IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 17TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.287 OF 2013 C/W CRIMINAL APPEAL NO.382 OF 2013 IN CRIMINAL APPEAL NO.287 OF 2013 BETWEEN:
1. SRI. AMIR FAIZAL SON OF HAMZA AGED ABOUT 30 YEARS RESIDING AT C.P.C. COMPOUND KUDROLI, NADUPALLI MANGALURU.
2. SRI. ANWAR HUSSAIN SON OF IDINABBA AGED ABOUT 37 YEARS RESIDING AT NO.1-50 KOTEKAR POST SOMESHWARA MANGALURU.
3. SRI. RIYAZ SON OF S. IDINABBA AGED ABOUT 23 YEARS RESIDING AT PAVOOR MANGALURU DAKSHINA KANNADA.
4. SRI. ABBU SON OF S. IDINABBA AGED ABOUT 35 YEARS RESIDING AT PAVOOR MANGALURU DAKSHINA KANNADA.
5. SRI. ABDUL LATHIF SON OF S. IDINABBA AGED ABOUT 33 YEARS RESIDING AT PAVOOR MANGALURU DAKSHINA KANNADA.
6. MOHAMMED ASHRAF SON OF S IDINABBA AGED ABOUT 52 YEARS RESIDING AT NO.1-50 KOTEKAR POST SOMESHWARA MANGALURU.
7. SRI. PAVOOR ASHRAF SON OF S. IDINABBA AGED ABOUT 35 YEARS RESIDING AT PAVOORU HAREKALA MANGALURU. … APPELLANTS (BY SRI. VISHWAJITH SHETTY, ADVOCATE) AND 1. ABDUL KHADER @ KHAVUNHI SON OF LATE HUSSAIN AGED ABOUT 55 YEARS RESIDING AT GUDDE HOUSE NEAR BHAJANA MANDIR TALAPADY MANGALURU.
2. MOHAMMED ARIF @ ARIF HUSSAIN SON OF ABDUL KHADER @ KHAVUNHI AGED ABOUT 32 YEARS RESIDING AT GUDDE HOUSE NEAR BHAJANA MANDIR TALAPADY MANGALURU.
3. MOHAMMED IRFAN @ IRFAN SON OF ABDUL KHADER @ KHAVUNHI AGED ABOUT 27 YEARS RESIDING AT GUDDE HOUSE NEAR BHAJANA MANDIR TALAPADY MANGALURU.
4. MOHAMMED RIYAZ @ RIYAZ SON OF ABDUL KHADER @ KHAVUNHI AGED ABOUT 24 YEARS RESIDING AT GUDDE HOUSE NEAR BHAJANA MANDIR TALAPADY MANGALURU.
5. RAMEEZ ABDUL KHADER @ HAMEED SON OF ABDUL KHADER @ KHAVUNHI AGED ABOUT 22 YEARS RESIDING AT GUDDE HOUSE NEAR BHAJANA MANDIR TALAPADY MANGALURU.
6. U.H. MUSTHAFA SON OF U.P. BAVA AGED ABOUT 36 YEARS RESIDING AT ULLALA BAILU HOUSE NEAR MASJID MANGALURU.
7. AMEER @ MANTU @ MANSOOR SON OF LATE HYDROSE AND MRS. NAFEESA AGED ABOUT 29 YEARS RESIDING AT HAREKALA MANGALURU PRESENTLY AT AMBIKA ROAD NEAR THOKKOTTU MANGALURU.
8. FAISAL ABDULLA @ FAISAL SON OF ABDULLA AGED ABOUT 26 YEARS RESIDING AT NEAR A-1 BUILDING KUDROLI MANGALURU.
9. MAYYADDI SON OF LATE ISMAIL AGED ABOUT 34 YEARS RESIDING AT MUBARAK MANZIL VIDYANAGARA, JULAI POST SURATHKAL MANGALURU.
10. MOHAMMED HANEEF @ HANEEF SON OF ABOOBAKKAR AGED ABOUT 26 YEARS RESIDING AT NEAR ADISHAKTHI BHAJANA MANDIR JANATHA COLONY VENUR BELTHANGADY TALUK.
11. STATE OF KARNATAKA REPRESENTED BY ` POLICE SUB-INSPECTOR MANGALURU SOUTH POLICE STATION MANGALURU. … RESPONDENTS (BY SRI. I.S. PRAMOD CHANDRA, SPECIAL PUBLIC PROSECUTOR-2 FOR RESPONDENT NO.11; MS. NASEEMA BANU SYED BABU, ADVOCATE – AMICUS CURIAE FOR RESPONDENTS NO. 9 AND 10; RESPONDENT NOS.1 TO 8 ARE SERVED) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372 CRIMINAL PROCEDURE CODE, PRAYING TO MODIFY THE JUDGMENT AND ORDER OF CONVICTION DATED 02/04.02.2013 MADE IN S.C.NO.69 OF 2O10 BY THE COURT OF I ADDITIONAL DISTRICT AND SESSIONS JUDGE ON CONCURRENT CHARGE OF FAST TRACK COURT, DAKSHINA KANNADA, MANGALURU AND PRAYS TO ENHANCE THE SENTENCE IMPOSED ON THE RESPONDENT NOS.1 TO 8 FOR THE OFFENCES COMMITTED BY THEM AND ALSO CONVICT THE RESPONDENT NOS.1 TO 8 FOR THE OFFENCE PUNISHABLE UNDER SECTION 307 OF INDIAN PENAL CODE AND RESPONDENT NOS.9 AND 10 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 201 AND 212 READ WITH SECTION 149 OF INDIAN PENAL CODE AND ETC.
IN CRIMINAL APPEAL NO.382 OF 2013 BETWEEN:
1. ABDUL KHADER @ KHAVUNHI SON OF LATE HUSSAIN AGED 56 YEARS RESIDING AT GUDDE HOUSE NEAR BHAJANA MANDIR TALAPADY MANGALURU – 575 024.
2. MOHAMMED ARIF @ ARIF HUSSAIN SON OF ABDUL KHADER @ KHAVUNHI AGED 30 YEARS RESIDING AT GUDDE HOUSE NEAR BHAJANA MANDIR TALAPADY MANGALURU – 575 024.
3. MOHAMMED IRFAN @ IRFAN SON OF ABDUL KHADER @ KHAVUNHI AGED 25 YEARS RESIDING AT GUDDE HOUSE NEAR BHAJANA MANDIR TALAPADY MANGALURU – 575 024.
4. MOHAMMED RIYAZ @ RIYAZ SON OF ABDUL KHADER @ KHAVUNHI AGED 22 YEARS RESIDING AT GUDDE HOUSE NEAR BHAJANA MANDIR TALAPADY MANGALURU – 575 024.
5. RAMEEZ ABDUL KHADER @ HAMEED SON OF ABDUL KHADER @ KHAVUNHI AGED 20 YEARS RESIDING AT GUDDE HOUSE NEAR BHAJANA MANDIR TALAPADY MANGALURU – 575 024.
6. U.H. MUSTHAFA SON OF U.P. BAVA AGED 36 YEARS RESIDING AT ULLALA BAILU HOUSE ULLALA BAILU NEAR MASJID MANGALURU – 575 020.
7. AMEER @ MANTU @ MANSOOR SON OF LATE HYDROSE AND MRS. NAFEESA AGED 27 YEARS RESIDING AT HAREKALA MANGALURU PRESENTLY AT AMBIKA ROAD NEAR THOKKOTTU MANGALURU – 575 017.
8. FAISAL ABDULLA @ FAISAL SON OF ABDULLA AGED 24 YEARS RESIDING AT NEAR A-1 BUILDING KUDROLI MANGALURU – 575 002. … APPELLANTS (BY SRI. DINESH KUMAR K. RAO, ADVOCATE FOR SRI. R.B. DESHPANDE, ADVOCATE) AND:
STATE OF KARNATAKA THROUGH MANGALURU SOUTH POLICE MANGALURU DAKSHINA KANNADA DISTRICT REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU-560 001. … RESPONDENT (BY SRI. I.S. PRAMOD CHANDRA, SPECIAL PUBLIC PROSECUTOR-2) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CRIMINAL PROCEDURE CODE FOR APPELLANTS/ACCUSED NOS.1 TO 8, PRAYING TO SET ASIDE THE JUDGMENT DATED 02.02.2013 PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE OF CONCURRENT CHARGE OF FAST TRACK COURT, DAKSHINA KANNADA, MANGALURU IN S.C.NO.69 OF 2010 – CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 143, 147, 148, 323, 324, 326 AND 504 READ WITH SECTION 149 OF INDIAN PENAL CODE AND ETC.
THESE CRIMINAL APPEALS COMING ON FOR HEARING THIS DAY, H.P.SANDESH J., DELIVERED THE FOLLOWING:
JUDGMENT These two appeals are filed by the complainants and the accused persons challenging the judgment dated 02.02.2013 passed in S.C No.69 of 2010 by the Fast Track Court, Dakshina Kannada, Mangalore.
2. The appellants in Criminal Appeal No.287/2013 are the injured, who have sustained injuries and have been examined as P.Ws.1 to 6 and P.W.12. They have challenged the acquittal of the accused Nos.1 to 8 for the offence punishable under Section 307 of Indian Penal Code and acquittal of the accused Nos.9 and 10 for the offences punishable under Sections 201 and 212 read with Section 149 of Indian Penal Code and also to enhance the sentence imposed on accused Nos.1 to 8 for the offences punishable under Sections 143, 147, 148, 323, 324, 326 and 504 read with Section 149 of Indian Penal Code.
3. Criminal Appeal No.382/2013 is filed by the accused Nos.1 to 8 challenging the judgment of conviction and sentence and prayed the Court to allow the appeal and acquit the accused persons.
4. Brief facts of the case are:-
It is the case of the prosecution that accused Nos.1 to 9 and C.Ws.1 to 8 were having some ill-will in between them on account of purchase of fishes in an auction used to be held in South Dakke in Mangalore and the said C.Ws.1 to 8 were creating obstacles for their business. Accused Nos.1 to 10 forming an unlawful assembly, on 14.09.2009, at about 6.30 a.m., near the Troll Boat Fisheries Primary Society at South Dakke in Mangalore, with the common object to assault C.Ws.1 to 8, armed with deadly weapons, which were brought in a car and in furtherance of common object have committed rioting and voluntarily caused hurt to C.Ws.1 to 7 and caused the injuries and so also, abused them in filthy language and thereby, committed the offences alleged against them.
5. The accused persons were secured before the trial Court and charges were framed. The accused persons did not plead guilty and hence, the prosecution examined P.Ws.1 to 20 and also got marked Exs.P.1 to 23(b) and so also, M.Os.1 to 28. The Court below after recording the evidence, recorded the statement of accused persons under Section 313 of Cr.P.C and the accused have not led any defence evidence. After conclusion of trial, heard the arguments of Public Prosecutor and defence counsel and convicted the accused persons for the offences punishable under Sections 143, 147, 148, 323, 324, 326 and 504 read with Section 149 of Indian Penal Code and acquitted the accused Nos.1 to 8 for the offences punishable under Section 307 read with Section 149 of Indian Penal Code so also, acquitted accused Nos.9 and 10 for the offences punishable under Sections 201 and 212 read with Section 149 of Indian Penal Code.
6. The appellants in Criminal Appeal No.287 of 2013 contended that the Court below has committed an error in acquitting the accused Nos.1 to 8 for the offences punishable under Section 307 read with Section 149 of Indian Penal Code so also, acquitted the accused Nos.9 and 10 for the offences punishable under Sections 201 and 212 read with Section 149 of Indian Penal Code. The Court below while sentencing the accused Nos.1 to 8 committed an error in only imposing simple imprisonment for six months and fine of Rs.1,000/- for the offences punishable under Sections 143, 147, 148, 323, 324 and 504 of Indian Penal Code and also sentenced to undergo simple imprisonment for two and half years for the offence punishable under Section 326 of Indian Penal Code. Hence, the order of acquittal passed against the accused Nos.1 to 8 for the offences punishable under Section 307 read with Section 149 of Indian Penal Code and accused Nos.9 and 10 for the offences punishable under Sections 201 and 212 read with Section 149 of Indian Penal Code has to be set- aside and the accused persons have to be convicted for all the charges levelled against them.
7. The appellants who are the accused persons in Criminal Appeal No.382 of 2013 contended that the Court below failed to consider the material contradictions particularly in the evidence of P.Ws.1 to 7 and 12 and also failed to take note of the fact that there were two Wound Certificates and the Doctors, have opined the injuries are simple in nature. The Court below has committed an error in convicting the accused persons for the offence punishable under Section 326 read with Section 149 of Indian Penal Code and the evidence adduced by the prosecution does not inspire confidence in the Court to convict the accused persons. Hence, prayed this Court to interfere with the judgment of conviction by allowing this appeal.
8. Having heard the arguments of learned counsel for appellants in their respective appeals and for the State, the points that would arise for our consideration are;
i) Whether the Court below has committed an error in convicting the accused persons for the charges levelled against them as sought for in Criminal Appeal No.382/2013?
ii) Whether the Court below has committed an error in not convicting accused Nos.1 to 8 for the offence punishable under Section 307 read with Section 149 of Indian Penal Code, so also the sentence imposed on them is on the lower side which is not proportionate to the gravity of the offence and also committed an error in acquitting the accused Nos.9 and 10 for the charges levelled against them as sought for in Criminal Appeal No.287/2013?
Points No.1 and 2 9. The prosecution relied upon the evidence of P.Ws.1 to 20 in order to prove the charges levelled against them. P.Ws.1 to 7 and 12 are the injured witnesses, who are all relatives among themselves. P.W.8 is the brother of P.Ws.1 to 7 and he is also attesting witness to Ex.P.2 in respect of seizure of clothes. P.W.9 is the Construction Manager and he received the information about the galata and instructed to take them to hospital and he went to hospital. P.W.10 is the panch witness of mahazar in terms of Ex.P.3. P.W.11 is the Manager of Kanchana Hyundai, where the vehicle bearing No.KA-19:MA-4370 was placed for repair work. P.W.13 is the person who reached the spot hearing the galata and rescued the injured in the quarrel and he is the attesting witness to Ex.P.2. P.W.14 is the person who attested Ex.P.5 – Spot Mahazar wherein the material object Nos.3 to 5, 10, 12, 13, 27 and 28 were seized. P.W.15 is the attesting witness to Ex.P.3 i.e., the seizure of clothes of accused, which were marked as MOs.16 to 25. P.Ws.16 and 19 are the Doctors who have treated the injured persons. P.W.17 is the Police Constable who has accompanied C.W.23 and on the credible information, went to the house of accused No.4 and apprehended the accused. P.W.18 is the Head Constable who carried the FIR to the Court. P.W.20 is the Investigating Officer who conducted the investigation and filed the charge sheet.
10. Now, let us consider the evidence available before the Court. We have already mentioned that P.Ws.1 to 6 and 12 are the injured persons and in their evidence, they have specifically stated the names of persons who have assaulted them.
11. P.W.1- Ameer Faizal is the complainant. In his evidence, he says that accused No.2 assaulted P.W.2 – Anwar Hussain on his cheek with hands. Accused No.4 and accused No.5 assaulted him with weighing stone, which is marked as MO.3 on his head.
12. P.W.2, in his evidence states that accused No.2 assaulted him on his cheek and accused No.6 assaulted him on his head and other parts of the body with a sword.
13. P.W.3, in his evidence states that accused No.6 assaulted P.W.2 on his cheek with hands and accused Nos.4 and 5 assaulted him on his head and left hand with iron rod.
14. P.W.4, in his evidence states that accused No.2 assaulted P.W.2 on his cheek with hands; accused No.2 assaulted him on his head and left shoulder with Katthi (M.O.13); accused No.1 assaulted him on his left shoulder with a Chavel (MO.12) and accused No.5 assaulted him with a weighing stone (MO.3) on his head.
15. P.W.5, in his evidence states that accused No.2 assaulted P.W.2 on his cheek with hands and accused No.2 assaulted him on his head, stomach and hands with a Katti (MO.13); accused No.6 assaulted him with a sword (MO.6) on his head and stomach and accused No.7 assaulted him with his legs.
16. P.W.6, in his evidence states that accused No.2 assaulted P.W.2 on his cheeks with hands and with Kathi (MO.13) on his stomach and hands. He further states that accused No.1 assaulted him with his hands and also accused No.2 assaulted him with a Kathi (MO.13) on his back and hit on his private parts. He further says that accused No.3 assaulted him with a wide Kathi (MO.5) on his left ear.
17. P.W.7, in his evidence states that accused No.2 assaulted P.W.2 on his cheeks with hands; accused No.1 assaulted P.W.4 with a Chavel on his head and accused No.3 assaulted P.W.6 on his left ear with a Kathi (MO.5).
18. P.W.12, in his evidence states that accused No.2 assaulted P.W.2 on his cheek with hands and accused No.2 assaulted him with a Kathi (MO.4) on his left ear.
19. In the cross-examination of these witnesses, suggestions were made that the accused persons have not assaulted these persons and in the cross-examination of P.W.1, it is suggested that in the complaint, he has not stated that accused Nos.4 and 5 have not assaulted with stone and the said suggestion was denied. But, he claims in Ex.P.1 – complaint, he has stated the names of all the accused persons. Further, he admits that while lodging complaint, he was aware of the names of the father and four children and others names were not known. But, he claims that the names of other five persons were got confirmed when they were brought to the Court.
20. P.W.2, in his cross-examination admits that a case has been registered against him in the Ullal Police Station for sale of ganja. He claims that when he was subjected to examination at Wenlock Hospital, he sustained six injuries. But, he was admitted to Highland Hospital on the instructions of the Doctor of Wenlock Hospital.
21. P.W.3, in his cross-examination admits that police have taken his signature in the hospital and at that time, he has mentioned the names of only 4 to 6 accused persons and did not mention the names of other accused persons.
22. P.W.4, in his cross-examination admits that police have recorded the statement on the next day. He has mentioned the names of only three accused persons and did not mention the names of other accused persons as he came to know the names of other accused persons when the names of the accused persons were called in the Court.
23. P.W.5, in the cross-examination states that he has sustained four injuries and when he sustained injuries to his head, he lost his conscious and there was ill-will in connection with fisheries business between them and accused persons. He admits that accused Nos.2, 6 and 7 have not assaulted him.
24. In the cross-examination of P.W.6, it is elicited that he was aware of the names of accused Nos.1 to 5, but he was not aware of the names of the remaining accused. He has sustained two injuries. It was suggested to him that due to rivalry between him and the accused with regard to fish business, a false case has been registered against the accused persons even though they had not assaulted him and his brothers and did not cause any injury to them. He has denied the said suggestion.
25. P.W.7, in his cross-examination, has admitted that on hearing the screaming sound, he along with others immediately rushed to the spot; he did not sustain any injury; he did not shift the injured to the hospital; no blood stains were found on his cloth and he did not make any phone call to the Police. It was suggested to him that he was not present at the spot, the incident had not taken place and the accused persons had not assaulted his brothers. He has denied the said suggestion.
26. P.W.12 has admitted in his cross-examination that there was no prior ill will between himself and the accused. Police did not arrive to the spot till he went to the hospital. He was aware of the names of only seven persons and he did not know the names of the other three accused persons. It was suggested to him that he with a mala fide intention had filed a false case against the accused even though they had not assaulted him or anybody and the said suggestion was denied by him.
27. Having taken note of the evidence of PWs.1 to 7 as well as P.W.12, it is clear that P.W.7 has not sustained any injury and he only came to the spot after hearing the screaming sound and he claims that he pacified the quarrel. Having considered his evidence, it appears that he did not go to the spot as he has not given any complaint and also he has not taken the injured to the hospital.
28. This Court has to consider the evidence of PWs.1 to 6 and 12, who are the complainant and injured witnesses. The prosecution has relied upon the wound certificates as per Exs.P6 to P8 and 12 to 17. This Court has to consider the evidence of PWs.16 and 19, who are Doctors and who have treated the injured persons.
P.W.19 – Dr. B.N. Ravindra has examined PWs.1, 2, 3, 4, 6 and 12 and issued wound certificates as per Exs.P12 to P17. P.W.16 – Dr. Suresh Mankar has examined PWs.2, 5 and 6 issued wound certificates as per Exs.P6 to P8. Having considered the said wound certificates, it is clear that at the first instance, the injured persons went to the Government Wenlock hospital at Mangaluru. P.W.19 – Doctor has treated them on 14.09.2009 in between 6:30 to 7:20 a.m. i.e., immediately after the incident. Thereafter, some of the injured witnesses went to private hospital, wherein P.W.16 – Dr. Suresh Mankar has examined PWs.2, 5 and 6 and has issued the wound certificates in terms of Exs.P6 to P8. On perusal of the wound certificates, Exs.P6 to P8, P.W.16 - Doctor has given opinion that two injured i.e., PWs.2 and 6 have sustained one grievous injury each. As per the evidence of P.W.19, who has issued the wound certificates as per Exs.P12 to P17, the injuries are simple in nature. In order to clarify the contradictions in the evidence of PWs.16 and 19, the prosecution did not rely upon any document other than the wound certificates. Hence, this Court has to take note of the nature of the injuries mentioned at the first instance by P.W.19. These injuries are simple injuries and in order to substantiate the grievous injuries mentioned in Exs.P6 to P8, there is no other substantial piece of evidence. Having considered the medical evidence and also the evidence of PWs.1 to 6 and P.W.12, it is clear that the incident had taken place on 14.09.2009 at about 6:30 a.m. Having regard to the evidence of the injured witnesses coupled with the medical evidence and considering the fact that nothing is elicited in the cross- examination of witnesses to disbelieve the evidence adduced by the prosecution and there was no delay in taking the injured persons to the hospital and registering the case against the accused, the trial Judge has considered the material on record to arrive at the conclusion that the accused persons have committed the offences alleged against them.
29. However, taking note of the contradiction between the evidence of PWs.16 and 19 and the medical evidence on record, there is no substance on record to come to the conclusion that grievous injuries are sustained by the injured persons. Hence, we are of the opinion that the Court below has committed an error in convicting accused Nos.1 to 8 for the offence punishable under Section 326 read with Section 149 of the IPC. Considering the other material on record, we hold that the prosecution has proved that the accused by forming unlawful assembly, caused riot and assaulted the complainant -
P.W.1 and injured witnesses i.e., PWs.2 to 6 and 12 with deadly weapons and as a result, they have sustained injuries. Hence, there are no grounds to interfere with the judgment of the Court below insofar as it relates to conviction of accused Nos.1 to 8 for the offences punishable under Sections 143, 147, 148, 323, 324 and 504 read with Section 149 of the Indian Penal Code. The Court below has committed an error in convicting accused Nos.1 to 8 for the offence punishable under Section 326 read with Section 149 of the Indian Penal Code based on the evidence of P.W.16 which is not corroborated by any other evidence.
30. The contention of PWs.1 to 6 and 12 in Crl.Appeal No.287/2013 that the trial Court ought to have convicted accused Nos.1 to 8 for the offence punishable under Section 307 read with Section 149 of the IPC cannot be accepted as we do not find any material on record to show that the said accused persons with an intention to take away the life of the complainant and PWs.2 to 6 and 12 had committed assault on them. During the course of evidence, it has emerged that the incident took place at the first instance with regard to business rivalry between the complainant and accused persons and thereafter, they went and brought the weapons from the Car. Hence, it cannot be held that there was an intention on the part of accused Nos.1 to 8 to take away the life of PWs.1 to 6 and 12. Hence, we do not find any merit in the appeal filed by the appellants in Criminal appeal No.287/2013, wherein they have challenged the order of the Court below acquitting accused Nos.9 and 10 for the offences punishable under Sections 201 and 212 read with Section 149 of the IPC. The trial Judge has considered the material available on record and did not find any incriminating material against accused Nos.9 and 10. We also do not find any incriminating material against accused Nos.9 and 10. Hence, the judgment of the trial Court acquitting accused Nos.9 and 10 for the offences punishable under Sections 201 and 212 read with Section 149 of the IPC. requires to be confirmed as no ground is made out by appellants in Crl. A. No.287/2013 to reverse the said finding.
31. In view of the discussion made above and having regard to the material on record, the judgment passed by the Court below convicting accused Nos.1 to 8, who are appellants in Crl. A. No.382/2013, for the offences punishable under Sections 143, 147, 148, 323, 324 and 504 read with Section 149 of the Indian Penal Code is to be confirmed. The judgment of conviction passed by the Court below against accused Nos.1 to 8 for the offence punishable under Section 326 IPC. read with Section 149 of the IPC is to be set aside. Having considered the fact that the incident had taken place in the year 2009 as a result of rivalry between the complainant and the accused with reference to fish business and almost it has been a decade since then and the circumstances under which the incident had taken place, we are of the opinion that sentence of imprisonment imposed on accused Nos.1 to 8 is liable to be set aside. In lieu of the same, keeping in mind the nature of injuries and the amount spent for taking treatment, it would be just and reasonable to impose fine on accused Nos.1 to 8 for the aforesaid offences. Also, a portion of the fine amount can be ordered to be paid as compensation to the injured persons. Hence, we pass the following :
ORDER (i) Criminal Appeal No.287/2013 filed by injured is dismissed.
(ii) Criminal Appeal No.382/2013 filed by accused Nos.1 to 8 is partly allowed.
(iii) The judgment dated 02.02.2013 passed by the Fast Track Court, Dakshina Kannada, Mangaluru, in Sessions Case No.69/2010 insofar as it relates to convicting accused Nos.1 to 8 for the offences punishable under Sections 143, 147, 148, 323, 324 and 504 read with Section 149 of the Indian Penal Code, 1860, is hereby confirmed. The judgment of conviction and sentence passed by the trial Court against accused Nos.1 to 8 for the offence punishable under Section 326 read with Section 149 of the Indian Penal Code, is hereby set aside and accused Nos.1 to 8 are acquitted of the said offence.
(iv) The judgment passed by the trial Court to the extent of acquitting accused Nos.1 to 8 for the offence punishable under Section 307 read with Section 149 of the Indian Penal Code is hereby confirmed.
(v) The sentence of imprisonment imposed by the trial Court on accused Nos.1 to 8 for the offences punishable under Sections 143, 147, 148, 323, 324 and 504 read with Section 149 of the Indian Penal Code is set aside. In lieu of sentence of imprisonment imposed by the trial Court on accused Nos.1 to 8, fine amount imposed by the trial Court is enhanced and accused Nos.1 to 8, who are appellants in Criminal Appeal No.382/2013 are ordered to pay fine amount of Rs.75,000/- (Rupees seventy five thousand) each and the same shall be deposited before this Court within four weeks from today after deducting the amount of Rs.64,000/- already deposited before the trial Court.
(vi) On deposit of the fine amount, Registry is directed to transmit the same to the trial Court. The Court below is directed to pay amount of Rs.70,000/- (Rupees seventy thousand) to each of the appellants in Crl.A. No.287/2013, who are PWs.1 to 6 and 12. The remaining amount of Rs.1,10,000/- (Rupees one lakh ten thousand) shall vest with the State.
(vii) The honorarium payable to Amicus Curiae, Mrs.Naseema Banu Syed Babu appearing for Accused Nos.9 and 10 is fixed at Rs.5,000/- (Rupees five thousand).
Sd/- Sd/-
JUDGE JUDGE nbm/sma