M. F. SALDANHA, J, J. ( 1 ) THE four accused who are the respondents to this appeal are residents of Hervi village and it was alleged that on the evening of 3-4-1992 at about 5 p. m. they were involved in a quarrel with deceased Narasaiah pursuant to which A-1 and A-3 assaulted him with Jambia on his abdomen, A-2 assaulted him with an axe on his head and A-4 assaulted him with Badige. The victim ultimately died on the following day and the accused stood charged with having committed an offence punishable under section 302 read with Section 34 of the IPC. The prosecution alleges that in the course of the incident the wife of the deceased eramma came there and fell on the person of her husband in order to save him and that she was assaulted by A-2 with the handle of the axe on her head and in respect of this assault, the accused were charged with having committed offences punishable under Section 324 read with Section 34 of the IPC. After the assault, the brother of the wife went to the Police who came there some time that night and took the injured Narasaiah to the local hospital but, since no doctor was available he had to be taken all the way to Raichur. Narasaiah was ultimately admitted in the hospital at about 3 a. m. and his condition was extremely bad. Despite medical treatment, his condition worsened and the doctors informed the Police about this and adviced them to record his dying declaration which came to be recorded on the morning of that day. The condition of Narasaiah ' worsened and he died shortly thereafter. The Police in the course of the investigation arrested the four accused and it is their case that these persons produced all the four weapons namely the two jambias, the axe and the stick which were recovered under panchanamas. The prosecution also alleges that the weapons that were recovered had bloodstains on them. On completion of the investigation, the accused were charge-sheeted and after committal were put on trial before the Court of Sessions at raichur. The learned Sessions Judge after an evaluation of the evidence adduced in this case came to the conclusion that the prosecution had failed to prove the charges and acquitted all the four accused. On completion of the investigation, the accused were charge-sheeted and after committal were put on trial before the Court of Sessions at raichur. The learned Sessions Judge after an evaluation of the evidence adduced in this case came to the conclusion that the prosecution had failed to prove the charges and acquitted all the four accused. It is against this order that the present appeal has been filed by the State of Karnataka. ( 2 ) THE learned Additional S. P. P. has submitted that this is an incident which took place on Ugadi day and that the same was in broad daylight in front of the temple in the village at a time when at least 25 to 30 persons had assembled there and he submitted that there is overwhelming evidence against the accused persons and that the grounds on which the Trial Court has discredited the evidence and ultimately rejected it are unsustainable. He has advanced the submission that the number of persons who had witnessed the incident and who have given evidence in this case are fully and completely supported by the medical evidence which would bear out the prosecution case that it was the accused who had been responsible for the death of narasaiah and the injury to Eramma. ( 3 ) THE learned Counsel has placed considerable reliance on the evidence of P. W. 1-Eranna who happens to be the brother of the deceased Narasaiah. This witness states that he had come to the temple at about 5 p. m. and that the entire incident commenced because of the insistance of his brother Narasaiah that he should be allowed to make some offerings first and that the other persons should wait. It appears from the record that the deceased Narasaiah used to move around in the village bare chested and that he also used to carry a Badige in his hand and that he was often intoxicated. There is also a suggestion put to the witnesses that the deceased was in the habit of committing petty thefts. In this background, it is only natural that he had incurred the hostility of many of the other residents. According to P. W. 1, it was A-2 who dealt the first blow with an axe which landed on the fore-head of the deceased. In this background, it is only natural that he had incurred the hostility of many of the other residents. According to P. W. 1, it was A-2 who dealt the first blow with an axe which landed on the fore-head of the deceased. It is obvious that this was not a full-blooded blow which landed directly on the head but in fact missed its target and only caused an injury on the forehead. A-1 was carrying two Jambias which he took out and retained one with himself and gave the other one to A-3. These two persons virtually ripped open the abdomen of the deceased on both sides as a result of which Narasaiah sustained two serious injuries which resulted in his intestines coming out; A-4 also took part in the assault. The witness knows the accused as they are all residents of the village and he has also referred to some earlier litigation between the two accused and himself. ( 4 ) IT is interesting to note that this witness states that the accused very clearly mentioned that his turn would come next and that it was for this reason that he ran away from that place. P. W. \ has been cross-examined at great length and we find that he has withstood the cross-examination and that nothing appreciable has emerged that could cast any doubt with regard to his evidence. The respondents' learned Counsel did draw our attention to what he termed as a very crucial piece of evidence namely the fact that P. W. 1 has stated that no other persons came there during the assault which is an obvious falsehood because he himself has earlier admitted that about 20 to 25 persons were there and furthermore that P. W. 1 does not indicate the presence of the wife of P. W. 4-Eramma or the assault on her. Learned Counsel submitted that the Court will have to seriously take note of the fact that P. W. 1 has admitted about the past litigation and the background of hostility between the parties and lastly the fact that the deceased was the real brother of P. W. 1. Learned Counsel submitted that the Court will have to seriously take note of the fact that P. W. 1 has admitted about the past litigation and the background of hostility between the parties and lastly the fact that the deceased was the real brother of P. W. 1. He submits that in this background if at all any incident took place on that evening, that P. W. 1 would have been the first person to run away from there and if that was the obvious position, that P. W. 1 could never have witnessed the incident or seen who exactly was responsible for the assault on the deceased. It was also pointed out by the learned Counsel that what is of some significance is the fact that P. W. 1 has sought to implicate the four accused persons who admittedly were hostile to him and the learned Counsel submits that on the totality of the background of this case, the learned Trial Judge was fully justified in having held that the presence of P. W. 1 at the time of the incident is rendered highly doubtful. ( 5 ) WHILE assessing the evidence of P. W. 1 it is necessary for us to bear in mind the fact that he has not denied the earlier litigation between him and the accused and he has also not denied the fact that when they threatened him, he ran away from that place. These admissions, in our considered view, have an air of truth around them and it is also clear to us that there was perfectly valid reason for P. W. 1 to have come to the temple on that evening since even the other villagers had come there to make their offerings. Also, the fact that the deceased was assaulted outside the temple is more than fully established from the evidence before us and in a small village, it leaves us with no doubt about the fact that had any other persons been the assailants, P. W. 1 and the other witnesses would have had no reason whatsoever for shielding those persons and falsely implicating the four accused. The most important aspect of the matter is that P. W. 1 has been rigorously cross-examined virtually for days together and it has emerged that he has not faulted in the least in the course of his evidence. The most important aspect of the matter is that P. W. 1 has been rigorously cross-examined virtually for days together and it has emerged that he has not faulted in the least in the course of his evidence. The reference to the admission made by him that no other persons had come there during the assault was obviously in relation to whether he had noticed any additional persons coming beyond those who were already there. Also, the incident was not of a long duration and P. W. 1 himself admits that he ran away from the place out of the instinct of self-preservation and we have no hesitation in accepting the position that he was very much on the scene when the incident took place which was why, he has described the incident and named the persons responsible for it. We need to observe that the respondents' learned Counsel did bring it to our notice that P. W. 1 has very specifically stated that the accused persons started hurling stones on him. It is pointed out to us that if stones were thrown at P. W. 1 that it would have been impossible for him to have escaped the sustaining of injuries. As far as this aspect of the matter goes, we have taken note of the fact that P. W. 1 himself has admitted that he ran away because the accused threatened to assault him and it is quite possible that seeing him running away from that place, that some stones may have been pelted at him. The stone throwing assumes some significance because the defence had advanced the argument that it was obvious that other persons such as Bheema and erappa had thrown stones which indicates their hostility towards P. W. 1 and deceased Narasaiah and in this background, it is submitted that any of these persons who shared the hostility could well have been the assailants. Again, we need to record that it is possible having regard to the conduct that was attributed to the deceased Narasaiah that the present accused were not the only persons who were hostile to him and to this extent it may be that the brothers of A-4 had occasion to throw some stones. We do not however feel that this aspect of the matter is of sufficient significance to be destructive of the otherwise credible evidence of P. W. 1. We do not however feel that this aspect of the matter is of sufficient significance to be destructive of the otherwise credible evidence of P. W. 1. What we have taken note of is the fact that it was P. W. 1 who proceeded in a tempo to the police Station and who lodged the complaint and in the F. I. R. , he has very clearly indicated the names of the four accused. This complaint was lodged at the earliest point of time and it is significant that the names of the four accused did find place in the complaint. It is in this background, that we are unable to uphold the grounds on which the learned Trial Judge had discarded the evidence of P. W. 1. ( 6 ) THE evidence of P. W. 1 is more than fully supported and corroborated by the evidence of P. W. 4-Eramma as also the deposition of P. W. 5 who is the wife of P. W. 1 and happens to be the sister of the deceased. There is one more eye-witness P. W. 6-Dyavamma who is the niece of deceased Narasaiah. We would prefer to consider the evidence of these three witnesses together because their version is more or less similar insofar as they were not present at the commencement of the incident but they state that their attention was drawn to the place because of the galata. P. W. 4 contends that on seeing her husband being assaulted with deadly weapons that she virtually fell across his body in an attempt to save him and that A-2 gave her a blow on the head with the handle of the axe. As far as these three witnesses are concerned, though they have been cross-examined at considerable length, nothing has emerged in the course of cross-examination which could neither destroy their evidence nor has any material been elicited by the defence on the basis of which any serious doubt could be caused with regard to their evidence. It is true that the learned Trial Judge has come to the conclusion that they reached the scene of offence much after the incident was completed and that therefore, they could not have witnessed it. It is true that the learned Trial Judge has come to the conclusion that they reached the scene of offence much after the incident was completed and that therefore, they could not have witnessed it. The respondents' learned Advocate submitted that if one were to recreate the incident it will be seen that narasaiah was assaulted by more than one person, the number of injuries is relatively small and that the incident could not have taken more than a very brief span of time. He points out that admittedly these witnesses were not present when the incident commenced and even assuming that they are telling the truth about their having left the field and come to that spot immediately, that everything they have deposed to is therefore on the basis of hearsay. In our considered view, these persons who are villagers would not have had the capacity if they have fabricated the evidence, to withstand the very detailed cross-examination but more importantly, there are two important reasons why their evidence cannot be discarded. The first of them is the fact that P. W. 4-Eramma has sustained an injury to her head in the course of the incident and the second one being that she has indicated both to the doctor and to the police at the earliest point of time the names of the assailants and who had caused the injuries. As against this, the respondents' learned Advocate pointed out that it was an important festival day and that the women folk would have been in their respective houses and not in the fields when the incident took place and secondly that the location of the temple is such that even if they came running to that spot on hearing the galata, that the incident would have been complete long before they reached there. As far as the first of these heads are concerned, we take note of the fact that the incident has happened in a village and that even if it was a festival day, apart from some few religious customs, that there is no reason why the women would not have gone to the fields to do their normal work and again, since the incident started with a quarrel it is very clear that there was enough time for the witnesses to reach the spot between the stage when the quarrel started and the last part of it when the deceased was assaulted. On a total scrutiny of the evidence of these three witnesses, we are unable to uphold the reasoning of the learned Trial Judge that their presence was doubtful because on the other hand, the evidence inspires sufficient confidence for a Court to not only accept it but place reliance on it. ( 7 ) THIS is a case in which there is one more piece of evidence which is of considerable consequence. The injured Narasaiah was taken to the hospital at Raichur and even though the injuries were relatively serious and his condition was bad, he was conscious and in a position to speak. He has disclosed the names of the assailants when he was asked for the history of assault. The concerned doctor has given evidence and he has pointed out that Narasaiah stated that he had been assaulted with knives. The learned Counsel who appears on behalf of the respondents was quick to point out to us that none of the witnesses referred to anybody using a knife and more importantly, that the medical evidence very clearly indicates that there were no knives used by any of the accused on that day. The submission was that if the accused had assaulted the deceased with Jambias as is the prosecution case and the version of the four eye-witnesses, that Narasaiah would never have made a mistake of this type. The submission was that if the accused had assaulted the deceased with Jambias as is the prosecution case and the version of the four eye-witnesses, that Narasaiah would never have made a mistake of this type. We do not consider this to be either a defect in the evidence or a contradiction because we have taken note of the fact that Narasaiah was in a precarious condition after the assault and having regard to the nature of the injuries and the amount of blood that he had lost because he had reached the hospital ten hours after the assault, he could hardly have been in a position to describe with total accuracy. Moreover, the evidence indicates that the first blow which he received was the axe blow on the head and after such an injury he could hardly have been expected to be able to carefully distinguish the exact type of weapon that was used when he was stabbed on the stomach. We do not therefore consider the reference to a knife to be something on the basis of which his evidence could be discarded. ( 8 ) AS indicated by us earlier, the dying declaration was recorded by the Tahsildar-P. W. 23 on the next morning at about 10. 30 a. m. The original document is on record and we find from it that it has been recorded in question and answer form in the manner in which it ought to have been done. Apart from the evidence of the Tahsildar-Bheema Rao, P. W. 23 we have the necessary certification that the deceased was at that point of time in a position to make a cogent statement. The dying declaration has been very strongly attacked by the learned counsel who represents the respondents because he submits that having regard to the fact that Narasaiah died in less than half-an-hour after making the statement is the strongest proof of the fact that his condition which must have been very bad when he reached the hospital having regard to the injuries was steadily going down and he was virtually on the verge of death when the dying declaration was recorded. Learned Counsel submits that he could hardly have been conscious and even it could be said so, that his faculties could not have been functioning having regard to how close he was to the end. Learned Counsel submits that he could hardly have been conscious and even it could be said so, that his faculties could not have been functioning having regard to how close he was to the end. Learned Counsel therefore submits that even if some signature has been appended stating that he was in a position to make a statement, that the Court should reject it outright because of the condition of Narasaiah at that stage. Unfortunately, there has been no such real challenge at the stage when the Tahsildar or the doctor gave evidence and this is not a matter in which the certificate given by the doctor can now be called into question. We do appreciate the fact that Narasaiah must have been in a bad condition but it is obvious that he was able to understand and answer questions because we are not prepared to believe that everything which P. W. 23 has taken down as the dying declaration is a fabrication. There is a possibility that even though Narasaiah did make a statement that very shortly after that he suddenly went into a stage of collapse and passed away but this would not be any ground on which in the absence of the defence having elicited the requisite material from the Tahsildar and the doctor, that we would be justified in finding fault with the dying declaration. This evidence is therefore acceptable and it more than fully lends support to the testimony of the other four eye-witnesses. ( 9 ) LASTLY, we need to observe that a careful scrutiny of the medical evidence in this case will indicate that the version of the assault namely the type of weapons used and the type of injuries inflicted and the parts of the body on which the injuries were inflicted which has emerged from Narasimhaiah himself, his wife, his brother, the brother's wife and Narasaiah's niece tends to indicate that whatever has been deposed to by the witnesses is fully borne out and stands established by the medical evidence. The nature of the injuries, the type of injuries and the areas where these injuries are inflicted all fully establish that the version putforward by the eye-witnesses is the correct one. The nature of the injuries, the type of injuries and the areas where these injuries are inflicted all fully establish that the version putforward by the eye-witnesses is the correct one. In addition to the medical evidence, there is also the evidence of recovery as far as the weapons are concerned and the defence has hardly been able to cast any doubt with regard to the recovery of the weapons. A further incriminating factor is the statement in the relevant panchanamas that when these weapons were recovered that they were bloodstained. It is true that there is no C. E. Report to establish as to whether it was human blood or not and furthermore to establish as to whether the blood group tallies with that of the deceased. But in the absence of these two factors, the recovery of the weapons alone and the fact that it was at the instance of the accused and that these weapons correspond to the ones referred to by the witnesses are all factors which would go heavily against the accused persons. ( 10 ) ON a totality of this material, we are of the view that the grounds on which the learned Trial Judge rejected the prosecution evidence are incorrect. The prosecution in this case has succeeded in establishing both the charges. The order of acquittal recorded in favour of the accused persons is therefore set aside. The four accused stand convicted for the offence punishable under Section 302 read with Section 34 of the IPC and are sentenced to R. I. for life. For the offence punishable under Section 324 read with Section 34 of the IPC, the four accused stand convicted of this offence also and are sentenced to undergo R. I. for one year, substantive sentences to run concurrently. If the accused are on bail, they shall be taken into custody and the bail bonds to stand cancelled. ( 11 ) THE appeal accordingly succeeds and stands disposed of. The fee payable to the learned Counsel who appeared on behalf of the respondents as Amicus Curiae is quantified at Rs. 1,000/ -. --- *** --- .