Judgment : 1. The appellants (hereinafter referred to as accused 1 to 6) were tried for offences punishable under sections 143, 147, 148 & 302 r/w 149 IPC and they were convicted for offences punishable under sections 325 r/w 149 IPC and also for an offence punishable under section 148 IPC. Accused 1 to 6 have been sentenced to undergo rigorous imprisonment for two years and pay fine of Rs.5,000/-each, in default to undergo rigorous imprisonment for six months for an offence punishable under section 325 r/w 149 IPC and they have been sentenced to undergo rigorous imprisonment for six months and pay fine of Rs.2,000/-each, in default to undergo rigorous imprisonment for three months for an offence punishable under section 148 IPC. Therefore, they are before this court. 2. I have heard Sri P.N.Hegde, learned counsel for accused and Sri B.T.Venkatesh, learned SPP for State. 3. Accused 1to 6 were tried for following charges:-"Firstly, that on 30.01.2005 at about 8.30 p.m., you above named accused No.1 to 6 were the members of unlawful assembly gathered at and in front of Arrack shop of Sharadamma of Station Balegundi village of Sagar Taluk with the common object to cause murder of deceased Keriyappa and thereby committed an offence P/U/S 143 IPC within my cognizance. Secondly, that on the said dated, time and place you accused no.1 to 6 were members of unlawful assembly and were at that time armed with deadly weapons like clubs which were used as weapons of offence was likely to cause death and did, in prosecution of the common of that assembly to cause death of deceased Keriyappa. Thereby committed an offence of rioting with deadly weapons P/U/S 148 IPC within my cognizance. Thirdly, that on 30.01.2005 at about 8.30 p.m., at and in front of Arrack shop of Sharadamma of Station Belagundi Village of Sagar Taluk, accused no.1 to 6 above named being the members of unlawful assembly with a common object to cause death of deceased Keriyappa on account of previous ill-will and at that time you accused no.1 to 3 cause injuries on the head, neck and chest of deceased Keriyappa with a club and you accused no.4 to 6 caused injuries on the stomach by kicking intentionally to commit his murder or knowing that such an act would cause a death of a person. Thereby you accused no.1 to 6 with the common object of each other caused such injuries in the said incident intentionally to commit his murder or knowing that such an act would cause a death of a person. Thereby committed an offence P/U/S 302 IPC r/w. Sec.149 IPC within my cognizance." The State has not filed appeal against judgment of acquittal of accused of offences punishable under section 143, 147, 302 r/w 149 IPC. The points that would arise for determination are as follows: 1. Whether the prosecution has proved that accused being members of unlawful assembly assaulted deceased and caused grievous hurt to deceased, there by committed an offence punishable under section 325 r/w 149 IPC? 2. Whether the prosecution has proved that accused being members of unlawful assembly committed rioting, thereby committed an offence punishable under section 148 IPC? 3. Whether the impugned judgment calls for interference? 4. To what order? 4. In order to bring home guilt of accused, prosecution has relied on eye-witness account of PW1 to PW5, medical evidence of PW8 and evidence of Investigating Officer. 5. Before adverting to submissions made by learned counsel for parties and the evidence adduced by prosecution, it is necessary to refer to medical evidence of PW8 and contents of post-mortem examination report. 6. The evidence of PW8-Dr.T.B.Sathyanarayana, the then Medical Officer, Government Hospital at Sagar and the contents of post-mortem examination report would reveal that deceased had swelling on his left check and an abrasion measuring 3 inches x 1 inch on right side of chest. After post-mortem examination, PW8 did not furnish opinion as to cause of death. On the other hand, PW8 had sent viscera to Forensic Science Laboratory. On receipt of report from Forensic Science Laboratory, PW8 had opined that death was due to shock and haemorrhage as a result of injuries to vital organs viz right lung and spleen. The evidence of PW8 does not reveal that aforestated injuries or any one of the injury was sufficient to cause death in the ordinary course of life. PW8 during cross-examination has admitted that there were no external injuries corresponding to injury to right lung, so also there were no external injuries, corresponding to rupture of spleen. PW8 has not deposed that there was internal haemorrhage. PW8 during cross-examination has admitted that there were no external injuries corresponding to injury to right lung, so also there were no external injuries, corresponding to rupture of spleen. PW8 has not deposed that there was internal haemorrhage. Therefore, evidence of PW8 and the contents of post-mortem examination report is not sufficient to prove that injuries suffered by deceased were sufficient to cause death in the ordinary course of life. 7. As per post-mortem examination report, post-mortem was conducted on 31.01.2005. At the first instance, opinion regarding cause of death was kept pending, awaiting chemical analysis report. On 15.04.2005, the Medical Officer received chemical analysis report to the effect that no poison was detected in the viscera, thereafter, he has furnished his opinion that death was due to injury to vital organs like lungs and spleen. The post-mortem examination report was received by Investigating Officer on 23.04.2005. In the post- mortem examination report, at the first instance, it is shown that lungs (both right and left) were in tact. The rupture of spleen was also not mentioned, so also internal haemorrhage. On the other hand, it was mentioned that spleen was in tact. The Medical Officer appears to have made these entries subsequently so as to justify his opinion that death had occurred as a result of injuries to vital organs such as lungs and spleen. Therefore, evidence of PW8 that death was due to shock and haemorrhage, as a result of injuries to lungs and spleen is not free from reasonable doubt and the benefit of doubt has to be extended to accused. In the circumstances, learned trial Judge was justified in holding that prosecution has failed to prove an offence punishable under section 302 IPC. 8. As already stated, prosecution has relied on evidence of PW1 to PW5. 9. PW1-Komala is the wife of deceased. In the circumstances, learned trial Judge was justified in holding that prosecution has failed to prove an offence punishable under section 302 IPC. 8. As already stated, prosecution has relied on evidence of PW1 to PW5. 9. PW1-Komala is the wife of deceased. PW1 has deposed; at the relevant time, her husband was working as a Peon in the Government Hospital at Sagar; on the date of incident, at about 7.30 p.m., accused 1 to 6 came near her house and accused No.2 demanded husband of PW1 (deceased) to repay a sum of Rs.480/- which he was due to accused no.2; when deceased refused and pleaded his inability to pay the amount; accused dragged deceased to the arrack shop of Sharadamma (PW5), kicked and trampled deceased; PW2 to PW6 on hearing hue and cry, reached the place of incident and witnessed incident; after assaulting deceased, accused sped away from that place; PW6 shifted deceased in an autorickshaw to Government Hospital at Sagar; PW8 on examination of deceased found he was dead; on the following day, PW8 conducted post-mortem examination the details of which are discussed supra. During cross-examination, PW1 has deposed; accused 1 to 6 and other persons, in all 15 persons had gone near her house at about 7.30 p.m., on 30.01.2005 and demanded deceased to return a sum of Rs.480/- to accused No.2-Prema; deceased told them that he does not owe any money to accused No.2; even if he owed any money, he would pay on the following day, thereafter accused dragged deceased towards arrack shop of Sharadamma (PW5); accused felled deceased and assaulted him with clubs and caused bleeding injuries. During cross-examination, PW1 has admitted that one Chowdappa of Karehonda village, who had assaulted deceased was not one amongst accused before the trial court. PW1 has admitted that she was not able to identify accused No.2. PW1 has also admitted that she was not able to identify accused No.3. PW1 has deposed that her husband had suffered bleeding injuries on his head. PW1 has deposed that clothes of her husband were stained with blood. The evidence of PW1 is not consistent. The evidence of PW1 that her husband was dragged to the arrack shop of PW5, which is at a distance of 300 feet from the house of deceased looks improbable as there are no corresponding injuries on deceased. PW1 has deposed that clothes of her husband were stained with blood. The evidence of PW1 is not consistent. The evidence of PW1 that her husband was dragged to the arrack shop of PW5, which is at a distance of 300 feet from the house of deceased looks improbable as there are no corresponding injuries on deceased. If the deceased had been forcibly dragged to a distance of 300 feet, one would expect corresponding abrasions or grazed injuries on the deceased. The evidence of PW1 that one Chowdappa, who had assaulted deceased was not an accused before trial court creates reasonable doubt regarding identification of accused by PW1. PW1 has admitted that she cannot identify accused 2 & 3. The evidence of PW1 that her husband had suffered fracture to skull and suffered bleeding injuries on his head does not find corroboration from medical evidence. 10. PW2-Sathyappa is the younger brother of deceased. The evidence of PW2 would reveal that he had reached place of incident on hearing hue and cry near arrack shop of PW5. PW2 has deposed; accused had assaulted deceased with clubs. PW2 has admitted by the time he reached place of incident, deceased had fallen down with injuries. The evidence of PW2 is not specific about overt acts committed by accused. The evidence of PW2 does not lend support to the case of prosecution that deceased had been assaulted by accused with clubs in front of arrack shop of PW5. 11. PW3-Krishnappa is an independent witness. PW3 has deposed; accused 1 to 3 assaulted deceased with clubs and other accused fisted and kicked him. During cross-examination, defence has not elicited from PW3 that he was either interested in deceased or he had enmity against accused. From the evidence of PW3, it is proved that accused had assaulted deceased, however, it is not possible to hold that accused had assaulted the deceased with clubs. It is also not possible to hold that accused 1 to 3 had caused injuries to spleen and lungs by assaulting deceased with clubs as there were no corresponding external injuries. If accused 1 to 3 had assaulted deceased with clubs, there would have been contusions on the deceased. From the evidence of PW8 and the contents of post-mortem examination report, we find that deceased had suffered an abrasion on right side of chest. Apart from this, there were no visible injuries. 12. If accused 1 to 3 had assaulted deceased with clubs, there would have been contusions on the deceased. From the evidence of PW8 and the contents of post-mortem examination report, we find that deceased had suffered an abrasion on right side of chest. Apart from this, there were no visible injuries. 12. PW5-Sharadamma has not completely supported the case of prosecution, however she has deposed; on the date of incident, at about 6 p.m., deceased Kariyappa had gone near her arrack shop and he had consumed one pocket of arrack. Accused 2 & 3 had gone near her shop and consumed arrack; on the same day at about 7.30 p.m., there was quarrel in front of her shop; on the following day, PW5 came to know that deceased had suffered injuries in quarrel and he was shifted to hospital and he died on the way to hospital. 13. Thus, on overall appreciation of evidence, it can safely be concluded that accused 1 to 6 had assaulted the deceased, however prosecution has failed to prove that injuries suffered by deceased were sufficient to cause death in the ordinary course of life. The prosecution has failed to prove that accused 1 to 6 had assaulted the deceased with clubs. The evidence on record is not sufficient to hold that accused 1 to 6 were the members of unlawful assembly and they were armed with deadly weapons. The evidence adduced by prosecution is sufficient to hold that accused had assaulted the deceased and they had kicked and trampled deceased. The prosecution has failed to prove that deceased had suffered external injuries corresponding to internal injuries due to assault by accused. In the circumstances, evidence adduced by prosecution is hardly sufficient to hold accused guilty of an offence punishable under section 143 IPC and also of an offence punishable under section 148 IPC. In view of paucity of medical evidence and absence of specific opinion regarding cause of death, it is not possible to hold that accused had caused grievous hurt to deceased. I hold that prosecution has proved that accused 1 to 6 had used criminal force against deceased and caused hurt to him and committed an offence punishable under section 323 IPC. I hold that prosecution has proved that accused 1 to 6 had used criminal force against deceased and caused hurt to him and committed an offence punishable under section 323 IPC. The learned trial Judge without noticing these infirmities and deficiency in evidence adduced by prosecution has held accused 1 to 6 guilty of an offence punishable under section 325 r/w 149 IPC. The evidence adduced by prosecution is hardly sufficient to hold that accused were the members of unlawful assembly and assaulted deceased with deadly weapons to hold them guilty of an offence punishable under section 148 IPC. Therefore, impugned judgment requires modification. 14. In the result, I pass the following:- ORDER The appeal is accepted in part. The impugned judgment is modified. Accused 1 to 6 are acquitted of an offence punishable under section 325 r/w 149 IPC and they are also acquitted of an offence punishable under section 148 IPC. Accused 1 to 6 are convicted for an offence punishable under section 323 IPC. They are sentenced to undergo simple imprisonment for a period of six months and pay fine of Rs.5,000/- each, in default to undergo simple imprisonment for one month for an offence punishable under section 323 IPC. Out of the fine deposited by accused 1 to 6, a sum of Rs.20,000/-shall be paid as compensation to PW1-Komala (wife of deceased). The period of imprisonment undergone by accused 1 to 6 during trial is given set off as provided under section 428 Cr.P.C.