JUDGMENT
Kumar Rajaratnam, J.
1. This is an appeal against acquittal preferred by the State.
2. The State being aggrieved by the judgment of acquittal passed in S.C. No. 190 of 1991, dated 27th September, 1996 by the Sessions Judge, Belgaum, has preferred this appeal against acquittal.
3. A petty quarrel with respect to the bathroom water being let out by the accused in front of the house of P.W. 3 led to the father of P.W. 3 being allegedly murdered by the accused.
4. The prosecution case in brief is that on 26-3-1991 at about 7.30 p.m. when P.W. 3 was passing in front of the house of the accused, A-1 asked P.W. 3 as to why his father the deceased had abused his mother with respect to the dispute that the bathroom water being lot out. During the quarrel, the deceased and his sons, P.Ws. 4 and 5 came to the spot and began to quarrel. At that time A-3 hit the deceased by means of an axe, A-2 assaulted P.W. 3 with a club arid A-1 also alleged to have been caused injuries to P.Ws. 4 and 5 by means of a club.
5. The deceased was shifted to Pachapur Government Hospital. From there, he was shifted to Civil Hospital, Belgaum. The deceased died on 2-4-1991 at 5 a.m. P.W. 3, the son of the deceased lodged the complaint on 27-3-1991 at about 3.00 p.m. before P.W. 12, the PSI as per Ex. P. 4. P.W. 12 on the basis of Ex.P. 4 registered a case in Crime No. 91 of 1991 under Sections 324, 323, 504 read with Section 34 of the Indian Penal Code and forwarded the FIR to the jurisedictional Magistrate. The case was converted to one under Section 302 read with Section 34 of the Indian Penal Code against the accused after the death of the deceased. After completing the investigation P.W. 18, the Circle Inspector has filed the charge-sheet.
6. The accused in this case did not dispute the occurrence but stated that it was P.W. 3 and the deceased along with P.Ws. 4 and 5 came to
the house of the accused and damaged the door and pelted stones. It was further submitted that A-1 was assaulted by an axe, as a result his leg was fractured. The mother of A-1, one Smt. Satyavva also sustained injury as a result of the assault by the deceased and other prosecution witnesses. There is also material to show that A-1 lodged a complaint against the deceased, P.W. 3 and his brothers. In the light of the stand taken by the accused in the Trial Court, it would be appropriate to deal with the injured witnesses.
7. P.W. 3 is the complainant. He states in his evidence that A-1 to A-3 are brothers. The accused used to let out water from the bathroom which used to stagnate in front of P.W. 3’s house. The deceased used to warn the accused not to leave the bathroom water which used to cause nuisance. This had caused irritation between the accused and the family of the deceased. The accused were not on good terms with the deceased family members.
8. Coming to the actual incident, P.W. 3 states in his evidence that at about 7.30 p.m. he was going towards Lakshmi Temple. He went in front of the accused house. On seeing P.W. 3 all the three accused came outside the house. A-3 was armed with an axe, A-2 was armed with an iron rod and A-1 was armed with a stick. In the meanwhile, the deceased and the brothers of P.W. 3 also came out. Then, suddenly A-3 hit the deceased on the head with an axe. The deceased fell down. Then A-1 beat his brother, P.W. 5 with a stick. A-2 assaulted his other brother, P.W. 4. A-3 also assaulted P.W. 3. The deceased sustained bleeding injuries on his head. The incident was witnessed by one Fakiravva and others. After assaulting the deceased, P.Ws. 3, 4 and 5, the accused ran away. The deceased was shifted to Pachapur Government Hospital. P.W. 3 was also examined by the doctor. P.W. 3 gave a complaint at about 8.00p.m.
9. P.W. 4 more or less corroborates what P.W. 3 stated. He also states that A-1 assaulted P.W. 4 with a stick on his left thigh. He also states about the assault by the accused on the deceased.
10. P.W. 5 is another son of the deceased. He corroborates the evidence of P.Ws. 3 and 4. P.W. 6 was also an eye-witness. He does not support the prosecution case. P.W. 7 also was an eye-witness. He also does not support the case of the prosecution.
11. P.W. 8 is the doctor, lie examined the deceased at the hospital at 9.00 p.m. The doctor noticed the following injuries.-
"1. Lacerated wound over scalp with bleeding, on left occipital region, 2. Abrasions over right infra-scapular region, multiple, bleeding present. 3. Abrasions on back on right elbow, multiple with bleeding". P.W. 8 has stated that after giving first-aid he sent the deceased to the Civil Hospital, Belgaum for further treatment. The wound certificate is marked as Ex. P. 7. 12. P.W. 8 is the doctor, who examined A-1 and other members of the accused party. In the cross-examination P.W. 8 was confronted with the
MLC register with respect, to the injuries on the accused party. P.W. 8 admits in his evidence that on 26-3-1991 the Head Constable had brought three injured persons, viz., Satyawwa, Lagamawwa and Bhimarai Ramappa Naik (A-l) for examination and treatment. Satyawwa is the mother of A-1. The doctor noticed the following injuries on the mother of A-1.-
“1. Abrasion over the scalp, 3 cms. in length.
2. Abrasion over left fore-arm, 2 cms. in length.
3. Abrasion over right little finger, 2 cms. in length. The above injuries were fresh and simple in nature”.
13. P.W. 8, the doctor also examined one Lagamawwa on the side of the accused party at about 9.10 p.m. He noticed on Lagamawwa one incised wound over the scalp and the injury could be caused by sharp weapon like axe.
14. The doctor, P.W. 8 also examined A-1 on the same day at 9.30 p.m. and noticed the following injuries.-
“1. An incised wound over the scalp 4 cms. in length.
2. Abrasion over the right leg with fracture of right tibia”.
The doctor, P.W. 8 stated that injury No. 1 was simple in nature and injury No. 2 was grievous in nature. Injury No. 1 can be caused by sharp weapon like axe and injury No. 2 can be caused by hard and blunt weapon like stick with great force.
15. To complete the case of the prosecution it would be useful to extract the post-mortem certificate. The doctor, P.W. 14 noticed the following external injuries on the dead body of the deceased.-
“1. Stitched wound on left occipital region.
2. Multiple abrasions on right infra-scapular region, bluish in colour.
3. Multiple abrasions on right posterior aspect of elbow.
4. Abrasion on right eyebrow”. The doctor, P.W. 14 noticed the following internal injuries.-
“1. Skull and vertebral-hairline fracture seen extending from left temporo-parietal extending to occipital region of length 12 cms.
2. Hairline fracture seen extending from middle of the temporal to occipital protuberance, 10 cms. in length”.
The doctor was of the opinion that the death was due to cardio-respiratory failure due to injury to vital organ like the brain. The post-mortem report is produced at Ex. P. 20.
16. The only question that arises for consideration was whether the prosecution has offered any satisfactory explanation with regard to the injuries found on the accused party. All the injured witnesses, P.Ws. 3, 4 and 5 were persistently questioned whether the accused party sustained injuries. All of them denied that the accused party sustained injuries.
17. On a perusal of the records it appears that it is the accused party which laid the complaint first. A-1 gave a complaint against the deceased and others in Crime No. 90 of 1991 marked as Ex. D. 7. The complaint was given on 27-3-1991. The case was registered at 2.30 p.m. A-1 was the complainant. The complaint was directed against the deceased, P.Ws. 3, 4 and 5. It is only subsequently P.W. 3 gave a complaint in Crime No. 91 of 1991 at 3.00 p.m. half an hour after the complaint given by the accused, As stated earlier A-1 and his mother and one Lagamawwa had suffered injuries at the hands of the prosecution party. All of them suffered injuries on vital parts of the body. Lagamawwa had an incised wound over the scalp which according to the doctor could have been caused with an axe. A-1 during the course of the occurrence had a 4 cms. length incised wound over the scalp. The right leg of A-1 was fractured. The doctor, P.W. 8 opined that injury No. 1 on A-1 could have been caused by a sharp weapon like axe.
18. It is unfortunate that this case will fail because the prosecution has not explained the injuries on the accused and perhaps suppressed the genesis of the case. It is also unfortunate that the accused had to bring out the injuries on themselves as found in the MLC only in the cross-examination. It would have been appropriate for the prosecution to put forth the entire case before the Court and explained how the accused were injured in the occurrence. From the perusal of the records there can be no doubt that the accused had sustained injuries in the same occurrence.
19. The learned State Public Prosecutor fairly conceded that the injuries sustained by the accused must have been during the occurrence. He also conceded that in the facts and circumstances of the case it would have been appropriate for the prosecution to have explained how the accused sustained grievous injuries. The learned State Public Prosecutor further submitted that if the prosecution had explained the injuries on the accused, at least a case under Section 304 of the Indian Penal Code could have been made out.
20. As stated earlier all the eye-witnesses vehemently denied that the accused were injured during the occurrence. Such falsehood does not help the prosecution in the teeth of the medical evidence with respect to the injuries on the accused and also taking into account that the complaint to the police was given first by the accused and only subsequently by P.W. 3.
21. Let us briefly deal with the non-explanation of the injuries to the accused. The Supreme Court in Mohar Rai v. State of Bihar, dealt with a similar case where the accused were produced before the police immediately after the occurrence with injuries. The Supreme Court held that failure of the prosecution to offer any explanation regarding those injuries would entitle the accused to the benefit of doubt.
22. The Supreme Court in Lakshmi Singh and Ors. v. State of Bihar, placing reliance on Mohar Rai’s case, supra, and Puran Singh and Ors. v. State of Punjab, held that in a murder case the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences.-
“1. That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
2. That the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
3. That in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case;
4. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one”.
23. The Supreme Court, however, added a rider in respect of minor and superficial injuries.
24. Mr. Chouta, learned Counsel for the accused also relied on Seriyal Udayar v. State of Tamil Nadu and submitted that even though the right of private defence was not established, if there is material placed in the cross-examination and the circumstances indicated that the incident might have happened in a manner suggested by the accused, the accused would be entitled to the benefit of doubt.
25. The Division Bench of this Court in State by K.M. Doddi Police, Mandya District v. Siddegowda and Ors., pronounced that even if an injured accused does not take the plea of self-defence it will not neutralize or shift the general burden that lies on the prosecution to prove the case beyond reasonable doubt.
26. Taking into account that the accused admittedly sustained injuries during the course of the occurrence which has not been explained by the prosecution and also taking into account that the accused were the first to give the complaint to the police and also taking into account that the injuries suffered by A-1 was grievous and on a vital part of the body which has not been explained by the prosecution and also taking into account the injuries suffered by the mother of A-1 and one Lagamawwa, who suffered grievous injuries has not been explained by the prosecution, It would not be appropriate for this Court to interfere with the order of acquittal rendered by the Trial Court.
27. Accordingly, the appeal stands dismissed.
28. We place on record the assistance rendered by the Amicus Curias and determine his fees at Rs. 1,000/-.