The main legal point established in the judgment is the re-evaluation of the evidence to determine the appropriate offences committed by the accused persons, leading to the setting aside of the previous conviction and imposition of separate sentences for the individual offences.

JUDGMENT :

K.N. Phaneendra, J.

1. The appellants are the accused persons in Sessions Case No.98/2008 on the file of II Addl. Sessions Judge, Gulbarga have preferred this appeal against the judgment of conviction and sentence passed in the said case vide judgment dated 02.09.2011, wherein the accused persons were convicted for the offence under Section 307 R/w Section 34 of IPC and sentenced them to undergo imprisonment for life.

2. The brief factual matrix of the case are that, on 28.06.2007 in the evening at about 6.00 p.m., the PW1 by name Kalyani S/o Lakkappa R/o Chincholi has tethered a he-buffalo near his house and fed the he-buffalo with grass and water etc. At that time, the accused No.2 came to that particular spot and started abusing the complainant calling him as bustard and why he has tethered the said he buffalo near his house. By saying so he asked accused No.1 to bring an axe from the house. Accordingly, accused No.1 brought one axe from the house and that time accused No.3 and 4 also came to the spot. It is further alleged that, accused No.1 with the help of the axe from its hind portion assaulted PW1 due to which he sustained injuries. Accused No.2 assaulted with a club on the back and left shoulder of PW1. At that time accused No.3 and 4 have instigated accused No.1 to assault PW1 and also to finish him off and it is alleged that accused Nos.3 and 4 also kicked on the chest and stomach of PW1 with their legs. It is alleged that later the other eye witnesses came to the spot and resolved the dispute and thereafter PW1 was admitted to the hospital at various places and ultimately he was admitted at Ashwini Hospital at Solapur. It is further alleged that, PW-1 sustained fracture to his head. On the above said allegations, a complaint as per Ex.P1 came to be lodged by PW-1 and a case has been registered against the accused persons, in Crime No.98/2007 initially for the offences under Sections 323, 324, 504 and 506 of IPC R/w Section 34 of IPC. After investigation, a charge sheet has been laid against the accused persons for the offences under Sections 307, 326, 323, 324 and 506 of IPC. The accused persons were tried by the learned Sessions Judge after framing of charges and the court found that, all the accused committed the offences under Sections 326 and 307 of IPC. However, the trial court has convicted and sentenced the accused persons for the offence under Section 307 of IPC read with Section 34 of IPC.

3. The learned counsel for the appellants strenuously contends before the court that, there was a case and counter case between the parties. In an affray both the parties have quarreled with each other and in that context the accused persons themselves have sustained injuries, and in fact PW1 and his family members have assaulted accused persons. Further he submits before the court that, the complainant PW1 has not actually sustained any fracture, but with the help of the hospital authorities he got created a document to show that he suffered as a fracture. The entire evidence of the prosecution is not reliable because the eye witnesses and PW1 are interested witnesses and in fact eye witnesses are closely related and they are one way or the other interested to support the evidence of PW1. Further it is contended that there is no specific allegations against accused No.3 and 4 with regard to they having used any weapons, nor accused No.2 has used any weapon to assault the PW1. It is only the allegation against accused No.1 who assaulted on the head of PW1. That to the prosecution has not proved that PW1 has sustained any fracture so as to attract either Section 326 or 307 of IPC. The learned counsel also contends that, on perusal of the entire case of the prosecution, there is no intention on the part of accused No.1 to assault the PW1 so as to cause such a bodily injury which is sufficient in the ordinary course to cause the death of the injured, so as to attract Section 307 of IPC. Even Section 326 is also not a