Mohan M. Shantana Goudar, J.

1. The judgment and order dated 26.07.2010 passed by the Addl. Sessions and Fast Track Court, Hassan, in Sessions Case No. 137/2003 is the subject matter of these two appeals.

By the impugned judgment the Trial Court convicted accused Nos. 2, 3 and 4 for the offences punishable under Sections 341, 326 r/w 34 of IPC. The accused were sentenced to undergo imprisonment for one month for the offence punishable under Sections 341r/w 34 of IPC and were sentenced to undergo three years of imprisonment and to pay fine of Rs. 15,000/- for the offence punishable under Section 326 r/w 34 of IPC. Default clause is also imposed by the Trial Court. By the very judgment, the Trial Court acquitted the accused for the offences punishable under Sections 143, 147, 427, 506, 307 r/w 149of IPC.

2. Criminal Appeal No. 918/2012 is filed by the victim (PW.5) praying this Court to convict the accused for the offence punishable under Section 307 of IPC. Criminal Appeal No. 828/2010 is filed by the convicted accused praying for their acquittal.

3. The case of the prosecution in brief is that at about 9.45 p.m. on 16.12.2002, these accused including the appellants in Criminal Appeal No. 828/2010 formed themselves into unlawful assembly with an intention to commit the murder of the victim (V.T. Murthy - PW.5); way laid the Motor Cycle which was being driven by the victim PW.5 - Murthy and assaulted him with lethal weapons like chopper on various parts of the body; it is specifically alleged that accused Nos. 1 to 4 assaulted mercilessly with chopper, whereas accused Nos. 5 and 6 were standing nearby holding the weapons. PW.6 was pillion rider on the Motor Cycle, however he has not sustained any injury. Immediately after the incident, the victim was taken to Chikmangalore Government Hospital by PWs. 4 and 6 wherein the injured victim took treatment to certain extent, thereafter the victim was referred to Manipal Hospital for better treatment. Consequently the victim was admitted to Manipal Hospital and treated by PW.7 in the said hospital.

In the meanwhile, first information came to be lodged by PW.6 as per Ex. P3 based on which Criminal case came to be registered against these accused for the offence punishable under Section 307 of IPC and other offences. PW.16 - the Investigation Officer completed the investigation and laid charge-sheet.

4. In order to prove its case, the prosecution in all examined 16 witnesses and got marked 20 exhibits and 15 material objects. On behalf of defence, no witness is examined, one exhibit is marked. As aforementioned, the Trial Court on evaluation of the material on record concluded the case and convicted accused No. 1 for the offence punishable under Sections 341, 326 r/w 34 of IPC. However, they are acquitted for other offences including the offence punishable under Section 307 with which they were charged.

It is also relevant to note that during the subsistence of the trial before the Court below, accused No. 1 has expired. Hence no order is passed against accused No. 1, though the trial Court found that he was also involved in the incident along with accused Nos. 2, 3 and 4.

5. Sri A.H. Bhagavan, learned counsel appearing for respondent Nos. 2, 3 and 4 fairly submits that accused may not have any case on merits, inasmuch as the victim has sustained severe injuries on his legs and the hands; however, he submits that the accused have not committed offence punishable under Section 307 of IPC inasmuch as none of the injuries sustained by the victim are on the vital parts of the body; that there was no intention on the part of the accused to commit the murder of the victim; had it been the intention of the accused, to do away with the life of the victim they would not have left the spot without committing murder, more particularly when the victim was not armed and the accused were armed with deadly weapons. He further submits that the sentence of imprisonment imposed by the Trial Court is on t