State By Tumkur Rural Police - Appellant @HASH Rajanna and Others

Mohan M. Shantanagoudar, J. The judgment and order of acquittal dated 12-3-2012 passed by the Fast Track Court-III, Tumkur, in SC No. 42 of 2011 is appealed against by the State. By the impugned judgment, the Trial Court has acquitted the accused of the offences punishable under Sections 143, 147, 148, 341, 504, 323, 324, 307, 114 and 302 read with Section 149 of Indian Penal Code, 1860.

Case of the prosecution in brief is that P.W. 1-Siddaraju had worked as Carpenter with accused 1 about two years prior to the incident in question; there were some disputes between them with regard to payment of arrears of wages; it seems, there was also some scuffle between them and in that regard, accused 1 had filed a complaint against P.W. 1 and the same came to be registered as non-cognisable case on 22-5-2009 as per Ex. P. 13; however, the said case ended in compromise between P.W. 1 and accused 1; accused 1 had threatened P.W. 1 that he should not come to Cholenahalli Village and in case if he comes back to the said village, he would be killed by accused 1; being feared, P.W. 1 left Cholenahalli Village and started residing in Nelamangala Taluk along with his parents.

It is relevant to note that earlier to such threat, P.W. 1 was residing in Cholenahalli; the deceased is the grandmother of P.W. 1 and mother of P.W. 4; P.W. 1 (daughter''s son of the deceased Thimmakka) was brought up in the house of deceased Thimmakka at Cholenahalli Village; P.W. 3 is the wife of P.W. 4; P.W. 4 had constructed a new house at 1 lonnudike Hand Post; the House Warming Ceremony was fixed on 4-7-2010; P.Ws. 3 and 4 invited P.W. 1 for the house warming ceremony and also requested him to assist in performing the said function and accordingly PW. 1 went to Honnudike Hand Post on 2-7-2010; on that day at about 7.30 p.m., P.Ws. 1 to 3 had gone to Cholenahalli to invite relatives and friends of P.W. 4; after inviting all the friends and relatives, they went to the house of deceased Thimmakka; at about 8.30 p.m., they left the house of Thimmakka and proceeded towards Honnudike Hand Post; house of accused 1 is situated opposite to the house of Thimmakka; accused 1 having come to know that P.W. 1 has come once again to Cholenahalli told his family members that he should be killed; family members of accused 1 instigated accused 1 to do away with the life of P.W. 1 and accordingly, all the accused with a common object of committing murder of P.W. 1, came to the spot armed with clubs; all the accused saw P.W. 1 standing in front of house of accused 1; immediately, accused 1 to 3 assaulted P.W. 1 with clubs; thereafter they assaulted P.Ws. 2 and 3 also who were on the spot; the deceased Thimmakka, who was aged about 60 years, went to rescue his grandson (P.W. 1) shouting and requesting the accused not to assault P.Ws. 1 to 3; however, accused 1 being enraged assaulted Thimmakka with club on her chest and stomach whereas accused 2 assaulted with club on her left leg, consequent upon which, she sustained fracture of left leg; in the very incident, P.Ws. 1 and 2 also sustained certain simple injuries; all the injured were shifted to District Government Hospital, Tumkur; P.Ws. 1 and 2 were treated by the doctor-P.W. 6, whereas Thimmakka succumbed to the injuries after about four hours; she breathed her last at 00.20 hours on 3-7-2010; first information came to be lodged in the hospital by P.W. 1 before P.W. 14-PSI, Tumkur Rural Police Station as per Ex. P. 1 which came to be recorded from 1.30 a.m. to 2.30 a.m. based on which Crime No. 228 of 2010 came to be registered. P.W. 13-the Inspector of Police completed the investigation and laid the charge-sheet.

In order to prove its case, the prosecution in all has examined 14 witnesses and got marked 19 Exhibits and 4 Material Objects. On behalf of the defence no evidence is let in. On evaluation of the material on record, as aforementioned, the Trial Court acquitted all the accused of the offences with which they were charged.

Sri Vijay Kumar Majage, learned Additional State Public Prosecutor taking us through the material on record, contends that the Trial Court is not justified in acquitting the accused, that too by disbelieving the versions of all the eve-witnesses whose evidence is consistent and cogent; merely because P.Ws. 1 to 3 are related inter se, they cannot be treated as interested and partisan witnesses; the incident has taken place at about 8.30 p.m. on 2-7-2010 in the centre of village; that the accused were known to P.Ws. 1 to 3 as well as P.Ws. 9 and 10 and therefore the Trial Court is not justified in concluding that the eye-witnesses could not have seen the faces of the accused; the observations of the Trial Court are contrary to the facts brought on record; though the aspect of motive is not proved by the prosecution, the evidence of the eye-witnesses cannot be ignored; it is by now well-settled that when the case rests on ocular testimony, the aspect of motive loses its importance or it goes to the back seat; merely because there are minor lapses on the part of the prosecution, the evidence of the eye-witnesses cannot be ignored, more particularly when they withstood in their cross-examination. According to him, as accused 1 had come to the spot to do away with the life of P.W. 1, based on the principle of transfer of malice, the accused should be held responsible for committing the murder of the deceased Thimmakka. Lastly, he submits that the reasons assigned and the conclusions arrived at by the Trial Court are improper and incorrect.

Sri A.H. Bhagwan, learned Counsel appearing on behalf of the accused however argued in support of the judgment of the Court below. He submits that the circumstances of motive and recovery of weapons used for commission of offence are rightly disbelieved by the Trial Court, inasmuch as the evidence on record does not prove the said circumstances beyond reasonable doubt; P.Ws. 1, 2, 3, 9 and 10 are partisan and interested witnesses; though 20 to 25 persons have gathered on the spot, no independent witness is examined by the prosecution to support its case; no explanation is forthcoming by the prosecution as to why independent witnesses are not examined; the evidence of P.Ws. 1, 2, 3, 9 and 10 are unreliable, inasmuch as all of them have exaggerated the case of the prosecution to the effect that the accused have repeatedly assaulted P.Ws. 1 to 3, who have suffered serious injuries including fractures; but the medical evidence on record reveals that P.Ws. 1 and 2 have sustained simple injuries. He draws the attention of the Court that there is delay in lodging the first information as well as there is delay in sending the FIR to the jurisdictional Magistrate and such delay is not explained by the prosecution. According to him, the delay in recording the statements of eye-witnesses is fatal to the case of the prosecution since such delay is also not explained by the prosecution. In the alternative, he submits that at the most it can be said that the prosecution has made out a case as against accused 1 for the offence punishable under Section 326 of IPC. As accused 1 is already in judicial custody for a period of one year eight months, according to him, that would be the sufficient punishment to be imposed on him. On these among other grounds, he prays for dismissal of the appeal.

Before proceeding further, it would be relevant to narrate the evidence in brief of all the witnesses examined before the Court.

P.Ws. 1, 2 and 3 are the eye-witnesses to the incident in question. Among them, P.W. 1 has lodged the complaint as per Ex. P. 1. P.Ws. 1 and 2 are the injured witnesses. P.Ws. 1 to 3 have also deposed about the motive for commission of the offence.

P.W. 4 is the post occurrence witness. He has deposed about the motive for commission of the offence. On the date of the incident, he got the ambulance and thereafter shifted the injured to the hospital. He is a witness for scene of offence mahazar-Ex. P. 2.

P.W. 5 is a witness for recovery mahazar-Ex. P. 3 under which the clubs -M.Os. 1 to 3 were recovered at the instance of accused 1 to 3 jointly.

P.W. 6 is the doctor. He treated P.W. 2 and issued the wound certificate as per Ex. P. 4. He also treated P.W. 1 and issued the wound certificate as per Ex. P. 5.

P.W. 7 is another doctor. He conducted autopsy over the dead body. Post-mortem report is at Ex. P. 6. He has given his opinion as per Ex. P. 7 after examining the weapons. Further opinion is found at Ex. P. 11.

P.W. 8 is the Junior Engineer. He drew the sketch of scene of offence as per Ex. P. 12.

P.Ws. 9 and 10 are two other eye-witnesses to the incident in question.

P.W. 11 is the Police Constable. P.W. 12 is the Head Constable. Both of them have participated during the course of investigation at different levels.

P.W. 13 is the Investigating Officer. He completed the investigation and laid the charge-sheet.

P.W. 14 is the Sub-Inspector of Police. He recorded the statement of P.W. 1 and based on the same, crime came to be registered. He sent the FIR as per Ex. P. 18 to the jurisdictional Magistrate. He conducted part of the investigation.

From the aforementioned facts, it is clear that the prosecution relied upon following:

(a) Motive for commission of the offence;

(b) Recovery of weapons-M.Os. 1 to 3 at the instance of accused 1 to 3.

(c) The ocular testimony of P.Ws. 1, 2,3, 9 and 10.

As mentioned supra, the case of the prosecution is that there was dispute with regard to payment of wages to P.W. 1 by accused 1. P.W. 1 was working as Carpenter under accused 1 and in that regard dispute arose and ultimately accused 1 had approached the Police by lodging the complaint against P.W. 1, which came to be registered as non-cognisable case. The said matter was compromised between P.W. 1 and accused 1 two years prior to the incident in question. These aspects are sought to be made by the prosecution as the motive for commission of the offence.

P.W. 3, the relative of P.Ws. 1 and 2 has admitted before the Trial Court in her cross-examination that the aforementioned dispute between P.W. 1 and accused 1 ended in compromise. So also P.W. 4, the son of the deceased also admitted that the dispute between accused 1 and P.W. 1 was compromised two years prior to the incident in question. P.W. 12-the Head Constable has also deposed that the said matter which was registered as non-cognisable case was compromised between P.W. 1 and accused 1 on 22-5-2009. Through him, the non-cognisable case was registered and the same is marked as Ex. P. 13. The relevant entry in the said Register is at Ex. P. 13(a). Thus it is clearly admitted by the prosecution witnesses including the Police Officials that the dispute between accused 1 and P.W. 1, which resulted in non-cognisable case ended in compromise as far back as on 22-5-2009. The incident in question has occurred on 2-7-2010 i.e., one year two months subsequent thereto. There cannot be any dispute that the criminal case lodged by accused 1 against P.W. 1 ended in compromise. But that does not mean that the differences between or conflict within the minds of parties ended. It is the specific case of the prosecution that accused 1 had threatened P.W. 1 with dire consequences by warning P.W. 1 that he should not enter Cholenahalli Village and hence P.W. 1 had not entered the said village for about one year because of fear of accused 1. However on the date of the incident, just one hour prior to the incident, P.W. 1 came along with P.Ws. 2 and 3 on a TVS Moped belonging to P.W. 4 to Cholenahalli Village for distribution of House Warming Ceremony Cards. After getting the news of P.W. 1 entering the said village, Accused 1 planned with other accused to do away with the life of P.W. 1. This aspect of the matter is deposed by P.Ws. 1, 2, 3 and other eye-witnesses. Therefore it cannot be said that the motive in this case is not proved by the prosecution. The assessment of evidence by the Trial Court in that regard cannot be accepted at any stretch of imagination. The Trial Court has laid more emphasis on the compromise between the parties with regard to the non-cognisable case. However it has not discussed the entire material in proper perspective relating to the circumstance of motive. P.Ws. 1,2,3 and 4 have consistently and cogently deposed that accused 1 had threatened P.W. 1 with dire consequences by warning him not to enter Cholenahally Village and being threatened, P.W. 1 had not entered the said village. These witnesses have withstood their cross-examination. In view of the same, in our considered opinion the Trial Court is not justified in concluding that the circumstance of motive is not proved by the prosecution.

Insofar as the recovery is concerned, the defence Advocate is justified in arguing that the said circumstance is not proved by the prosecution. It is the specific case of the prosecution that joint recovery is made from accused 1,2 and 3 based on their voluntary statements in presence of mahazar witness-P.W. 5. However P.W. 4 has clearly admitted in the examination-in-chief itself that he showed, three clubs and broken bangle pieces of the deceased (mother of P.W. 4) which were falling on the spot to, the Police and the Police seized such three clubs and the broken bangle pieces of the deceased. It is the specific case of the prosecution that P.W. 4 lead the Police to the scene of offence on the early hours of 3-7-2010 and showed the bangle pieces of the deceased and three clubs which were seized by the Police. Since bangle pieces and clubs were seized from the scene of offence on 3-7-2010 itself as per the version of P.W. 4, the story created by the prosecution with regard to the accused making voluntary statement, based on which the recovery of clubs are made subsequently falls to the ground and consequently the same cannot be believed at all.

Added to it, even the evidence of P.W. 5 (mahazar witness for recovery panchanama-Ex. P. 5) nowhere discloses that tire accused lead the Police and the witnesses to the place wherein the clubs were hidden. On the other hand the evidence of P.W. 5 merely states that Polio seized the clubs from a spot. Such seizure cannot be equated to discovery or recovery. Therefore the circumstance of recovery relied upon by the prosecution fails and we concur with the reasons assigned and the conclusion arrived at by the Trial Court with regard to the circumstance of recovery.

The most important aspect of the matter in this case is the ocular testimony of P.Ws. 1, 2, 3, 9 and 10. We have meticulously gone through the evidence of each of the eye-witnesses.

The first information came to be lodged by P.W. 1, who is the injured eye-witness. The incident had occurred at about 8.30 p.m. on 2-7-2010. Immediately after the incident, the injured including the deceased were taken to District Government Hospital, Tumkur and thereafter the Police got the information and consequently visited the hospital and recorded the statement of P.W. 1 as per Ex. P. 1 in between 1.30 a.m. and 2.30 a.m. on 3-7-2010. Sri A.H. Bhagwan, learned Advocate for tire accused in this context argues that there is delay of five hours in lodging the complaint and hence the contents of Ex. P. 1 must have been generated to prove the case of the prosecution. We are unable to accept such submission. As mentioned supra, the first information came to be recorded by the Police in the hospital at 1.30 a.m. i.e., within five hours of the incident in question. P.Ws. 1 and 2 were injured. So also the deceased was injured. All the three were shifted in ambulance to the hospital. The incident had taken place in the remote village. It is but natural that the people in the village must have taken sometime to get ambulance. It is also not in dispute that all the three injured were village rustics. As can be seen from the evidence of P.W. 4, she called for 108 ambulance (the ambulance maintained by the Government); thereafter the ambulance came to the village and in the said ambulance all the three injured were shifted to Tumkur hospital. The deceased died at about 00.20 hours on 3-7-2010 i.e., within about four hours of the incident in question, which means the deceased was badly injured. The primary duty of family members of the victim would naturally be to save the lives of the victim than to approach the Police for lodging the complaint. Looking to the course of events that occurred, we are of the clear opinion that though P.W. 4 is a villager working as a coolie, she got the ambulance within short time and thereafter shifted the victim in order to save her life. The distance between Tumkur Rural Police Station and the place of incident is about 15 Kilometers. The District Government Hospital, Tumkur may be about 15 Kilometers away from the village. The doctors must have taken sometime to admit the injured to the hospital during the mid-night. Unfortunately, the victim died at 00.20 hours on 3-7-2010. Thereafter the Police came to the hospital and the statement of P.W. 1 was recorded, based on which crime came to be registered. Hence, virtually we do not find any delay on the part of the complainant to lodge the complaint. These circumstances themselves properly explain the cause for lodging the complaint after about 3/1/2 hours of the incident.

The complaint-Ex. P. 1 discloses in detail about the motive for commission of the offence as well as about the overt acts of each of the accused. It is specified in the complaint that P.W. 1 was threatened with dire consequences by accused 1 and he was warned by accused 1 that he should not enter Cholenahalli Village and if he enters, he would be done to death. Since P.W. 1 had feared, he did not enter Cholenahalli Village thereafter. However three months prior to the incident, P.W. 1 had entered Cholenahalli Village and at that point of time, accused 1 and his family members had quarreled with P.W. 1 and his family members and thereafter P.W. 1 had not attempted to come inside Cholenahalli Village. However on the date of the incident, he had come to Cholenahalli Village along with P.Ws. 2 and 3 for distribution of invitation cards of house warming ceremony of P.W. 4. It is further stated in the complaint that when he (P.W. 1) came in front of the house of accused 1, all the accused came in a group armed with clubs and abused him in a filthy language; the accused pronounced that he (P.W. 1) should be done to death because he did not obey their words; So saying accused 1, 2 and 3 started assaulting P.W. 1 with clubs, whereas accused 4,5 and 6 assaulted on P.W''. 1 with hands and kicked him with legs; Meanwhile P.W. 2 was also assaulted by the accused; When the deceased Thimmakka intervened, she was assaulted by accused 1 and 2 with clubs; Among them, accused 1 assaulted on the abdomen and chest of the deceased, whereas accused 2 assaulted on the left leg of the deceased; Immediately the deceased collapsed; Thereafter the victim as well as other two injured were shifted to the hospital. These averments in the complaint are fully supported by the evidence of P.Ws. 1, 2, 3, 9 and 10. Of course there are certain variations in the evidence of these witnesses. Even in the complaint there are no overt acts attributed to the accused 3,4, 5 and 6 insofar as it relates to the assault on the deceased is concerned.

In the matter on hand, though P.Ws. 1 and 2 have deposed that they were assaulted with clubs repeatedly by accused 1, 2 and 3, the medical evidence on record does not support their case that they were repeatedly assaulted by the accused. The doctor (P.W. 6) who treated P.Ws. 1 and 2 (injured) has issued the wound certificates as per Exs. P. 5 and P. 4 respectively. The version of the doctor as well as the wound certificates clearly reveal that P.W. 2 has sustained only swelling and tenderness over the left arm, whereas P.W. 1 has sustained swelling and tenderness over both the upper limbs, arm and forearm and tenderness over the left knee and upper front of right thigh. Except tenderness and swelling, no other injuries were found on the body of P.Ws. 1 and 2. The Court can take judicial notice of the fact that these injuries are simple injuries. They are not only simple injuries, but also minor in nature. Such injuries can be caused by even push and pull or during minor scuffle between the parties. Hence in our considered opinion, the versions of P.Ws. 1, 2, 3, 9 and 1.0 with regard to the assault on P.Ws. 1 and 2 is concerned appear to be highly exaggerated.

In this context, it would be relevant to note the injuries sustained by the deceased. The post-mortem report is at Ex. P. 6. The doctor who conducted post-mortem examination is P.W. 7. The evidence of P.W. 7 and die post-mortem report would amply reveal that the deceased has sustained fracture of 8th, 9th and 10th ribs on right side; she has suffered multiple abrasions and contusions; her left kidney is injured; she has also suffered fracture of left leg (both bones) apart from abrasions. The doctor has opined that the cause of death is due to shock and haemorrhage as a result of injury to the vital organs viz., liver, spleen, kidney and bones. In the light of such medical evidence, we have carefully gone through the evidence of all the eyewitnesses relating to the assault on the deceased is concerned.

As mentioned supra, the complaint-Ex. P. 1 which came to be lodged within five hours of the incident in question specifies the overt acts of accused 1 and 2 only as against the deceased. It is further clarified in the complaint-Ex. P. 1 that accused 1 assaulted on the abdomen/chest of the victim with club (only once), whereas accused 2 assaulted on the left leg of the deceased. This version as found in Ex. P. 1 fully tallies with the medical evidence on record inasmuch as the deceased not only sustained fractures of three ribs but also has suffered fracture of left leg and injury to vital organs like liver, spleen and kidney within the abdomen. The doctor has opined that death is due to shock and haemorrhage as a result of injury'' to liver, spleen, kidney and bones, which means the death can be attributed to assault by accused 1 on the chest/abdomen, whereas the fractures suffered by the deceased on left leg can be attributed to the assault by accused 2.

P.W. 1 has deposed that accused 1, 2 and 4 to 6 assaulted the deceased; P.W. 2 has deposed that all the accused i.e., accused 1 to 6 assaulted the deceased; P.W. 3 has deposed that accused 1, 2 and 3 have assaulted the deceased; P.W. 9 has deposed that accused 1 and 2 have assaulted the deceased and lastly P.W. 10 has deposed that accused 1 and 3 have assaulted the deceased. Even in the cross-examination, almost the aforementioned versions are forthcoming. On careful consideration and evaluation of the evidence of P.Ws. 1, 2, 3, 9 and 10, we are of the opinion that there is no consistency with regard to the roles played by accused 2 to 6 insofar as it relates to the assault on the deceased. However all the eye-witnesses have deposed about the role played by accused 1. All the eye-witnesses including the injured witnesses have emphatically, consistently and cogently deposed that accused 1 assaulted the deceased with a club on her chest and abdomen. The medical evidence also supports the said version. The motive for commission of the offence as found on record is also as against accused 1.

Though certain material is forthcoming as against accused 2 with regard to the assault on the deceased on her left leg, the same may not be much help to the case of the prosecution. P.Ws. 2 and 3 have deposed vaguely as against accused 2. P.W. 10 has completely exonerated accused 2. He confined himself to the overt acts of accused 1 and 3 only. In the light of the inconsistency with regard to the evidence as against accused 2 and 3, we are of the opinion that the benefit of doubt in favour of accused 2 and 3 as given by the Trial Court need not be interfered with. At the cost of repetition, we reiterate that the evidence of all the eye-witnesses as against accused 1 is consistent, cogent, reliable and trustworthy. We do not find any ground to suspect the veracity of these eye-witnesses with regard to the role played by accused 1. We also find that the ocular testimony'' of these witnesses with regard to the role played by accused 1 is fully'' supported by the medical evidence on record.

Sri A.H. Bhagwan, learned Advocate appearing on behalf.of the defence submits that the evidence of P.Ws. 1, 2, 3, 9 and 10 needs to be brushed aside fully in view of the fact that their versions are fully exaggerated and not trustworthy.

Such submission cannot be accepted. The maxim falsus in uno falsus in omnibus'' is not to be blindly invoked in India in appreciating evidence adduced in our Courts where witnesses seldom tell the whole truth, but often resort to exaggerations, embellishments and "padding-up" to support a story how'' ever true in the main It is the function of the Court to disengage the truth from falsehood and to accept what it finds to be true, and reject the rest. It is only where truth and falsehood are inextricably mixed up, polluting beyond refinement, the entire fabric of the narration given by a witness, that the Court might be justified in rejecting his evidence in to. But in the matter on hand, we do not find that truth and falsehood are not inextricably mixed up polluting beyond refinement. On the other hand in our considered opinion, in the case on hand the grain can be separated from the chaff. From the evidence on record, we are if the opinion that truth can be separated from the falsehood and the portion of truth only can be relied upon while coming to the conclusion. Mere fact that evidence of prosecution witnesses is not firm to be relied upon with regard to the roles assigned to accused 2 to 6 in the occurrence, is no ground to reject mechanically the evidence available on record against accused 1. In the present case, it cannot be said that the witnesses had falsely implicated accused 1 at least in the crime. The case against accused 1 stands on a far better footing than the case against other accused. On consideration of the entire material on record and by eschewing the falsehood and exaggerations as spoken to by the witnesses, we are of the considered opinion that the prosecution has made out case at least against accused 1 though the evidence as against accused 2 to 6 is not sufficient to conclude against them that they have committed the offence alleged.

Sri Bhagwan further submits that there is grave negligence on the part of the Investigating Officer in not recording the statement of the eyewitnesses at an early date and in not sending the first information report to the jurisdictional Court immediately after registration of the crime.

It is no doubt true that then is delay of 5 days in recording the statements of the eye-witnesses-P.Ws. 2, 3 and 9, whereas there is delay of 12 days in recording the statement of the eye-witness-P.W. 10. Normally in case if the versions of the eye-witnesses are not recorded at an early date, such versions of the eye-witnesses would be suspected by the Courts. However if the witnesses withstand the cross-examination, then the Court may take a different view. Merely on the basis of the negligence on the part of the Investigating Officer, the case of the prosecution cannot be thrown out. Tire defective investigation or negligence of the Investigating Officer should not result in acquittal of the accused when the prosecution case is otherwise established. The object of criminal trial is to get justice to the parties. The Court should not only see that no innocent person is punished, but should also see that no guilty person escapes unpunished. The conduct of the Police Officer in recording the statements of the eye-witnesses belatedly to help one or the other accused or the conduct of the Investigating Officer not stepping into the witness-box without any justifiable ground cannot be basis for discarding the evidence of eye-witnesses whose presence on the spot is established beyond reasonable doubt. In the matter on hand, P.Ws. 1 and 2 though have suffered minor injuries, their presence on the spot cannot be suspected. The very fact that they have suffered the incident and the very fact that they were immediately shifted to the hospital in ambulance would clearly reveal their presence over the spot. Moreover in tire matter on hand, the statement of P.W. 1 is recorded in the hospital within about four hours of the incident. The statement of another injured is recorded after 5 days. Merely because his statement is recorded after 5 days of the incident in question, his evidence cannot be suspected, more particularly when tire evidence of the eye-witnesses is corroborated fully by the: medical evidence, it is also in conformity with what has been stated in FIR so far as the role of accused 1 is concerned. In a case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively. As mentioned supra, a criminal trial is meant for doing justice to the accused, the victim and the society so that law and order is maintained. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform (see the judgment in the case of Ambika Prasad and Another v. State Delhi Administration, Delhi, (2000)2 SCC 646).

In the case of defective investigation the Court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the Investigating Officer if the investigation is designedly defective. If the ocular testimony pointing towards the guilt of the accused is credible and cogent, the evidence of such witnesses cannot be discarded on technical ground. In our considered opinion, the Trial Court given more weightage to the delay in recording the statement of the witnesses while acquitting accused 1 also.

The First Information Report clearly discloses the presence of P.Ws. 1, 2 and 3 on the scene of offence. It is specified in the first information that P.W. 1 was coming with P.Ws. 2 and 3 on the TVS Moped Scooter and at that time, the incident has occurred. P.W. 2 was also injured in the incident. When the names of P.Ws. 1, 2 and 3 are mentioned at the initial stage within four hours of the incident, their versions before the Court cannot be discarded only on the ground that their statements are recorded by the Police after 5 days of the incident, particularly when they have withstood in their cross-examination with regard to the role played by accused 1. Merely because the statements of P.Ws. 2 and 3 are recorded belatedly, the same cannot be a ground to discard their versions, more particularly when their names are mentioned in the first information within about four hours of the incident. However such delay might have given chance to the prosecution to implicate other accused i.e., accused 2 to 6.

Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution''s case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot like statements are disfavoured sometimes by the Courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. As has been observed by the Apex Court in the case of State of Himachal Pradesh v. Lekh Raj and Another, (2000) 1 SCC 247 , the criminal trial cannot be equated with a mock scene from a stunt film. The legal trial is conducted to ascertain the guilt or innocence of the accused arraigned. In arriving at a conclusion about the truth, the Courts are required to adopt a rational approach and Judge the evidence by its intrinsic worth and the animus of the witnesses. The hyper technicalities or figment of imagination should not be allowed to divest the Court of its responsibility of sifting and weighing the evidence to arrive at the conclusion regarding the existence or otherwise of a particular circumstance keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while appreciating the evidence for arriving at the truth. The Courts are not obliged to make efforts either to give latitude to the prosecution or loosely construe the law in favour of the accused. The Courts cannot ignore the erosion in values of life which are a common feature of the present system. Such erosion''s cannot be given a bonus in favour of those who are guilty of polluting society and mankind.

It is further contended by Sri Bhagawan that all the eye-witnesses are interested and partisan witnesses and therefore their evidence needs to be discarded particularly when they have tried to implicate as many accused as possible.

In the deposition of witnesses, there are always normal discrepancies. These discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence etc. In this matter, P.Ws. 1 and 2 are grandsons, whereas P.W. 4 is son of the deceased. They must have been shocked to see the incident of murder of the old lady i.e., grandmother/mother. True, P.W. 4 is son of the deceased, whereas P.Ws. 1 and 2 are grandsons of the deceased. But they'' cannot be called as interested witnesses. They are related to the deceased. ''Related'' is not equivalent to ''interested''. A witness may be called ''interested'' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye-witness in the circumstances of a case cannot be said to be ''interested''. As mentioned supra, we do not find any ground to suspect the presence of P.Ws. 1 and 2 on the spot inasmuch as both are injured. The incident has taken place just in front of house of the deceased and accused 1. On seeing the assault on P.Ws. 1 and 2 (grandsons of the deceased), the deceased rushed to the scene in order to save the life of the grandsons and at that point of time, the deceased was assaulted. Presence of P.W. 4 also cannot be doubted on the scene. Be that as it may, in the light of the evidence of these witnesses whose presence cannot be doubted, the submission of the learned Counsel for the respondents that the said witnesses are interested witnesses and therefore their versions should be rejected, cannot be accepted.

Lastly Sri Bhagawan submits that it is highly unnatural on the part of P.Ws. 1, 2 and 4 to keep quiet without trying to save the deceased from the clutches of the accused.

The said submission cannot be accepted. Murders are not committed with previous notice to witnesses soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere chance witnesses or interested witnesses. Moreover every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away'' to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counterattacking the assailants. Everyone reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. Thus merely because P.Ws. 1, 2 and 4 stayed away without trying to save the life of the deceased, their presence on the spot cannot be doubted. Moreover the incident has occurred within a short period.

As mentioned supra, the accused had come to assault P.W. 1 or to take revenge against him. While they were assaulting P.W. 1, P.W. 2 intervened and he was also assaulted. Both of them suffered some minor injuries. In the meanwhile, deceased being grandmother of P.Ws. 1 and 2 rushed to the street from her house in order to save her grandsons. But the accused did not spare the old lady. Accused 1 assaulted the deceased with the club on her chest/abdomen once. Therefore there was no chance for P.W. 4 also to interfere inasmuch by the time he could react in any positive manner, the incident had occurred.

From the aforementioned discussion, we are of the clear opinion that the prosecution has proved its case at least as against accused 1 though it has not proved its case against other accused. However in our considered opinion, the offence with which accused 1 needs to be convicted is not for the offence under Section 302 of IPC. There was no intention on the part of accused 1 to commit the murder of the deceased Thimmakka. Further, accused 1 has merely assaulted P.W. 1, consequent upon which P.W. 1 has suffered certain simple injuries. The very fact that P.W. 1 has suffered certain simple injuries (tenderness), would clearly reveal that accused 1 did not have any intention to commit murder of anybody. If really accused 1 had got intention to commit murder, then he would have been definitely liable for the offence of murder on the ground of transfer of malice. On evaluating the entire evidence on record, we are of the clear conclusion that accused 1 did not have intention to commit murder, but he wanted to take revenge against P.W. 1. In the meanwhile, the deceased intervened and she was assaulted by accused 1 and unfortunately she died.

The incident of assault on the deceased was caused suddenly without any intention. It is committed without premeditation in a sudden fight in a heat of passion upon the sudden quarrel. The evidence on record also reveals that only accused 1 has assaulted on the chest/abdomen of the deceased. The deceased being aged about more than 60 years met his unfortunate death because of such assault. Having regard to the totality of the evidence on record, in our considered opinion, the accused 1 needs to be punished for the offence under Section 304, Para II of IPC inasmuch as he had the knowledge that the deceased would die in case if he assaults on her abdomen with club. Accordingly, we conclude that accused 1 shall be convicted for the offence under Section 304, Para II of IPC.

In view of the above reasons assigned and the conclusion arrived at by the Trial Court insofar as it relates to acquittal of accused 1 is concerned, cannot be accepted at any stretch of imagination. The view taken by the Trial Court for acquitting accused 1 is not the possible view under the facts and circumstances of the case.

Having heard learned Advocate for the defence and the Public Prosecutor on the question of sentence, we proceed lo pass the following order:

(a) The impugned judgment and order of acquittal acquitting accused 2 to 6 for the offences with which they were charged stands confirmed.

(b) The impugned judgment and order of acquittal acquitting accused 1-Rajanna for the offence under Section 302 of IPC stands modified. Accused 1 is hereby convicted for the offence under Section 304, Para II of IPC.

(c) Accused 1-Rajanna is sentenced to undergo imprisonment for five years and he is imposed with fine of Rs. 1,00,000/- (Rupees one lakh only). In default of payment of fine, accused 1 shall be further imprisoned for three years. In case of recovery of fine, entire fine amount shall be paid to P.Ws. 1 and 2 jointly as compensation under Section 357-A of Criminal Procedure Code, 1973.

(d) Appellant 1 is entitled for the benefit of set off as provided under Section 428 of Cr. P.C., of the period of imprisonment which he has already undergone.

Criminal appeal is allowed in part accordingly.