JUDGMENT
Kumar Rajaratnam, J.
1. This is an appeal against acquittal preferred by the State.
2. The State being aggrieved by the Judgment and Order of acquittal rendered by the Sessions Judge, Tumkur, in S. C. No. 13/90 dated 22-4-1996, in acquitting the Respondents-accused for the offences punishable under Sections 148, 341, IPC r/w. Section 149, IPC, Section 302 r/w. 149 IPC, Section 506 r/w. Section 149 IPC, Section 341 r/w. 149 IPC and 120(B) IPC and 302 r/w. 109 IPC, with respect to the deceased and Section 307 r/w. 149 IPC, with respect to P.W. 6 has preferred this appeal against acquittal.
3. The prosecution case in brief is that A-1 to A-6, A-9 to A-13 and A-16 to A-21 are residents of Jodihosahalli, Kunigal Taluk, A-7 Kodakana Boraiah was a resident of Seeyepalya which is hardly one kilometre from Jodihosahalli. A-8-Kodakana Boralingaiah was a resident of Puranipalya which is about 1 1/2 kilometres from Jodihosahalli, A-14-Veerabhadraiah and A-15-Shivanna are residents of Hanumanapalya which is about 1 1/2 kilometres from Jodihosahalli.
4. The deceased H. B. Boralingaiah was a resident of Jodihosahalli. He was a School Teacher. P.W. 1-H. B. Boraiah (complainant) was the younger brother of the deceased and was living in Jodihosahalli with his wife and children. The residential houses of P.W. 1 and the deceased are situated facing each other with a street in the middle running East to West.
5. A-5-H. B. Lingaiah was living in a house situated adjacent to the house of P.W. 1 on the western side.
6. The deceased Boralingaiah and his brother-P.W. 1 on the side and A-5 H. B. Lingaiah and some villagers including A-1. A-2 and A-1 1 on the other side have had a land dispute since 1974. Even though there was a decree in favour of, P.W. 1, A-5 with the support of other accused persons was interfering with the peaceful possessions and enjoyment of the said land namely Sy. No. 108 re-survey No. 152. A-21-a Zilla Parishad Member obviously having political influence was bringing pressure on P.W. 1 and his brother deceased to give up their rights to the said land in favour of A-5. A-1 also had joined hands with A-21 to coerce P.W. 1 and the deceased to give up their rights in respect of said land. It is also the case of the prosecution that there were many cases involving theft, mischief, assault, concerning the property, pending between P.W. 1 and his brother on one side and A-5 and A-21 on the other side and a number of criminal cases were also pending in this connection.
7. On 15-9-1989 at about 9.00 a.m. deceased Boralingaiah was proceeding from his house towards the house of P.W. 7-Bettaswamy, when he was waylaid by all the accused persons by surrounding him from three sides armed with clubs and chopper and they brutally assaulted the deceased indiscriminately. The injured Boralingaiah was shifted to his residence by his wife Chikkamma-P.W. 5, P.W. 3-Ningamma wife of P.W.1 and other two witnesses P.W. 4-Narasamma and P.W. 6-Kambaiah.
8. In the meanwhile P.W. 1-Boraiah being scared to go near the scene of occurrence, went to a nearby village Santhepete by walk and from there he got into a lorry and travelled to Kunigal and lodged his complaint at about 12.45 p.m. in Crime No. 253/89 for offences under Section 307, IPC.
9. At about 11.00 a.m. on the same day, at the request of P.W. 3 and P.W. 5 to send a message to the son of the deceased, P.W. 6-Kambaiah was proceeding towards the bus-stop to go to Bangalore, at that time A-1, A-21, A-9, A-3, A-12, A-11, A-13 and A-10 armed with clubs chased him and assaulted him with clubs and stones with a view to prevent him from informing about the incident with respect to the assault on the deceased to his sons at Bangalore and thereby caused injuries to P.W. 6.
10. Thereafter the deceased and P.W. 6 were shifted to Kunigal Hospital by a Police Constable P.W. 21 in a car which was provided for by P.W, 1-the complainant. At Kunigal Hospital on the advice of the Doctor-P.W. 14 – Dr. Doddathimmaiah, the deceased was shifted to Victoria Hospital, Bangalore, but the deceased expired on the way to Bangalore. On receiving the death report as per Ex. P-51 the second F.I.R. for the offence under Section 302 was submitted to the Court as per Ex. P-52.
11. P.W. 1 who is the brother of the deceased is the complainant and his complaint is marked as Ex. P-1.
12. In his evidence he says with respect to the occurrence that he took tea in P.W. 2’s hotel at 9 a.m. on a Friday and he came out of the hotel and heard the cries. He saw the deceased being encircled by all the 21 accused persons, who were armed with weapons. A-13 was armed with matchu and other persons were armed with clubs. A-1 and A-21 instigated the other accused to finish off the deceased and promised that they will take care of the consequences. A-16 and others caught hold of the deceased. A-1 and A-21 also assaulted the deceased with clubs on the head and legs of the deceased. The deceased fell down on account of these assaults. P.W. 1 got frightened and hid himself by the side of the wall of his new house. He somehow managed to come to the main road. He then saw A-1, A-6, A-18 and A-8 assaulting the deceased with stones which were lying on the spot. They threw stones on the legs of the deceased. A-13 assaulted with matchu on the knee of the deceased. A-15, A-14, A-7 and A-12 assaulted with clubs on legs, hands and other parts of the deceased. In the meanwhile P.W. 5-wife of the deceased and P.W. 3 wife of P.W. 1 and others went to the rescue of the deceased requesting the accused not to harm the deceased. A-1 and A-21 threatened the witnesses that they would also be killed. In spite of the threat P.W. 3 and P.W. 5 went and stood by the side of the deceased. A little later A-1 and A-21 along with others came to the scene of occurrence and stated now that the deceased has been sacrificed we should look to finish off P.W. 1 and others. P.W. 1 did not go near the scene of occurrence out of fear that the accused would assault him. He instead went to another village known as Santhepet by walk, which is about 3 Kms. from his village Jodihosahalli. At Santhepet P.W. 1 got a lorry at 10.45 a.m. and reached Kunigal at about 11.45 a.m. While he was going in the lorry some people informed him that the deceased had been murdered and that P.W. 6 was assaulted in a separate incident by the accused.
13. P.W. 1 gets down at the bus stand at Kunigal and goes to the Police Station to lodge a complaint. At the Police Station the Circle Inspector and the Sub-Inspector were not available. Only the Head Constable was there. The Head Constable P.W. 23 asked P.W. 1 to give a written complaint. P.W. 1 goes to the bus stop and gets a typed complaint and signs the complaint which is marked as Ex. P-1. It would be relevant to mention at this stage that P.W. 23-H.C. however, says in his evidence that a written complaint was brought by P.W. 1 and that P.W. 23 did not ask P.W. 1 to bring a prepared complaint as stated by P.W. 1.
14. It is curious to note that while P.W. 1 was being examined in chief, a question was posed to P.W. 1 by the Public Prosecutor. The question and answer was recorded by the trial Court.
15. The question was whether the contents of Ex. P-1 are all correct.
P.W. 1’s reply was as follows :
As I was in a state of fear and anxiety some facts are not correctly stated in Ex. P-1 and some facts are omitted. Further statement was recorded by the C.P.I and I have given all the details.
16. The further statement of P.W. 1 was recorded after a gap of two weeks after the occurrence.
17. P.W. 1 states in his evidence that he asked the Police officials to go to the scene of occurrence and he was afraid to accompany the police. P.W. 1 engaged a car for the police officials. The Police officials brought the deceased and injured-P.W. 6 along with the wife of the deceased-P.W. 3 to the Kunigal Government Hospital. First aid was given to both the injured and the deceased. As the deceased was seriously injured the doctor advised the deceased to be shifted to the Victoria Hospital, Bangalore. On the advice of the Doctor-P.W. 14 at Kunigal Hospital, the deceased was taken to Victoria Hospital, Bangalore. P.W. 1 does not accompany the deceased and he goes separately by bus, while the deceased and other members of the family go by car. The car reached Bangalore at 6 p.m. by that time the deceased was dead P.W. 1 was not examined at the inquest although he was at Bangalore. He was examined after about 20 days after the occurrence.
19. P.W. 1 was strenuously cross-examined. He stated that the complaint was typed by some typist at the bus stand. He admitted that his Advocate Venkata Krishna Rao has his office near the bus stop. He admits that his Advocate Venkata Krishna Rao and Ramaehandra Rao have their place of residence near the bus stop.
19. P.W. 1 is the wife of P.W. 1. The prosecution placed heavy reliance on the evidence of P.W. 3 since P.W. 3 was examined at the inquest at Bangalore. P.W. 3 corroborates P.W. I with regard to the occurrence. P.W. 3 identifies all the 21 accused and refers to their overtacts. She states in evidence that at. about 9.00 a.m. she went to purchase some tea, match box and jaggery from the shop of P.W. 11. The deceased was going ahead of P.W. 3. P.W. 3 after setting out the reason for her presence gives detail of all the overt-acts alleged to have been caused by each of the accused against the deceased. She states that the accused left the scene of occurrence after assaulting the deceased. She further states that she and P.W. 5 (wife of the deceased) gave some water to the deceased and brought the deceased to the varandah of P.W. 11. In the meanwhile, P.W. 6 came there. P.W. 3 and P.W. 5 requested the help of P.W. 6. Then, P.Ws. 3, 5 and 6 brought the deceased to his house. P.Ws. 3 and 5 requested P.W. 6 to go to Bangalore and inform their relations about the occurrence. P.W. 3 accompanied the deceased to Kunigal hospital and also accompanied the deceased when the deceased was shifted to Bangalore. P.W. 3 also states that her husband P.W. 1 did not accompany the police and did not come to Kunigal in the car. However, she has stated before the police as per Ex. D-6 to the effect that her husband P.W. 1 accompanied the deceased to Bangalore from Kunigal. P.W. 3 also states that she did not take P.W. 6 the injured witness to Bangalore and P.W. 6 came to Bangalore on his own.
20. We have now the evidence of P.W. 5 the wife of the deceased. She states that she was working in her house at about 9.00 a.m. After some time she heard some noise. She came out of the house. She saw her husband being surrounded by 21 accused. She went forward to rescue her husband. She, P.W. 6 and others were trying to rescue the deceased but the accused did not leave the deceased. She gives all the respective overt-acts against the accused. She states that the occurrence took place at about 9.00 a.m. At about 1.00 p.m. the police came in a car to the village. P.W. 5 states that her statement was recorded at 3.00 p.m. at the scene of occurrence,
21. We have also the evidence of P.W. 4 who speaks about the occurrence. However, P.W. 4’s evidence indicates that one Jayamma C.W. 10 and Guddaiah P.W. 11 tried to rescue the deceased during the assault and they were “thrown aside”. P.Ws. 3 and 5 along with C.W. 3 Chandrasekhar and. C.W. 5 Umesh also went to rescue the deceased but according to P.W. 4 the women were pushed aside and the accused chased Chandrasekhar and Umesh.
22. We have already dealt with the evidence of P.W. 5 the wife of the deceased. P.W. 6 came to the scene after the occurrence and is not an eye-witness to the assault on the deceased. But, he was assaulted by some of the accused. We shall, deal with P.W. 6’s evidence in the latter part of the judgment.
23. P.W. 7 also claims to be an eye-witness. He describes the occurrence and corroborates the evidence of P.W. 1. He also gives the version that P.Ws. 3 and 5 tried to intervene and they were pushed away. One other eye-witness C.W. 10 Jayamma was also pushed when she tried to intervene, but she was not examined in Court.
24. P.W. 8 is the son of the deceased. He states that after hearing the noise he came out and saw A-21 and A-1 assaulting the deceased on his head by means of a club. P.W. 9 also states that he witnessed the occurrence. P.W. 10 also claims to be an eyewitness and supports the prosecution.
25. P.W. 11 only implicates ten accused viz., A-6, A-7, A-8, A-15, A-10, A-13, A-12, A-9, A-19 and A-18. Since he implicated only ten accused he was allowed to be treated as hostile. P.W. 11 is closely related to A-1.
26. We shall now turn to the evidence of P.W. 12 the doctor who conducted the postmortem. He noticed as many as 22 injuries on the deceased. The following are the injuries noticed on the deceased:-
1. Abrasion present over outer aspect of left shoulder measuring 3 cm x 2 cm.
2. Impact abrasion present over outer aspect of lower 1/3rd half left arm measuring 6 x 12 cm.
3. Laceration present over the outer aspect of the upper part of left forearm 10 cm below the elbow measuring 3 x 3 x 1 cm.
4. Left wrist fractured and dislocated.
5. Contusion present over dorsum of left hand at its middle measuring 6 x 5 cm.
6. Laceration present over postero-lat-eral aspect of right elbow measuring 3 x 1 x 1 cm.
7. Contused abrasion present over inner aspect of upper part of right fore arm measuring 10 x 8 cm.
8. Abrasion over middle of sternal region (sternum) measuring 3 x 2 cm.
9. Abrasion present over region of left anterior superior iliac spine 3 x 2 cm.
10. Laceration over front of middle of right leg measuring 3 x 1 x bone deep.
11. Both bones of right leg fractured at there lower 1/3rd 10 cm above the ankle blood extravasated at the fractured site.
12. Right ankle dislocated, blood extravasated.
13. Laceration present over lower part of right leg 4 cm above the ankle inner aspect measuring 2x1x1 cm.
14. Laceration present over the region of medial part of right ankle measuring 3 x 1 x 1 cm.
15. Laceration present in the region of dorsal aspect of right foot measuring 3 x 1 x 1 cm at its middle.
16. Contusion present over inner aspect of right heel measuring 6 x 4 cm.
17. Contusion present over the dorsal aspect of distal part of right foot measuring 3 x 2 cm.
18. Abrasion present over lower part of outer aspect of left leg 10 cm. above the ankle measuring 6 x 4 cm.
19. Lacerated over lower part of left leg 4 cms. above ankle measuring 2 cm. x 1 x cm.
20. Abrasion over outer part of left ankle measuring 2 x 1 cm.
21. Contusion over dorsal aspect left foot distal aspect measuring 6 x 4 cm.
22. Laceration present over inner aspect of left great toe measuring 3 cm x 1 x 1 cm.
P.W. 12 the doctor was of the opinion that death was due to coma as a result of the head injury sustained by the deceased. He also states that all the injuries cumulatively could have caused the death of the deceased. The doctor also curiously states that none of the Injuries on the deceased could have been caused by M.O. 3 matchu. It was suggested to the doctor that there were no cut injuries on the deceased because of repeated assaults on the deceased and that the cut Injury may have merged to look like a laceration. This suggestion was denied by the doctor P.W. 12 at paragraph 12 of his evidence. P.W. 12 categorically states that as there were no incised wound or chop wound, a sickle or chopper could not have been used in the offence.
27. P.W. 13 is the doctor at Bangalore who deals with the injuries on P.W. 6. As stated earlier the assault on P.W. 6 by some of the accused will be dealt with by us separately since it is the prosecution case that it was a separate occurrence although in continuation of the original assault on the deceased.
28. P.W. 14 is the doctor who examined the deceased at Kunigal. He noticed the following injuries:-
1. Contusion over right hand dorsal 4″ x 3″ bluish in colour.
2. Lacerated wound over right first inter-digital space 2″ x 4″.
3. Abrasion over tip of right big toe 4″ x’1/2″.
4. Lacerated wound over the left big toe 1″ x 1/4″ bleeding present.
5. Abrasion over second left toe 1/2 x 1/2″.
6. Swelling of left ankle present.
7. Abrasion over left middle leg V2″ x V2″.
29. The deceased gave the history of assault with a stick by A-6, A-1 and others. The deceased was examined at the Kunigal hospital at 2.10 p.m. P.W. 14 in his cross-examination has clearly stated that the deceased was in a position to talk and was talking when he first examined him. He says till the deceased left the hospital to go to Bangalore he was in the same condition. P.W. 14 did not record the statement of the deceased because he was under the impresslon that the statement of the deceased would have been recorded by the police before he was brought to the hospital as the deceased was accompanied by the police.
30. The other witnesses are not so important since they deal with the recoveries and the arrest.
31. We now come to the evidence of P. W. 23. P.W. 23 was the Head Constable at Kunigal police. According to P.W. 23, P.W. 1 came at about 12.45 p.m. and gave a prepared complaint. P.W. 23 registered a case under Section 307 read with Section 114, IPC and other offences. He deputed P.W. 21 Police Constable to bring the deceased. A car was given by the complainant-P.W. 1 but, the complainant did not accompany the police to the scene of occurrence. P, C. 160 brought the deceased and P.W. 6 to the Government Hospital at Kunigal. He went to the Kunigal hospital and saw the deceased bandaged and the deceased was advised by the doctor to be shifted to Bangalore. P.W. 23 does not record any statement from the deceased although the doctor has stated that the deceased was in a position to talk and was talking. He instead sends the deceased to Bangalore for treatment. P.W. 23 also states that the Inspector of Police P.W. 29 does not appear to have perused the complaint given by P.W. 1 nor does he take a statement from the deceased who was conscious according to the doctor P.W. 14. He does not take up further investigation. On the perusal of P.W. 23’s evidence it appears that the initial investigation was done by the Head Constable P.W. 23. P.W. 23 visits the scene of occurrence, seized the incriminating articles, records statements from the witnesses and after the initial investigation returns to the police station at about 9.30 or 10 p.m. Then he finds that the FIR was not dispatched to the Magistrate.
32. P.W. 23 also categorically states that the FIR was dispatched from the police station at about 1.45 p.m. through the Writer Nagaraj (not examined). After P.W. 23 comes back, according to P.W. 23, P.W. 23 realises that Nagaraj had not dispatched the FIR to the Magistrate. Nagaraj searched for the FIR and it was still on the desk till 10.00 p.m. The reason given by P.W. 23 was that Nagaraj accompanied P.W. 23 for the purpose of examining witnesses and therefore he was not in a position to hand over the FIR to the Magistrate.
33. P.W. 23 states in cross-examination that on his way to the village where the occurrence took place, he had to pass through the JMFC Court, Kunigal. He also states that he was in a great hurry and therefore neither he nor the P. C.-Nagaraj handed over the FIR to the Magistrate. He also states that he was with the deceased for about 20 minutes but he did not record the statement from the deceased. He volunteers and states that the deceased was not in position to talk. This is contrary to the evidence of the Doc-tor-P.W. 14. P.W. 14 as stated earlier in his evidence states that the deceased when examined implicated A-6, A-1 and others. The deceased was examined by the doctor at 2.10 p.m. P.W. 14 also states that the deceased was in a position to talk and was talking when he was examined. P.W. 14 also states that the deceased was in a fit condition when he left the hospital to go to Bangalore. In other words P.W. 14 clearly states that the deceased was in a fit condition to make a statement. In fact as stated earlier P.W. 14 clearly states that he did not record any statement from the deceased because he was under the impression that the Police had already recorded the statement from the deceased. This is particularly so since the deceased was brought to the Hospital from his place to Kunigal Hospital by P.W. 21 (P. C).
34. There is some force in the submission made by the defense Counsel that a statement must have been recorded from the deceased by the Police, which has been burked. However, this suggestion was denied by the Police.
35. The next important witness is P. W. 29-Inspector of Police. On a perusal of the evidence of P. W. 29, it probablises the cases of the defence that P. W. 29 really took up the investigation seriously only after the death information of the deceased at 8 p.m. from Bangalore.
36. Till then apparently PW 29 did not peruse the complaint given by PW 1 nor did he record the statement from PW 1 at Kunigal. Although PW 29 returned to the Police Station at 1 a.m. after getting intimation from P.W. 23 about the occurrence, he did not even recorded the statement from the deceased.
37. In his evidence P.W. 29 states that he received information at 1 p.m. from the Police Station. He visited the Police Station and rushed to the scene of occurrence. By the time he went to the scene the deceased and P.W. 6 were being shifted in a car to the Hospital to Kunigal by P.W. 21. He states in his evidence that the deceased was in an unconscious state and claims to be busy in search of the accused. On the death intimation he goes to Bangalore and hold inquest over the dead body of the deceased. He examines P.W. 3 at the inquest. Subsequently at Victoria Hospital at Bangalore, he records the statement of P.W. 6. As stated earlier P.W. 6 was injured in a different incident. He states that he did not record any statement from P.W. 1 till 5-10-1989 nearly 20 days after the occurrence. He also states that he did not record the statement of the deceased since he was in an unconscious state, contrary to the statement of the doctor P.W. 14. He also states that the FIR reached the jurisdiction Magistrate only at 10 am. The reason given by P.W. 29 was that the offence did not constitute a serious offence. He states at paragraph 41 as follows :
The first time when I learnt about the assault through the said from the S.H.O. I thought that it was an attempt to murder or one under Section 326 of IPC. For the offences under Sections 307 and 326 IPC we don’t send Express report. It is not correct to say if the offences are not heinous offences the investigation is not taken up immediately.
38. We have now to analyse the evidence of the witnesses and the investigation done by the Police and the Medical evidence and to determine whether the trial Court was justified in giving the benefit of doubt to the accused. It would be easy to classify the case in the following categories :
1. Whether the evidence of P.W. 1 is trustworthy :
2. Whether the evidence of the eye witnesses can be relied upon;
3. Whether the Medical evidence corrborates the ocular evidence.
4. Whether, on account of delay in the FIR reached the Magistrate there was possibility of false implication of some of the accused considering that 21 accused have been implicated in his case.
39. As far as P.W. 1’s evidence is concerned it brizzles with contradictions. The typed complaint of P.W. 1 mentions 21 accused with their respective father’s name. Although the complaint is a comprehensive complaint, well written and well drafted by PW 1 it does not mention any of the eye witnesses except P.W. 3 -wife of P.W. 1. This is what P.W. 1 says in his complaint – Ex. P. 1 with regard to the eye witnesses and he states as followed :
My wife Ningamma (P.W. 3) was shouting saying “Killed my mava” then H.P. Boraiah alias Puttaswamaiah, Zilla Parishad member and others were telling where is H.B. Boraiah see him catch hold of him we will finish him also. By then Chikkamma (P.W. 5) W/o H.B. Boralingaiah, Jayamma W/o, Guddaiah, Umesha S/o. Boraiah, came there then Chikkamma and Ningamma lifted Boralingaiah to a pial and made him to lie.
40. Reading of the FIR clearly indicates that only P.W. 3 was shouting and by that time P.W. 5 and others like Jayamma and Umesh came there. It is apparent that P.W. 5 came to the spot after the deceased was assaulted. P.W. 3 was perhaps the only person according to the complaint other than P.W. 1 who could have witnessed the occurrence. Strangely neither Jayamma nor Umesh mentioned in the FIR who are independent witnesses were examined in the Court although they were examined by the Police.
41. P.W. 1 states that after the occurrence he did not go to the scene of occurrence for fear that he would be assaulted. He goes to a village called Santhepet by walk and takes a lift in a lorry and goes to Kunigal at about 11.45 a.m. According to P.W. 1 the Head Constable P.W. 23 was there. P.W. 23 asked P.W. 1 to give a written complaint. P.W. 23 does not say that P.W. 1 came there to give a complaint. P.W. 23 states that P.W. 1 came there with a prepared typed complaint. P.W. 1 further says since he had to type the complaint he went to the bus stand. It is not known who typed the complaint. There has been no investigation on this aspect. It has been admitted by P.W. 1 that some typist at the bus stop typed the complaint. P.W. 1 also admits that his Advocates Venkata Krishna Rao and Ramachandra Rao also reside near the bus stop. In the absence of any evidence from P.W. 1 on this aspect it probabilises the version of the defence that P.W. 1 went to the bus stand and with the help of his Advocates prepared the complaint and gave a written complaint to P.W. 23. Apart from this, the conduct of P.W. 1 does not inspire confidence.
42. It is another matter that P.W. 1 unlike P.W. 3 does not go to the rescue of his brother. It is also another matter that P.W. 1 does not go to the rescue of his wife P.W. 3 and his sister-in-law P.W. 5. But what is strange is that P.W. 1 does not go back to find out whether his brother the deceased was alive or not, along with the police. He could have easily gone back since he was accompanied by the police to find out whether his wife was safe and whether the deceased was alive or not. He sends P.W. 23 Head Constable and it is further strange that he does not accompany P.W. 23. This is because of the impression that P.W. 1 was busy in preparing the complaint with the help of either the police or his Advocates. It cannot be forgotten that it is a typed complaint. It is in this context that the explanation given by P.W. 23 in not submitting the FIR to the Magistrate expeditiously assumes importance.
43. The prosecution case is P.W. 3 and P.W. 5 tried to intervene and they were thrown aside by the accused. Therefore, it is natural that P.W. 1 would have gone along with the police to the scene of occurrence. Instead he coolly stays behind at Kunigal and sends P.Ws. 21 and 23 to the scene of occurrence. Afterall by that time P.W. 1 would have been assured of police protection.
44. Even if the conduct of P.W. 1 is acceptable, no explanation is forthcoming from the prosecution as to why he was examined after lapse of 20 days. It appears to us that the typed complaint cannot be relied upon for the simple reason that according to P.W. 23, P.W. 1 brought the typed complaint to the police station for the first time. If this is correct, P.W. 1 would have made contact with his advocates at the bus stop and deliberated upon the contents of the complaint and the complaint must have been prepared with the help of the advocates. P.W. 1 admits that his advocates have their residence at the bus stop at Kunigal and according to the police he brought a prepared complaint, while P.W. 1 states that he was asked to prepare a complaint and bring it to the Police.
45. The trial Court also came to the conclusion that the complaint was prepared with the help of the police and was in fact typed in the police station. The types in the types written complaint Ex. PI appears to bear some resemblance to the types found in the printed FIR. Although no conclusion can be reached on this aspect since there was no expert opinion, the Trial Court compared the types found in Ex.PI and in the printed FIR and came to the conclusion that there is similarity. In the absence of the Typist being examined, the trial Court perhaps came to this conclusion. In the facts and circumstances of this case, there was a duty cast on the prosecution to explain as to how the FIR came into being. This is particularly so since two versions are given one version by P.W. 1 that when he went to give the complaint to the police the police asked him to give a prepared complaint. P.W. 23 the Head Constable, however, states that P.W. 1 came with a typed complaint. The evidence of P.W. 1 is contrary to the evidence of P.W. 23 on this crucial aspect. This may also probabilise the version of the defence that the typed complaint by P.W. 1 was prepared at the bus stand with the help of his advocates. One has to be particularly careful in analysing the evidence of P.W. 1 in view of the fact that although he was in a state of fear and shock he has named all the 21 accused along with their father’s names.
46. Not much fuss can be made over the complaint if only the original complaint had reached the Magistrate expeditiously.
47. P.W. 23 in his evidence states that he handed over the FIR to one P.C. Nagaraj at about 1.45 p.m. The complaint Ex. PI reached the Magistrate at his residence at 10.00 p.m. The explanation given by P.W. 23 is that although the complaint was handed over to said Nagaraj he forgot to give the complaint to the Magistrate. It is the case of P.W. 23 that Nagaraj accompanied P.W. 23 to the scene of occurrence. It is only after coming back from the scene of occurrence P.W. 23 and Nagaraj realised that the complaint had not been dispatched to the Magistrate. Subsequently the complaint was sent through one Shetter to the Magistrate. Neither P.C. Nagar nor the P.C. Shetter have been examined in Court to explain the delay. It is common ground that the Magistrate Court is within 1 K.M. distance from the police station. The way in which the complaint was given by P.W. 1 in a typed form along with the fact that the complaint did not reach the Magistrate till 10.00 p.m. seems to indicate that there was deliberation before the preparation of the complaint. The conduct of P.W. 1 also appears to be unnatural. He does not go to the rescue of his brother deceased nor does he find out whether his wife was safe. He takes off to village 3 Kms away and then picks up a truck and goes to Kunigal. What he did at Kunigal there is not much evidence. All we know was that he was at Kunigal when the police went to the scene of occurrence 30 Kms away and brought the deceased by car. P.W. 1 does not even see the deceased when he was brought to Kunigal. All he says is that the deceased was sent to Bangalore. There was sufficient time for P.W. 1 to remain at Kunigal and prepare the complaint. P.W. 1 although was at Bahgalore he was not examined at the inquest. He was examined after a gap of 20 days.
48. In this context it would be appropriate to make a reference to a Judgment of the Supreme Court with regard to the delay in the complaint reaching the Magistrate. The Supreme Court in 1994 SCC Cri 1390 : 1995 Cri LJ 457 at paragraph 12 pronounced as follows :-
12. FIR in a criminal case and particularly in murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR, not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174, Cr.P.C, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution] story was still in an embryo state and had been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the, inquest proceedings were over at the spot by P.W. 8.
49. We are not terribly impressed by the conduct of P.W. 1. There is considerable doubt as to whether P.W. 1 could have seen the occurrence. The version of the defence that P.W. 1 took time to prepare a typed complaint appears probable. All this leads us to the inevitable conclusion that P.W. 1 was not an eye witness and the complaint has been prepared after careful thought at Kunigal perhaps with the help of P.W. 1’s Advocate. More than anything else, P.W. 1 himself admits in examination in chief as follows :-
As I was in a state of fear and anxiety some facts are not correctly stated in Ex.P-I and some facts are omitted.
49-A. Taking into account that P.W. 1 was examined after a lapse of 20 days, we feel the trial Court was justified in not placing any reliance on the evidence of P.W. 1.
50. We are now left with the only other eye witness mentioned in Ex.PI i.e. P.W. 3 the wife of P.W. 2. P.W. 3 was examined at the inquest at Bangalore and deserves our attention. She states that she tried to separate the deceased from the accused and she was thrown aside. She also states that she carried the deceased to the house of P.W. 11 Guddaiah. She also carried the deceased with the help of others and brought the deceased to the deceased’s house. She also states in evidence that the deceased was profusely bleeding.
51. In this context we asked the learned Public Prosecutor whether the clothes of the deceased were seized under a mahazar and whether they were blood stained. The learned counsel for the State rightly submitted that P.W. 3’s clothes ought to have been seized since obviously the clothes must have been blood stained but were not seized.
52. The circumstances under which the deceased was brought by P.W. 3 has already been stated by us. P.W. 3 and other witnesses categorically stated that there was profuse bleeding on the body of the deceased. In fact P.W. 3 accompanies the defceased to Kunigal. Obviously there would have been profuse bleeding and the blood stained clothes of the deceased would clearly have indicated the presence of the deceased (witness?) at the scene of occurrence and i at the time of the occurrence. There is not a i scratch on P.W. 3 although P.W. 3 went to rescue the deceased from the ferocious attack by the accused. All this gives us an impression that P.W. 3 at best must have come- to the scene of occurrence after the occurrence.
53. In similar circumstances the Supreme Court placed emphasis on the seizure of blood stained clothes from witnesses who claimed to have handled the deceased and who claimed to have given first aid to the deceased. The Supreme Court in 1994 SCC Crl 1390 : 1995 Cri LJ 457 dealt with the case where the wife claimed to be an eye witness was not believed because her conduct was unnatural in not rescuing her husband and if she had gone to rescue her husband there would have been at least some injuries on the wife and also dealt with the circumstances where the clothes of the wife were not blood stained. Of course each case will depend on the facts of that case. In this case the prosecution asserts that the wife tried to save the accused but from the sequence of events no blood stained clothes were recovered.
54. The Supreme Court at paragraph 13 of the above stated judgment pronounced as follows :-
13. It appears that it was a blind murder and none of the eye witnesses were actually present at the scene. The ante-timing of the FIR was obviously made to introduce eye witnesses to support the prosecution case. We may demonstrate this by noticing that though P.W. 3 Smt. Kamlesh the widow of the deceased claimed that she was present with her husband at the time of the occurrence, her conduct was so unnatural that not only she did not try to save her husband by trying to provide a cover but even after her husband fell down and was inflicted repeated injuries with the knife by the appellant Meharaj Singh, she did not even try to go anywhere near her husband and even later on hold his head in her lap and try to provide some comfort to him. This becomes obvious from the absence of any bloodstains on her clothes. She admitted that she had not even received a scratch during the occurrence. In a situation like this, the normal conduct of any wife would be firstly to make an effort to save her busband even by taking the blow on herself and if that is not possible then at least to go so close to his person, at least after the assailants had left that there would be no escape from the blood oozing out of the injuries of the deceased to come on to her clothes.
55. The trial Court was convinced that P.W. 3 was not an eye witness and for the reasons stated by us we do not think the evaluation of the trial Court with respect to P.W. 3’s presence is perverse while dealing with this appeal against acquittal.
56. With respect to the other witnesses they do not find a place in the complaint and we do not wish to disturb the finding of the trial Court on this aspect.
57. The only person who could have spoken about the occurrence is P.W. 11 since the complaint speaks about the occurrence having taken place in front of the house of PW 11. However, P.W. 11 only implicates ten out of twenty one accused and was treated hostile. The other witnesses mentioned in the complaint i.e. Jayararn and Umesh have not been examined in court although they were examined by the police.
58. We now come to the medical evidence. It is relevant to state once again that the deceased was conscious and capable of giving a statement at Kunigal that is the evidence of the doctor P.W. 14. P.W. 14 states in his evidence that he did not record the statement of the deceased since P.W. 14 was under the impression that a statement had already been recorded by the police. The inference is that the deceased must have given a statement which perhaps did not implicate all the accused and therefore, that statement did not see the light of day.
59. It is not known why the Investigating Officer P.W. 29 or P.W. 23 the Head Constable did not record the statement of the deceased since according to the doctor P.W. 14 the deceased was capable of giving a statement at Kunigal that would have clinched the matter. P.W. 23 and P.W. 29 gloss over the statement of P.W. 14 saying that the deceased was unconscious, but that does not appear to be the case according to P.W. 14. The medical evidence seems to indicate that the deceased was in a position to talk and was conscious right the (time) till he left Kunigal after initial treatment by P.W. 14 to Bangalore.
60. One other aspect which deserves mention is the evidence of the post mortem, Doctor-P.W. 12. The evidence of P.W. 12 indicates that from the nature of the injuries on the deceased a matchu like M.O. 3 could not have been used during the occurrence. The learned Public Prosecutor wanted to elicit from P.W. 12 that the cut injuries were merged on account of the repeated assault on the deceased. The answer in chief examination of P.W. 12 at paragraph 12 is as follows :-
It is not correct to say that the characteristics of the cut injury by the type of the weapon M.O. 3 on the injuries noted viz., injury Nos. 11, 12 and 13 would not be available, after the cut injuries are caused by the said sikle M.O. 3, if after such cut injuries, repeatedly on the same injuries, injuries are caused by means of clubs and stones, of the type of clubs, sticks and stones produced in this case and which are in Court.
61. In the cross-examination also P.W. 12 says that there are no incised or chopped or stab injuries and further states that the weapon like M.O. 3 sickle or chopper could not have been used in the occurrence. From this it is clear that contrary to what is stated by the eye witnesses a cutting weapon could not have been used against the deceased.
62. This leaves us to the question whether a chopper was used at all as stated by the eye witnesses. The answer according to the doctor is that no chopper could have been used looking at the nature of the injuries.
63. In the complaint it is alleged that A-1 used a chopper and assaulted the deceased with a chopper on the legs of the deceased.
64. In his evidence P.W. 1 states that A-13 assaulted the deceased on the knee with a matchu (chopper). P.W. 1 also states that A-1 and A-21 assaulted the deceased with clubs on the head. P.W. 3 also states that A-1 and A-21 assaulted on the head of the deceased by means of clubs.
65. Post Mortem Doctor – P.W. 12 states that the death was due to coma as a result of head injuries sustained by the deceased. There was no corresponding external injury on the head of the deceased according to the post mortem doctor. However according to P.W. 12 there was an external injury. It is possible that P.W. 12 – Doctor who conducted the post mortem may have by mistake not referred to the external injury on the head.
66. On the question whether a cutting weapon was used what is important is that P.W. 12 doctor clearly states that no matchu was used by any of the accused. On a perusal of the post mortem report with respect to the injuries found on the deceased, all the injuries are lacerated injuries and we also find that there are one or two abrasions and contusions. This indicates that no matchu could have been used by any of the accused. This aspect also weighed in the mind of the trial Court while holding that the eye witnesses could have witnessed the occurrence. We do not find any ground to, disturb the finding of the trial Court in com-: ing to the conclusion that there were vital! discrepancies and improvement in the evi-dence of the eye witnesses.
67. On a perusal of Ex. PI it is clear that only P.W. 3 could have witnessed the occurrence. We have already discussed the evidence of P.W. 3 and concurred with the finding of the trial Court that P.W. 3 could not have witnessed the occurrence for the reasons stated in the earlier part of the Judgment. P.W. 5 the wife of the deceased arrives at the scene after the occurrence. The other persons mentioned in the complaint Jayamma and Umesha are not examined in Court. Considering the way the FIR came into existence after due deliberation and taking into account that P.W. 3 did not suffer any injuries nor was the blood stained clothes seized by the police it probabilises the defence version that the complaint given by P.W. 1 in a typed form was after the deliberation with the help of P.W. 1’s Advocates.
68. On the other questions whether the delay in the complaint reaching the Magistrate has been explained we feel that the explanation given by the prosecution that the complaint was left on the table by mistake cannot be accepted in the absence of the evidence of Nagaraj and Shetter. In all cases the delay in the FIR reaching to the Magistrate is not fatal to the prosecution. However, when there is some doubt with respect to the genesis of the complaint, the surest safeguard would be for the complaint to be received by the Magistrate expeditiously especially in a case as grave as this. When there is considerable doubt on the whereabouts of P.W. 1 during a stay at Kunigal, the delay in the FIR reaching the Magistrate would have some bearing on the verasity of the prosecution case.
69. Consequently and for the reasons stated in our judgment it would not be prudent to rely on P.W. 1 to overturn the order of acquittal. P.W. 3 as stated earlier cannot be the sole basis of convicting the accused, since it is importable that she was present at the scene of occurrence.
70. The learned counsel for the prosecution Mr. Thimmarayappa relied on the following judgments :-
1. 1985 SCC (Criminal) 41 : 1985 Cri LJ 511;
2. 1987 SCC (Criminal) 519 : 1987 Cri LJ 1065;
3. 1986 SCC (Criminal) 374 : 1986 Cri LJ 1906;
4. 2000 SCC (Criminal) 206 : 1999 Cri LJ 4603;
5. 2001 SCC (Criminal) 1009 : 2001 Cri LJ 3969;
6. 1995 SCC (Criminal) 1132 : AIR 1996 Cri LJ 372;
7. 1975 SCC (Criminal) 515 : 1975 Cri LJ 1201;
8. 1996 SCC (Criminal) 730 : 1996 Cri LJ 2503;
9. 1997 SCC (Criminal) 303;
10. 2001 SCC (Criminal) 1384 : 2001 Cri LJ 424;
11. 1972 SCC (Criminal) 237 ; 1972 Cri LJ570;
12. 1983 SCC (Criminal) 601 : 1983 Cri LJ 1272;
13. 1973 SCC (Criminal) 933 : 1973 Cri LJ 1778;
14. 1973 SCC (Criminal) 914 ; 1973 Cri LJ 1596:
15. 2000 SCC (Criminal) 26 : 1999 Cri LJ4561;
16. 1981 SCC (Criminal) 421 : 1981 Cri LJ714;
17. 2000 SCC (Criminal) 222 : AIR 1999 SC3717;
18. 2000 SCC (Criminal) 1026 : 2000 Cri LJ 6167
19. 1989 SCC (Criminal) 211 : 1989 Cri LJ850;
20. 1976 SCC (Criminal) 659 : 1977 Cri LJ 1;
21. 2001 SCC (Criminal) 852 : 2001 Cri LJ2615;
22. 1996 SCC (Criminal) 444 : 1996 Cri LJ 1631;
23. 1998 SCC (Criminal) 886;
24. 1988 SCC (Criminal) 928 : 1989 Cri LJ 288;
25. 1983 SCC (Criminal) 728 : 1983 Cri LJ 1096;
26. 1972 SCC (Criminal) 88 : 1972 Cri LJ606;
27. 1973 SCC (Criminal) 1033 : 1973 Cri LJ 1783;
28. 1978 SCC (Criminal) 564 : 1978 Cri LJ 766;
29. 1974 SCC (Criminal) 588 : 1974 Cri LJ 822;
30. 1993 SCC (Criminal) 435;
31. ;
32. 1974 SCC (Criminal) 116 ; 1974 Cri LJ309;
33. ;
34. 1985 Cri LJ 904;
35. ILR 200 Kar 1625: 2000 Cri LJ 2148;
71. Mr. Bhagwan the learned counsel for the accused relied on the following judgments :-
1. ;
2. ;
3. ;
4. ;
5. ;
6. 1988 CriLJ 1154;
7. .
72. Mr. Bhagwan, the learned counsel for the accused submitted that the delay in dispatching the FIR to the Magistrate clearly indicates that there was deliberation before the complaint was lodged by P.W. 1.
73. Mr. Bhagwan also submitted that in as appeal against acquittal if two views are possible, then the benefit of doubt must go to the accused.
74. Mr. Bhagawan also relied on the Judgment of the Privy Council in AIR 1934 Privy Council 227 (2) in the case of Sheo Swarup v. King Emperor has dealt with the power of the Appellate Court in an appeal against acquittal. The Court held that in exercising the power conferred by the Code and before reachng its conclusion upon the’ fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence of favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.
75. The pronouncements of the Supreme Court are of great assistance to the Court in arriving at conclusions based on the law enunciated by the Supreme Court. For example the delay in the FIR reaching the Magistrate would effect the prosecution case only in those circumstances where there is doubt with regard to the verasity of the complaint (See in 1994 SCC 1390 : 1995 Cri LJ 457 and 2001 SCC (Cri) 1009 : 2001 Cri LJ 3969. With respect to conduct of witnesses Court should not substitute their norms of behaviour to that of witnesses. Subsequent conduct cannot be the sole test of reliability of a witness. A City dweller, a village or Adivasi will react differently according to the degree of their sophistication (See 1972 SCC (Cri) 237 : 1972 Cri LJ 570. With respect to any irregularity or even illegality during investigation is not a ground to reject the prosecution case. Mathematical niceties should not be expected. It is held that totality of the situation and witnesses without any major contradiction taken together would unmistakably point to the guilt of the Accused (See 2000 SCC (Cri) 421). With respect to unlawful Assembly vicarious liability of members of unlawful assembly does not require proof of specific overt act by all the members. What is necessary is prior knowledge that the offence was likely to be committed in prosecution of the common object. Such knowledge can reasonably be intended from the nature of the assembly, arms or behaviour, at or before the scene of action (See 2000 SCC (Cri) 1026 : 2000 Cri LJ 6167. With respect to delay in examination of witnesses, Section 161 – Delay (of 2 1/2 months) in recording statement of witness – Does not invariably render the testimony of the witness doubtful though evidence has to be scanned carefully – Each case has to be considered on its own fact – If witness is found to be natural and truthful his evidence need not be doubted due to delay Criminal trial – Witnesses (See 1993 SCC (Cri) 435).
76. The judgments referred to above are of immense assistance to the Court.
77. However, it cannot be forgotten ultimately in a criminal case it all depends on the facts of each case. No hard and fast rule or straight-jacket method can be applied.
78. To summarise the facts of the case which weighed in the mind of the trial Court in acquitting the accused are as follows :-
1) The conduct of P.W. 1 in rushing away from the scene of occurrence and preparing a typed FIR.
2) The medical evidence which clearly indicates that the deceased was conscious and was in a position to give a statement either before the doctor or before the police at Kunigal and that no statement was recorded.
3) The clothes of P.W. 3 not being seized by the police which would have indicated the presence of P.W. 3 at the scene of occurrence.
4) Non-examination of witnesses to the occurrence Jayamma and Umesh and the examination of other witnesses not mentioned in the complaint.
5) The unsatisfactory explanation with respect of the delay in the FIR reaching the Magistrate.
79. We are therefore satisfied that with respect to the attack on the deceased the reasoning of the trial Court does not suffer (from any infirmity which requires interfer-ence at our hands.
80. We shall now deal with the attack by some of the accused on P.W. 6. P.W. 6 is the injured witness. He states in his evidence that he had gone to Jodihsahalli on the night of 13-9-1989 for the purpose of agricultural work. He had gone to his garden and was getting his work done by his servants. It was about 9 or 9.30 a.m. the deceased son came to him stating that his father was injured and that he wanted some money. Since P.W. 6 had not money at that time he came to his house and asked his mother to give him some money to be given to the son of the deceased Kumara by name. Then he went to the scene of occurrence and he saw P.Ws. 3, 5 and 4 sitting and weeping in front of the padasala of the shop. The deceased was also in the same padasala. He saw the deceased with injuries. P.W. 5-wife of the deceased asked him to shift the deceased to his house. He along with others shifted the deceased to his house. He was asked to inform the children of the deceased about the incident at Bangalore. P.W. 6 left the scene of occurrence and went to the bus stop. Near the bus stop about 15 people were standing armed with clubs. He was over taken by the accused. The accused were angry that he was going to Bangalore to inform the son of the deceased about the assault. At that time A-3 and A-12 assaulted him and threw stones, which fell on his legs. Thereafter clubs were used. The persons who assaulted him by clubs were A-11 and his son A-12 and others are A-13, A-10, A-1 and A-3 and he was also chased by A-9 and A-21. P.W. 6 fell down and he was not able to identify the other accused. This occurrence was witnessed by P.W. 2. With great difficulty P.W. 6 reached his house with bleeding injuries on his head. He suffered fracture on the right hand and there was also a fracture on the left leg.
81. The Police came to his house at 1 p.m. He was taken along with the deceased and P.W. 3 to the Kunigal Government Hospital. He reached the hospital at about 1.30 or 2 p.m. He was in Kunigal Hospital till the evening. After that he left to Bangalore for further treatment. He was in Bangalore at about 9 p.m. He was admitted at Victoria Hospital and was in patient for 15 days. He learnt at the Bangalore hospital that the deceased was dead. His statement was recorded by the Police on 16-9-1989. He fairly admits that he was able to identify only 8 accused and they were A-3, A-12, A-11, A-13, A-10, A-1, A-9 and A-21. He clearly implicates the following accused as having chased and assaulted him A-1, A-3, A-9, A-11, A-12, A-13 and A-21. P.W. 6 was an Assistant Marketing Officer and was an educated person. If P.W. 6 wanted to implicate the accused with respect to the attack on the deceased, he could have stated falsely that he witnessed the occurrence with respect to the deceased. Being an injured person his evidence would have been a great value with respect to the attack on the deceased to the prosecution. He truthfully says that he came to the scene immediately after the occurrence and on his way to the bus stop he was chased and assaulted by 8 accused whose names we have mentioned earlier.
82. P.W. 6 was examined at Kunigal Hospital for his injuries by P.W. 14 Doctor at about 2.30 p.m. with history of assault by Donne on 15-9-1989 at 10.30 a.m. by A-3 and others. The Doctor P.W. 14 noticed the following injuries P.W. 6.
1. Contusion over right hand dorsal 4″ x (sic) bluish in colour;
2. Lacerated wound over right first inter-digital space 2″ x 1/4″;
3. Abrasion over top of right big toe 1/2 x1/2″;
4. Lacerated wound over the left big left toe 1″ x 1/4″ bleeding present;
5. Abrasion over second left toe 1/2 x 1/2″;
6. Swelling of left ankle present, and
7. Abrasion over left middle leg 1/2 x 1/2.
83. P.W. 6 was discharged in the evening to enable him to get better treatment at Bangalore. Injury Nos. 1 and 2 according to the Doctor could have been caused by sticks and Injury Nos. 3 to 7 could have been caused by dropping stones.
84. He was also treated at Bangalore by P.W. 13 Doctor. P.W. 13 in his evidence stated that the patient gave the history of assault said to have taken place on 15-9-1989 at 11.00 a.m. his village Hosahalli with sticks and stones by A-3, A-13 and others. He also noticed the following injuries on P.W. 6;
1. Contusion of 3″ diameter over the middle of left lower leg, anteriorly with tenderness;
2. Contusion over dorsum of right hand of 3″ in diameter with tenderness;
3. Contusion of 1″ in diameter over right big toe with tenderness;
4. Contusion of 1″ in diameter over dorsum of left great toe with tenderness;
5. Contusion of V2″ in diameter over dorsum of left second toe with tenderness; and
6. Lacerated wound of 1/2″ x 1/2″ x 1/2″ in between right great and second toe.
85. P.W. 13 Doctor also states that injury Nos. 1 and 2 are grievous in nature and injury Nos. 3 to 6 are simple in nature. These injuries could have been caused according to the P.W. 13 Doctor by blunt object. The Doctor also states that some injuries could have been caused by dropping stones.
86. When P.W. 6 was first seen at Kunigal Hospital at 2.30 p.m. almost immediately after the occurrence as stated earlier P.W. 14 Doctor who examined P.W. 6 states that P.W. 6 gave him the history of assault by Donne on 15-9-1989 at 11.00 a.m. at Hosahalli by A-3 and others. He was again examined as stated earlier by the Doctor at Victoria Hospital P.W. 13 examined P.W. 6 on 15-9-1989 at 8.15 p.m. P.W. 6 gave the history of assault with sticks and stones by A-3, A-13 and others. Therefore, even at the earliest point of time P.W. 6 has implicated the accused who assaulted him by the words “A-3, A-13 and others.”
87. P.W. 6 had no opportunity to give a complaint to the Police, since the earlier complaint by P.W. 1 had covered the second incident as well. P.W. 6 is an injured witness who has suffered grievous injuries and was examined by the Police though not at the inquest but immediately after the inquest on the next day after the occurrence. He could not have been examined at the inquest since he was bed ridden at Victoria hospital. No contradictions or omissions has been elicited from P.W. 6 in his evidence by the defence with respect to the identification of the accused.
88. It is not known why the trial Court acquitted those accused mentioned by P.W. 6 with respect to the grievance injuries sustained by him.
89. An injured witness is not likely to leave out the real assailants who assaulted him and implicable others falsely. As we have stated earlier P.W. 6 is a truthful witness because he does not speak about the main incident with respect to the assault on the deceased. He only states that while he was going to the bus stop he was assaulted by 8 accused namely A-3, A-12, A-11, A-13, A-10, A-1, A-9 and A-21.
90. The trial Court acquitted these 8 accused on the ground that the presence of P.W. 6 at the scene of occurrence immediately after the occurrence is doubtful. The trial Court also gave the benefit of doubt to the accused, sicne P.W. 6 did not give the names of each of the accused individually before the Doctors-P.Ws. 13 and 14.
91. It was not possible for P.W. 6 to give the name of the each of the accused individually since he has clearly mentioned A-3, A-13 and “others”. The word “others” clearly indicate that he knew their identity that is why when he was examined by the Police after the occurrence on the very next day he gave the names of all the 8 accused which was supported by his evidence in the Court.
92. The reasoning of the trial Court that the implication of the accused was an afterthought at Victoria Hospital does not stand to reason, since he has implicated 8 accused, who assaulted him at the earliest opportunity when he made a statement to the Police on the very next day and testified in Court to that effect. The trial Court found fault with P.W. 6 for not filing a separate complaint with reference to the occurrence. The trial Court also found fault with the prosecution for not recording the statement of P.W. 6 when he was at Kunigal Hospital.
93. The reasoning of the trial Court in acquitting the 8 accused with respect of the attack on P.W. 6 has been set out in the earlier part of the judgment as follows :-
That P.W. 6 Kambaiah also having been brought in the same car in which the deceased H.B. Bhoralingaiah was brought to the Hospital at Kunigal, if actually the said P.W. 23 K. Ramaiah had gone to PHC, Kunigal, he would have immediately recorded the statement of P.W. 6 – Kambaiah, as he was in a fit state of mind to make the statement. Then the truth would have been known as to who the real assailants are. Therefore, when P.W. 6 Kambaiah has not given the details of the names of the assailants apart from the two assailants namely Gopalaiah and Shivalingaiah, It becomes difficult to comprehended as to why he purposely omitted to mention the names of other assailants, whether he wanted some instructions to include the names of what the other reasons are. P.W. 6 Kambaiah has not given any explanation as to why he has given the names of the other assailants. It is also to be borne in mind that P.W. 6 Kambaiah when he went before P.W. 14, Dr. K.T. Doddathimmaiah, he has only given the weapon adopted in assaulting him as sticks or clubs or donne, but he has not mentioned the use of any stones’. But later on when he gave the history of incident and assault on him before P.W. 13 – Dr. N. Dhanyakumar at Victoria Hospital, Bangalore, he has mentioned that he was assaulted with clubs and stones. Therefore at every stage, slowly P.W. 6 Kambaiah has improved upon the names of the assailants by adding one name more when he gave the history before P.W. 13 – Dr. B.N. Dhanykumar and likewise, he has also added the weapon adopted in causing injuries to him as by stones, which he had omitted to say so before P.W. 14-Dr. K.T. Doddathimmaiah at Kunigal Hospital. As observed above, P.W. 6 Kambaiah has notLald the complaint of his own. PW 6 Kambaiah when he was removed to Victoria Hospital there according to his own version, he came to know about the death of H.B. Bhoralingaiah. Thereafter, on the next day P.W. 29 T.C.M. Shariff, Circle Inspector of Police recorded the statement of this P.W. 6 Kambaiah i.e. one day after the incident and by then P.W. 6 Kambaiah might have a ready names and also the weapons with which the assailants did the act on him. It is also not the case of P.W. 6 Kambaiah that he was in utter shock and dismay and as such, he did not reveal the names of all the assailants and the weapons adopted, as indicated by him before P.W. 13 Dr. B.N. Dhanyakumar and in his subsequent statement before P.W. 29 T.C.M. Shariff, Circle Inspector of Police, Kunigal, he has indicated.
94. The reasoning of the trial Court in acquitting the 8 accused who assaulted P.W.6 cannot be sustained, since P.W.6 has clearly mentioned the name of A-3, A-13 and others. It is not the job of the Doctor to record a detailed statement. The Doctor can only relate in brief what the witness said with respect to the alleged timings of the assault and the alleged assailants. The trial Court proceeds on the erroneous assumption that all the names of the accused should have been mentioned before the Doctor. We are not able to appreciate the reasoning of the trial Court on this aspect. Another reason for acquitting the accused with respect to the assault on P.W.6 was that P.W.6 did not mention that he was also assaulted by stones at the earliest opportunity. This is a frivolous point for the reason that 6 has mentioned before the Doctor that he was assaulted by sticks and clubs. The fact that he has omitted the word “Stones” before the Doctor-P.W. 14 cannot destroy the testimony of P.W.6. The trial Court has further given findng that P.W.6 has improved his case at every stage. We do not see any improvement in the evidence of P.W.6 which has been elicited by the defence to show that the testimony of P.W.6 cannot be relied upon.
95. It was submitted by Mr. Bhagwanj that only six persons even according to P.W.6 assaulted him. A-9 and A-21 only chased P.W.6. This argument cannot be accepted. The ferocity with which all the 8 accused chased and attacked P.W.6 would clearly make out a case for an offence under Section 326 r/w. 149, IPC. The common object of all the accused was to cause grievous injury to P.W.6. The end result of the attack was that P.W.6 was grievously injured with fractures and was bed-ridden for 15 days at Victoria Hospital.
96. More importantly the evidence of P.W.2 corroborates the evidence of P.W.6 if any corroboration is needed. P.W.2 impli-cates 8 accused as having assaulted P.W.6 while P.W.6 was about to take a bus to Bangalore.
97. Charge No. 6 relates only to 8 accused mentioned by P.W.6 for an offence under Section 307 r/w. 149, IPC.
98. In these circumstances, we have no hesitation in coming to the conclusion that A-1, A-3, A-9, A-10, A-11, A-12, A-13 andi A-21 committed an offence under Section 326 r/w. 149, IPC considering the nature of the injuries found on P.W.6. Accordingly, we set aside the finding of the trial Court with respect to Charge No. 6 and convict A-1, A-3, A-9, A-10, A-11, A-12, A-13 and A-21 for an offence under Section 326 r/w. 149, IPC.
99. We have heard the learned counsel for the accused with respect to the sentence. It was submitted by Mr. Bhagwan that the occurrence took place in September, 1989 and that the accused were in custody for sometime and the same should be treated as the sentence already undergone.
100. We cannot accede to such a request !since the injury suffered by P.W.6 are griev-ious in nature and P.W.6 was an impatient for 15 days at Victoria Hospital. We accordingly convict A-1, A-3, A-9, A-10, A-11, A-112, A-13 and A-21 for an offence under Section 326 r/w. 149, IPC and sentence the ‘, accused for a period of three years and also sentence them to pay a fine of Rs. 5,000/-leach in default to undergo S.I. for three months. The fine amount shall be paid within four weeks from the date of receipt of this order, failing which the default sentence will come into play. On payment of fine, the trial Court shall disburse the amount to P.W.6 as compensation. The accused shall surrender to serve the remaining portion of the sentence. The accused shall be entitled to set off under Section 428 of Cr.P.C.
101. For the reasons stated above, no interference is called for with respect to other charges in this appeal against acquittal. The State appeal is partly allowed and the finding of the learned trial Judge with respect to the assault on P.W.6 is set aside.
102. We place on record the assistance rendered by Mr. Thimmarayappa, learned Special Public Prosecutor.