NESARGI, J. ( 1 ) IN all 8 accused persons were arraigned in Sessions Case No. 78 of 1974 on the file of the I Addl Sessions Judge, Belgaum. The Appellants in criminal Appeal No. 462 of 1974 are A3, A6 and A8 and the appellants in Criminal Appeal No. 463 of 1974 are A4 and A5 from amongst them. The rest of the accused have been acquitted. ( 2 ) ALL the 8 accused were charged with having committed offences punishable under S. 302 IPC. , read with S. 149 IPC. , in regard to the murder of Dilawar Mulla and S. 307 IPC, read with S. 149 IPC, in regard to attempt to commit the murder of Maktumhusein, PW. 9, father of dilwar. A1 and A2 had also been charged with having comitted an offence punishable under S. 120b of the IPC. The charge under S. 147 IPC was levelled against all the accused. ( 3 ) A1, A2 and A7 have been acquitted of all the charges. A3 to A6 a8 viz;, the appellants in the said two appeals have been acquitted of the offence under S. 302 IPC, read with S. 149 IPC. They have been convicted for having committed an offence punishable under S. 307 IPC, read with S. 149 IPC. Out" of these appellants, A4 only has been sentenced to undergo imprisonment for life on the ground that he was the person who had shot at PW. 9. A3, A5, A6 and A8 have been sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 500 and in default to undergo rigorous imprisonment for one year. A3 to A6 and a8 have also been convicted under S. 147 of the IPC and sentenced to undergo rigorous imprisonment for one year. The substantive sentences are to run concurrently. The convictions and the sentences have been challenged in these appeals. There is no appeal by the State. ( 4 ) A2 and A3 are brothers. Al is the son of A2. A3 is the son of A3. A4 to A7 are said to be the friends of Al to A3 and A8. The case of the prosecution is that there was ill-will between A2, A3 and their people on the one hand and PW. 9 Muktumhusein, his son the deceased Dilawar and PW. 12 Meerasab the son-in-law of PW. A3 is the son of A3. A4 to A7 are said to be the friends of Al to A3 and A8. The case of the prosecution is that there was ill-will between A2, A3 and their people on the one hand and PW. 9 Muktumhusein, his son the deceased Dilawar and PW. 12 Meerasab the son-in-law of PW. 9 on the other. In view of this ill-will, according to the prosecution, A1 had been shot some time prior to 6-11-1973 and a Criminal Case was pending in that connection as against PW. 9, his son Dilawar and PW. 12, in the Court of the Judicial magistrate at Bailhongal. PW. 9, his son Dilawar and PW. 12 were in custody. IA. 2 an application for bail on their behalf was filed before the learned Magistrate and he, on 26-4-1973, enlarged these three persons on bail restricting their stay to Bailhongal and requring them to give attendance in the Bailhongal police station at 7-00 PM. every day. They accordingly came out on bail. Even when they were in custody, it is the case of the prosecution, that A4 and A5 had approached them with an offer that they would settle the dispute between them and A2 and A3, and in that connection PW. 9 had paid Rs. 2,000 to A4 and A5 as per their demand. On coming out of jail, they found that the dispute had not been settled by them and they were insisting upon A4 and A5 either to settle their dispute effectively or to return the sum of Rs. 2,000. A4 and A5 were, as per the case of the prosecution, attempting to secure more money from PW. 9. All these accused persons and PW. 9, Dilawar and pw. 12 belong to a village Dastikop situated some distance away from bailhongal. ( 5 ) BY about 5-30 PM. on 6-11-1973, a Tuesday, PW. 9, Dilawar and pw. 12 went to the police station at Bailhongal where PW. 14 Venkappa, bead Constable, was the Station House Officer, to report attendance as per the terms imposed on them while enlarging them on bail. PW. 14 told them that they were to report at 7 PM, and asked them to wait in the police station till 7 PM. 12 went to the police station at Bailhongal where PW. 14 Venkappa, bead Constable, was the Station House Officer, to report attendance as per the terms imposed on them while enlarging them on bail. PW. 14 told them that they were to report at 7 PM, and asked them to wait in the police station till 7 PM. They told him that they had better go and make arrangements for cooking their food and then return at 7 PM, and get their attendance marked. Then they left the police station and proceeded towards Laddi-Khoot in the main bazaar in Bailhongal. When they were in Laddi-Khoot they saw in front of them these accused persons except A7 standing in a row. PW. 9, on seeing A4 greeted him by saying 'namaskara Mava'. Then suddenly A1 shot at Dilawar and because of the pistol shot Dilawar fell down injured. Almost at the same time a4 shot at the back side of PW. 9 and PW. 9 sustained injuries. He also collapsed. The- remaining accused persons shouted that PW. 12 should not be left to go free and he should be finished. PW. 12 ran back and hid himself in an enclosed gutter. These accused persons chased him, but could not find him and hence went away. PW. 12 returned to the spot and found that Dilawar had expired and PW. 9 was bleeding haying sustained gun shot injuries. People who were on the streets and in the nearby shops collected. PW. 9 secured some cotton from a nearby shop, bandaged the wounds on PW. 9 and led him to the Katta of one bhavimani Sahukar nearby. He made PW. 9 rest there. In the meanwhile head Constable-1094 reached there and he arranged to take PW. 9 to the civil Hospital where PW. 1 Dr. Adivesh was the Medical Officer. Then pw. 12 ran to the police station, reached there by about 7 PM, and contacted pw. 14 the Station House Officer. He gave information to PW. 14 and PW. 14 got it reduced to writing by securing a Constable from the guard-room through the assistance of the only Constable PW. 6 who was with him. The information was recorded as per Ext. P17. PW. 14 registered a case and issued FIR. He sent express reports to the superior officers. He entrusted a copy of the FTR and Ext. P17 to PW. 6 who was with him. The information was recorded as per Ext. P17. PW. 14 registered a case and issued FIR. He sent express reports to the superior officers. He entrusted a copy of the FTR and Ext. P17 to PW. 6 for being produced before the Magistrate in Bailhongal. We may mention at this stage itself that PW. 6 delivered them to the Magistrate at 11-30 PM, as, according to him, the Magistrate was out of his house right from about 8-30 to 9 PM, till 11-30 PM, and he had to wait there. PW. 14 then took up investigation, went to the spot, arranged for watch over the spot and then proceeded to the Hospital, and thereafter went on moving between the spot, hospital and the police station. He detailed some members of his staff in search of the accused, but was not successful in securing them. PW. 17 Mallikarjunappa, the Circle Inspector of Police, took up investigation from PW. 14 at 10-30 PM. He enquired with PW. 9 in the police station and visited. the scene of offence and held inquest proceedings and continued investigation. It is in our opinion appropriate to narrate some important features of the investigation at this stage. PW. 17 got information on 1 25-11-1973 through the Sub-Inspector of Police, Bailhongal, that Al was an under trial prisoner in the sub-jail at Dharwar and that a2 had been admitted in a hospital in Dharwar. He made a request to the Magistrate at Bailhongal to write to the Judicial Magistrate First class, I Court, Dharwar, and secure Al from the sub-jail in Dharwar. We may state that the learned Magistrate took steps and ultimately secured Al from the sub-jail at Dharwar. PW. 17 was able to arrest A3, A5 and a6 on 17-12-1973, A7 on 16-3-1974, A4 on 21-12-1973, A8 on 28-5-1974, al on 12-1-1974, A2 on 5-3-1974. He completed the investigation and placed charge sheet against all the 8 accused. ( 6 ) AL, A2, A3 and A8 have admitted that there was ill-will between them and PW. 9, Dilawar and PW. 12 and their people. A4, A5, A6 and A7 have denied any connection with the two rival sets of people. All of them have denied all the incriminating circumstances levelled against them by the prosecution. ( 6 ) AL, A2, A3 and A8 have admitted that there was ill-will between them and PW. 9, Dilawar and PW. 12 and their people. A4, A5, A6 and A7 have denied any connection with the two rival sets of people. All of them have denied all the incriminating circumstances levelled against them by the prosecution. ( 7 ) IT does not admit of any dispute that it was in the evening on 6-11-1973 that Dilawar, son of PW. 9 Maktumhusein was shot and killed and PW. 9 Maktumhusein was shot and injured in Laddi-Khoot in the bazaar in Bailhongal. In that view of the matter, it is, in our opinion, unnecessary to scan the evidence adduced by the prosecution in proof of these facts. ( 8 ) THE only two eye witnesses examined in this case are PWs. 9 and 12. The only witness examined, in proof of the charge under S. 120b of the IPC, as against Al and A2 is PW. 4 Sadeppa. PW. 4 has turned hostile and has not supported the prosecution. The prosecution itself hap produced Ext. P. 13 which is the documentary evidence secured from the civil Hospital, Dharwar, and spoken to by PW. 3 Malati, staff nurse in the Civil Hospital at Dharwar. That makes out that A2 had got himself admitted in the Civil Hospital, Dharwar, as an in-patient on 5-11-1973 and was discharged on 14-11-1973. Similarly, the prosecution itself has produced Ext. P30 an extract of the Register maintained in the sub-jail, Dharwar, which is spoken to by PW. 17 the Circle Inspector of police and which by itself shows that one Babusab Kasimsab Mulla was sent to sub-jail by the Judicial Magistrate, First Class, First Court, dharwar, on 5-11-1973, and he was in jail even on 6-11-1973. We may make it clear at this stage itself that the prosecution itself has satisfactorily established that this Babusab Kasimsab Mulla mentioned in Ext. P30 is none other than A1 himself. 8 (a ). The learned I Addl Sessions Judge has acquitted A1 and A2 of all the charges, because of the non-supporting evidence of PW. 4 and the documents Extsp13 and P30. He has held that the say of PWs. 9 and 12, the eye witnesses to the extent it involves A1 and A2 cannot be held to be reliable. 8 (a ). The learned I Addl Sessions Judge has acquitted A1 and A2 of all the charges, because of the non-supporting evidence of PW. 4 and the documents Extsp13 and P30. He has held that the say of PWs. 9 and 12, the eye witnesses to the extent it involves A1 and A2 cannot be held to be reliable. He has acquitted A7 mainly on the ground that his name is not found either in Ext. P17 the first information or in the evidence of pws. 9 and 12. The prosecution has, as against A7, put forward that after A7 was arrested on 16-3-1974. he voluntarily made a statement as per Ext. P33 that he had kept hidden the country pistol in his house and took the investigating officer, police and the panchas and produced that country pistol marked as MO 20. That part of the evidence also has been disbelieved by the learned I Addl Sessions Judge. The learned I Addl sessions Judge, after having held that the prosecution had not satisfactorily established that A1 shot at Dilawar and caused his death and that a1 and A2 were present in Laddi-Khoot during the incident, concluded the present appellants could not be convicted for having committed an offence punishable under S. 302 read with S. 149 of the IPC. The State has, as already mentioned, not preferred any appeal against the orders of acquittal of the present appellants also even in regard to the charge under S. 302 IPC, read with S 149 IPC. But all the same and particularly in view of the strong arguments addressed by the learned Counsel appearing on behalf of the appellants that when PWs. 9 and 12 are found to be not reliable in regard to A1 and A2 their evidence as against these appellants also has to be discarded, it would be necessary to go into all the aspects pertaining to the evidence of PWs 9 and 12 to find out whether the view of the learned I Addl Sessions Judge that the evidence of pws. 9 and 12 in regard to involvement of A1 and A2 is unreliable is sound. ( 9 ) THE learned Advocate appearing on behalf of the appellants, contended that PW, 12 could not have been present with PW. 9 and 12 in regard to involvement of A1 and A2 is unreliable is sound. ( 9 ) THE learned Advocate appearing on behalf of the appellants, contended that PW, 12 could not have been present with PW. 9 and dilawar at the time of the incident and that can be easily seen from certain variances in the evidence of PWs. 9 and 12. The variances relied upon by them are of a minor nature. Stress was laid much on the fact that PW. 12 had sworn that A1 to A6 and A8 were standing in a row in front of them when A1 shot at Dilwar and therefore when A4 shot at PW. 9 the shot ought to have struck on the frontal aspect of the body of PW. 9 when in fact it is seen that the entrance wound is on the back side. This argument does not appeal to us, because if Dilawar had been shot at in the first instance, PW. 9 would not have remained rigid facing these assailants even when a shot was directed against him. He would have quite involuntarily turned to his side to see what had happened to Dilawar. Hence the finding of the entrance wound on the back of PW. 9 cannot be permitted to be made much of by the defence. We do not think it necessary to narrate the other minor variances pointed out by the learned defence Counsel in the versions of PWs. 9 and 12. In regard to the presence of PW. 12 with PW. 9 and Dilawar at the time of the incident, we find that there is clinching evidence produced by the prosecution. ( 10 ) PW. 14 Venkappa, the Head Constable has sworn that it was at 6-30 PM on that day that PWs. 9, 12 and Dilwar appeared in the police station to report attendance. PW. 12 must have gone to police station at that time, because he was also, as per the orders of the Judicial Magistrate, I Class, bailhongal, passed on IA. 2 in the said Criminal Case in which they had been charged with having attempted to commit the murder of A1, required to report attendance to the police station at 7 PM every day. Hence the evidence of PW. 14 becomes reliable and we see no reason to reject his evidence on this aspect. PW. 2 in the said Criminal Case in which they had been charged with having attempted to commit the murder of A1, required to report attendance to the police station at 7 PM every day. Hence the evidence of PW. 14 becomes reliable and we see no reason to reject his evidence on this aspect. PW. 14 has further on sworn that he told them to wait in the police station till 7 PM, as it was as at 7 PM he was required to record their attendance, but these people went away. PWs. 9 and 12 have sworn that they and Dilawar left the police station to arrange for their cooking before 7 PM and return to the police station at 7 PM and when they were in Laddi- Khoot the incident took place. It is hence clear that these three persons had appeared in the police station at 6-30 PM and then proceeded back on the street in the bazaar. The evidence of PW. 1 Dr. Adivesh, discloses that PW. 9 maktumhusein was produced before him at 7-05 PM and that day for treatment of the gun shot wound which was quite fresh and he treated him at 7-05 PM and at the time asked him as to who had shot him and PW. 9 told him that Mallappa Kallappa Kammar who is A4 had shot him. The evidence of PW. 1 is supported by the case sheet Ext. P5 recorded by him at that time. PW. 1 has stated that he wrote Ext. P5 and then on the basis of Ext. P5 he made entries in the Accident Register and Ext. P6 the wound certificate issued by him in regard to injuries on PW. 9 is the copy of certain entries in Ext. P5. The only relevant suggestion made to PW. 1 in his cross-examination is that he has in Ext. P5 inserted subsequently the history of the injuries to involve A4. PW. 1 has asserted that the suggestion is false, A look at Ext. P5 discloses that this particular portion cannot at all be characterised as a subsequent insertion, as it is at a natural place and written in a natural manner while writing the case sheet by PW. 1. There is no other material to make us doubt the evidence of PW. 1. Hence the prosecution has satisfactorily established that PW. P5 discloses that this particular portion cannot at all be characterised as a subsequent insertion, as it is at a natural place and written in a natural manner while writing the case sheet by PW. 1. There is no other material to make us doubt the evidence of PW. 1. Hence the prosecution has satisfactorily established that PW. 9 Maktumhusein had sustained injuries before 7-05 PM and was treated by PW. 1 in Bailhongal hospital at 7-05 PM and he, at that time, gave the name of A4 as his assailant. The inferences that flow from the above discussion are that PW. 9, Dilawar and PW. 12 left the police station by about 6-30 PM on that day and must have proceeded by the bazaar street. That shows that all of them must have been together when the incident took place. The learned defence Counsel vehemently argued that it is suspicious that the prosecution has not examined any independent witnesses viz, the persons from the nearby shops or the pedestrians who were on the street either to speak to the incident or to the presence of PW. 12 and that PW. 9 and PW. 12 being not only interested in the prosecution but also inimically disposed against the accused, particularly against A1, A2 and A8, it would be highly unsafe to place reliance on the evidence of PWs. 9 and 12. It is true that the prosecution could have conveniently examined independent witnesses who were undisputedly present in the nearby shops and some of whom must have been walking on the street. But it is apparent that these persons might not have been willing to support and involve themselves in this incident between the rivals, and hence the prosecution had to rely only on the evidence of pws. 9 and 12. The fact that PWs. 9 and 12 are deeply interested in the prosecution and are also inimically disposed against the accused persons and the further fact that independent witnesses were available but have not been examined goes to the extent of making the Court cautious, as prudence requires that under such circumstances the evidence of such witnesses viz, PWs. 9 and 12 ought to be scrutinised with great care and caution. If corroboration from absolutely reliable material to the crucial aspects of the evidence ot PWs. 9 and 12 ought to be scrutinised with great care and caution. If corroboration from absolutely reliable material to the crucial aspects of the evidence ot PWs. 9 and 12 is available and those crucial aspects can also speak to the intervening links in their version, then it will have to be held that the evidence of PWs. 9 and 12 is reliable. ( 11 ) PW. 14 has sworn that by about 7 PM on that day PW. 12 appeared in the police station and gave out the information contained in Ext. P17 we have already shown that because of the evidence of PW. 1, the prosecution has satisfactorily established that PW. 9 had by 7-05 PM on that day, told PW1 that A4 was the person who had shot him. In the history of the injuries on PW. 9 as contained in Ext. P5 and in the evidence of pw. 1, it is not found that PW. 9 had stated anything to PW. 1 as against the remaining accused. The learned defence Counsel made much of this fact and urged that if what has been narrated by PW. 12 as available in ext. P17 was already there in the mind of PW. 9 also, because the incident had happened in that manner, PW. 9 would have disclosed the whole version to PW. 1 and PW. 1 would have recorded that in the history of the injuries in Ext. P5. We are not impressed by this reasoning. PW. 1 has sworn that he asked PW. 9 as to who had shot at him and pw. 9 told him that A4 had shot at him. PW. 1 was never interested in rinding out how the incident had happened, because his job was to record the history of the injury observed by him on PW. 9 only. He asked PW. 9 to that limited extent and PW. 9 gave a reply to that limited question. Therefore the contention of the defence that the history of the injuries would have disclosed the whole of the incident if the incident had happened in that manner cannot stand. But by the same time that the whole of the incident is described by PW. 12 in Ext. P17 before PW. 14 is a very important circumstance if it can be held that it was exactly at about 7 PM on 6-11-1973 that Ext. But by the same time that the whole of the incident is described by PW. 12 in Ext. P17 before PW. 14 is a very important circumstance if it can be held that it was exactly at about 7 PM on 6-11-1973 that Ext. P17 was recorded. ( 12 ) THE learned defence Counsel urged that the fact that Ext. P17 reached the Magistrate at 11-35 PM, that is 4 hours after 7 PM leads to an interence that there was considerable delay in reaching Ext. P17 to the magistrate and that leads to a further inference that Ext. P17 must have come into existence later and not at 7 PM. We see that PW. 14 has sworn that it was at 7 PM that PW. 12 appeared in the police station and lodged information and then he secured a Constable from the Guard Room through PW. 6 the only Constable available with him, and that Constable recorded the information narrated by PW. 12 and that narration is Ext p. 17. It is plain to see that PW. 12 must have been in a very excited condition when he started blurting out the information he had in the police station. Some time must have necessarily elapsed to secure the scribe from the guard room. Some time must have necessarily elapsed to put the information given by PW. 12 in an understandable manner and record it in a coherent fashion as is seen in Ext. P17. Therefore the contention of the defence that Ext. P17 must have come into existence that is, completely recorded as available in Ext. P17 at 7 PM and therefore there is a delay of 4 hours before it reached the Magistrate is not on sound footing, the prosecution has examined PW. 6 to speak to the taking of Ext. P17 and the copy of the FIR, to the Magistrate at Bailhongal and he has not been cross-examined effectively on this aspect. He has sworn that he reached the house of the Magistrate by about 8-30 PM. He found the magistrate absent and he waited there till about 11-30 PM when the magistrate returned and then handed over Ext. P17 and the copy of the fir to the Magistrate. We are unable to see what is wrong with this evidence of PW. 6 and why it should be held to be suspect. He found the magistrate absent and he waited there till about 11-30 PM when the magistrate returned and then handed over Ext. P17 and the copy of the fir to the Magistrate. We are unable to see what is wrong with this evidence of PW. 6 and why it should be held to be suspect. Moreover in view of the circumstances that were existing in the police station as already described by us and in view of the fact that PW. 6 was the only constable that was available with PW. 14 at that time and further in view of the fact that PWs. 14 and 6 were the only two persons who had to move between the police station and the spot and the hospital and the police station in the initial stages, time of 4 hours that appears to have elapsed between the recording of Ext. P17 and reaching of it to the magistrate cannot be considered to be any delay in producing Ext. P17 before the Magistrate. There is the explanation given by PW. 6 that the Magistrate was not present in his house till 11-30 PM and we have already found that there are no grounds to reject the evidence of PW. 6 on this point . Hence, we do not agree with the contention of the learned defence Counsel that there has been any delay and much less inordinate delay in reaching Ext. P17 to the Magistrate at Bailhongal. Then it is clear that PW. 12 has narrated the whole story as contained in Ext. P17 at 7 PM. The distance between the police station and the spot is about two furlongs as is available in evidence. Some time must have elapsed i. e. , after PWs. 9, 12 and Dilawar left the police station and before they reached the spot. Even before 7 PM, PW. 9 and Dilawar have been shot and dilawar has died. Hence, it is manifest that the incident must have taken place round about 6-45 PM. It is excatly the time that was given by pws. 9 and 12 even at the earlier stage i. e. . within no time after the incident. All these facts and circumstances leave no doubt in our mind that PW. 12 was present with PW. 9 when they were shot in Laddi-Khoot and PW. 12 gave information as per Ext. P17 to PW. 9 and 12 even at the earlier stage i. e. . within no time after the incident. All these facts and circumstances leave no doubt in our mind that PW. 12 was present with PW. 9 when they were shot in Laddi-Khoot and PW. 12 gave information as per Ext. P17 to PW. 14 at 7 PM in bailhongal police station. ( 13 ) PERUSAL of Ext. P17 clearly depicts that the evidence of PWs. 9 and 12 is corroborated in all material particulars. The doubtful circumstances which the learned Counsel for the defence urged and which have been already discussed in one of the preceding paragraphs do not enure to the benefit of the accused, because we have found that they are no longer doubtful factors in their evidence. The name of A7 does not appear in ext. P17 and so also in the evidence of PWs. 9 and 12. But PWs. 9 and 12 have consistently right from the beginning i. e. , even 10 to 15 minutes after the incident till they were examined before the learned I Addl sessions Judge given out the version in the same manner in all material particulars against A1 to A6 and A8 and the learned defence Counsel have not been able to point out any such serious contradictions or variances in their evidence either before the learned I Addl Sessions Judge or at different stages. These facts and circumstances leave no doubt in our mind that PWs. 9 and 12 are wholly reliable witnesses. The faot that they have not involved A7 right from the beginning till they deposed before the learned I Addl Sessions Judge goes to the benefit of A7 and and the learned I Addl Sessions Judge was right in acquitting A7. The only question that the learned I Addl Sessions Judge could have considered was whether the prosecution had satisfactorily established the offence under S. 25 of the Arms Act as against A7 and the learned I Addl sessions Judge has addressed himself to that question and thought it fit to acquit A7 on that charge also. ( 14 ) HAVING found that PWs. 9 and 12 are wholly reliable witnesses, it is to be seen whether Exts. ( 14 ) HAVING found that PWs. 9 and 12 are wholly reliable witnesses, it is to be seen whether Exts. P13 and P30 enure to their benefit as found by the learned I Addl Sessions Judge, because it may be remembered that that is the basis of the reasoning of the learned 1 Addl Sessions judge to acquit A1 and A2. This takes us to the investigation done by pw. 15 Shivappa, the Sub Inspector of Police, and PW. 17 mallikarjunappa, the Circle Inspector of Police. PW. 15 has sworn that he was asked to arrest A2 and he apprehended A2 on 5-3-1974 and produced A2 before pw. 17. He has in his cross-examination stated that his investigation disclosed that A2 was an in-patient in the Civil Hospital, Dharwar from 5-11-1973 and he was discharged on 14-11-1973. This evidence of PW. 15 and Ext. P13 the relevant record from the Civil Hospital, Dharwar, were made use of by the defence to contend that A2 could not have been present during the incident, as he was an in-patient in Dharwar between 5-11-1973 and 14-11-1973 and that contention has found favour with the learned I Addl Sessions Judge. We are clearly of opinion that the learned i Addl Sessions Judge ought not to have relied upon the statement of pw15, elicited in his cross-examination that his investigation disclosed that a2 was an in-patient in Dharwar Civil Hospital between 5-11-1973 and 14-11-1973, because that statement is nothing but a conclusion arrived by PW. 15 on the basis of ithe material he had come across during his investigation. Conclusions of witnesses including police, are never legal evidence in any case. In view of this particular answer given by PW. 15 and in view of the fact that it is the prosecution which has produced Ext p13 and examined PW. 3 Malati, the staff nurse, in proof of Ext. P13, in spite of the case of the prosecution being that all the accused were guilty of the offences under Ss. 302 read with 149 and 307 read with 149, and 147 of the IPC, our curiosity was aroused and we found it necessary to look into the case diary maintained by the investigating officer PW. 15 to find out what kind of investigation he had made and what kind of material he had found and whether that material warranted the conclusion that PW. 15 to find out what kind of investigation he had made and what kind of material he had found and whether that material warranted the conclusion that PW. 15 has narrated in his cross-examination. We also perused the charge-sheet presented by the prosecution. We find from the chargesheet that CWs. 6 to 9 are witnesses cited from the Civil Hospital, dharwar. Out of them, CW. 7 is PW. 3 Malati. Shri M. S. Kulkarni, the learned Addl Public Prosecutor, who conducted the trial before the learned addl Sessions Judge, has, by his memo dt. 17-9-1973, given up CWs. 6, 8 and 9 as unnecessary. CWs. 6, 8 and 9, as seen from the case diary and as described in the relevant column of the charge-sheet, are members of the staff in the Civil Hospital, Dharwar. We perused the case diary to find out what they were supposed to state before the Court if they had been examined as witnesses; because they had been cited as CWs. 6, 8 and 9. The material that we have found has convinced us that they had been cited to establish that A2 was absent from the hospital between 6 and 9 PM and he could have taken part in the incident. So, what has been stated by PW. 15 in his cross-examination is nothing but a lie. It would not be proper to narrate what the material is, because it can be gathered only from the case diary and it does not form part of the evidence. This leaves no doubt in our mind that giving up of CWs. 6, 8 and 9, must have been at the instance of the investigating officers to favour A2. The Addl Public Prosecutor ought not to have given up these witnesses. Therefore, his bona fides is open to suspicion. It is in our opinion desirable that the concerned authorities enquire into this aspect and take suitable action. Now, in view of 'the fact that we have, for reasons already recorded, found that PWs. 9 and 12 are wholly reliable witnesses and their evidence that A1 and A2 were present and A1 shot at Dilawar, is reliable, it follows that A1 must have employed a method of his own, in regard to" which we have no material and we cannot even conjecture, to come out of the sub-jail at Dharwar, and take part in the incident pw. 17 has, in this connection, answered to the Court that he did not make any attempts to investigate whether A1 could have come out of the sub-jail so as to reach Bailhongal and take part in the incident. Why the investigating officer took it for granted that what was depicted in ext. P17 must be the truth, is not made available to the Court. It was the duty of PW. 17 to continue the investigation from that angle, find the circumstances and secure the material to enable the Court to arrive at a proper decision. It is rather strange that both A1 and A2 decided to go to Dharwar on 5-11-1973, A2 decided to get himself admitted as an in patient in the Civil Hospital, Dharwar, and A1 decided to surrender to the Court. Ext. P30 is the result of certain circumstances that had transpired. Those circumstances are that A1 was an accused on the file of the judicial Magistrate First Class, I Court, Dharwar, for an offence under s. 411 read with S. 34 IPC, for being in possession of stolen articles. That case was from Gadag. Al had not attended the Court on certain pre- vijous dates and hence his bail had been cancelled and he was to be arrested. He found it convenient to appear in Court on 5-11-1973, it is not known whether the case against him had been fixed on 5-11-1973 or not, surrendered to Court, thereby forcing the court to send him to the sub-jail. It is because of these circumstances that a1 was sent to sub-jail. These facts are put forward by the prosecution itself to show that it was a coincidence that A1 and A2 happened to go to Dharwar on 5-11-1973 and one was admitted in the Civil Hospital and one was taken to custody as under trial prisoner. But the facts are so strong as to convince us that it is made to appear that it is a coincidence while in fact it is not a coincidence. The learned I Additional Sessions judge ought to have looked at these facts from this angle, as suspicion in the mind of the Court ought to have been aroused in view of the peculiar nature of these facts as narrated and discussed by us. The learned I Additional Sessions judge ought to have looked at these facts from this angle, as suspicion in the mind of the Court ought to have been aroused in view of the peculiar nature of these facts as narrated and discussed by us. We are afraid that the learned I Addl Sessions Judge has approached these facts and circumstances in a mechanical manner and has arrived at the only conclusion possible if such an approach is made that PWs. 9 and 12 cannot be believed to the extent they involve Al and A2. Hence the contention of the learned Counsel for the defence that when PWs. 9 and 12 are found to have concocted the case against A1 and A2, it is not difficult to infer further that they must have concocted the whole of the case against the appellants also does not appeal to us. ( 15 ) WE have already pointed out in the preceding paragraph that the answer given by PW. 15 in his cross-examination that his investigation disclosed that A2 was an in-patient in the Civil Hospital, Dharwar, between 5-11-1973 and 14-11-1973 is a lie, and that CWs. 6, 8 and 9 appear to have been deliberately given up. The strong impression in our rnind is that the investigation in regard to this part of the case against a1 and A2 is not bona fide. The circumstances narrated and discussed by us in this behalf positively show that this part of the investigation is mala, fide. Similarly the circumstance that PW. 17 did not think it fit to investigate as to whether A1 could have managed to come out of the sub-jail and be in Bailhongal to take part in the incident and if so how he also sails in the same boat. There also we see positive indication of mala fide investigation. This conclusion only can explain as to why the prosecution took it on itself to examine PW. 3 and produced Exts. P13 and p30. Moreover the evidence of PW. 3 does not at all speak to the identity of A2 as Kasimsab mentioned in Ext. P3 which document shows that that Kasimsab was an in-palient admitted in the Civil Hospital, Dharwar, on 5-11-1973 and discharged from the hospital on 14-11-1973. 3 and produced Exts. P13 and p30. Moreover the evidence of PW. 3 does not at all speak to the identity of A2 as Kasimsab mentioned in Ext. P3 which document shows that that Kasimsab was an in-palient admitted in the Civil Hospital, Dharwar, on 5-11-1973 and discharged from the hospital on 14-11-1973. On the other hand she has specifically stated that she did not remember A2 having ever Leen present as an in-patient in the ward in the Civil Hospital during the said period. In that view of the matter, it must be held that in spite of the attempt made by the prosecution that A2 was that person who is mentioned in Ext. P13, the prosecution has failed to establish that fact and the learned Addl Sessions Judge has failed to notice this lacuna in the evidence, but has still held that A2 was an in-patient in the Civil hospital, Dharwar, during the relevant period. ( 16 ) EVEN on the basis of the conclusion that the prosecution had not established that A1 had shot Dilawar, it cannot, as is patent enough, follow that A3 to A6 and A8 ought to be acquitted of the charge under s. 302 read with S. 149 of the IPC. This patent error in the judgment of the Addl Sessions Judge, could not have been ordinarily over-looked by the Director of Procesutions Shri G. N. Sabhahit, Dist and Sessions Judge: ( 17 ) AS we strongly felt that this was a case where the State ought to have preferred an appeal against the orders of acquittal, we looked into the procedure that the State adopts while preferring appeals against acquittal. ' Two Directorates of Prosecutions have been established in this State. The area from which this case has come up pertains to the directorate at Dharwar wherein the Director of Public Prosecutions is the Dist and Sessions Judge Shri G. N. Sabhahit. Circulars are issued by the State in regard to the work and administration of the Directorates. The relevant clause in the Circular reads this :"2 (b ). The area from which this case has come up pertains to the directorate at Dharwar wherein the Director of Public Prosecutions is the Dist and Sessions Judge Shri G. N. Sabhahit. Circulars are issued by the State in regard to the work and administration of the Directorates. The relevant clause in the Circular reads this :"2 (b ). In every case in a Sessions Court ending in an acquittal or where there is conviction only for minor offences, the accused having been acquitted of more serious offences, the Public prosecutor should likewise within 15 days from the date of the judgment obtain certified copy of the judgment and forward the same to the director of Prosecutions, with his report indicating reasons for filing or not filing an appeal. If the Director of Prosecutions decides that an appeal should be preferred, he should obtain from the Public prosecutor the complete record of the case together with a Memorandum of grounds of appeal, within two weeks from the date of receipt of the copy of the judgment. (c) In either of the cases referred to in paras (a) and (b) supra, the Director of Prosecutions shall forward the relevant papers and the certified copy of the judgment along with his recommendation, to the State Government, in the Department of Law and parliamentary Affairs. "it is seen from the above that whenever a case ends in acquittal in the sessions Court or where there is a conviction only for a minor offence, the accused having been acquitted of more serious offences, the concerned Public Prosecutor has to forward to the Director of Prosecutions, the certified copy of the judgment within 15 days from the date of judgment. Thereafter the Director of Prosecutions is required to scrutinise the judgment by securing all the necessary materials from the Public prosecutor and express his opinion whether it is or not a case fit for filing an appeal against the acquittal. If he is of the opinion that it is a case for filing an appeal, he is required to collect all the other necessary papers from the concerned Public Prosecutor and forward all of them to the State Govt in the Dept of Law and Parliamentary Affairs. If he is of the opinion that it is a case for filing an appeal, he is required to collect all the other necessary papers from the concerned Public Prosecutor and forward all of them to the State Govt in the Dept of Law and Parliamentary Affairs. Then the State Govt after scrutinising the papers and if satisfied that it is a case fit for filing an appeal, direct the State Public Prosecutor to file an appeal. The learned State Public Prosecutor informed us after consulting the Dept of Law, that the State Govt had not received any papers in this case from the Director of Prosecutions, Dharwar, and, therefore, the State had no occasion to think whether an appeal against the acquittal of A1 and A2 and other accused ought to be filed or not and, hence, no appeal was filed. These facts show that the Director of Prosecutions viz, Sri G. N. Sabhahit had concluded that this was not a case fit for filing an appeal against the acquittal. The discussion that we have made in the preceding paragraph shows that such a conclusion has to be characterised as a cursory one. We are inclined to believe that the mala fides tound in the investigation made by the investigating officers in regard to involvement of Al and A2 appear to have permeated into the said Directorate also. But, we are constrained to take this serious view under the peculiar facts and circumstances that are available in this case. Working of the Directorate in such a manner is highly unsatisfactory as it has resulted in miscarriage of justice. As per the circulars, the Directors appear to be the sole arbiters in the decision whether an appeal against acquittal should be preferred or not. If they come to a conclusion that the case is not a fit one for appeal to the High Court, they need not communicate that conclusion to the State Govt thereby keeping the State govt in the dark. If they come to a conclusion that the case is not a fit one for appeal to the High Court, they need not communicate that conclusion to the State Govt thereby keeping the State govt in the dark. When such high responsibility is cast on the Directors and when the Director is from the cadre of the Dist and Sessions Judges, we expect the Directors to discharge this responsibility by exercising the powers vested in them in the manner expected of them, ( 18 ) THE only question that remains for consideration is the contention of the defence that the sentence of imprisonment for life passed on a4 is not based on sound reasoning, as the remaining appellants have been sentenced to undergo rigorous imprisonment for 7 years and to pay a tine of Rs. 500 and in default to undergo rigorous imprisonment for one year, for the same offence. We find much force in this contention. All the appellants have been found guilty of having committed an offence punishable under S. 307 read with S. 149 of the IPC. It is not the grievance of the State that the sentence passed on A3, A5, A6 and A8 is low as no appeal has been filed by the State. It is not the law that when S. 149 of the IPC comes into play, the sentence passed on a member of an unlawful assembly against whom overt act is proved, should be more severe than the one passed on the other members of the unlawful assembly. If all the appellants had been sentenced to imprisonment for life, then the sentence would have been quite in accordance with law. Now the sentence passed on A3, A5, A6 and A8 cannot be enhanced to imprisonment for life. Hence the sentence passed on A4 will have to be reduced to rigorous imprisonment for 7 years and a fine of Rs. 500 and in default rigorous imprisonment for one year. ( 19 ) IN view of the foregoing reasons, we dismiss these appeals, subject to the aforementioned modification in the sentence passed on A4- mallappa Kallappa Kammar. We direct that a copy of this judgment should be sent to the Sfate Govt in the Dept of Law, for taking such action as the Government may deem necessary. Send a copy to the concerned Director of Prosecutions. --- *** --- .