Kudoor, J.
1. These two criminal appeals by the State arise out of the judgment and order dated 30th November 1981 passed by the I Additional Sessions Judge, Belgaum, in S. C. No. 28/1981. Cr. A. No. 281/1982 is one under Section 378(1) and (3) of the Code of Criminal Procedure against the acquittal of all the five accused of the offences punishable under Sections 147, 148, 447 and Section 302 read with Section 149 I. P. C. and also the acquittal of A2 to A5 of the offence punishable under Section 324 read with Section 149 I. P. C. Cr.A. No. 282/1982 is one under Section 377 of the Code of Criminal Procedure for enhancement of the sentence awarded against A1 to A3 for offences punishable under Sections 324 and 304 Part II read with Section 34 I.P.C.
2. All the five accused were charged for offences punishable under Sections 147, 148, 447 and 302 read with Section 149 I.P.C. on the ground that all of them on 24-12-1980 at about 3 p.m. constituted themselves into an unlawful assembly armed with deadly weapons like axe, pick axe, sickles and stick with the common object of causing the death of Kallappa and injuries to his sons Ashok and Kumar and in prosecution of the said common object, trespassed into a portion of the land called 'KaridiHola' comprised in S.No. 645/lC , situated in Eksamba village of Chikodi Taluk in Belgaum District, in the possession of deceased Kallappa and all of them assaulted Kallappa and his two sons Kumar and Ashok and caused bodily injuries to them and among them Kallappa, the deceased in the case later succumbed to the injuries in the District Civil Hospital at Belgaum. A 2 and A 3 were further charged for the offence punishable under Section 324 read with Section 149 I. P. C. for having voluntarily caused hurt to Ashok son of deceased Kallappa with sickles and A 4 and A 5 under Section 324 read with Section 149 I.P.C. for having voluntarily caused hurt to Kumar son of deceased Kallappa with pickaxe and stick respectively.
3. The case of the prosecution as revealed during the course of the trial, briefly stated, is as under :
Deceased Kallappa, A 1 Balappa, A 4 Mallappa and A 5 Bharama are direct brothers. Their father is alive. A 2 Rosa Saheb and A 3 Anna Saheb are the sons of A 1. P.W. 1 Kumar and P.W. 2 Ashok are the sons of deceased Kallappa. About 3 or 4 decades ago, the family was joint. The entire family lives at Danwad village of Shirol Taluk in Kolhapur District (Maharashtra State) situate on the northern side of Dood Ganga river which serves as boundary between the State of Karnataka and the State of Maharashtra. The family owns land both at Danwad as well as Eksamba Village of Chikodi Taluk in Belgaum District of the State of Karnataka which is situated on the southern bank of the said river. There is a bridge over the said river connecting Danwad and Eksamba villages. It is a little longer route. There is a shorter route by which one can ford the intervening river to reach the land at Eksamba from Danwad.
4. About 15 years ago, during the life time of the deceased, the deceased Kallappa separated himself from his brothers. Later the remaining brothers also got themselves separated from each other. All the four brothers have been enjoying their family lands separately. Ever since the deceased separated from his brothers, the relations were not that cordial because of the fact that each brother had a feeling that the partition of the family lands was not equitable and fair. There is a land called 'KaridiHola' bearing S. No. 645/1C situate in Eksamba villageoriginally belonging to the joint family, on the southern side of Dood Ganga river. It is said that this land was divided into four strips east-west wise. The northern strip which is nearer to the river bank was being cultivated by Kallappa and his two sons P.Ws. 1 and 2. The second strip which is just adjoining the first strip was being cultivated by A1 Balappa and his two sons A 2 and A 3. The 3rd and the 4th strips of land were being cultivated by A4 and A5 respectively. Besides there is another land called 'Chindipeer Hola' in the possession of Kallappa in Eksamba village where for the sake of expediency to cultivate the land belonging to deceased Kallappa situate in Eksamba village, there is a farm house at which several heads of cattle were being tethered and P.W. 2 Ashok was staying there looking after them.
5. On 24-12-1980 in the morning A1 to A3 with their female folk came to their strip of land in KaridiHola to plant sugarcane nodes for which the strip was already ploughed and rows were prepared. They were engaged in chopping of the sugarcane for making nodes to plant them in the rows till about 3 or 4 P.M. By that time deceased Kallappa followed by his two sons Kumar and Ashok who were till then in their land 'Chindipeer Hola' came to their strip of land in 'Karidihloa' and started harrowing from one end to another east-west wise. All the three of them engaged in harrowing work because the bullocks were somewhat erraticand unmanageable.
It is said that when Kallappa and his two sons were harrowing their strip of land and hardly completed two turns, all the five accused armed with axe, sickles, pickaxe and club came to the strip of land belonging to deceased Kallappa and stopped Kallappa from harrowing further and among them A1 who was armed with axe and stick questioned Kallappa as to why he was harrowing in the strip of land belonging to him (A-l). Kallappa told him not to pick up quarrel unnecessarily over the boundary between the two strips of land in their respective possession. Thereupon there was hot exchange of words followed by rioting with deadly weapons. A-l axed Kallappa on his forehead causing bleeding injuries. The remaining four accused who were armed with sickles, pickaxe and club respectively also assaulted Kallappa several times as a result of which Kallappa collapsed with bleeding injuries. His son Kumar (P. W. 1) went to the rescue of his father; he too was assaulted by A 4 and A 5. A 4 beat him with the handle of thepickaxe on the nape of his neck whereas A 5 assaulted him with a club on his back and right and left arm. When Kumar protected his head with both the hands to ward off the blow, he sustained injuries on the fingers. On seeing this, P.W. 2 Ashok came forward to rescue him. He was assaulted by A 2 and A 3 with sickles. The entire incident was witnessed by Sadashiv Kabade P. W. 3 who was by then returning home along with his buffaloes. On hearing the row, Balagonda Patil P.W. 3 who was in his neighboring land came to the spot and rescued Kallappa and his two sons from the accused persons. By the time P.W. 4 came, A 4 and A 5 had already left the scene of occurrence. A 1 to A 3 also left scene of occurrence after P.W. 4 came and intervened. Kallappa was lying in the land unconscious. P. W. 4 advised his sons Kumar and Ashok to remove Kallappa to the hospital. Thereafter Kallappa was brought in a cart to Eksamba GovernmentDispensary. There it was learnt that the doctor was not available in the dispensary. Then Kallappa was brought to Chikodi Government Dispensary in a station wagon. At Chikodi also the doctor of the Government Dispensary was not available. Then Kallappa was taken to a private nursing home owned by Dr. Shankar Ligade P. W. 5. P. W. 5 rendered first-aid to Kallappa and Ashok and having found the condition of Kallappa was critical and serious, and it being aMedical legal, he phoned up the SubInspector of Police, Chikodi Police station who came there along with his staff and made arrangements to shift both Kallappa and Ashok to Civil Hospital at Belgaum. The injured were shifted in a taxi to the Civil Hospital, Belgaum by about 8 or 9 p.m. whereas Kumar (P. W. 1) was sent to Sadalaga Police Station to lodge a complaint.
6. P.W. 1 went to Sadalaga Police station by bus and reached there by about 9-30 or 10 p.m. and lodged a written complaint as per Ex. P. 1 before P.W. 16 Sidddalingappa, who was the Station House Officer then. P.W. 16 on the basis of Ex. P. 1, registered a case in Cr. No. 92/1980 under Section 147, 148, 447 and 326 read with Sec. 149 I.P.C. He submitted the F.I.R along with the original complaint to J.M.F.C. Chikodi and express reports to his superiors. P.W. 16 secured panchas and drew up a panchanama Ex. P. 4 regarding the injuries found on the person of P.W. 1 on the same night. He also sent a requisition to the Medical Officer, Sadalaga, to examine complainant (P.W. 1) and providetreatment for his injuries. As it was late in the night, P.W. 1 sojourned for the night at Sadalaga.
7. On 25-12-1980 early in the morning, P.W. 16 proceeded to the scene of occurrence along with his staff and P.W. 1 where he recorded the scene of offence panchanama in the presence of the panchas as per Ex. P. 3. He questioned and recorded thestatements of P.W. 1 Kumar. P.W. 3 Sadashiv P.W. 4 Balagonda Patil and four others. In the meanwhile, P.W. 17 Vikram Giri who was then the Head Constable attached to Sadalaga Police Station received a phone call from the Cantonment Police Station, Belgaum, at about 11-30 a.m. that the injured Kallappa expired at Belgaum Civil Hospital. On receipt of the phone message P.W. 16reregistered the case in the same crime number, altering the Section from 326 I.P.C. into 302 I.P.C and submitted the altered F.I.R. to the J.M.F.C. Chikodi and sent express reports to his superiors. P.W. 19 Eregowda, the C.P.I. of Chikodi, on receipt of the express reports from P.W. 17, proceeded to the scene of offence and took over further investigation of the case from P.W. 16 at about 1 or 1-30 p.m. He gave instruction to P.W. 18 Hirojappa the then AssistantSubInspector of Police, Chikodi Police Station, who accompanied him (P.W. 19) to the scene of occurrence to apprehend the accused. P.W. 19 recorded the statements of P.W. 3 and 16 others.
8. In the meanwhile A 1 to A 3 had gone to the Primary Health Centre of Dattawad in Shirol Taluk of Kolhapur District and presented themselves before P.W. 13 Dr. Bhupal fortreatment of the injuries sustained by them at about 5-30 p.m. on 24-12-1980. P.W. 13 examined A l to A 3 and treated them P.W. 19 having come to know of the same on 26-12-1980 during the course of his investigation, proceeded to Dattawad village along with his staff and contacted the Medical Officer P.W. 13. By that time A 1 to A 3 were discharged. He apprehended A 1 to A 3 and brought them to Sadalaga Police Station. He seized theblood-stained banian and underwear found on the person of A 1 under a panchanama Ex. P. 7. A 1 gave an oral complaint which he reduced into writing as per Ex. P. 29. He handed it over to the Station House Officer of Sadalaga Police Station to register the case and investigate the same. He sent A 1 to A 3 to Sadalaga Medical Officer for further treatment. P.W. 18 who was directed by P.W. 19 to apprehend the accused, searched the houses of A 1, A 4 and A 5 and in the course of the search he seized two sickles, an axe and certain bloodstained clothes from the house of the 1st accused under the panchanama Ex. P. 10 and in the course of the search of the house of A 5, he seized a stick under a panchanama Ex. P. 11 and he seized apickaxe from the house of A 4 under a panchanama Ex. P. 12, on 25-12-1980. He handed over all the seized articles to P.W. 19 along with his report.
9. On 27-12-1980 at about 6 a.m. he (P.W. 18) arrested A 4 and A 5 and produced them before P.W. 19. P.W. 19 thenforwarded all the arrested accused to J.M.F.C. Chikodi and sought judicial remand for them from time to time till he placed thecharge-sheet. On 29-12-1980, he visited Belgaum Civil Hospital and recorded the statement of P.W. 2 Ashok and another person. He sent 11 seized articles to the Chemical Examiner, Bangalore on 9-1-1981. After completing the investigation, P.W. 19 placed the charge-sheet against all the accused under Section 147, 148, 447, 323, 326 and 302 read with Section 149I.P.C. on 23-3-1981.
10. The prosecution examined in all 19 witnesses besides getting marked several documents and material objects in support of its case.
11. The defense of A 1 to A 3 is one of denial of assault as alleged by the prosecution. According to their version of the incident, it was deceased Kallappa and his two sons P.Ws. 1 and 2 who were aggressors and assailants as it was they who had come armed with deadly weapons with an intention to trespass upon their strip of land where they had made every preparation to plant sugarcane nodes in the rows and deliberatelyleveled the land by harrowing and when objected, they assaulted them. The defence of A 4 and A 5 is one of total denial. They contended that they were not at all present at the scene of occurrence and had not participated in the crime. They had gone out on their private work. The accused did not examine any witness in support of their defence but only got marked a few documents.
12. The learned Sessions Judge on appreciating the evidence recorded a finding that the prosecution has failed to prove the presence of A 4 and A 5 at the scene of occurrence or theirparticipation in the crime and acquitted them of all the charges leveled against them. On the basis of the acquittal of A 4 and A 5, he further held that the charges under Sections 147, 148, 447, 324 and 302 read with Section 149 I. P. C. should also automatically fail against the remaining accused viz., A 1 to A 3 and they are liable to be acquitted of those charges on the principle ofvicarious liability. Thereupon be proceeded to consider the question of applicability of Section 34 I.P.C. against A1 to A3 for the acts found to have been committed by them on the basis of the evidence and then framed two charges against A1 to A3 under Section 324 and 302 read with Section 34 I.P.C. in the course of hisjudgment. Thereupon he considered the evidence adduced by the prosecution bearing upon those two charges and recorded afinding that the evidence adduced by the prosecution established the offence under Sections 324 and 304 Part II read with Section 34 I. P.C. against A1 to A3 and accordingly he convicted them for the said offences and sentenced each of them to undergo simple imprisonment for a term of 11 months on each count, directing the sentences to run concurrently with a further direction to set off the period of detention already undergone from the time of their arrest till the date of judgment as per his judgment and order dated 30-11-1981. It is the correctness and legality of this judgment and order passed by the learned Additional Sessions Judge that is under challenge in these appeals by the State.
13. Sri. T. J. Chouta, learned High Court Government Pleader appearing for the State in the course of his arguments maintained that the learned Sessions Judge has failed to discern the core of the prosecution case from the evidence adduced by theprosecution. The analysis and appreciation of the evidence of the prosecution witnesses is highly erroneous and defective. The ground assigned to hold that the prosecution has failed to establish the presence of A4 and A5 at the scene of occurrence and theirparticipation in the crime is highly erroneous as he overlooked certain essential features of the case brought out through the evidence of the prosecution witnesses especially that of P.Ws. 1 to 3, all of them in unequivocal terms spoke to their presence as well as actual participation in the commission of the offence. His finding that A 4 and A 5 were not present and had not participated in the crime and thus entitled for acquittal of all the charges framed against them and his further finding that A 1 to A 3 are also liable to be acquitted of the charges originally framed against them on the principle of vicarious liability is based on improperappreciation of the evidence and it is not in accordance with law. Thus he argued that all the accused are liable to be convicted of all the charges framed against them, in reversal of the finding of the learned Sessions Judge. Lastly he contented that even assuming that his finding that A1 to A3 have committed the offences punishable under Sections 324 and 304 Part II read with Section 34 I.P.C. is correct and should remain undisturbed, the sentence awarded in respect of those offences against each of the accused is grossly inadequate and therefore, liable to be enhanced. The reasons adduced by the learned Judge for taking a lenient view in the matter of sentencing and imposing inadequate sentences are improper and illogical. On these grounds, he argued that both the appeals deserved to be allowed.
14. Per contra, Sri N.K. Gunaki, learned Advocate appearing for A 1 to A 3 and Sri A.B. Patil, learned Advocate appearing for A 4 and A 5 vehemently contended that the acquittal of A 1 to A 3 of all the charges originally framed and that of A 4 and A 5absolutely is in accordance with law and based on proper appreciation of the evidence adduced in the case. They contended that there are no grounds to disturb the said findings. Sri Gunaki further contended that the plea of the State for enhancement of the sentence awarded against A 1 to A 3 for the offences punishable under Sections 324 and 304 Part II read with Section 34 I.P.C. deserves no merit. On the other hand, he strenuously argued pointing out certain circumstances appearing in the prosecution case that A 1 to A 3 are entitled for acquittal of the altered charges framed against them in the course of the judgment by the learned Sessions Judge. On this aspect of the case he contended that the learned Sessions Judge has not followed the procedure while framing the new charges against A 1 to A 3 and their conviction on the basis of the new charges is contrary to law. Besides he also maintained that investigation is not just and fair.
15. In the light of the contentions urged on behalf of the State as well as the accused, the following points arise fordetermination :
1) Whether the acquittal of A 4 and A 5 of all the charges leveled against them is erroneous?
2) Whether the acquittal of A 1 to A 3 of the charges originally framed for the reasons advanced by the learned Sessions Judge is contrary to law and the evidence on record ?
3) Whether the conviction of A 1 to A 3 under Sections 324 and 304 Part II read with Section 34 I.P.C. is proper and legal ?
4) Whether the sentence awarded against A 1 to A 3 is inadequate?
16. Kallappa died a homicidal death admits of little doubt. This part of the prosecution case appeared to be not challenged at the trial of the case in the court below nor it was sought to be challenged before this court in these appeals. Apart from the evidence adduced by the prosecution as to the circumstances under which Kallappa sustained the injuries on 24-12-1980 at about 3 p. m. and his removal to the District Civil Hospital, Belgaum, on the same day for treatment, his admission to the hospital at Belgaum as an inpatient and his death in the hospital in the early hours of 25-12-1980 due to the injuries sustained by him, there is the evidence of P.W.12 Dr. Basavaraj, the Autopsy Surgeon who conducted autopsy over the dead body of the deceased between 4 p. m. and 5 p. m. on 25-12-1980 on a requisition from the Belgaum Cantonment Police for conducting the autopsy. He found as many as 11 injuries both external as well as internal on the body of the deceased, the details of which he has recorded in his postmortem report Ex. P. 20 and in addition he has spoken to them in his evidence at the trial. He has opined that the death of Kallappa was due to shock and haemorrhage as a result of the injury to the brain and he has further stated that injuries Nos. 9 to 11 are sufficient in the ordinary course of nature to cause death. The evidence P. W. 12 coupled with the other evidence adduced in the case would clearly show that Kallappa died a homicidal death.
Point No. (i) :
17. There was an incident in the land called 'Kareedi hola' comprised in S. No.645/lC Eksamba village in Chikodi Taluk of Belgaum District at about 3 p. m. on 24-12-1980 in which, deceased Kallappa and his two sons P. W. 1 Kumar and P. W. 2 Ashok on the one side and A1 to A3 on the other side had sustained injuries, is not in very much dispute. The main dispute is who were the aggressors, whether the accused party or the deceased Kallappa's party. The party of Kallappa consisted of deceased Kallappa and his two sons P. Ws. 1 and 2 whereas the party of the accused, according to the prosecution, comprised of five personsconsisting of A1 to A5. A4 and A5 emphatically denied their presence at the scene of occurrence as well as their participation in the crime. It appears that it was the case of A1 to A3 that inaddition to deceased Kallappa and P. Ws. 1 and 2, Manik, another son of Kallappa was also in the complainant's party. It is the case of the prosecution that while deceased Kallappa and his two sons P. Ws 1 and 2 were doing harrowing work in their strip of land in Kareedihola, all the five accused formingthemselves into an unlawful assembly, armed with deadly weapons like axe,pickaxe, sickles and club, with the common object of committing the murder of Kallappa and causing injuries to P. Ws. 1 and 2, trespassed into the strip of the land belonging to deceased Kallappa and assaulted him and his two sons P. Ws. 1 and 2 in prosecution of the common object and caused injuries to all of them and Kallappa who sustained very serious injuries died due to the said injuries later in the Civil Hospital at Belgaum. The prosecution case in this regard is definite as to the number of persons who constituted the unlawful assembly, that they being A1 to A5, and none else. The presence of A1 to A3 at the scene of occurrence and that they were involved in the incident is not seriously disputed by the defence. But the case of the defence is that A1 to A3 were the victims and the complainant's party was the aggressor. A4 and A5 have taken up the plea of alibi that they were neither present at the scene of occurrence nor participated in the crime and they were at some other place at or about the time of the incident. The burden of proving the plea of alibi though rested on A4 and A5, they had adduced no positive evidence in this behalf. They appeared to have strongly relied upon the admissions of the material prosecution witnesses and also other circumstances appearing in the case in support of their plea that they were neither present at the scene of occurrence nor participated in the crime as sought to be made out by the prosecution. However, the primary burden is upon the prosecution to prove its case that A4 and A5 were present at the scene and joined in the assault on the deceased and P. Ws. 1 and 2 in the manner alleged.
18. Undoubtedly a petty property dispute between the deceased Kallappa on the one hand and A1 Balappa on the other gave rise to the unfortunate incident resulting ultimately in the death of Kallappa. It is the case of the prosecution that all the four brothers viz., deceased Kallappa, Al, A4 and A5, each owned a strip of land in the land called 'Kareedi Hola'. The strips were made east-west wise and the land in question was situate on the southern bank of Dood ganga river. The northern-most strip was given to deceased Kallappa and the strip adjoining to the land of Kallappa on the southern side was given to Al. The remaining two strips on the southern side were given to A4 and A5 respectively. The land was divided into four strips without well-defined boundaries between the strips and each one was allotted one strip out of them, under an oral partition in the manner stated above. The dispute was mainly between deceased Kallappa and A1 over the alleged boundary of their strip of land which was not clearly demarcated. It appears each one claimed some additional space in the strip of another. It is also in evidence that on the date of the occurrence A1 to A3 and their women folk were engaged in planting sugarcane nodes in the strip of the land allotted to A1 and deceased Kallappa and P. Ws. 1 and 2 were engaged in harrowing their strip of land and in the course of these agricultural operations, quarrel started between deceased Kallappa and A1 in respect of the space in their respective strips. Thus it is seen that A4 and A5 were not directly concerned in the day's dispute between deceasedKallappa and A1 which gave rise to the incident in question.
19. In this background, we have to consider the evidence of the prosecution witnesses as regards the alleged presence of A4 and A5 and their participation in the incident.
20. P.W. 1 Kumar, although testified in his examination-in-chief that A4 and A5assaulted him with the handle of the pickaxe and stick respectively, ultimately in his cross-examination he has stated that when A1 to A3 objected his father, the assault took place and A4 and A5 came later. P.W.4 came later. P.W. 4 Balagonda, an independent witness to the occurrence has stated in his evidence that on hearing the brawl emanating from the side of the river while he was scaring the birds in hislower field in the neighborhood, he came near the disputed land and saw A1 to A3 assaulting with sticks Kallappa's eldest son Ashok (P.W. 2) who had fallen. He also saw Kallappa lying a little away from the place where his eldest son had fallen. He further says that he asked A1 to A3 to go away from the place and get treatment for their injuries. Likewise, he also told the eldest son of Kallappa to take Kallappa for treatment and thereafter he went towards his field. He has not whispered a word about the presence of A4 and A5 at the scene of occurrence and their participation in the assault.
21. P.W. 3 Sadashiv who claims to be another eye witness to the whole of the incident, though no doubt stated in his evidence that he saw A4 assaulting Kallappa and also P.W. 1 Kumar with pick-axe and A5 assaulting Kallappa with stick and beforeP.W. 5 Balagonda came running to the place of occurrence, both A4 and A5 disappeared in the sugarcane crop, he appeared to have omitted to say so in his statement before the police. This is clear from the evidence of P.W. 16 theinvestigating officer who had recorded the statement of P.W. 3 on 25-12-1980 who says that P.W. 3 has not stated before him that A4 and A5 assaulted Kallappa and they had sprinted away before P.W. 4 reaching the scene of occurrence. Thus it appears to us that the evidence of P.W. 3 respecting the presence of A4 and A5 and their alleged participation in the crime was an improvement made at the time of the trial so as to fall in line with theprosecution case. His evidence on this aspect of the prosecution case is unreliable and unacceptable.
22. The above evidence of the prosecution clearly brings out that the presence of A4 and A5 at the scene of occurrence and their participation in the crime was highly doubtful andunbelievable. The mere fact that a pickaxe and a club were recovered from the houses of A4 and A5 respectively during their absence and in the course of the search conducted by P.W. 18 Hirojappa, A.S.I. is of little help to the prosecution to prove their physical presence at the scene of occurrence and participation in the crime. The aforesaid circumstances appearing in the prosecution evidence, in our opinion, are fairly sufficient for A4 and A5 to sustain their plea of alibi. That being so, the irresistibleconclusion that could be drawn from all these material will be that A4 and A5 were not involved in the commission of the offencesalleged by the prosecution against them. In that view, their acquittal of all the offences with which they stood charged by the learned Additional Sessions Judge is unassailable.
Point No. (ii)
23. A1 to A3 were also originally charged along with A4 and A5 for offences punishable under Sections 447, 147, 148 and 302 read with Section 149 I.P.C. and in addition A2 and A3 were charged for an offence under Section 324 read with Section 149 I.P.C. The allegation in the charge was that they along with A4 and A5 were the members of an unlawful assembly and in prosecution of the common object of the said assembly, they committed the offence of rioting armed with deadly weapons and caused the death of Kallappa the deceased in the case and also hurt to his two sons P.Ws. 1 and 2 and in doing so, they also trespassed into the portion of the land in the hola called 'Kareedi Hola' in the possession of the deceased Kallappa and his two sons. Thelearned Sessions Judge having acquitted A4 and A5 of all the charges framed against them on the ground that they were not present at the scene of occurrence and did not participate in the crime and to that extent the evidence adduced by the prosecution wasunbelievable and unacceptable, proceeded to acquit A1 to A3 also of all the original charges framed against them on the sole ground that A1 to A3 could not constitute an unlawful assembly as their number was short of five which is the basic requirement of an unlawful assembly.
24. The essentials of an unlawful assembly as defined under Section 141 I.P.C. are that there must be an assembly of not less than five persons, that they must have a common object, that the common object must be of the nature specified in items first to fifth of the Section and that the common object must be unlawful. Thus it is seen that the basic element of constituting an unlawful assembly is the number of persons composing the assembly which should not be less than five persons. If the prosecutionestablishes satisfactorily the presence of atleast five members in an unlawful assembly with the requisite common object, one of them may be convicted even though the remaining four are acquitted on the ground of their identity being notsatisfactorily established. It is only when the number of the alleged assailants are definite and all of them are named and the number of the persons found proved to have taken part in the incident is less than five, then it could not be held that the assailants' party must have consisted of five or more persons and the acquittal of the remaining named persons must mean that they were not in the incident and thus the application of the ingredients of unlawful assembly to such a case would not arise. The Supreme Court in RAM BILA SINGH v.. STATE OF BIHAR (1964 (1) Cr.L. J. 57(S.C) reviewed the case law on the subject and held on pages 578-579 that it is competent to a court to come to the conclusion that there was an unlawful assembly of five or more persons even if less than that number have been convicted by it if (a) the charge states that apart from the persons named, several other unidentified persons were also members of the unlawful assembly whose common object was to commit an unlawful act and the evidence led to prove this is accepted by the court ; or (b) the first information report and the evidence show such to be the case even though the charge does not state so ; or (c) though the charge and the prosecution witnesses named only the acquitted and convicted accused persons, there is other evidence which discloses the existence of named or other persons, provided, in case of (b) and (c) noprejudice has resulted to the convicted persons by reason of the omission to mention in the charge that the other unnamed persons had also participated in the offence.
25. In the instant case, it is the definite story of the prose cution that only the five accused, named in the charge and resp. 1 else constituted the numbers of the unlawful assembly. There were mentioned in the F.I.R. and referred to in the course of the trial. The accused and the witnesses to the occurrence are the residents of the same locality and having agricultural lands closeby. They are known to each other quite familiarly. Besides, A1,A4 & A5 and deceased Kallappa are brothers, A2 & A3 are the sons of A1 and P.Ws. 1 & 2 are the sons of deceased Kallappa, of whom P.W, 1 is the first informant. The occurrence took place in abroad-day light round about 3 p.m. That being the position, there was little chance to commit any mistake as to the number of the members of the group or their identity. The fact that all the five accused persons were named both in the F.I.R as well as during the trial as the members of the assailant's party, excludes the possibility of any other person to be in the accused's party, especially when there be no occasion to think that the witnesses naming all the accused could have committed mistakes inrecognising them. In such a situation, the acquittal of A 4 and A 5 would reduce the number of the assailant's party to less than the minimum number required for constituting an unlawful assembly and that being so, the acquittal of A 1 to A 3 of the offences under Sections 147, 148, 302 read with Sections 149 and 324 read with Section 149 I.P.C cannot be said to be erroneous (See Kartar Singh v.State of Punjab, A.I.R. 1961 S.C 1787). However, their acquittal by the learned Sessions Judge of the offence under Section 447 I.P.C upon the same reason, in our opinion, may not be sound. We propose to give our reasons later in the course of this judgment.
Point (iii)
26. The learned Sessions Judge having acquitted A1 to A3 of all the charges originally framed against them, proceeded to consider the application of Section 34 I. P. C. on the facts and circumstances and the evidence adduced in the case. While doing so, he charged A1 to A3 under Sections 324 and 302 read the Section 34 I. P. C. although they were not previouslyread for those offences and having considered the evidence reduced in the case, he found them guilty of the offences punishable under Sections 324 and 304 Part II read with Section 34 I.P.C. and convicted and sentenced them for the said offences. The question now arises for consideration is whether the conviction of A1 to A3 for those offences is legal and proper.
27. This question consists of two parts namely the legality of considering the case against A1 to A3 under the altered charges framed in the course of the judgment and the propriety of their conviction on merits.
28. Now turning to the altered charges under Sections 324 and 302 read with Section 34 I. P. C. this is what the learned Sessions Judge has stated in paras 19 and 20 of his judgment.
19. 'Now it could be seen whether prosecution evidence discloses at least the common intention of accused Nos. 1 to 3 so that Section 34 I.P.C. though by itself does not create any offence, can be invoked against them in the interest of justice to fix constructive liability, particularly in a case such as this, where the presence and participation and weapons and wounds are admitted the armed clash between the two rival parties.
20. The requirements of Section 34 are existence of common intention in the sense of re concert or meeting of mind anterior to or its development on the spur of the moment on the eve of commission of crime. Second requirement is the presence and participation; and third requirement is the commission of offence or offences in furtherance of common intention to bring about a desired result. Regard being had to the peculiar facts of this case, all the ingredients of Section 34 could be found in prosecution evidence. So, for the sake ofexpediency and in the interest of Justice, there is no legal bar to invoke Section 34 I.P.C. with which accused Nos. 1 to 3 can be charged, though not previously charged with. Now, I charge accused Nos. 1 to 3 with Sections 324 and 302 read with Section 34 I.P.C. '
29. Although A1 to A3 were not charged alternatively for the offences under Sections 324 and 302 read with Section 34 I. P. C. all of them were charged for the offence of rioting and committing murder of Kallappa and causing injuries to P. Ws. 1 and 2 punishable under Sections 147, 148, 324 and 302 read with Section 149 I. P. C. Having found them not guilty of the offences for which they were charged originally, the learned Sessions Judge proceeded to consider the application of Section 34 I. P. C. on the basis of the material produced in the case and on that basis he proceeded to consider the case against A1 to A3 for offences punishable under Sections 324 and 302 read with Section 34 I. P. C. Unlike Section 149 which creates a specific offence Section 34 I. P. C. does not create an offence. It lays down the principle of criminal liability. It is well settled that omission to mention Section 34 in the charge, be it substantive offence, or a substantive offence read with Section 149 1. P. C, is no bar to the recording of a conviction for that offence read with Section 34, if the facts alleged and proved justify the application of Section 34 I. P. C.
30. The only question requires to be considered in such a case would be whether on account of the omission to mention Section 34 or its exact words in the charge, any prejudice is caused to the accused in consequence of such omission. It follows therefore that where the accused are charged for the substantive offence read with Section 149 I.P.C. there is no legal impediment to convict them for the said offence read with Section 34 I.P.C., if the facts alleged and proved, justify the application of Section 34. If such a conviction is permissible, then there can be no valid objection to charge the accused in the course of judgement for the substantive offence read with Section 34 I.P.C. and proceed to consider the said altered charge on its merits on the basis of the evidence on record.
31. The Supreme Court in Kartar Singh's case (AIR 1961 S.C 1787) and Jagir Singh v.. State of Punjab ( : 1968CriLJ89 ) has ruled that where the accused are charged for substantive offences read with Section 149 I.P.C., they could be convicted for the said offence read with Section 34 I.P.C provided the facts and circumstances proved in the case justify the application of Section 34 and of course when no prejudice is caused to the accused by the alteration of the charges. In view of the above legal position, we see no legal infirmity in considering the case against A1 to A3 by the learned Sessions Judge on the basis of the altered charges framed in the course of the judgment.
32. The next and the most important question for consideration is the propriety and legality of the conviction of A1 to A3 for the offences punishable under Sections 324 and 304 Part II read with Sections 34 I. P. C. and the sentences passed thereon. A1 to A3 have not challenged their conviction for the aforesaid offence in the sense, they had not preferred any appeal against the conviction recorded and the Sentence passed against them. Since the State has filed the appeal under Section 377 Cr. P.C. for the enhancement of the sentence awarded against them, it is open to them while showing cause against the enhancement of the sentence, to plead for their acquittal under subsection (3) of Section 377 Cr. P.C. Sri Gunaki, learned Advocate appearing for A1 to A3 in the course of his arguments pressed for the acquittal of the accused pointing out certain circumstances appearing in the evidence adduced in the case. Thus it is necessary to scrutinise the evidence adduced by the prosecution to see whether the conviction recorded and the sentence passed against the accused Nos. 1 to 3 for the offences arising out of the altered charges is proper and legally sustainable.
33. The prosecution mainly relied upon the evidence of P.Ws. 1 to 4 who are said to be the witnesses to the occurrence. The learned Session Judge placing reliance on their evidence and also on other evidence adduced in the case to which a reference will be made in due course, held that A1 to A3 are guilty of the offences for which they are convicted and sentenced. Out of the four alleged eye-witnesses, P. Ws. 1 and 2 are the sons of deceased Kallappa, who claimed to have witnessed the occurrence from the beginning, whereas P. Ws. 3 and 4 who claimed to have been present in the neighbourhood, came to the scene of occurrence attracted by the row emanated from the scene of occurrence. They do not speak of the origin of the occurrence.
34. There is no dispute that deceased Kallappa and his two sons P. Ws 1 and 2 and A1 to A3 were involved in the incident. There is also evidence to show that P.Ws. 1 and 2 and the deceased as well as A1 to A3 had sustained injuries in the same incident. It is the case of A1 to A3 that on the date of the occurrence, they had gone to 'Kareedi Hola' along with their women folk and while they were engaged in preparing the sugarcane nodes to plant them in the rows already prepared by them in the portion of their land in the Kareedi Hola, the deceased Kallappa and his sons P. Ws. 1 and 2 and one Manik, who is younger to P. Ws. 1 and 2, all came there armed with the deadly weapons, entered upon their strip of land and deliberately levelled some portion of the rows prepared by them by harrowing and when objected, all of them assaulted them (Al to A3) and caused injuries to them. It is their further case that when they were so attacked, A1 also, in exercise of the right of private defence of his person hit the deceased on his head with a stick and P.Ws. 1 and 2 also sustained injuries in the course of the same incident. On the other hand, the case of the prosecution is that deceased Kallappa along with his sons P.Ws. 1 and 2 went to their strip of land in 'Kareedi Hola' at about 3 p.m. for harrowing and while all the three were engaged in harrowing work, as the bullocks were somewhat erratic and unmanageable and when they had hardly completed two turns, A1 to A3 along with A4 and A5, all came in a body, armed with axe, sickles, pickaxe and club, to the strip of land belonging to the deceased Kallappa and stopped Kallappa and P.Ws. 1 and 2 from harrowing, questioning Kallappa as to why he was harrowing in the strip of the land belonging to A1 and when Kallappa told him not to pick up quarrel unnecessarily over the boundary between the two strips of land in their respective possession, there ensued hot exchange of words between deceased Kallappa and Al, followed by unprovoked assault on the deceased by all the accused and among them A1 axed deceased Kallappa on his fore-head and the other accused assaulted him with the respective weapons in their hands and when P. Ws. 1 and 2 went to the rescue of Kallappa, A4 and A5 assaulted P.W.1 with the handle of the pick axe and the club and A2 and A3 assaulted P. W. 2 with sickles and caused injuries to them. Deceased Kallappa and his sons professed to have been unarmed and make it appear that they are ignorant of any injury sustained by the accused.
35. The prosecution was initiated against the accused on the complaint (Ex. P. 1) of F. W. 1 Kumar lodged with the Sadalaga police at about 10 p. m. on 24-12-1980, the very day of the occurrence before P. W. 16 who registered a case upon that complaint and took up investigation. In the meanwhile, injured Kallappa was taken by P. W. 2 Ashok to the Civil Hospital at Belgaum, for treatment accompanied by P. W.14 Virupakshi, Police constable of Chikodi Police Station who was deputed by P. W. 15 Devanna, the then Sub-Inspector of Police, Chikodi Police Station, P.W.1 was all along with injured Kallappa and P. W. 2 Ashok, till Kallappa was sent to the hospital at Belgaum from Chikodi and thereafter he proceeded to Sadalaga Police Station as directed by the police at Chikodi to lodge a complaint. In the complaint P. W. 1 has drawn a graphic picture of the incident that on the date of the occurrence, they had gone to their portion of the land in 'Kareedi Hola' at about 4 P.M. for harrowing and when they had completed one or two turns, A1 to A3 along with A4 and A5 all in body came, armed with deadly weapons like axe, pickaxe, sickles and club and stopped them from harrowing further stating that they too had a share in the portion of the land in which they were harrowing and when deceased Kallappa questioned their right, A1 axed Kallappa on his head with the axe in his hand and when P. Ws. 1 and 2 went to the rescue of Kallappa, A4 and A5 assaulted P. W. 1 with the handle of the pickaxe and the club respectively whereas A2 and A3 assaulted P. W. 2 with the sickles. P. Ws. 1 and 2 raised cries. On hearing their cry, two or three persons present in the neighbouring lands came running to the place of occurrence and rescued them. Kallappa and P.W.2 both sustained bleeding injuries. As the recitals in the complaint proceed, it is seen that P. W. 1 had assigned specific acts of violence to the various accused. He has specifically stated that it was A1 who had assaulted Kallappa with an axe on his head whereas P. Ws. 1 and 2 were assaulted by A4 and A5 and A2 and A3 respectively with different kinds of weapons with which they were armed.
36. P. W. 1 in his evidence before the trial court has stated that on the date of the occurrence, after takingmidday meal in their homestead in the neighbouring land called 'chindiur land, belonging to them, deceased Kallappa, he and P.W. 2, all went to harrow their piece of land in 'Kareedi Hola'. At that time, Al, his two sons A2 and A3 and their womenfolk were engaged in planting sugarcane nodes in the strip of land belonging to Al. When they were so engaged, deceased Kallappa, he and P. W. 2 started harrowing their strip of land and when they had hardly harrowed two or three turns, all the five accused came to their strip of land and among them A1 was armed with an axe and a stick, A2 and A3 were armed with sickles and A4 was armed with apickaxe and A5 was armed with a stick and questioned Kallappa why he was harrowing in the strip of land belonging to A1 and when the deceased told them not to pick up quarrel unnecessarily over the boundary between the two strips of lands owned by him and Al, there ensued hot exchange of words between A1 and the deceased Kallappa followed by an assault on the deceased Kallappa by A1 on his forehead with the axe and by the remaining accused with the respective weapons in their hands as a result of which Kallappa collapsed and fell down with bleeding injuries. He has further stated as to how he and P.W. 2 had sustained injuries at the hands of A4 and A5 and A2 and A3 respectively which version is in conformity with the version stated in the complaint Ex. P. 1 with added details of the respective blows given by them and the seat of the injuries. He has also stated in his evidence that the incident in question was witnessed by P.W. 3 Sadashiv who was returning along with his buffaloes and P.W.4 Balagonda who was working in the nearby land, hurried to the place of occurrence and rescued them.
37. P.W. 2 is a companion witness of P.W. 1 in the sense that both of them not only accompanied deceased Kallappa to 'Kareedi Hola' for harrowing but also involved in the incident and sustained injuries. His evidence is not consistent with the evidence of P. W. 1. He too speaks of the entire incident till the stage of the arrival of P. W. 4 Balagonda and his intervention in the affair. His evidence is that when he along with his father Kallappa and P.W. 1 were harrowing in their strip of land in 'Kareedihola', there was a quarrel between the deceased Kallappa and Al, that A1 dealt a blow on the forehead of deceased Kallappa with an axe, that when he went to the rescue of his father, A2 and A3 assaulted him on his head and leg with sickles and when P.W. 1 came to his rescue, he was beaten by A4 and A5. He further says that by then P.W. 4 came on the scene and rescued them. He adds that he fell unconscious on account of the injury sustained by him and regained consciousness at Belgaum Civil Hospital where he was . treated for his injuries.
38. In addition to the evidence of P.Ws. 1 and 2, the prosecution examined two more witnesses P.Ws 3 and 4 by way of corroboration to the evidence of P.Ws. 1 and 2. P.W. 3, a boy of 15 years of age goes half-way in supporting the testimony of P.W.1 as to the incident. His evidence is that on the date of the occurrence while he was returning with his buffaloes from the river side, he saw deceased Kallappa harrowing in his strip of land when A1 questioned him why he was harrowing in his (A1's) portion of the land, to which deceased Kallappa replied that he was harrowing in his portion of the land, whereupon a quarrel ensued between deceased Kallappa and Al. At that time, the remaining 4 accused were present. During the quarrel, A1 dealt a blow on the fore-head of the deceased Kallappa with an axe whereas A4 and A5 also assaulted him with pick-axe and stick. He further says that when P.Ws. 1 and 2 went to the rescue of Kallappa, A4 assaulted P.W. 1 with the pick-axe on his head and back, and A2 and A3 assaulted P.Ws. with sickles. On seeing the incident, P.W.4 came running to the spot while A1 and deceased Kallappa were assaulting each other. Before P.W. 4 came on the scene, A4 and A5 disappeared in the sugarcane crop.
39. The last witness is P.W.4 Balagonda. He is quite an elderly person aged about 80 years and an independent witness. His evidence is that while he was scaring away the birds in his jowar field near by the place of the occurrence, he heard abrawl emanating from the side of the river and went near the disputed land where he found A1 to A3 assaulting P.W. 2 with sticks who had fallen down. He went and prevented A1 to A3 from further assaulting him. He also saw Kallappa lying about 12 ft. away from the place where P. W.2 had fallen. He made P.W.2 to get up. At that time Kallappa and his two sons P. Ws. 1 and 2 and A1 to A3 were alone present. A1 to A3 had injuries on their person and he asked them to go and take treatment for their injuries. Likewise, he told P.W.2 to take Kallappa for treatment. In his cross-examination he has stated that the incident took place between the two strips of land belonging to Kallappa and Al, that Kallappa had fallen in the strip of land belonging to A1 where some rows for planting sugarcane nodes were made, that A1 to A3 were armed with sticks whereas deceased was armed withpickaxe and P. Ws. 1 and 2 were unarmed. He denied having made any statement before the police that A1 was holding a stick in his right hand and an axe in his left hand.
40. From a perusal of the narration of the events of the occurrence by P.W. 1, in his testimony before the Trial Court as well as the contents of his complaint Ex. P. 1, we find marked variation not in mere details but in material particulars as to the circumstances under and the manner in which the occurrence took place. In the complaint Ex. P. 1, P. W. 1 has not only stated as to how the occurrence took place but also furnished the details as to the individual part played by all the five accused including A4 and A5. He has stated that when his brother P. W. 2 and his father deceased Kallappa were harrowing in the strip of land belonging to them in the 'Kareedi Hola' and when they had harrowed one or two turns, all the five accused came to their strip of land armed with deadly weapons and prevented them from harrowing further questioning that they too had their share in the said strip of land and when the deceased objected, A1 dealt a blow on the head of the deceased with the 'Kodali' in his hand and when he and P. W. 2 went to the rescue ofKallappa, A4 and A5 assaulted him (P. W. 1) with the handle of the pickaxe and the club respectively and A2 and A3 assaulted P. W. 2 with sickles. In the course of his evidence before the Trial Court, P.W.1 improved his version as to the assault on the deceased and has stated that after A1 assaulted the deceased on his forehead with the axe, the remaining 4 accused also assaulted him with theweapons in their hands and on receipt of the blows, deceased Kallappa collapsed and fell down unconscious. This part of his evidence regarding the alleged assault on the deceased by A2 to A5 is certainly a material development introduced by P. W. 1 in the prosecution story with ulterior motive. P. W. 2 who is the companion witness of P. W. 1 does not say a word about the assault on the deceased by A2 to A5. P. W. 3 had a different story to tell. According to him, A1 and A4 and A5 assaulted the deceased. He does not say anything about A2 and A3assaulting the deceased. So also he does not say A5 assaulting P. W. 1. The prosecution cannot contend that P.W. 1 omitted to mention A2 to A5 assaulting the deceased in his complaint Ex. P. 1 either out of confusion or due to his (P.W. 1's) being overwhelmed by grief or sorrow as it has come in the evidence that P.W. 1 lodged the complaint at Sadalaga Police Station before P.W. 16 at about 10 p.m. on the date of the occurrence and by that time his father was taken to the Civil Hospital at Beigaum for treatment by P.W.2 with the help of the Chikodi Police and he having been sent to Sadalaga Police Station to lodge the complaint. Besides, P.W. 1 has also stated in his evidence that when he along with his brother and father went to their land for harrowing, Al, his sons A2 and A3 and their women-folk were engaged in planting sugarcane nodes in the strip of the land in 'Kareedi Hola' belonging to A1 and that they had been so working since 8 a.m. on the date of the occurrence which is also the case of the accused. But P. W. 1 had purposely omitted to mention this in his complaint so as to give an appearance that all the five accused suddenly appeared on the scene of occurrence, came fully prepared to obstruct them from harrowing the land at any cost. It is not the evidence of P.W. 1 or P.W. 2 that after P.W. 4 came on the scene and intervened in the affair, there was any further assault either on the deceased or on P. Ws. 1 and 2. That being so, there could not have been any variation in the testimony of P. Ws. 1 and 2 as to the manner in which the occurrence took place. The evidence of P. W. 2 that he fainted due to the injury sustained by him and regained consciousness later in Belgaum Civil Hospital appears to be not true. P. W. 4 has stated that he told the eldest son of deceased Kallappa which means only P.W. 2 and none else, to take Kallappa for treatment wherever it was possible. P.W.1 has stated that he and P.W.2 removed the deceased to Chikodi and from there P.W.2 took the deceased to Belgaum Civil Hospital for treatment. Further P.W.5 Dr. Shankar Ligade, who saw the deceased and P. W.2 at about 8 p.m. at Chikodi on the same day, has stated that Kallappa wassemiconscious whereas P.W.2 had only some minor injuries. The evidence of these witnesses belie the statement of P.W.2 that he fainted at the scene and regained consciousness later in Belgaum which version P.W.2 must have introduced in his evidence probably with a view to explain the variations in his evidence from the evidence of his brother P.W.1 regarding the manner in which the occurrence took place. Although it would appear from the evidence of P.W.4 that he came to the scene of occurrence at the last stage of the incident when P.W.2 was being assaulted, his evidence does not support the version of the incident as given by P.Ws. 1 to 3. He does not speak to the presence of A4 and A5 at the place of occurrence. It is not the evidence of P.Ws. 1 and 2 that A4 and A5 left the place of occurrence earlier to A1 to A3 left or before the arrival of P.W.4. An attempt was made by the prosecution through the evidence of P.W.3 to show that A4 and A5 sprinted away before P.W.4 arrived on the place of occurrence but this part of his (P.W. 3's) evidence is proved to be a deliberate improvement when he gave the evidence before the trial court as appear from the evidence of P.W.16 the Investigating Officer who recorded his Statement under Section 161 Cr. P.C. to which a reference had been made in the earlier portion of this judgment. As regards the weapons, P.W.4 clearly contradicts the version of the other witnesses inasmuch as he has stated in unequivocal terms that A1 to A3 were armed with sticks only whereas deceased Kallappa was armed with apickaxe with blade. His evidence further shows that A1 to A3 had sustained injuries on their person in the same incident for which he asked them to take treatment. None of the other witnesses to the occurrence speaks to the injuriessustained by any of the accused.
41. We shall next proceed to consider whether the ocular testimony as to the occurrence is found corroboration from the medical evidence adduced in the case. The very first medical officer who had the occasion to see the injured persons was P.W.5 Dr. Shankar Ligade, a private medical practitionerpracticing at Chikodi. He had not examined the injuries in detail sustained by any of the injured persons. His evidence is that Kallappa and P.W.2 were brought to his dispensary for treatment, that Kallappa had a head injury which was bleeding copiously and P.W.2 had some minor injuries. He gave first aid to them and since the condition of Kallappa was serious and it was aMedical legal case, he contacted P.W.15 the P.S.I. of Chikodi Police Station and instructed him to make arrangements to remove the injured to the Civil Hospital, Belgaum and he gave a letter of reference as per Ex.P.2. Accordingly Kallappa and P.W.2. were taken to Belgaum Civil Hospital. He does not say that he examined P.W.1 or anything about the injuries on his person.
42. P.W.10 Dr. Vasanth Madhav examined P.W. 1 at about 7 a.m. on 25-12-1980 at the instance of the Sadalaga Police and found two contused abrasions of 3 1/2' x l' and 2' x 1' on the left and right scapular region and tenderness in the left upper arm (middle) and in the right index finger region. He has stated that the injuries found on the person P.W.1 were simple in nature and might have been caused by blunt instruments more probably like the club M.0.4 than by the handle of thepickaxe M.0.3 He has recorded the details of the injuries in his wound certificate Ex. P.15.
43. P.W.11 Dr. Shivashankarappa examined P.W.2 on 25-12-1980 at 11-10 a.m. at Civil Hospital, Belgaum and he found an incised wound over the mid third of the left leg 2.5 cm and 0.25 cm. and bone deep ; a contused abrasion on the lateral aspect of left fore-arm, just above the wrist-joint 2c.m. x cm. accompanied by tenderness; a contused abrasion over palmer aspect of right little finger 0.25 cm. x 0.25 cm.; and a contused abrasion over dorsal aspect of the right little finger 0.25 cm. x 0.5 cm. accompanied by tenderness. He has stated that injury No. 1 could be caused by either of the sickles M.Os. 1 and 2 and injuries Nos. 2 to 4 could be caused by using the club like M.O.4. He issued the certificate as per Ex. P. 16.
44 P.W. 12 Dr. Basavaraj was the surgeon attached to the Civil Hospital, Belgaum who conducted the autopsy over the dead body of deceased Kallappa. He recorded the following injuries on his person :
'1. Ecchymosed around left eye.
2. Lacerated wound just above and lateral to the left eye 2' x 1 1/2' skin deep, firm red Blood clots present.
3. Contused lacerated wound at the right side of the occipital region, L' shaped, scalp deep, 4' x 1/2' firm red blood, clots were present.
4. Abrasion just anterior to the above wound (No. 3) reddish blue 2'x2'
5. Abrasion at the spine of the scapula on the right side, 1/2' x 1/2' reddish blue.
6. Abrasion at the middle of right shine 1' x 1/2' reddish blue.
7. Contused lacerated wound at the terminal phalanx of left thumb nail was almostcutout of nailbed and there was fracture of terminal phalanx*.
8. Abrasion at the lower part of left forearm 1/2' x 1/2' on the dorsal side.
9. 'Scalp'- big haemotama at the subapneurotic space extending from occipital region to the left parietal region. It was red and firm.
10. Fracture 'vault of skull' - stellato type of fracture. Fracture lineextending as shown in the diagram.
11. Massive subdural haemotoma starting from occipital region to parietal region on the left side and temporal region on the right side. It was red-firm. Laceration of brain at the occipital region.'
He issued the postmortem certificate as per Ex. P. 20. Out of the 11 injuries noted by him, he has stated that injury Nos. 1 to 8 are simple and injury Nos. 9 to 11 are corresponding internal injuries, fatal in nature and sufficient in the ordinary course of nature to cause death. He has further stated that external injury No. 2 which is lacerated could be caused by the club M.O. 4 and the handle of the pickaxe M.O. 3 and it is also possible to cause injury Nos. 9 to 11 on the head by stout club like M.O. 4.However, he has ruled out that injury Nos. 9 to 11 could be caused by any sharp cutting instrument.
45. On a close scrutiny of the medical evidence, it is clear that the injuries sustained by P. W. 1 could be caused by blunt weapons like the handle of thepickaxe M.O. 3 and the club M.O. 4 but more probably by a weapon like M.O. 4. It is the positive case of the prosecution that A4 and A5 were armed withpickaxe and club similar to M.Os. 3 and 4 respectively. That part of the prosecution case of A4 and A5 having taken part in the assault has been rejected by us. Along with it, the theory ofwilding the handle of the pickaxe M.O. 3 and the club M.O. 4 andcausing injuries P.W. 1 would also fail. That being so, only A1 to A3 were left on the scene who were, according to the prosecution, armed with axe and sickles. Certainly the injuries found on the person of P.W. 1 could not have been caused by such weapons and it is not the evidence of the doctor that those injuries could have been caused by weapons like axe and sickles. Thus the evidence of P. W. 10 does not lend assurance to the prosecution case respecting the manner in which P. W. 1 sustained the injuries in the course of the same incident.
46. Similarly as regards the injuries found on the person of P. W. 2, as could be seen from the evidence of P. W. 11 that only injury No. 1, an incised wound, could be caused by a sharp-cutting instrument like the sickles M. Os. 1 and 2 and the remaining injuries could be caused by hard substance like a club M. O. 4. The case put-forward by the prosecution through the evidence of the eye-witnesses is that P. W. 2 was assaulted by A2 and A3 with sickles M. Os. 2 and 3 and none of them would say that he was assaulted by anyone with any blunt weapon. That being so, the evidence of P. W. 11 would not support the evidence of the prosecution witnesses regarding the injuries other than injury No. 1 found on the person of P. W. 2 and this part of the prosecution case remained unexplained.
47. Now coming to the injures sustained by deceased Kallappa, the evidence of P. W. 12 would go to show that none of the injuries found on his person could be caused by any sharp-cutting instrument, whereas it is the evidence of P. Ws. 1 to 3 that deceased Kallappa was assaulted with an axe by A1 on his fore-head. Regarding the other accused assaulting the deceased, there are inconsistencies and improvements in their evidence which have been adverted to earlier. Besides, the prosecution has failed to establish the presence of A4 and A5 at the scene of occurrence and their taking part in the assault. Thus the only other accused who were left on the scene were A1 to A3 who were all armed with sharp-cutting weapons like axe and sickles, according to the prosecution. It is not the case of the prosecution that A1 to 3 used the blunt part of the axe or the sickles while assaulting the deceased Kallappa. On the other hand, P.W.1 has positively stated in his evidence that A1 assaulted Kallappa on his head with the sharp edge of the axe. Even other-wise when the witnesses have stated in their, evidence that the assailant's party used weapons having sharp-cuttingedges, there is no warrant for supposing that what the witnesses meant there-by was that the blunt side of the weapons were used. If it is the prosecution case that such weapons were being used as blunt weapons and not as sharp-edged weapons, then it is for theprosecution to obtain a clarification or an explanation from the wit-nesses that such weapons were being used as blunt weapons in the course of assault on the victim (see HALLU v. STATE OF M.P. : 1974CriLJ1385 ). It is also not the case of the prosecution in the case on hand that any of the accused among A1 to A3 used either the axe or the sickles as blunt weapons. In that view of the matter, the evidence of P.W.12 does not support the version of the prosecution witnesses as to the weapon used by A1 to A3 in assaulting the deceased Kallappa. On the other hand, it conflicts with their version.
48. Thus it is obvious that the medical evidence adduced by the prosecution does not lend assurance to the ocular testimony as to the weapons used and the manner in which the injuries were caused on the deceased Kallappa and P.Ws.l and 2.
49. The next piece of material on which the prosecution relied upon is the recovery of the weapons from the house of A1 to A3. The weapons recovered from the house of A1 to A3 are the two sickles M.Os.l and 2 and the axe M.O.5. These weapons were seized from the house of A1 to A3 during the course of a search of their house on 25-12-1980 by P.W.18 who was the then A.S.I. Chikodi, in the presence of P.W.9 Vijay, one of the Mahazar witnesses during the absence of A1 to A3 in their house. During the course of the investigation M.O.5 was sent to the chemical examiner and as per the chemical examiner's report Ex-P.28 and the serologist report Ex.P.31, it is revealed that the axe M.O.5 was stained with human blood, the group of the blood could not be determined since the result of the test was inclusive. The report of the chemical examiner is wanting in particulars as to the number of stains, their location, extent etc. The sickles M.Os.l and 2 were not sent to the Chemical Examiner obviously because no blood stains were found on them at the time of their seizure. Articles like sickles M.Os.l and 2 and axe M.O.5 are the ones usually found in the house of the agriculturists. Thus there could be no particular significance or evidentiary value that could be attached to the recovery of M.Os. 1, 2 and 5 from the house of A1 to A3 even though P.Ws.1 and 3 claimed to have identified them as the weapons used by A1 to A3. Not much importance could be attached to the so-called identification by P. Ws. 1 and 3, especially in view of the fact that P. W. 2 does not say in his evidence that they were the weapons used by A1 to A3 and P. W. 4 was positive that A1 to A3 were armed with sticks only. So this piece of material does not take the prosecution case any further.
50. The learned trial judge appeared to have brushed aside the inconsistencies and improvements found in the evidence of the eye-witnesses as to the manner in which the incident took place, the weapons used for causing the injuries on the deceased Kallappa and P. Ws 1 and 2, the nature of the injuries and the improbabilities of those injuries being caused by the weapons given into the hands of the accused as revealed from the medical evidence in a very casual and perfunctory way and reached the conclusion that the evidence adduced by the prosecution both oral and documentary completely demolished the innocence of A1 to A3 on any hypothesis. On this aspect, this is what the learned trial Judge has observed in para 29 of his judgment.
' The inconsistencies centred round various in some portion of recitals of complaint and evidence of complainant, medical opinion, time of medicalexamination of victims, scene of offence, information of offence to the jurisdictional andNon jurisdictional police stations and reaching of F.I.R. to thejurisdictional police stations and reaching of F.I.R. to the Jurisdictional Magistrate, According to the defence, these constitute improbabilities affecting the veracity of the prosecution case. In my opinion, what is most important is not mere improbabilities but the existence of preponderance of improbabilities consistent and compatible with innocence of accused.On the facts and circumstances, ocular and documentary evidence, completely demolish the innocence of accused Nos. 1 to 3 on any hypothesis.'
The conclusion thus reached on the assessment of the evidence by the learned Sessions Judge appears to us wholly arbitrary, unreasonable and unwarranted.
51. One other serious infirmity in the prosecution case unnoticed and escaped proper consideration by the learned trial Judge is the non-explanation of the injuries sustained by A1 to A3, in the same incident, by the prosecution. It is in theevidence of P. W. 4 that A1 to A3 had sustained injuries and he advised them to take treatment. This was when he went to the scene of occurrence and separated the complainant's party and the accused 1 to 3. Hence it is obvious that A1 to A3 had also sustained injuries in the course of the same incident in respect of which they have been prosecuted.
52. As regards the details of the injuries suffered by A1 to A3, it is in the evidence of P.W. 13 that all the three accused came for treatment of their injuries at about 5-30 p. m. on 24-12-1980 with the history of assault. On examination he found four injuries, one incised wound, two contused lacerated wounds and one abrasion on the person of A1 ; 3 injuries, two contused lacerated wounds and one abrasion on the person of A2 ; and two injuries, one abrasion and one contusion on the person of A3. The incised wound he noticed on the person of A1 was at the terminal phalanx of the left thumb measuring 3' xl 1/4' bone-deep and the loss of the other end (from medical and lateral). He has recorded the details of the injuries in the woundcertificates Exs. P. 21 to P. 23.
53. P.Ws. 1 to 3 who are the main witnesses supporting the prosecution case, wanted to impress upon the court that the deceased and his party were unarmed and did not assault any of the accused. In other words, their version appears to be that the deceased and his party were innocent and the accused-party were the aggressors and all of them were armed with deadly weapons. They do not say a word about the injuries sustained by theaccused, much less how they came to suffer those injuries. P.Ws. 1 and 2 emphatically denied the suggestion thrown at them on behalf of A1 to A3 that they and their father deceased Kallappa closed one or two rows prepared by the accused for planting sugarcane nodes by harrowing and when objected, assaulted and caused injuries on them, although it was only P.W. 4 who came-forward and stated that A1 to A3 had sustained injuries obviously in the course of the same incident. The effect of non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of the altercation in a murder case is laid down by the Supreme Court in LAKSHMI SINGH v.. STATE OF BIHAR : 1976CriLJ1736 as follows :
' It seems to us 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. '
The decision proceeded to the state '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 version competes in probability with that of the prosecution one.'
54. In the instant case, when it is proved that all the three accused A1 to A3 received several injuries in the incident in respect of which they have been charge-sheeted, of which the first injury on A1 is sufficiently a serious injury, probabalise the defence version that that injury had been received by A1 while he was attempting to ward-off the blow at the hands of the deceased, who, according to P.W. 4, an independent and disinterested witness, was armed with a pickaxe with blade. Thus it would be difficult for the court to rely on the evidence of P.Ws. 1 to 3, more so when they have no explanation to offer as to how the accused came by those injuries. Further the omissions on the part of the prosecution to explain the injuries on the person of these accused has really assumed greater importance since P.Ws 1 and 2, who are the main witnesses in the case, are interested and inimical witnesses. Besides, the evidence of these witnesses and P.W. 3 which are themainstay of the prosecution are far from satisfactory for the several reasons pointed earlier.
55. We are quite aware that there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested and so probable, consistent and credit-worthy that it far out-weigh the effect of the omission on the part of the prosecution to explain the injuries. However we have no hesitation to hold that this is not such a case and the learned trial judge has committed a serious error in brushing aside this serious infirmity in the prosecution case on unconvincing premises and reasons and in searching out an explanation of his own to explain the injuries found on the person of the accused by observing that the very case put-forward by the defence and suggested to the prosecution witnesses by itself had explained the injuries found on the accused persons and thus it could not be contended on behalf of the defence that the prosecution failed to explain theinjuries on the accused.
56. On a careful analysis of the evidence of the eye-witnesses, in the light of the surrounding circumstances, in particular, the defence taken by the accused and the non-explanation of the injuries found on the accused by the prosecution, the irresistible conclusion one could reach will be that the prosecution has suppressed the genesis and the origin of the occurrence and the evidence of their witnesses is unreliable and untrustworthy of credence, liable to be rejected. Consequently it follows that there is no supporting material to sustain the conviction of A1 to A4 for offences under Section 324 and 304 Part II read with Section 34 I. P. C.
57. Now turning to the charge of criminal trespass punishable under Section 447 I. P. C., although the acquittal of A1 to A3 of the said charge by the trial court cannot be said to be erroneous, we do not agree with the ground on which they were acquitted by the learned Sessions Judge. This charge was levelled against A1 to A3 on the ground that they had trespassed into the portion of the land in 'Kareedi Hola' belonging to deceased Kallappa and committed the various offences alleged. Where exactly the incident took place, whether it was in the portion of the land belonging to Al, the evidence adduced by the prosecution is far from satisfactory.
58. P. W. 6 the witness to the spot mahazar Ex. P. 3 has stated in his evidence that he does not know whom the strip of land where the incident took place belong or its survey number. The spot mahazar Ex. P. 3 does not positively show that the occurrence took place in the portion of the land belonging to deceased Kallappa. P. W. 16 who conducted the earlier part of the investigation and who got recorded the spot mahazar Ex. P. 3 also does not speak that the occurrence in question took place in the portion of the land in the possession of the deceased, although he denied the suggestion that the incident took place in the strip of land belonging to the 1st accused. The evidence of P. W. 4 would go to show that the incident took place between the strips of land belonging to the deceased and A1 and that Kallappa had fallen in the strip of land belonging to A1 where there were rows prepared for planting sugarcane nodes. This is all the evidence adduced by the prosecution as to where the occurrence took place. Upon this evidence, it is difficult to hold that the occurrence took place in the strip of land belonging to the deceased Kallappa. Hence the charge under Section 447 I. P. C. has to fail and in that view the acquittal of these accused of that charge by the trial court should stand although not for the reasons stated by it.
Point No. (iv) :
59. The question whether the sentence awarded against A1 to to A3 is inadequate does not arise for consideration in view of of the conclusion reached by us under Point No, (iii) that the conviction of A1 to A3 for the offences under Section 324 and 304 Part II read with Section 34 I. P. C. itself unsustainable for want of satisfactory and cogent evidence.
60. Now coming to the investigation, as rightly contended for the accused, it seems to us that investigation in this case is not just and fair. P. W. 19 in the course of the investigation of this case, having come to know that A1 to A3 were admitted in Dattawad Government Hospital for taking treatment of the injuries sustained by them proceeded to Dattawad and arrested them in connection with this case. At the time of arrest, A1 gave a complaint about his version of the incident which P. W. 19 reduced into writing as per Ex. P. 29 but handed it over to the S. H. O. Sadalaga to register a case on the basis of the saidcomplaint and investigate. A1 to A3 both in the course of the trial as well as in their 313 Cr. P.C. statement, contended that when they, along with their women folk were engaged in planting sugarcane nodes in the rows prepared by them in their strip of land in 'Kareedi Hola' from the morning of 24-12-1980, deceasedKallappa and his two sons P. Ws 1 and 2 came to the land at about 4 p.m. and began to close the rows by harrowing and when they had closed about two rows, A 1 objected when deceasedKallappa assaulted him with an axe and the blow fell on the left thumb of A1 when A1 attempted to ward-off the blow, severing his thumb almostup to the skin of the other end. Thereupon A1 hit the deceased on his head with a stick and there ensued a fight between the two parties and in the course of the fight, deceased and his two sons assaulted and caused injuries to A1 to A3.
61. Then defence taken by the accused at the trial on the whole, is in conformity with the version of the incident narrated by A1 in his statement Ex. P. 29 except Manika, another son of the deceased had also come along with the deceased party. P. Ws 1 and 2 admit in their evidence that A1 and his sons had prepared portion of the strip of their land in 'Kareedi Hola' to plant sugarcane nodes and it is further in the evidence of P.Ws. 1 that on the date of occurrence, A1 to A3 with their woman folk were actually engaged in planting the sugarcane nodes from the morning and they were so engaged when the deceased and P.Ws. 1 and 2 had gone to their strip of the land in same hola in the evening at about 4 p.m. for harrowing. P. W. 19 did not conduct the investigation on the complaint of A1 in the course of the investigation of this case to verify the truth or otherwise of the version of the incident given by A1 with regard to the very same incident, about which he ultimately filed the charge-sheet against them and two others. He appeared to have entrusted the investigation of the complaint of A 1 into the hands of another police officer to conduct anindependent investigation to the exclusion of the investigation he conducted, of the case, on the basis of the complaint of P.W.1. In other words, what the police appeared to have done in the instant case was that two police officers have conducted independent investigation, each in respect of one of the two versions of the same incident completed the investigation and submitted their final report independent of each other. Thus it is obvious that the investigation in this case appeared to have been proceeded exclusively on the basis of the one-sided version of the incident given by the complainant's party, without verifying the truth or otherwise of the version of the same incident given by the accused at the earliest in their complaint Ex. P. 29. The police are given vast and extensive power of investigation under the Code of Criminal Procedure. Dealing with the investigation under the Code of Criminal Procedure, the Supreme Court in H. N. RISHBUD v.. STATE OF DELHI : 1955CriLJ526 observed as follows :
' Thus, under the Code, investigation consists generally of the following steps; (1) proceeding to the spot, (2) ascertainment of the facts and circumstances of the case, (3) discovery and arrest of the suspected offender, (4) collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) formation of the opinion as to whether, on the material collected, there is a case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by the filing of a charge-sheet under section 173......
It is also clear that the final step in the investigation viz. , the formation of the opinion as to whether there is a case to place the accused on trial as to be that of the officer in charge of the police station. There is no provision permitting delegation thereof but only a provision entitling superior officers to supervise or participate under Section 551.'
Thus one of the steps to be taken in the course of the investigation is the examination of the various persons including the accused and the reduction of their statements into writing, if the officer thinks fit and in the course of such an examination if the accused comes forward with his own version of the incident, the investigating officer is duty-bound to examine the truth or other-wise of the case of the accused for the purpose of formation of the opinion as to whether there is a case to place the accused on trial by filing a charge sheet. In the instant case, the investigating officer has not directed the investigation on this aspect but on the other hand, he appeared to have proceeded to prosecute the accused on the one-sided version furnished by the prosecution witnesses.
62. Before parting with this case, we feel it necessary to clarify the position as to how the police should proceed to investigate rioting cases resulting in complaints and counter-complaints.
63. Section 2(h) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code') defines 'investigation'. The term 'investigation' as defined includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate on that behalf. Section 4 directs that investigation of the offences under the Indian Penal Code should be as provided in the Code. Chapter XII of the Code deals with information to the police and their powers to investigate. Section 173 provides for a report by the police officer to the Magistrate on the completion of the investigation. Under Section 173(2) the investigating officer should state whether any offence appears to have been committed and if so, by whom. The Code thus contemplates that the investigating officer should himself assess the evidence collected by him and form his own opinion regarding the complicity of a particular person in respect of the offences alleged.
64. A reading of the provisions contained in Chapter XII which deals with information to the police and their powers to investigate, would go to show that the investigation consists, generally, on the receipt of the information in cognizable offences, of various steps such as the investigating officer proceeding to the spot, ascertainment of the facts and circumstances of the case, discovery and arrest of the suspected offender, collection of evidence relating to the commission of the offence which may include the examination of various persons including the accused and the reduction of their statements into writing if the investigating officer thinks fit, search of the places or seizure of things considered necessary for the investigation and to be produced at the trial and formation of the opinion as to whether on the material collected there is case to place the accused before a Magistrate for trial and if so, taking the necessary steps for the same by filing a charge sheet under Section 173. The procedure laid down under Chapter XII of the Code, equally holds good in investigating the rioting cases involving complaint and counter-complaints and it is incumbent upon the officer who is incharge of the investigation of such a case, to investigate the truth or otherwise of the complaint and the counter-complaint following the aforesaid procedure, including the collection of the evidence relating to the commission of the offence referred to in the complaint and the counter-complaint and ultimately assess the evidence collected and form his opinion regarding the complicity of the person in respect of the offence alleged and place a charge-sheet as contemplated under Section 173 of the Code if, in his opinion, there is a case to place the accused before a Magistrate for trial. If the investigating officer, on the fair assessment of the material collected by him, forms an opinion that the persons alleged to have committed the offence, either in the complaint which is generally called the main case or the counter-complaint, as the case may be, have committed the offence alleged against them, he shall proceed to make a report under Section 173 Cr. P.C. against such persons and refer the other case. There may be cases, of course seldom found, which would justify placing the charge-sheets in both. Rioting cases in country places and especially in faction ridden villages are often very difficult for the police to investigate. As to how the police should conduct in such cases and assess the material collected and form an opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial, has come up before the law courts for consideration in a number of cases.
65. In the case of GUNDI GIRIYAPPA AND OTHERS (18 Mysore Law Journal, 229), the investigation conducted by the police in the case and the counter-case and the propriety of placing charge-sheets in both the cases came up for consideration. As a result of disputes about a coconut garden, there was serious rioting in the course of which two men were brutally killed and 18 persons were injured. The police who investigated the cases preferred a charge-sheet against all the accused in the case that came up in appeal for consideration before the erstwhile High Court of Mysore for various offences of rioting, murder and hurt of varying degrees. At the same time, the police preferred another charge-sheet against the majority of their own prosecution witnesses in the case in regard to the same occurrence alleging that far from going unarmed and peacefully to remonstrate with the accused, they were members of an unlawful assembly armed with deadly weapons and committed offence of rioting and hurt in order to drive accused-1 and his party out of the garden. Dealing with the propriety of filing charge sheets on the facts of the case, the learned Chief Justice Reilly who spoke for the Bench held that the practice of the police filing such 'counter-cases' which are contradictory, in the sense that if one of them is true, the other must necessarily be false, must be strongly condemned. The police could not ask the court to accept the evidence of the prosecution witnesses whom in the other case they themselves alleged to be offenders and were therefore, in effect, lying witnesses in the case. Dealing with the conduct of the prosecution by the same prosecutor in such counter-cases, it was observed that the prosecution was trying to ride two horses at once going in opposite direction which can end in nothing but disaster not only to the cases concerned but to the reputation of those who attempt it and commenting upon the act of the public prosecutor it was further observed that when he put those cases before the learned Judge one after another, he was acting like a mountebank, standing first upon his feet and then upon his head, one day representing that the prosecution witnesses in the case were witnesses of truth and the next day representing in the other case that they were themselves offenders and liars in the very same matter and about the very same occurrence and about the conduct of the police in placing charge-sheets in such cases, it was observed as follows :
' And how did the police come to put in those two contradictory charges, one of which they must have known was inessence false? It has been suggested by the learned Government Advocate that the police officers may have had some idea that they ought to give each side a chance and they ought to be impartial in the matter. That means nothing except that they ought to be impartial between truth and falsehood. If that is the impartiality they exercise, they will destroy their own cases and incidentally they will destroy their own reputation. The powers of investigation given to the police by the Code of Criminal Procedure are extensive and responsible. They are given for the purpose of ascertaining the truth, not far dressing up cases with any evidence true or false which to be available.'
66. Although the practice of filing contradictory charge-sheets in counter-cases, where one of them is true, the other must necessarily be false and conducting of such cases by the same prosecutor, was subjected to severe criticism at the hands of the learned Chief Justice, filing of charge-sheets in both the case and the counter-case, has not been altogether ruled out but on the other hand, filing of charge-sheets in both the cases was approved in certain cases where the investigation revealed that each party has committed the offence by over-stepping the bounds of law, when it is the duty of the police to charge each party for the offences committed by that party. In such situation there would not be inconsistency in those two charge-sheets and one would not necessarily be false if the other was true.
67. In RAMAKRISHNAIAH v.. STATE : AIR1954Mad442 , the same question came up for consideration. In that case, which was also a rioting case, the Police preferred to file charge-sheets in both the cases. The reason for filing charge-sheets in both the cases was revealed by the Circle Inspector, the investigating officer in the case, who was examined as P. W. 23, as under :
' I thought that the accused were the aggressors and I was consulting my superiors whether the prosecution party should be prosecuted. Finally it was settled that the court should decide it. Hence the delay in filing the charge-sheet in the counter-case.'
Deprecating the conduct of the police in placing charge-sheets in both the cases for the reasons mentioned by the Circle Inspector, Ramaswamy, J. observed that the police in the case obviously stampeded by the moves on the part of both sides and apparently frightened that they would be falsely accused of partisanship if it charged one - side only and have charged both the cases with the singular result that in regard to the same rioting at the same place and at the same time, they have put-forward two diametrically opposed versions as truthful versions. The following observation of the learned Chief Justice Reilly in Giriyappa's case was quoted with approval :
' It is improper for the police to prosecute at the same time two counter-cases in regard to the same occurrence one of which must be false and that it was improper also and disrespectful to the court for the Public Prosecutor to conduct both cases in the Sessions Court knowing that one must be false. Such counter-cases cannot both be prosecuted honestly either by the police or the Public Prosecutor. The powers of investigation given to the police by the Criminal Procedure Code are given for the purpose of ascertaining the truth, not for dressing up cases with any evidence true or false, which may be available.'
In AUGUSTINE v. STATE (FB) 1982 Cr. L. J. 1557) (Kerala High Court), the question regarding the investigation and placing charge-sheets in counter-cases came up forconsideration. The Full Bench of the Kerala High Court on a review of the relevant authorities on the subject observed :
' The above resume of authorities makes it clear that if the police after investigation of a case registered on the basis of the statement given to him by any individual finds that the facts stated therein are false, it is perfectly within his competence to refrain from filing a charge-sheet. This is so, irrespective of the fact whether such an opinion is formed by the police in what is generally termed the main case or in the counter-case. Neither the court nor theindividual at whose instance the investigation was taken up can challenge that power. As already stated, if the individual concerned feels aggrieved, it is open to him to prefer a private complaint to see that the same is tried as a counter to the main case.
The matter can be viewed from another perspective also. What S. 173 (2) of the Code contemplates is a report regarding an offence. When there are rival or conflicting versions of the occurrence and injuries have been caused on both sides, the investigating officer can form his own opinion as to which of the parties has committed an offence. Under S. 96 of the Penal Code nothing is an offence which is done in exercise of the right of private defence. It is not incumbent on the officer to file a charge-sheet against a person who caused an injury in exercise of the right of private defence. He may at the same time present a charge-sheet against the rival person. In such cases, the remedy of the aggrieved person is to prefer a private complaint and vindicate his position. If such a private complaint is filed, it will form a counter-case to the charge-sheet filed by thepolice and may be tried as such.
XXXX XXXXIn the light of the discussion we hold that if in respect of a transaction relating to an offence a case and a counter-case happen to be registered by the police, based on conflicting versions gives by rival persons, it is not incumbent on the part of the Investigating Officer to file separate charge-sheets in both the cases. The Investigating Officer is expected to file a charge-sheet only in the case where, it appears to him as a result of investigation, that an offence has been committed.'
69. In GOOTI SANNAIAH v. STATE OF KARNATAKA (1976 (1) Kar. L.J.10), a Division Bench of this Court had to deal with a rioting case which gave rise to a case and counter-case in which the police have placed charge-sheets in both the cases, similar to the one came up for consideration in Gundi Giriyappa's case (18 Vys. L.J. 229) and received a similar treatment, as in the case of Gundi Giriyappa's case for filing of two contradictory charge-sheets and also of prosecuting the case by the same police through the same prosecuting agency one after another, without much discussion on the subject.
70. A careful reading of all these rulings would reveal that it is the duty of the police while investigating a case and a counter-case to investigate both the cases as provided under Chapter XII of the Code and after completing the investigation assess the material collected to find out whether on the material collected, there is a case to place the accused before a Magistrate for trial and if so, take the necessary steps for the same, by filing a charge-sheet under Section 173 Cr. P.C. There may be a case where it may happen that each party has committed the offence and that each party has over-stepped the bounds of law and if the investigating officer on the assessment of the evidence reach such a conclusion, it is perfectly open to him to place charge-sheet in both the cases as there would be nothing incompatible in them. But on the other hand, if the investigation reveals that if one case is true, the other must necessarily be false, then the police should file charge-sheet in the case in which the investigation disclosed a case to place the accused before the Magistrate for trial and refer the other case to leave the aggrieved party to pursue the matter by him. Judicial verdict is consistent in deprecating the conduct of the police in placing charge sheets in both the case and the counter-case, which are contradictory, in the sense, that if one is true, the other must necessarily be false, solely with a view to shirk their responsibility, being afraid of the possibility or probability of imputing partiality and for evading the same, filing charge-sheets in both the cases to appease both the parties leaving the matter to be decided by the court. In none of these rulings, investigation of the case and the counter-case by different officers is either indicated or suggested
71. In the instant case, undoubtedly there was complaint by the deceased Kallappa's party and counter-complaint by the accused-party in respect of the same incident out of which two crimes had been registered and investigated by two different officers and after completing the investigation both the cases resulted in placing ofcharge-sheets against the accused- party in this case and the deceased party in the counter-case. It is in the evidence of P.W. 19 that he recorded the oral complaint of A1 Balappa as per Ex. P. 29 in the course of the investigation of the crime registered on the complaint of P. W. 1 Kumar and handed it over to the S. H. O. Sadalaga to register a case and investigate. He also sent the injured accused to Sadalaga Medical Officer for further treatment. He has not investigated the truth or otherwise of the accused version of the incident as put-forth by A1 in his complaint, nor his evidence would show that he conducted the investigation in this case and verified the material collected, in the light of the accused version and in particular about the injuries caused to them in the same incident. He has merely stated that he received the injury certificate of the accused from the Medical Officer, Dattawad and after completing the investigation of the crime registered on the complaint of P.W. 1, he placed the charge-sheet against all the five accused in this case on 23-3-1981 citing deceased Kallappa's party as the prosecution witnesses.
72. As regards the counter case, obviously arising out of the complaint Ex. P. 29 of Al, there is a mere reference by the trial court in the course of the judgment while dealing with the injuries sustained by A1 to A3 that the defence itself had explained the injuries sustained by the accused as it had to, so explain because of the peculiar defence taken in the counter-case, obviously by the prosecution witnesses in this case who were the accused in the counter-case. Thus it would appear that the case and the counter case arising out of the same incident in the instant case were investigated by two officers, independent of each other, each of whom after completing the investigation placed the charge-sheet in the respective cases, obviously with the dressed-up investigation, without verifying the truth or other-wise of the two versions of the same incident given by the deceased - party as well as the accused party and collected material in each of the cases in such a way to make out a case against the accused in each case so as to place both of them before the court for trial as if the case and the counter-case are two independent crimes although arising out of the same incident.
73. The reason for conducting investigation in this fashion though not found in the Code of Criminal procedure, was founded upon a Law Section Circular No. 3989 dated 7-5-1977 issued from the office of the Inspector General of Police, Karnataka State. The subject matter of the law circular reads :
' Rioting case - case and counter case - investigation and prosecutor separate I.Os. and prosecutors-'
In the introductory portion of the circular instruction, having stated that the propriety of the same investigating officer investigating both the case and the counter-case and filing charge-sheets against both the groups and the same prosecutor conducting both the cases has been considered by the High Court of Karnataka in Gooti Sanniah's case (1976 (1) Kar. L.J. 10) and having excerpted a portion of the judgment from that decision and having examined the question whether there should be separate investigating officer and separate prosecutor for the case and the counter-case, the Inspector General of Police issuedinstructions to the investigating officers as to the procedure to be followed in investigating the case and counter-case and the steps to be taken for deputing separate prosecutor to conduct the case and the counter-case where charge-sheets have been laid in both the cases which are as under :
4) Whenever a case and a counter-case of rioting is registered in a Police-Station, the Investigating Officer/S.H.O. should immediately send a report to the Circle Inspector, A copy of this report should also be sent to the S.D.P.O.
5) On receipt of the report from the S.H.O. the Circle Inspector should take up investigation of the counter-case and complete the investigation and file the final report.
6) If the Circle Inspector is not available either due to his absence on leave or for any other reason, the S.D.P.O, should immediately take up the investigation of the counter-case, continue the investigation and file the final report.
7) The S.D.P.O. Should send a special report regarding the registration and investigation of the case and counter-case to the Superintendent of Police of the District.
8) When charge-sheets have been filed in both the case and counter case, the fact should be reported by the C.I. SDPO to the Superintendent of Police of the District, requesting for making arrangements for deputing a separate prosecutor to conduct the counter-case.
9) The Superintendent of Police in turn should take up the matter with the Dy. Director of prosecution of the Range and ensure that a separate prosecutor is deputed for conducting the counter-case.
10) These instructions should be strictly adhered to.'
74. The question is whether this circular which was obviously based on the ruling of this court in Gooti Sannaiah's case (1976 (1) Kar. L. J. 10) is based on the correct understanding of the legal position enunciated in the said decision. We have already referred to the legal position enunciated in the said decision and we are unable to find any support for the instructions issued to the police for conducting investigation by different officers in the case and the counter-case arising out of the same incident and placing final report after completing the investigation independent of each other by following the procedure contained in the circular instructions. In Gooti Sannaiah's case (1976 (1) Kar. L. J. 10), all that was emphasized by a Bench of this Court was the undesirability of placing charge-sheets in both the case and the counter-case by the same police of which, if one is true, the other is essentially false and prosecuting such contradictory cases one after another by the same prosecutor. This legal position as we found earlier, was enunciated as early as by the erstwhile High Court of Mysore in Gundi Giriyappa's case (18 Mys. L. J. 229). The same view was taken by the Madras High Court in Ramakrishnaiah's case : AIR1954Mad442 . The ratio of the Full Bench decision of the Kerala High Court in Augustine's case (1982 Cr. L. J, 1557) also falls in line with the ratio of the above decisions. Neither we find any support for the proposition that separate investigating officers should investigate the case and the counter-case arising out of the same incident in any of the decided case, much less in the decision of this Court in Gooti Sannaiah's case (1976 (1) Kar. L. J. 10), nor under any of the provisions of the Code. There cannot be any two opinions that the case and the counter case arising out of the same incident though registered in separate crime numbers, are not two independent cases but two versions of the same incident. For the purpose of investigation, both the complaint and the counter-complaint are registered separately but the truth or otherwise of the complaint and the counter-complaint shall have to be verified by the same investigating officer, investigating both the crimes impartially and diligently and after completing the investigation, assess the material collected in both the crimes, form an opinion as to which of the persons in the complaint or the counter-complaint, as the case may be, have committed the offence and place the charge-sheet against such persons and refer the case in which he found no offence is made out, so that the concerned party may prosecute his complaint in a court of law. However, we may emphasize that in appropriate cases, though such cases seldom occur, the investigating officer may file charge-sheets against both the parties as illustrated in Gundi Giriyappa's case (18 Mys. L.J. 229) to which a reference has been made earlier.
75. It is unfortunate that neither the Directorate of prosecution which is in-charge of the conduct of the prosecution in the subordinate courts nor the State Public Prosecutor, who is representing the State in Criminal Cases at the High Court level, has so far perceived in these long seven years and taken any step to set right the wholly wrong and erroneous mode of conducting investigation in case and counter-case arising out of the same incident by different investigating officers, independent of each other and filing reports under Section 173 of the Code based upon the Law Section Circular No. 3989 dated 7-5-1977 referred supra for which we do not find any sanction or approval by any of the provisions of the code. We feel wonder how many rioting cases involving case and counter-case ended in miscarriage of justice due to this mode of investigation by the police. We look askance at the slackness on the part of the aforesaid agencies and also the wisdom of the authority responsible for the Law Circular which introduced the novel investigation in this State.
76. We have dealt this matter at considerable length because of its importance. However, in the course of the arguments, the learned State Public prosecutor submitted that the procedure of investigation of the case and the counter case as provided in the Law Section Circular No. 3989 dated 7-2-1977 was given up by issuing Law Circular No. 4836 dated 24-9-1982 and Law Circular No. 4839 dated 12-11-1982. If it is so, we must express our happiness about it, if not the investigating agency shall follow the guidelines given by us in this decision.
77. In the result, for the reasons stated in the body of this judgment, both the Criminal Appeals Nos. 281 and 282 of 1982 are dismissed. The order of conviction and sentence passed against A1 to A3 under Sections 324 and 304 Part II read with Section 34I.P.C. are hereby set aside and they acquitted of the said offences.