M.F. Saldanha, J.
1. This appeal is directed against the conviction and sentences awarded to the five accused in S.C. No. 59/ 93 by the learned Sessions Judge, Chitradurga.
2. It is the prosecution case that there have been long standing disputes in respect of certain property matters between the two groups who are parties to this incident. On 31-10-1992 at about 6-40 p.m. the five accused are alleged to have assaulted PW-3-Chandrasekharappa, accused Nos. 1 and 2 being armed with machus and the other three persons though not armed are supposed to have been instigating and encouraging the main assailants. PW-3 sustained four injuries and it was providential for him that his brother who is PW-1 and other persons rushed to his assistance whereupon the accused are alleged to have thrown the weapons at that place and fled from there. PW-3 was thereafter taken to the hospital and the certificate Ex. P.3 clearly indicates that he had disclosed the names of the persons who had assaulted him. He was admitted in the hospital for treatment and PW-1 lodged a complaint in respect of the incident. This complaint was lodged on the afternoon of the next day at about 4.30 p.m. The police arrested the five accused, completed the investigation and charged with having committed the offence punishable under Section 307 read with 34, I.P.C.
3. The learned trial Judge convicted the five accused and awarded varying sentences, the heaviest of them being four years R.J. and a fine of Rs. 1000/- for the offence punishable under Section 307, I.P.C. The present appeal is directed against the conviction and sentence awarded to the appellants.
4. I have heard the learned counsel on both sides and have also reviewed the evidence completely. The main attack is with regard to the credibility of PWs-1 and 3. PW-1 s the brother of PW-3-Chandrasekharappa who is an injured person. The evidence of these two witnesses is more or less consistent and it is their case that the five accused persons had in furtherance of the common object assaulted PW-3 and that the injuries were inflicted by accused Nos. 1 and 2 both of whom were armed with machus. They maintained that these two accused were instigating accused Nos. 3 and 4 who were even shouting out that PW-3 should be killed. This evidence has withstood the test of cross-examination.
5. The appellants’ learned advocate pointed out to me that there is a long standing history of disputes between the parties as also a series of litigations. His submission is that PW-3 having sustained injuries which could have been in the course of any quarrel or any incident, that he and his brother decided to falsely implicate their long standing enemies i.e., accused Nos. 1 to 5 and in support of this submission, apart from reference to the litigations between the parties he has relied on one very strange factor viz., the fact that even though the incident took place on the evening of 31-10-1992 the complaint was lodged with the police only on the afternoon of 1-11-1992 at 4.30 p.m. The learned advocate points out that even though the reason putforward by the prosecution was that the police station is about 15 kilometers away, that this is absolutely no ground for delay of this magnitude and his submission is that it is very clear that the witnesses were conspiring among themselves before approaching the police. As far as the last contention is concerned, while I do concede that there has been delay, it would not be fatal as far as the present case is concerned for only one reason viz., the fact that the injured person has disclosed the names to the doctor within hardly three hours of the incident when he was taken there. This would indicate that even if for whatever reason the complainant reached the police station after a considerable lapse of time that it would not be fair to the prosecution to totally discard the contents of ‘the complaint merely because of some delay. While I do concede that in the majority of criminal cases abnormal delay would cost serious doubt on the complaint, there are exceptions to this rule and if the Court is satisfied that the names were disclosed and have been recorded at the earliest point of time then it would not be proper to either suspect or discard the complaint merely because the villagers might have taken time to approach the police authorities.
6. The more serious ground of attack emanates from the fact that PWs-1 and 3 have unmistakably deposed to the effect that the injuries were caused due to the use of machus. The learned advocate points out that these are sharp cutting instruments and when they are used as weapons of assault that there could be no doubt about the fact that they would cause serious injuries to the human body but what he demonstrates from the medical evidence is that the doctor has unequivocally indicated that the injuries were all lacerated wounds and not incised wounds. Even though the doctor has in examination-in-chief stated that the injuries could have been caused by two weapons, that the accused are supposed to have thrown at the scene of offence and which the police had seized i.e., machus, in cross-examination, he admits that the lacerated wounds would normally be caused by a hard and blunt substance and not by sharp cutting instruments. The learned advocate did rely on passages from standard books on medical evidence and I have no hesitation in accepting the position that if sharp cutting instruments were used, that incised wounds would have resulted and that since the wounds have been categorised as lacerated wounds which the doctor confirms in his evidence, it is impossible to” reconcile the medical evidence with the oral evidence. As far as the position in law is concerned the appellants’ learned counsel has relied on a string of authorities some of which I have illustrated below in support of the proposition that where it is impossible to reconcile the medical evidence with the oral evidence that the former must prevail as it is the more reliable of the two. The authorities relied upon him are as follows:
(1) ILR 1995 (2) Kar 1291.
(2) 1996 (2) Cr LJ 1987 : AIR 1996 SC 3010
(3) AIR 1981 SC 1578.
(4) 1977 (2) Kar LJ 337 : 1978 Cri LJ (NOC) 18 (Kant).
7. The learned Additional State Public Prosecutor submitted that in the first instance the doctor himself has virtually contradicted his opinion by initially indicating that the injuries which PW-3 had sustained were possible through the use of machus and has thereafter somersaulted and accepted the position that the lacerated wounds which he has described in the wound certificate and in his evidence could only be caused by hard and blunt substance. The learned advocate submitted that the Court is not bound to accept the opinion or for that matter the description of the wounds as set out by the doctor, if the Court is of the view that he has not been careful or competent. Secondly what he submits is that the Supreme Court in the decisions reported in AIR 1983 SC 484 : (1983 Cri LJ 822 and AIR 1990 SC 1242 (1990 Cri LJ 1269) has unequivocally laid down that where the expert evidence appears to be unacceptable to the Court in view of the fact that it is absurd that it is open to the Court to brush aside the medical evidence and rely on the oral evidence if that appears to be absolutely trustworthy. Thirdly, he submitted that in the course of an assault of this type, it is evident from the fact that if the accused persons intended to kill, that even one blow with a machus would have been sufficient, that there is good ground for the Court to uphold the view that the intention was to assault and not to kill and his submission proceeds on the footing that if this was the position, the accused could easily have used the blunt side of the weapon and not the sharp side. His further contention that the evidence of PW-1 and 2 is good enough on its own face value and that the medical evidence even if watered down because of its inaccuracy is not required for purposes of corroboration. The appellants’ learned advocate is right when points out that in Criminal cases that criminal jurisprudence invariably attached a high degree of reliability to medical evidence particularly documentary evidence such as the wound certificate etc., as also the evidence of the doctor who is an independent expert and consequently, if there is inconsistency between this head of evidence and the oral evidence that the medical evidence would prevail and the oral evidence would have to be given a go-by. This is a general rule but the law also provides that where the oral evidence is so very credible and so very reliable and the medical evidence, the quality of some of the doctors being what it is, is of a far lower calibre, that in such a situation a Criminal Court is not bound to reject the oral evidence merely because it is consistent with the medical evidence. There are situations wherein the Court would reconcile the two even through the process of watering down and in the present case, there can be no manner of doubt about the fact that the weapons used by accused Nos. 1 and 2 were machus because these were thrown by the assailants at the scene of offence and have been recovered by the police. It is therefore obvious that the doctor was in error while noting down the description of the wounds and having done so he was bound by his earlier entries when he gave evidence. Also there is some substance in the submission canvassed by the learned Addl. State Public Prosecutor that having regard to the fact that a machu is a deadly weapon and even a single blow could have fatal consequences that taking into account the parts of the body at which blows were aimed and the type of injuries caused being relatively insignificant that if the intention was not to kill, that the Court cannot rule out the possibility of the reverse side of the weapon having been used in the assault. This position would undoubtedly benefit the accused because the gravity of the charge would get considerably reduced.
8. On a total consideration of the evidence before the Court, to my mind, there can be no manner of doubt whatsoever about the fact that the prosecution has succeeded in establishing that the injuries caused to PW-3 were at the instance of accused Nos. 1 and 2. The appellants learned advocate vehemently submitted that even if accused Nos. 1 and 2 are held guilty for causing the injuries and having regard to the background of hostility, that this is a case in which the Court must extend the benefit of doubt to accused Nos. 3, 4 and 5. There is considerable justification in the submission as far as the present case is concerned because if accused Nos. 3 to 5 were not armed then it would be difficult to hold that; they were acting in furtherance of a common; intention of accused Nos. 1 and 2 also because accused Nos. 3, 4 and 5 did not take any part in the assault and from the allegation that they were only instigating accused Nos. 1 and 2 the Court would legitimately be led to believe that some degree of doubt arises with regard to their level of participation. It is in this background that the submission canvassed on behalf of the accused Nos. 3, 4 and 5 will have to be upheld and the conviction and sentence awarded to them by the trial Court is accordingly set aside.
9. I have heard the learned counsel on both sides on the question of the appropriate section under which the accused would have to be convicted as also on the question of sentence. The learned Additional State Public Prosecutor submitted that the injuries were serious, that deadly weapons were used and that consequently a conviction under Section 326 would be appropriate. His counter part has submitted that the description of the injuries would indicate that none of them were life threatening and even with regard to the fact that two teeth were lost and two of the small bones in the hand were fractured, his submission is that this is hardly a case that would qualify to be grouped under Section 326, I.P.C. I have very carefully assessed the medical evidence and I had occasion to indicate earlier that the competency level of the doctor in this case leaves much to be desired. Time and again this Court has sought to impress upon the authorities that in Criminal cases medical evidence is vital and if the doctors are casual or if they are negligent that there is reason for the Court to doubt the integrity of the doctor as the entire prosecution would fail because of these factors. Having regard to the nature of the injuries which I have taken careful note of, the conviction would have to be brought down to one under Section 325, I.P.C. but I hasten to add that this is virtually a border line case because of the definition of grievous hurt as appears under Section 320, I.P.C. wherein if there is loss of tooth or a fracture the injury would have to be categorised as grievous. The more reliable test is the question as to whether the consequence of the injuries is so serious as to threaten life and the answer in the present case would have to be in the negative. These are aspects of the case which I have taken careful note of because the appellant’s learned counsel points out to me that accused Nos. 1 and 2 are farmers, they have no criminal background, that even if some violent incident took place it is because of the long standing dispute and further more that eight years have elapsed since the incident and the accused are now on bail and consequently even if they were to be punished, that the Court should award a heavy fine and not direct that they should be reconfined in prison. For all these reasons, I have accepted the submissions and it is accordingly directed as far as accused Nos. 1 and 2 modification of the conviction and sentence, awarded by the trial Court they shall stand convicted of the offence punishable under Section 325 read with 34, I.P.C. and it is further directed that they shall undergo imprisonment for the period already undergone and they shall pay fine quantified at Rs. 10,000/- each. No in default sentence is awarded. The fine amount to be deposited in the trial Court within a period of twelve weeks from today, after which the trial Court to issue notice to PW-3-Chandrasekharappa and to pay the whole of the amount i.e., Rs. 20,000/- to him as compensation. It is directed that if accused Nos. 3, 4 and 5 have deposited the fine awarded to them earlier, the same shall be refunded to them and if accused Nos. 1 and 2 have deposited the fine awarded by the trial Court it shall be deducted while recovering the present fine.
10. The appeal substantially succeeds and stands disposed off. The bail bonds of the accused to stand cancelled.