JUDGMENT

1. This appeal by the State is directed against the judgment and order of acquittal passed by the Sessions Judge, Hassan, on 5.4.1999 in S.C No. 43/1991 acquitting all the accused persons of the offences punishable under Sections 148, 302, 323 and 324 read with Section 149 of IPC.

2. The charge against the accused persons in a nutshell is that deceased Channegowda of Mudugere Village had to pass through the lands of some of the accused persons in order to go to his coffee estate and the only path available was a cart track road to reach his estate following submersion of the lands in the backwaters of Hemavathi river. The deceased approached the authorities concerned to get a road sanctioned towards his coffee estate and, in this regard, a civil dispute arose between the deceased and his family on the one side and the accused on the other side. This formed the background for the enmity between two sides and, on 27.2.1991, when Sannegowda, son of deceased Channegowda, was on his way to deliver milk at the milk centre of Daarikongalale Village, the accused persons restrained him and assaulted Sannegowda with clubs and stones. Deceased Channegowda, upon hearing about the assault on his son, came and questioned the accused persons and the accused, who had formed into an unlawful assembly carrying deadly weapons, assaulted the deceased and the three sons of the deceased. Following the assault by A-2 and A-5 with club and chopper respectively on the head of the deceased, the deceased suffered serious, injuries on his frontal portion of the head and succumbed to the injuries on 6.3.1991 Three of his sons were also injured in the incident and, therefore, all the accused, persons thus committed the above mentioned offences.

The prosecution case:

3. The prosecution case unfolded before the trial court is that deceased Channegowda was a resident of Mudugere Village and he, along with his wife and children, was having 12 acres of land near Masarangala Village, out of which, 8 acres of land was coffee plantation and the remaining 4 acres was wet land. The land of A-7 was situated towards the west of the coffee plantation of the deceased. The lands of A-4, A-5, A-6 and A-13 were located to the west of the land of A-7. Following the submersion of certain lands in the backwaters of Hemavathi river after the construction of Hemavathi bridge, deceased Channegowda and his sons had to pass through the cart track situated in S. No. 42 and also through the land bearing S. No. 43 held by A-4, A-5, A-6 and A-13 and S. No. 24 held by A-7. The lands of the accused and the Government land were located between the coffee estate of the deceased and the road leading to Kendenne Village. The distance between the coffee estate of the deceased and Kendenne Village is about half a furlong. In order to have access to the coffee estate, the deceased approached the H.R.B.C authorities and got the road sanctioned from Kendenne road to his coffee estate. A-7 Rajappa, not being happy with this development, got the temporary injunction against the permission of the road and, in turn, the deceased moved the court and got the temporary injunction vacated. The case finally ended in favour of the deceased. A Court Commissioner was appointed to inspect the disputed properties and during the inspection, quarrel took place between some of the accused and the deceased. A panchayath was also held in order to bring the warring parties to a peaceful solution and the panchayath decided that the deceased should pay Rs. 1,000/- to Nanjegowda, elder brother of A-13. During the panchayath, many of the accused persons were present and the deceased gave Rs. 1,000/- to the above said Nanjegowda.

4. In spite of the panchayath intervening in the matter, the enmity continued to subsist between the family of the deceased on one side and the accused persons on the other.

5. The family of the deceased was supplying milk to the milk collection centre at Daarikongalale Village, During the year 1991, the family of the deceased was supplying milk every to the dairy and P.W.1 used to carry the milk. The houses of A-2, A-5 and A-12 were located near the higher primary school, which was near the place where the pathway from the village of the deceased joins Arakalagud and Mallipatna road.

6. Coming to the incident as such, it is the prosecution case that, on 27.2.1991, at about 8.00 a.m, when. P.W.1 Sannegowda, P.W.5 Channegowda, and P.W.6 Swamygowda were carrying milk in cans for delivery at the milk collection centre at Daarikongalale. When they came near the Higher Primary School, A-1 to A-5 restrained P.W.1 Sannegowda and assaulted him with clubs and stones and also gave him fist blows. By that time, P.Ws.2, 3 and the deceased came and when the deceased questioned the accused persons for the assault on his son P.W.1, the accused, having formed into an unlawful assembly, assaulted deceased Channegowda with deadly weapons. In particular, A-5 Puttegowda, son of Bettegowda, dealt a blow on the dead of the deceased with a chopper and A-2 Nanjegowda dealt a blow on the right side of the dead of deceased Channegowda with a club. A-11 and A-12 hit deceased Channegowda with stones and thus, during the incident, the deceased was assaulted in the aforesaid manner. P.W.1 was injured along with P.Ws.2 and 3. Some passersby went to the police station and informed about the incident of assault to P.W.19, the Police Inspector of Arakalagud Police Station, and the said Inspector, along with P.W.15 and P.W.18, the police officials, went to the spot. Deceased Channegowda, who was severely injured, was shifted to the hospital at Arakalagud. The statement of P.W.1 was recorded at Arakalagud hospital, which is the complaint Ex.P-1. The deceased was shifted to S.C Hospital at Hassan and thereafter to NIMHANS, Bangalore, and again, he was brought back to S.C Hospital and finally, on 6.3.1991, Channegowda succumbed to the injuries and died at S.C Hospital, Hassan.

7. P.W.19, the P.S.I, who had recorded the complaint of P.W.1 at 10.30 a.m, came back to the police station and registered the case in Crime No. 27/1991 for the offences under Sections 143, 147, 148, 324 read with 149 of the I.P.C and despatched the F.I.R as per Ex.P-13 to the Magistrate at Arakalalgud and then returned to the scene of the incident and seized a club, a chopper, six stones, blood-stained shirt and banian, all under mahazar Ex.P-2. The seized items viz., M.O.3 club, M.O.4 chopper, M.O.15 six stones, and M.Os.1 and 2 bloodstained shirt and banian were brought to the police station and were subjected to P.F After receiving the information on 6.3.1991 about the death of deceased Channegowda, a request was made to the Magistrate to include the offence under Section 302 of the I.P.C as per Ex.P-14 and the same was sent to the Magistrate. Thereafter, P.W.21 took up further investigation of the case and he recorded the statements of several witnesses and, on 7.3.1991, he held inquest over the dead body as per Ex.P-3 and thereafter, the dead body was sent for postmortem examination, P.W.10 Dr. Chandrashekhar conducted the postmortem examination and gave his P.M report as per Ex.P-8. P.W.17 Dr. K.R Padmavathi had initially examined injured Channegowda and referred him to the doctors at NIMHANS at Bangalore. She issued the case sheet recording the injuries sustained by the deceased as per Ex.P-17 and the discharge summary as per Ex.P-20. P.W.21 arrested A-4 on 8.3.1991 and on the same day, secured A-5 Puttegowda from the Government Hospital at Arakalagud and arrested him. He further recorded the statements of several witnesses for the prosecution and sent the seised articles to the F.S.L on 14.3.1991 through P.W.14 The weapons seized during the investigation were also sent to Dr. Anthoniyamma for her opinion, which was received as per Ex.P-28 and he also received the wound certificates of the injured persons in the incident. On 23.4.1991 P.W.21 received the records pertaining to the disputed lands as per Exs.P-31 to P-38 and on the same day, he arrested A-2, A-13, A-8, A-3, A-9, A-1, A-12, A-11 and A-6. On 25.5.1991, P.W.21 received the wound certificate of A-5, who was also injured in the incident, and then collected the sketch of the scene of offence as per Ex.P-4 and, after receiving the F.S.L report, wound certificates of the injured persons and on completion of the investigation, he submitted charge-sheet against the accused persons.

At the trial

8. The prosecution, in order to bring home the guilt of the accused persons, examined in all 22 witnesses and got marked Exs.P-1 to P-41. M.Os.1 to 6 were also produced-during the trial. Briefly stated of all the 22 witnesses examined on behalf of the prosecution, P.Ws.1 to 6 and 11 are the eyewitnesses. P.Ws.10, 17, 20 and 22 are the doctors examined. P.W.10 Dr. Chandrashekhar speaks to the post-mortem conducted by him and issued P.M report as per Ex.P-8. He has opined that of the seven injuries caused to deceased Channegowda, injury No. 4 was the cause for the fracture of the skull bone and consequent damage to the brain was sufficient to cause the death in the ordinary course of life. He further opined that the said fractures found on the skull could foe caused by M.O.4 shopper and M.O.3 club and further, the injury found on the head resulting in the fracture of parietal and frontal bones could be caused by M.Os.3 and 4, P.W.17 Dr. K.R Padmavathi speaks to the injuries sustained by the deceased and referring him to the doctors at NIMHANS and making entries in the accident register and issuing the discharge summary and it is in her evidence that the deceased got discharged on 5.3.1991 against the medical advice. P.W.20 Dr. M. Krishna deposes about he being acquainted with the handwriting of C.W.35 Dr. Anthoniyamma. He has spoken to the nature of the injuries sustained by P.Ws.1, 2, 3 and A-5 as well as the deceased and the wound certificates marked through him were Exs. P-23 to 27. P.W.22 Dr. Jayadev is yet another doctor and he has been examined to speak to the handwriting of Dr. Prema, who had issued Ex.P-40, wound certificate in respect of deceased Channegowda.

9. Of the remaining witnesses, P.W.7 B.R Mallappa speaks about the panchayath that was held to settle the dispute between the rival groups. P.W.8 is the inquest witness for the inquest report Ex.P-3. P.W.9 Y.V Sunil is the Junior Engineer, who drew the sketch of the scene of offence as per Ex.P-4 and the sketch showing the cart track to the estate of the deceased as per Ex.P-5. P.W.12 Dharmappa is the Secretary of the Milk Producers Co-operative Society of Daarikongalale Village and he speaks to the fact of P.W.1 delivering the milk to the milk centre and produces the documents in proof of the milk supplied by the family of the deceased to the milk centre as per Ex.P-11 and also produces the Pass Book given to P.Ws.1, 4, 5 and 6. P.W.13 Nagarajegowda is the police constable of Arakalagud Police Station, who delivered the F.I.R as per Ex.P-13 to the Magistrate at 1.00 p.m on 27.2.1991 and again delivering Ex.P-15 to the Magistrate on 6.3.1991 in Crime No. 27/1991. P.W.14 Kariyaiah, who was a police constable at the relevant time, speaks to the fact of sealed articles being given to him for being delivered at the F.S.L, Bangalore, P.W.15 Nanjegowda is another police constable who, as already mentioned, did part of the investigation by going to the spot and being present during the spot mahazar when the chopper, clubs and stones were seised by the P.S.I P.W.16 Saifulla is yet another police constable at the relevant time, who was put on the duty of searching the accused and being successful in producing A-4 before the C.P.I P.W.18 Krishnakumar was the police constable, who was assigned the duty of guarding the dead body of Channegowda at the mortuary and after the P.M.E was over, collecting the clothes of the deceased and producing them before the C.P.I, which were seized under Ex.P-21 and were marked during the trial as M.Os.1, 2 and 6. P.Ws.19 and 21 are the police officers, who did the major part of the investigation as aforesaid, leading to the completion of investigation and submission of the charge sheet.

10. The accused, being questioned in their 313 statements, did not admit the incriminating evidence appearing against them. However, it is relevant to note that A-1 and A-11 did admit about the cart track dispute between the accused and the deceased in connection with formation of road in S. Nos. 24, 43 and 47. A-5 Puttegowda, son of Bettegowda, in his 313 statement, has stated that he was assaulted by the deceased and by P.Ws.2 and 3 and became unconscious and was taken to the hospital and that he is innocent.

Arguments

11. Heard the arguments of the learned Government Pleader and that of the learned counsel for the respondents-accused.

12. The learned Government Pleader, referring to the evidence on record, submitted that the trial court was totally in error in disbelieving the evidence of the eyewitnesses, P.Ws.1 to 6 and 11. This has resulted in grave miscarriage of justice. The motive part of the case has been clearly proved through the evidence of P.W.1 and the eye-witnesses have also spoken to the overt acts of the accused persons. The testimony of P.Ws.2 and 3 is consistent with that of P.W.1 The evidence of P.W.1 with regard to unlawful assembly being formed by the accused persons has been fully corroborated by P.Ws.2 to 5. There is consistent evidence with regard to the assault committed by A-2 and A-5 on the deceased and this evidence has been fully corroborated by other eye-witnesses and the medical evidence of P.W.10 The trial court has found fault with the prosecution case on minor discrepancies like non-mentioning of assault by A-2 and A-5 in the complaint and the names of A-1 to A-13 being not mentioned in the F.I.R and further, there being no injury caused on the chest of the deceased as per the version of the eye-witnesses, and the injuries sustained by A-5 not being properly explained by the prosecution. Thus, the minor discrepancies of the above nature have been blown out of proportion by the trial court in arriving at the wrongful conclusion and to discard the evidence of the eye-witnesses as unreliable. Thus, the trial court's appreciation of evidence was not proper having regard to the law laid down by the Apex Court. On the whole, the trial court's approach was totally erroneous. In support of his submissions, the learned Government Pleader placed reliance on a number of judgments of the Apex Court with regard to mis-description in the F.I.R, the witnesses being relatives, omission in the F.I.R, non-explanation of injuries on the accused, inconsistency between the medical evidence and the ocular testimony, and laches in the investigation and, referring to the law laid down by the Apex Court on the above aspects, the learned Government Pleader contended that the State has made out a strong case for interference by this court in the appeal and the judgment of the trial court is liable to be set aside and the accused convicted of the offences charged against them.

13. The learned counsel for the respondents-accused, by way of defending the accused persons, submitted that there were serious lacunae in the prosecution case. The names of many of the accused persons are not mentioned in the complaint. Though the statement of P.W.3 was recorded on the same day, the names of all the accused persona does not figure in the F.I.R and this assumes importance particularly, when P.W.19, the P.S.I, came to the spot soon after the incident. The evidence with regard to the recovery of weapons is not convincing. The clothes of P.W.1 were not seised. The presence of chopper in the hands of A-5 cannot foe believed because of the evidence of P.W.1 that A-5 hit him with a stone. All the alleged eye-witnesses are interested witnesses. The complaint was lodged at 10.30 a.m But, the statement of P.W.1 was recorded at 12.00 p.m Thus, the prosecution has suppressed the genesis of the incident. The injuries to A-5 have not been explained properly. The alleged eye-witnesses have made omnibus statement with regard to the role played by the accused persons. The evidence of the alleged eye-witnesses with regard to the overt acts is not consistent. The presence of some of the accused persons is not spoken to by P.W.5 Proper procedure was not followed in the seizure of articles. The deceased got discharged against the medical advice and died eight days later and, therefore, better treatment would have resulted in the survival of the deceased and hence, no offence under Section 302 of the I.P.C has been made out by the prosecution. P.Ws.2 and 3, who were said to have been injured in the incident, took treatment eight days after the incident. There was no meeting of minds among the accused persons and thus, the existence of unlawful assembly has not been proved by the prosecution. Since the deceased was very close to the then Minister Mr. Puttegowda, false implication cannot be ruled out. There was no motive to the incident and muchless motive to kill the deceased and, in the absence of there being unlawful assembly and even accepting the prosecution version, in the alternative, at the most, offence under Section 304-II could be made out against A-2 and A-5 and no case against rest of the accused persons and even as regards A-2 and A-5, having regard to the long lapse of time, they could be given the benefit under the Probation of Offenders Act.

14. The learned Government Pleader, by way of reply, submitted that the intention to kill the deceased is very clear from the manner in which A-2 and A-5 assaulted the deceased with chopper and club on the vital part and hence, Section 302 of the I.P.C is attracted and even as regards the other accused persons, unlawful assembly has been established and hence, all the accused persons are liable to be convicted with the aid of Section 149 of the I.P.C

Appreciation of evidence of the eye-witnesses

15. Having carefully analysed the entire evidence on record, in the light of the arguments advanced before us and keeping in view the proposition of law laid down by the Apex Court in regard to appreciation of evidence, the point for consideration is whether the prosecution has made out a case for interference by this court in the appeal.

16. It is well settled that in an appeal against acquittal, though the High Court can reappreciate the evidence, it should not interfere with the order of acquittal, if the view taken by the trial court is also a reasonable view of the evidence on record and the findings recorded by the trial court are not manifestly erroneous, contrary to the evidence on record or perverse. With this settled position in law forming the premise, we shall now proceed to analyse the evidence placed before the trial court by the prosecution.

17. The prosecution has placed reliance mainly on the eye-witnesses' account of the incident and, therefore, it is imperative to examine the evidence of eye-witnesses, P.Ws.1 to 6 and 11.

18. P.W.1 Sannegowda is the son of deceased Channegowda and in his evidence, he has deposed to the fact of enmity being in existence before the incident with regard to the cart track issue. It is the specific case of the prosecution projected through P.W.1 that, in order to go to his coffee estate, the deceased has to pass through a cart track located in the lands of A-4, A-5, A-7 and A-13 and the deceased also had got a road sanctioned from Kendenne road to his coffee estate and a civil dispute arose between the deceased on one side and the accused on the other over this. This evidence of P.W.1 has not been disputed by the defence and, as already mentioned, A-1 and A-11 also admit about the cart track dispute in existence. P.W.1 has deposed in his evidence that, on the date of the incident i.e, 27.2.1991, when he was carrying milk to deliver the same at the milk centre at Daarikongalale village at about 8.00 a.m along with P.W.5 Channegowda and P.W.6 Swamygowda, A-1 to A-5 held P.W 1 and assaulted him with clubs and stones and also fisted him. P.W.1 has stated that A-2 Nanjegowda assaulted, him with a club on his back, A-1 Krishnegowda assaulted with a stone on the right leg and A-3 and A-4 assaulted P.W.1 with hands. It was at this juncture that P.W.1's father Channegowda, along with P.W.1's brothers - P.W.2 Mogannagowda and P.W.3 Papegowda, came. P.W.1's father questioned A-1 to A-4 as to why they assaulted P.W.1 and, at that time, A-5 Puttegowda, son of Bettegowda, assaulted P.W.1's father with chopper on the right side of his head and then A-2 Nanjegowda assaulted P.W 1's father with a club on the right side of the head. P.W.1's father fell down and became unconscious and then, P.W.5 Ghannegowda carried the injured and laid him on the verandah of the school, P.W.1 has also stated in his evidence that A-2 Nanjegowda assaulted him with a club on the head and A-3 Rajegowda assaulted with a stone on his left shoulder and A-10 Rajegowda, son of Annegowda, dropped a stone on the right thigh. He has also stated that the accused also assaulted his brothers P.W.2 Mogannagowda and P.W.3 Papegowda. It is also in his evidence that A-9 Ramesha assaulted P.W.2 Mogannagowda and likewise A-7 also assaulted Mogannagowda and at that time, the police came to the place and sent his injured father to the Government Hospital at Arakalagud for treatment.

19. P.W.1 has also stated in his evidence that his father had treatment at S.C Hospital at Hassan for two days and then was shifted to NIMHANS at Bangalore and again was shifted to S.C Hospital at Hassan and on 6.3.1991, his father succumbed to the injuries at S.C Hospital, Hassan. As regards the injuries sustained by him, P.W.1 has stated that he took treatment at Government Hospital for two days at Arakalagud and then the police recorded bis complaint as per Ex.P-1 at the Government Hospital at Arakalagud. He has also deposed to the fact of inquest being held over the dead body of his father and the bloodstained clothes, M.O.1 shirt and M.O.2 banian, being the clothes of his father. In the cross-examination of P.W.1, the above evidence in substance has not been shaken. On the contrary, the evidence of P.W.1 with regard to the incident of assault and the overt acts of the accused as deposed to by him, have been got confirmed in paragraphs-31 to 34 of the cross-examination, In other words, the testimony of P.W.1, insofar as the accused persons assaulting him and his father in the manner deposed to by him, has been reinforced in the cross-examination and there is nothing in the cross-examination of this witness to disbelieve his evidence. In fact, the witness has stated about the incident of assault and the overt acts of the accused in a very straightforward manner.

20. P.W.2 Mogannagowda is one of the sons of deceased Channegowda and this witness, who is the younger brother of P.W.1, has also corroborated P.W.1 with regard to the cart track dispute and civil disputes and criminal eases being registered against the rival parties in regard to the cart track dispute and the enmity that is being in existence. As regards the incident is concerned, P.W.2 has corroborated P.W.1 with regard to the incident that took place near the Higher Primary School of Daarikongalale village and he also speaks to the accused assaulting P.W.1 and A-5 Puttegowda, son of Bettegowda, assaulting his father with a chopper on the right side of the head and A-2 Nanjegowda assaulting his father with a club on the right side of the head. He further deposed that A-11 and A-12 assaulted his father with stones on the chest and A-6 Puttegowda, son of Kullegowda, A-9 Ramesha and A-10 Rajegowda assaulting him with hands. P.W.2 speaks to the presence of P.W.s.5 and 6 at the time of the incident. He farther deposes that P.W.3 was assaulted by the accused. With regard to injured Channegowda being taken to the hospital by the police and ultimately he succumbing to the injuries on 6.3.1991, this witness fully corroborates P.W.1 In the cross-examination of this witness, a careful perusal of the facts elicited by the defence in paragraphs-11, 12, 14 and 15, would go to confirm not only the incident having taken place as deposed to by him, but even the overt acts of the accused persons, particularly A-2 and A-5. Thus, this witness fully corroborates P.W.2 in material particulars. Nothing worthwhile has been elicited in the cross-examination to disbelieve the version given by P.W.2 with regard to the incident as such.

21. P.W.3 Papegowda, who is another son of deceased Channegowda and the brother of P.Ws.1 and 2, has corroborated the other two eve-witnesses with regard to the incident and what has been spoken to by him in paragraph-4 of his evidence goes to establish that this witness has narrated all that happened on 27.2.1991 in a straightforward manner and with regard to the overt acts of A-2 and A-5 are concerned, this witness fully corroborates P.Ws.1 and 2. In addition, he has also deposed to the foot that A-11 and A-12 assaulted his father with stones on the chest and P.W.3 himself was assaulted by A-7, A-8 (since dead), and A-13. He has also stated that he was fisted all over hie body by A-7, A-8 and A-13 and then the police came and shifted injured Sannegowda P.W.1 and his father to the hospital. He has also stated that his brother P.W.2 Mogannagowda was assaulted by the accused persons. In the cross-examination of this witness, all that has been elicited is that he did not go to rescue his father when his father was assaulted by A-2 because, P.W.3 himself was assaulted by the accused. He has also stated that when he saw P.W.1 far the first time, he found him fallen on the ground and A-1, A-7 and A-13 were present near him. It is also brought out in the cross-examination of this witness that, after the incident, the father of A-5 lodged a complaint against P.Ws.1 to 3 and their father on the ground that P.Ws.1 to 3 and their father had assaulted Bettegowda and his son Puttegowda i.e, A-5. So far as the assault on deceased Channegowda is concerned, in the cross-examination of this witness, nothing has been brought out to disbelieve as to what has been deposed to by P.W.3 with regard to the overt acts of A-2 and A-5.

22. P.W.4 Ravindra is another eyewitness to the incident and he has stated in his evidence that on 27.2.91 at about 7.30 a.m, he was carrying milk in the can from his village to milk collection centre at Darikongalale Village and he delivered milk and then, he heard the sound of galata near Higher Primary School of Darikongalale Village and came there, it was around 8.30 a.m People had gathered there. He has further stated that accused No. 5 Puttegowda son of Bettegowda assaulted on the head of deceased Channegowda with chopper and accused No. 2 Nanjegowda son of Kullegowda assaulted on the head of Channegowda with club and the deceased Channegowda fell down having sustained injuries on his head. He has further stated that P.W.2 Mogannagowda and P.W.3 Papegowda came there to shift the deceased Channegowda. At that time, P.Ws.2 and 3 were assaulted by some of the accused persons and some of the accused also fisted P.Ws.2 and 3. This witness has further stated that P.W.1 Sannegowda was also injured. P.W.4 along with P.W.6 Swamygowda and P.W.5 Channegowda shifted the deceased from the place of occurrence and laid him on the veranda of the school and thereafter P.W.1 Sannegowda and deceased Channegowda were shifted to Arakalagud Hospital in an autorickshaw. In the cross-examination of this witness, it is suggested that A5 Puttegowda son of Bettegowda and A2 Nanjegowda son of Kullegowda did not assault the deceased and likewise the accused did not assault P.W.s.1, 2 and 3 which suggestions have been denied by this witness. Absolutely nothing has been brought out in order to discredit the testimony of P.W.4 in so far as the incident of attack on the deceased Channegowda by A5 and A2 is concerned or with regard to the injuries sustained to P.Ws.1 to 3 in the incident due to assault by some of the accused persons, Hence, the defence has failed to bring out anything in the cross-examination of P.W.4 to disbelieve his version.

23. P.W.5 Channegowda is another eyewitness to the incident and he has corroborated the other eye witnesses referred to above in all material particulars in so far as the assault on the deceased Channegowda by A6 Puttegowda son of Kullegowda and A2 Nanjegowda son of Kullegowda. This witness has clearly stated that on 27.2.1991, he along with P.W.1 Sannegowda were carrying milk to deliver the same at Milk Collection Centre of Darikongalale Village and when they came near the Higher Primary School of the said village, they saw Puttegowda son of Kullegowda and Nanjegowda son of Kullegowda standing near the culvert and they restrained P.W.1 and fisted and felled him on the ground and the milk that was carried by P.W.1 got spilled. P.W.5 rescued P.W.1 from the hands of Nanjegowda and Puttegowda and thereafter, went to the Milk Collection Centre to deliver milk that was in the can and thereafter, he went to a provision store near the milk collection centre and at that time, he heard the sound of galata near Higher Primary School and he went to that place and saw A2 Nanjegowda assaulting Channegowda with club on the right side of the head and he also saw P.W.s.2 and 3 being assaulted by some of the accused persons and he along with others rescued the injured from the clutches of the accused. It is also in his evidence that the police came around 9 a.m and shifted the deceased and P.W.1 to the Government Hospital at Arakalagud and he again came back to the place of incident at about 3 p.m and saw the police seizing a chopper, a club and six stones which were lying in a road side drain and the police drew a mahazar and at that time P.W.6 Swamygowda was present. This witness further goes on to depose about identifying the chopper MO.4, club MO.3 and stones MO.5 which were seised under the mahazar Ex.P-2. The cross-examination of this witness does not bring to light anything to discredit the testimony of the witness in so tar as the incident of attack by the accused on Channegowda and P.W.s.1, 2 and 4 are concerned. Thus, the testimony of this witness has remained unshaken even in the cross-examination in so far as the material aspect of the case concerning the attack on deceased Channegowda and his sons is concerned.

24. P.W.6 Swamygowda is, yet another eyewitness to the incident examined by the prosecution and the evidence of this witness goes to show that he has fully corroborated the testimony of P.W.s 1 to 5 in all material particulars. P.W.6 has stated in his evidence that when he reached the milk collection centre on 27.2.91 and delivered milk and was staying at that place, some persons came there and told him about the galata that was going on near Higher Primary School and P.W.6 came to the spot and he saw P.W.1 Sannegowda fallen on the ground and Puttegowda son of Kullegowda holding the collar of P.W.1 and was squatting on him. P.W.6 separated them and questioned A6-Puttegowda as to why he assaulted P.W.1 Sannegowda, at that time, Puttegowda assaulted P.W.6 and then Basavegowda, A1 Krishnegowda, Puttegowda son of Bettegowda pacified A6-Putegowda and then he returned back to the milk collection centre to collect the can. P.W.6 has also stated in his evidence that again he heard the sound of galata near Higher Primary School of Darikongalale Village and when he came there, he saw A5 Puttegowda son of Bettegowda assaulting deceased Channegowda with chopper on the right side of the head and A2 Nanjegowda assaulting the deceased Channegowda with club on the right side of the head and Channegowda fell down and became unconscious. At that time, A11-Javaramma and A12-Lakshmamma dropped stones on the chest of the deceased Channegowda and there was scramble between P.W.s.2, 3 and some of the accused persons and P.W.6 pacified the quarrel and separated them and thereafter, Channegowda was carried and laid on the veranda of the school. It is also in the evidence of this witness that police came to the place of occurrence and enquired with those who were present and deceased Channegowda was shifted by the police in an auto-rickshaw to Arakalagud Hospital and again at about 3.30 p.m when he came near the spot, he saw the police seizing a club, a chopper and stones from the drain near the place of occurrence and drew a mahazar and the same was attested by him. This witness also identified chopper MO.4 and club MO.3 In the cross-examination of this witness, though specific suggestions have been put to the effect that P.W.1 had not been assaulted and had not fallen to the ground because of the assault by A6 and that further, A5 did not assault on the right side of the head of the deceased using chopper and that A2 did not assault the deceased Channegowda with a club on the right side of the head, these suggestions have been denied by this witness and thus, the overall effect of the cross-examination of P.W.6 is that, his evidence, insofar as the incident of assault by the accused on the deceased and the other injured persons is concerned, the witness has come through the test of cross-examination successfully and nothing has been elicited by the defence to discredit the testimony of P.W.6 as regards the material aspect of the case, so far as the assault by the accused on the witness P.W.6 is concerned. No doubt, the defence has brought out from the mouth of this witness in the cross-examination that Channegowda was his cousin.

25. P.W.11 Nirvanappa is the last of the witnesses banked upon by the prosecution to bring home the guilt of the accused. This witness has partly supported the prosecution by deposing in his examination-in-chief that on 27.2.91, when he opened his bunk-shop which was near Darikongalale Village, at about 7 a.m, he saw A1 Krishnagowda, A3 Ramesha assaulting P.W.1 Sannegowda and then P.W.1 went to Mudugere. Thereafter, P.W.s.1, 2 and 3 came to Darikongalale Village and again galata took place near Higher Primary School and deceased Channegowda, with a chopper assaulted on the right hip of accused No. 5 Puttegowda and at that time A2 Nanjegowda son of Kullegowda assaulted the deceased with a club and the deceased fell down and then A2 also assaulted on the hack of the deceased and galata continued for sometime and thereafter, Channegowda was laid near veranda of the school and the police came and took the deceased in an auto-rickshaw. The witness has admitted that there was enmity between the deceased, his sons and the accused regarding cart-track. The prosecution treated this witness hostile because of the witness going back on his statement made before the police to the effect that A5 Puttegowda assaulted the deceased Channegowda with chopper on the right side of the head. However., the witness admits in the cross-examination. by the prosecution that he has stated before the police that A1 to A7 and A9 to A13 assaulted P.W.s.1 to 3. In the cross-examination done by the defence, this witness has stated that A1 held P.W.1, Ramesha fisted P.W.1 and also denied the suggestion that A5 Puttegowda did not assault deceased Channegowda. Thus, the overall impression that can be gathered from the evidence of this witness is that though he has turned hostile in regard to certain aspect of the case, yet, the witness corroborates the other eye witnesses in regard to the incident of assault that took place near the Higher Primary School and assault by A2 on the deceased and in view of the witness denying the suggestion put by the defence that A5 did not assault the deceased, the whole testimony of the eye witnesses P.W.s.1 to 6 finds corroboration from the evidence of this witness also as regards the incident of assault that took place near Higher Primary School.

26. The evidence of the eyewitnesses P.W.s.1 to 6, in particular, goes to establish the fact that the incident having taken place on 27.2.91 near Higher Primary School of Darikongalale Village and P.W.1 Sannegowda being assaulted by the accused persons and when the deceased Channegowda came and questioned the accused, the deceased was assaulted with chopper by A5 Puttegowda son of Bettegowda on the right side of the head and immediately the deceased fell down and became unconscious. P.W.s 1, 2 and 3 were also injured in the incident due to assault by some of the accused persons. No doubt, there are some discrepancies in the evidence of the eye witnesses when compared to the testimony of each one of them with the other. The presence of some of the witnesses being not spoken to by other witnesses and the overtacts of some of the accused persons not being found to be consistent in the evidence of some of the witnesses. P.W.s.1 to 3 are the sons of the deceased. P.W.4 is also a close relative of the deceased Channegowda and likewise, P.W.5 is also related to the deceased and P.W.6 also happens to be the cousin of deceased Channegowda. Mainly because, the eye witnesses mentioned above are relatives, whether their testimony which is otherwise straightforward and having a ring of truth has to be discarded is the point for consideration. In the instant case, although the eye witnesses are relatives of the deceased, yet, their presence at the time of the incident has not been discredited in the cross-examination by the defence, but on the other hand, the cross-examination goes to confirm the presence of these witnesses, who are, therefore, natural witnesses at the time of the incident. No doubt, the learned counsel for the respondents referring to the evidence of P.W.s.2, 3, 5 and 11 submitted that there is some inconsistency in the evidence of these witnesses when compared with the evidence of P.W.1 in so far as A11 and A12 assaulting the deceased with stone on his chest is concerned. The discrepancies pointed out, in our considered opinion, do not affect the pith and substance of the evidence of the eyewitnesses in so far as the incident of assault is concerned and even P.W.11 has specifically denied the suggestion put by the defence that A5 did not assault the deceased.

27. As regards the appreciation of the testimony of the related witnesses and the evidence of the witnesses found to be unreliable to some extent, the said factors cannot take away the creditworthiness of the otherwise truthful and straightforward testimony of the eyewitnesses and in this connection, it may be very useful to refer to the position in law as has been laid by the Hon'ble Supreme Court in the case of GANGADHAR BEHERA v. STATE OF ORISSA reported in 2003 SCC (Cri) 32, the Apex Court has observed thus:

“The ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. Relationship in not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible.”

28. With regard to unreliability of the testimony of witnesses, the Apex Court has made the following observations:

“Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim “falsus in uno, falsus in omnibus” has so application in India and the witnesses cannot be branded as liars. The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. The maxim “falsus in uno, falsus in omnibus” has not recieved general acceptance nor has this maxim come to occupy the status of rale of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded.

Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto.

Normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorised. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so.”

Medical Evidence

29. One of the main contentions urged by the learned counsel for the respondents while supporting the judgment of the trial court is that the testimony of the eye-witnesses is not consistent with the medical evidence and in view of the death of Channegowda taking place on 6.3.1991, almost after seven days, the prosecution has not established the complicity of the accused in committing the murder of Channegowda. The trial court has taken the view that since the evidence of the eye-witnesses, P.Ws.2 and 3, that the deceased was hit on the chest with, a stone not being corroborated by the medical evidence, it did not believe the testimony of the said eye-witnesses. It, therefore, becomes necessary for us to examine the medical evidence placed on record, in the light of the contentions urged.

30. That Channegowda died following the incident of assault that took place on 27.2.1991 is not in dispute. It is in the evidence of the eye-witnesses that on 27.02.1991, Channegowda sustained injuries on the right side of his head due to the assault with a chopper by A-5 and with a club by A-2. The medical evidence placed by the prosecution is that of P.Ws.10, 17, 20 and 22. The medical evidence, in the order of examination of the deceased, is to the following effect.

31. P.W.22 Dr. D.S Jayadev has deposed that Ex.P-40 is the wound certificate issued by Dr. Prema of S.C Hospital, Hassan, and he has identified her writings and signature and, after going through the wound certificate, this doctor found that Channegowda, aged about 75 years of Mudugere, was brought to S.C Hospital on 27.2.1991 by one Honnegowda and the said Channegowda had sustained injuries due to assault and on examination, Dr. Prema found the following injuries on Channegowda:

1) A lacerated wound measuring 1″ × 1″ over the right eye-brow, lateral half, oozing of blood present.

2) Black eye of right eye.

3) Both eye-lids are swollen.

4) Right temporal region also swollen (Haematoma).

32. Thereafter, the case was referred to NIMHANS, Bangalore.

33. P.W.20 Dr. M. Krishna was the Medical Officer at P.H.C, Doddamage, and at the relevant point of time, he was working at the Government Hospital, Arakalagud, and he has deposed to the effect that one Dr. Anthoniyamma examined Channegowda and issued the wound certificate Ex.P-23 and this doctor has stated that the handwriting in the said document is that of Dr. Anthoniyamma, since he is acquainted with her handwriting. The contents of Ex.P-24 are to the following effect:

“1) Oblique lacerated wound present over the right eye-brow, laterally, measuring about 3 cms. × 1.5 cms × .5 cm, bleeding profusely.

2) Superficial abrasion over the right upper eye-lid, laterally, measuring 1 cm.

3) Bruise present over the right cheek, measuring about 3 cms.

4) Right eye swollen, conjunctive congested, pupil reactive.

5) Abrasion present over left scapular region measuring about 3 cms.

Age of the wound about 3 hours to the time of examination.

Case was referred to S.C General Hospital, Hassan, for further investigation and expert opinion.”

34. P.W.17 Dr. K.R Padmavathi, who was the Casualty Medical Officer at Victoria Hospital, has deposed to the effect that, on 2.3.1991, at about 1.50 a.m (midnight), an injured person by name Channegowda, aged 75 years, was referred to Victoria Hospital by the doctors of NIMHANS and, on examining the injured, she found that the injured had sustained an injury to his head and he was drowsy and was in altered sensorium and the rate of pulse and blood pressure was stable. She has also stated that there was cerebral contusion due to altered sensorium and there was orbital injury over the right eye-brow measuring 1/2″ × 1/2″ and according to this doctor, the patient got discharged from the hospital against the medical advice and she, therefore, opined that the chances of recovery of the injured person were remote. In her cross-examination, this doctor has stated that, after the patient was referred to the Surgical Duty Doctor and Neuro Surgeon, she did not observe the injuries subsequently and the doctor at NIMHANS would be competent to give evidence about the condition of the deceased and she was not sure as to why the injured was referred to Victoria Hospital by NIMHANS. It is also brought out in her evidence that when the injured was discharged on 5.3.1991 against medical advice, chances of recovery were still there.

35. P.W.10 Dr. Chandrashekhar was the Assistant Surgeon at the S.C Hospital, Hassan, and on 7.3.1991, he received a requisition from the C.P.I, Holenarasipura, as per Exs.P-6 and P-7 to conduct postmortem examination on the dead body of Channegowda and, on 7.3.1991, he conducted the postmortem examination between 9.55 a.m and 12.10 p.m and found the following injuries:

1) Sutured wound alongwith the right eye-brow with 2 stitches intact, 2 inches, in length.

2) Contusion brownish black in colour of size of 2 inches in diameter over the right cheek.

3) Contusion around the right eye (black eye) bluish in colour.

4) Contusion of size of 5 inches in diameter, bluish in colour over the right fronto parietal region,

5) Fracture - Y shaped, situated about 1½ inches in front of right parietal eminence, fractured line measuring 3 inches on two sides and 2½ on one side. Fragments not displaced. Fracture involving the entire thickness of bone of parieto-fronto-temporal segments.

6) The dura matter over the right fronto parietal region was lacerated. There was dark fluid blood mixed with soft clots present in and around the wound.

7) There was superficial laceration on the cerebrum over right fronto parietal region. Cut section reveals presence of soft blood clots.

36. The doctor has further deposed thus:

“On dissection of wound No. 1, I found the presence of infiltration of blood clots and the tissues are disorganised.

On dissection of wound No. 4, I found the presence of semi soft clot beneath and between the layers of scalp.

The left chamber of the heart was empty, The right chamber was full of fluid blood. The other organs were intact.

5. The above injuries were ante mortem in nature. I have given the opinion that the death was caused due to shock and haemorrhage as a result of injury to brain, consequent to fracture of skull bone.

6. Injury No. 4, which had caused the fracture of skull bone and consequent damage to the brain in sufficient to cause death in the ordinary course of life.

7. Fractures found on. the skull could have been caused by a chopper and by a club. I see the chopper, marked as M.O.4 and club is marked as M.O.3 The injury found on the head, which resulted in fracture of bones of parieto frontal bone on the right side could have been caused by the chopper marked as M.O.4 and the club marked as M.O.3”

37. In his cross-examination, P.W.10 has stated that if a person is assaulted with the sharp edge of the chopper M.O.4 on the forehead, an incised wound resulting in the fracture of the frontal bone may be caused. He has further stated that injury Nos. 1 to 4 are independent and injury No. 4 correspondents to the right parieto fronto temporal bone. He has also stated that, in the case of a person falling on curb stone of a drain, injury Nos. 1 to 4 could be caused, only if that particular portion of the head were to come in contact with the edge of the curb stone,

38. The medical evidence placed on record and, in particular that of P.W.10, leaves no doubt as to the fact of Channegowda succumbing to the injuries caused to him in the incident of assault. Merely because there was time gap between the date of the incident i.e, 27.2.1991 and the date of his death i.e, 6.3.1991, it cannot be argued that the deceased did not die on account of the injuries sustained by him in the incident of assault. The very fact that P.W.10 has opined that injury No. 4, which had caused fracture of the skull bone and subsequent damage to the brain, is sufficient to cause the death in the ordinary course of life is itself an indication of the fact that the death of Channegowda came as a result of the injuries sustained by him in the incident of assault. The evidence of P.W.17 that the patient got discharged against the medical advice and there were chances of recovery cannot take away the effect of the injuries caused to the deceased leading to the death of Channegowda. In other words, the injuries caused to the deceased have accelerated his death and merely because efficient medical treatment could have prevented the death, the same cannot be blown out of proportion to come to the conclusion that the death of Channegowda was not a homicidal one. In this connection, the judgment of the Apex Court in the case of KISHORE SINGH v. STATE OF MADHYA PRADESH, reported in 1977 Cri.L.J 1937, referred to by the trial court, in worth recalling. The Apex Court, in the said decision, has observed thus:

“In judging whether the injuries inflicted are sufficient in the ordinary course of nature to cause death, the possibility that skilful said efficient medical treatment might prevent the fatal result is wholly irrelevant.”

39. Therefore, in the caste on hand, having regard to the nature of the injuries sustained by deceased Channegowda, as rejected in the medical evidence of P.Ws.10 and 17 in particular, it is not possible to draw any other inference other than that of the death of Channegowda being a homicidal one. The trial court, on this aspect of the matter, has therefore rightly come to the conclusion that deceased Channegowda died a homicidal death.

40. So far as the discrepancies in the evidence of the eye-witnesses and the inconsistencies pointed out by the learned counsel for the respondents with regard to there being no injuries on the chest of the deceased is concerned, no doubt, some of the witnesses have spoken to the effect that A-11 and A-12 hit the deceased with stones on his chest and the medical evidence of P.W.10 goes to indicate that there were no injuries on the chest of the deceased. That by itself will not take away the otherwise creditworthy and reliable testimony of the eye-witnesses which has been corroborated by the medical evidence of P.Ws.10 and 17 with regard to the assault on the deceased with a chopper and a club. Therefore, the discrepancies pointed out do not go to the root of the matter and even if we disregard the said discrepancies in the evidence of the eye-witnesses, still, the testimony of the eye-witnesses is consistent with regard to the assault committed on the deceased by A-5 and A-2. The trial court, therefore, erred in placing much importance on the evidence with regard to the assault on the chest of the deceased with stones by A-11 and A-12 as spoken to by some witnesses and, therefore, erred in coming to the conclusion that the testimony of the eye-witnesses cannot be believed. The said reasoning of the trial court in indicative of losing sight of the substantial evidence of the eye-witnesses with regard to the assault committed on the deceased fay A-5 and A-2, which testimony is not only straightforward but there is a ring of truth in the manner in which the eye-witnesses have deposed with regard to the incident in question. Therefore, we do not find any force in the submission made by the learned counsel for the respondents that the medical evidence is not consistent with the ocular evidence. It could be mentioned at this juncture that, between the ocular evidence and the medical evidence, the question of disregarding the ocular testimony will arise only where the medical evidence is totally contradictory to the eye-witness account of the incident. In the case on hand, the medical evidence of P.W.10 fully corroborates the evidence of the eye-witnesses with regard to the injuries sustained by deceased Channegowda on the right aide of his head and the assault being committed by A-5 and A-2 with the chopper and club respectively and hence, the medical evidence does not in any way discredit the eye-witness account of the incident of assault.

Motive

41. So far as the motive behind the assault committed by the accused on the deceased and his sons is concerned, the evidence of P.Ws.1 to 3 is consistent, which is to the effect that the accused were unhappy because of the deceased being successful in getting a road sanctioned to go to his coffee estate through the lands of the accused and further, in the civil dispute, the ended in favour of the deceased and even in the panchayath, the deceased agreed to pay Rs. 1,000/- to Nanjegowda, elder brother of A-13 Ningegowda. Thus, there was enmity between the two sides over the cart track issue and this enmity is also admitted by two of the accused viz., A-1 and A-11, who, in their answers to the questions put to them regarding the dispute over the cart track issue, have replied in the affirmative. Thus, the enmity between the two groups has been established by the prosecution. Even otherwise, it is a settled law that motive becomes irrelevant when there are eye-witnesses to the incident in question. In the case before us, there are as many as seven eye-witnesses of whom P.Ws.1 to 6 have consistently deposed about the incident of assault committed by the accused on the deceased and P.Ws.1 to 3. Therefore, the complicity of the accused in committing the crime is brought nearer with the establishment of the motive factor.

Non-explanation of the injuries on A-5

42. One another contention seriously canvassed before us by the learned counsel for the respondents is that the evidence let in by the prosecution establishes the fact of injuries being caused to A-5 Puttegowda, son of Bettegowda, and the prosecution has failed to explain how the injuries were caused to A-5. The trial court has also referred to the said factor of injuries caused to A-5 not being explained by the prosecution and this is one of the reasons that ultimately led the trial court to acquit the accused. Having carefully analysed the evidence with regard to this aspect of the matter., with the law bearing on the point, we are not impressed by the said contention advanced by the learned counsel for the respondents. First of all, the prosecution has placed on record the evidence of P.W.20 Dr. M. Krishna and, through the said witness, Ex.P-24, which is the wound certificate of A-5 Puttegowda has been marked. The said doctor has stated in his evidence that as per the examination conducted by Dr. Anthoniyamma, A-5 Puttegowda, son of Bettegowda, had sustained the following injuries, which were simple in nature:

1) Oblique incised wound over the right side of back, 8 cms below the axillary fold, measuring 8 cms × 5 cm × 5 cm.

2) Oblique lacerated wound over the right parietal region, measuring 3″ × 0.5 cm × .5 cm.

3) Linear akin abrasion over left shoulder 5 cms.

43. Therefore, it becomes clear from the evidence on record that the prosecution has placed the evidence with regard to the injuries sustained by A-5 Puttegowda and hence, the question of suppression of evidence or non-explanation of the injuries sustained by A-5 does not arise. In this connection, the law laid down by the Apex Court in the case of TAKHAJI HIRAJI v. THAKORE KUBERSING CHAMANSING ((2001) 6 SCC 145 : A.I.R 2001 S.C 2328) can be pressed into service. The Hon'ble Supreme Court has held that it cannot be held as a matter of law or invariably a rule that whenever accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so, the prosecution case should be disbelieved. The court has further observed thus:

“……….. Where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case.

Therefore in overthrowing the entire prosecution case for non-explanation of the injuries sustained by the accused persons, without making an effort at searching out the truth on the material available on record as also to find out how much of the prosecution case was proved beyond reasonable doubt and was worthy of being accepted as truthful, was not proper.”

44. In this regard, further useful reference can be made to the proposition of law laid down by the Apex Court with regard to non-explanation of the injuries on the accused in the decisions in the cases of HAREKRISHNA SINGH v. STATE OF BIHAR ((1988) 2 SCC 95 : A.I.R 1968 S.C 863), STATE OF MADHYA PRADESH v. RAMESH (2005 SCC (Cri) 1443), and ANWAR MALLA v. STATE OF TRIPURA(2002 SCC (Cri) 1608).

Supression of the genesis of the incident.

45. The learned counsel for the respondents contended that the genesis of the incident has been suppressed by the prosecution in-as-much as A5 Puttegowda, son of Bettegowda, was first assaulted by the deceased with a chopper and, therefore, the deceased himself was the aggressor and as such, this fact coupled with the non-explanation of injuries on A5 and the presence of the Police Inspector at the place of the incident much before the complaint was actually lodged and a counter case having been filed in respect of the same incident means there is suppression of the genesis of the incident and this is a serious infirmity in the prosecution case. In this connection, the evidence of P.W.11 was drawn by contending that the said witness has deposed that the deceased Channegowda assaulted A5 Channegowda on the right hip and thereafter, A5 assaulted the deceased on the head with a club. The evidence of P.W.19, the Police Inspector was also referred to contend that the case which was registered against the accused persons on the complaint of P.W.1 is, the counter case and the earlier ease was the one that was registered against the deceased Channegowda himself and three others. No doubt, P.W.19 Lakshmi Prasad, the Police Inspector has stated in his evidence that on 27.2.1991 at about 10 a.m Puttegowda son of Kullegowda gave a statement before Arakalgud Police Station as per Ex.P-22 and on the basis of which, a case was registered in Cr. No. 26/91 against deceased Channegowda and three others for the offences punishable under Sections 324, 427, 506 read with Section 34 of IPC. But what in very relevant to note in this connection is that P.W.19 has also stated in his evidence that after the investigation by him, he found that the allegations made in the complaint Ex.P22 were false and accordingly, he submitted ‘B’ report in Cr. No. 26/91. It is also pertinent to mention that the learned State counsel has pointed out that against the ‘B’ report that was filed, the complainant Bettegowda did not prefer any appeal and therefore, the matter had become final with the submission of ‘B’ report. It is needless to mention that the submission of ‘B’ report indicates that no case was made out on the basis of the complaint lodged under Ex.P-22 in respect of injury sustained by A5, Hence, not only there is no force in the submission of the learned counsel for the respondent that the prosecution has suppressed the genesis of the incident, but on the other hand, the above evidence goes to show that nothing was kept in abeyance by the prosecution and everything was placed in black and white in the course of the evidence placed on record. Hence, the question for suppression of the genesis of the incident will not arise. The mere presence of the PSI P.W.19 in the place of occurrence before recording of the complaint Ex.P-1 is not a serious infirmity in the prosecution case when the evidence of the eyewitnesses is straightforward and there is nothing to show that Ex.P-1 was concocted or that much deliberation proceeded by the complaint Ex.P-1. Therefore, the reasoning of the trial Court that non-explanation of the injuries on A5 and coupled with the lodging of the complaint by the father of A5 against the deceased gives rise to doubt the prosecution case is therefore, erroneous finding in the light of what has been discussed above.

Lapses in the investigation

46. The trial Court has picked up certain lapses in the investigation and has inferred that such lapses are serious in nature giving rise to doubt the prosecution case and the investigation being not fair, the lapses that are pointed out by the trial Court, which were also brought out by the learned counsel for the respondent before us, are discrepancies in the time of occurrence, P.W.s 2 and 3 being arrested by the I.O and no reasons are given as to why they were arrested, P.W.s 2 and 3 though injured in the incident, got treatment only on 8.3.1991 after a long delay, the statement of P.W.4 Ravindra was recorded on 8.3.1991, P.W.19 has denied arresting P.W.s.2 and 3, blood group of the deceased and A5 is one and the same i.e ‘O’ group and MOs.1, 2 and 4 were stained with ‘O’ group blood, the evidence of P.W.1 is inconsistent with 161 statement and names of some of the accused are not mentioned in the FIR and so also the overt acts attributed to the accused persons, referring to this, the learned counsel for the respondents would submit that the above discrepancies in the prosecution case justify the conclusion of the trial Court that the investigation was not fair and the lapses are not of trivial nature. In this regard, what has to be borne in mind is whether the lapses pointed are, such as to go to the root of the matter or in other words, are the lapses so serious as to discredit the testimony of the eyewitnesses. Having carefully analysed the entire evidence, we do not find that the lapses pointed out are fatal to the prosecution case, particularly, in the light of the straightforward and convincing evidence of the eyewitnesses P.W.s 1 to 6, which has been supported by the medical evidence and the evidence of the I.O leading to recovery of the weapon used to commit the alleged offences. No doubt, in the complaint, names of all the accused are not mentioned and so also, in the subsequent report that was filed to include the offence of 302. This itself is not a serious lacuna in the prosecution case so long as the evidence placed on record does not give room to disbelieve the testimony of the eyewitnesses. Moreover, FIR is not an encyclopedia so as to contain each and every detail of the incident. So long as, it is not shown that the eyewitnesses are planted by the prosecution, there is no room to take the view that the witnesses were not present when the incident took place. At the cost of repetition, it has to be mentioned that the eyewitnesses in the instant case were all natural witnesses, whose presence at the time of the incident has not been disputed and there is nothing in the cross-examination of the eyewitnesses either to disbelieve their version or to impeach their testimony, merely because, the eyewitnesses are close relatives of the deceased and that itself is not a factor to affect their testimony. As has been held by the Hon'ble Apex Court in the case of SUCHA SINGH v. STATE OF PUNJAB, reported in (2003) 7 SCC 643, the evidence of a witness cannot be rejected merely because he is a close relative of the victim and foundation has to be laid if a plea of false implication is raised and it is more often than not that a relation would not conceal the actual culprit and make allegations against an innocent person. The Apex Court also observed in the said case that all that is required is, a careful approach to be adopted while analysing the evidence to find out whether it is cogent and credible.

47. The discrepancies painted out by the learned counsel for the respondents cannot have any effect on the prosecution case when all the eye witnesses have deposed with regard to the injuries caused to the deceased by the accused persons particularly A2 and A5 and therefore, different between the statement of the eyewitnesses and FIR regarding the location of the injury inflicted upon the person of the deceased cannot affect the otherwise cogent testimony of the eyewitnesses. As regards the defects in the investigation in concerned, the said defects cannot, in our view, take away the effect of the reliable and cogent evidence of the eye witnesses. No doubt, learned counsel for the respondent has referred to the articles, which were seised at the first instance from the place of occurrence were again seised before the police station and therefore, this gives rise to doubt as to whether the articles that were sent to FSL were the one which were actually seized at the place of occurrence and P.W.19 has denied arrest of P.W.s.2 and 3. These lapses in the investigation, are not serious deffects to take away the credit of the eyewitnesses account of the incident. Non-recovery of the bloodstained clothes of P.W.s.1, 2 and 3, who were injured in the incident and merely because the family of the deceased was related to the then Minister Puttegowda as contended by the learned counsel for the respondents, there is no room to disbelieve the prosecution case. No doubt, the investigation has not been that perfect in view of the lapses pointed out. Nevertheless, the said defects by themselves cannot have the effect of throwing out the prosecution case, when the evidence of the eyewitnesses has been fully corroborated by the medical evidence and the circumstantial evidence of recovery of weapons. In this regard, proposition of law laid down by the Hon'ble Supreme Court in the case of DHANAJ SINGH @ SHERA v. STATE OF PUNJAB, reported in 2004 SCC (Cri) 851, is worth recalling. The Apex Court referring to the defective investigation has observed thus:

“In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.

In Paras Yadav v. State of Bihar (1999) 2 SCC 126; 1999 SCC (Cri) 104) it was held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not, the contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party.

As was observed in Ram Bihari Yadav v. State of Bihar (1998) 4 SCC 517: 1998 SCC (Cri) 1085) if primacy is given to such designed or negligent investigation, to the omission of lapses by perfunctory investigation or omission, the faith and confidence of the people would be shaken not only in the law-enforcing agency but also in the administration of justice.”

Unlawful assembly

48. It is the contention of the learned State counsel that the accused persons formed into an unlawful assembly and committed the assault on deceased Channegowda and his three sons and therefore, all the accused persons are liable to be convicted with the aid of Section 149 of the IPC. On the other hand, learned counsel for the respondents strongly contended that fee evidence placed on record would go to show that the accused persons never formed an unlawful assembly and that so far as the assault on the deceased is concerned, it is the prosecution case and it is also the evidence of the eyewitnesses that when the deceased intervened and questioned the accused for assaulting his son P.W.1, A5 assaulted the deceased with chopper on the right side of the head and A2 assaulted with club on the tight side of the head of the deceased and the said injuries were fatal injuries and ultimately led to the death of Channegowda. Therefore, it was contended that apart from accused A5 and A2, rest of the accused cannot be brought within the ambit of Section 149 of the IPC because, the accused other than A2 and A5 could not be convicted on the ground of sharing common object with A2 and A5 in so far as the assault on deceased is concerned. In this connection, before proceeding further, it would be useful to refer to the position in law as regards the requirement of Section 149 of the IPC.

49. The Hon'ble Supreme Court, in the case of STATE OF RAJASTHAN v. NATHU, reported in (2003) 5 SCC 537, dealing with Section 149 of the IPC, referred to the law laid down in Lalji v. State of U.P, reported in (1989) 1 SCC 437: 1989 SCC (Cri) 211, wherein it was observed thus:

“The two essentials of the section are the commission of as offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. Not every person is necessarily guilty but only those who share in the common object. The common object of the assembly must be one of the five objects mentioned in Section 141 IPC. Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.”

50. The court also referred to the scope of Section 149 as has been explained in the case of MASALTI v. STATE OF U.P, reported in AIR 1965 SC 202: (1965) 1 Cri. L.J 226: [1964] 8 SCR 133, in which ease, the Apex Court had made the following observations:

“The crucial question to determine in such a case is whether the assembly consisted of five or more parsons and whether the said persons entertained one or more the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. It is in that context that the observations made by this Court in the case of Baladin v. State of U.P (AIR 1956 SC 181: 1956 Cri. L.J, 345 assume significance; otherwise, in law, it would not he correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed, some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly, In fact, Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly, Therefore, we are satisfied that the observations made in the case of Baladin must be read in the context of the special facts of that case and cannot be treated as laying down an unqualified proposition of law such as Mr. Sawhney suggests”

51. The evidence on record, if examined in the light of the above proposition of law, inclines us to take the view that there is force in the contention urged by the learned counsel for the respondents. This is because, the evidence itself makes it clear that only when the deceased intervened and questioned the accused persons, A2 and A5 assaulted the deceased with club and chopper respectively and the other accused persons did not commit any assault on the deceased. Moreover, since the deceased intervened and when P.W.1 was assaulted by the accused persons, it cannot be said that all the accused persons also shared the common object with A2 and A5 in so far as the attack on deceased Channegowda is concerned. Hence, only in so far as A2 and A5 are concerned, we are of the view that they can be said to have shared the common intention to do away with the life of deceased Channegowda, because of the very manner in which they assaulted the deceased on the right side of the head and therefore, as far as the rest of the accused persons are concerned, they cannot be attributed with the common object of doing away with the life of the deceased, Hence, as far as A2 and A5 are concerned, they will be jointly liable for having committed the murder of deceased Channegowda having shared the common intention. So far as the rest of the accused are concerned, their role will have to be assessed having regard to the nature of evidence that is against them. In so far as the assault committed on P.W.s 1, 2 and 3 are concerned, they will be, at the most, held liable for their individual overt acts insofar as causing injuries to P.W.s.1 to 3.

52. It is the prosecution case that P.Ws 1 to 3 were assaulted with clubs and stones by the accused persons. Therefore, the evidence with regard to assault on these three witnesses will have to be carefully scrutinized in order to ascertain as to which accused assaulted which of the injured persons,

53. P.W.1 Sannegowda has deposed in court that he was assaulted by A-1, A-3, A-4, A-5, A-9 and A-10 with clubs and stones and he goes on to mention the overt acts by stating that A-2 assaulted with a club on the back and on head, A-1 assaulted with a stone on the right leg. A-3 and A-4 assaulted with ‘hands and also mentions that A-3 assaulted with a stone on the left shoulder. P.W.2 has stated in his evidence that P.W.1 was assaulted by A-1 to A-7 and A»9 to A-13. P.W.3 Papegowda has simply stated that P.W.1 had been assaulted, In the complaint Ex.P-1, P.W.1 has stated that he was caught by A-1 to A-6 and out of them A-2 assaulted on the head with a club and the other accused; A-1, A-3, A-4, A-5 and A-6 assaulted with M.O.S stones on him. It is also in the evidence of P.W.1 that when he was carrying milk to the milk central, at that time, A-1 to A-5 assaulted with clubs and stones. This evidence of P.W.1 has not been shaken in the cross-examination. Even P.W.5 Channegowda has deposed in his evidence that he saw A-2 and A-6 restraining P.W.1 F.W.6 Swamygowda has stated that when he came to the spot, he saw P.W.1 having been felled to the ground by A-5 and A-6 was holding the cellar of P.W.l Ex.P-25 is the wound certificate in respect of P.W.l and as per the said document, P.W.l had sustained five injuries, viz., oblique lacerated wound over the left parietal region measuring 2″ × .5″ × .5″, skin abrasion over right forearm, laterally measuring 2″, skin abrasion present over the left side of the back on the scapular region, measuring 3″, tenderness present over knee joint right side, and an abrasion over the left cheek, measuring 2″ and as per the evidence of the doctor P.W 20, the said injuries have been described as simple injuries in the wound certificate. No roles have been assigned to any other accused persons in the assault on P.W.1 though P.W.2 has stated that the accused had assaulted P.W.1 Having regard to the overt acts alleged against the accused persons as per the evidence placed on record, so far as the assault on P.W.1 is concerned, it can be said that A-1, A-2, A-3, A-4, A-5, A-9 and A-10 did share the common object in assaulting P.W.1 and, therefore, the said accused persons will be liable with the aid of Section 149 of the I.P.C for having had the common object of assaulting P.W 1 and having formed themselves into an unlawful assembly. Since the above accused persons used stones and clubs, the ingredients of Section 324 of the I.P.C get attracted in view of the injuries caused to P.W 1 being simple in nature and, therefore, the above said accused persons will be liable for having committed the offence under Section 324 read with Section 149 of the I.P.C

54. Coming to the injuries sustained by P.Ws.2 and 3 are concerned, the evidence on record, as spoken to by the injured witnesses, is to the effect that P.W.2 was assaulted by A-6, A-9 and A-10 by hands on the chest and this is the evidence of P.W.2 himself. However, P.W.1 has simply stated in his evidence that the accused assaulted P.W.2 P.W.3 does not mention about the accused assaulting P.W.2 But, P.Ws 4 and 5 have stated that some of the accused assaulted P.Ws.2 and 3, and P.W.6, in his evidence, has stated that there was scramble between P.Ws.2, 3 and some accused. P.W 11, though turned hostile, has stated in his cross-examination that the accused assaulted P. Ws. 1 to 3. The medical evidence with regard to the injuries caused to P.W.2 is at Ex.P-26 and this document discloses that P.W.2 sustained simple injuries in the form of complaint of pain over occipital region and skin abrasion over left side of the back covered by scabs. So far as the assault on P.W.2 is concerned, the said injured witness has named only A 6, A-9 and A-10, and the other witnesses have made an omnibus statement, roping in all the accused. We are of the considered view that as far as the injuries caused to P.W.2 is concerned, only A-6, A-9 and A-10 could be held responsible and having regard to the simple nature of the injuries and P.W.2 himself stating that he was assaulted by hands on the chest, the said offence, at the most, will come under Section 323 of the I.P.C, but, without the aid of Section 149 of the I.P.C because, there is lack of evidence to show that all the accused persons shared common object in committing the assault on P.W.2 Hence, only the above said accused persons will be liable under Section 323 of the I.P.C for their individual overt acts in assaulting with hands on the chest of P.W.2

55. Coming to the next injured witness i.e P.W.3 Papegowda, the said witness has stated in his evidence that he was assaulted by A-7, A-8 (since dead) and A 13, and the overt acts alleged are that the said three accused persons fisted him all over his body. The other eye-witnesses have also stated that P.W.3 was assaulted by some of the accused persons and some accused fisted him. Having regard to the said nature of the evidence, which has not been discredited in the cross-examination, arid the wound certificate, produced at Ex.P-27 through P.W.20 Dr. M. Krishna, also disclosing that P.W.3 sustained simple injuries in the form of (1) abrasion over the left forearm, laterally 3″, and (2) complaint of severe body ache, the offence under Section 323 of the IPC. gets attracted only as against the three accused persons mentioned by P.W.3 himself in his evidence and since one of them i.e, A-8 is dead, only the other two accused i.e, A-7 and A-13 will be liable for their individual overt acts in causing hurt to P.W 3.

56. Thus, on a careful analysis of the entire evidence on record and having scrutinized the same having regard to the fact that the eye-witnesses were all related witnesses, but their evidence being found to be consistent, cogent and not being discredited in the cross-examination, in view of the material particulars in regard to the assault caused by A-2 and A-5 on deceased Channegowda and the other accused persons, as mentioned aforesaid, causing injuries to P.Ws 1 to 3, the trial court has committed a serious error in discarding the evidence of the injured eyewitnesses merely because of few lapses in the investigation and merely because of the medical evidence not disclosing any injuries on the chest of the deceased, the conclusion arrived at by the trial court has led to grave miscarriage of justice and the said findings are not only erroneous, but perverse in the sense that the trial court has ignored the cogent and convincing testimony of P.Ws.1 to 6, who are the eye witnesses to the incident and, when their evidence is fully corroborated by the medical evidence of the doctors and the motive factor also having been proved, the trial court, by observing that the prosecution has failed to explain the injuries on A-5 and that the names of the accused persons having not been mentioned in the F.I.R, has given undue importance to the lapses in the investigation and discarded the otherwise reliable, cogent and convincing testimony of the eye-witnesses, P.Ws.1 to 6. No doubt, there are some inconsistencies between the evidence of the eye witnesses in certain aspects, but those inconsistencies do not affect the prosecution case in pith and substance and, therefore, the acquittal of those accused persons, whom we have found to have committed various offences as mentioned above, cannot be sustainable in law. Insofar as the accused other than the one, whom we have found having committed the assault, is concerned, the evidence is not sufficient to convict the rest of the accused persons for the offences with which they stood discharged and, therefore, onlv that part of the order of acuittal of the trial court acauitting the accused persons other than those whom we have found guilty, will have to be sustained and the rest of the order of acquittal is liable to be set aside because, in our view, the evidence on record does not permit two views being possible insofar as the accused whom we have found guilty in the course of this judgment and when once it is established that the trial court's view was erroneous and the finding being perverse and contrary to the evidence on record, the appellate court has to interfere in order to prevent miscarriage of justice.

57. It is well settled that, if on the basis of the same evidence, two views are reasonably possible and the trial Court takes the view in favour of the accused, the Appellate Court in an appeal against the acquittal, will not be justified in reversing the order of acquittal, unless the view taken by the trial Court is fully unreasonable or perverse. As has been observed by the Hon'ble Supreme Court, in the case of Anil Kumar v. State Of U.P, reported in 2005 SCC (Cri) 178, a miscarriage of justice, which may arise from acquittal of the guilty, is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not.

58. It is on the touchstone of the above principles of law, we have carefully analysed the entire evidence, in particular, the evidence of the eyewitnesses coupled with the medical evidence and the evidence with regard to motive and the recovery evidence and we find that the eyewitness's evidence is straightforward and reliable and that there is no effort on their part to improve the case of the prosecution on the basis of imaginary facts. What has been deposed to by the eyewitnesses is, in our view, a straightforward account of the incident and there is a ring of truth in their testimony and we, therefore, find them to be implicitly reliable, notwithstanding the minor inconsistencies and contradictions which do not go to the root of the prosecution case. It is on the said evaluation of the entire evidence on record, we have arrived at the conclusion as aforesaid. Therefore, A2 and A5 will be liable for having committed the murder of deceased Channegowda and their intention to commit the murder is very clear from the manner in which the said two accused assaulted deceased Channegowda on the right side of the forehead, which injury, according to the medical evidence, was sufficient in the ordinary course of life to cause death. So iar as the injury caused to P.W.1 is concerned, the accused persons A1, A2, A3, A4, A5, A9 and A10 are liable for being convicted under Sections. 324, 148 read with Section 149 of the IPC and, as regards the injury caused to P.W.2 is concerned., as has been assessed by us, the evidence on record points the finger at A6, A9 and A10 and each one of them will be liable for having committed the offence under Section 323 of the IPC. As regards the injury caused to P.W.3 Papegowda is concerned, though. A7, A8 and A13 were the accused, who caused him the injuries, in view of A8 having died and the case abating against him, only A7 and A13 will be liable for having committed the offence under Section 323 of IPC. The rest of the accused persons i.e, A11 and A12 will not be liable for having committed any of the offences and, as such, the acquittal of these two accused persons by the trial Court has to be sustained.

59. Wow, on the question of sentence, we nave heard the learned counsel for the respondents and the submission made was to the effect that although A2 and A5 are alleged to have committed the assault on deceased Channegowda, which assault ultimately led to the death of Channegowda, yet, the evidence would indicate that there was no premeditation and it was only when the deceased intervened and questioned the accused as to why they were assaulting P.W.1, A2 and A5 assaulted the deceased, Therefore, the case may fall at the most under Section 304 part II of the IPC and not under Section 302 and hence, the said two accused be given the benefit of the Probation of Offenders Act, as has been done in the case of State Of Karnataka v. Muddappa, reported in 1999 (9) Supreme 415, On the other hand, the learned State Counsel contended that A2 and A5 assaulted the deceased on the right side of the forehead and the injuries sustained were so severe that the deceased died on account of fracture of the skull bone, damage to the brain and the injuries caused were sufficient to cause death in the ordinary course of life. Considering the fact that A5 assaulted with a chopper and A2 followed it by assaulting the deceased with a club., with an intention to do away with the life of Channegowda, in the background of enmity between the parties over the cart track issue, the facts and circumstances will attract the offence of murder punishable under Section 302 of the IPC as against A2 and A5 and, therefore, the question of extending the benefit under the Probation of Offenders Act will not arise. Moreover, in the case referred to by the learned counsel for the respondents, the accused have been convicted under Section 304 part II of the IPC and, therefore, the Court extended the benefit of Section 4 of the Probation of Offenders Act, whereas, in the case on hand, the evidence on record, as re-assessed by us, does not give scope to take the view that the offence committed by A2 and A5 falls under Section 304 part II and not under Section 302 of the IPC, Hence, the said decision is inapplicable.

Conclusion

60. However, having regard to the facts and circumstances of the case and the manner in which the deceased was done to death by A2 and A5, we do not find that this is a case falling under rarest of rare cases to warrant death penalty. Hence, the only alternative will be imprisonment for life with fine. As regards the other accused persons are concerned, as already indicated by us, the ingredients of Sections 148 and 149 of IPC are attracted only against A-1 to A-5, A-9 and A-10 in respect of the injuries caused to P.W.1 As regards those accused persona who assaulted P.W.2 and P.W.3, they will be liable individually. In the result and for the foregoing reasons we pass the following order:

i) The State appeal is allowed in part.

ii) The judgment and order of acquittal in so far as acquitting the accused Al to A7, A9, A10 and A13 of all the offence is set aside. However, that portion of the judgment and order of acquittal of the trial Court acquitting A11 and A12 is sustained.

iii) A2 Nanjegowda S/o Kullegowda and A5 Puttegowda. S/o Bettegowda are convicted for the offence punishable under Section 302 of IPC with the aid of Section 34 of the IPC and each one of the said two accused is sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/- each and, in default of payment of fine, to undergo further imprisonment for a period of one year. The fine amount, if collected, shall be paid to P.W.1

iv) A1, A2, A3, A4, A5, A9 and A10 are convicted for the offence punishable under Section 324 read with 149 of the I.P.C and each of them is sentenced to undergo imprisonment for a period of one year and to pay a fine of Rs. 500/- and, in default of payment of fine, to undergo further imprisonment for a period of two months and the fine amount, if recovered, shall be paid to P.W 1. However, we propose no sentence for the offence under Section 143 of the I.P.C

v) Accused A6, A9 and A10 are convicted for the offence punishable under Section 323 of the IPC and each one of them shall pay a fine of Rs. 500/- and, in default of payment of fine, to undergo imprisonment for a period of two months and the fine amount, if recovered, shall be paid to P.W.2

vi) A7 and A13 are convicted under Section 323 of the IPC and they shall pay a fine of Rs. 500/- and, in default of fine, to undergo imprisonment for a period of two months and the fine amount, if recovered, shall be paid to P.W.3

vii) The substantive sentences shall run concurrently.

viii) The accused are also entitled to set off as per Section 428 of Cr. P.C

ix) The accused who have been convicted shall surrender forthwith before the trial Court to undergo the sentence imposed upon them and the trial Court shall also take immediate steps to secure the accused who have been convicted in order to enable them to serve out the sentence imposed by this Court as mentioned above.