This appeal under Section 374(2) of Cr.P.C. is filed by the

appellants-accused Nos.1 and 4, challenging the judgment of

conviction and order of sentence dated 05.04.2017 passed by

the Sessions Judge at Yadgiri in S.C.No.19/2014, by which, the

appellants-accused Nos.1 and 4 are convicted for the offences

punishable under Sections 324 and 307 R/w Section 34 of IPC

and sentenced to undergo simple imprisonment for five years

and to pay fine of Rs.25,000/- each and in default of payment

of fine to undergo simple imprisonment for six months for the

offence punishable under Section 307 R/w Section 34 of IPC

and further sentenced to undergo simple imprisonment for two

years and to pay fine of Rs.10,000/- each and in default of

payment of fine to undergo simple imprisonment for three

months for the offence punishable under Section 324 R/w

Section 34 of IPC.

The case of the prosecution in brief is that, earlier

accused

No.1

was

cultivating

the

land

belonging

to

Bheemannagouda Patil on lease and subsequently after

completion of the lease period, CW.1-Srinivas had taken the

said land on lease and was cultivating the land and thereby

accused No.1 developed grudge against CW.1 and with an

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intention to kill the said CW.1, on 21.06.2013, the accused by

forming an unlawful assembly, accused No.1 threw chilly

powder on the face of CW.1 and assaulted him on his head with

rod; accused No.2 assaulted on the right finger and elbow of

CW.1 with stick; accused No.3 assaulted on the right knee and

right elbow of CW.1 with stick and accused No.4 assaulted on

the nose and left leg of CW.1 with stick.

3.

The learned Sessions Judge, after appreciating the

evidence on record held that, the prosecution has proved the

guilt of accused Nos.1 and 4 for the aforesaid offences beyond

all reasonable doubts and passed the impugned judgment of

conviction and order of sentence. Hence, this appeal by

accused Nos.1 and 4.

4.

Heard the learned counsel for the appellants-

accused Nos.1 and 4 and the learned High Court Government

Pleader for the respondent-State.

5.

PW.11 had lodged the First Information Report, and

in the said FIR, he had alleged that accused No.1 and three

others had assaulted him and he could not recognize the other

three persons, since the incident had taken place during night

hours at 10.30 p.m. and he further stated that he can

recognize, if he sees them in future. The alleged incident has

taken place on 21.06.2023 and his further statement was

recorded on 19.08.2013. In the said further statement, he has

stated that due to the injuries sustained by him he had not

stated the names of accused Nos.2 to 4 in the FIR, and he

further stated that accused No.2 assaulted him on the right

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finger and elbow with stick, accused No.3 assaulted on the right

knee and right elbow with stick, and accused No.4 assaulted

him on the nose and left leg with stick. In the examination-in-

chief, PW.11 has stated that he was assaulted by accused No.1

on his head with iron rod and accused No.4 assaulted him on

his leg and nose with a stick. However, PW.11 did not state the

overt act of accused Nos.2 and 3 for having assaulted him.

PW.11 in the FIR has not recognized accused Nos.2 to 4 and

only in the further statement he has stated that due to the

injury sustained by him he did not mention the names of

accused Nos.2 to 4 in the FIR. The further statement was

recorded after lapse of more than nearly two months from the

date of incident and hence, in the absence of any eyewitnesses

to the incident, the evidence of PW.11 that accused No.4

assaulted him with stick cannot be said to be trust worthy and

a doubt arises that accused No.4 has been falsely implicated.

Hence, in the absence of any cogent evidence, the benefit of

doubt has to be given to accused No.4 with regard to his

involvement in the crime and as such, the impugned judgment

of conviction and order of sentence insofar as it relates to

accused No.4 is not sustainable in law.

6.

PW.11 in the F