COMMON JUDGMENT A.V. Ravindra Babu, J. - Challenge in Criminal Appeal No.834 of 2007 is to the judgment, dated 29.06.2007, in Sessions Case No.30 of 2006 on the file of the Court of V Additional Sessions Judge (Fast Track Court), Anantapur (for short, 'the learned Additional Sessions Judge'), whereunder the learned Additional Sessions Judge found the appellants herein, who were the accused Nos.1, 3, 4 and 8 in S.C. No.30 of 2006 along with other accused guilty of the charge under Section 148 of the Indian Penal Code, 1860 (for short, 'the IPC') and charge under Section 304 Part-II IPC R/w.149 IPC, convicted them under Section 235(2) of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C') and, after questioning them about the quantum of sentence, sentenced them to suffer Rigorous Imprisonment for one year each and to pay a fine of Rs.200/- each in default to suffer Simple Imprisonment for one month each for the offence under Section 148 IPC and further sentenced them to suffer Rigorous Imprisonment for seven years each and to pay a fine of Rs.500/- each in default to suffer Simple Imprisonment for two months each for the offence under Section 304 Part-II IPC R/w.149 IPC. 2. Challenge in Criminal Appeal No.807 of 2007 is to the judgment, dated 29.06.2007, in Sessions Case No.30 of 2006 before the learned Additional Sessions Judge, whereunder the learned Additional Sessions Judge found the appellants herein, who were the accused Nos.2, 5, 6, 7 and 10 in S.C. No.30 of 2006, along with other accused guilty of the charge under Section 148 of the IPC and Section 324 R/w.149 IPC for causing injuries to PW.1 and PW.2, as the case may be, sentenced them to suffer Rigorous Imprisonment for one year each and to pay a fine of Rs.200/- each in default to suffer Simple Imprisonment for one month each for the offence under Section 148 IPC and further sentenced them to suffer Rigorous Imprisonment for one year each and to pay a fine of Rs.200/- each in default to suffer Simple Imprisonment for one month each for the offence under Section 324 R/w.149 IPC. 3. The parties to these Criminal Appeals will hereinafter be referred to as described before the trial court, for the sake of convenience. 4. 3. The parties to these Criminal Appeals will hereinafter be referred to as described before the trial court, for the sake of convenience. 4. Sessions Case No.30 of 2006 arose out of the committal order in Preliminary Registration Case (PRC) No.27 of 2005 on the file of the Court of Judicial Magistrate of First Class, Anantapur (for short, 'the learned Magistrate') pertaining to Crime No.40 of 2004 of Bukkarayasamudram Police Station, Anantapur District for the offences under Sections 147, 148, 324, 307 and 302 R/w.149 IPC. 5. The State, represented by the Inspector of Police, Itikalapalli Circle, filed charge sheet against the accused alleging the aforesaid offences. The case of the prosecution, in brief, according to the contents of the charge sheet, is that on 21.03.2004 evening Ugadi festival was being celebrated in K.K. Agraharam village and as a part of celebration there was competition of pulling of big stone pillars by bullocks. When the bullocks of Kapu community were pulling the stone pillar, all heckled at the feats and passed derogatory remarks. LW.1 - Kuruba Kalaguri Pakkirappa took exception for the bad language used against Kapu community. Then, one Surappa and Narappa belonging to Kapu community were assaulted. Thereafter, the matter was subsided. Kaluguri Veera Narappa, who was arrayed as A-11 in the charge sheet, took it as an insult and felt that because of LW.1, he was assaulted and wanted to teach a lesson to him. On 22.03.2004 at about 01:00 p.m. when LW.1 was sitting on a pial by the side of Sri Venkateswara Swamy Temple, A-11 collected A-1 to A-10 and all of them formed themselves into members of an unlawful assembly with the common object of attacking LW.1 and, in pursuance of the said common object, accused armed with sticks, came and dragged LW.1 from the pial and threw him down in front of Sanjamma's house. A-5, A-6 and A-7 hit LW.1 with sticks on his body, due to which he received a bleeding injury on his nose. When the deceased, who was father of LW.1, came and intervened, A-1 who was armed with a big stick hit on the head of the deceased and caused bleeding injury. A-3, A-4 and A-8 also hit the deceased with sticks. When LW.2 - Kanuma Yellappa intervened, A-8, A-9 and A-10 beat him with sticks all over his body. The deceased fell down unconscious. A-3, A-4 and A-8 also hit the deceased with sticks. When LW.2 - Kanuma Yellappa intervened, A-8, A-9 and A-10 beat him with sticks all over his body. The deceased fell down unconscious. Then the accused ran away. LWs.3 to LW.7 namely Kuruba Pedd Pakkirappa, Kuruba Jayamma, Kuruba Nagabhushana, Kuruba Vennuramma and Kuruba Bala Kullayappa, who witnessed the occurrence, rushed to the scene and took the injured to Government General Hospital, Anantapur in an Auto and admitted him in the hospital. On receipt of medical intimation, LW.13 - SI of Police, B.K. Samudram PS, proceeded to the Hospital and recorded the statement of LW.1 - injured and registered it as a case in Crime No.40 of 2004, initially for the offences under Sections 147, 148, 324, 307 R/w.149 IPC and took up investigation. On medical advice, the deceased was shifted to Medical College Hospital, Kurnool where he died at 08:00 p.m. on 22.03.2004 due to injuries. Later, basing on the death intimation, Section of law was altered to 302 IPC and express FIR was issued. LW.10 - Associate Professor, Forensic Medicine Department, Kurnool Medical College, conducted post-mortem examination over the dead body of the deceased and opined that the deceased died due to head injury. On 27.03.2004 at about 08:30 a.m. LW.15 - Inspector of Police of Itikalapalli arrested the all the accused and sent them for remand. Hence the charge sheet. 6. The learned Magistrate, Anantapur took cognizance of the case and numbered it as PRC No.27 of 2005. After appearance of the accused and after compliance of the necessary formalities under Section 207 of the Cr.P.C, the learned Magistrate committed PRC No.27 of 2005 to the Court of Session and thereupon, it was numbered as S.C. No.30 of 2006 and made over to the Court of learned Additional Sessions Judge (FTC), Anantapur for disposal in accordance with law. 7. 7. After appearance of the accused before the learned Additional Sessions Judge (Fast Track Court), Anantapur charge under Section 147 IPC against A-1 to A-8, A-10 and A-11, charge under Section 148 IPC against A-1 to A-8, A-10 and A-11, charge under Section 149 IPC against A-1 to A-8, A-10 and A-11, charge under Sections 302 and 109 IPC against A-11, charge under Section 302 R/w.149 IPC against A-1 to A-8, A-10 and A-11, charge under Section 302 IPC against A-10, charge under Section 307 R/w.149 IPC against A-1 to A-8, A-10 and A-11, charge under Section 324 R/w.149 IPC against A-1 to A-8, A-10 and A-11 and charge under Section 324 R/w.149 IPC against A-1 to A-8, A-10 and A-11 were framed and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried. 8. It is born out from the record that A-9 died during pendency of Sessions Case before the trial Court before framing of charges as such the case against him was abated. 9. The prosecution, in order to establish the guilt against the accused, examined PWs.1 to PW.10 and got marked Exs.P-1 to P-11 and MOs.1 to MO.3. During the course of cross-examination of the prosecution witnesses, Exs.D-1 to D-7 were marked. 10. After closure of the evidence of the prosecution, accused were examined under Section 313 Cr.P.C with reference to the incriminating circumstances appearing in the evidence let in by the prosecution, for which they denied the incriminating circumstances and stated that they have no defence evidence. During the course of 313 Cr.P.C examination, A-10 put up a version that on that day, when he and A-8 were at their house, PW.1 commented that wives of Boya community will fall even for Rs.50/- or Rs.100/- and he and A-8 asked PW.1 about his comment as such he pounced upon them with stones and there was a quarrel and in the meantime, father of PW.1 Buseppa came there, skidded and dashed to the tap. He (A-10) got injuries and went to hospital. 11. No witnesses were examined by the accused. 12. The learned Additional Sessions Judge on hearing both sides and after considering the oral and documentary evidence on record, found the appellants/accused guilty of the offences under Sections 148, 304 (Part-II) and 324 R/w.34 IPC, as the case may be, convicted and sentenced them, as above. 13. 11. No witnesses were examined by the accused. 12. The learned Additional Sessions Judge on hearing both sides and after considering the oral and documentary evidence on record, found the appellants/accused guilty of the offences under Sections 148, 304 (Part-II) and 324 R/w.34 IPC, as the case may be, convicted and sentenced them, as above. 13. There were findings by the learned Additional Sessions Judge that the prosecution did not prove the offence under Section 147 IPC against all the accused and that Section 302 IPC was not proved against A-10 and Section 307 R/w.149 IPC was not proved against A-1 to A-8 and A-10 and Sections 109 and 302 IPC were not proved against A-11 and accordingly acquitted them of the aforesaid charges. 14. Felt aggrieved of the conviction and sentence under Sections 148 and 304 Part-II R/w.149 IPC, the un-successful A-1, A-3, A-4 and A-8 filed Criminal Appeal No.834 of 2007. Felt aggrieved of the conviction and sentence under Section 148 IPC and 324 R/w.34 IPC, the un-successful A-2, A-5, A-6, A-7 and A-10 filed Criminal Appeal No.807 of 2007. 15. While so, during pendency of the Appeals, 2nd appellant (A-3) in Criminal Appeal No.834 of 2007 and the 5th appellant (A-10) in Criminal Appeal No.807 of 2007 died as such the Appeals stand abated against them respectively vide orders of this Court dated 25.04.2023. 16. Now in deciding these Criminal Appeals, in the light of the judgment of the learned Additional Sessions Judge and the contentions advanced during the course of hearing of Appeals, the points that arise for consideration are as follows: 1. Whether A-1, A-2, A-3 (died), A-4, A-5, A-6, A-7 and A-10 (died) formed themselves into an un-lawful assembly and caused rioting with deadly weapons, as alleged by the prosecution? 2. Whether A-1, A-3 (died), A-4 and A-8 acted with common object in causing death of the deceased namely Kuruba Kalaguri Buseppa @ Busenna? 3. Whether A-5, A-6 and A-7 acted with common object in causing simple injuries to PW.1? 4. Whether A-2 and A-10 (died) acted with common object or independently in causing injuries to PW.2 namely Kanuma Yellappa? 5. Whether the judgment in Sessions Case No.30 of 2006, dated 29.06.2007, on the file of the Court of V Additional Sessions Judge (FTC), Anantapur is sustainable under law and facts and whether there are any grounds to interfere with the same? POINTS: 17. 5. Whether the judgment in Sessions Case No.30 of 2006, dated 29.06.2007, on the file of the Court of V Additional Sessions Judge (FTC), Anantapur is sustainable under law and facts and whether there are any grounds to interfere with the same? POINTS: 17. Sri Posani Venkateswarlu, learned Senior Counsel, appearing on behalf of M/s. V. Disha Chowdary, learned counsel for the appellants in both the Appeals, would contend the case of the prosecution is that all the accused formed themselves into an unlawful assembly with an intention to cause death of PW.1 and attacked PW.1 and when the deceased intervened to rescue PW.1, they attacked the deceased and further when PW.2 intervened to rescue PW.1 and the deceased from the attack they caused injuries to him. Though charge under Section 307 IPC was framed in attacking PW.1, PW.2 and the deceased, the learned Additional Sessions Judge did not find favour with the case of prosecution and an order of acquittal was recorded insofar as the charge under Section 307 R/w.149 IPC is concerned. In the statement of PW.1 before Police as well as the evidence of PWs.1, PW.2 and PW.3, specific overt acts were attributed against the respective accused and insofar as the overt acts attributed against A-5, A-6 and A-7 regarding causing injuries to PW.1 and further overt acts against A-3, A-4 and A-8 in attacking the deceased are concerned, those overt acts were not supported by medical evidence. Even with regard to the so called attack on PW.2 is concerned, evidence was not consistent with reference to the wound certificate. The learned Additional Sessions Judge having recorded a finding that the incident was happened at the spur of moment and actually accused had no intention to kill the deceased or there was no premeditation but the intention was only to attack PW.1, ought not to have convicted A-3, A-4 and A-8 with the aid of Section 149 IPC. Absolutely, the overt acts attributed against A-3, A-4 and A-8 in attacking the deceased have no support from the medical evidence. It is un-safe to sustain a conviction basing on such evidence. Absolutely, the overt acts attributed against A-3, A-4 and A-8 in attacking the deceased have no support from the medical evidence. It is un-safe to sustain a conviction basing on such evidence. He would strenuously contend that A-8 and A-10 sustained injuries in the hands of the prosecution witnesses and when they admitted themselves into Government Hospital, Police went there, recorded their statements and registered an FIR but they did not investigate the case properly and they referred the case as 'mistake of fact' which is untenable. The time of offence in the present case and the aforesaid Crime in Crime No.41 of 2004 was at 01:00 p.m. The Investigating Officer instead of deciding as to who were the aggressors, referred the case filed by the accused party as mistake of fact. Prosecution did not explain the injuries on A-8 and A-10. The injuries received by A-8 and A-10 were born out by the record during the course of cross-examination of the Medical Officer. According to the defence of the accused, the prosecution party caused injuries to A-8 and A-10 by indiscriminate hurling of stones. The prosecution suppressed the genesis of occurrence. The manner in which accused were alleged to have attacked has no support from the medical evidence and the prosecution failed to prove the injuries on the person of A-8 and A-10. Though the incident in question was in a broad day light, the prosecution did not examine any independent witnesses. Though the testimony of PWs.1 to PW.3 - injured witnesses cannot be treated on part with the inimical witnesses or partisan witnesses but there was a possibility for the Police to examine independent witnesses. He would submit that the very role attributed against A-3, A-4 and A-8 is highly suspicious. If really, they attacked A-3, A-4 and A-8, in the manner as alleged by the prosecution, there would have been injuries on the dead body of the deceased corresponding to the attack attributed against them. Their participation in the alleged offence is highly doubtful. He would submit that the very role attributed against A-3, A-4 and A-8 is highly suspicious. If really, they attacked A-3, A-4 and A-8, in the manner as alleged by the prosecution, there would have been injuries on the dead body of the deceased corresponding to the attack attributed against them. Their participation in the alleged offence is highly doubtful. Even otherwise, when the learned Additional Sessions Judge made a finding that the accused had no intention to murder PW.1 or the deceased, the incident in question was happened at a spur of moment i.e., A-1 attacking the deceased with a stick on his head, criminal liability cannot be fixed on A-3, A-4 and A-8 with regard to the attack on the deceased with the aid of Section 149 IPC. The injuries attributed against A-5, A6 and A-7 with regard to attack by PW.1 has no support from the medical evidence. Even their participation in the alleged offence in the situation is highly doubtful. The trial Court did not convict A-2, A-5, A-6, A-7 and A-10 with the aid of Section 149 IPC insofar as the attack on the deceased is concerned. Ultimately, he would submit that the possibility of quarrel in the spur of moment without any premeditation plan cannot be ruled out as such, at best, the trial Court ought to have convicted the accused if the evidence is convincing with regard to the specific role attributed regarding their alleged overt acts. He would submit that ultimately the very conviction against A-3 (died), A-4, A-5, A-6, A-7 and A-8 is not at all sustainable as such they are entitled for the benefit of doubt. He would further submit that as the incident in question was happened in a spur of moment and if ultimately the Court is going to confirm the conviction against A-1, with any valid reasons, a lenient view may be taken. He would further submit if the Court is going to believe the attack against PW.2 by A-2 and A-10, a lenient view may be taken against them. 18. Sri Naidana Sravan Kumar, learned Special Assistant, representing learned Public Prosecutor, would contend that the accused party did not challenge the finding of the Investigating Officer in referring their case as mistake of fact. There was consistency in the evidence of PWs.1 to PW.3. 18. Sri Naidana Sravan Kumar, learned Special Assistant, representing learned Public Prosecutor, would contend that the accused party did not challenge the finding of the Investigating Officer in referring their case as mistake of fact. There was consistency in the evidence of PWs.1 to PW.3. According to the attack made on PW.1, PW.2 and the deceased, the injuries sustained by PW.1 and PW.2 were supported with medical evidence by examining the Medical Officer. PWs.1 and PW.2 were no other than the injured witnesses. Their evidence was consistent with each other. The evidence on record proved the charges for which the accused were convicted. The learned Additional Sessions Judge rightly recorded the conviction against the present appellants and extended benefit of doubt on certain charges by appreciating the evidence with appropriate care and caution as such there are no grounds to interfere with the judgment of the learned Additional Sessions Judge. 19. PW.1 was the de-facto complainant who set the criminal law in motion. He was an injured witness, according to the case of prosecution. PW.2 was also another injured witness. PW.3 claimed to be a direct witness to the occurrence, the younger brother of deceased. PW.4 was the inquest panchayatdar with regard to conducting of inquest over the dead body of the deceased. PW.5 was the Civil Assistant Surgeon, Government General Hospital, Anantapur who examined PW.2 and issued wound certificate. PW.6 was the Head Constable, Bukkarayasamudram PS, who on receipt of death intimation of the deceased altered the Section of law from Section 307 IPC to Section 302 IPC. PW.7 was the SI of Police, Bukkarayasamudram PS, who rushed to the Hospital on 22.03.2004 on the admission of the injured i.e., recording of statement of PW.1 and consequent registration of FIR. PW.8 was the Associate Professor, Forensic Medicine in Kurnool Medical College who conducted autopsy over the dead body of the deceased. PW.9 was the Circle Inspector, who was the main Investigating Officer. PW.10 was another Civil Assistant Surgeon who firstly treated the deceased. His evidence was also that he treated PW.1 and issued wound certificate. 20. Coming to the evidence of PW.1, deceased Kuruba Kalaguri Busappa @ Busanna was his father. Three years back, he was murdered. There were disputes between the accused and themselves prior to the said murder with regard to local elections. Several cases were pending between themselves. His evidence was also that he treated PW.1 and issued wound certificate. 20. Coming to the evidence of PW.1, deceased Kuruba Kalaguri Busappa @ Busanna was his father. Three years back, he was murdered. There were disputes between the accused and themselves prior to the said murder with regard to local elections. Several cases were pending between themselves. Three years back on the next day of Ugadi festival, accused killed his father. On the day of Ugadi festival in the evening at 04:00 p.m. there was a Raathi Duulam (race for pulling the stone pillars by bullocks). At that time, A-11 abused kapu community people as such he (PW.1) chastised A-11. A-11 found fault with him and quarreled with him. On the next day after Ugadi festival at 12:30 p.m. after taking lunch they were at Venkateswara Temple. They were observing the people who were playing 'Bharakatta' (a game) on a pial under a neem tree. All of a sudden, all the accused pounced upon him, caught hold of him by pulling his shirt, dragged him towards the house of one Sanjamma. Then all the accused were armed with sticks and stones. A-5, A-6 and A-7 beat him with sticks on his nose causing bleeding injuries. Meanwhile, his father came and intervened by abusing the accused as to why they were beating him. Then, A-1 came and said this fellow came. Kill this fellow also. So, saying A-1 beat his father with a stick on his father's head. Then, his father fell down due to the said blow. Meanwhile, A-8 - Kanuma Jampetla Narayanaswamy @ Pala Narayanaswamy beat his father with a stick on his thigh. A-3 and A-4 kicked his father with their legs and beat him with hands. When PW.2 intervened, A-2, A-9 and A-10 beat him with sticks. Meanwhile, the villagers around there came and, on seeing them, accused ran away saying his father died. Then, they took his father to Government Headquarters Hospital, Anantapur in an auto and he was admitted there. Police came there within half an hour and took a complaint from him at his instructions. He sent it. Ex.P-1 is the complaint given by him. His father was referred to Kurnool Government Hospital for better treatment. By morning, he came to know that his father died. This is the substance of the evidence of PW.1. 21. Police came there within half an hour and took a complaint from him at his instructions. He sent it. Ex.P-1 is the complaint given by him. His father was referred to Kurnool Government Hospital for better treatment. By morning, he came to know that his father died. This is the substance of the evidence of PW.1. 21. According to PW.2, deceased Busappa was his uncle. He spoke of the previous incident. With regard to the incident in question on the date of offence, he deposed that at 01:00 p.m. he was sitting on the pial near Venkateswara Swamy Temple along with PW.1 and 5/6 others watching the people playing 'Bharakatta'. All the accused came there, armed with sticks and stones from behind the temple and dragged PW.1 by beating him towards the house of Sanjamma and beat him on his nose with sticks by pushing down on the ground. A-5, A-6 and A-7 beat PW.1 with sticks and stones. Then, his younger paternal uncle i.e., Busappa (deceased) came there and intervened. A-1 instigated others to kill Busappa and so saying he beat Busappa with sticks on his head and he fell down. A-2 beat him with stick on his thigh. A-3 and A-4 beat him with sticks and stones and also kicked him with legs. Then, he (PW.2) intervened and he was beaten by A-2, A-9 and A-10 with sticks on his both shoulders and on his right thumb. Thereafter accused left, saying that the deceased is no more. Then, the villagers came there and took him, PW.1 and deceased to Government Hospital, Anantapur. They were admitted in the hospital. His junior paternal uncle was shifted to Kurnool Government Hospital. PW.1 gave report to the Police, when the Police came to the Hospital. On the next day, the deceased died. 22. PW.3 who was a witness to the occurrence deposed that on the date of incident around 3 years ago, he was at his house at 12:00 noon. He was sitting on the pial in front of his house after taking lunch and found PW.1 and PW.2 along with others observing a game. All the accused pounced on PW.1, dragged him towards Sanjamma's house and pushed him down and A-5, A-6 and A-7 beat PW.1 with sticks on his nose. PW.1 fell down. Then, father of PW.1 came there and tried to interfere. All the accused pounced on PW.1, dragged him towards Sanjamma's house and pushed him down and A-5, A-6 and A-7 beat PW.1 with sticks on his nose. PW.1 fell down. Then, father of PW.1 came there and tried to interfere. A-1 beat the deceased on his head and the deceased fell down. Then, A-8 beat the deceased with stick on his thigh. A-3 and A-4 kicked the deceased with legs and beat him with hands. When PW.2 interfered, he was beaten by A-2, A-9 and A-10 with sticks. Then, he and others came there and tried to lift the deceased, who was un-conscious. They shifted the deceased to Government Hospital, Anantapur. Police came there and recorded the statement of PW.1. PW.1, PW.2 and the deceased went to Government Hospital, Anantapur. Later, the deceased was taken to Kurnool Government Hospital for better treatment. One hour thereafter the deceased was declared as dead. 23. PW.4, the inquest panchayatdar, testified the factum of his presence at the time of inquest and Ex.P-2 was inquest panchanama. 24. PW.5 was the Medical Officer, who examined the injured i.e., PW.2 and whose evidence will be referred hereinafter. 25. PW.6 - Head Constable spoke of the alteration of FIR into 302 IPC after receipt of death intimation. 26. PW.7 the SI of Police deposed that on 22.03.2004 at 04:00 p.m. he received information about the admission of three injured persons hailing from K.K. Agraharam Village through VHF set from O.P. Government General Hospital, Anantapur. Then, he went there and recorded the statement of PW.1 (Ex.P-1). Then, he left the hospital and reached B.K. Samudram Police Station at 05:00 p.m. and registered it as a case in Crime No.40 of 2004 under Sections 147, 148, 324 and 307 R/w.149 IPC. Ex.P-6 is the FIR. He reached Government General Hospital, Anantapur at 06:00 p.m., examined PW.1 and PW.2 and recorded their statements. He seized bloodstained clothes of PW.1 and left Government Hospital, Anantapur and proceeded to GGH, Kurnool and received the death intimation of Busappa. He sent the death intimation through Police Constable to add Section 302 IPC and submitted altered FIR to all the concerned. He conducted inquest over the dead body of the deceased. Later, he returned to the Police Station and intimated to the Inspector of Police about the facts of the case. 27. He sent the death intimation through Police Constable to add Section 302 IPC and submitted altered FIR to all the concerned. He conducted inquest over the dead body of the deceased. Later, he returned to the Police Station and intimated to the Inspector of Police about the facts of the case. 27. PW.8 is the Medical Officer who conducted autopsy over the dead body of the deceased, whose evidence will hereinafter be referred. 28. PW.9 was the Inspector of Police, who conducted investigation. His evidence in substance is that through SI of Police, he came to know about the incident in question and took up investigation. He examined the direct witnesses to the occurrence. He examined the scene of offence. He prepared the rough sketch of the scene of offence. He sent the material objects seized to the FSL. He arrested the accused during investigation on 27.03.2004 and sent them for remand. After receipt of post-mortem examination, he filed charge sheet. He further testified that insofar as Crime No.41 of 2004 is concerned, SI of Police B.K. Samudram submitted final report to the Court of Additional Judicial Magistrate of First Class, Anantapur with a request to treat the case as mistake of fact, as per the records that are available with him, after obtaining permission from the SDPO, Anantapur. 29. PW.10 - Medical Officer who treated PW. 1 and issued wound certificate, whose evidence will be discussed hereinafter. 30. On perusal of the material available on record, this Court found certain defects either relating to framing of charges or giving findings by the learned Additional Sessions Judge. It is to be noted that there were two charges under Sections 147 and 148 IPC. Section 147 IPC is for punishment of rioting and Section 148 IPC is for punishment for rioting with dangerous weapons. So, when there was a charge under Section 148 IPC, there was no need to frame separate charge under Section 147 IPC. Further, Section 149 IPC cannot be treated as a distinct offence and it is nothing but sharing common object. So, framing of a charge under Section 149 IPC separately was also not proper. Apart from this, when there was charge under Section 307 R/w.149 IPC with allegations that accused party attacked PW.1 and PW.2 with an intention to kill them, there was no need or necessity to frame separate charge under Section 324 R/w.149 IPC. So, framing of a charge under Section 149 IPC separately was also not proper. Apart from this, when there was charge under Section 307 R/w.149 IPC with allegations that accused party attacked PW.1 and PW.2 with an intention to kill them, there was no need or necessity to frame separate charge under Section 324 R/w.149 IPC. It is a fact that the learned Additional Sessions Judge found favour with the case of the prosecution insofar as charge under Section 148 IPC is concerned. The learned Additional Sessions Judge did not answer the charge under Section 149 IPC on the ground that it was not necessary. Without there being any basis whatsoever a charge was framed against A-10 as if he attacked the deceased on his head and caused his death. In fact, such allegation was there against A-1 alone as if he attacked the deceased on his head. The learned Additional Sessions Judge held that the aforesaid charge under Section 302 IPC was not proved against A-10. Apart from this, when the learned Additional Sessions Judge framed the charge under Section 302 R/w.149 IPC against all the accused but he did not find favour with the case of the prosecution except A-1, A-3, A-4 and A-8 but there were no findings literally that he did not find guilty of other accused with the aid of Section 149 IPC. 31. There is no Appeal with regard to the fact that the learned Additional Sessions Judge did not find favour with the case of the prosecution, insofar as the charge under Section 302 R/w.149 IPC against A-2, A-5, A-6, A-7 and A-8 is concerned. It is no doubt true that the very manner in which the charges were framed and answered without making a literal finding on certain charges is not proper. However, the present Appeals are pending way back from the year 2007. Under the circumstances and looking into the peculiar facts and circumstances, this Court has to re-appreciate the evidence on record with regard to the charges that were held to be proved by the prosecution. 32. Firstly, it is pertinent to look into the case of the prosecution with reference to the statement by PW.1 before Police under Ex.P-1, especially relating to overt acts. As seen from Ex.P-1, the motive for the offence was relating to a previous date incident. 32. Firstly, it is pertinent to look into the case of the prosecution with reference to the statement by PW.1 before Police under Ex.P-1, especially relating to overt acts. As seen from Ex.P-1, the motive for the offence was relating to a previous date incident. Insofar as the incident i.e., 22.03.2004 at 01:00 p.m. is concerned, the de-facto complainant mentioned the names of 10 accused in Ex.P-1 with allegation that they all came there with an intention to kill him with sticks and stones and dragged him. It whispers literally that A-5, A-6 and A-7 beat him with sticks and caused injuries on his nose and when Busappa (deceased) came and intervened, A-1 instigated to kill him (deceased) and PW.1 and attacked deceased giving a blow on his head. A-8 beat Busappa on the thigh. A-3 and A-4 beat Busappa with sticks, hands and legs and caused bleeding and internal injuries. A-2, A-9 and A-10 attacked PW.2 and caused bleeding injuries. This is the substance of the report. 33. When it comes to the testimony of PW.1 with regard to attack made on him, he ascribed overt acts against A-5, A-6 and A-7 to the effect that they beat him on his nose with sticks and caused bleeding injuries. He attributed overt acts against A-1 that he beat the father of PW.1 with a stick on his head. He deposed that A-8 beat his father on his thigh with stick. Contrary to the contents of Ex.P-1 with regard to the overt acts attributed against A-3 and A-4 that they attacked his father with sticks, legs, hands and caused bleeding injuries omitted to speak that they made such an attack with sticks but he deposed that A-3 and A-4 kicked his father. So, he omitted to say that A-3 and A-4 attacked his father with sticks. Insofar as A-2, A-9 and A-10 are concerned, he testified that they beat PW.2 with sticks. 34. Now, coming to the testimony of PW.2, he alleged that A-5, A-6 and A-7 beat PW.1 with sticks and stones and A-1 attacked Busappa with a stick on his head and A-8 beat Busappa with a stick on his thigh and A-3 and A-4 beat Busappa with stick and kicked him with legs and A-2, A-9 and A-10 beat PW.2 with sticks on his both shoulders and on his right thumb. 35. 35. The overt acts spoken to by PW.3 are similar to that of the overt acts spoken by PW.1 by omitting to say that A-3 and A-4 attacked the deceased with sticks and caused bleeding injuries. 36. Now, it is appropriate to look into as to whether the overt acts spoken to by the aforesaid witnesses have any support from the medical evidence. 37. Turning to the evidence of PW.10, his evidence is that he issued wound certificate relating to one K. Pakkirappa (PW.1). Having examined him at 01:30 P.M on 22.03.2004 accompanied by Ravi Chandra Reddy, he found an abrasion on the left side of the nose. Injury is simple and it is possible with sharp edge sickle or stick. Ex.P-11 is the wound certificate of PW.1. It is to be noted that during cross-examination, he testified that the injury of PW.1 is superficial and it could be possible by scratch with nails or during agricultural operations or by a fall. The injury is within the range of self infliction. It is to be noted that with regard to the injuries on the nose of PW.1, evidence of PW.1 is that A-5, A-6 and A-7 beat him with sticks and caused bleeding injuries on the nose. The single abrasion which was nothing but a superficial could only be found on the nose of PW.1 and if really there was an attack made by A-5, A-6 and A-7 in the manner as alleged by PW.1 with sticks, there would have been more injuries on the nose of PW.1. So, for a superficial injury received by PW.1 on his nose, three overt acts were ascribed against A-5, A-6 and A-7 and those overt acts have no support from the medical evidence. So, the possibility in the theory of PW.1 exaggerating and deliberating the case against A-5, A-6 and A-7 cannot be ruled out. 38. Coming to the medical evidence with reference to the injuries received by the deceased with regard to the evidence of PW.8, he found ante mortem injuries over the dead body of the deceased. The external injuries are: '1. A laceration 5 x 0.5 cms in sagital plane over the vertex (centre of top of head), skin edges irregular, contused and red in colour). 2. An abrasion 2.5 cms in diameter, over left elbow, red in colour. 3. The external injuries are: '1. A laceration 5 x 0.5 cms in sagital plane over the vertex (centre of top of head), skin edges irregular, contused and red in colour). 2. An abrasion 2.5 cms in diameter, over left elbow, red in colour. 3. An abrasion 2 cms in diameter, over right knee red in colour.' The internal injuries are: '1. Depressed communuted fracture 7 x 1 cms in sagital plane over medial end of right parietal bone with the fracture line radiating on left parietal bone, occipital bone and frontal bone. 2. A contusuion of brain 4 x 2 cms in sagital plane over medial portion of right parietal lobe, red in colour.' 39. So, injury Nos.1 and 2 i.e., external and injury Nos.1 and 2 i.e., internal were tallied with the overt acts attributed against A-1. 40. It is the specific case of the prosecution and also the evidence of PW.1, PW.2 and PW.3 that A-8 beat the deceased on his thigh with a stick. It is to be noted that according to the evidence of PW.8, there was an abrasion of 2 cms in diameter over right knee red in colour (injury No.3). If the evidence of PW.8 is considered, there would have been injuries on the thigh portion of the deceased on one leg or either of the legs. So, it is also a case where the specific overt acts against A-8, as having caused injuries on the thigh of the deceased was not supported by medical evidence. 40. It is to be noted that the specific overt acts attributed against A-3 and A-4 were so clear in Ex.P-1 that they attacked the deceased with sticks and caused bleeding injuries and internal injuries. For obvious reasons, PW.1 omitted to say that A-3 and A-4 armed with sticks, attacked the deceased with sticks and caused bleeding injuries probably as the said allegation will not get any support from the medical evidence. However, he testified that A-3 and A-4 kicked his father with their legs and beat him with hands. PW.2 adhered to the allegation that A-3 and A-4 beat Busappa with sticks and caused injuries. So, the overt acts attributed against A-3 and A-4 in Ex.P-1 as having caused bleeding injuries to the deceased with sticks and further the overt acts spoken by PW.1, PW.2 and PW.4 were not supported with medical evidence. PW.2 adhered to the allegation that A-3 and A-4 beat Busappa with sticks and caused injuries. So, the overt acts attributed against A-3 and A-4 in Ex.P-1 as having caused bleeding injuries to the deceased with sticks and further the overt acts spoken by PW.1, PW.2 and PW.4 were not supported with medical evidence. If there was an attack by A-8 on either of the thighs of the deceased with a stick, there would have been a corresponding injury. Further, if there was an attack by A-3 and A-4 with sticks on the deceased, there would have been contusions or other injuries. Injury No.3 i.e., an abrasion of 2 cms over right knee, red in colour cannot be ascribed either to A-8 or A-3 and A-4 in the considered view of this Court. Absolutely, injury No.3 could also be possible when the deceased fell down on account of the attack attributed against A-1 with stick on the head of the deceased. So, insofar as the medical evidence is concerned, it is not corroborating the testimony of prosecution witnesses with regard to the attack on PW.1 and also on the deceased by A-3, A-4 and A-8. When there is glaring inconsistency between the ocular evidence and medical evidence and the serious overt acts attributed against particular accused were not supported with medical evidence, it affects the credibility of the evidence of witnesses. In such circumstances, medical evidence is to be taken into consideration to judge the veracity of the witnesses. 41. Coming to the overt acts attributed against A-2, A-9 (died before framing of charges) and A-10 (died during pendency of the appeal), the case of the prosecution and the evidence is that A-2 and A-10 attacked PW.2 with sticks. As seen from the evidence of PW.2, he was beaten by A-2, A-9 and A-10 with sticks on his both shoulders and on his right thumb. As seen from the evidence of PW.5 - Medical Officer, he examined PW.2 and found the following injuries: '1. Contusion right thumb red in colour. 2. An abrasion on right shoulder anterior part, no stab over it. 3. A contusion on anterior part on left shoulder 3 x 5 cms red in colour. 4. A contusion on left forearm 4 x 6 cms red in colour. 5. An abrasion 1 x 2 cms on right cheek, no stab over.' 42. 2. An abrasion on right shoulder anterior part, no stab over it. 3. A contusion on anterior part on left shoulder 3 x 5 cms red in colour. 4. A contusion on left forearm 4 x 6 cms red in colour. 5. An abrasion 1 x 2 cms on right cheek, no stab over.' 42. Therefore, the evidence of PW.1, PW.2 and PW.3 with regard to the attributed against A-2 and A-10 are concerned, it has support from the medical evidence. It is a fact that A-9 died before framing of charges. To sum up to this extent, the ocular evidence with regard to the attack attributed against A-1 has support from the medical evidence. Further, the ocular testimony with regard to the attack attributed against A-5, A-6 and A-7 on PW.1 has no support from the medical evidence and further the ocular evidence with regard to the role attributed against A-3, A-4 and A-8 regarding attack on the deceased has no support from the medical evidence. Ocular testimony with regard to the attack attributed against A-2 and A-10 regarding the injuries on PW.2 has support from the medical evidence. 43. It is to be noted that though PW.1 and PW.2 were injured but their evidence has to be scrutinized with care and caution. PW.3 was no other than the close relative of PW.1 and PW.2. There is no denial of the fact that A-8 and A-10 received injuries, which was the subject matter in Crime No.41 of 2004. 44. During the course of cross-examination of PW.1, accused got suggested to him that on the date of incident at 01:00 p.m. while the wife of A-10 was drawing water at the bore, he (PW.1) humiliated Boya people by saying that they are amenable for Rs.50/- or Rs.100/- and then she informed the same to A-10 - her husband and then A-10 and A-8 questioned him and then he and his father and others beat them with stones. 45. He further denied that A-8 and A-10 sustained injuries and they were admitted in Government General Hospital, Anantapur and that the injury received by him was self inflicted. 45. He further denied that A-8 and A-10 sustained injuries and they were admitted in Government General Hospital, Anantapur and that the injury received by him was self inflicted. It is to be noted that during the course of cross-examination of PW.5, the defence counsel elicited the facts that on the same day, he examined A-10 in Government General Hospital, Anantapur and found 1) abrasion of 2 x 2 cms on right forehead, no swab over it and 2) complaints of pain and tenderness of chest. Those injuries are simple and might have been possible with stones. Ex.D-2 is the copy of wound certificate of A-10 and Ex.D-3 is the copy of case sheet. Defence counsel further elicited that the medical officer examined K. Narayana Swamy (A-8), S/o. Gampanna and found 1) A contusion of 3 x 4 cms on left parietal temporal region and 2) An abrasion 1 x 3 cm below left collar bone, no swab over it. The injuries are simple and Ex.D-4 was his wound certificate and D-5 was copy of his case sheet. 46. According to the evidence of PW.9, Inspector of Police pertaining to Crime No.41 of 2004, SI of Police referred it as a mistake of fact. It is to be noted that during the course of cross examination of PW.6 - Head Constable, it was elicited that on receiving hospital intimation from Anantapur, he went to Anantapur General Hospital on 22.03.2004 at 06:00 p.m. and recorded the statement of injured person Obulapathi, which reads that at 01:00 p.m. when his wife was drawing water from the pump, PW.1, his father - Busappa and some others heckled and insulted saying Boya women are amenable for Rs.50/- and Rs.100/- and when she informed the same to her husband, A-10 along with Kanuma Jampetla Narayanaswamy @ Pala Narayanaswamy (A-8) questioned PW.1 and others and then a scuffle took place and A-1, his father and others hurled stones causing injuries to A-8 and A-10. He admitted that on the basis of said statement, a case in Crime No.41 of 2004 was registered. Ex.D.6 was the copy of statement and Ex.D.7 was the copy of FIR in Crime No.41 of 2004. 47. He admitted that on the basis of said statement, a case in Crime No.41 of 2004 was registered. Ex.D.6 was the copy of statement and Ex.D.7 was the copy of FIR in Crime No.41 of 2004. 47. So the evidence of PW.6 that the case in Crime number No.41 of 2004 was referred as mistake of fact is not tenable because when the time of offence in both the crimes is one and the same, Investigating Officer was supposed to decide as to who were the aggressors and as to who filed the false report. However, the accused party herein did not protest the finding of the Investigating Officer when he referred the case as mistake of fact but the thing is that there was a counter complaint by A-8 and A-10. In group rivalries, there will be every tendency to rope as many persons as possible corresponding to the injuries on the deceased or the injured to settle the scores. The case on hand warrants this Court to scrutinize the evidence with care and caution. As this Court already pointed out the overt acts against A-3, A-4, A-5, A-6, A-7 and A-8 are nothing but exaggeration and deliberations. The evidence in this regard is highly improbable and doubtful. Viewing the facts in that angle, it is un-safe to believe the case of the prosecution insofar as the overt acts against A-5, A-6 and A-7 are concerned (attack on PW.1) and overt acts against A-3, A-4 and A-8 are concerned (attack on the deceased). Needless to point out here that A-10 died. When truth and falsity is mixed up it is the duty of the Court to sift the grain from the chaff. The judgment of the trial Court reveals that the trial Court did not undertook such a course of action insofar as the above accused are concerned. 48. Turning to the injuries received by A-8 and A-10, on the date of incident, they are nothing but superficial in nature. The fact that the presence of injuries on A-8 and A-10 show that their presence at the scene of occurrence was quietly admitted. When the Investigating Officer referred the case as mistake of fact, though it was not tenable but they did not agitate about the fate of their report. The fact that the presence of injuries on A-8 and A-10 show that their presence at the scene of occurrence was quietly admitted. When the Investigating Officer referred the case as mistake of fact, though it was not tenable but they did not agitate about the fate of their report. So, when the injuries received by A-8 and A-10 were trivial in nature, non-explanation of injuries on A-8 and A-10 by the prosecution is not at all fatal to the case of prosecution with regard to the charges framed against A-8 and A-10. 49. Having regard to the overall facts and circumstances, scrutinizing ocular testimony, the medical testimony by looking into the background of the case and counter complaint, this Court is of the considered view that the evidence on record is consistent insofar as the role alleged against A-1 in attacking the deceased and further the role alleged against A-2 in attacking PW.2. Though the injuries received by PW.2 were duly supported with medical evidence but the fact remained is that A-10, against whom conviction was recorded for causing injuries to PW.2 died and further A-9 was died prior to framing of charges. The contention of the appellants that the prosecution did not examine the independent witnesses deserves no merits as nothing was elicited from the prosecution witnesses about the presence of any independent witnesses. Though the evidence of P.W.1 to P.w.3 is interested, but its stands to the test of scrutiny insofar as the case against A.1 and A.2 is concerned and it is inspiring confidence in the mind of this Court. The defence of the accused during cross examination of P.W.1 that his father (deceased) hit the bore while attacking A.8 and A.10 and sustained injuries deserves no merits which is not probabilized in any way. 50. On scrutinizing the evidence of the prosecution, it presents a categorical case as against A-1 and A-2, as pointed out above. 51. It is to be noted that by virtue of the findings arrived at, as above, the prosecution could establish only the participation of A-1, A-2, A-9 and A-10 in the entire episode. The trial Court gave findings that accused party had no intention either to cause death of PW.1 or to murder the deceased and the entire incident was happened in a spur of moment. The trial Court gave findings that accused party had no intention either to cause death of PW.1 or to murder the deceased and the entire incident was happened in a spur of moment. In that view of the matter, the evidence of PW.1 that A-1 instigated others to kill him and his father deserves no merits. The finding given by the learned Additional Sessions Judge in this regard is not at all sought to be challenged. So, the facts and circumstances are such that the very alleged participation of A-5, A-6 and A-7 in the quarrel is highly doubtful. The prosecution could prove a consistent case against A-1 only with regard to the attack made on the deceased. Though the prosecution could present a consistent case with regard to the attack on PW.2 as against A-2, A-9 and A-10 but as of now A-2 alone is prosecuting the Appeal with regard to the injuries on PW.2 because A-10 died during pendency of the Appeal and A-9 died even before framing of charges. As the findings arrived at by the Courts could only show participation of 4 persons, when the persons involved in the episode were less than 5, the charge under Section 148 IPC must fail. Apart from this, as the prosecution did not prove participation of all accused, in the manner as alleged, there was no question of applying any liability under Section 149 of IPC. 52. In the light of the above, this Court is of the considered view that the prosecution failed to prove formation of unlawful assembly in the manner as alleged by the prosecution and consequent rioting under Section 148 IPC. 53. As the participation of A-3, A-4 and A-8 is highly doubtful, on analyzation of the evidence on record, conviction of A-3, A-4 and A-8 with the aid of Section 149 IPC is not at all sustainable. The prosecution could establish the guilt against A-1 only to the allegations under Section 304 Part-II IPC i.e., the culpable homicide not amounting to murder. Further, prosecution failed to prove the charges against A-5, A-6 and A-7 as causing injuries to PW.1. Hence, the conviction recorded against A-5, A-6 and A-7 is not at all sustainable. Insofar as the conviction against A-2 is concerned, as this Court pointed out, he was one of the persons in making attack on PW.2. Further, prosecution failed to prove the charges against A-5, A-6 and A-7 as causing injuries to PW.1. Hence, the conviction recorded against A-5, A-6 and A-7 is not at all sustainable. Insofar as the conviction against A-2 is concerned, as this Court pointed out, he was one of the persons in making attack on PW.2. According to the evidence available on record, the trial Court believed the case in this regard against A-2 and A-10 and A-10 died during pendency of the Appeal as such Appeal against A-10 was abated. Hence, conviction recorded against A-2 under Section 324 IPC is to be maintained. In the light of the above, this Court is of the considered view that the prosecution proved the guilt against A-1 beyond reasonable doubt under Section 304 Part-II IPC and further the prosecution proved the guilt against A-2 under Section 324 IPC for causing injuries to PW.2 beyond reasonable doubt. The rest of the judgment of the trial Court for recording conviction against other appellants needs to be interfered with accordingly. 54. It is the contention of the first appellant (A-1) in Criminal Appeal No.834 of 2007, a lenient view may be taken against him for the charge under Section 304 Part-II IPC for which he was convicted, already the learned Additional Sessions Judge looked into the representation made by A-1 and took a lenient view. However, since the instant Appeal is pending since the year 2007. The incident in question was happened in a spur of moment without there being any intention to kill the deceased, but the fact remained is that by making such an attack, A-1 had every knowledge that on account of his act, there is every possibility for the deceased to die. Considering the overall facts and circumstances, the ends of justice will meet if the sentence of Rigorous Imprisonment of seven (7) years imposed for the offence under Section 304 Part-II IPC is reduced to five (5) years. Insofar as the sentence imposed against first appellant (A-2) in Criminal Appeal No. 807 of 2007 is concerned, the offence under Section 324 IPC is punishable with imprisonment or with fine. As the incident in question was happened in a spur of moment and the Appeal is pending since the year 2007, it is desirable to modify the sentence imposed against A-2 to that of fine from that of imprisonment. 55. As the incident in question was happened in a spur of moment and the Appeal is pending since the year 2007, it is desirable to modify the sentence imposed against A-2 to that of fine from that of imprisonment. 55. Criminal Appeal No.834 of 2007 is allowed in part by setting-aside the conviction and sentence imposed against the appellant Nos.1, 3 and 4 (A-1, A-4 and A-8) under Section 148 IPC and setting-aside the conviction and sentence imposed against the appellant Nos.3 and 4 (A-4 and A-8) under Section 304 Part-II IPC and further the Criminal Appeal filed by 1st appellant (A-1) insofar as his conviction under Section 304 Part-II is concerned, it stands dismissed but by reducing the rigorous imprisonment for seven years imposed against A.1 into five years. 56. Criminal Appeal No.807 of 2007 is allowed in part by setting-aside the conviction and sentence imposed against the appellant Nos.1 to 4 (A-2, A-5, A-6 and A-7) under Section 148 IPC and setting-aside the conviction and sentence imposed against the appellant Nos.2, 3 and 4 (A-5, A-6 and A-7) under Section 324 R/w.149 IPC and the Appeal insofar as appellant No.1 (A-2) for the offence under Section 324 IPC is concerned, it stands dismissed but by modifying the sentence of Rigorous Imprisonment of one year to a fine of Rs.5,000/- in default to suffer Simple Imprisonment for six months. The appellants are entitled to refund of the fine amount insofar as the conviction and sentence which is set-aside by this Court. 57. The Registry is directed to take steps immediately under Section 388 Cr.P.C to certify the judgment of this Court including the trial Court record, if any, to the trial Court on or before 06.03.2024 and on such certification, the trial Court shall take necessary steps to carry out the remaining sentence imposed against the appellants/A-1 and A-2 by virtue of this judgment. A copy of this judgment be placed before the Registrar (Judicial), forthwith, for giving necessary instructions to the concerned Officers in the Registry. Consequently, Miscellaneous Applications pending, if any, in these Appeals shall stand closed.