Judgment :- (This Criminal Appeal is filed under Section 374(2) Cr.P.C by the advocate for the appellants against the judgemnt dated 31.08.2007 & 3.10.2007 passed by the II Addl. Sessions Judge, Belgaum in S.C.No.275/2006 -convicting the appellants/accused for the offence punishable under Sections 143, 147, 148, 307, 504 read with Section 149 of IPC and sentencing the accused Nos.1 to 6 to undergo R.I. for a period of 2 (two) years for an offence punishable under Section 148 of IPC. and further sentencing the accused Nos.1 to 6 to undergo R.I. For a period of two years for an offence punishable under Section 504 of IPC. and further sentencing the accused Nos.1, 2 and 5 to undergo R.I. for a period of (4) four years and to pay a fine of Rs.5,000/-each for an offence punishable under Section 307 of IPC and in default to pay fine amount, each one of them shall undergo further R.I. for a period of (1) one more year and further sentencing the accused Nos.3, 4 and 6 to undergo R.I. For a period of (5) five years and to pay fine of rs.10,000/- each for an offence punishable under Section 307 of IPC and in default to pay fine amount, each one of them shall undergo further R.I. for a period of (2) two more years and all the substantive sentences shall run concurrently.) 1. This appeal is filed challenging the Judgment dated 31.08.2007 passed by the Special Sessions Judge, Belgaum in SC No.275/2006 convicting the appellants for the offences under Section 148, 504, 307 of IPC and sentencing appellant Nos.1 to 6 to undergo rigorous imprisonment for two years for the offence under Section 148 of IPC and further sentencing them to undergo rigorous imprisonment for two years for the offence under Section 504 of IPC and further sentencing the appellant Nos.1, 2 and 5 to undergo rigorous imprisonment for four years and to pay fine of Rs.5,000/- each for the offence under Section 307 of IPC and sentencing the appellant Nos.3, 4 and 6 to suffer rigorous imprisonment for five years and to pay fine of Rs.10,000/-each for the offence under Section 307 of IPC with default clauses. 2. 2. It is the case of the prosecution that, on 04.11.2005, the complainant Nagappa Yallappa Halemani was going to the house of his friend by name Raju Kallappa Karabannavar who had invited him to attend the pooja in his house. At about 9.00 p.m., when he was so going in front of his friend's house, accused No.4 Basappa Kallappa Halemani came over him holding a club and by abusing him regarding the use of pathway, passing through his land, assaulted him twice with the club on the hind side of his head, due to the said assault, the complainant fell down crying with pain. At that time, accused No.3 Irappa Kallappa Halemani came there by holding Jambiya and tried to assault him on his head. But the complainant made an attempt to escape and during the said process, the blow from Jambiya fell on his forehead resulting in bleeding injury. In the mean while, accused No.1 Kallappa Basappa Halemani came over there and assaulted him by means of the stone on his left cheek and by that time, accused No.6 Gangavva Kallappa Halemani tried to assault him with a sickle at which time, the complainant tried to rescue himself by holding the sickle by the right hand and during the process suffered cut injuries on his right hand fingers and accused No.2 Mallavva Kalalappa Halemani came over and picked up stone and assaulted him on left hand wrist. Accused No.6 Fakirawwa Basappa Halemani and juvenile accused Shantavva Kallappa Halemani fisted him on his stomach and because of the said assault, he started screaming. By that time, Raju Karabannavar and Basavaraj Karabannavar came to rescue him from the hands of the accused. Thereafter, the injured was shifted by the inmates of his house. Police came and recorded the statement of the complainant in the hospital, where he was sent by police for treatment. Thereafter, the complaint came to be filed. Based on the statement of injured, the offence under Sections 143, 147, 148. 307 r/w Sec 149 of IPC was registered in Crime No.141/2005 of Hirebagewadi police station and investigation was commenced. 3. Accused Nos.2, 5 and 6 were arrested on 06.11.2005 and they were produced before the Court. Accused Nos.1, 3 and 4 obtained the order from the Sessions Court and surrendered before the Court on 28.11.2005 and on the same day, all the accused have been released on bail. 3. Accused Nos.2, 5 and 6 were arrested on 06.11.2005 and they were produced before the Court. Accused Nos.1, 3 and 4 obtained the order from the Sessions Court and surrendered before the Court on 28.11.2005 and on the same day, all the accused have been released on bail. 4. The prosecution in order to prove the case has examined in all 14 witnesses and got marked documents Exs.P1 to 18 and produced MOs.1 to 8. The defence of the accused was one of total denial. However, by the impugned judgment, the learned Sessions Judge was pleased to convict the accused and sentenced all of them as hereinabove mentioned. 5. Accused No.7-Shanthavva Kallappa Halemani being a juvenile has been tried separately in the Juvenile Court. 6. The contents of the complaint given by Nagappa Yallappa Halemani is reiterated as above. In the Court he has stated the contents of the complaint. He has stated that, there was some dispute regarding the pathway and inorder to go to his land, he has to pass through the field belonging to the accused and in order to go to the lands of accused, they have to go through his land. Therefore, in respect of this path way, there was a frequent quarrel between the complainant and the accused. On 04.11.2005, at about 9.00 p.m., when he was coming to the house of one Raju Kallappa Karabannavar, he was passing in front of house of accused. At that time, accused No.4 came on his way with a club in his hand and started quarreling regarding the pathway. Accused No.4 immediately assaulted with club on the back portion of his head. He fell down and when he was screaming out with pain, Accused No.3 Irappa Kallappa Halemani came and questioned him why he was screaming and by taking Jambiya in his hand attempted to assault on his head. But the blow fell on the forehead. Almost simultaneously, 1st accused Kallappa Basappa Halemani brought fist size stone and assaulted him on his head. Accused No.6 -Gangavva Kallappa Halamani assaulted him by means of sickle and inorder to ward off of the assault, he raised his right hand and the assault of accused No.6 Gangavva Kallappa Halamani fell on his right hand finger and he sustained injures on his right thumb and forefinger. Accused No.6 -Gangavva Kallappa Halamani assaulted him by means of sickle and inorder to ward off of the assault, he raised his right hand and the assault of accused No.6 Gangavva Kallappa Halamani fell on his right hand finger and he sustained injures on his right thumb and forefinger. At that time, accused No.1 Kallappa Basappa Halemani assaulted on his left hand by means of stone and he sustained fracture of left hand finger. After that, accused No.5 Fakiravva Basappa Halemani and accused No.7 Shantha-Juvenile fisted him on his body. He sustained injuries on his head, hands and legs and blood was oozing out. The blood had fallen on the ground also. Thereafter, PW.3-Peeraji Nagappa Kambar, PW.4-Basaningappa Shivappa Parvati and PW.5 Raju Kallappa Karabannavar came near and extricated the fight. PW.6 came over and brought his mother and brother to the scene of occurrence and thereafter, they went to Hirebagewadi police station. Police sent him to the hospital of Belgaum and he was admitted as inpatient from 5th of November to 22nd of November. Police had come to the hospital and recorded the statement. He has identified Ex.P1, his statement made by him before the police in the hospital. He has also identified the weapons Mos.1 to 2 as the one used by accused at the time of assault. He has also identified sickle-MO.7 used by accused and so also the Jambiya MO.6. MO.8 is a club used by accused. 7. In the cross-examination, it is elicited that, he was in the army for 18 years and had retired about four years back. The portion of the land between that of his father and of the first accused has been taken back long ago and he is not aware of the fact that there was no quarrel about the land and the field till he returned from the military. It is further elicited that, one field belongs to the accused and one side field belongs to Nagappa Yallappa Halemani. Thereafter the next field belongs to him which is by the side of the said field. It is admitted by him that, if he has to go to his field, he has to cross the road of first accused and thereafter, cross the field of Lingapppa. Even if first accused has to go to his field, he has to cross the land of Ningappa. It is admitted by him that, if he has to go to his field, he has to cross the road of first accused and thereafter, cross the field of Lingapppa. Even if first accused has to go to his field, he has to cross the land of Ningappa. He has further admitted that, there was no quarrel between him and Lingappa or first accused and that the 1st accused has never made any dispute about the said land. It is suggested to PW1 that a false case is filed and that no incident has happened as alleged and since, he is having friendship with the Police, therefore a false case has been filed. But the said suggestion has been denied by PW1. However, PW1 has admitted that there is a case pending between himself and the accused in respect of the pathway. 8. PW2-Basavaraj Ningappa Karabannavar, has not supported the case of the prosecution. 9. PW3-Peeraji Nagappa Kambar is a neighbor. He has narrated the incident as follows: There was a quarrel between accused and PW1 on the date of incident at about 9:00 p.m. The accused No.4- Basappa assaulted Nagappa by means of a club, Nagappa sustained bleeding injuries and he fell down. Accused No.3-Irappa assaulted PW1 on his chest by means of Jambiya. Accused No.6-Gangavva assaulted PW1 by means of a sickle. PW1 sustained injuries on his hand, accused No.1 assaulted by means of a stone on the head of PW1 and the other accused assaulted by means of hands on the stomach. Thereafter, PW2 went and secured the mother and brother of PW1. 10. PW4-Basaningapa Shivappa Parvati has also turned hostile to the case of the prosecution, so also PW5- Raju Kallappa Karabannavar. 11. PW6-Basavaraj Yallappa Halemani is the brother of PW1, who has stated that on the arrival of PW2, he went near the scene of occurrence and found the injured-PW1. He himself and his mother shifted the injured to the hospital. 12. PW7-Dr.Pradeep Govind Gholaba is the Medical Officer at KLE Hospital, Belgaum. He has stated that the injured-Nagappa had sustained the following injuries: (1) Clean sharp incised wound 4 x 2 cm on lt. Frontal scalp above left eyebrow, below hairline-bleeding. (2) Clean cut incised wound 10 x 2 cm over forehead in centre between & just above both eyebrows horizontal. PW7-Dr.Pradeep Govind Gholaba is the Medical Officer at KLE Hospital, Belgaum. He has stated that the injured-Nagappa had sustained the following injuries: (1) Clean sharp incised wound 4 x 2 cm on lt. Frontal scalp above left eyebrow, below hairline-bleeding. (2) Clean cut incised wound 10 x 2 cm over forehead in centre between & just above both eyebrows horizontal. (3) CLW 2 x 1 cm over the bridge of nose bone deed bleeding. (4) Clean cut incised wound on occipital scalp on lt. Side 8 x 1 cm bone deep with suspected fracture skull. (5) Clean cut sharp incised wound on lt. parieto occipital scalp bone deep 6 x 1 cm. (6) Laceration on medial aspect of rt. great toe. (7) Multiple abrasion over both shins. (8) Tenderness, swelling over proximal phalanx of it, ring finger with abnormal moment suggestive of fracture. He has further stated that he had issued a wound certificate as per Ex.P6, X-ray taken on the body of PW1, which is marked as per Ex.P7, CT Scan is marked as Ex.P8. He has examined the weapons and has given his opinion as per Ex.P9. 13. PW8-Shivaputrappa Basavanneppa Karadiguddi and PW9-Maruti Kallappa have not supported the case of the prosecution. 14. PW10-Venkanna Raosab Ganjal is the signatory to Ex.P11, which is a panchanama, in which MO3 to MO5-the clothes of the injured were seized. 15. PW11-Shivajat Yallappa Gajapati is a witness to Ex.P12, in which the Police have seized the Jambiya, sickle and club at the instance of accused No.1. He has signed Ex.P12 and identified MO6 to MO8, which are the weapons used by accused. 16. PW12-Danappa Siddappa Hugar is the Junior Engineer of KPTCL, who has stated that on the night of the incident, there was current supply to the area. 17. He has signed Ex.P12 and identified MO6 to MO8, which are the weapons used by accused. 16. PW12-Danappa Siddappa Hugar is the Junior Engineer of KPTCL, who has stated that on the night of the incident, there was current supply to the area. 17. PW13-Maruti Bhimappa Chinchewadi is the ASI, who has recorded the complaint in the hospital and thereafter registered a case in Crime No.142/2005 for the offences punishable under Sections 143, 147, 148, 307 and 504 read with Section 149 of IPC and transmitted the FIR to the Court; recorded the statement of witnesses; visited the scene of occurrence; drew the panchanama of the scene of occurrence as per Ex.P10; seized two stones as per MO1 and MO2; prepared a rough sketch of the scene of occurrence as per Ex.P15; arrested the accused Nos.1, 2 and 3 on 06.11.2005 and produced them before the Investigating Officer. 18. PW14-Rajashekhar Basavanneppa Metri is the PSI of Hirebagewadi Police Station, who has conducted further investigation and after the receipt of the medical documents submitted the charge sheet before the Court. On the basis of the above evidence the learned Sessions Judge has convicted the appellants and sentenced them as aforesaid. 19. Heard Smt. Vidyashankar Dalwai and Sri. Srinand A.Pachchapure the learned advocates appearing for the appellants and also Sri. V.M. Banakar, Additional State Public Prosecutor appearing for the respondent-State. 20. The learned counsel appearing for the appellants submit that in this case there are only two witnesses, who speak about the incident i.e., PW1 and PW3. However, PW3 does not speak about the incident as spoken by PW1. While PW1 says that accused No.3 assaulted with Jambiya on the head of PW1. PW3 says that accused No.3 assaulted with Jambiya on the chest and there is a discrepancy regarding the overt acts of accused Nos.1, 2 and 5. PW3 says that the accused No.6 assaulted PW1 by means of a sickle. Therefore there is no corroboration to the evidence of PW1 and hence, he submits that the learned Sessions Judge has erroneously convicted the accused for the offences mentioned above. It is his further submission that except mentioning in the complaint that the accused attempted to kill him, there is no other evidence to indicate that the intention of the accused was attempt to kill the complainant/PW1. It is his further submission that except mentioning in the complaint that the accused attempted to kill him, there is no other evidence to indicate that the intention of the accused was attempt to kill the complainant/PW1. On the other hand as spoken by PW3, quarrel took place between accused and the complainant regarding the pathway and thereafter, the accused No.4 assaulted PW1 by means of club, thereafter the other accused came and assaulted PW1. Therefore, an intention to commit murder or an attempt to commit murder is not clearly established and therefore, the accused have been wrongly convicted by the learned Sessions Judge. He therefore, submits that in view of the absence of any other independent witnesses, the accused may be acquitted by allowing this appeal. 21. On the other hand, the learned additional State Public Prosecutor submits that the evidence of PW1 coupled with the complaint and the evidence of Doctor-PW7 clearly establishes that the accused have attempted to commit the murder of PW1 and therefore, the learned Sessions Judge has rightly convicted the accused. 22. On a careful consideration of the evidence on record, more particularly the complaint and the evidence of PW1, the participation of accused No.4 in the Crime having assaulted PW1 with sticks is proved. PW3 also corroborates this version of evidence of PW1. Therefore, I am of the opinion that the prosecution has proved that the accused No.4 has assaulted on PW1 by means of club on the date of incident. Similarly, so far as the participation of accused No.6-Gangavva assaulting PW1 with sickle has been spoken in the complaint of PW1, in the evidence of PW1 and also in the evidence of PW3. Therefore, even the presence and the participation of accused No.6 is proved by the prosecution through the witnesses. PW3 is a villager and his presence at the scene of occurrence is natural. Therefore, the evidence of PW3 at the scene of occurrence cannot be doubted, so also his version regarding the assault by accused Nos.4 and 6 on PW1. Further so far as the overt act of other accused are concerned, there is no corroboration between the evidence of PW1 and PW3 on one side and the complaint of PW1 on the other side. Further so far as the overt act of other accused are concerned, there is no corroboration between the evidence of PW1 and PW3 on one side and the complaint of PW1 on the other side. Therefore, I am of the considered opinion that the accused Nos.1, 2, 3 and 5 are entitled for the benefit of doubt, as the prosecution has not established their case beyond reasonable doubt. 23. So far as the nature of offence committed by accused Nos.4 and 6 are concerned, having regard to the fact that there were six people on the side of the accused, whereas the PW1 was alone, none of them have assaulted for more than one time, which indicates that there was absolutely no intention to commit the murder of PW1. If they wanted, they would have done to death the complainant-PW1 there itself. Further, the incident started with the quarrel regarding pathway. It is not as if the accused wanted to kill the complainant, but while going in front of their house, the accused No.4 picked up a quarrel and hence, the prosecution has not established the case for the offence under Section 307 of IPC against accused No.4 or accused No.6. But it could be seen from the medical evidence and the wound certificate that PW1 has sustained two fractures and six other injuries including the injuries on the right hand finger. Under the circumstances, I am of the opinion that the prosecution has proved that the accused have caused grievous injuries to PW1 by means of a stick and sickle on 04.11.2005 at 9:00 p.m. The act of the accused attracts an offence under Section 326 of IPC and therefore, I am of the considered opinion that accused Nos.4 and 6 are guilty of an offence under Section 326 of IPC. 24. So far as the offence under Section 148 of IPC is concerned, there is no evidence to show that all six persons came together by forming an unlawful assembly. The incident has happened in front of the house of accused and all the accused are related to each other. Therefore, when the accused No.4 started quarrel with PW1, necessarily other accused would have come running to the place where the quarrel took place, which does not indicate at the formation of an unlawful assembly or rioting, which attracts an offence under Section 148 of IPC. Therefore, when the accused No.4 started quarrel with PW1, necessarily other accused would have come running to the place where the quarrel took place, which does not indicate at the formation of an unlawful assembly or rioting, which attracts an offence under Section 148 of IPC. Hence, I am of the opinion that the prosecution has not proved the case against any of the accused for having committed the offence under Section 148 of IPC. 25. So far as the offence under Section 504 of IPC is concerned, except the evidence of PW1, there is no other material to show that they have committed an act of breach of peace. The wording found in the complaint of PW1 indicates that there was quarrel between the two villagers and not any other act, which could attract an offence under Section 504 of IPC. Further there is no independent corroboration for the offence under Section 504 of IPC. Hence, I am of the opinion that all the accused are entitled for an order of acquittal insofar as the offence under Section 504 of IPC is concerned. In order to attract an offence under Section 504 of IPC, the insult should be intentional and it should be with a purpose of giving provocation to any person intending or knowing it to be likely that such provocation will cause harm or would tend to break the public peace or to commit any other offence. In this case, the quarrel regarding pathway was already existing between PW1 and the accused and that there was a civil case pending. Hence, I am of the considered opinion that an offence under Section 504 of IPC is not at all attracted particularly at a time of the offence i.e., at 9:00 p.m. when no public were alleged to be present at the scene of occurrence. 26. From what is discussed above, it is clear that the prosecution has been successful in proving the offence under Section 326 of IPC as against the accused Nos.4 and 6 and they are liable to be convicted for the said offence. On the other hand, all other accused are entitled for an order of acquittal. 27. So far as the sentence is concerned, it is seen that the accused Nos.4 and 6 were in custody from the date of judgment on 03.10.2007 till 09.04.2008 i.e., for a period of six months. On the other hand, all other accused are entitled for an order of acquittal. 27. So far as the sentence is concerned, it is seen that the accused Nos.4 and 6 were in custody from the date of judgment on 03.10.2007 till 09.04.2008 i.e., for a period of six months. Having regard to the fact that the quarrel started regarding the pathway and that they are close relatives to each other and further fact that PW1 has fully recovered, the interest of justice would be served, if they are sentenced to undergo imprisonment for the period already undergone by them and if they are further directed to pay a fine. 28. In the result, the following order is passed: ORDER (i) The appeal filed by the appellants is hereby partly allowed; (ii) The order of conviction passed against the appellant Nos.1 to 6 for the offences under Sections 148, 504 and 307 of IPC is hereby set aside and they are acquitted of the said offences; (iii) The accused Nos.4 and 6 are convicted for the offence under Section 326 of IPC and they are sentenced to undergo imprisonment for the period already undergone and accused No.4 is directed to pay fine of Rs.10,000/-in default he is directed to suffer S.I. for six months and accused No.6 is directed to pay fine of Rs.5,000/- in default she is directed to suffer S.I. for three months; (iv) The appellant Nos.4 and 6 are given six weeks time to deposit the fine amount if already not deposited; (v) The bail bonds of the other accused are discharged. The fine, if any, paid by them shall be refunded. (vi) The entire fine of Rs.15,000/- when recovered shall be paid to injured-PW1.