4. IN ii ii I iic;i 1 (‘01 ‘j 01: K:RN.4 lAKA CIRCI 1T IIENCI I VI Dl (ARWAI) DATED TILTS THE 18 m DAY OF OCTOBER 2011 BIiF( )RE fl IF I lONBI.F MR. JLJSI1CE ANANI) L3YRAREI)DY CRIMINAl. APPEAL. No.6602006 BETWEEN: Shri. (3urunath Nianjappa Achari. Sb Maijappa Achari, Aged about 27 cars. Rjat. Ramapur Village. Taluk: Sirsi. I )istrict: Kanvar. .... APPEI .1 ANT. (By Shri. Jeevan J. Neeralgi. Advocate) AND: The State of Karnataka. By Sub Inspector Police. Bana’ asi Police Stat ion. Banavasi. RESPONDENT (By Shri.Anand K. Navalgimath, Government Pleader) [his Criminal appeal is tiled under Section 374 of’ (‘ode of Criminal Procedure seeking to set aside the judgment of conviction dated 27 02’2006 passed by the Court of Sessions Judge. Fast [rack Court—I. Karwar in S&’.No.39414 and acquit the Appellant of the offence punishable under Section 326 read with 307 1.PC. llIN appeal iflhi1L an tar Iicarii tln di - the (atii iadc tI1L talIa\ iiie: •JLDCILNT I leard the learned counsel for the appellant and the learned Government Pleader. . The kicts briefly stated are that, on I 7.O1.OO3 at about 5 .() p.m.. it is stated that the cattle belonuine to one Krishna \ial lappa Kurubar had entered the land ol one Shantavva of Ramapur. \vithin the limits of I3ai ivas i Police Station and it is alleed that Shanta\ \ a drove the cattle out of her land. Accused No.9, the wi l of one Krishna. namely !\sha, her minor son Prateek, Accused No, 1 0. are said to have picked up a quarrel regarding her driving out the cattle uIom the land and it is alleaed that Shantav\ a was assaulted by the two named accused. The complainant issaid to have inter\ened and paci lied the quarrel and he had accompanied Shantav a to her house in Ramapura. I Io e er, on the same da\ at about o.30 p.m hen the son of Shanta\ vu b name \ I anj appu I )esa i. upon leat-nine about the incident, had enquired about the assault on his mother shen the Accused No.1 — the present appellant and Manjayya — Accused No.2 and others, had in turn picked tip a quarrel with Shantavva and her son and sought to justi& the action of Accused Nos.9 and 10. It is alleged that A-I was carrying a sickle and the other accused were holding clubs. In the altercation that ensued, A- 1 is said to have assaulted Shantavva. Manjappa. Yellavatti Ningappa. Gurushantappa and Fakeerappa. causing simple and grievous hurt to them. Whereas the other accused are said to have assaulted the injured with clubs and therefore, the offences punishable under Sections 147. 148. 326. 324. 307 and 506 read with Section 149 of the Indian Penal Code. were framed. The accused pleaded not guilty and claimed to be tried. The prosecution had examined 13 witnesses and marked several exhibits iii support oftheir case. The Court below, on the several points framed for its consideration. has held that the charges against all the accused have not been proved beyond all reasonable doubt, except Accused No. I and has ultimately imposed the punishment of simple imprisonment for a period of five years S 4 for the offence punishable tinder Section 326 of’ the Indian Penal Code and to pay a tine of Rs. 10,000/- and also a sentence to undergo simple imprisonment Ibr 7 years for the offence punishable under Section 307 1PC and to pay a fine of Rs. I OO00- which tine if recovered. Rs.4,000/- each was to he paid to PWs 4 to 6 and PW-8 as compensation. Both sentences were to run concurrently. It is that which is under challenge in the present appeal. 3. The learned counsel for the appellant would point out that the Court below’, at Paragraph 16 has observed that all the witnesses PWs 4 to 8 have specified the role of the present appellant but have not specifically stated about the role of the other accused and even PWs 6 to 8 have not stated as to how many other accused were present on the scene of’ the occurrence and Accused No. I. has taken a major role and has assaulted PWs 4 to 8 causing simple and grievous hurt to them. Further, it is observed by the Trial Court that PWs 9 and 10 are independent witnesses and they hae not supported the 5 prosecution. He would thus point out that the prosecution has treated them as hostile. Hence, it has held that it was the Accused No.1 who has perhaps taken a major role, only on the ground that PWs 4 to 8 are specific about his role, but are not specific about the role played by the other accused. The learned counsel would thus contend that the charges against Accused No. I could not have been held to be proved beyond all reasonable doubt. When this was the opinion ofthe Court in so far as the other accused are concerned, by the very parity of reasoning, the appellant also was absolved since the charges have not been established against, the accused except that some witnesses have by rote, insisted as to the role played by Accused No. I. Since the injuries caused’to several people are many, it is difficult to accept that the accused — the present appellant alone had caused all those injuries and the serious punishment imposed is on the footing that the present appellant had indeed caused all injuries to all the injured people. This on the face of it would point to a serious doubt as to the appellant being the cause for all the injuries to all the injured and 6 thereibre, the appellant would have to be absolved of any such guilt as there is a serious doubt as to the allegations against the present appellant. 4. The learned Government Pleader on the other hand would seek to justi 13 the finding as there is consistency in the evidence of the witnesses in so far as the role played by Accused No. I and hence, there is no justification in seeking to question the reasoning of the Court below. 5. Given the above circumstances. it cannot be said that there is no substance in the contention of the appellant. Though the witnesses may have consistently stated about the role of the accused who “as said to be canying a sickle. the nature of injuries caused to the several injured persons are as follows: IEx.P.6: 1) A lacerated wound running obliquely over the face. extending 3 inches from the back of right ear. cutting the ear cartilage and estending up) the fitee 2 inch intl’nnt of right ear. This wound has detached the right ear from its base almost completely except at its . 7 kner part and injur’ the branch of litcial arter’ supplying the ear. fresh bleeding present. 2) A small incised wound of the size 2 cm on the left side of forehead. Ex.P.7: I) A lacerated wound running transversely on the nose detaching the lower I/3 of the nose from its route. except at its base. 2) Suspicion ot Iracture at the left tbrearm hones collen fracture confirmed aller relirence to Orthopaedicion. 3) Broken upper fell inciser teeth and diselocation ofthe tipper right inciser teeth. 4) An abrasion of’ the 3 x I cm at the lateral angle of left eye. Ex.P.8: I. A lacerated wound of the size 3 inch on the upper part of right shoulder with fbIlowing features (a) exposed shoulder joint (b) fracture of the acromial end of clavicle (e) exposed head of humurus iii the wound (4) injury to vessels of shoulder joint. 2. A small incised ‘sound on the panetal area of scalp 1 inch. S Ex.P.9: I. An incised wound with gaping of the size 2½ inch on the back of right forearm cutting the branchioradialue muscle with suspicion of mjur 10 hone underneath. 2. An incised wound measuring 2 inch on the penetal area of scalp with slight superticial injury to skull bone. 3. A small incised wound on the forehead 1 cm in size. Ex.P. 10: 1. Incised wound of the size 2 inch at the panetal occipital region of the scalp. 2. An incised wound in the daft bed thumb and index finger of the right hand measuring 2 inch in size. FN.P.l 1: I. A pointed wound 4 in number one opposite the other on the right side of thee. Ex.P.12: I. A small incised wound on the panetal area of scalp 1cm in size. 2. Swelling with tenderness at the right wrist. 9 6. It is therefore unreasonable for the Trial court to have attributed all the above injuries to have been caused h’ accused No. I when it is the evklenee of several imesses that other accused were also armed and had assaulted the injured. Iberetbre. there is serious doubt about the injuries having been caused by the Accused No. I alone. But however, he cannot be entirely absolved ol the guilt. Therefore, it would justif’ the imposition of a punishment which would not only punish the accused but at the same time compensate the injured. Though the Trial Court has thought it lit to impose a severe punishment of imprisonment 11w a period of 7 years. since the punishment iniposed in respect ol the ofi’ences punishable under the two dillèrent provisions has been held to run concurrently. it would result in the appellant being punished for a period of 7 years apart from having paid fine of Rs.20.000/-. This is certainly disproportionate to the injuries that may have been caused and alL of which cannot be attributed to the appellant alone. It would therefore serve the ends of justice if a higher amount of fine is imposed of which a substantial part can be paid as compensation to the injured since there is a serious doubt of the appellant alone ha’ ing caused all the injuries. Since the provocation 11w the altercation and the olThnce 5 V ha ne been committed a’ hot a premeditated act. but wa on aceuuiil of I rave tempers and escalated areumenis. it \\ould not be out of place to restrict the punishment to payment of tine as the object of imposition of punishment is to bring home the seriousness of the olThnee to the accused vhich is equally ser ed in restricting the punishment to payment ot tine in a larger amount 7 Accordingl\. the appeal is al loved in part I he sentence imposed on the accused is modi lied to pax meni of fine of Rs.4U0U(>-. in addition to the fine of ks.201H)() - that is already paid. and the said amount of line of deposit shall he paid as compensation to the injured namely PWs 1 to b and P\V-8 in a sum of Rs, I 0,000- each under Sect ion 357(2 of the Code of Criminal Procedure, On such deposit. the Court shall issue notice to PWs 4 to 6 and and after ascertaining their homi /Idc.v. shall pay the conipensat ion to them. 1 lie amount of fine uo\\ i inposed shall be paid be the appellant v itil in a period of eight eeLs flu I ing h ich the sentence imposed b the foal Court \\ouId re\ i\ e Sd/ JUDGE