STATE OF KARNATAKA Vs. A P PUTTASWAMY GOWDA

JUDGEMENT

(1.) THESE two appeals are interconnected. The first appeal is directed against the judgment and order of conviction of the respondents for the lesser or minor offences under S. 326 read with S. 34 of IPC and under S. 341 read with S. 34 of IPC and further as against their release under Ss. 3 and 4 of the Probation of Offenders Act, 1961 (hereinafter referred to as 'p. O. Act') by execution of a bond for one year to maintain good conduct, when the original charge as against them was u/ss. 341, 324 and 307 of IPC whereas the second appeal is directed against the order of acquittal passed by the learned Sessions Judge, Chickmagalur u/s. 307 of IPC. Both the appeals are filed by the State represented by the learned SPP.

(2.) WE heard the learned SPP appearing for the appellants in both the appeals and the learned counsel, Sri B. R. Deshpande appearing along with Sri Sampath Anand Shetty for the respondents-accused. We have also perused the case records in both the appeals and further perused the case records in S. C. No. 27/87 of the learned Sessions Judge.

(3.) THE facts of the case leading to filing of the above two appeals can shortly be narrated as hereunder : That the respondent-accused No. 1 is the father whereas the respondents-accused Nos. 2 and 3 are his sons. All of them tried by the District and Sessions Judge, Chickmagalur (henceforth in brief as the 'sessions Judge') in S. C. No. 27/87 for the commission of offence punishable under Ss. 341, 324, 307 read with S. 34 of IPC. The allegations of the prosecution against the respondents-accused are that on 31-7-1986 at about 6-30 p. m. in the land of Chandregowda situated in Agala Village the respondent-accused No. 1 obstructed PW. 3-Lokeshgowda while he was proceeding to allow water to flow to his wet land and further that the respondent-accused No. 1 assaulted PW. 3 by MO. 5-club and that on hearing the noise the mother of P. W. 3, Rudramma PW. 4 and his brother (Ramesh) PW. 2 came to the spot. Thereafter the respondent-accused No. 1 asked the respondent-accused No. 2 to fetch the MO. 1-gun from their house and at that the respondent-accused No. 2 having fetched the gun from their house, fired pellets in MO. 6-bottles by MO. 1-gun and injured PW. 3-Lokeshgowda and PW. 4-Rudramma. It is further stated that on hearing the noise and commotion, the complainant PW. 1-Honnappa Gowda, elder brother of PW. 2 and the son of PW. 3 came to the spot and at that the brother-in-law of PW. 1, PW. 2 and PW. 3 and further son-in-law of PW. 4, PW. 15 Shivegowda living in the neighbourhood also visited the spot. Having found PW. 15 on the scene, the respondent-accused No. 3 had taken MO. 1-gun from the hands of the respondent-accused No. 2 and further fired pellets in MO. 8-Bottle to PW. 15-Shivegowda. That the complainant-PW. 1 had taken the injured PWs. 3, 4 and 15 and admitted to the Chickmagalur Hospital for treatment. Before that he had also lodged Ex. P-1-complaint before PW. 14-PSI of Aldur Police Station. PW. 14 after completion of the investigation, filed the charge sheet before the learned Chief Judicial Magistrate on 29-6-1987 and on committal to sessions, the respondents-accused persons had taken the trial before the learned Sessions Judge. That, the learned Sessions Judge had framed charges as against all the respondents-accused persons for the offences under Ss. 321, 324 and 307 read with S. 34 of IPC. The respondents-accused have pleaded not guilty before the learned Sessions Judge, whereupon the learned Sessions Judge had conducted the trial. It is relevant to mention here that the respondent No. 1 herein in connection with the very incident had also lodged a complaint before the very Police alleging that PWs. 2 to 4 and PW. 1 complainant in the instant case had attacked and assaulted him by 'katta' and clubs and that the said police had also filed a charge sheet against the said person in CC No. 78/90 and in the said case all the eye-witnesses had turned hostile and finally the said case had ended in acquittal of the PWs. 2 to 4 and complainant PW. 1 herein. In the instant case in hand the prosecution had examined in all 16 witnesses examined as PWs. 1 to 16 including PW. 1-complaint, the injured witnesses PWs. 3 and 4 and PW. 15, PW. 5, a witness who visited the spot after the incident, PW. 6 and PW. 7 mahazar witnesses for seizure of MO. 2-shirt and MO. 3-lungi of PW. 3 under Ex. P3, PW-8-mahazar witness for seizure of MO. 1-double barrel gun under Ex. P6, mahazar witness-PW. 9 for seizure pellets in MOs. 6 to 8-bottles under Ex. P7, PW. 12 Doctor witness who had examined injured PW. 3, PW. 4 and PW. 15 and further issued wound certificate-Ex. P. 7-B, Ex. P9 and Ex. P8 respectively and further opined that the injured PW. 3 and PW. 15 had suffered grievous injuries having been injured with pellets fired from MO-1-DBML gun, PW. 13-Assistant Director, Ballistic Expert, Bangalore, PW. 15-I. O. The prosecution had also produced in all 14 documents and they include Ex. P1-complaint, Ex. P2-spot panchnama, Ex. P3 to P5-mahazar for seizure blood stained clothes, Ex. PW. 6 seizure mahazar for MOs. 6 to 8 bottles and P7 (b), Ex. P8 wound certificate of PWs. 3 and 15 respectively, Ex. P9-wound certificate of PW. 4, Ex. P10-FSL report, Ex. P12-mahazar for seizure of MO. 1-rifle, Ex. P12-report of the chemical examiner and Ex. P14-gun licence in the name of the respondent-accused No. 1. In addition to the above, the prosecution had also produced 10 material objects they are MO. 1-DBML gun, MO. 2 and MO-3-blood stained shirt and lungi respectively of the injured PW. 3, MO. 4 blood stained saree of PW. 4, MO. 5-club, MOs. 6 to 8-bottles contained pellets, MO. 9-cap and MO. 10-blood stained shirt of injured PW. 15. On appreciation of the above material evidence on record, the learned Sessions Judge had convicted and sentenced all the respondents-accused persons for the offence under Ss. 341 and 326 read with S. 34 of IPC, whereas he had acquitted all of them under S. 325 (1) of Cr. PC for the offence under S. 307 read with S. 34 of IPC. However, the learned Sessions Judge by exercising his power under S. 4 of the Probation of Offenders Act, released the respondents-accused person on probation for maintaining good conduct for a period of one year. The appellant-State having been aggrieved with the impugned judgment and order of conviction for the minor offence under S. 326 read with S. 34 of IPC and further releasing them under S. 4 of the Probation of Offenders Act had resorted to the above two appeals. When the first appeal i. e. Cr. A. No. 667/94, the appellant-State had challenged the impugned judgment and order in so far as the same related to the acquittal of the respondents for the offence under S. 307 of IPC, in the second appeal i. e. Cr. A. No. 669/94, the appellant-State had challenged the same to set aside the portion of the order of the learned Sessions Judge in so far as the same related to releasing of the respondents-accused under S. 4 of the Probation of Offenders Act.