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2014 DIGILAW 105 (KAR)

Mallikarjuna Reddy v. State of Karnataka

2014-02-03

K.N.PHANEENDRA

body2014
JUDGMENT 1. The State by PSi, Gandhinagar Police Station, Bellary laid a charge sheet against the appellants/accused for the offences punishable under Sections 324, 504, 506, 307 read with Section 34 of IPC. After committal proceedings, a case in SC No.69/2004 was registered on the file of the Principal Sessions Judge, Bellary. 2. The brief facts on which basis the charge sheet was filed are: The complainant - Mr. Raj Mohan Reddy (PW-2) lodged a report stating that he was running a Tea Powder shop in Royal Complex, Bellary. The accused and the complainant are related to each other. The first accused has taken a loan of Rs.2 lakhs from the complainant. In spite of repeated requests and demands, the first accused did not re-pay the said loan amount and he was absconding for more than a year prior to the date of the incident. It is also alleged that the accused No.1 has also taken loan from PW-5 - Rameshwar Reddy. In order to demand the accused for repayment of the said loan on the date of the incident i.e., on 11.12.2013, PW-2 and PW-5 went to the shop of the accused persons situated in Royal complex, Bellary. In fact, the accused persons started abusing the PW-2 and PW-5, with filthy language, assaulted PW.2 with a knife on the eye and chest, and PW.5 on his back, caused bleeding injuries, and also threatened them with dire consequences of killing them. PW.2 sustained severe injuries on his left eye and on the chest. PW.5 sustained injuries on the back portion. They took treatment in VIMS Hospital and thereafter, lodged a complaint against the accused persons. 3. The learned Sessions Judge framed charges against the accused persons for the offence punishable under Sections 326, 307, 504 and 506 r/w. Section 34 of IPC. 4. The prosecution in order to prove the guilt of the accused persons, examined PWs. 1 to 14 and got marked Exs.P1 to P7 and MOs. 1 to 5. The accused persons were also examined by the Court u/s.313 Cr.P.C. and their statements were recorded. The accused did not choose to lead evidence on their side but by way of confronting some documents, the accused persons have got marked Exhibits D7 and D8. 1 to 14 and got marked Exs.P1 to P7 and MOs. 1 to 5. The accused persons were also examined by the Court u/s.313 Cr.P.C. and their statements were recorded. The accused did not choose to lead evidence on their side but by way of confronting some documents, the accused persons have got marked Exhibits D7 and D8. After arguments and detailed evaluation of the evidence on record, the Trial Court had concluded that the prosecution has proved the case against the accused persons beyond reasonable doubt and convicted the A1 and A2 for the offence punishable under Section 307 of IPC and also convicted A1, acquitted A2 for the offence punishable under Section 506 of IPC. However, acquitted the accused persons for the offence punishable under Section 504 of IPC. The said judgment and sentence is called in question before this Court. 5. The appellants challenged the above said judgment and sentence on the following grounds: (1) The Trial Court has failed to consider the counter plea of the accuse, evidence in the counter case and approached the entire evidence in a confused manner. (2) The court below drawn inferences on the basis of the evidence of PWs.2 and 5. However, the Trial Court ought to have held that PWs.2 and 5 were the aggressors who are responsible for causing injuries to the appellants as well as the wife of accused No. 1. (3) The court below failed to note the importance of cross examination of PWs 2 and 5 and their associates and the court below has not properly under stood the case of the accused persons and the complainant and passed the erroneous judgment. 6. I have heard the arguments of the learned Counsel for the appellants as well as the learned Addl. SPP appearing for the State. 7. The point that would arise for consideration before this court is: (1) Whether the Trial Court has committed any serious error either in law or in appreciating the facts and circumstances of the case and in convicting the appellants and sentencing them accordingly? (2) What order? 8. SPP appearing for the State. 7. The point that would arise for consideration before this court is: (1) Whether the Trial Court has committed any serious error either in law or in appreciating the facts and circumstances of the case and in convicting the appellants and sentencing them accordingly? (2) What order? 8. My answer to the above Point No.1 is partly in the 'Affirmative' for the following reasons: The learned Counsel for the appellants strenuously contended before this court that the Trial Court has mainly concentrated on the point -"Whether the accused persons have proved their right of private defence as taken up by them during the course of cross examination but not bestowed its attention to the proof given by the prosecution to prove the guilt of the accused persons. The Trial Court has also not observed that there was no mens rea on the part of the accused persons to commit any offence against PWs.2 and 5 and it was due to a sudden and grave provocation, the incident must have happened. Therefore, the offence only falls under Section 324 of IPC and not under Section 307 of IPC. 9. It is further contended by the learned Counsel for the appellants that the quarrel took place inside the shop of the accused persons and PWs.2 & 5 came to the spot with weapons like iron rods. Therefore, they were the aggressors who have caused injuries on the accused persons and in turn to protect their property and person, the accused persons have taken action against PWs.2 and 5. There were case and counter case, the investigation has been done by two different Investigating Officers much against to law, these material defects have not, been properly appreciated by the Trial Court. Finally, it is contended that the prosecution has failed to explain the injuries on the accused persons to find out whether the right of private defence has been properly exercised by the accused persons or not. 10. Per contra, the learned Addl. SPP submitted that the evidence of PWs.2, 5 if read in proper perspective clearly discloses that they have explained as to how the incident has happened. He also points out that the accused persons during the course of cross examination also tried to explain as to how the incident has happened according to them. 10. Per contra, the learned Addl. SPP submitted that the evidence of PWs.2, 5 if read in proper perspective clearly discloses that they have explained as to how the incident has happened. He also points out that the accused persons during the course of cross examination also tried to explain as to how the incident has happened according to them. It is a clear case where in the accused persons have admitted that they have assaulted PWs.2 & 5 in order to protect their property and person. Therefore, it is the burden on the accused persons to prove that PWs.2 & 5 are the aggressors, and in order to protect their property and person, they have inflicted reasonable injuries to PWs.2 & 5 which was necessitated at that particular point of time. The doctor PW1 has said that injuries on PW2 was grievous in nature, if he was not treated properly, he would have died. Therefore, the offence was clearly made out u/s.307 of IPC. Hence, he contended that there is no room to interfere with the judgment passed by the Trial Court. 11. The Trial Court in fact in its judgment appreciated the evidence of PWs.2 and 5 coupled with the evidence of PWs.6 to 9 and 11 who are the eyewitnesses to the incident. The Trial Court has also considered the evidence of the doctor to come to the conclusion that the injuries caused by A1 on PW.2 was on the vital part and PW.2 would have died if he was not properly treated at the right point of time. The Trial Court also observed that there was a counter case registered in SC No. 11/2006 and in that, the Sessions Judge while simultaneously disposing of the said case acquitted PWs.2 and 5 who are accused therein holding that the prosecution has not proved its case. It is worth to note here itself that the evidence recorded in that case cannot be read into this case, unless the materials available in favour of the accused persons in that case are brought in to this case by way of legal evidence. The Trial Court after appreciating the cross examination of PWs.2 and 5 considering the suggestions made by the accused persons coupled with the evidence of PWs.6 to 9 and 11 came to the conclusion that the prosecution has proved its case. The Trial Court after appreciating the cross examination of PWs.2 and 5 considering the suggestions made by the accused persons coupled with the evidence of PWs.6 to 9 and 11 came to the conclusion that the prosecution has proved its case. The Trial Court has also considered the effect of Sec.97 to 100 of the IPC with reference to the right of private defence of property and body taken by the accused persons. Now this court has to consider whether the said appreciation of the evidence by the Trial Court is proper and correct. 12. Before adverting to the specific defence taken up by the Appellate Court i.e. right of private defence to protect their property and person, it is just and necessary to look into the evidence on record to come to the conclusion whether the prosecution has proved its case beyond reasonable doubt. 13. PWs.2 and 5 have invariably reiterated as to how the incident has happened on that day. Both of them have specifically stated that when they went to the shop of A1 on the date of the incident at about 5.00 pm. in demand of the loan given to the first accused, A1 abused them as bastard saying that he would settle the claim of the complainant, he took out a knife from the plastic cover and stabbed on left eye of PW.2, due to which he suffered bleeding injuries. A1 also hit on the left chest in the same knife, due to which PW.2 sustained injury on the left chest. At that time, PW.5 came to the rescue of PW2, then the second accused grabbled him so as to enable the first accused to stab PW5 also with the same knife A1 assaulted on the back of PW.5, which caused a bleeding injury. 14. During the course of cross examination of these witnesses the accused persons have suggested that on that particular day, the wife of first accused was also present in the shop of A1 for the purpose of cleaning. It is also suggested that PWs.2 and 5 went to the shop of the accused holding steel rod and iron pipe and threatened the accused persons not to open the shop till the claim of PW.2 is settled. It is also suggested that PWs.2 and 5 went to the shop of the accused holding steel rod and iron pipe and threatened the accused persons not to open the shop till the claim of PW.2 is settled. It is also suggested that PW.2 has first assaulted Al, as well as his wife with the iron rod and PW.2 also assaulted Al with a steel meter tape used for measuring the clothes. It is also suggested that at that time, when wife of the first accused interfered, PW2 pushed her out of the shop, she fell down and sustained injuries. Therefore the accused have assaulted PWs. 2 and 5 (emphasis supplied) 15. PW9 - Channappa, an independent witness has deposed that on that particular day when he was proceeding to Hospital, he observed some galata taking place near the shop of accused persons with PWs.2 and 5 and they were quarreling each other and at that time, A1 came out from his shop with a knife and assaulted PWs.2 and 5. The evidence of PW9 fully corroborates the evidence of PWs.2 and o. In the course of cross examination nothing has been suggested to this person as to how the incident happened as suggested to PWs.2 and 5. It is suggested that this witness was not at all present at that particular point of time and he was deposing falsely before the court. 16. PWs.6 and 8 Madhusudan Reddy and Raghunath Reddy have also supported the evidence of PWs.2 and 5 and nothing has been elicited to discard their evidence which corroborates the evidence of PWs.2 and 5. It is worth to note here that in the course of cross examination, the presence of these witnesses have been admitted. Similarly defence story was suggested to these witnesses that PWs.2 and 5 came to the shop of the accused with iron rods and then actually assaulted Al and the wife of Al. The evidence of PW.7 also Guruswamy corroborate the evidence of PWs.2 and 5 who reiterated the incident, but defence story has not been suggested to this witness but suggested that he was not at all present. Strangely it is suggested that about 20 to 25 persons had gathered at the spot at that particular point of time and virtually accused admitted the presence of this witness. 17. The evidence of PW. 1 Dr. Strangely it is suggested that about 20 to 25 persons had gathered at the spot at that particular point of time and virtually accused admitted the presence of this witness. 17. The evidence of PW. 1 Dr. H.M. Gangaiah shows that he examined PWs.2 and 5 on the date of the incident at about 6.15 pm. He found the fatal injuries on PW2 1. Incised injury 1" x 1 %" seen over the left eyebrow, bleeding was present. 2. Hematoma on the left eye seen. 3. Incised injury 3/4th" size seen over left side of the chest on 10th intercostal space, bleeding seen, patient gets breathlessness in lying posture. 4. The X-ray showed pneumothoraxom on left side. He also stated that on the same day he examined PW.5 and found the following fatal injuries incised wound over lower lumbar region, at mid line, wound was sutured outside. He gave his opinion that injury Nos.2 and 3 on PW.2 were grievous in nature and injury No.1 was simple in nature and injury to PW.5 was also simple in nature. 18. The cross examination portion of the accused was concentrated wherein it is suggested that the injury to PW.2 could also occur if a person carrying steel pipe, if the injured comes in contact with the said pipe with its one end forcibly, it may cause rupture of the eye ball. It was suggested that injury No.3 if not treated at the earliest was not sufficient to cause the death of a person but the doctor has denied these suggestions. There is no explanation by way of any suggestion as to, how the second and third injuries could have been caused. 19. The above evidence on record in my opinion has been properly appreciated by the Trial Court in coming to the conclusion that accused persons have intentional assaulted PWs.2 and 5 and there was no grave and sudden provocation to Al and A2 in order to cause injuries on them. Considering the nature of injuries and the part of the body selected, on which the injuries were caused it is sufficient to construe that whether, A1 and A2 have really intended to kill PW.2 and as well as PW.5. Of course the injury No.3 on the left chest sustained by PW.2 is severe in nature which is a stab wound. Considering the nature of injuries and the part of the body selected, on which the injuries were caused it is sufficient to construe that whether, A1 and A2 have really intended to kill PW.2 and as well as PW.5. Of course the injury No.3 on the left chest sustained by PW.2 is severe in nature which is a stab wound. The said part of the body i.e. left side chest is the vital part of the body chosen by A1 coupled with the threatening and abusive words used by A1 that he would clear off the debt of PW2 and also threatened to kill PW2 and assaulted him clearly goes to show that he had that mind set to assault A1 in order to eliminate him. So far as A2 is concerned, the entire evidence discloses that he never made any attempt to cause any injury to PW2 nor he facilitated A1 to assault PW.2 in such a manner. Though A1 and A2 were present and there is some material to show that the accused Nos. 1 and 2 and PWs.2 and 5 have had verbal altercations each other, in the absence of details of quarrel, it cannot be said that A2 had any knowledge or any pre-meeting with A1 in order to draw any inference about the intention of A1 in stabbing PW2. Therefore, sharing of common intention by A2 in assaulting PW.2 by A1 cannot be conclusively gathered from the above said circumstance so as to draw an inference that A2 has also shared common intention to kill PW.2. In this regard, the Trial Court has committed an error in fastening the guilty responsibility on A2 also in order to hold him guilty for the offence punishable under Section 307 of IPC. However, the intention of A1 need not be prior to PW.2 and PW.5 entering the shop of accused persons. The intention may be in a spur of movement depending upon the decision taken by A1, the conduct of A1 in bringing a knife from inside, stabbing A1 with such a deadly weapon, itself is sufficient to draw an inference that A1 only intended to eliminate PW.2, but such an intention cannot be imposed on A2. 20. So far as the assault on PW.5 is concerned, A2 admittedly grabbled PW.5 to facilitate A1 to assault PW.5 on the back portion. 20. So far as the assault on PW.5 is concerned, A2 admittedly grabbled PW.5 to facilitate A1 to assault PW.5 on the back portion. The nature of injuries sustained by PW.5 as per the evidence of the doctor is simple in nature and the place of the injury found on PW.5 on the back of PW.5 which is not a vital part. Therefore, it cannot be said that A1 and A2 had any intention to kill PW.5 as such otherwise, A1 would have selected a vital part of the body of PW.5 for stabbing. It is not the case of the prosecution that A1 made attempt to stab on the vital part of the body of PW.5 and due to the movements of A1, A2, and PW 5 the blow fell on the back of PW.5. Therefore, it cannot be said that A1 and A2 have committed an offence u/s.307 of IPC sharing common intention so far as PW.2 and PW.5 are concerned. However, they shared common intention to cause simple injury to PW.5. The circumstances and the overt acts of A1 and A2 establish that there was no intention to cause any injury on any vital part of PW.5 so as to attract section 307 of IPC. At the most, the act of A1 and A2 in so far as PW.5 is concerned, attract section 324 of IPC which define the offence as voluntarily causing simple hurt by means of using a weapon. Looking to the above said facts and circumstances of the case, I am of the opinion that the Trial Court has not properly appreciated the above said facts in order to draw an inference of commission of offence u/s.307 of IPC against A1 and A2 in so far as PW.5 and A2 sharing his common intention so far as it relates to PW-2 is concerned. The sentence passed by the Trial Court is also not commensurate with the act of A1 and A2 which I am going to discuss little later. 21. Having come to the conclusion that the Trial Court has properly appreciated the evidence on record to hold that A1 and A2 have assaulted PWs.2 and 5 and I do not find any reasons to totally discard the judgment of the Trial Court in this regard. 22. 21. Having come to the conclusion that the Trial Court has properly appreciated the evidence on record to hold that A1 and A2 have assaulted PWs.2 and 5 and I do not find any reasons to totally discard the judgment of the Trial Court in this regard. 22. The main trump-card of the accused persons in this case is that they have exercised their right of private defense to protect their body and property, the learned Counsel for the accused argued that this aspect has not been properly appreciated by the Trial Court. 23. Now, let me consider the contention of the accused in this regard. The right of private defense of body and property are enumerated u/s.97 to 100 of IPC. The Trial Court has considered this aspect at paragraphs 20 to 28 of its judgment. 24. Before dealing with this segment it is just and necessary to have a cursory look at the provisions of I.P.C. which regulate the right of private defense of body and property. As the accused persons have caused grievous injuries and simple injury on P.W.2 and 5 respectively. Section 96, 97, 99, 102 and 105 are the relevant provisions so far as this case is concerned. Sec: 96 : Deal with, when an offence cannot be called as an offence; When things done in private defense: Nothing is an offence which is done in the exercise of the right of private defense. Sec: 97 : This provision broadly days, Every person has a right, subject to the restriction contained in section 99, to defend First: His own body, and the body of any other person, against any offence affecting the human body. Secondly; The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. Section 99 : This provision deal with the rider regarding exercising of the private defense. Secondly; The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. Section 99 : This provision deal with the rider regarding exercising of the private defense. The provision is very specific that, There is no right of private defense against an act which does not reasonably cause the apprehension of danger to body or property, that there is time to have recourse to the protection of the public Authorities and the right of private defense in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defense, Section 102 and 105 : These provisions deal with, Commencement and continuance of the right of private defense of the body and property; The right of private defense of body commences as soon as a reasonable apprehensions of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as suck apprehension of danger to the body continues. Commencement and Continuance of the right of private defense of property; The right of private defense of property commences when a reasonable apprehension of danger to the property commences. The right of private of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief, (only relevant portions of this provision is extracted which are necessary for this case) 25. The Accused have taken up the contention in this case that P.W. 2 and 5, have trespassed in to their shop and assaulted A1, A2 and wife of A1. 26. On reading and understanding of Sections 96 to 105 in general, and above quoted provisions in particular, it is clear that the persons who have taken right of private defense of body or property plea, have to establish the following three important aspects. (i) There was reasonable apprehension of danger to the body or property, from the attempt or threat to commit some offence. (ii) The right has been exercised because of such apprehension of danger existed throughout. (i) There was reasonable apprehension of danger to the body or property, from the attempt or threat to commit some offence. (ii) The right has been exercised because of such apprehension of danger existed throughout. (iii) There was infliction of reasonable injury or injuries on the opposite party which was necessary for the purpose of defense. 25. It should be born in mind that it is entirely a question of fact in the circumstances of a case as to whether there has been existence of right of private defense of body or property. No one can be expected to find any particular pattern of conduct to meet a particular case. The court has to in detail and in a meticulous manner deal with the facts to ascertain whether defense taken has been proved or not. 27. After having briefly adverted to the above provisions, it is just and necessary to bear in mind that the right of private defense of body and property can be established and proved by the accused persons in various ways There is no hard and fast rule as to how and in -what particular manner, they have to prove this defense. Even the right of private defense, plea has not been specifically taken by the accused persons, it becomes the responsibility of the court to ascertain, whether there exists any such defense under the given circumstances. To prove the right of private defense, though the burden is on the accused, the said burden can be discharged by the accused in the following manner: 1. By taking advantage of the evidence and the circumstances brought out by the prosecution, in order to prove the accused persons have exceeded their right of private defense. 2. By means of relying on the cross examination of the prosecution witnesses. 3. By way of elucidating facts u/s.313 statement by the accused persons. 4. By way of leading defense evidence. 28. So far as this case is concerned, the accused persons have invoked the second item and they relied upon the evidence of the prosecution witnesses in order to establish the right of private defense. 29. I feel it is worth to refer some important rulings to consider under what circumstances, the right of private defense is available to the accused persons. In a decision reported in (2007) 15 SOC 241 in the case of Dharam Vs. 29. I feel it is worth to refer some important rulings to consider under what circumstances, the right of private defense is available to the accused persons. In a decision reported in (2007) 15 SOC 241 in the case of Dharam Vs. State of Haryana, wherein the Hon'ble Supreme Court has held that: "the basic principle underlying the doctrine of right of private defense is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property. That being so, the necessary corollary is that, the violence which the citizen defending himself or his property is entitled to use, must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. The court may however; hasten to add that the means and the force, a threatened person adopts at the spur of the movement to ward off the danger and to save himself or his property, cannot be weighed in golden scales. It is neither possible nor prudent to lay down abstract parameters which can be applied to determine as to whether the means and force adopted by the threatened person was proper or not. Answer to such a question depends upon a host of factors like the prevailing circumstances at the spot, his feelings at the relevant time, the confusion and the excitement depending on the stature of assault on him. Nonetheless the exercise of the right of the private defense can never be vindictive or malicious. It would be repugnant to the very concept of private defense." 30. Looking to the above said ruling, it can be said that the right of private defense cannot be used for an aggression or for retaliation. It should only be used only when there was an apprehension to the danger to the body or the property of a person on whom such right exists. Therefore, the party who claims that he had exercised right of private defense, and that there was absolute necessity to act in such a manner in the given circumstances. The necessity must be present, ii should be real, apparent and the same should be preventive in nature. 31. Therefore, the party who claims that he had exercised right of private defense, and that there was absolute necessity to act in such a manner in the given circumstances. The necessity must be present, ii should be real, apparent and the same should be preventive in nature. 31. Before adverting to the facts of this case, it is also to be borne in mind by this court that the burden which rests on the accused to prove his defense is not of the same rigor as that of the burden on the prosecution to prove the charges against the accused persons beyond all reasonable doubt. It is enough for the accused to show, as in a civil case, that the preponderance of probabilities exists in favour of the accused. Despite this position, there may be cases where, though the plea of private defense is not established on a balance of probability, to discharge the burden, yet the totality of facts and circumstances may still to be weighed to ascertain the existence of a reasonable doubt regarding the mens-rea which normally is an essential ingredient of every offence. Therefore, when the plea of right of private defense is taken or not taken specifically the accused need not prove the same beyond reasonable doubt. However, the circumstances should at least probabalise the same. The courts have got responsibility to analyze the factual material produced by the prosecution and as well as the accused in order to ascertain whether there was any right of private defense in existence and it was properly exercised b}^ the accused persons or not in order to exonerate them from the offence. 32. In this background, bearing in mind the above said principles, let me consider the facts of this particular case: The case of the accused persons as I have already narrated while discussing the evidence of the prosecution witnesses is that by way of suggestion, the accused persons undertook the responsibility to prove the existence of right of private defense. Even at the cost of repetition, the evidence of PW.2 in his cross examination, it is clearly suggested that PW.2 assaulted the first accused and his wife with an iron pipe and iron rod. At that time, wife of the first accused interfered. Even at the cost of repetition, the evidence of PW.2 in his cross examination, it is clearly suggested that PW.2 assaulted the first accused and his wife with an iron pipe and iron rod. At that time, wife of the first accused interfered. PW.2 pushed her out of the shop and she fell down, sustained injuries, therefore, the accuse have assaulted PW.2 and PW.5, and these facts were suppressed by PW.2 while narrating the whole incident. But all the suggestions were denied by PW.2. Similar suggestions as I have already quoted have been made to PW.5 and 9 and to some of the other eye witnesses. Therefore, it is clear from the evidence on record that PW.2 and PW.5 on that particular day of the incident went to the shop of the accused. A1 along with his wife were present there and according to the accused, the verbal altercation took place between the parties and thereafter, PWs.2 and 5 have assaulted A1 and A2 and wife of A1 and thereby the accused persons also retaliated and in that context, PWs.2 and 5 sustained injuries and A1 and A2 also sustained injuries. This is the exact defense taken by the accused. Now, the court has to see whether there are any other evidence, other than these mere suggestions to PWs.2, 5 and other witnesses so as to probabalise the defense taken by the accused persons. It is also a settled principle that mere suggestions unless otherwise proved, can't take the place of proof. 33. The evidence of PW.9 throw some light so far as this aspect is concerned which I have already discussed in detail. PW.9 has stated that on that day he went to the shop of accused. The accused persons as well as PW.2 and PW.5 were quarreling with each other in so many words. But, he has not specifically stated as to what are the verbal altercations that had taken place between the parties in order to assess the conduct of the parties, and who was the aggressor etc., As could be seen from his evidence, while verbal altercations taking place, A1 went inside his shop brought the knife assaulted PW.2 on his eye and as well as on his chest and also assaulted PW.5 on his back. This witness never stated that PW.2 and 5 used any abusive or threatening words so as to provoke the Accused. This witness never stated that PW.2 and 5 used any abusive or threatening words so as to provoke the Accused. There is no suggestion to this witness as to who assaulted whom first, whether, A1 and A2 have assaulted PW.2 and 5 and started the quarrel first and assaulted A1 and A2 and thereafter, to protect their property or their person, A1 and A2 have assaulted PW2 and PW.5. The evidence of this witness is not helpful to the accused. The accused persons have relied upon the FIR and counter complaint lodged by them before the police which are marked as Ex.D7 and D8 registered u/s.324, 504, 506 r/w. 34 of IPC in Crime No. 173/2003. The said case was also investigated, charge sheet was filed and tried simultaneously by the Trial Court in SC No. 11/2006 and the accused were acquitted in the said case. The Trial Court has disbelieved the version of the accused persons herein in the said case while acquitting PWs.2 and 5. It is well recognized principle of law that this Ex.D8 which was marked through confrontation to the prosecution witness PW-14 the Investigating Officer in this case. The accused have not made out any effort to prove the contents of this document. The Investigating Officer is not the author of this document but the accused No.1 is the author of this document. In order to prove the contents, the author of the document should have been examined to look into the contents of this document. Mere marking of this document cannot take the place of proof. Even on cursory reading of this document, the accused No. 1 who is the author of this document has not at all stated what are the injuries sustained by him and his wife and as well as A2 except stating that they sustained some bleeding injury. In support of this, the accused persons have not produced any documentary evidence though available with them perhaps marked in the counter case. They have not produced the wound certificate and any document to show regarding the treatment taken by them in any Hospital. Even during the course of cross examination, nothing has been elicited so far as the specific and particular injuries sustained by the accused persons. 34. They have not produced the wound certificate and any document to show regarding the treatment taken by them in any Hospital. Even during the course of cross examination, nothing has been elicited so far as the specific and particular injuries sustained by the accused persons. 34. It is important to note here, the statement of the accused recorded u/s.313 of Cr.P.C. by the learned Sessions Judge, the accused persons have denied the entire case of the prosecution, but at question No.83 and 84, the learned Sessions Judge asked the accused whether the accused persons have anything more to say and whether they have got any defense evidence, both the accused have stated that they have not committed any offence and they have no defense evidence. The accused persons never explained as to how the incident happened and whether PW.2 and PW.5 were the aggressors, they started quarrel, assaulted A1 and A2 and in order to protect their property and person Al and A2 assaulted PWs.2 and in order to pros. The Investigating Officers in both the cases are different. The treated doctors or the injured persons are also different. The accused have not taken any pains to examine the Investigating Officer of their case, in this ease to elucidate the factual materials involved in the counter case. They have also not taken care to examine the doctor who treated them by producing the injury certificate to establish actually during the quarrel the A1 and A2 have suffered any injuries as such, and thereby they have exercised their right of private defense. In the absence of these material things, only on the basis of the suggestions made to PWs.2 and 5 and some of the eye witnesses, this court cannot draw any inference that the accused persons had any occasion to exercise their right of private defense of property and person. The right of private defense of property arises only if there was any apprehension of damage or danger to the person and property of the accused persons. 35. Here in this case, the allegations against PWs.2 and 5 is only to the effect that they tried to prevent the accused persons from opening the door of their shop. Bat, the door was actually opened. The evidence disclose, incident had taken place in the shop itself. 35. Here in this case, the allegations against PWs.2 and 5 is only to the effect that they tried to prevent the accused persons from opening the door of their shop. Bat, the door was actually opened. The evidence disclose, incident had taken place in the shop itself. Therefore, at any stretch of imagination it cannot be construed that there was any apprehension of danger to the property and person of accused persons in order to exercise their right of private defense. 36. The right of private defense of property only arises when a person unlawfully enters into the property of another. Trespass can be distinguished in two ways. The persons with an ulterior motive to commit an offence or with an ulterior motive to cause any damage or danger to the person and property of another, it can be said that they have committed trespass. Secondly, if those persons enters the property of another lawfully, but thereafter they commit any offence in the property, then also their entry into the property itself becomes illegal which amounts trespass. In this particular case, it is not proved by the accused that PWs.2 and 5 went to the shop of the accused armed with any weapons. But after going there, PWs.2 and 5 alleged to have assaulted the accused which fact has also not been established before this Court. The evidence of PWs.2 and 5 unequivocally show that they went to the shop of the accused persons to demand the loan advanced to the accused No. 1. Therefore, it cannot be said that their intention of going to the shop of accused in any manner an offence. Therefore, ii can be inferred from the circumstances that PW.2 and 5 trespassed into the property of the accused persons. 37. Before parting with this particular segment of the judgment, it is also worth to refer the evidence of the Investigating Officer - PW.14. As I have said, this man has not investigated the counter case of the accused persons. In the course of cross examination, suggestions have been made to the effect that the entire defense of the accused came to the knowledge of this Investigating Officer during the course of investigation of this case, and in spite of that, he has suppressed the said evidence in this particular case. In the course of cross examination, suggestions have been made to the effect that the entire defense of the accused came to the knowledge of this Investigating Officer during the course of investigation of this case, and in spite of that, he has suppressed the said evidence in this particular case. But those suggestions have been denied, on the other hand, the accused have not taken pains to examine the Investigating Officer of their case as a defense witness who could definitely bring some light in this case in the absence of such material, it cannot be inferred that the accused persons have established that they have exercised their right of private defense and there was any necessity to do the same. 38. The learned Counsel for the accused raised two important points i.e. to say, the Investigating Officer who investigates the case, also should investigate the counter case and he should bring the entire gamut of the cases to the knowledge of the Court so as to enable the Court to assess the materials on record to find out whether there was any free fight between the parties, who was the aggressor, who sustained injuries and what type of injuries etc., If that is not done, that itself is sufficient to acquit the accused. 39. In this regard the learned Counsel for the appellants relied upon the decision of this Court reported in ILR 2010 KAR 1719 [Abdul Majid Sah and Others Vs. State of Karnataka by Ripponpete Police], wherein it was held that: "Case and counter case - Investigation of - Duties of Investigating Officer - Submission of final report - Charge sheets in cases and counter cases -- Procedure to be followed by the Investigating Officer - Prosecutor's duty - Casual practice of submitting final reports without reference to the relevant material of the counter case - Court's observation with regard to necessity of amendment to Karnataka Police Manual - Discussed - HELD: In case and counter, in the final report of both the cases, the Investigating Officer, has to necessarily furnish all the documents pertaining to the other case and should explain the genesis of the incident explaining whether it is a free fight between two persons/ groups and that both are aggressors. The Investigating Officer should state whether one of the persons/groups is an aggressor and that whether the other has caused injuries in exercise of the right of private defense. It is necessary that the Investigating Officer should explain the injuries on the accused. It is well settled principle in a case and a counter the same Investigating Officer should investigate both the cases and should file final report. The final report should necessarily contain the material to enable the prosecutors to lead evidence correctly and for the Judge to understand the incident in a proper legal perspective to understand the guilt of the accused. The different prosecutors should conduct prosecution, the same Judge should try the cases simultaneously and render separate judgments. It is a judicial dicta that the Court should not read/get influenced by the evidence recorded in the other case, unless the said material in the other case is marked as an evidence in the case in question. To say that the Court should not read/ influenced by the evidence recorded in the other case under all circumstances would be a perverse view and rims counter to the logic of holding simultaneous investigation by the same Investigating Officer and trial by the same Judge. Otherwise, it is impossible for the Judge to appreciate the guilt of the accused to find out whether both are aggressors and both are guilty of indulging in free fight or one of there is an aggressor and the other caused injuries on the accused in exercise of right of private defense." 40. Admittedly, this case and the counter case are not investigated by a common Investigating Officer. The above said guidelines of this Court are to be taken note of, to find out whether the investigation is fair and un-influenced. It is also seen in the above case that the Court has observed at paragraph 30 which is necessary in my opinion to be reproduced: "The I.O. does not explain the injuries on the A2 and A8. It is the duty on the part of the prosecution to explain the injuries on the accused. The A2 and A5 have produced their wound certificates and copy of the private complaints in their defense. The I.O. has not produced the final report in Crime No.91/2001 to explain the genesis of the incident and to show which party is an aggressor. The A2 and A5 have produced their wound certificates and copy of the private complaints in their defense. The I.O. has not produced the final report in Crime No.91/2001 to explain the genesis of the incident and to show which party is an aggressor. In the absence of complete material relating to incident, it will be difficult for the Court to adjudge the guilt of the accused." 41. In the said case, it is evident that A2 and A8 have produced the wound certificates before the Court showing that they sustained injuries. In spite of production of the injury certificate and also the non production of the final report of the counter case and suppressing the genesis, the court has confirmed the conviction even in so far as A2 and A8 are concerned in the said case as the case was otherwise proved beyond reasonable doubt. It is also observed in the above cited case that it is the judicial dicta that the court should not read and get influenced by the evidence recorded in the other case unless the said material in the other case is marked as evidence in the case in question. That means to say the evidence recorded in the other case can be looked into if the said materials are brought legally in the case on hand. That has not been done in this particular case. 42. The learned Counsel for the appellants also drawn my attention to another decision reported in AIR 2003 SC 4039 in the case of State of Madhya Pradesh Vs. Mishrilal (dead) and others. At Head note C, the Hon'ble Apex court has held as follows: "HEADNOTE C: Injuries sustained by one of the accused were dangerous to life - Prosecution witnesses consist of interested and inimical witnesses - Their evidential value does not inspire confidence and it cannot be accepted on its face value and relied upon - In circumstances acquittal of accused not interfered with." It is also worth to refer two more decision in this regard. AIR 1976 S.C. 2263 Lakshmi Singh Vs State of Bihar, AIR 2003 S.C. 3204 , Laxman Singh Vs Poonam Singh. In the above said two decisions Hon'ble apex court observed that, 'Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. AIR 1976 S.C. 2263 Lakshmi Singh Vs State of Bihar, AIR 2003 S.C. 3204 , Laxman Singh Vs Poonam Singh. In the above said two decisions Hon'ble apex court observed that, 'Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent, and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of omission on the part of the prosecution to explain the injuries. 43. By relying upon above quoted first decision, ii is argued that, the prosecution if failed to explain the injuries sustained by the accused, the evidentiary value of the prosecution witnesses does not inspire confidence and it cannot be accepted on its face value and relied upon. 44. On meaningful reading of the above said decisions, the Hon'ble Apex Court cautioned the evidence of the prosecution witnesses should not be accepted on its face value, if the evidence does not inspire confidence then it should not be believed and accused have to be acquitted. But the case is otherwise proved beyond doubt, there is no impediment to rely upon. It is also worth to note here the effect of non-explanation by the prosecution about the injuries on the accused persons. In my opinion, it depends on the facts and circumstances of each case. Normally, if there is any such explanation, it may utmost give scope to argue that the accused had the right of private defense or in general, the prosecution evidence should be rejected. In my opinion the prosecution is not obliged to explain the Injuries on the person of the accused in all cases and in all circumstances. It depends upon the facts and circumstances of each case whether the prosecution case becomes reasonably doubtful for its failure to explain the injuries of the accused. It is for the defense to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain the injuries on the person of the accused. 45. It is for the defense to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain the injuries on the person of the accused. 45. In this case, presence of the injured prosecution witnesses at the spot particularly PWs.2 & 5 cannot be doubted, their evidence cannot be and should not be easily brushed aside out rightly, merely on the ground that such witnesses have not explained the injuries on the accused. Even if there is no explanation of the injuries on the accused that can be ignored by the courts provided the other evidence placed before the court is so strong, cogent and convincing. In this particular case, though the investigating officer has not placed any materials pertaining to the other case, as I have already narrated, there is no suggestions to the witnesses by the accused, about the nature of injuries, gravity of the injuries sustained by the accused, nor any other material is placed before the court to show that the accused have actually sustained any injuries so as to come to the conclusion whether those injuries or overt acts of PWs.2 and 5 if any was sufficient for the accused persons to exercise any of their right of private defense. If no materials are placed, it should be taken that the accused have inflicted the injuries on PWs.2 & 5 by way of retaliation and not by way of exercising any right of private defense. Under the above said circumstances I do not find any strong reason to differ from the opinion expressed by the Trial Court holding that the accused have failed to prove the right of private defense in the manner known to law. On the other hand the evidence of prosecution is so clear, cogent, so independent, disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of omission on the part of the prosecution to explain the injuries. 46. The last part remains for consideration is regarding the sentence passed by the Trial Court. Whether punishment imposed by the trial court commensurate with the gravity of the offence committed by the accused. 46. The last part remains for consideration is regarding the sentence passed by the Trial Court. Whether punishment imposed by the trial court commensurate with the gravity of the offence committed by the accused. There are plethora of guiding factors enunciated by the Apex Court the sum and substance of some of the guidelines are the courts should bear in mind that, Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. Once the guilt is proved beyond reasonable doubt, sentencing process must be stern though it may not be so harsh, with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was adverted to and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. 47. As I have already discussed above, the common intention between A1 and A2 is not established in order to hold that both A1 and A2 shared their common intention in causing severe injuries in so far as PW.2 is concerned considering their overt acts weapon used. But, there is some material to show that A2 has assisted or facilitated A1 to assault PW.5. Therefore, the conviction and sentence passed in so far as A2 u/ s.307 of IPC is not commensurate with the act of A2. On the other hand, it cannot also be said that A1 and A2 had any common intention to kill PW.5 because they only assaulted PW.5 on his back portion not a vital part of the body which resulted in a simple injury. On the other hand, it cannot also be said that A1 and A2 had any common intention to kill PW.5 because they only assaulted PW.5 on his back portion not a vital part of the body which resulted in a simple injury. At the most, it can be said that A1 and A2 committed an offence u/s.324 of IPC and they are liable for punishment under the above said section so far as the injury caused to PW.5 is concerned. When the parties are exchanging verbal altercations, there is no material to show that A2 has spelt anything, therefore the trial Court has rightly acquitted A2 for the offence punishable under Section 506 of IPC which shows that A2 never hurled any threat to PWs.2 & 5. That shows that he might be a passive spectator for some time. Therefore, in my opinion, he is not liable to be convicted for the offence punishable under Section 307 of IPC and he is liable to be convicted for the offence punishable under Section 324 along with Al. under the above circumstances the sentence requires to be modified. 48. In the result, modifying the sentence passed by the Trial Court, the judgment of the Trial Court requires to be confirmed in view of my above said observations. Hence, the following: ORDER The appeal is partly allowed. Consequently, (1)The judgment of conviction and sentence passed by the Trial Court for the offence punishable under Section 307 and 506 of IPC in so far as Al is concerned is hereby confirmed. (2) Al and A2 are convicted for the offence punishable under Section 324 of IPC and sentenced to pay a fine of Rs.2,000/- each and in default to undergo Simple imprisonment for one month. (3) A2 is acquitted for the charge against him u/s.307 of IPC. (4) The substantive sentences and imprisonment imposed on A1 shall run concurrently as ordered by the Trial Court. As the accused No.2 has already undergone three months imprisonment during the investigation, the entire amount of fine deposited by him is directed to be refunded to him. (5) The order passed by the Trial Court with regard to compensation under Section 357 Compensation of Rs. 10,000/- awarded to PW-2 shall be paid out of the fine amount deposited by accused No.1. The order passed by the Trial Court under Section 423 Cr.P.C. is not disturbed.