 and 2 were liable to be convicted and as such, no illegality has been committed by the Trial Court in invoking the provisions of Section 34 IPC for convicting the accused Nos. 3 and 4 for the acts committed by the accused Nos. 1 and 2. He further contended that, since accused No. 1 assaulted the complainant with knife and thereby inflicted the injury, which, according to the Medical officer who examined the victim, being fracture of right tibia, was grievous in nature arid therefore, the Trial Court rightly convicted ail the accused Nos. 1 to 4 for the offence under Section 326 r/w Section 34 IPC.
9. In order to prove the occurrence of the incident as alleged in Ex.P1 complaint the prosecution has placed reliance on the oral evidence of PW1, the complainant Govinda Naika, PW2 his daughter Smt. Baby, PW3 his wife Smt. Suma and PW4 his son Raghavendra his son. On careful reading of evidence of PWs1 and 4 it could be seen that: they have consistently stated in their evidence that on the said date of incident at about 11 p.m. they were sleeping in their house and, on hearing the cry of PW2 Smt. Baby, they both rushed to her house which was near to their house and saw the said incident. PW 1 Govinda Naika has further stated in his evidence when he went, to tie house of PW2 he saw that, accused No. 2 Prashanth Shetty pushed PW3 Smt. Suma by putting his hand on her neck and accused No. 1 Vijaya Kumar Shetty was questioning PW2 Baby as to the whereabouts of her husband and then accused Nos. 3 and 4 manhandled PW2 and also bet her. lie has further deposed that, on seeing the same, he went to intervene and then the accused No. 1 gave a blow below his right knee with the knife and then himself and his son Raghavendra together pushed the accused outside the house.
10. PW2 Smt. Baby has stated in her evidence that on that day at about 11 p.m. some persons came near her house on motor cycle and asked her to open the door and when she opened the door she saw that accused Nos. 1 to 4 were the said persons and then they ail entered into the house. She has further deposed that, in the meantime, her father and her younger brother viz., PWs1 and 4 together came there and at that time, accused No. 1 was holding the knife was threatening her saying:
She has further deposed in her evidence that accused No. 2 Prashanth Shetty put his hand on her mother and pushed, consequently she dashed against, the wall and sustained injuries to her head and hand and then accused Nos. 3 and 4 bet her (PW2) and also pushed her. She has further deposed that in the mean time her father and younger brother together pushed the accused outside the house and then the accused No. 1 assaulted below right knee of her father with the knife held by him and then all the accused went, away from the said place threatening her that it tier husband were not to pay the debt due to him (A1) they Would kill them all. PW3 Suit. Suma, the wile of the complainant has also deposed same as PW2.
11. From the above evidence of PWs. 1 to 4 it could be seen that they have consistently stated in their evidence that accused Nos. 3 and 4 also assaulted PW2 Smt. Baby and they also pushed her. But the said evidence is contrary to the averments in the complaint inasmuch as no overt act is alleged in it against any of the accused Nos. 3 and .4. Further, though PWs. 1 to 4 have consistently suited in their evidence that the accused No. 1 threatened PW2 that if her husband were not to repay to the accused No. 1 the amount winch was due by him, he (A1) would kill all of them and also remove the residence of PW2, no such allegation is found in Ex.P1 the complaint. Therefore, as rightly submitted by Sri. Dinesh Kumar, the learned Counsel for the accused - appellants conviction under Section 506(2) of IPC r/w Section 34 of IPC against all the accused Nos. 1 to. 4 cannot be sustained. However, it is established by the prosecution that the accused No. 1 threatened PW2 that if her husband were not to pay him money he would not allow them to live in the, said house. Therefore, this threatening clearly attracts the provisions of Section 506(1) r/w 34 IPC. This being so, the conviction of all these accused for the offence under Section 506(2) deserves to be converted to the one under Section 506(1) of IPC.
12. It could be seen from the entire evidence of PWs. 1 to 4 that accused No. 1 came to the residence of PW2 along with the accused Nos. 2 to 4 to recover the money from her husband alleged to have been due to him, by threatening them that if the said money were not TO be paid, he would not allow them (PW2 and her husband) to live in their house.
13. It could be further seen that it is only after PWs. 1 and 4 came and intervened and tried to push the accused No. 1 from out of the house of PW2, the incident of assault by Al with knife on the right leg of PW1 resulting in bleeding injury coupled with the fracture of Tibia occurred. On careful reading of the averments in the complaint, it could be seen that it is not alleged therein that the accused No. 1 hit the complainant with the knife on his right leg. On the other hand, it is alleged in the said complaint that when the complainant intervened and pushed A1 out of the house, the knife that was held by the accused No. 1 came into contact with his right leg and consequently the complainant sustained injury below his right knee. Therefore, it is clear that accused No. 1 had no intention of assaulting PW1 with knife either on the right leg or any part of the body with further intention of inflicting any serious or grievous injury on his person.
14. Besides this, PW7 Dr. Nithyananda Naik, the Medical Officer of Community Health Centre, Hebri who examined PW1 on 20.10.03 at a bout 1.30 P.M. has stated in his evidence that on examination of the said victim he noticed a stab injury over middle 1/3rd of anterior aspect of right, leg in measuring 2 x 1 x 1 cm with fracture of right leg as found from the report of Orthopeadic Surgeon, Govt. Hospital, Udupi, given on the basis of X-ray No. 7875 dated 21.10.2003 in I.P. No. 4970. This Medical Officer has further deposed that on the basis of the said X-ray report, he issued Ex.P4 Wound Certificate stating that the said injury was grievous in nature. It is pertinent to note that there is no material produced on record by the prosecution to show as to when the injured PW1 was taken to the Government Hospital, Udupi, and the said X-ray report is also not produced on record. Further, PW7 the Medical Officer has not stated in his evidence as to what was the nature of fracture that was found in the said report. However, the tact remains, as deposed by PW7, that the. said fracture was as a result of assault on rum (PW1) oil 19.10.2003 and. tile injured PW1 gave history before FW7 that as on the said date and time he was assaulted by accused No. 1 Vijaya Kumar Shetty.
15. In view of ail the facts and circumstances of the case in which the said incident occurred, I am of the considered opinion, that the accused No. 1 never intended to cause any grievous injury on the person of PW1, the complainant Govinda Naika. At best it could be inferred from all the circumstances that since PW1 intended and intervened with accuse No. 1 while he was demanding in payment of the amount that was said to have been due to him by the husband of PW2 Smt. Baby, the knife that, was held by accused No. 1 came into contact with the right leg of the complainant and consequently he sustained the said injury when PW1 pushed A1 out of the house. Further, immediately after the injured sustained the bleeding injury to his right leg, all the accused went away from the scene of offence. Therefore, having regard to jail the circumstances of the case, even if it could be held that, accused No. 1 assaulted on the right, leg of PW1 with knife, it could not be further held that by assaulting on the leg which is not a vital part, of the body, the accused No. 1 intended to cause any serious or grievous injury to PW 1. It could be safely held that lie must have intended to cause only a simple hurt. Therefore, I am of the considered opinion that the act of the Accused. No. 1 at best constitutes an offence punishable under Section 324 IPC. Hence, the conviction of these accused-appellants deserves to be altered from the offence Under Section 326 r/w 34 IPC, to the one Under Section 324 r/w Section 34 IPC.
16. If the conviction of the accused-appellants for the offence under Section 326 r/w 34 IPC is to be altered to the one under Section 324 r/w 34 IPC and also the conviction for the offence under Section 506(2) r/w 34 IPC to be altered to one under Section 501(1) r/w 34 IPC, these two offences and also other offences under Sections 448 and 323 for which these accused-appellants are convicted are all compoundable as provided under Section 320 of Cr.P.C.
17. The learned Counsel for the accused-appellants has filed an application under Section 320(2) r/w 34 IPC seeking permission to compound the said offences.
18. For the reasons aforesaid, the accused-appellants deserve an opportunity to compound the said offences. Hence the following:
ORDER
The present appeal is allowed in part. While confirming the judgment and order of conviction for the offences under Sections 448 and 323 both read with Section 34 IPC the conviction of the accused-appellants for the offences under Sections 326 and 506(2) both r/w Section 34 of IPC is hereby altered to the offences Under Section 324 and 506(1) respectively both r/w Section 34 IPC. Further, the application filed by the accused appellants Under Section 320(2) of Cr.P.C. is allowed and they are permitted to compound the offences under Sections 448 and 323 r/w Section 34 IPC for which affences accused-appellants are convicted by the Trial Court and also the offences under Sections 324 and 506(1) r/w Section 34 of IPC for which they are to be convicted by allowing this appeal in part and by setting aside their conviction for the offences under Sections 326 and 506(2) r/w Section 34 IPC.
In view of the compounding of the said offences the accused-appellant Nos. 1 to 4 shall stand acquitted of all the said offences. Their bail bonds, if any, shall stand cancelled.
Send a copy of this judgment forthwith to the Trial Court.