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IN THE HIGH COURT OF KARNATAKA

KALABURAGI BENCH

DATED THIS THE 12TH DAY OF AUGUST, 2015

BEFORE

THE HON’BLE MR. JUSTICE A.V.CHANDRASHEKARA

CRIMINAL APPEAL NO. 3676/2010

BETWEEN:

1. Santosh S/o Devindrappa

Ambekar,Age: 26 years,Occ: Electrician,R/o LTRT 15/1, 15th CrossShahabad Tq. Chittapur.

2. Sushil S/o DevindrappaAmbekar, Age: 21 years,Occ: Welder, R/o LTRT 15/1,15th Cross, Shahabad

3. Devindrappa S/o Subh

Age: 26 years,Occ: Electrician,R/o House No.LTRT 15/115th Cross, Shahabad,Tq. Chittapur.

... APPELLANTS

(By Sri: Baburao Mangane & Ashok B. Mulage, Advocates)

R

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AND:

The State Through

Shahbad Town Police Station,Dist. Gulbarga.

... RESPONDENT

(By Sri: Sheshadri Jayashankar M. HCGP)

This Criminal Appeal is filed under Section 374 ofCr.P.C., praying to set aside the judgment and orderdated 03.08.2010 passed in S.C.No.222/2009 by theCourt of the III Additional Sessions Judge At Gulbarga,convicting the Appellants/ Accused for the offences

P/U/S 323, 304(I) R/W Sec. 34 of IPC and theAppellant/ Accused No.1 to 3 are sentenced to undergoR.I. for Seven years each and to pay of fine of Rs.10,000/- each, ID SI for one year each for the offenceP/U/S 304 (I) of IPC. Further the Appellants/AccusedNo.1 to 3 are sentenced to pay fine of Rs. 1,000/- each

ID SI for Two months each for the P/U/S 323 of IPC.

This appeal coming on for hearing this day, theCourt delivered the following:

JUDGMENT

This appeal is filed under Section 374, Cr.P.C.

challenging the judgment of conviction and sentence

passed in S.C.222/09 which was pending on the file of

III Additional Sessions Judge, Kalaburagi. During the

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pendency of this appeal, the 3rd appellant died and

hence the appeal against him has abated.

2. These appellants were charges earlier for the

offences punishable under Sections 323, 324, 341,

504, 302 read with 34 of IPC. Ultimately all of them

have been found guilty of the offences punishable

under Sections 323 and 304-I read with Section 34,

I.P.C. and have been sentenced to undergo RI for a

period of 7 years each and to pay a fine of Rs.10,000/-

each for the offence punishable under Section 304-I,

I.P.C. and to undergo SI for a period of 2 months each

and to pay a fine of Rs.1,000/- each for the offence

punishable under Section 323, I.P.C. It is this

judgment of conviction and sentence dated 3.8.2010

which is called in question in this appeal on various

grounds as set out in the appeal memo.

3. Facts leading to the trial in S.C.222/09 are as

follows:

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a) CW-1,Shabir Ahmed who is examined as PW-3

was residing in the quarters of Alstom Colony in

Shahbad, Kalaburagi District. The names of his two

sons are Sajid Ahmed and Javed Ahmed.

b) At about 9.00 p.m. on the night of 7.12.2008,

when said Shabir Ahmed was in his house, he heard

some commotion. He got down from his house and saw

that CW4-Sajid. his son and CW6-Shivaraj were talking

to each other. At that time, the 1st accused along with

2nd accused and 3 others came there and picked up

unnecessary quarrel with his son and assaulted him.

In the meanwhile, Shabir Ahmed pacified them. When

he was bringing back his son-Sajid Ahmed towards his

house, both the accused accompanied by three more

persons followed them and started assaulting his son-

Sajid in front of his house and 1st accused fisted on his

left eye and 2nd accused fisted on the back and caused

injuries to his son Sajid.

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c) On hearing the commotion, deceased Javed

Ahmed, elder brother of CW4-Sajid came out of the

house and intervened in the matter and asked the

accused as to why they were assaulting his brother.

Then 1st accused is stated to have abused Javed in a

filthy language and asked him as to why he had come

in their way. Saying so, 1st accused assaulted on the

temporal region of Javed and 2nd accused fisted on his

chest and all of them kicked on his stomach, as a

result of which Javed sustained severe injuries and

died at the spot. Thereafter all the accused ran away.

d) At midnight, Sajid Ahmed went to the police

station and lodged a report FIR against accused nos.1

to 3 and other unknown persons on the basis of which

a case came to be registered in Crime No.133/08. After

concluding investigation, charge sheet was filed initially

against accused nos.1 and 2 only and trial was held.

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e) During the course of trial, an application was

filed under Section 319, Cr.P.C. by the prosecution to

implead3rd accused (deceased 3rd appellant herein).

The application was allowed and Devindrappa was

impleaded and material witnesses who had already

been examined, were recalled and further examined

and cross-examined.

f) After the conclusion of the evidence on behalf of

the prosecution, all the accused came to be examined

under Sect5ion 313, Cr.P.C. Their defence is one of

total denial of the allegations levelled. They have made

an attempt to probablise that Javed died because of

falling from the stairs as he was coming from the first

floor to the ground floor. After hearing arguments and

appreciating the oral and documentary evidence on

record, all the appellants have been found guilty for the

offences punishable under Sections 323 and 304-I read

with Section 34, I.P.C. They have been acquitted of all

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other offences, i.e. Sections 324, 341, 504 and 302

read with Section34, I.P.C.

g) As many as 17 persons had been cited as

witnesses in the charge sheet filed by Shahbad police.

Out of them, 15 witnesses have been examined. CW3-

Yakbal Ahmed is examined as PW1 and he is the

attestor to Ex.P1-inquest drawn between 7.00 and 8.00

p.m. on the next day after the incident near the house

of Shabir Ahmed. He has supported the prosecution

case. CW6-Shivaraj is examined as PW2 and he has

stated to be an eyewitness and has the trusted hostile

to the case of the prosecution.

4. Learned counsel for the appellants, Mr.Baburao

Mangane has argued that the material witnesses

examined on behalf of the prosecution are interested

witnesses, in the sense that they are members of the

same family. According to him, requisite caution has

not been taken by the trial court while evaluating their

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evidence. He has argued that PW11-Mohamed Yousuf

has turned hostile subsequently and this has not been

taken into consideration. He has further argued that

the trial court has relied on the opinion of the doctor to

come to the conclusion that the death of Javed was due

to neurogenic shock and trauma as a result of the

alleged assault made by the accused. It is his

argument that such opinion is not based on cogent and

reliable materials and therefore, the trial court could

not have relied on his opinion.

5. He has further argued that the case on hand does

not come within Part I or Part II of Section 304, I.P.C.

and at best, it would fall under Section Section 323

provided the evidence of witnesses related to the

deceased inspire confidence in the mind of the court.

He has placed reliance on the decision of the Hon’ble

apex court rendered in the case of STATE OF

RAJASTHAN .v. MOHANLAL 7 OTHERS ([2012] 2

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CRIMES 73 (SC) to contend that in the absence of any

injury, internal or external on the body of the deceased,

the trial court is not justified in convicting the accused

for the offence punishable under Section 304-I, I.P.C.

6. Per contra, learned HCGP Mr.Seshadri

Jayashankar M.has vehemently argued that the trial

court is justified in relying on the opinion of the doctor

and there is no reason to jettison his version. It is

argued that the evidence of Shabir Ahmed and his

family members cannot be rejected on the ground that

they are related to each other. He has argued that the

evidence of these witnesses is trustworthy and they

have not left out the real assailants in order to

implicate persons unconnected with the case. He has

placed reliance on a decision rendered by three Judges

of the Hon’ble apex court in the case of SANJEEV .v.

STATE OF HARYANA [2015] 4 SCC 387 and another

decision in the case of MOHAN SINGH AND ANOTHER

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.v. STATE OF MADHYA PRADESH reported in [1999]

2 SCC 428.

7. Relying on the above decisions, learned HCGP has

argued that even if there are some contradictions

between the ocular and medical documentary evidence,

ocular evidence will prevail and the duty of the court is

to remove the chaff from the grain while appreciating

the evidence placed on record. He has argued that the

intention to commit the offence can be formed even in

the place of the incident at the time of commission of

the offence and this could be gathered from the

surrounding circumstances established from the

nature of assault and injuries sustained and the

version of independent witnesses. It is further argued

that in order to read either intention or knowledge, the

court will have to examine the circumstances as there

cannot be any direct evidence as to the state of mind of

the accused.

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8. After going through the records and hearing the

learned counsel for the appellants, Mr.Baburao

Mangane and learned HCGP representing the State, the

following points arise for consideration of this court:

1) Whether the prosecution has been able to

proveo that Javed Ahmed, son of Shabir Ahmed

died at 9.15 p.m. on the night of 7.12.2008 in

the vicinity of the house of Shabir Ahmed?

2) Whether the prosecution has been able to prove

that all the accused assaulted Javed Ahmed in

such a way as to cause neurogenic shock and

trauma resulting in his death?

3) Whether the trial court is justified in convicting

the accused for the offences punishable under

Sections 323 and 304-I, read with Section 34,

I.P.C.?

4) Whether the trial court is justified in sentencing

the accused to undergo RI for a period of 7

years and 2 months respectively for the offences

punishable under Sections 304-I and 323,

I.P.C. respectively?

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R E A SO N S

9. Point no.(1): The fact that Shabir Ahmed is the

father of CW4-Sajid Ahmned and deceased Javed

Ahmed and husband of Hajira Begum (PW12) is not in

dispute. The evidence placed on record discloses that

Shabir came out of his house after hearing the

commotion in the vicinity of his house and then he saw

his son Sajid and Shivaraj talking to each other and at

that time, accused nos.1 and 2 assaultedl his son being

accompanied by three more unknown persons. He

went there and pacified them. At that time, Sajid had

not sustained any injuries. Shivaraj, an independent

witness has not supported the prosecution case and

therefore, it has to be eschewed.

10. The best witness to speak about the injuries

sustained is Sajid himself and he has deposed that

when his father was taking him back to their house,

accused nos.1 and 2 accompanied by 3 others followed

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them and assaulted him near his left eye and other

parts of the body. His evidence is sought to be

corroborated by the medical certificate produced at

Ex.P13, wound certificate issued by the officer of

Community Health Centre, Shahbad.

11. PW6-Dr.Mohamed Wasim is the author of

Ex.P13. He has deposed that at 10.35 a.m. on

8.12.2008, a person named Sajid aged 28 years came

to him with history of injuries sustained in an assault.

He had been accompanied by a police constable

(P.C.823). On examining him, he found blackened

swelling on the left eye, scratch mark measuring ¼ cm.

X ¼ cm. And contused wound measuring ¼ cm. X ¼

cm. Near left arm, right elbow and one on the right

wrist. Though he has been cross-examined by the

learned counsel for the accused, nothing useful has

been elicited to discredit his deposition and the

authenticity of the wound certificate issued by him.

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12. Sajid is examined as PW7 and he has spoken

about the assault made by the accused on his brother.

Shabir Ahmed, Sajid Ahmed, Hajira Begum and

Mohamed Yousuf have all deposed about the assault

made by the accused on the deceased near the house of

Shabir Ahmed. The evidence of these witnesses who

are related cannot be rejected outright and it will have

to be evaluated with little caution.

.

13. PW3-Shabir Ahmed has specifically deposed that

when he was going along with his son back home,

accused being accompanied by 3 unknown persons,

followed them and assaulted his son-Sajid and on

hearing the commotion, his son-Javed came down and

asked the accused why they were beating him. Being

enraged by his questioning, the 1st accused assaulted

on his cheek and 2nd accused assaulted on his

abdomen and 3 unknown persons and these accused

assaulted him and kicked with legs. He has further

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deposed that when Javed fell down, the accused kicked

him on his testicles and he died at the spot. Whether

he died because of the assault or not would be

discussed separately on the next point framed for

consideration. Suffice to state that he died at the spot

and this is forthcoming from the inquest mahazar

drawn vide Ex.P1 on the next day and post mortem

report issued by the doctor vide Ex.P12.

14. PW5-Dr.Parameshwar has opined that the cause

of death was due to cardio vascular failure as a result

of neurogenic shock caused by trauma. He conducted

post mortem of the dead body between 9.00 and 11.00

a.m. on the morning of 8.12.2008. Though material

witnesses have been cross-examined at length, nothing

has been elicited from their mouth even to remotely

suggest that Javed Ahmed did not die in the vicinity of

his house at 9.15 p.m. on 7.12.2008. The materials

placed on record by the prosecution are quite sufficient

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to demonstrate that Javed died in the vicinity of his

house. Hence, point no.(1) is answered in the

affirmative.

15. Point no.(2): What is argued by Mr.Seshadri

Jayshankar, learned HCGP is that the evidence of the

doctor is decisive in the present case and this has been

relied on by the trial court. Therefore the evidence of

PW5-Dr.Parameshwar is to be looked into as he was

the medical officer in Shahbad and was working on the

morning of 8.12.2008. It was he who conducted

autopsy on the dead body of Javed between 9.00 and

11.00 a.m. on 8.12.2008. His entire examination is

relevant and it is extracted below:

Examination in Chief by Public Prosecutor:

In December 2008 I am working as

Medical Officer at CHC Shahabad on8.12.008 at about 9 A.M to 11 A.M Iconducted PME over the dead body ofJaveed. On examination of the dead bodythere were no external injuries found on thedead body. On dissection of the dead body

all the injuries organs were intact. I am of

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the opinion that cause of death is due tocardio respiratory failure as a result ofneurogenic shock caused by trauma. Time

since death is within 24 hours. Accordingly Ihave issued PME report, it bears mysignature. PME report is marked at Ex.P.12.Trauma in medical term refers to fisting andblow and even kicking also. A blow given ontemporal region and below on the heart, and

abdomen and testicles it may result toneurogenic shock and resulting to death.Even in the absence of external injuries mayresult to trauma.

Cross Examination by SMP Adv:-

Dead body was brought by P.C. No.46.

I have not enquired history of cause of

death. Since there were no any externalinjuries so there is chance of death causedby neurogenic Shock, even though therewere no internal injuries. There may be anyinternal injuries by kicking on chest,testicles and by fisting also. It is true that in

a 4-5 persons kicked on the chest, testiclesand by fisting there may be possibility ininternal injuries. It is true that deceaseddied after 6 to 8 hours of his last meal. Ihave got given specific time of death in thePME. It is false to say that deceased died due

to heart attack and I have issued false PMEreport. Neurogenic shock may be caused bydifferent types of injures.

Further re-Chief examination by P.P.

Advocate

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If person assault with hand and fisting

on the body no visible injuries caused. If theperson was suddenly brought on house and

attacked there will be shock. Due to shockhe may die also. There were no outwardcontents-3- found in the stomach of thedeceased. Neurogenic shock may leads heardattach.

Further re-cross examination by Sri. S.M.P

Advocate:

It is true that, if a persona made to fall

on ground and 2-3 persons fisted to him andassaulted 10 to 15 times there may beabrasions on the body. If the person was

fisted forceable or kicked there may berupture of spleen.

16. What is argued by the learned HCGP is that the

doctor has opined that in spite of no visible injuries

being found either internal or external, death was due

to shock and therefore, such opinion cannot be

ignored. Per contra, Mr.Baburao Mangane for the

appellants has vehemently argued that the evidence of

PW5 is not gospel truth and it has to be assessed as

that of any other evidence. In the case of MAYUR

P.SHAH .v. STATE OF GUJARATH (1982 Crl.L.J. 82

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(SC)), the Hon’ble apex court has held that the evidence

of a doctor has to be assessed as that of any other

evidence and there is no presumption to the effect that

the evidence of a doctor is a gospel truth. In his cross-

examination, PW5 has specifically deposed that he did

not know about the cause of death and that he did not

notice any external or internal injuries. He has

deposed that there might be internal injury as a result

of kicking on the chest and testicles and by fisting also.

He has specifically deposed that if 4-5 persons were to

kick on the chest or testicles or assault with fist, there

would be possibility of sustaining internal injuries. It

is in this regard the oral evidence of material witnesses

will have to be looked into.

17. Shabir Ahmed has specifically deposed that the

1st accused assaulted on the cheek of Javed and 2nd

accused assaulted on the abdomen and 3 unknown

persons who were there also assaulted him and all of

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them kicked with their legs and assaulted with their

hands. He has further deposed that as a result of the

same, Javed fell down and they again kicked on his

private parts and within 4-5 minutes, he died at the

spot. In his cross-examination, he has deposed that

his son had sustained internal injuries and contusion

was found on the private part, i.e. testicles and chest.

Nothing is forthcoming in the inquest panchnama or

the post mortem report marked as Exs.P1 and P12

respectively. In Ex.P12, it is mentioned that there was

no evidence of any strangulation or any ligature mark

on the neck and no external injuries were found on the

abdomen, chest, upper and lower limbs. Rigor mortis

was seen on all 4 limbs and external genital organs

were intact. The skull was intact and thorax was also

intact. Abdomen was also intact as per Ex.P12 and

urinary organs were also intact and healthy. The

opinion given in Ex.P12 is as follows:

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My opinion as to the cause of death is due

to cardio vascular failure as a result ofneurogenic shock because of trauma.

Sd/-

M.O.

‘Received on 13.1.2009’

Sd/-

PSI, Shahbad

18. Sajid is examined as PW7. He has deposed that

all the accused started assaulting his brother and 1st

accused assaulted on the cheek and 2nd accused fisted

on the abdomen and back and the remaining accused

assaulted his brother with fists and kicked with their

legs on his private part and abdomen. This is found in

the examination-in-chief. Even PW11-Mohamed

Yousuf has deposed that when Javed came out of his

house to see what was happening, 2nd accused and one

person Devindrappa assaulted him with their fist and

kicked on his private part and assaulted him for 4-5

minutes and he died at the spot.

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19. The version of Hajira Begum (PW12) discloses

that she witnessed the incident through the window of

he 1st floor, and all the accused assaulted her son on

his abdomen and kicked him on private part as a result

of which he fell down and died at the spot. PW5-

Dr.Parameshwar has not spoken anything about the

trauma which is mentioned in Ex.P12. It is better to

look into the Medical Jurisprudence and Toxicology

authored by Dr.Subrahmanyam and published by Law

Publishers (India) Private Limited. In page 182 of the

said book, the aspect of traumatology is found in

chapter XII. What are the types and complications of

trauma has been discussed therein apart from defining

the word ‘trauma.’

‘Definition: Injury to the body inflicted bysome form of outside force.

Types: It is categorized into four types:

1. Physical trauma: caused by physical violence

2. Thermal trauma: caused by heat or cold

3. Electric trauma: caused by electric energy

4. Chemical trauma: caused by poisons

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20. Admittedly no internal injuries were found so as

to cause neurogenic shock due to trauma as defined by

Dr.Subrahmanyam in his commentary. It is in this

regard the decision of the Hon’ble apex court in the

case of MOHANLAL (supra) relied upon by Mr.Baburao

Mangane, is relevant. As per the facts of the said case,

PW1 and PW7 (Shambhu and Lalu) were brothers and

residents of a village in Rajasthan. While on their way

back from the house of one Arjun Shah, on the night of

23.1.2000, the accused, i.e. Mohanlal had attacked

them with lathies and dharias. PW7 somehow

managed to escape from the accused and rushed to the

police station and lodged a report at about 11.30 p.m.,

on the basis of which a case was registered for the

offences punishable under Sections 147, 148, 149,

307, 323, 347, I.P.C. and the injured was immediately

shifted to Pratapkar Hospital where he succumbed to

the injuries. On conclusion of investigation, the offence

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of Section 302 was added. On completion of the trial,

they were sentenced to undergo imprisonment for life

for the offence punishable under Section 302, I.P.C.

and imprisonment ranging from 1 to 3 years for other

offences and also to pay fine. In the appeal filed in

Crl.A.509/11 before the High Court of Rajasthan, the

appellants were acquitted of the offence punishable

under Section 302 read with Section 149, I.P.C. and

the sentence already undergone by them was awarded

as sentence in respect of other offences. Against the

said judgment, the State went in appeal before the

Hon’ble Supreme Court.

21. In the said case, the doctor examined as PW13

had deposed that the injuries sustained by the

appellant were simple in nature inflicted on non-vital

parts of the body and there was no external injuries

found on the skull. Therefore in the absence of any

other evidence to support the charge leveled against the

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accused, it was held that they would not be guilty of

murder as the accused had not intended to cause

death of the deceased, nor any bodily injury was

inflicted as was likely to cause death. Even the doctor

who had conducted post mortem did not certify that

the injuries were sufficient to cause death in the

ordinary course. In the light of such evidence, the

Hon’ble apex court held that the High court was

justified in allowing the appeals and acquitting the

accused of the charge of murder and maintaining

conviction for the remaining offences with which they

were charged.

22. In the present case, neither internal injuries were

found nor external injuries. Though there is

consistency in regard to the nature of assault allegedly

made by the accused on Javed Ahmed, they are not

corroborated in any manner by the version of the

doctor. He has not been able to substantiate as to

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what exactly was neurogenic shock or trauma leading

to the death in the manner referred to in the

commentary of Traumatology by Dr.Subrahmanyam.

23. In fact, Dr.Bakshi’s Law Lexicon published by

Ashoka Law House Volume I at page 737, the aspect of

culpable homicide has been discussed at length.

Clause (b) of Section 299, I.P.C. corresponds with

clauses (2) and (3) of Section 300. The only intention of

causing bodily injury coupled with the knowledge of

such injury causing death of a particular victim is

sufficient to boring the killing within the ambit of

clause (2). Clause (2) of Section 299 and clause (4) of

Section 300, I.P.C. both pertain to knowledge of the

probability of the act causing death. This observation

is made on the basis of the decision reported in AIR

2004 SCW 1244 (CHENKU .v. STATE OF KERALA).

What is ‘bodily injury sufficient in the ordinary course

of nature to cause death’ would mean that death would

27

be the most probable result of the injury in the

ordinary course of nature. For a case to fall within

clause (3) of Section 300, I.P.C., it is unnecessary that

the offender intended to cause death, as long as death

ensues from the intentional bodily injury sufficient to

cause death in the ordinary course of nature. Unless

these ingredients are present, it would be culpable

homicide not amounting to murder.

24. Per contra, learned HCGP has relied on the

decision in the case of SANJEEV (supra). As per the

facts of the said case, a doctor had conducted post

mortem on the dead body of one Rajpal with the

assistance of her colleague. She had noticed as many

as 7 injuries. Her opinion is found in paragraph 5 of

the judgment. In fact the dead body in the said case

was found in a pool of blood which would suggest the

nature of injury and intention and also the weapon

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used. This is clearly distinguished vis-à-vis the facts of

the present case.

25. Insofar as the decision rendered in the case of

MOHAN SINGH, it is held by the Hon’ble apex court

that ocular evidence always prevails over medical

evidence. It is true that the court is expected to remove

the chaff from the grain in order to give the benefit of

doubt. In the present case, though there is consistency

in regard to the nature of assault made on Javed

Ahmed by the accused, the same is not corroborated

even remotely in the form of oral evidence of

Dr.Parameshwar or PW12 or the post mortem report.

26. Suffice to state that on re-assessment of the

entire oral and documentary evidence on record, it can

be held with certainty that . the assault allegedly made

on Javed Ahmed did not cause any external or internal

injuries and cannot be considered as the basis for the

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alleged neurogenic shock or trauma. Trauma must

necessarily be based on the injuries sustained as per

the commentary by Dr.Subramanyam. Therefore point

no.(2) is answered in the negative.

27. Point nos.3 and (4): The learned judge is not

justified in convicting the accused under Section 304-I,

I.P.C. On the other hand, he is justified in convicting

them for the offences punishable under Sections 324,

341, 504 and 302, I.P.C. Accused have already

deposited Rs.10,000/- each in regard to the offence

under Section 304-I, I.P.C. The same could be treated

as fine for the offence punishable under Section 323,

I.P.C. Accused nos.1 and 2 were in judicial custody for

more than 4 months during investigation. Therefore

the conviction for the offence under section 323, I.P.C.

alone is to be confirmed by enhancing the sentence of

fine from Rs.1,000/- each to Rs.11,000/- each and

adjusting the amount already deposited by them.

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28. At this stage, Mr.Baburao Mangane, learned

counsel for the appellants has requested that the

conviction and confirmation of sentence under Section

323, I.P.C. should not come in the way of accused

nos.1 and 2 to continue their work in Alstom Limited,

a cement manufacturing company. The said

submission is taken on record.

29. In the result, the following order is passed:

ORDER

The appeal is allowed in part. The judgment of

conviction and sentence insofar as the offence

punishable under Section 304-I, I.P.C. is concerned, is

set aside. The judgment of conviction and sentence for

the offence punishable under Section 323, I.P.C. is

confirmed, enhancing the fine amount from Rs.1,000/-

each to Rs.11,000/- and the amount of fine already

deposited by the accused be adjusted towards fine. It

is made clear that the sentence of fine imposed for the

31

offence punishable under Section 323, I.P.C. would not

come in the way of their employment.

Out of the fine amount of Rs.33,000/- in deposit

as fine, Rs.25,000/- (rupees twenty five thousand only)

be given to Shabir Ahmed (PW3) as compensation as

ordered by the trial court. The appeal stands modified

accordingly.

Sd/-

JUDGE

vgh*