Judgment : 1. The appellants (hereinafter referred to as accused no.1 to 5) were tried and convicted for offences punishable under sections 143, 147, 148, 341, 324, 307 r/w 149 IPC. Therefore, they are before this court. 2. I have heard Sri.Sandeep Patil, learned counsel for accused and learned State Public Prosecutor for the State. 3. In brief, the case of prosecution is as follows: Accused no.1 to 4 are the sons of accused no.5. They are natives of Mullusoge village, Kushalnagar Taluk. The prosecution witnesses namely PW.3-Shekara and PW.7- Jagannatha and direct brothers and CW.6-Puttamma is the mother of PW.3 and PW.7; PW.8-Puttaraju and PW.9- Dinesha are the brothers. PW.6-M.T.Raghu is the son of PW.5-M.K.Thimmappa. It appears there was enmity between PW.5- M.K.Thimmappa and afore stated prosecution witnesses on one side and the accused on other side. On 26.07.2000, there was a quarrel between the parties in relation to which some of the accused had filed first information. 4. It is the case of prosecution that on 27.07.2000 at about 8.30 a.m., when PW.3, 6 to 9 were proceeding in front of the house of accused, they were wrongfully restrained by accused. Accused no.1-Rajesha stabbed on the stomach of PW.7-Jagannatha with a knife and accused no.3-Prasanna stabbed on the stomach of PW.8-Puttaraju. Accused no.2, 4 and 5 assaulted PW's.3, 6 and 9 with clubs and caused injuries to them. The injured were shifted to Government Hospital at Kushalnagar, after preliminary treatment, they were treated in K.R. Hospital at Mysore. The first information in relation to incident of assault was lodged by PW.6- M.T.Raghu. 5. In view of conviction of accused no.1 to 5 for the afore stated offences, points that would arise for determination are: 1) Whether the prosecution has proved that on 27.07.2000 at about 8.30 a.m., near the house of accused, accused no.1 to 5 had formed an unlawful assembly with the intention of attempt to commit murder of PW's.3 and 9, thereby committed an offence punishable under Section 143 IPC? 2) Whether the prosecution has proved that in the course of same transaction, accused no.1 to 5 being the members of unlawful assembly used force and committed rioting, thereby committed an offence punishable under Section 147 IPC ? 2) Whether the prosecution has proved that in the course of same transaction, accused no.1 to 5 being the members of unlawful assembly used force and committed rioting, thereby committed an offence punishable under Section 147 IPC ? 3) Whether the prosecution has proved that in the course of same transaction as mentioned in points no.1 & 2, accused armed with deadly weapons had used deadly weapons to commit rioting, thereby committed an offence punishable under Section 148 IPC ? 4) Whether the prosecution has proved that in the course of same transaction, accused no.1 and 3 being the members of unlawful assembly stabbed on the stomach of PW.7 and PW.8 with such intention and knowledge that if they had caused death of PW's.7 and 8, they would have been held guilty of an offence punishable under Section 302 IPC, thereby accused no.1 to 5 have committed an offence punishable under Section 307 r/w 149 IPC? 5) Whether the prosecution has proved that in the course of same transaction, accused no.2, 4 and 5 assaulted PW's.3, 6 and 9 with clubs and caused hurt to them, thereby accused no.2, 4 and 5 have committed an offence punishable under Section 324 r/w 149 IPC 6) Whether the learned trial judge has properly appreciated the evidence on record? 7) To what order ? 6. The independent witnesses namely PW's.7 and 12 have not supported the case of prosecution. PW's.2, 3, 5, 9 and 10 who were examined to prove seizure of incriminating articles, have not supported the case of prosecution. Therefore, prosecution has relied on evidence of injured witnesses and medical evidence given by PW.1. 7. It is seen from the evidence of PW.6-Raghu that accused no.1 to 3 had filed the first information alleging that on 26.07.2000 at about 8.30 p.m., some of the prosecution witnesses had entered the house of accused and held out threats to their life. PW.6 has admitted that the accused had filed first information alleging that some of the prosecution witnesses had assaulted them at about 8.30 a.m., on 27.07.2000. In the first information, a particular reference was made that some of the prosecution witnesses had assaulted accused no.2-Indresha. 8. At this juncture, it is relevant to state that in the aforestated case, some of prosecution witnesses were tried and acquitted. In the first information, a particular reference was made that some of the prosecution witnesses had assaulted accused no.2-Indresha. 8. At this juncture, it is relevant to state that in the aforestated case, some of prosecution witnesses were tried and acquitted. The accused have not produced documentary evidence to show that in the aforestated incident, they had suffered injuries at the hands of some of the prosecution witnesses. Be that as it may, the fact remains that there was enmity between accused and injured prosecution witnesses. Therefore, evidence of injured prosecution witnesses needs careful scrutiny before it is accepted. 9. PW.1-Dr.Sachidananda Murthy, the then Medical Officer of Government Hospital at Kushalanagar had examined the injured persons. PW.1 has deposed; that on 27.07.2000, at about 8.45 a.m., he examined Puttaraju (PW.8) and found following injury: Incised wound on the right lambar region on the lateral aspect measuring 6 cms x 0.5 cms x 1 cm. fresh bleeding present. PW.1 has opined that the injury was grievous in nature. On the same day at about 8.50 a.m., PW.1 had examined Jagannath (PW.7) and found the following injury: An incised injury on the left iliac region measuring 3 inches, intestine coils had come out. PW.1 has opined that the injury is grievous in nature. If the patient (PW.7) had not been attended properly, there were chances of his death. PW.1 had examined PW.3-Shekar at about 8.55 a.m., on the same day and found following injuries: 1) Lacerated wound on left temporal region measuring ½ cms x 0.2 cms x 0.3 cms, bleeding present 2) Abrasion measuring 0.5 cms x 0.5 cms on the left medial malleous PW.1 has opined that injuries were simple in nature. On the same day, PW.1 had examined PW.9-Dinesh and found the following injury: Cut injury measuring 5 inches x 2 inches x 1 inch on the back of head. PW.1 has opined that the injury was simple in nature. The injuries were caused within half an hour before the time of examination. PW.1 had referred all the injured to a major hospital. PW.1 has deposed; that injuries found on PW.8- Puttaraju and PW.7-Jagannatha could have been caused by assault with knives; injury found on PW.9-Dinesh could have been caused due to assault with clubs, so also, injury found on PW.3-Shekara. During cross-examination, it is elicited that PW.1 had not mentioned the age of the injuries. PW.1 has deposed; that injuries found on PW.8- Puttaraju and PW.7-Jagannatha could have been caused by assault with knives; injury found on PW.9-Dinesh could have been caused due to assault with clubs, so also, injury found on PW.3-Shekara. During cross-examination, it is elicited that PW.1 had not mentioned the age of the injuries. This answer is of no consequence in view of categorical evidence given by PW.1 that injuries were caused half an hour before his examination and there was fresh bleeding on the injuries found on PW.8 and intestines of PW.7 had come out. Therefore, non-mention of age of injuries in the wound certificates will not come to the rescue of accused. 10. The learned counsel for accused would submit that the medical officer had not sent the medico-legal intimation to the police station. 11. It is relevant to state that, as per evidence of PW.6, the hospital and police station in Kushalnagar are situate opposite to each other. Above all, PW.6 has deposed that he had gone to the police station and lodged the first information. Even if the medico-legal intimation had not been sent by the medical officer that would not enure to the benefit of accused. From the evidence of PW.1, it is proved that injured witnesses namely PW's.3, 7, 8 and 9 had suffered injuries due to external violence. 12. PW.3-Shekara has deposed; at the time of incident, accused no.1 and 3 were armed with knives and accused no.2, 4, and 5 were holding clubs; accused no.3-Prasanna stabbed Puttaraju (PW.8) with a knife; accused no.1-Rajesha stabbed Jagannath (PW.7) with a knife; when he tried to rescue, accused no.4-Shivakumar assaulted on the head of PW.3. During cross-examination, PW.3 has reiterated the version given in examination-in-chief. PW.3 has admitted that there was enmity between accused and PW.5. He has denied the suggestion that PW.3 and other prosecution witnesses had trespassed the house of accused and a case was registered against them. From the evidence of PW.3, we find that accused no.3 had stabbed Puttaraju (PW.8) with a knife and accused no.1 had stabbed Jagannath (PW.7) with a knife; PW.3 had suffered injuries to his head due to assault by accused no.4 with a club. PW.3 has deposed; that accused no.5 assaulted his mother namely Puttamma. The prosecution for the reasons not apparent on record has not examined Puttamma as a witness. PW.3 has deposed; that accused no.5 assaulted his mother namely Puttamma. The prosecution for the reasons not apparent on record has not examined Puttamma as a witness. The prosecution had not adduced medical evidence to prove that Puttamma had suffered injuries at the hands of accused no.5. Therefore, participation of accused no.5 is doubtful. However, evidence of PW.3 about participation and assault by accused no.1, 3, and 4 does not suffer from any discrepancy. 13. PW.6-Raghu has deposed; that on the date of incident, at about 8.30 a.m., PW.6 and other prosecution witnesses were proceeding towards their land near the house of accused no.1; at that time, accused no.1 and 3 were armed with knives; accused no.2, 4 and 5 were armed with clubs; accused no.3 stabbed Puttaraju (PW.8) with a knife; accused no.1 stabbed Jagannath (PW.7) with a knife; rest of the accused assaulted Shekara (PW.3) and Dinesha (PW.9) with clubs. During cross-examination, he has admitted that accused had filed two criminal cases against some of the prosecution witnesses alleging that they had trespassed the house of accused at about 8.30 p.m., on 26.07.2000 and the case is pending in C.C.No.507/2001. The accused had filed first information against some of the prosecution witnesses alleging that they had assaulted accused no.2 with an iron rod at 8.30 a.m., on 27.07.2000 and the case is pending in C.C.No.1272/2000. The accused have not produced the wound certificate of accused no.2 to show that he had suffered injuries at the hands of prosecution witnesses at 8.30 a.m., on 27.07.2000. In the instant case, we are not concerned with the incident which is alleged to have taken place at 8.30 p.m., on 26.07.2000. 14. The learned counsel for accused referring to evidence of PW.6 would submit that there are discrepancies relating to time of incident, time at which the first information was lodged and duration of incident. 15. It is necessary to state that prosecution witnesses cannot be expected to give precise evidence regarding time factor when they had suffered injuries. It would be hardly possible for them to give exact time of incident; exact time at which first information was lodged; exact time when they had been examined in the hospital. Therefore, these discrepancies relied on by the learned counsel for accused are not relevant. It would be hardly possible for them to give exact time of incident; exact time at which first information was lodged; exact time when they had been examined in the hospital. Therefore, these discrepancies relied on by the learned counsel for accused are not relevant. The evidence of PW.6 that accused no.3 stabbed Puttaraju (PW.8) with a knife and accused no.1 stabbed Jagannath (PW.7) with a knife does not suffer from any discrepancy. The evidence of PW.6 regarding assault on other prosecution witnesses by the other accused is vague. 16. PW.7-Jagannath has deposed; that at the time of incident, accused no.3 stabbed Puttaraju (PW.8) with a knife; accused no.1 stabbed Jagannath (PW.7) with a knife. From the evidence of PW.1 we find that PW.7 and 8 had suffered stab injuries and the intestines of PW.7 had come out. There are no reasons to suspect the evidence of PW.7 who was an injured witness. PW.7 has not given exaggerated version of the incident. PW.7 has deposed of what he had seen. PW.7 has been cross-examined with reference to the incident which had taken place on 26.07.2000. In the discussion made supra, I have held that the incident alleged to have taken place on 26.07.2000 has no bearing on the instant case. 17. The learned counsel for accused referring to evidence of PW.7 would submit that, PW.7 has admitted that on 27.07.2000, he was released on bail and at the same time, he has deposed that he had suffered stab injury and he was shifted and admitted to K.R.Hospital at Mysore. The release of PW.7 on bail is a matter of record. The accused instead of producing the record have relied on the so called admission. PW.7 being an injured witness might have been produced before the Magistrate for being released on bail before taking treatment. This cannot be a ground to discard the evidence of PW.7. 18. PW.8-Puttaraju has deposed; on the date of incident, accused no.3-Prasanna had stabbed on the stomach of PW.8 with a knife. The evidence of PW.8 finds support from the medical evidence given by PW.1- Dr.Sachidananda Murthy. During cross-examination, nothing is elicited to discredit the evidence of PW.8 but for certain admissions relating to the previous case filed against some of the prosecution witnesses. Therefore, there are no reasons to suspect the evidence of PW.8 who was injured in the incident of assault. 19. During cross-examination, nothing is elicited to discredit the evidence of PW.8 but for certain admissions relating to the previous case filed against some of the prosecution witnesses. Therefore, there are no reasons to suspect the evidence of PW.8 who was injured in the incident of assault. 19. PW.9-Dinesh is the younger brother of PW.8. PW.9 has deposed; at the time of incident, accused no.1-Rajesha and accused no.3-Prasanna were holding knives; accused no.3 stabbed Puttaraju (PW.8) with a knife; accused no.1 stabbed Jagannath (PW.7) with a knife; accused no.2- Indresh assaulted PW.9 with a club. PW.1-Dr.Sachidananda Murthy has given evidence regarding injury suffered by PW.9-Dinesha. Therefore, there are no reasons to suspect the evidence of PW.9 that he was assaulted by accused no.2-Indresha with a club. The evidence of aforestated injured witness is supported by medical evidence. Therefore, there are no reasons to suspect the evidence of injured witnesses. 20. The injured witnesses namely PW.7-Jagannath and PW.8-Puttaraju had suffered stab injuries, which were inflicted by accused no.1 and 3 respectively; PW.9-Dinesh had suffered injuries due to assault with a club by accused no.2-Indresha; PW.3-Shekara had suffered injury due to assault with a club by accused no.4. PW.1 has given evidence in proof of injuries suffered by PW.3. 21. The evidence on record does not disclose that accused no.5 had participated in the incident of assault and she had wielded a club. Therefore, the case of prosecution that accused no.1 to 5 were the members of unlawful assembly cannot be accepted. 22. In a decision reported in AIR 1965 SC 202 (in the case of Masalti -v- State of Uttar Pradesh), the Supreme Court has held: (f) Evidence Act (1872), S.134- Number of witnesses. It is true that under the Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. But where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical, but it cannot be treated as irrational or unreasonable. It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give evidence. But sometimes it is useful to adopt a mechanical test. (para 16)" 23. In the case on hand, there is no consistent evidence regarding participation of accused no.1 to 5 as members of unlawful assembly. The evidence on record, does not disclose that accused no.5 (a woman aged about 50 years) had wielded club and caused injuries to any of the prosecution witnesses. In the circumstances, the learned trial judge should not have held accused no.5 guilty of offences punishable under Sections 143, 147 and 147 IPC. The learned trial judge should not have invoked Section 149 to fasten vicarious criminal liability. Accused no.1 to 4 could be held liable for the individual acts committed by them. 24. In the discussion made supra, I have held that accused no.1-Rajesha had stabbed on the stomach of PW.7- Jagannath with a knife and the intestine had come out; the injury was grievous in nature; accused no.3 had stabbed on the stomach of PW.8-Puttaraju with a knife; the injury was endangerous to his life and he was treated in K.R.Hospital at Mysore. Therefore, it can safely be held that accused no.1 and 3 had committed an offence punishable under Section 326 IPC. Accused no.2-Indresha had assaulted PW.9- Dinesha with a club and caused injuries to him; Accused no.4-M.S.Shivakumar had assaulted PW.3 with a club and caused injuries to him. Therefore, it can be held that accused no.2 and 4 had committed an offence punishable under Section 324 IPC. 25. The incident of assault is alleged to have taken place near the house of accused. The accused had also lodged a complaint against some of the prosecution witnesses stating that they had trespassed their house and held out threats to their lives. In the circumstances, it is not possible to hold that accused no.1 had assaulted PW.8 and accused no.3 had assaulted PW.7 with knives with such intention and knowledge that if they had caused death of PW's.7 and 8, they would have been held guilty of an offence punishable under Section 302 IPC. 26. In the circumstances, it is not possible to hold that accused no.1 had assaulted PW.8 and accused no.3 had assaulted PW.7 with knives with such intention and knowledge that if they had caused death of PW's.7 and 8, they would have been held guilty of an offence punishable under Section 302 IPC. 26. At this juncture, it is relevant to notice that accused no.1-Rajesha had stabbed on the stomach of PW.7- Jagannatha and inflicted one stab injury. Similarly, accused no.3-Prasanna had stabbed on the stomach of PW.8- Puttaraju and inflicted one stab injury. Therefore, the learned trial judge was not justified in holding accused no.1 to 5 guilty of an offence punishable under Section 307 r/w 149 IPC. The first information was lodged by PW.6 not only against accused no.1 to 5 but also against other family members of accused no.1. PW.6 in his evidence has deposed that under confusion he had included the names of other family members of the accused namely Savitha, Bharathi and father-in-law of accused no.2. This theory of confusion has to be accepted with a pinch of salt. 27. The learned trial judge without considering all these aspects and the background of incident, has erroneously held accused no.1 to 5 guilty of offences punishable under Sections 143, 147, 148, 324, 307 r/w 149 IPC. The learned trial judge has failed to notice that there is no evidence in proof of presence and participation of accused no.5 as a member of unlawful assembly. The learned trial judge has not noticed the settled principles of law and nature of proof required to fasten vicarious criminal liability when there are large number of accused and large number of victims. Therefore, I hold that the impugned judgment requires modification. 28. In the result, I pass the following: ORDER The appeal is accepted in part. The impugned judgment is modified. Accused no.1 to 5 are acquitted of offences punishable under Sections 143, 147, 148, 307 r/w 149 IPC. Accused no.5 is acquitted of offences punishable under Section 324 and 326 r/w 149 IPC. Accused no.1 and 3 are convicted for an offence punishable under Section 326 r/w 34 IPC. Accused no.2 and 4 are convicted for an offence punishable under Section 324 r/w 34 IPC. Accused no.5 is acquitted of offences punishable under Section 324 and 326 r/w 149 IPC. Accused no.1 and 3 are convicted for an offence punishable under Section 326 r/w 34 IPC. Accused no.2 and 4 are convicted for an offence punishable under Section 324 r/w 34 IPC. Accused no.1 and 3 are sentenced to undergo rigorous imprisonment for a period of two and half years and pay fine of Rs.20,000/- each, in default, to undergo simple imprisonment for a period of 6 months for an offence punishable under Section 326 r/w 34 IPC. Accused no.2 and 4 are sentenced to undergo simple imprisonment for a period of 6 months and pay fine of Rs.10,000/- each, in default, to undergo simple imprisonment for a period of 3 months for an offence punishable under Section 324 r/w 34 IPC. Out of the fine amount, a sum of Rs.20,000/- each shall be paid as compensation to PW.7-Jagannatha and PW.8-Puttaraju. The bail bond executed by accused no.5 stands cancelled. The period of detention undergone by accused no.1 to 4 during trial is given set off as provided under Section 428 Cr.P.C.