( 1 ) THESE twenty-three appellants and two others namely Doreswamy and ningegowda, who were accused Nos. 1 to 25 and who will hereinafter be referred to as A1 to A25, were tried on various charges by the Sessions judge, Mandya, in Sessions Case No. 5 of 1974. The charges common to all the 25 accused persons were under Ss. 148, 302 r|w 149, 326 r|w 149, and 324 r/w 149 of the IPC, and the allegations under those charges were that on 26-2-1973 between 6-30 and 7 A. M. on the foot-nath leading from mandya-Madachakanahalli road towards the house of Nethegowda PW. 44 in Gandhal village, Mandva Tk, they formed themselves into an unlawful assembly armed with deadly weapons such as clubs, snears, axes, etc, with the common object of committing the murders of Karivanna alias Karigowda s/o Chikkamarigowda and Chikkabommangowda s/o Hirichikki Basavegowda, and causing grievous hurt to Manchegowda PW. 35, G. K. Nagaraj pw. 31 and Gooti Sannaiah PW. 40 and simple hurt to Kemparaju PW. 22 and bommiah PW. 32. and committed rioting and the murders of the said karigowda and Chikkabommegowda and caused grievous hurt to PWs. 35, 31 and 40 and simple hurt to PWs 22 and 32 by assaulting them with clubs, spears and other dangerous weapons in prosecution of the said common object. Al G. S. Basavegwda, A2 G. S. Channegowda, A3 G. S. Puttaswamy, a5 Patel Javaregowda and A6 Siddappa were also tried in the alternative for committing the murder of Karigowda in furtherince of their common intention punishable u sec. 302 read with S. 34 of the IPC, and similarly a4 G. S. Basavaraj, A5 Patel Javaregowda, A9 Kullaiah, A10 Jakka, A12 channappa, A13 G. P. Bommaiah alips Meese Bommaiah, A15 Ninegegowda and A17 Basappa were also tried in the alternative for committing the murder of Chikkabommesowda in furtherance of their common intention punishable under S. 302 r/w S. 34 of the IPC. ( 2 ) THE learned Sessions Judge, by his judgment dt. 28-8-1974 found a7 Doreswamy and A15 Ningegowda not guilty of the offences with which they were charged and consequently acquitted them and directed them to be set at liberty forthwith, and we are informed that the State has not preferred any appeal against the said judgment of acquittal. ( 2 ) THE learned Sessions Judge, by his judgment dt. 28-8-1974 found a7 Doreswamy and A15 Ningegowda not guilty of the offences with which they were charged and consequently acquitted them and directed them to be set at liberty forthwith, and we are informed that the State has not preferred any appeal against the said judgment of acquittal. The learned Sessions Judge found the rest of the accused persons guilty of the offence under S. 148 IPC and sentenced each of them to undergo rigorous imprisonment for two years. He also found Al, A2, A3 and A5 guilty of the offence under S. 302 read with S. 34 IPC for committing the murder of Karigowda and A9, A10, a12 and A13 guilty of the offence under S. 302 read with S. 34 IPC for committing the murder of Chikkabommegowda and consequently convicted them all and sentenced Al, A2, A3. A5, A9, A10 and A13 to death and A12 to undergo imprisonment for life. He further found A4, A6, A8, All, A14, A16, A17, A18, A19, A20, A21, a22, A23, A24 and A25 guilty of the offence under S. 302 read with S. 149, ipc for committing the murders of Karigowda and Chikkabommegowda and convicted and sentenced each of them to undergo imprisoment for life. He also found A2, A6, A22, A23, A20 and A21 guilty of the offence under S. 326 r|w S. 34 IPC and convicted and sentenced each of them td undergo rigorous imprisonment for one year, and A12, A13 and A19 guilty of the offence under Sec. 324 r|w Sec. 34 IPC and convicted and sentenced each of them to undergo RI for six months. He also found A1, A3, A4, A5, A8, A9, A10, All, A14, A16, AJ7, a18, A?4, and A25 guilty of the offences under S. 326 read with S. 149 IPC and S. 324 read with S. 149 IPC for causing grievous hurt to PWs. 35, 31 and 40 and simple hurt to PWs. 22 and 32, and convicted and sentenced each of them to undergo rigorous imprisonment for one year and six months respectively on each count, and directed all the sentences to run concurrently. 35, 31 and 40 and simple hurt to PWs. 22 and 32, and convicted and sentenced each of them to undergo rigorous imprisonment for one year and six months respectively on each count, and directed all the sentences to run concurrently. He found A4, A5, A6 and A17 who were alternatively charged under s. 302 r|w S. 34 IPC not guilty of the same and acquitted them of that charge, and we are told that the said finding is not challenged by the State. In this appeal, the appellants accused have challenged the legality and the correctness of their convictions and sentences. Criminal Referred Case No. 53/74 is the reference made under S. 374 of crpc (old) by the learned Sessions Judge for confirmation of the death sentences passed on the aforementioned seven accused persons ( 3 ) THE Advocate General and Sri B. K. Ramachandra Rao appeared for the State, Sri Art. Bhagawan appeared for Al; Sri G. R. Ethirajulu naidu appeared for A4; and Sri A Shamanna appeared for the rest of the accused. ( 4 ) THE prosecution ease briefly stated is as follows: Since a long time there were two rival parties in Gandhal Village, one headed by Al G. S. Basavegowda and the other headed by PW. 44 Nathegowda, and the enmity between them went on increasing day by day till the date of the occurrence Number of Criminal Cases were filed against members of both the parties. Security proceedings under S. 107 Crpc were also instituted against both the groups. There were also some proceedings between them in the Revenue Courts in respect of some disputes. The deceased Chikkabommegowda owned a vacant land in Gandhal village adjacent to the Society Building and he got it alienated in his favour lor the purpose of constructing a building. Then the directors of the society belonging to the party of Al passed a resolution for acquiring the said land for the use of the society and in the meantime Chikkabommegowda started constructing a building on the land. Thereupon, PW. 8 Rajagopal, the Secretary of the Society instituted proceedings in the Court of the assistant Commissioner, Mandya, and secured an order of stay on 23-8-73. Similarly, some months prior to the occurrence, PW. Thereupon, PW. 8 Rajagopal, the Secretary of the Society instituted proceedings in the Court of the assistant Commissioner, Mandya, and secured an order of stay on 23-8-73. Similarly, some months prior to the occurrence, PW. 44'nathegowda started constructing a compound wall in front of his sugar cane crushing house at Gandhal, and proceedings were also instituted and on a petition given by A3 to the Block Development Officer PW. 1 Gangappa objecting to the same he (PW. 44) was directed not to proceed with the construction. Then PW. 20 Biliyappa the nephew of PW. 44 sent an application as per Ex. P1 on 7-8-73 to the Asst Commr, Mandya alleging that A3 and sixteen others were constructing pent houses in the portion of 'gramatana without obtaining licences and requesting him to take appropriate action against them The Asst Commr forwarded that Application to PW. 1 with a direction to look into the matter. Then on 20-8-73, PW. 20 sent another application (Ex. P2) by registered post to PW. 1 alleging that A8 was proposing to construct a shed in the Gramatana and requesting him not to grant the licence. Then he sent another application as per Ex. P3 to PW. 1 by regstered post which PW. 1 received on 24-2-73, in which it was alleged that A8 was unauthorisedly constructing a shed in the Gramatana. In the meantime, on 23-2-73 itself PW. 1 visited the spot along with the Panchayat extension Officer of the Block (PW. 7) and the concerned Junior eng neer, and issued a notice as per Ex. PS to A8 directing him to demolish the shed unauthorisedly constructed by him. Rut, A1 and his brothers and a5 who were all along supporting A8 in constructing the shed dissuaded him from demolishing it, and on account of all these disputes, the feelings between PW. 44 Nathegowda and his followers on the one hand and Al and the other accused on the other were extremely strained. On the date of the occurrence i. e. , 26-8-73, the deceased Karigowda was proceeding from his house towards his sugar cane crushing house quite ahead of his brother PW. 44 Nathegowda and his followers on the one hand and Al and the other accused on the other were extremely strained. On the date of the occurrence i. e. , 26-8-73, the deceased Karigowda was proceeding from his house towards his sugar cane crushing house quite ahead of his brother PW. 44 Nathegowda who was following him, and al to A8 and some others who had assembled near the shed of A8 armed with spears, axes and clubs suddenly rushed and surrounded Karigowda who was going near the manure pit and killed him by assaulting him with axes and spears. On seeing the accused assaulting Karigowda, the deceased chikkabommegowda who was then in his sugar cane crushing house rushed in that direction with a club in his hand for rescuing him. Then a9 to A25 and one Mantradabommaiah rushed towards him from the eastern direction with spears, choppers and clubs and surrounded and killed chikkabommegowda, and Mantradabommaiah too sustained an injury on his head as a result of a blow given by Chikkabommegowda then with the club he had, and later died. PW. 10 Manchegowda who had seen some of the accused persons being present there before the actual assault commenced on Karigowda and Chikkabommegowda being afraid and apprehending that some calamity would take place left for Mandya on a cycle to inform the Police, and on his way at Holalu he met Siddegowda FW. 9 and requested him to contact the police of Mandya on phone and to inform them about the situation at Gandhal. Accordingly, PW. 9 Siddegowda went to the society building there and on phone informed the Head Constable PW 43 Kemaiah and the sub-Inspector of Police PW. 36 Shantappa at about 8-30 A. M. that there was rioting at Gandhal Village. The Sub-Inspector PW. 36 entered the said information in the Station House Diary, informed the Circle Inspector of police P45 Kemparaj Urs and the Deputy Superintendent of Police PW. 45 a N. Gopal about it, and left Mondya at about 8-45 A M. with his staff to go to Gandhal village, and on his way at Holalu PW. 10 who was still there accompanied him to Gandhal, and at 9-15 A. M , Nathegowda PW. 44 lodged a complaint, Ex. P39, before him. He (PSI) then sent Ex. P39 through the Police Constable PW. 10 who was still there accompanied him to Gandhal, and at 9-15 A. M , Nathegowda PW. 44 lodged a complaint, Ex. P39, before him. He (PSI) then sent Ex. P39 through the Police Constable PW. 28 Ramaswamy to the Rural Police station at Mandva for being delivered to PW. 43 who was the Station house Officer then, with directions to register the case and to submit the first Information Report to Court and express reports to his superiors, and arranged to keep watch over the dead bodies of Karigowda and Chick- kabommegowda which were kept on the pial of PW. 44 Nathegowda's house. On receipt of Ex. P39 at 10-30 A. M. , PW. 43 registered a case in Crime no. 135/73 under Ss. 143, 147, 148, 149, 324, 307 and 302 IPC and submitted the FIR Ex. P52 to the Court and sent a copy of it to the SI of Police who was at Gandhal itself then. The PSI PW. 36 having found PW. 22 kemparaju, PW. 31 G. K. Nagaraj, PW. 32 Bommaiah and one Thammanna injured, sent them to the General Hospital at Mandya for examination and treatment, and at about 11 A. M, the CPI having arrived there took up further investigation from him. The CPI PW. 45 conducted the inquest proceedings over the deadbody of Karigowda between 11-35 A. M. and 2-15 P. M. (Vide inquest panchanama Ex. P34), and the inquest proceedings over the dead-body of chikkabommegowda between 2-20 P. M. and 5 F. M. (Vide inquest panchanama ex. P35), and during the inquest proceedings he recorded the statements of PW. 44 Nathegowda and PW. 39 Manchamma w/o the deceased chikkabommegowda. Then at 5-10 P. M. he visited the scene of occurrence along with PW. 44 and drew up a Mahazar and seized the blood stained stones MOs. 21 and 22, blood stained hay MO. 23, blood stained stone with hair MO. 24 and blood stained grass MO. 25. He sent PWs. 35 and 40 who were injured to the hospital for treatment, and thereafter recorded the statements of PW. 21 Basavaraju, PW. 41 Shivalingaiah and pw. 42 Jayamma. Having found A6 A9 A12 A17 A24 and A25 also injured, he sent them to the hospital for treatment on the same day, and searched for the other accused and found them absconding. Then on 27-8-73 he (PW. 21 Basavaraju, PW. 41 Shivalingaiah and pw. 42 Jayamma. Having found A6 A9 A12 A17 A24 and A25 also injured, he sent them to the hospital for treatment on the same day, and searched for the other accused and found them absconding. Then on 27-8-73 he (PW. 45) visited the General Hospital at Mandya and attached the blood stained clothes of PWs. 31 32 35 and 40 and Thammanna under Mahazar and then recorded their statements and the statement of pw. 22. On 28-8-73 at about 8-30 P. M. he arrested A8 A9 and A12 and attached the blood stained shirt and dhoti MOs. 18 and 19 which A12 was wearing then and the blood stained shirt MO. 20 which A9 was wearing then under Ex. P58. On 9-9-73 he arrested A19 and A20 and on the information furnished by A19 he recovered a spear MO1 and a club MO. 2 and on the information furnished by A20 he recovered a club MO. 3 and seized them under the Mahazars Exs. P37 and P38 respectively. On 11-9-73 the DSP PW. 46 A. N. Gopal took up further investigation and on the following day he recorded the statements of PWs. 9 10 and 12, and after completing the investigation on 22-10-73 he filed a charge-sheet in the Court of the First Class Magistrate at Mandya against A1 to A3 and a5 to A25 showing A4 as 'not sent up for trial which was registered as criminal Case No. 3056/1973. Then on an application filed by PW. 44 Nathegowda complaining against the non-inclusion of A4 in the charge sheet, the learned Magistrate made an order on 19-11-73 in the same case directing issue of warrant for his arrest for being proceeded with along with the other accused persons. That order A4 challenged before this Court in Crlrp. 035/73, and the crlrp was dismissed on 27-11-73 at the stage of admission itself. Then the learned Magistrate having followed the procedure prescribed in Chap. 18 of the Crlpc 1898, committed all the accused persons for trial before the court of Sessions at Mandya for offences under S. 148 324 326 and 302 read with S. 149 of the IPC. However, the learned Sessions Judge framed charges as aforementioned against the accused, who claimed to be tried. 18 of the Crlpc 1898, committed all the accused persons for trial before the court of Sessions at Mandya for offences under S. 148 324 326 and 302 read with S. 149 of the IPC. However, the learned Sessions Judge framed charges as aforementioned against the accused, who claimed to be tried. ( 5 ) THE plea of A4 was one of alibi, and in his statement under S. 342, crlpc this is what he has stated : in support of the above version, he examined three fitnesses viz A. C. Madegowda DW. 1, Smt. Leelamma Shivannanjapps DW. 2 and P. N. Jayarappagowda DW. 3. Then A6 A9 A12 A13 A17 A24 and A25 while denying their complicity in the crime put forward their own version which we find in the complaint Ex. D24 said to have been given by A24 to the Circle Inspector of Police PW. 45 at aoout 11-25 A. M. at Gandhal, and it read as follows : the plea of the other accused was denial simpliciter. It can thus be seen that in respect of the same occurrence two c6nflicting versions were put forward, one by the prosecution and the other by the accused. ( 6 ) HERE it may be mentioned that on the complaint Ex. P24 lodged by A24 a case was also registered in Crime No. 136/73 and as many as 16" persons including PWs. 21 22 31 35 40 and 44 and the deceased Karigowda and Chikkebommegowda were charge-sheeted on the allegations that they had formed themselves into an unlawful assembly with the common object of committing the murder of Mantradabommaiah' and caused grievous and simple hurt to others. The learned Magistrate who held the preliminary proceedings ultimately committed all except the deceased to the Court of sessions to take their trial for those offences which was registered as SC. 2/74 and tried and disposed of along with SC. 5/74 by the same Judge and on one and the same day by separate judgment. There cannot be any doubt that in the alleged occurrence Karigowda, chikkebommegowda and Mantradabommaiah sustained injuries and the last succumbed to the injuries a little later while he was being taken to the hospital at Mandya and the former two succumbed to the injuries on the spot itself. There cannot be any doubt that in the alleged occurrence Karigowda, chikkebommegowda and Mantradabommaiah sustained injuries and the last succumbed to the injuries a little later while he was being taken to the hospital at Mandya and the former two succumbed to the injuries on the spot itself. The injuries found on the dead body of Karigowda at the time of Post Mortem Examination conducted by Sri Ramesha Rao PW. 6 on 27-8-73 between 7 and 8-30 A. M. have been described thus : and we shall refer to the injuries sustained by some of the accused and the prosecution witnesses later. ( 7 ) THE prosecution case mainly rests on the evidence of PW. 10 Manchegowda, pw. 21 G. B. Basavaraju, PW. 22 Kemparaju, PW. 31 G. K. Nagaraj, PW. 32 Bommaiah, PW. 35 Manchegowda, PW. 40 Gooti Sannaiah, fw. 41 Shivalmgaiah, PW. 42 Jayamma and PW. 44 Nathegowda, and we shall refer to the material portions of their evidence before proceeding to consider the contentions and the arguments advanced by the Counsel appearing ior the accused and for the State. ( 8 ) IT was contended by Sri Shamanna who appeared for most of the accused persons that the prosecution witnesses have given only a distorted version and not a true version of the occurrence and that is apparent from the injuries sustained by A6 A9 A12 A13 A17 A24 A25 Mantradabommaiah,, bommaiah s/o Kenchegowda, Siddarama s|o Lingegowda Mahalinga s|o channegowda, Channegowda sjo Yemma Lingegowda, Kariya s|o Kudre basava, Basavaraju sjo Marigowdana Dollegowdana Chennegowda and basavaraju s/o Chikkanna which they have not properly explained Elaborating the contention what he submitted was that having regard to the injuries sustained by them in the course of the same occurrence there cannot be any doubt in the version put forward by the defence and the version of some of the prosecution witnesses that Mantradabommaiah attempted to thrust the spear into the body of Chikkabommegowda and it was at that time, Chikkabommegowda dealt a blow on the head of Mantradabommaiah with a club to save himself which is to be found neither in Ex. P39 nor in the statements of the said witnesses made before the Investigation officers is nothing but an after-thought, and that if that was how Mantradabommaiah sustained that injury there is no explanation why that fact was not disclosed till the evidence was given in Court. P39 nor in the statements of the said witnesses made before the Investigation officers is nothing but an after-thought, and that if that was how Mantradabommaiah sustained that injury there is no explanation why that fact was not disclosed till the evidence was given in Court. It was, therefore urged that the failure to explain satisfactorily the injuries on the said accused, Mantradabommaiah and others mentioned above while supporting the defence version renders the evidence given by the said witnesses not worthy of belief. ( 9 ) IT is no doubt true that in Mohan Rai v State of Bihar AIR. 1968 SC. 1281. relied upon by Sri Shamanna the Supreme Court, while considering the failure on the part of the prosecution to explain the injuries on the accused sustained in the same occurrence said thus at page 1284 the trial Court as well as the High Court wholly ignored the significance of the injuries found on the appellants. Mohan Rai had sustained as many as 13 injuries and Bharath Rai 14. We get it from the evidence of PW. 15 that he noticed injuries on the person of Mohan rai when he was produced before him immediately after the occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabilised. Under these circumstances the prosecution had a duty to explain those injuries. The evidence of Dr. Bhishun Prasad Sinha (PW. 18) clearly shows that these injuries could not have been self-inflicted and further according to him, it was most unlikely that they would have been caused at the instance of the appellants themselves. Under these cumstances we are unable to agree with the High Court that the prosecution had no duty to offer any explanation as regards those injuries. In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilises the plea taken by the appellants. and in the other case also viz Sebastian David v. Sirkar Prosecutor AIR. 1950 TC. 9. relied upon by him, the prosecution evidence was rejected on the same ground. Further those injuries probabilises the plea taken by the appellants. and in the other case also viz Sebastian David v. Sirkar Prosecutor AIR. 1950 TC. 9. relied upon by him, the prosecution evidence was rejected on the same ground. But, there is no warrant for the view that in every case the failure on the part of the prosecution to explain the injuries sustained by the accused should lead to the same conclusion or result. The Supreme Court on the facts of that case came to the conclusion that the failure on the part of the prosecution witnesses to explain the injuries on the accused went to show that the prosecution witnesses were not telling the truth and the possibility of the accused acting in self-defence cannot be ruled out; but it does not follow from what is said in that case that in every case where the injuries on accused are not explained the prosecution evidence should be rejected. The question really is one of appraisal of total evidence and its effect, and it is now well settled that the entire prosecution case cannot be thrown out solely on the ground that the witnesses for the prosecution have not explained the injuries on the Accused though such failure is a relevant factor to be taken into consideration in judging their veracity. The effect of such non-explanation depends upon the circumstances of each case, and indeed in Onkaranath v. State of U. P. AIR. 1974 SC. 1550. while considering the effect of non-explanation of the injury on the accused, this is what the Supreme Court said at page 1557 : ( 10 ) THE question is, what is the effect of this non-explanation of the injuries of Parasnath. This is a question of fact and not one of law. Answer to such a question depends upon the circumstances of each case. This Court has repeatedly pointed out that the entire prosecution case cannot be thrown overboard simply because the prosecution witnesses do not explain the injuries on the person of the accused (See AIR 1971 SC 2233 Supra, and Bhagwan Tana Patil v. State of maharashtra (Cr App 78/70, dt. 9-10-73) reported in AIR 1974 SC 21 = 1974 Crllj 145 ). 9-10-73) reported in AIR 1974 SC 21 = 1974 Crllj 145 ). ( 11 ) SUCH non-explanation, however, is a factor which is to be taken into account in judging the veracity of the prosecution witnesses, and the Court will scrutinise their evidence with care. Each case presents its own features. In some cases, the failure of the prosecution to account for the injuries of the accused may undermine its evidence to the core and falsify the substratum of its story while in others it may have little or no adverse effect on the prosecution case. It may also, in a given case, strengthen the plea of private defence set up by the accused. But it cannot be laid down as an invariable proposition of law of universal application that as soon as it is found that the accused had received injuries in the same transaction in which the complainant party was assaulted the plea of private defence would stand prima facie established and the burden would shift on to the prosecution to prove that those injuries were caused to the accused in self-defence by the complainant party. For instance where two parties come armed with a determination to measure their strength and to settle a dispute by force of arms and in the ensuing fight both sides receive injuries, no question of private defence arises. " therefore, the rejection of the evidence solely on the ground that the prosecution has not explained the injuries on the accused in this case, is neither prudent nor sound, and such rejection which may be characterised as mechanical, is not warranted. ( 12 ) ON the facts of this case, what we have to see is whether it is possible to hold that the injuries found on Mantradabommaiah, some of the accused, and some others mentioned above, tend to support or probabilise the defence version. There is no doubt that Mantradabommaiah died on account of the injuries sustained by him in the same occurrence and we have already referred to the injuries found on him. Regarding the injuries found on others, we have the evidence of PWs. 4 and 13. PW. 4 dr. There is no doubt that Mantradabommaiah died on account of the injuries sustained by him in the same occurrence and we have already referred to the injuries found on him. Regarding the injuries found on others, we have the evidence of PWs. 4 and 13. PW. 4 dr. Shashirekha has stated that she examined A13 Bommaiah at about 11-30 A. M. on the date of the occurrence and found tenderness over his right lower chest in the front and that he told her that he was "assaulted by Motina Sannaiah Uruf Shivagaiah near his home at Gandhal at about 8 A M. on 26-8-73" with a stone (vide Ex. D2 ). The rest are examined by pw. 13 Dr. Rajashekhar on the same day from 10-10 P. M. onwards and this is how the injuries found on them are described by him : a6 Siddanna: (1) A larerated injury on the left index finger on the palmer aspect. (2) An abrasion with swelling just above the eve brow. (3) A contusion with abrasion on the left shoulder about 2" below the shoulder joint anteriorly. A9 Kullaiah: An abrasion on the right frontal region. A12 Channapna: (1) An abrasion on the left elbow joint. (2) An abrasion on the right fore-arm. A17 Dasappa: A contusion en the frontal region. A24 Brmmaiah; A lacerated iniury on the medial side of the right leg about 1" above the medial malleolus with swelling and deformity at the right leg about 2" in size above the right ankle joint. Fracture of the tibia of the right leg was found. Bommaiah s/o Kenchegowda: Swelling on the left knee joint which was mediallv situated. Siddarama s/o Lingegouda (1) An in jury on the right foot with swelling. (2) An abrasion over the left side of the frontal region. Mahalinga s/o An abrasion of the root of the nose. Channeaowda s/o Lingegowda: (1) An abrasion on the scalp. (2) An injury on the left side of the face with swelling. Karya s/o Kvdura Banana: (1) An injury on the upper lip of the mouth. (2) Patient complains of pain of the upper incisor tooth. Basavaraju sjo Chennegowda: A lacerated injury on the upper lip basavaraju s|o Chikkanna: Swelling on the upper lip and an injury on the left elbow with contusion. Karya s/o Kvdura Banana: (1) An injury on the upper lip of the mouth. (2) Patient complains of pain of the upper incisor tooth. Basavaraju sjo Chennegowda: A lacerated injury on the upper lip basavaraju s|o Chikkanna: Swelling on the upper lip and an injury on the left elbow with contusion. ( 13 ) SO far as the injury on the person of A15 is conferred there is no evidence except bis own statement made under S. 342 Crpc to the effect that he sustainecl a fracture due to beating by Basavaraju slo Basappa with a club. Now, the question is whether the injuries found on them probabilise the defence version and render the prosecution evidence unworthy of belief. It was contended by the learned Advocate General that the defence version is like a fairy-tale to be only heard and rejected and that Ex. P34 is only a counter-blast. It was submitted by Sri B. K. Ramachandra Rao, who appeared along with the learned Advocate General, that merely because every injury found on some of the accused is not explained by the prosecution, the prosecution evidence cannot be thrown out of hand and the fart that Ex P39 is silent regarding the manner in which Mantradabommaiah sustained the injury on the head cannot also be made much of because it was not necessary for PW. 44 Nathegowda to mention that fact while giving the complaint, and that at any rate no oblique motive can be attributed to him or the other witnesses for not referring to the same till they deposed in Court. ( 14 ) IN our opinion, the defence version is devoid of truth and there is every justification to think that Ex. P34 is a counter-blast. The story put forward by the defence that on the pretext that the cattle of Mantradabommaiah ate some sugarcane belonging to Arekallati Basappa the 19 accused in SC. 2|74 attacked him and his brother Channappa (A12 in this case) looks to us, on the face of it, unnatural. The evidence on record does hot show that there was any cause much less immediate cause for them to choose that particular time and day to attack him and his brother on that pretext. All that we find ir the prosecution evidence is that Mantradabommaiah belonged to the party of A1. The evidence on record does hot show that there was any cause much less immediate cause for them to choose that particular time and day to attack him and his brother on that pretext. All that we find ir the prosecution evidence is that Mantradabommaiah belonged to the party of A1. But we do not think that that enraged them all of a sudden to organise and attack him and his brother in that manner. If all the 19 persons had surrounded and assaulted with axes, choppers, spears and clubs, we do not think Mantradabommaiah or his brother would have sustained only a few injuries. It is clear the former had sustained only two injuries one on the head and the other on the nose and similarly the latter had sustained only two injuries which were mere abrasions. The question, therefore, is, if as many as 19 persons having organised to attack them had surrounded and assaulted them with spears, choppers, clubs and axes, how they could escape without sustaining more serious injuries? The injury found on the head of Mantradabommaiah being lacerated one, it is difficult to accept that that was caused by PW. 44 with an axe. If according to the defence PW. 44 was armed with an axe and he assaulted Mantradabommaiah and his intention was to kill him, it is not understandable why he did not use the sharp edge of that weapon. Indeed the accused in SC. 2/74 themselves are not sure whether that injury on Mantradabommaiah was caused by PW. 44 or some one else. When examined under S-342 Crpc, neither of A6 A9 A12 A13 A17 A24 A25, has stated that it was PW. 44 who caused that injury, nor have they stated as to who caused the injury on the nose of Mantradabommaiah, and the version contained in Ex. D24 that Gooti Sannegowda and Kariya assaulted Mantradabommaiah on the back and ribs is falsified by the medical evidence because no injuries were found on those parts of his body, and we do hot think that if blows had been given on those parts of his body he would have escaped injuries on those parts. A24 in this case who is stated to, have given the complaint Ex. D24 has not stated when examined under S. 342, crpc that it was PW. A24 in this case who is stated to, have given the complaint Ex. D24 has not stated when examined under S. 342, crpc that it was PW. 44 who caused the head injury on Mantradabommaiah, and indeed this is all what he has stated : ( 15 ) IT is obvious from the above that he could not speak out as to what Ex. D24 contained, and therefore, whether Ex. D24 was written at his instance one cannot even be certain. The injuries sustained by him and others were also quite few, and they were either contusions or abrasions or lacerated wounds, and except one or two the rest were all simple. Not an incised or stab wound was found on any of them, and if really as many as 39 persons had made a surprise attack on them with such deadly weapons we do not think such would have been the injuries'caused by them. On the other hand, the number and nature of injuries sustained by Karigowda and Chikkabommegowda and some others belonging to their party go a long way in showing that the version that the 19 accused in SC. 2|74 were the first to attack them, cannot at all be true. If they were the aggressors and were armed like that we do not think Karigowda and Chikkabommegowda would have allowed them'selves to be killed in that manner and some others beaten in that manner. There is another reason which impels us to take the same view. It 13 in evidence that the SI PW. 36 reached the scene of occurrence at about 8-40 A. M. and remained there along with his staff, and there cannot be any doubt about it. It is also in evidence that the Circle Inspector of felice PW. 45 reached the scene of occurrence at about 11 A. M. and took up further investigation from PW. 36 and sent A25, A24 A17 A12 A9 and Alb who were injured and who were in Gandhal itself for treatment, and it cannot be said that none of the accused knew about the arrival of the police as early as 8-40 A. M. The question, therefore, is, if the incident had taken place in the manner alleged by the defence and the accused in sc. 2/74 were the aggressors why no complaint was lodged before the PSI regarding the same by any of the accused in this case? It is not the case of any of the accused that a complaint was given and PSI refused or was reluctant to receive it. Indeed the evidence which is not challenged is that it was only after the arrival of the CPI a complaint was lodged at about 11-20 A. M. as per Ex. D24. The question is, why there was so much delay in lodging information before the police who were already there since 8-40 A. M. ? It was undoubtedly a factious village and three persons two on one side and one on the other side were killed and a number of persons on both sides were injured. Therefore, if the accused in SC. 2/74 were the aggressors and were at fault, why no complaint was lodged by any of the accused in this case including the police patil A5 giving out their own version of the recurrence if really it was how it had happened? it is not the case of A5 that he was not in the village, and no such suggestion is made to any of the prosecution witnesses. It cannot be again said that he was statutorily bound to report to the police the occurrence in whatever manner it might have occurred, and it cannot be said that he did not know it or the importance of lodging information promptly when serious offences of this kind are committed. The evidence is that he belonged to the party of A1 and the feelings between him and the accused in SC. 2/74 were srtained, and there is also no dispute about it. The question therefore is, even he would have kept quiet without lodging information before the police if really the incident had taken place in the manner stated by the defence? As mentioned earlier A12 was in the village itself when he was sent for treatment and in his very presence, according to him, his brother mantradabommaiah was belaboured and was struggling for life. So the question is why he even did not think of lodging a complaint against the accused in SC. 2/74 if they were the aggressors? None of the accused has offered any explanation in this regard when examined under S. 342 Crpc. So the question is why he even did not think of lodging a complaint against the accused in SC. 2/74 if they were the aggressors? None of the accused has offered any explanation in this regard when examined under S. 342 Crpc. It was however submitted by Sri Shamanna that the delay may be due to the fact that the accused were more anxious to save the life of Mantradabommaiah and to remove him to the hospital at Mandya or that they were afraid to come out thinking that the accused in SC. 2/74 might again attack them. We are not at all impressed by this submission. It is not the case of the accused that everyone had left Gandhal accompanying Mantradabommaiah. On the other hand the evidence is that some if not all of the accused were at Gandhal itself. Therefore, nothing prevented those who were in Gandhal to lodge a complaint before the PSI. There is nothing to show that even after the PSI arrived the situation was tense in the village and the accused were afraid to come out, and no such suggestion is made to him nor the accused have stated so when examined under S. 342 Crpc. Even in the belated complaint Ex. D24 one does not find the version that karigowda and Chikkabommegowda were killed by Bommaiah s|o Kenchegowda and six others mentioned above while rescuing A6 and others. None of the accused when examined under S. 342 Crpc has stated that they were killed by the said seven persons. If that was how it happened it is difficult to conceive why the same was not brought to light till the prosecution witnesses were cross-examined in the Sessions Court. If really those seven persons had killed Karigowda and Chikkabommegowda we do not think the persons responsible for setting the law in motion would have failed to implicate them. It appears to us that because some injuries were found on those seven persons later and they were not arrayed as accused or cited as witnesses in either of these two cases, such a story is put forward. ( 16 ) THEN it may be asked how Mantradabommaiah and some of the accused sustained injuries. The answer is not far to seek. The evidence of pw. ( 16 ) THEN it may be asked how Mantradabommaiah and some of the accused sustained injuries. The answer is not far to seek. The evidence of pw. 44 is that after Karigowda was killed some persons belonging to both the groups started pelting stones and attacking each other, and it is quite likely that in the melee some of them sustained injuries. The Medical Officers who examined those injuries have not given the age of the injuries, and as mentioned earlier, most of the injuries were simple, and the possibility of their having sustained those injuries otherwise cannot also be ruled out. The said Bommaiah and six others have not come forward to state as to how they sustained those injuries, and probably for that reason they were neither cited as witnesses nor arrayed as accused in either of the two cases. Even A6 and some of the ether Injured accused have not given a clear account as to who caused those injuries and where. Whether each of them sustained injuries near the manure pit where Mantradabommaiah is alleged to have been beaten, one cannot be certain, and this is what A13 is stated to have told the doctor PW. 4: said to have been assaulted by Motina Sannaiah Uruf Shivagaiah near his house at Gandhal at about 8 A. M. on 26-8-73. it is worthy of note that not only the time but also the place of assault as told by A13 before PW. 4, are different from what he has stated when examined under S. 342 Crpc and it reads thus : it is possible that the injuries sustained by them there or elsewhere being few and simple and at different places, might not have been noticed by the prosecution witnesses, and in these circumstances their failure to explain every injury found on them would not render their evidence suspicious. Regarding the injury on the head of Mantradabommaiah it has come in evidence to which we have already referred, under what circumstances he sustained it, and merely because either in Ex. Regarding the injury on the head of Mantradabommaiah it has come in evidence to which we have already referred, under what circumstances he sustained it, and merely because either in Ex. P39 or before the CPI it is not so stated the evidence given i,n Court in that regard by some of the prosecution witnesses cannot be regarded as untrue and there is nothing to show that they had withheld that information with anv oblique motive, and the substratum of the prosecution case as to how the incident took place cannot be said to have been shaken or impaired by that omission in any manner or to any extent. ( 17 ) IT was however contended by Sri that the story given by some of the prosecution witnesses that when Mantradabommaiah attempted to thrust the spear into the body of Chikkabommegowda the latter dealt a blow on the head of the former and caused an iniury cannot easily be accepted. In other words, what he submitted was that even according to the prosecution Chikkabommegowda had already suffered a serious injury at the hands of A9 as a result of which the membranes of the brain were ruptured at the penetrating wounds and there was laceration of both frontal and cerebral hemispheres at the penetrating site and therefore it is difficult to accept the version that he was in a position to stand erect or in a vertical position and beat Mantradabommaiah with a club and cause an injury on his head. We find it difficult to accept the contention or the submission made in Support thereof, and, to accept the same is to indulge in speculation. The Doctor who conducted the autopsy over the dead body of Chikkabommegowda has nowhere stated that on recount of the injury Chikkabommegowda had already suffered he could not have dealt a blow on the head of Mantradabommaiah and no question is put to him in that regard. In the absence of any material which would tend to support the said contention, it is neither sound nor proper to reject the evidence tendered by the prosecution to show how Mantradabommaiah sustained that injury. For the reasons stated above, we have no hesitation in rejecting the defence version as untrue and improbable and consequently the argument that the accused might have acted in exercise of the right of self-defence too has to be and is rejected. For the reasons stated above, we have no hesitation in rejecting the defence version as untrue and improbable and consequently the argument that the accused might have acted in exercise of the right of self-defence too has to be and is rejected. ( 18 ) THE other contention advanced by Sri Ethirajulu Naidu is that the evidence on record is too meagre and artificial to accept that the accused had formed themselves into an unlawful assembly with the common objects alleged and on the other hand it shows that there was a free fight between some members of both the parties and to substantiate the submission he relied upon the evidence of PWs. 9 12 and 21, and this is what they have stated : it was argued that the feelings between the two parties were running high since long and something must have sparked off on that day resulting in a free fight between the two parties and it is too much to believe that some of the accused were waiting armed with weapons near the thatched shed of A8 to attack Karigowda or Nathegowda (PW. 44) whom they could have easily seen even from a distance and avoided going near them, and that being the case neither S. 34 of IPC nor S. 149 of IPC can be called in aid to convict the accused even if some overt acts are proved to have been committed by some of them. ( 19 ) WE find it difficult to accept the contention that there was a free fight from the beginning. Neither the evidence relied upon by Sri Ethirajulu naidu nor the judgment of the learned Sessions Judge, in our opinion, furnishes any basis for it. Indeed, the ultimate finding of the learned sessions Judge, is to the contrary though at some places he has used the expression free fight and PWs. 9 and 12 are not eye witnesses to the occurrence and their evidence cannot be taken at its face value and even what PW. 21 who is stated to be an eye witness has stated is that the neighbouring villagers did not intervene and separate the two rival groups. But that is different from saying that there was a pitched battle or a free fight from the beginning between the two parties. 21 who is stated to be an eye witness has stated is that the neighbouring villagers did not intervene and separate the two rival groups. But that is different from saying that there was a pitched battle or a free fight from the beginning between the two parties. If really there was a free fight as contended, we fail to understand why such a version was not put forward. Indeed as against the version contained in ex. P39 the alternative version put forward by the defence was the one contained in Ex. D24. Even when examined under S. 342 Crpc none of the accused has stated that there was a free fight from the beginning. There is therefore no foundation for the contention that there was a free fight to start with and that Karigowda and Chikkabommegowda died in that fight. What can be spelt out from the evidence on record is that after Karigowda was attacked and killed some members belonging to both the groups started moving from different directions towards the scene of occurrence pelting stones and attacking each other in whatever manner it was possible for them and we will presently consider the effect of that evidence for what it is worth. ( 20 ) IT was then contended by Sri Shamanna that even if the defence version is rejected the burden is still on the prosecution to prove the charges levelled against the accused persons by adducing sufficient and convincing evidence and such evidence is wanting in the present case. It was submitted that the witnesses to the alleged occurrence are admittedly the enemies of the accused and from what they have stated it ia manifest that they have no regard for truth and independent witnesses like Thammanna and Sidda are not examined and in these circumstances it is hazardous to accept the evidence given by such partisan witnesses. Pointing out the omissions in their evidence to which we have already adverted he submitted that it is difficult to say that the occurrence took place in the manner spoken to by them and there is nc basis for the motive suggested to A1 in Ex. P39 because hardly there is any acceptable evidence to show that Al had constructed any shed at Gandhal and the same was ordered to be demolished and PW. 44 and his followers were responsible for taking such action. P39 because hardly there is any acceptable evidence to show that Al had constructed any shed at Gandhal and the same was ordered to be demolished and PW. 44 and his followers were responsible for taking such action. It was urged that the evidence of the witnesses who claim to have seen the alleged occurrence wholly or partly being weak, discrepant and full of exaggerations deserves to be rejected. ( 21 ) ON the other hand, it was contended by the learned Advocate General that it is neither sound nor proper to reject the evidence tendered by the prosecution on the ground that it is of partisan character and such approach is never countenanced and in a faction ridden village it is difficult if not impossible to get independent evidence in proof of the crime and it is only where truth and falsehood are inextricably mixed up polluting the evidence beyond refinement there is justification for rejecting the evidence and the maxim falsus in uno jalsus in omnibus cannot blindly be invoked in appraising the evidence for one hardly comes across a case where witnesses depose without resorting to exaggerations, embellishments and padding up even while supporting a true case. It was submitted that the investigation conducted in this case by the CPI PW. 45 if no1 deliberately perfunctory was undoubtedly half-hearted from the begin ning and therefore such omissions are bound to be there and in such circumstances \the evidence tendered in Court requires to be judged indepen dently keeping in view that the earlier statements of witnesses recorded during the investigation should not have as great a value as they would otherwise have in weighing all the material on record and while making this submission the learned Advocate General invited our attention to the following observation in Baladin v. State of 17. P. AIR. 1956 SC. 187. Hence, the record made by a Police Investigation Officer has to be considered by the Court only with a view to weighing the evidence actually adduced in Court. P. AIR. 1956 SC. 187. Hence, the record made by a Police Investigation Officer has to be considered by the Court only with a view to weighing the evidence actually adduced in Court. If the police record becomes suspect or unreliable, as in the present case, on the ground that it was deliberately perfunctory or dishonest, it loses much of its value and the court in judging the case of a particular accused has to weigh the evidence given against him in Court keeping in view the fact that the earlier statements of witnesses as recorded by the police is tainted record and has not as great a value as it otherwise would have in weighing all the material on the record as against each individual accused. ( 22 ) THEN it was submitted by Sri B. K. Ramachandra Eao that the omissions and improvements pointed out by the defence in the evidence of the prosecution witnesses cannot in the eye of law be regarded as contradictions end on that ground their evidence cannot become infirm or tainted so as to De rejected. Elaborating the submission what he said was that if there is already material to show that the accused were members of an unlawful assembly and committed the offence in prosecution of the common object of that unlawful assembly the absence of other details" either in the first information report or in the statements of witnesses made before the investigation officer such as who among the accused was instigating and who among them caused the injuries and on what parts of the body etc, would not make the evidence given in Court with those details not trustworthy and in Ex. P39 which came into existence within a short time after the occurrence and which is proved through PW. 44 the substratum of the prosecution case in set out. ( 23 ) A number of authorities were cited before us by both sides to show how the evidence of partisan witnesses should be approached and what value should be attached to it in a case like this. 44 the substratum of the prosecution case in set out. ( 23 ) A number of authorities were cited before us by both sides to show how the evidence of partisan witnesses should be approached and what value should be attached to it in a case like this. But, we do not feel inclined to refer to them all because the ultimate decision of this case like that of every other criminal case depends upon its own facts and the intrinsic worth of the evidence adduced in it rather than what is said about the evidence of witnesses in other deci,ded cases in the context of the facts of those cases, and in this connection the following observations of the Supreme Court in Charan Singh v. State of Punjab AIR, 1975 SC. 246, 256. are apposite: the question of credibility of a witness has primarily to be decided by referring to his evidence and finding out as to how the witness has fared in cross-examination and what impression is created by his evidence taken in the context of the other facts of the case. Criminal cases cannot be put in a straight jacket. Though there may be similarity between the facts of some cases, there would always be shades of difference and quite often that difference may prove to be crucial. The same can also be said about the evidence adduced in one case and that produced in another. Decided cases can be of help if there be a question of law like the admissibility of evidence. Likewise, decided cases can be of help if the question be about the applicability of some general rule of evidence, e. g. , the weight to be attached to the evidence of an accomplice. This apart, reference to decided cases hardly seems apposite when the question before the Court is whether the evidence of 3 particular witness should or should not be accepted. ( 24 ) HOW the evidence tendered in a criminal case through witnesses who are out-and-out partisans should be approached is now well settled, and while dealing with the evidence of such witnesses in Masalti v. State of U. P. AIR. 1965 SC. ( 24 ) HOW the evidence tendered in a criminal case through witnesses who are out-and-out partisans should be approached is now well settled, and while dealing with the evidence of such witnesses in Masalti v. State of U. P. AIR. 1965 SC. 202, 209, gajendragadkar, CJ speaking for the Court said thus : there is no doubt that when a Criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing where there are discrepancies in the evidence, whether or not the evidence strikes the Court as genuine, whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, Criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how such evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct. ( 25 ) IN Ranbir v. State of Punjab AIR. 1973 SC. 1409 while further explaining as to how the evidence of partisan witnesses in a criminal case especially when it is found to be discrepant and exaggerated should be approached, this is what the Supreme Court said : no doubt, in cases of party factions, there is generally speaking a tendency on the part of the prosecution witnesses to implicate some innocent persons also along with the guilty ones but normally where the general substratum of the occurrence cannot be held to anouse any reasonable doubt or suspicion about its having taken place, then the prosecution witnesses, provided they are held to have witnessed the occurrence and to be in a position to identify the assailants, are ordinarily not to be assumed to have left out the actual offenders or the guilty persons. Although the witnesses for the prosecution are in such circumstances prone to exaggerate the culpability of the actual assailant as also to extend the participation in the occurrence to some possible mnocent members of the opposite party as well, the Court has to sift the evidence and after a close scrutiny with anxious care and caution try to come to a judicial conclusion as to who out of the accused persons can be safely considered to have taken part in the assault. As pointed out in Deep Chand v. State of Hariyana (1969-3 scc 890), the maxim falsvs in uno falsvs in omnibus is not a sound rule to apply in the conditions in this country and therefore it is the duty of the Coort in cases where a witness has been found to have given unreliable evidence in regard to certain particulars, to scrutinise the rest of his evidence with care and caution. If the remaining evidence is trustworthy and the substratum of the prosecution case remains intact, then the Court should uphold the prosecution case to the extent it is considered safe and trustworthy. ( 26 ) WE shall now proceed to examine the evidence given by the said witnesses viz, PWs. 10 21 22 31 32 35 40 41 42 and 44 in the light of what we have stated above. It may at the outset be stated that the evidence of PWs. 10 22 31 32 35 40 and 42 is not assuring enough and cannot be accepted against any of the accused. ( 27 ) THERE appears to be no cogent ground as to why the evidence given by them (PWs. 21, 41 and 44) regarding the complicity of A1 to a6, A9, A10 and A13 be not accepted. It is no doubt true, as pointed out by Sri Shamanna, that these witnesses and the deceased Karigowda and chikkabommegcwda beonged to one group and there is ill-feeling between them and the accused. But that fact, in our opinion, would only make the Court scrutinise their evidence more closely. It is no doubt true, as pointed out by Sri Shamanna, that these witnesses and the deceased Karigowda and chikkabommegcwda beonged to one group and there is ill-feeling between them and the accused. But that fact, in our opinion, would only make the Court scrutinise their evidence more closely. If their evidence can stand that test as it does in the present case as against the aforementioned accused, there is no reason why it should not be acted upon, and the mechanical rejection of the evidence solely on the ground it is of partisan character is not sound and such rejection undoubtedly leads to failure of justice. The complaint Ex. P39 is lodged within a few hours after the occurrence and the names of all the said accused and the nature of the weapons carried by them and how they attacked Karigowda and chikkabommegowda are mentioned in it. PWs. 21, 41 and 44 are related to the two deceased, and indeed PW. 44 is no other than the brother of the deceased Karigcwda, and it is difficult to believe that they would have spared the real assailants and falsely mentioned the names of innocent persons as having caused the injuries to them, and, in our opinion, there was hardly any time for FW. 44 who lodged the complaint to spin out a false story within that short time. There is also no merit in the argument that the non-examination of the independent witnesses viz, Sidda and Thammanna should render the evidence of PWs. 21, 41 and 44 reasonably suspicious and consequently not worthy of acceptance The prosecution has examined PWs. 21, 41, and 44 whose evidence was necessary for unfolding its case, and we do not think it was necessary for the prosecution to examine both Sidda and Thammanna or either of them. There is nothing on record to show that Sidda was an independent witness. It is common knowledge that in a faction ridden village witnesses who may be called independent would be reluctant to come forward to give evidence and the reason for it may be more than one, and there is nothing on record to show or suggest that the production of Sidda and Thammanna was withheld by the prosecution with any oblique motive. ( 28 ) IT was pointed out by the learned Counsel for the accused that there are some discrepancies in the evidence given by PWs. 21, 41 and 44 regarding the number of blows dealt by Al and A3 on Karigowda and that those discrepancies are sufficient to generate suspicion in the truth of their version. It is no doubt true that PW. 44 has stated that Al and A3 both pierced the spear into the neck and back of Karigowda whereas what PWs. 21 and 41 have stated is that Al pierced the spear on the back of Karigowda and a3 pierred the spear on the neck of Karigowda. But, in our opinion, these discrepancies can hardly be regarded as sufficient to render their version. or unworthv of acceptance. Such discrepancies occur even in the evidence of truthful witnesses, and in this connection the following observations in S. T. Shinde v. State of Maharashtra AIR, 1974 SC, 791, 794 are in point: these discrepancies pertain to the precise number of blows given by the assailant, the standing or lying posture of the victim at the time of the assault etc. Such discrepancies in matter of detail always occur even in the evidence of truthful witnesses. Such variations creep in because there are always natural differences in the faculties of different individuals in the matter of observation, perception and memorisation of details. They are hardly a ground for rejecting their evidence when there is consensus as to the substratum of the case. It is true that in Ex. 39 particulars regarding the nature of weapon held and the injury or injuries caused by each of the above accused are not mentioned. It is also true that the Investigating Officer has stated is his evidence that those particulars were not mentioned to him either. But, on those grounds, the evidence given by the said witnesses in Court regarding the weapon carried and used and the injury or injuries caused ty each of the said accused, cannot be viewed with suspicion and rejected. It appears to us that PW. But, on those grounds, the evidence given by the said witnesses in Court regarding the weapon carried and used and the injury or injuries caused ty each of the said accused, cannot be viewed with suspicion and rejected. It appears to us that PW. 44 must have got stunned because of the sudden occurrence in the course of which his own brother Karigowda and another a relation of his were killed and it might have taken some time for him to recover from that shock and to regain composure, and naturally therefore he might not have mentioned all those details while giving the complaint. The omission to mention those details even before the Investigation officer, even if true, cannot be regarded, in the circumstances of the case, as such a serious infirmity as to impair the credibility of the evidence given by them touching the complicity of the above accused. These are all matters of detail and the omission to mention them during the investigation in a case of this kind may at the most require their evidence to be scrutinised with greater care and circumspection. But, to hold that on that ground the substratum of the prosecution case is shaken and the evidence given by the said witnesses in Court is untrue, is to indulge in speculation. Having given our earnest consideration, it is not possible to think or hold that the evidence given by the said witnesses to the effect that A1 to A3 beat Karigowda with spears and A5 beat him with a club and caused injuries which undoubtedly led to his death and to which we have already referred and that A4 and A6 too participated in the occurrence by being present on the spot along with them armed with weapons, is not true. Their evidence clearly shows that A4 was present armed with a spear and he was instigating to kill Karigowda. True it is that the words uttered by him, according to each of the said witnesses, are slightly different. But these words convey the same meaning and substance, and therefore much cannot be made out of it, and in this connection, the following observation in Shivaji v. State of Maharashtra AIR. True it is that the words uttered by him, according to each of the said witnesses, are slightly different. But these words convey the same meaning and substance, and therefore much cannot be made out of it, and in this connection, the following observation in Shivaji v. State of Maharashtra AIR. 1973 SC, 2622 are apposite when scanning the evidence of the various witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there is the impress of truth and conformity to probability in the substantial fabric of testimony delivered. It is common knowledge that sometimes even intelligent witnesses placed in similar circumstances will not be in a position to reproduce the very words uttered by a person. What we have to see in whether the evidence given by them substantially represents the truth. As mentioned earlier in Ex P39 it is mentioned that A4 was also present among the other accused and it has come in evidence that he was armed with a spear and was actively participating in the occurrence by instigating some of the other accused. ( 29 ) WE are not impressed by the argument that the evidence of motive is meagre and that renders the prosecution evidence improbable. In our opinion there is sufficient evidence to show that the feelings between the the accused and the deceased were exteremely strained on account of the various disputes. The immediate cause for the occurrence was the order passed by PW. 1 Gangappa the Chief Executive Officer of the Taluk Development board just two days prior to the occurrence directing A8 to remove the shed put up by him with the help of A1 to A5. The evidence is that it was on the representation of some members belonging to the party of PW. 44 that action was taken in that regard and that order was passed. The remarks addressed by Al to Karigowda viz, immediately before he was assaulted, show that he was very much upses by the said order, and it is apparent that he took it as an insult to him wid was smarting under the supposed wrong done to him. It cannot therefore be said that there was no motive for the accused to commit the offences in question. It cannot therefore be said that there was no motive for the accused to commit the offences in question. Even otherwise, as pointed out by the Supreme Court in shivaji's case (9), proof of motive satisfied the judicial mind about the likelihood of the authorship but its absence only demands deeper forensic search and cannot undo the effect of evidence otherwise sufficient, and motives of men are often subjective, submerged and unamenable to easy proof that Courts have to go without clear evidence thereon if other clinching evidence exists. ( 30 ) AFTER reappraising and reassessing the entire evidence on record with necessary caution and circumspection, we have no hesitation in accepting the evidence tendered by PWs. 21, 41 and 44 implicating the aforementioned accused. The weapons employed, the parts chosen and the injuries caused by them on Karigowda and Chikkabommegowda leave no room for doubt that they did intend to cause the death of Karigowda and Chikkabommmegowda. In view of the above evidence, the convictions of Al to a6, A9, A10 and A13 under S. 148 of the IPC must be affirmed. Similarly the convictions of Al, A2, A3 and A5 under S. 302 r|w 34 IPC, for committing the murder of Karigowda and the convictions of A9, A10 and A13 under S. 302 r|w 34 IPC, for committing the murder of Chikkabommegowda and also the convictions of A4 and A6 under S. 302 r|w 149 of IPC for committing the murders of Karigowda and Chikkabommegowda must also be affirmed. It may not be out of place to mention here that it was open to the learned Sessions Judge to convict A4 and A6 too under S. 302 read with s. 34 of IPC though neither of them inflicted any blow on the deceased, because, as the evidence shows, the common intention shared by. the assailants of the deceased was shared by A4 and A6 also by being present on the spot armed with spears and by aiding and actively participating in the occurrence. The common intention referred to in S. 34 of IPC though presupposes a prior concert or prior meeting of minds, does not mean that there must be a long interval cf time between the formation of the common intention and the doing of the act. The common intention referred to in S. 34 of IPC though presupposes a prior concert or prior meeting of minds, does not mean that there must be a long interval cf time between the formation of the common intention and the doing of the act. In the instant case, the manner in which A4 and A6 acted by being present on the scene of offence when both Karigowda and Chikkabommegowda were killed, leaves no room for doubt that they shared the common intention mentioned above. The learned sessions Judge, since he was convicting them under S. 302 r w 149 appears to have acquitted them under S. 302 r/w 34 without indicating or assgnmg any reason and in our opinion the said acquittal does not attect the conviction under S. 302 r|w 149 of IPC. ( 31 ) WE, however, find considerable difficulty in affirming the convictions of A8 on the evidence of PWs. 21, 41 and 44. It is no doubt true that they have stated that he was also present on the scene of offence when Karigowda and Chikkabommegowda were done to death. But, regarding the weapon he was said to be carrying, there is no clear evidence. Nor is there convincing evidence to show that he took part in the occurrence by joining the other accused and beating Karigowda or Chikkabommegowda or both we find it difficult to accept the omnibus evidence given against him. Merely because he was prebent there it is difficult to think that he was a member of the unlawful assembly consisting of himself and the assailants of Kangowda and Chikkabommegowda or that he shared the common intention to kill them. The evidence is that his shed was close to the scene of occupence and it is quite likely he happened to be there by chance when the occurrence took place His presence at that moment may at the most throw some suspicion against him. But, suspicion or suspicious circumstances cannot relieve the prosecution of its primary duty of proving its case against an accused person beyond reasonable doubt. As pointed out by the Supreme Court in Data Sing v. State of Punjab AIR. 1974 SC. 1193. But, suspicion or suspicious circumstances cannot relieve the prosecution of its primary duty of proving its case against an accused person beyond reasonable doubt. As pointed out by the Supreme Court in Data Sing v. State of Punjab AIR. 1974 SC. 1193. the judicial process can only operate on the firm foundations of actual and credible evidence on record and courts of justice cannot be swayed by sentiment or prejudice against a person accused of the very reprehensible crime of patricide and they cannot even act on some conviction that an accused person has committed a crime unless his offence is proved by satisfactory evidence of it on record, and if the pieces of evidence on which the prosecution chooses to rest its case are so brittle that they crumble when subjected to close and critical examination so that the whele superstructure built on such insecure foundations collapses, proof of some incriminating circumstances which might have given support to merely defective evidence cannot avert a failure of the prosecution case. Therefore, to sustain grave charges of this kind, the evidence, must be cogent, clear and positive, and such evidence is wanting against A8. It is true as mentioned earlier that the immediate cause for the occurrence was the dispute which was going on in respect of the shed constructed by A8 with the assistance of A1 to a5. But that does not necessarily go to show that it was at his instance the attack on Karigowda was made. Human nature is so varied and complex thst no uniform standard can be laid down for judging as to how a person placed in similar circumstances would react. It is common knowledge that different people would re-act differently in similar circumstances. What might serve as a motive for one might not be so for another. As mentioned earlier, the evidence shows that it was with the supoort of Al to A5 that A8 had put up a shed which was ordered to be demolished just two or three days prior to the occurrence. Probably since then they were labouring under the impression that their prestige was at stake, and therefore, the possibility of their having attacked Karigowda who belonged to the other party on their own accord, cannot be ruled out. . It is evident that A8 has not dealt any blow either on Karigowda or on Chikkabommegowda. Probably since then they were labouring under the impression that their prestige was at stake, and therefore, the possibility of their having attacked Karigowda who belonged to the other party on their own accord, cannot be ruled out. . It is evident that A8 has not dealt any blow either on Karigowda or on Chikkabommegowda. There is no evidence that he said or did anything to prompt others to kill Karigowda and Chikkabommegowda. ( 32 ) THE proof required to fasten liability on a person either by applying the doctrine of vicarious liability embodied in S. 149 IPC or by applying the principle of constructive liability embodied in S. . 34 IPC for the acts committed by others must be clearer and stronger than what we find in this case. The evidence therefore being not free from reasonable doubt, A8 must necessarily be held to be not guilty of the offences he is convicted of. ( 33 ) THE evidence given by PWs. 2l, 41 and 44 as against A19 to A25 is still weaker. The CPI PW. 45 has stated that neither PW. 21 nor PW. 41 nor PW. 44 told him that the said accused were present at the scene of occurrence or participated in it in the manner spoken to by them in Court. The evidence of PW. 45 which is not challenged is that he recorded the statement of PW. 44 during both the inquests and as mentioned earler, his evidence shqws that PW. 44 at both inquests did not disclose the names of a19 to A25 at all then. Even in the complaint Ex. P39 we do not find their names, and PW. 44 has not offered any explanation as to why he did not disclose their names as at the time of giving the complaint. The learned Sessions Judge, it is obvious, has not given due weight and consideration to their (PWs. 21, 41, 44) omissions adverted to above. The importance of First Information Report, from the stand-point of the accused can hardly be over-estimated, and, any omission in the FIR which can be regarded as a material contradiction is a relevant factor to be taken into consideration while assessing the evidence given in Court by the person who lodged the FIR. PW. 44, on his own showing, has taken nearly 45 minutes to get the complaint Ex. PW. 44, on his own showing, has taken nearly 45 minutes to get the complaint Ex. P39 written, and it is not explained as to why he omitted to mention the names of A19 to A25 in it. In view of the same, it is difficult to hold that A19 to A25 were present on the scene of occurrence or participated in the occurrence in the manner spoken to by pws. 21, 41 and 44 in Court. The fact that some injuries were found on the person of A24 and A25 would not necessarily lead to the inference that they were present or participated in the incident in the manner alleged. The prosecution evidence itself shows that some time after Karigowda was done to death persons belonging to both the groups started hurling stones and attacking each other, and it is possible that in that melee they and some others sustained injuries, and it is human experience that sometimes even innocent persons who get mixed up accidently suffer in that way. Therefore, the fact that thero were some injuries on their persons cannot be made much of Even the other witnesses viz, PWs. 10 33 31 32 35 40 and 42 whose evidence we have considered and rejected, have not given a consistent version regarding the presence and participation of A19 to A25. Indeed, some of them, as can be seen from the evidence of the CPI PW. 45 to which we have already referred, have not spoken to the presence or participation of some or all of the said accused. Except this, there is no other evidence. In this state of evidence, we think it is hazardous to find a10 to A25 guilty of the offences they are convicted of. The learned Sessions Judge has not relied upon the recovery evidence or the evidence of abscondence, and in our opinion rightly too. Even the learned Counsel who appeared for the State did not press it into service before us. ( 34 ) IN the view we take, A8 All A12 A 14 A16 to A25 have to be found not guilty of the offences they are convicted of, and consequently they have to be acquitted of all the charges. Even the learned Counsel who appeared for the State did not press it into service before us. ( 34 ) IN the view we take, A8 All A12 A 14 A16 to A25 have to be found not guilty of the offences they are convicted of, and consequently they have to be acquitted of all the charges. ( 35 ) NOW the next question that arises for consideration is whether the sentence of death imposed on A1 A2 A3 A5 A9 A10 and A13 is appropriate or deserved and while imposing the sentence of death on each of them this is what the learned Sessions Judge has said there was absolutely no provocation whatsoever during the incident. They have committed the murders only to wreak vengence, as Rariyappa was the brother of PW. 40 Nathegowda who is the ringleader of one group and as Chikkabommegowda was his relation and as he intended to go to the rescue of Kariyappa (Karigowda ). The weapons used and the injuries caused clearly go to show that the attack was dastardly and the murders are cold blooded. NO leniency need be shown on the ground that the village is faction ridden and that there was enmity between the two rival groups. Therefore, this is undoubtedly a fit case for capital punishment. " in dealing with this question which often comes up for consideration, it is relevant to note the change the law on this subject has undergone from time to time. Before Criminal Amendment Act 26 of 1955, for the offence of murder, death sentence was the rule and transportation for life an exception and if the lesser penalty was to be awarded, then sub-sec (5) of 23. 367 Crpc required reasons to be given. By Act 26 of 1955, this sub-sec (5) was recast and the requirement of giving reasons for the lessor punishment was done away with thus giving the Court a discretion to award either of the two penalties prescribed under S. 302 of IPC. After the crlpc, 1973, came into force, the position is the reverse of what it was before the Amendment of 1955, and it is now obligatory to give reasons if the death sentence is inflicted. After the crlpc, 1973, came into force, the position is the reverse of what it was before the Amendment of 1955, and it is now obligatory to give reasons if the death sentence is inflicted. Whether a case merits less severe of the two penalities prescribed for the murder, depends upon the circumstances of each case, and in deciding that question, as pointed out by the Supreme court in Francis v. State of Kerala AIR. 1974 SC. 2z81. the history of relations between the parties concerned, the background, the context or the factual setting of the crime, and the strength and the nature of motive operating in the mind of the offender are relevant considerations and the state of feelings and mind produced by these, while insufficient to bring in an exception, may suffice to make the less severe sentence more appropriate. In that case, though it was found that the murder was pre-planned and deliberate, the Supreme Court commuted the sentence of death to one of imprisonment for life, and in doing so, this is what it said : in Ediga Anama v. State of Andhra Pradesh (Crl. A. 67/72, dt. ll-2-74= air 1974 SC 799 ), this Court had dealt with a case of a premeditated and cleverly planned murder by a young man whose mind had become filled with frenzy and irrational jealousy because of rivalry between her and the murdered woman for the affections of an illicit lover or paramour. Her sentence for murder was reduced from death to life imprisonment. If that was done in that case, the motives of the appellant Francis before us who decided in his obviously alar med and frenzied state of mind to do away with someone who appeared to him to be a standing menace to the lives and limbs of his near and dear ones could not be said to be more reprehensible. Nor could his in flamed feelings be less worthy of consideration in pronouncing upon the question of sentence. It is not enough, for deciding such a question to find that facts of the case indicated deliberation or premeditation before the offence although this is quite important. It is true that the attack upon the appellant's brother-in-law had taken place on the previous night on 23rd Dear at about 10 pm. whereas the murder was committed at about 3-30- p. m. on 24th Dear. It is true that the attack upon the appellant's brother-in-law had taken place on the previous night on 23rd Dear at about 10 pm. whereas the murder was committed at about 3-30- p. m. on 24th Dear. Nevertheless, even the period of time which had elapsed between the two incidents was not so lengthy as to enable us to say that the effect of the provocation given by the previous night's occurrence, in the background of another similar occurrence, and the feelings of fear or alarm it must have engendered, so as to disturb the mind of a person in the position of the appellant, must have evaporated before the murder was committed. These may have become even intensified by brooding over or talking and thinking about the incidents. No doubt the appellant was about 30 years in age but that is not a guarantee against the disturbance of mind which could be produced by the kind of attacks which had previously taken place on his elder brother and his brother-in- law. Although the previous incidents could not constitute sufficient provocation to reduce the crime of murder to one of culpable homicide not amounting to murder, yet we think that the context of the crime justified the imposition of a lesser penalty than that given in this case. in dealing with a similar question in E. Anamma v. State of AP. AIR 1974 SC, 799 this is what the Supreme Court said : ( 36 ) LET us crystalise the positive indicators against death sentence under Indian Law currently. Where the murderer is too young or too old, the clemency of penal justice helps him. Where the offender suffers from socio-economic, psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime into a lesser one, judicial commutation is permissible. Other general social presures, warranting judicial notice, with an extenuating impact may, in special cases, induce the lesser penalty. Extraordinary features in the judicial process, such as that the death sentence has hung over the head of the culprit excruciatingly long, may persuade the Court to be compassionate. Other general social presures, warranting judicial notice, with an extenuating impact may, in special cases, induce the lesser penalty. Extraordinary features in the judicial process, such as that the death sentence has hung over the head of the culprit excruciatingly long, may persuade the Court to be compassionate. Likewise, if others involved in the crime and similarly situated have received the benefit of life imprisonment or if the offence is only constructive being under S. 302 read with S. 149 or again the accused has acted suddenly under another's instigation, without premeditation perhaps the court may humanely opt for life, even like where a just cause or real suspicion of wifely infidelity pushed the criminal into the crime. On the other hand, the weapons used and the manner of their use, the horrendous features of the crime and helpless state of the victim, and the like, steel the heart of the law for a sterner sentence. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. A legal policy on life or death cannot be left for ad hoc mood or indi- vidual predilection and so we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accepting the trend against the extreme and irrevocable penalty of putting out life. Now, we have to see whether circumstances exist in this case to commute the sentence of death imposed upon each of the said accused to one of imprisonment for life. ( 37 ) IT is undisputed that A1 and A2 are fairly advanced in age. A1 has given his age as 74 years and A2 has given his age as 70 years when they were examined by the learned Sessions Judge under S. 342 Crpc on 15-7-74, and there appears to be no dispute regarding their age. It appears to us that the order passed by the Chief Executive Officer directing the demolition of the shed constructed by A8 in the Gramathana with support of Al and his brothers had not only upset Al, but also A2 to A5. It appears they were labouring under the impression that the deceased and others belonging to their group were responsible for the same and were smarting under the supposed wrong done to them. It appears they were labouring under the impression that the deceased and others belonging to their group were responsible for the same and were smarting under the supposed wrong done to them. Similarly, it appears to us that there were also other reasons for being provoked and upset and indeed this is what PW. 12 has stated : a7 said that the other party members had become more powerful and that they were suffering in their own way and that I would not understand it. " therefore, it appears to us that they were in a state of mental imbalance or were in the grips of imotional stress at the time the offences are said to have been committed by them. Further, the evidence shows that the assault on Chikkabommegowda by A9, A10 and A13 was done on the instigation of A4 without any pre-meditation. Even A2, A3 and A5 appear to have acted on the instigation of A4 and Al. But the learned Sessions judge has given him the benefit of life imprisonment though he (A4) has played a more prominent part than others. Therefore, taking into consideration the state of their minds immediately before and at the time of the commission of offence, the old age of Al and A2, the fact that A2, a3, A5, A9, A10 and A13 have acted under the instigation of others, the fact that A4 who was similarly involved in the crime has received the lesser of the two sentences prescribed for murder, and the offence is only constructive being under S. 302 r/w 34 or S. 302 r/w 149 of IPC, we feel that it is sufficient to meet the ends of justice to commute the sentence of death imposed upon each of the said accused (Al A2 A3 A5 A9 A10 and a13) to one of imprisonment for life. Consequently, the reference made by the learned Sessions Judge for confirmation of death sentences has to be rejected. Consequently, the reference made by the learned Sessions Judge for confirmation of death sentences has to be rejected. ( 38 ) IN the result, for the reasons stated above, we allow this appeal in bart we confirm the convictions of Al G. S. Basavegowda A2 G. S. Channegowda, a3 G. S. Puttaswamy, A5 Patel Javaregowda, A9 Kullaiah, a10 Jakka and A13 G. B. Bommaiah alias Meece Bommaiah under S. 302 read with S. 34 of IPC but we set aside the sentence of death imposed on each of them and instead we sentence each of them to suffer imprisonment for life and we also confirm the convictions and sentences passed on them under S. 148 of IPC; we confirm the convictions and sentences passed on a4 and A6 under Ss. 148 of IPC and 302 r/w 149 of IPC and we direct the sentences passed on them (Al to A6 A9 A10 and A13) to run concurrently; we set aside the convictions and sentences passed on Al to A6 A9 A10 and a13 under Ss. 326 r/w 34, 326 r|w 143, 324 r|w 34 and 324 rlw 149 of IPC; and we set aside the convictions and sentences passed on A8 All A12 a14 A16 to A25 and acquit them of all the charges and direct them to be set at liberty forthwith. Criminal Referred Case 53/74 is rejected. --- *** --- .