IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 6Th DAY OF APRIL, 2011 BEFORE THE HON’BL,E MR. JUSTICE V. JAGANNATHAN CRL.A. NO.595/2007 BETWEEN: DATTARAMKUSHALI KOTHARKAR, R/O BHAGATWADA, ASNOTI, KARWAR. .APPELLANT (BY SRI.SHARAD V. MAGADUM, AMICUS CURIAE) AND: STATE OF KARNATAKA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BANGALORE. RESPONDENT (BY SRI.VINAYAK KULKARNI, HCGP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION U/S .374 CR.P.C. AGAINST THE JUDGMENT Dt5.2.2007 PASSED BY ThE DIST. & S.J., U.K., KARWAR IN S.C.NO.27/97 - CONVICTING AND SENTENCING THE APPELLANT/ACCUSED FOR THE OFFENCES AS STATED THEREIN. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED ThE FOLLOWING: JUDGEMENT This criminal appeal is by the accused who has been convicted by the trial court in respect of the offences punishable under Sections 143, 147, 148, 324, 326 and 304(11) r/w 149 of IPC, 2. The prosecution case in short is that this appellant herein along with other four accused persons formed themselves into an unlawful assembly armed with deadly weapons committed assault on Prakash Manjunath Talekar (deceased) on 20.09. 1993 and also caused injuries to C,W.8-Smt.Tarabai (P.W,13) and C.W.USmt. Shobha (P.W. 12) as well to C.W.9-•Smt.Sitabai. Following the complaint lodged, case was registered against the accused persons numbering five for the offence punishable under Sections 143, 147, 148, 302. 324, 326 and 506 r/w 149 of IPCAi the first instance, accused Nos, 1 to 4 were put on trial as this appellant (accused No.5) was found absconding. The said accused Nos. 1 to 4 denied the charge and the prosecution to prove its case, examined P.Ws. i to 19 and got marked Exs.Pi to 23 apart from M.Os. 1 to 10. Accused 3 statement was recorded and accused Nos. 1 to 4 denied the prosecution case and did not lead any defence evidence. 3. After appreciating the evidence on record, learned sessions Judge, Karwar convicted accused Nos. 1 to 4 in respect of the offence punishable under Section 304 Part-I! r/w 149 of IPC and also an offences under Sections 326, 324 nw 149 of IPC and also offence under Section 143 of IPC. The conviction and sentence passed against the said accused Nos. 1 to 4 was called in question before this court by the said accused and the appeal was allowed and accused Nos. 1 to 4 were acquitted. The State took up the matter to the Apex court and challenged the order of this court and the Apex court in Crl.A. No.498/1998 confirmed the judgement of conviction passed by the trial court by setting aside the judgement of this court in Crl.A. No.82/1995. However, the Apex court reduced the sentence of imprisonment from 7 years to 5 years. 4. Thereafter, this appellant was arrested and was put on trial and the very same witnesses P.Ws. 1 to 19 were 4 examined and documents ExsP1 to P23 were marked, apart from MOs. 1 to 10. 5. After evidence appreciation, the learned Sessions Judge convicted the present appellant also in respect of the offences first above mentioned and sentenced the appellant as already mentioned with default sentence in respect of the fine amount is concerned. 6. Challenging the conviction and sentence passed, this appeal is preferred by accused No,5. 7. 1 have heard learned counsel SriSharad V Magadurn and also the learned High Court Government Pleader for the State and perused the judgement of courts below and also paper book that is produced. 8 The submission of the learned counsel for the appellant is that, the trial court ias not lustified in convicting the appellant and in this regard, he submitted that, out of the itnesses examined by the prosecution, the material witnesses, PW 12, ho is the wife of deceased 5 Prakash Talekar. P.W. 14 is the son of the deceased and P.W.13 is another witness and all of them being close relatives of the deceased, the trial court could not have accepted their evidence to convict the appellant. Apart from that, it is argued that the sentence imposed is also on the higher side, particularly in respect of the conviction for the offence punishable under Section 304 Part-Il of IPC and he further submitted that the appellant has already spent 4 years and 2 months after his arrest, arid hence the learned counsel sought for the sentence being reduced. 9. On the other hand, the submission of the learned High Court Government Pleader for the State is that, the judgement of conviction passed by the learned Sessions Judge has been confirmed by the Apex court by setting aside the judgment of this court and, therefore, this goes to show that the evidence on record has been properly appreciated by the trial court and the case of the prosecution is that, all the accused together assaulted Prakash Talekar and caused injuries to other persons and, therefore, the very same evidence led to the conviction of other accused Nos. 1 to 4 6 and their conviction being confirmed by the Apex court, it is not permissible for the present appellant to contend that the judgement of conviction passed by the trial court is erroneous. As far as the sentence is concerned, the learned High Court Government Pleader argued that, the Apex court had reduced the sentence to 5 years from 7 years and, therefore, this fact may be taken into consideration by this court, while considering the sentence part of the case. 10. Having thus heard both sides, so far as the conviction of the appellant is concerned, since the witnesses were all the same in the case tried against this appellant and the case in which accused Nos, i to 4 were put on trial at the first instance and the prosecution case also being that, all the accused formed themselves into an unlawful assembly and assaulted deceased Prakash Talekar and also caused injuries to other persons namely PWs, 12, 13. the evidence being one and the same against all the accused and when the said evidence is accepted by the Apex couli for upholding the conviction against accused Nos. . to 4, the very same evidence therefore. cannot give rise no any other result, so far 7 as this appellant is concerned. As the appellant was absconding, trial took place initially against accused Nos. 1 to 4 at the first instance. 11 In the light of the aforesaid reasons, when the conviction of accused Nos. I to 4 is confirmed by the Apex court, it goes to show that the evidence appreciation by the trial court even in the instant case is also just and proper and conviction of the appellant herein, therefore, cannot be termed as illegal or unsustainable. As such, I find no defect in accepting the trial court’s findings as regards conviction of this appellant is concerned. 12. Corning to the sentence part of the case, since the Apex court has reduced the sentence from 7 years to 5 years in respect of the offence punishable under Section 304 PartiI of the IPC, in my opinion, even in the present case, the sentence in respect of the said offence vill have to be reduced to 5 years and in all other respects, the sentence passed by the trial court and also the fine imposed in respect of the other offences, do not require any modification. 8 13. Since the appellant is said to have undergone custodial period of 4 years and 2 months, the said period is set off and the balance period will have to be served by the appellant. Accordingly, the following order is passed. 14. The conviction and sentence passed by the trial court against the appellant in respect of the offences punishable under Sections 143, 147, 148, 324 and 326 nw 149 of IPC IPC are confirmed. So far as the sentence passed in respect of the offence punishable under Section 304 Part II of IPC is concerned, it is modified from 7 years to 5 years and sentence of fine is however maintained as it is and also the default sentence passed by the trial court. 15. The appeal therefore stands allowed only to the extent of sentence of imprisonment in respect of the offence punishable under Section 304 Part-Il of IPC being reduced from 7 years to 5 years. t 0 CD ‘ aCDfl CD >8 I ‘C W0 LzJ