Point of Law:Acquittal - There cannot be any straight-jacket formula to apply readily for the cases in appeals arising out of acquittal recorded by the trial Court. Whether the view taken by the trial Court is a possible view or not; whether the findings recorded by the trial Court are in conformity with the evidence or not; are the matters which depend upon facts and circumstances of each case and the evidence on record

JUDGMENT :

B.VEERAPPA, J.

These Criminal Appeals are arising out of the common Judgment and Order dated 22/23.04.2016 made in S.C. No.117/2012 on the file of the III Addl. District & Sessions Judge, D.K., Mangalore, whereby the trial Court convicted and sentenced Accused Nos.1,3 and 8 for the offences punishable under Sections 143, 147, 148, 447, 448 and 302 r/w 149 of IPC and acquitted Accused Nos.1,3 and 8 for the offence punishable under Section 120B r/w Section 149 of IPC and Accused Nos.2,4 to 7, 9 to 11 for the offences punishable under Sections 143, 147, 148, 447, 448, 120B, 75 and 302 r/w 149 of IPC.

2. Criminal Appeal No.1128/2016 is filed by Accused Nos.1 and 3 praying to set aside the impugned judgment and order passed by the trial Court in so far as convicting and sentencing them for the offences punishable under Sections 143, 147, 148, 447, 448 and 302 r/w 149 of IPC and consequently acquit them for the said offences.

3. Criminal Appeal No.871/2016 is filed by Accused No.8 praying to set aside the impugned judgment and order passed by the trial Court in so far as convicting and sentencing him for the offences punishable under Sections 143, 147, 148, 447, 448 and 302 r/w 149 of IPC and consequently acquit him for the said offences.

4. Criminal Appeal No.1616/2016 is filed by the State praying to set aside the impugned judgment and order passed by the trial Court in so far as acquitting Accused Nos.1,3 and 8 for the offence punishable under Section 120B r/w 149 of IPC and Accused NOs.2, 4 to 7, 9 to 11 for the offences punishable under Sections 143, 147, 148,447, 448, 120B, 75 and 302 r/w 149 of IPC and convict and sentence the accused for the said offences.

I. BRIEF FACTS OF THE CASE

5. It is the case of the prosecution that there was animosity between accused No.1 and deceased Sandeep Shetty in connection with the real estate business and money transaction. The accused Nos. 1 to 10 on account of assuming that deceased Sandeep Shetty had given information about them to the police, had grudge against him. On 31.10.2010, they conspired with accused No.11 after knowing that he will come to Kankanady Railway Station, met him in the said Railway Station and also in Jail, Mangaluru and formed unlawful assembly, with common intention and hatched plan to kill Sandeep Shetty and made preparations. Later on 13.11.2011, at about 10.10 p.m., during night hours, at the place called Sowmya Compound, near Someshwara Railway Station, accused Nos. 1 to 10 were being the members of unlawful assembly found with rioting, holding deadly weapons namely talwars and iron rods, criminally trespassed by entering into the house of CW1 Hemachandra with intention to commit the murder of Sandeep Shetty. Afterwards, the accused Nos.1 to 6 being members of unlawful assembly with common intention caused the death of Sandeep Shetty by assaulting him by means of talwars and iron rods, caused grievous injuries on his head, neck, waist and other parts of the body. Thus, the accused No.11,who has been convicted in CC No.97/PW/2010, had hatched plan with accused Nos. 1 to 10 to commit the murder of Sandeep Shetty.

6. Accordingly, PW.1 (father-in-law of the deceased) lodged a complaint – Ex.P1 on 14.11.2011 between 00.30 a.m. and 1.30 a.m. On the basis of the complaint, the Police Inspector – PW.33 registered Crime No.355/2011 in Ullal Police Station for the offences punishable under Section 143, 147, 148, 447, 448, 302 r/w 149 of IPC. After completion of investigation, the Police filed the charge sheet against the accused persons. The learned JMFC has taken cognizance and committed the case to the District & Sessions Judge, Mangalore. The learned District Judge framed the charges, read over and explained to the Accused Nos.1 to 11 in the language known to them. They pleaded not guilty and claimed to be tried.

7. In order to prove the guilt of the accused persons, the prosecution examined PWs.1 to 39 and got marked the material documents – Ex.P1 to Ex.P56 and the