JUGMENT 1. State filed appeal against the order of acquittal of the accused, six in number (respondents herein) by the Court of Sessions, Kasaragod in S.C. No. 66/95. Revision application was filed by PW 2 in the above case for the very same purpose. Respondents and seven others who were the accused in Grime No. 22/94 of the Kumbla Police Station were originally tried for offences punishable under S.143, 147, 148, 324, 307 and 302 read with S.149 of the Indian Penal Code. The Trial Court found the respondents herein guilty of the offences alleged against them and the remaining accused were acquitted; Against the conviction of the respondents, Crl. Appeal No. 391/96 was filed before this Court. The acquittal of the remaining accused also was challenged by PW 2 in this ease by filing Crl. R. P. No. 1115/96. By a common judgment in the above cases, this Court confirmed the acquittal of accused Nos. 7 to 13 in the case and remanded the case against the respondents herein foe fresh disposal. 2. The prosecution case as deposed by PWs 1, 2 and 5 and other witnesses is as follows: PW 5 Moosa Haji and some of his close relatives became believers of Shemsia Thareequat sect. Large majority of the Muslim community in the area considered them as heretics. Local Jama-ath did not tolerate the followers of Thareequat movement and ex-communicated PW 5 and others. There was frequent friction and fight between the two groups. Orthodox Muslims which formed the large majority of the area were led to believe that those who oppose or annihilate people like PW 5 and others who joined the Thareequat movement will get (Malayalam). They were thus socially boycotted and local Muslims were not allowed to talk to them or sell goods to them. Nobody should work for them or mingle with them. On account of these social boycotting (Malayalam) PW 5 and others were unable to get workers to work for them. This had compelled them to get workers from outside. PW 1, Chandrasekhara, was thus brought by PW 5 for doing various works from Ubradka, Mittur, Karnataka State and the deceased Faizal from Manjeri Because of the threat of other people of the Jama-ath, both PW 1 and deceased Faizal were residing in the house of PW 5. 3. This had compelled them to get workers from outside. PW 1, Chandrasekhara, was thus brought by PW 5 for doing various works from Ubradka, Mittur, Karnataka State and the deceased Faizal from Manjeri Because of the threat of other people of the Jama-ath, both PW 1 and deceased Faizal were residing in the house of PW 5. 3. On 30th January 1994, PW 5 and his son.PW 2 returned at about 8.00 p.m. to their home. They then learnt that the child of CW 9, Mammunhi Haji, the brother of PW 5, had met with an accident and suffered some injuries. On receipt of this information, PW 5 asked PW 2 to go to the house of CW 9 and enquire about the details. Because of the tension prevailing in the locality between the two groups of Muslim community, PW 5 asked PW 1 and the deceased Faizal to accompany PW 2 to the house of CW 9. Thus all the three proceeded to the house of CW 9, at about 9.15 p.m. They could reach the house of CW 9 through the pathway through the paddy field. There were two pathways; one at a higher level and the other at a lower level. PW 2 alongwith PW 1 and Faizal started proceeding westwards to the house and when they reached the paddy filed, they started walking through the pathway on the higher level (through the bund on the field). Faizal was walking in the front. Harvest: was just over in the paddy field and it was free. While they were proceeding westwards the group of 15 persons came towards eastwards along the same bund. The group also had torches in their hands and they had flashed the torches on PWs 5, 1, 2 and Faizal who also flashed back their torches. In this light, PW 1 identified A1 to A6 as he knew them by name. A7 to A13 were also present in the group whom PW 1 could identify; but were not knowing their names at that time. PW 2 knew A1 to A13. 4. When they reached near, the accused suddenly attacked PWs 1, 2 and Faizal. A1 had MO 1 knife in his possession and A2 to A6 also had knives with them. A7 to A13 were in possession of sticks like MO 2. PW 2 knew A1 to A13. 4. When they reached near, the accused suddenly attacked PWs 1, 2 and Faizal. A1 had MO 1 knife in his possession and A2 to A6 also had knives with them. A7 to A13 were in possession of sticks like MO 2. A1 to A4, with the weapons in their hands, inflicted cuts on the neck of Faizal. When PW 2 intervened A2, A3, A5 and A6 attacked PW 2 with weapons in their possession. Because of the severity of the injury suffered by Faizal, he fell down. A1 to A6 had again attacked Faizal who was lying down by inflicting cut injuries on his body. The other accused had beaten Faizal and PW 2 with sticks. The accused were shouting to do away with PW 2 and Faizal. PW 1 to save his life jumped from the higher level of the ridge to the lower lever and took shelter to the house of CW 9. Seeing that PW 1 was fleeing the scene, some of the accused chased PW 1, but could not catch him. Meanwhile, PW 2 who suffered injuries also ran for his life and reached the house of CW 9. As Faizal did not reach the house of CW 9, PW 1 along with a son of CW 9 went to the scene of occurrence and saw that Faizal was lying dead in the paddy field. 5. PW 5 heard lot of noise from the side of the paddy field. Since his son and employees went in that direction, he felt something bad. Therefore, becoming restless, he proceeded towards the place of origin of noise. He ran towards west of his house and as he reached the way to Mosque on north direction he saw some persons entering that pathway from the paddy field on the west. Some persons had already gone towards north. On reaching near to them, he identified accused 1 to 4, 7, 9 and 11 to 13. All of them possessed weapons like knife or sticks. PW 5 enquired to A7 as to what happened to which A7 replied that they had killed two persons. Suddenly A13 gave a cut to PW 5 with a sharp edged knife like weapon. While warding off the same PW 5 had sustained injury on his left hand. PW 5, fearing further attack, ran towards his house. PW 5 enquired to A7 as to what happened to which A7 replied that they had killed two persons. Suddenly A13 gave a cut to PW 5 with a sharp edged knife like weapon. While warding off the same PW 5 had sustained injury on his left hand. PW 5, fearing further attack, ran towards his house. He remained inside after locking the door. His attempts to contact CW 9 and others over telephone were not successful. 6. PW 7, the then Sub Inspector of Police, Kumbla Police Station received an information at 9.50 p.m. on 30th January 1994 over telephone that some incident had taken place at Ujar Ulwar village resulting the death of one person. The informant did not disclose his identity. PW 7 entered this information in Ext. P9 G.D. and proceeded to the place of occurrence with whatever force he had in the Station. After making enquiries near the local Mosque, he could trace out the house of PW 5 who was inside the house. He narrated what happened to PW 7 and took them along the pathway to the house of CW 9. When PW 7 and police party with PW 5 reached the house of C.W 9 they saw PW 2 with injuries and PW 1, apart from CW 9 and his family members. They also learn that that Faizal had been murdered. PW 7 immediately made arrangements to take PWs 2 and 5 to the hospital in the police jeep. 7. First information statement was taken from PW 1 by PW 7 in the house of CW 9. Since police jeep was sent with PW 2 and PW 3 to the hospital, he sent a constable to the Kumbla Police Station. The then Head Constable in the G.D. charge (PW 8) registered the F.I.R. at 00.30 hours of 31st January 1994. On that day morning itself it was sent to the Magistrate and the Magistrate signed it on the same day at 3.30 p.m. PW 9 was the investigating officer. He was doing law and order duty in connection with a meeting of the Muslim League. When he received information that two groups had clashed at Ujar Ulwar village, he rushed to the village met PW 7 and they together made arrangements for keeping law and order. PWs 2 and 5 went upto Bayikatta. They got into a car of their relative. When he received information that two groups had clashed at Ujar Ulwar village, he rushed to the village met PW 7 and they together made arrangements for keeping law and order. PWs 2 and 5 went upto Bayikatta. They got into a car of their relative. They went to the house of a friend of PW 5, Mohan Kammath. All of them went to City Hospital Research and Diagnostic Centre at Mangalore. 8. PW 9 conducted inquest on the body of Faizal and seized M.Os. 2 to 9 and prepared Ext. P14 report. MO 6 knife was covered with MO 9 newspaper and found kept at the back of waist of the deceased. During inquest, PW 9 got the photographs of the dead body and the scene of occurrence which is marked as Ext. P2 series. Ext. P2 (a) shows that MO 6 was on the waist of the deceased. The photos and the negatives were seized under Ext. P17 seizure mahazar when produced by the photographer. PW 9 also drew up Ext. P15 scene mahazar. In Ext. P1, PW 1 mentioned only the names of Accused Nos. 1 to 6. But, he stated that seven more accused were there whose names were not given. But, according to him, he can identify them. After questioning PWs 2 and 5, name of other accused were included. 9. Accused 1 and 3 to 6 had surrendered before PW 9 in his office on 3rd February 1994. A8 to A12 were arrested on 29th April 1994 and 30th April 1994. A2 and A7 had allegedly suffered some injuries in the same transaction. They went to Unity Health Complex at Mangalore on 31st January 1994. They were admitted and treated as inpatients. Exts. P23 and P24 are the treatment particulars and Exts. P25 and P26 are the case sheets respectively of these accused. They were discharged on 23rd March 1994 on which date PW 9 arrested them. A13 was absconding and later he appeared before the Magistrate's court. When the 1st accused was questioned, he gave a confession statement to PW 9 about the place of concealment of MO 1 weapon. After record ing the said statement of A1, as lead by him, PW 9 reached the ditch with thick growth on the eastern side of paddy field where the occurrence took place. When the 1st accused was questioned, he gave a confession statement to PW 9 about the place of concealment of MO 1 weapon. After record ing the said statement of A1, as lead by him, PW 9 reached the ditch with thick growth on the eastern side of paddy field where the occurrence took place. The 1st accused took out MO 1 knife from the place of concealment and PW 9 seized the same under Ext. P8 seizure mahazar on 3rd February 1994 attested by PW 6. In the statement under S.313 of the Code of Criminal Procedure, accused denied the allegations. A1 stated that he belonged to the Jama-ath. Ustad of the Mosque was stabbed by the complainants party and they are inimical towards all accused as they helped the Ustad. When he was asked a specific question, he answered that he has no defence evidence. We quote: (Q) (Malayalam). Similar answers were given by all the accused. We may also note some of the evidence noted in the court proceedings. "9-11-1995: All accused present. No argument for preliminary trial discharge. Call with 94/95 on 16/XI for steps 16-11-1995: All accused present. Call on 23rd November 1995. 23-11-1995: Accused present. Consolidated. Charges against all the 13 accused in S.C. 66.95 and S.C.94/95 framed. Trial will proceed in S.C. 66.95. Further proceeding in S.C. 94/95 is dropped. Charge read over and explained to the accused. They plead not guilty to the charge. Posted for trial to 11/3, 12/3 and 13/3. Additional Public Prosecutor shall appear it is submitted. Additional Public Prosecutor shall file schedule within 30 days. issue summons to witness. 8-5-1996: All accused present. They are examined under S.313 Cr.P.C. They are directed to enter upon defence as I am not satisfied that this case can be disposed of under S.232 Cr.P.C. Accused and counsel submit that they have no defence evidence. Statement filed by A7 is received and kept in the file alongwith his 313 statement. For argument to 15th May 1996. After hearing the argument, the Sessions Judge, who has personally seen the witnesses and took evidence, convicted accused Nos. 1 to 6 guilty of offences punishable under S.143, 147, 148 and 307 read with S.149 (or in the alternate read with S.34) and S.302 read with S.149 or 34 of the Indian Penal Code. Accused Nos. 1 to 6 filed appeal No. 391/96. 1 to 6 guilty of offences punishable under S.143, 147, 148 and 307 read with S.149 (or in the alternate read with S.34) and S.302 read with S.149 or 34 of the Indian Penal Code. Accused Nos. 1 to 6 filed appeal No. 391/96. PW 2 filed R.P. No. 1115/96. A Division Bench of this court set aside the conviction and sentence of A1 to A6 and remanded the matter for fresh disposal Crl. R. P. filed against acquittal of Accused Nos. 7 to 13 were dismissed. Following is the operative part of the remand order passed by this Court: "5. We set aside the judgment in so far as the appellants ate concerned, their conviction and sentence too and remand the case for fresh disposal after complying with the provisions in S.233 Cr. P.C. They shall be present before the Court of Session, Kasaragod on 9th January 1998 and the case will be disposed of untrammelled by anything in the impugned judgment, within twelve weeks thereafter. Criminal appeal is disposed of as above. Crl. R.P. No. 1115 of 1996 is against the acquittal of accused 7 to 13. In our view, the court below has given valid reasons for their acquittal and there are no grounds to interfere with the same. Accordingly, we dismiss the revision." 10. In view of the decision in the remand order which has become final now acquittal of accused Nos. 7 to 13 cannot be reopened. After remand, DWs 1 to 5 were examined for the defence. In fact, DW 2 was Village Officer who prepared.Ext. P7 site plan and he was already examined as PW 4 by the prosecution. DW 5 was PW 1 himself who gave Ext. P1 statement. In chief examination by defence itself, he confirmed that what he deposed as PW 1 was correct and defence was not able to point out anything in this regard. When the case was remanded, the learned Sessions Judge who convicted accused Nos 1 to 6 was transferred and his successor in office who decided the case after remand after considering the defence evidence held as follows: "In view of the available evidence, the versions given by the defence witnesses are, . When the case was remanded, the learned Sessions Judge who convicted accused Nos 1 to 6 was transferred and his successor in office who decided the case after remand after considering the defence evidence held as follows: "In view of the available evidence, the versions given by the defence witnesses are, . according to me, not materially affecting the case as a whole." But, on appraising the prosecution evidence, the learned Sessions Judge came to the conclusion that prosecution failed to prove the offence alleged against the accused and acquitted them,. This order is under challenge now. 11. Before going into the disputed issues, we may look into the injuries suffered by the deceased and PW 2 and 5. PW 10 conducted post mortem and issued Ext. P3 certificate. During trial, Ext. P3 was marked by consent of both sides as per S.294 of Cr. P.C. External injuries noted by them were as follows: "1.Incised wound on the face transversely placed extending from the centre of upper lip to the left check 14 X 3 X 3 c.m. exposing the oral cavity cutting the full thickness of facial muscles; 2.incised wound on the left check below the left eye transversely placed 6x1 c.m. skip deep; 3. Incised wound on the lower part of chin transversely placed 10 X 6 c.m. flap of skin and subcutaneous tissue raised exposing the lower part of mandible; 4. Incised wound on the right side of neck transversely placed 12 X 5 X 6 c.m. cutting the muscles or neck on right side with carotid artery and jugular veins and trachea being cut; 5. Incised wound on the inner aspect of left ankle region transversely placed 6 X 1 X 1 c.m. cutting the lower end of tibia; 6. Incised wound 1 c.m. above injury No. 5 transversely placed 4 X 1 c.m. skin deep; 7. Incised wound on the front of right leg transversely placed 5 X 2 c.m. cutting the tibia which is fractured; 8. Incised wound on the front of right leg 6 c.m. above injury No. 7, 4 X 0.5 c.m. skin deep; 9. Incised wound on the dorsum of right second toe 5 X 0.5 X 1 c.m. along the long axis of the toe cutting the tendons and bone; 10. Linear abrasion obliquely placed on the front of right thigh 6 c.m. long; 11. Incised wound on the dorsum of right second toe 5 X 0.5 X 1 c.m. along the long axis of the toe cutting the tendons and bone; 10. Linear abrasion obliquely placed on the front of right thigh 6 c.m. long; 11. Linear abrasion obliquely placed on the front of left thigh 5 c.m. long) 12. Linear abrasion transversely placed on the front of left shoulder 3 c.m. long; and 13. Incised wound on the right side of scalp running anterior posteriorly 6 X 1 c.m. exposing the skull." The opinion as to the cause of death of Faizal given in Ext. P3 is that "the deceased died due to haemorrhage and shock due to injury to major vessels of neck". During the hearing, neither the prosecution nor the defence has got any challenge to Ext. P3 findings and the opinion contained therein. 12. PW 2 was examined by PW 3 and following injuries were noted in the wound certificate (Ext. P4) when he examined PW 2 at 1.15 a.m. on 31st January 1994: "1. 'L' shaped incised wound on the parietal aspect of the skull 5 X 6 c.ms; 2. Two small incised wounds on the right parietal region of the skull; 3. Incised wound over the nose 2 x 1 c.ms; 4. Swelling and deformity over the lower end of the left hand. X-ray of the left hand showed comminuted fracture of right ulna, lower end." He was admitted on 31st January 1994 and was discharged on 7th February 1994. Injury No. 4 was grievous. Others were simple. The patient was brought by one Mohan Kammath. The history was of 'alleged assault by known persons at Ulwar, Kumbla at 10-15 p.m. on 30th January 1994', PW 5 was also examined by PW 3 at 1.25 a.m. on 31st January 1994 and issued Ext. P5 certificate. ,As per Ext. P5 certificate, following injuries were suffered by PW 5: "1. Incised wound over the first web space of the left hand with partial tear of the flexor tendons (1" x 1/2"); 2. Incised wound on the base of the left thumb 3/4" + .1/4'." Doctor also opined that injury No. 1 in respect of PW 5 was grievous in nature. PW 3 sent Ext. P6 intimation to the police. As per Ext. P6 R.M.O. has come to the hospital. On the back of Ext. Incised wound on the base of the left thumb 3/4" + .1/4'." Doctor also opined that injury No. 1 in respect of PW 5 was grievous in nature. PW 3 sent Ext. P6 intimation to the police. As per Ext. P6 R.M.O. has come to the hospital. On the back of Ext. P6 it has been noted that PW 2 is taken to the operation theatre for sutruing and closed reduction under general anesthesia was done. I would further show that at 11.40 a.m. on 31st January 1994, the patient was not in a position to give a statement. 13. Trial Court after remand acquitted the accused mainly on the following grounds: (i) Ext. P1 first information statement as well as Ext. P10 F.I.R. was not recorded as alleged by the prosecution at the place and time recorded. In Para.55 of the Judgment in question it was held as follows: "All these taken together I hold that Ext P1 was not recorded as alleged by the prosecution at the place and time recorded both in Ext. P1 as well as in Ext. P10." In Para.72 of the Judgment, learned Sessions Judge held as follows: "............. But none of the prosecution witnesses, PWs 1, 2 and 5, speak about the manner in which and circumstances under which A2 and A7 had sustained injuries. thus, the prosecution had clearly suppressed some material facts in this regard. It, therefore, leads to a conclusion that the prosecution story as put forward through PWs 1, 2 and 5 are not correct. Therefore, to rely on the evidence of these witnesses and act upon will be an error of law and facts. Hence their testimony cannot be accepted and acted upon. Learned Sesssions Judge mentioned, certain reasons for coming to the above finding. Senior Counsel appeared for the respondents also argued that there are many other reasons to arrive at such finding even though not expressed. We may consider all grounds stated in the Judgment as well as argued by the Senior Counsel. They are as follows: (a) There was delay in reaching the F.I.R. by the Magistrate; (b) In the inquest report in Sl. No. 12 (a) question 'whether any person is suspected, who and why? answer is recorded as 'accused are known'. We may consider all grounds stated in the Judgment as well as argued by the Senior Counsel. They are as follows: (a) There was delay in reaching the F.I.R. by the Magistrate; (b) In the inquest report in Sl. No. 12 (a) question 'whether any person is suspected, who and why? answer is recorded as 'accused are known'. If first information statement was recorded earlier in time when inquest was prepared between 10.00 a.m. and 12.30 p.m., names of the accused would have been mentioned; (c) When PW 7 reached the house of CW 9, he saw PW 2, the injured witness, who has seen the entire incident. But first information statement was taken from PW 1, who ran away from the place of occurrence immediately; (d) PW 1 is not to be believed and his presence in the scene of occurrence itself is doubtful because PW 1 is a loyal and dedicated worker of PW 5 who filed case against some of the accused earlier and failed. In view of Exts. D7 and D8 Judgments, he cannot be believed. Even in the counter case, PW 1 was not made an accused. PW 1 did not sustain injruies. (e)P.Ws 2 and 5 were not questioned immediately. That gives sufficient opportunity to ave a thinking about the persons whom they have to rope in as accused in the crime; (f) PWs 2 and 5 are interested witnesses who where wholly inimical towards local Muslims and their versions are not corroborated; (These are the new reasons for doubting the prosecution case by the learned Sessions Judge). (g) Injuries to the accused 2 and 7 were not explained by the prosecution witnesses. Incident in this case and counter case in Ext. P12 F.I.R. registered by the same officer is one and the same. 14. Being an appeal against acquittal, we are bound to see whether views expressed by the learned Sessions Judge are reasonably possible. If the views expressed are reasonably possible, even if another view is possible, appellate court will not interfere in it. 15. P12 F.I.R. registered by the same officer is one and the same. 14. Being an appeal against acquittal, we are bound to see whether views expressed by the learned Sessions Judge are reasonably possible. If the views expressed are reasonably possible, even if another view is possible, appellate court will not interfere in it. 15. In Antar Singh v. State of Madhya Pradesh AIR 1979 SC 1188 it was held as follows: "This Court has repeatedly held that although in an appeal against acquittal, the powers of the High Court in dealing with the case are as extensive as that of the Trial Court, but before reversing the acquittal, the High Court should bear in mind that the initial presumption of the innocence of the accused is in no way weakened, if not reinforced, by his acquittal at the trial, and further, the opinion of the Trial Court which had the advantage of observing the demeanour of the witnesses, as to the value of their evidence should not be lightly discarded. Where two views of the evidence are reasonably possible, and the Trial Court has opted for one favouring acquittal, the High Court should not distrub the same merely on the ground that if it were in the position of the Trial Court, it would have taken the alternative view and convicted the accused accordingly ........" In this case, originally, the trial Judge who saw the witnesses and observed the demeanour of the witnesses and assessed the value of evidence, believed them and convicted A1 to A6. After remand, even though witnesses were examined by defence, these witnesses were brushed aside but disbelieving the witnesses PWs 1, 2 and 5, accused were acquitted. Even if two views are possible, view that is possible in favour of the accused has to be taken into account. In Kali Ram v. State of Himachal Pradesh AIR 1973 SC 2773 Apex Court observed that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. 16. 16. Now, we may analyse whether the reasoning advanced by the learned Sessions Court and finding of the Sessions Judge is a reasonably possible view and whether on review of evidence, a view in favour of the accused can be taken on the facts of this ease on the basis of evidence adduced in this case. Court has to see that no innocent man is punished but also should ensure that guilty man does not escape as held by the Supreme Court in Sate of U.P. v. Anil Singh AIR 1988 S.C.1998 that both principles are equally important. Now, let us examine the findings and reasonings in the back of evidence adduced this case. 17. As far as delay in sending the first information statement and F.I.R. to the Magistrate and defect of Exts-P-l and P10, the evidence disclosed following facts: The incident happened after about 9.15 p.m. on 30th January 1994, Ext. P9 General Diary [Ext. P9 (a) entry] shows that a telephone message was received in the police station from a person who did not disclose his identity by about 9.50 p.m. on the day that fights are going on Ujar Ulwar village and one person died. Ext. P9 General Diary shows at it is written, continuously without giving any gap for addition or interpolations. PW 7 deposed that he along with other constables reached the village by police jeep after entering the information received in the G.D. and Entrusting the G.D. charge to the H.C. When they reached the mosque, they understood that something happened near the house of PW 5 and they went to that house. As stated by PW 5, from there they went to the house of CW 9, brother of PW 5. PW 1 and PW 2 apart from family members of CW 9 were there. PW 2, injured son of PW 5 had injury in skull including nose. According to PW 7, he was not In a position to speak. Therefore, PW 7. took Ext. P1 statement from PW 1. Since injuries of PW 2 were very serious land PW 5 was also injured, he sent PW 2 as well as PW 5 in the police jeep for getting medical help. Since jeep had gone, he sent the F.I. statement recorded at 22.45 hours of 30th January 1994 through a constable to the police station. P1 statement from PW 1. Since injuries of PW 2 were very serious land PW 5 was also injured, he sent PW 2 as well as PW 5 in the police jeep for getting medical help. Since jeep had gone, he sent the F.I. statement recorded at 22.45 hours of 30th January 1994 through a constable to the police station. There is no delay in recording the F.I. statement. There is no circumstance to doubt Ext. P1 was not written at the time and place of the incident. There is also no circumstance for PW 7 S.I. or investigating officer PW 9 to make any false case. As per the evidence and according to the defence also PW 5 and group were against the Muslims and jama-ath and they had leniency to B.J.P. According to the accused, some of them were returning after a Muslim League meeting. PW 9, investigating officer was a Muslim. PW 8 who registered the F.I.R. was a Muslim and Muslim League was one of the constituent part of the ruling Government at that time. Therefore, no reason was there to make a false case for the police against the accused to support PW 5. 18. Recording of F.I. statement and lodging F.I.R. is only starting point of investigation and there is no delay in recording the first information statement or registering Ext. P10 F.I.R. The learned Sessions Judge found as follows at Para.54 of the Judgment: "The receipt of telephonic information by PW 7 was recorded in the general diary of Kumbla Police Station which was marked as Ext. P9. I have already stated the timings of each event as was explained by (he prosecution witnesses. The prompt recording of Ext. P1 and registration of Ext. P10 containing the names of A1 to A6 clearly gives an indication that the prosecution was honest and proceeded in the right direction within the shortest time of occurrence. I should surely appreciate the evidence of PW 7 as well as PW 9 that on reaching the place of occurrence and after meeting PW 5, PW 1, PW 2 and CW 9 they gave more importance in sending PWs 2 and 5 to the hospital and also for maintaining law and order situation in the locality." Ext. I should surely appreciate the evidence of PW 7 as well as PW 9 that on reaching the place of occurrence and after meeting PW 5, PW 1, PW 2 and CW 9 they gave more importance in sending PWs 2 and 5 to the hospital and also for maintaining law and order situation in the locality." Ext. P9 General Diary as well as deposition of PW 8 also show that there was no delay in forwarding the F.I.R. to the Magistrate. Ext. P10 F.I.R. was registered at 00-30 hours on 31st January 1994. Ext. P9 shows that there was only PW 8 head constable and another constable were there in the station at that time. Other police personnel were on law and order duty as situation was tense. Ext. P10 was sent to the court through a constable P.C. 450 at 8 a.m. on 31st January 1994. If the Magistrate noted his initial only at 3 p.m. prosecution cannot be faulted. 19. There is no evidence in the case whether the Magistrate was available in the morning. On the facts of the case, there is no delay and even if there is delay, it was explained clearly. Even otherwise, it was held by the Supreme Court in Pala Singh v. State of Punjab A.I R.1972 SC 2679 that delay in receipt of occurrence report by itself does not make the investigation tainted. "7. ... S.157 Cr. P.C. requires such report to be sent forthwith by the police officer concerned to a Magistrate empowered to take cognizance of such offence. This is really designed to keep the Magistrate informed of the investigation of such cognizable offence so as to be able to control the investigation and if necessary to give appropriate direction under S.159. But, when we find in this case that the F.I.R. was actually recorded without delay and the investigation started on the basis of that F.I.R. and there is no other infirmity brought to bur notice, then, however, improper or objectionable the delayed receipt of the report by the Magistrate concerned it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable. It is not the appellants' case that they have been prejudiced by this delay." We also refer to the findings of the Supreme Court in Om Prakash v. State of New Delhi AIR 1974 SC 1983 . It is not the appellants' case that they have been prejudiced by this delay." We also refer to the findings of the Supreme Court in Om Prakash v. State of New Delhi AIR 1974 SC 1983 . In this case, on getting telephonic information, after entering in the G.D., police party rushed to the spot. On reaching the spot, without any delay F.I. statement was recorded. There was no delay in starting the investigation. Injured were sent in the police Jeep itself to the hospital, taw and order situation was tense. Ext. P1 was recorded at the house or CW 9 at 11.45 p.m. F.I.R. was registered at 0'30 hours on 31st January 1994 and on the same day morning it was forwarded to the Magistrate and on these circumstances, no infirmity can be placed on Ext. P1. 20. Another circumstance relied on by the learned Sessions Judge is that the names of the accused were not mentioned in the column provided under Sl. No.12 (a) of the inquest report (Ext. P14). What is recorded is "accused are known". Their names are not mentioned. But, it should noted that the names of the accused are mentioned at the column where it is provided that "any person was questioned and whether statement was recorded from any person and their statement". Statement was recorded from CW 9 who has not seen the incident. But, even then, the names of the first six accused (respondents in this case) were mentioned by him as heard by him to have committed the offence even though he had only hearsay (though first hand) information from PWs 1, 2 and 5. Eye witnesses were not present when inquest report was prepared. Even in Column 12 (a), it is stated that accused are known. Therefore, non mentioning of the names of the accused in Column No. 12 (a) will not make any infirmity or will not show that Ext. P1 was not given at the time when inquest was prepared. In Gopalakrishnan v. State of Kerala 1996 (1) KLT 237 a Division Bench of this Court held that when names of the accused are mentioned in Column No. 13 through the evidence collected at the time of incident, it is not at all necessary to mention their names again in Column No. 12 (a). In fact, the names of these accused whose names were mentioned in Ext. In fact, the names of these accused whose names were mentioned in Ext. P1 were mentioned in Ext. P14 under Column No. 13. ln this connection, we also note the ambit and scope of S.174 of the Code of Criminal Procedure. In Podda Narayana v. State of Andhra Pradesh AIR 1975 SC 1252 the Supreme Court held as follows: "Proceedings under S.174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so, what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under S.174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report." The same was approved in Khujji v. State of Madhya Pradesh AIR 1991 S.C.1853. 21. In Nirpal Singh and others v. State of Haryana 1977 SC (Crl) 262 it was held that it is not necessary to incorporate statement of eyewitnesses in the inquest report while preparing the inquest report. In fact, the Supreme Court in that case held that it is advisable not to record the statement of eyewitnesses in the inquest report. The Supreme Court observed as follows: "..... We would, however, like to indicate that it is not at all necessary in law to incorporate the statements of the witnesses in the inquest report. The inquest report is to be made by the Investigating Officer just to indicate the injuries which he has found on the bodies of the deceased persons. The Supreme Court observed as follows: "..... We would, however, like to indicate that it is not at all necessary in law to incorporate the statements of the witnesses in the inquest report. The inquest report is to be made by the Investigating Officer just to indicate the injuries which he has found on the bodies of the deceased persons. It may be witnessed by one or two persons but it is not at all necessary for the Investigating Officer to record the statements of the witnesses or to get the statements of witnesses signed on the inquest report and incorporate the same in it which introduces an element of chaos and confusion and demanding an explanation from the prosecution regarding the statements made therein." In the above case, it is also stated that non examination of the witness who was questioned during the time of making the inquest report is not at all fatal to the prosecution and it is not necessary for the prosecution to multiply witness after witnesses on the same point. Therefore, non examination of CW 9 is also not fatal. In George and others v. State of Kerala and another (1998) 4 SCC 605 the Supreme Court held that the object of preparing inquest report is to investigate into and draw up a report of the apparent cause of death describing such wounds found on the body of the deceased and stating in what manner or by what weapon or instrument, if any such wounds appear to have been inflicted. But, it is neither necessary nor obligatory on the part of the investigating officer to investigate into or ascertain who were the persons responsible for the death. In this case, even in Column 12 (a) it is stated that accused are known and in Column No. 13, the names of the accused (A1 to A6) were also mentioned. and non mentioning of their names in Column No. 12(a) of Ext. P14 inquest report will not make any infirmity to Ext. P1 first information statement or we cannot gather that the statement was not taken at the time mentioned in it. and non mentioning of their names in Column No. 12(a) of Ext. P14 inquest report will not make any infirmity to Ext. P1 first information statement or we cannot gather that the statement was not taken at the time mentioned in it. We are of the opinion that even though it is for the prosecution to prove the charges beyond shadow of doubt, when a contention is taken by the defence that the F.I.R. was not recorded at the time and date mentioned in the F.I.R. and it was prepared later, burden is on the accused to show that there is at least some reasonable basis for such a contention. In this connection, we refer to Para.10 of the decision reported in Darshan Singh and another v. State of Punjab AIR 1988 SC 747 22. Another Contention regarding the in infirmity in the F.I.R. and flaw in the prosecution evidence relied on by the respondent was that first information statement was taken from PW 1 and not from PW 2 who was injured. There is no rule or mandate under S.154 of the Code of Criminal Procedure that F.I. statement should be recorded only from an eyewitness. It It is, of course, true that a cryptic information or a telephonic message is not to be treated as F.I.R. Immediately after getting telephonic information from an unknown person police party reached the place of occurrence and they went to the bouse of PW 5 hearing that some incident took place there and PW 5 took them to the house of CW 9. There, they saw PWs land 2. PW 1 was there at the time when the incident started. On seeing that the deceased fell down and PW 2 was injured, he escaped to the house of CW 9 by running. But, he clearly saw the persons assembled there and who attacked the deceased and PW 2. He identified the persons at least with regard to A1 to A6 with the names.- PW 2 was seriously injured. Presence of PW 2 is not disputed by the defence also as in the counter case, he was made an accused. But PW 2 had injuries in the skull and bleeding through nose and there were injuries. Even though he was not unconscious, he was not able to speak. Even: as per Ext. Presence of PW 2 is not disputed by the defence also as in the counter case, he was made an accused. But PW 2 had injuries in the skull and bleeding through nose and there were injuries. Even though he was not unconscious, he was not able to speak. Even: as per Ext. P4 wound certificate, on 31st January 1994, at 11.40 a.m. he was not in a position to give a statement. Prime concern of the police as well as of the people there in the house of CW 9 waste send the injured to the hospital. The Police Inspector had rightly sent PWs 2 and 5 to the hospital in the police jeep itself or at last to the place from where they could catch a car to reach the hospital. PW 1 saw the earlier part of the incident when he was with PW 2 as well as with the deceased and gave the first information statement with names of the accused 1. to 6. Their names were later disclosed by PW 2 also. Their names were seen in Ext. P14 inquest report also. Therefore, merely Because F.I. Statement was not taken from PW 2 injured person, there is no infirmity in the prosecution case. 23. Next question is whether the court below is right in disbelieving PW 1 because of Exts. D7 and D8 Judgments consequent on the complaints filed by him under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Ext. D7 was dismissed as two witnesses examined were declared hestile and allegations in the complaint itself may not constitute the offence. The second case (Ext. D8) was dismissed as the offence was not proved beyond doubt and benefit of doubt was given to the accused. It is true that even according to PW 5, PW 1 was a loyal servant of PW 5. Merely because he was a loyal servant of PW 5, his evidence cannot be disbelieved. Even evidence of close relatives cannot be ignored. It is for the court to sift the evidence. Further, the case of the prosecution is only probable as when PW 2 went to the house of CW 9 in the night, deceased and PW 1 were asked to accompany them in view of the tense situation prevailing. Even evidence of close relatives cannot be ignored. It is for the court to sift the evidence. Further, the case of the prosecution is only probable as when PW 2 went to the house of CW 9 in the night, deceased and PW 1 were asked to accompany them in view of the tense situation prevailing. Presence of PW 1 at the place of the incident is spoken to by PWs 2 and 5. Presence of PW 1 in the locality is proved by Exts. D7 and D8 and, therefore, only because there were two criminal cases wherein PW 1 was the complainant is not at all a reason for disbelieving PW 1. PW 1 did not sustain injuries as he ran away from the place of incident seeing Faizal and PW 2 were stabbed by the accused. The conduct of PW 1 is most natural and criticism levelled on the conduct of the witnesses is also unwarranted. 24. The contentions that PWs 2 and 5 were not questioned immediately and that PWs 2 and 5 were interested witnesses and non corroboration of their evidence by independent Witnesses are fatal to the prosecution etc. can be considered together PW 2 was injured very seriously. Apart from fracture, he had deep cut injuries in the skull and nose portion. He was not in a a position to speak. This was spoken to by the witnesses including PW 7 Sub Inspector of Police when he met them at the house of CW 9 It was further deposed by PW 7 that he sent PW 2 who was seriously injured as well as injured PW 5 to the hospital in the police jeep itself. PW 7 took the F. I. statement from PW 1 thereafter. There was law and order Situation in the place. The Sub Inspector as well as Circle Inspector and constables were very much concerned with the law and order situation. Next day day went to the hospital to meet PW 2 and he was under general anesthesia. He was not in a position to give statement. Thereafter, when he was able to speak, PW 2 was questioned by the investigating officer. Similarly, when PW 9 C.I. went to me hospital, PW 5 was not there. He was also questioned without much delay and it is clear that there is not much delay in examining PWs 5 and 6. Thereafter, when he was able to speak, PW 2 was questioned by the investigating officer. Similarly, when PW 9 C.I. went to me hospital, PW 5 was not there. He was also questioned without much delay and it is clear that there is not much delay in examining PWs 5 and 6. The Supreme Court in Dr. Krishna Pal and another v. State of U.P., 1996 SCC (Cri.) 249 held that even if there is inordinate delay in examination of witness by police and even If the delay is not explained it is not a ground for discarding the evidence of eye witnesses. In Karnel Singh v. State of M.P., 1995 SCC (Cri) 977 the Supreme Court held that on the basis of defective investigation, it would not be proper to acquit the accused if there is otherwise evidence of eye witnesses. Here, in this case, there is no inordinate delay in examining PWs 2 or 5 by the investigating officer and the delay was explained clearly by PW 9. Further Ext. P1 F.I. statement was taken immediately after the incident without any loss of time. Names of six persons accused were mentioned in the F.I. statement. It was also stated that other seven persons involved in the incident can be identified. At the maximum, other persons added by PWs 2 or 5 when they were questioned can be absolved by giving benefit of doubt. Here, we are concerned only with the first six accused whose names were mentioned in the F.I. statement as well as in the inquest report and deposition given by PWs 1 and 2 are concerned and not accused whose names were added after getting statements from PWs 2 and 5. 25. The incident happened in the night after about 9.15 p. m. PW 2 along with the deceased and PW 1 was going to the house of CW 9 in the way through the paddy field. Only the victims and assailants were present at the place of incident. There cannot be any independent witnesses. Though PW 1 is not related, he was an employee of PW 5. Deceased was also an employee of PW 5. He was walking in front followed by PW 2 and behind him PW 1. PWs 1 and 2 are natural witnesses and even the defence has no case that any other, person had seen it. Though PW 1 is not related, he was an employee of PW 5. Deceased was also an employee of PW 5. He was walking in front followed by PW 2 and behind him PW 1. PWs 1 and 2 are natural witnesses and even the defence has no case that any other, person had seen it. In this connection, we refer the following observations of the Supreme Court in State of Rajasthan v. Teja Ram and others 1999 SCC (Crl.) 436. "20..... It is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything. If the court has discerned from the evidence or even from the investigation records that some other independent person has witnessed any event connecting the incident in question, then there is a justification for making adverse comments against non examination of such a person as a prosecution witness. Otherwise, merely on surmises the court should not castigate the prosecution for not examining other persons of the locality as prosecution witnesses. The prosecution can be expected to examine only those who have witnessed the events and not those who have not seen it though the neighbourhood may be replete with other residents also." CW 9 was cited as a charge witness to prove the identity of the deceased. But, post mortem certificate itself was marked without dispute and identity was not disputed. CW 9 is not an eye witness. it is, of course, true that he was a witness to the inquest. Ext. P1 was given in his house. CW 9 is also brother of PW 5. Even if he was examined, the same allegation that he was an interested witness would have been raised. The only eyewitnesses are PWs 1 and 2 to prove the main part of the incident and PW 5 to prove second part when he was attacked. Evidence adduced by PWs 1, 2 and 5 cannot be discarded merely because they are interested witnesses. PW 2 was injured very seriously. PW 5 was also injured. The only eyewitnesses are PWs 1 and 2 to prove the main part of the incident and PW 5 to prove second part when he was attacked. Evidence adduced by PWs 1, 2 and 5 cannot be discarded merely because they are interested witnesses. PW 2 was injured very seriously. PW 5 was also injured. Following the Supreme Court decision reported in Dalip Singh and others v. State of Punjab AIR 1953 SC 364 , Vadivelu Thevar v. State of Madras AIR 1957 SC 614 and Guli Chand and others v. State of Rajasthan AIR 1974 SC 276 , a Division Bench of this Court in Rajan v. State of Kerala 2000 (1) KLT SN 1 Judgment by Shri Justice Arijit Pasayat, Chief Justice (as he then was) ] held that relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person leaving way to the real accused to escape. PW 2 is not only related to PW 5 but he was seriously injured. In Paresh Kalyandas Bhavsar v. Sadiq Yakubbhai Jamadar and others AIR 1993 SC 1544 also, the Supreme Court held that delay in examination of injured witness by the police will not affect their evidence and their relations or interest in the matter is not a ground to discard their evidence in toto. The Supreme Court held as follows: "..... It is needless to say that mere interestedness is not a ground to reject the evidence of the eye witnesses particularly those who were injured. Firstly, their presence during the occurrence cannot be doubted. Secondly, the injured witnesses would be the last persons to leave out the real culprits and implicate others falsely." In the above case, the Supreme Court also observed as follows: "..... Merely because his brother figured as a panch witness or even accepting that his brother and some Relations were accused in the earlier cases, it could not be a valid ground to doubt his veracity and on the suggestion that PW 4 was chosen as a complainant purposely and deliberately also has no force since his presence at the scene of occurrence cannot be doubted." 26. Presence of PW 2 at the scene of occurrence is not disputed even accepting the version of the accused because of the counter case. Presence of PW 2 at the scene of occurrence is not disputed even accepting the version of the accused because of the counter case. The Supreme Court in State of Rajasthan v. Hanuman 2001 (1) SCC 337 held that testimony Of eyewitnesses cannot be rejected merely because the witnesses were related or partisan. There may be cases when atrocities are committed wherein no persons other than related persons will be available. Such evidence cannot be deleted as partisan or interested. If the evidence evokes the confidence of the court, such evidence has to be taken into account [See: Appabhai and another v. State of Gujarat AIR 1988 SC 696 and Para.6 and 7 of the Judgment of the Apex Court in Sewaka @ Ramsewak v. State of M.P. and another JT 2001 (9) SCC 312]. A four member Bench of the Supreme Court in Masalti and others v. State of U.P. AIR 1965 SC 202 held that evidence of eyewitnesses cannot be discarded merely alleging that they are partisans. The Supreme Court held that: "16. Mr. Sawhney also argued that the test applied by the High Court in convicting the appellants is mechanical. He argues that under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction. That, no doubt is true; but where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. Therefore, we do not think that any grievance can be made by the appellants against the adoption of this test. If at all the prosecution may be entitled to say that the seven accused persons were acquitted because their cases did not satisfy the mechanical test of four witnesses, and if the said test had not been applied, they might as well have been convicted. If at all the prosecution may be entitled to say that the seven accused persons were acquitted because their cases did not satisfy the mechanical test of four witnesses, and if the said test had not been applied, they might as well have been convicted. It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give such evidence. But sometimes it is useful to adopt a test like the one which the High Court has adopted in dealing with the present case." In this case, the incident happened in the paddy field where nobody else was available. Here, PWs 1 and 2 spoke about all the 13 accused. But, in Ext. P1, names of only six accused persons were mentioned. Their names were mentioned in the inquest report also. Therefore, conviction can be made only on that six accused as benefit of doubt can be given to the other accused and merely because no other witnesses were available at the scene of occurrence, evidence of PWs 1, 2 and 5 etc. cannot be discarded. 27. Another important point argued by the learned counsel for the accused is regarding non explanation of the injuries on the accused. Prosecution did not hide or suppress the fact that there was an allegation that accused also sustained injury in the incident, PWs 9 and 10 spoke about the same. During examination in Court, it Was confirmed by PW 9 investigation officer that Ext. P12 is the F.I.R. in the counter case and PW 9 deposed that the incident alleged is one and the same. In that case, Ext. P22 is the first information statement from the second accused and Ext. P12 F.I.R. was registered on the basis of Ext. P22 of the Kadri Police Station and the same was transferred to Kwmbla Police Station and the incident was stated to be the same. 2nd and 7th accused in the case had injuries as per Exts. P23 and P24 certificates issued by PW 10 doctor. The above certificates are regarding the treatment particulars and not wound; certificates. As per Ext. P23 certificate, following injuries were suffered by A2: "1. Incised wound right shoulder 2" in length; 2. Incised wound left side of chest 1-5" in length; 3. Incised wound left elbow 3" in length; 4. Incised wound left forearm 3" in length; 5. The above certificates are regarding the treatment particulars and not wound; certificates. As per Ext. P23 certificate, following injuries were suffered by A2: "1. Incised wound right shoulder 2" in length; 2. Incised wound left side of chest 1-5" in length; 3. Incised wound left elbow 3" in length; 4. Incised wound left forearm 3" in length; 5. He has fracture lateral condyle of left humerus." According to PW 10 doctor, injury No. 5 was a grievous injury. Ext. P24 shows that A7 had suffered the following injuries: "1. Incised wound 2-5" long over the left forearm with tendons divided." PW 10 doctor who was examined to prove that certificate had also stated that these injuries in Exts. P23 and P24 certificates can be caused otherwise than by assault, that is, by a fall of by a road transport accident. Following are the answers given by him: "(Q,) .Can these injuries in Exts. P23 and P24 be caused otherwise than by assault? (A) Yes, these injuries could have been caused by fall or R.T.A. (Q,) Can the incised wounds in Exts. P23 and P24 be caused by self infliction? (A) It is difficult to say one way or the other." PW 10 Doctor further deposed as follows: "I have been examined as PW 3, already in SC 111/95 before this Court. The depth of these incised injuries are not noted in any of the two certificates Exts. P23 or P24. Directions of the injuries are also not noted in Exts P.23 or p-24. The injuries in a medico-legal case may have characteristics which give indications about the nature of the weapons used to inflict the injury. The exact location of the are also not noted in Exts. P23 or P24." He also deposed that the dates of discharge are not shown in Exts. P23 or P24 and certificate showing treatment particulars are normally issued at the time or after discharge. According to him, he was working as a visiting surgeon at Unity Health Complex, Mangalore. It is very difficult to believe and act on the above certificates. The doctor had deposed that he was an Assistant Surgeon at District Wenlock Government Hospital, Mangalore and not a full-time doctor in the Unity Health Complex, Mangalore where A2 and A7 were treated. According to him, he was working as a visiting surgeon at Unity Health Complex, Mangalore. It is very difficult to believe and act on the above certificates. The doctor had deposed that he was an Assistant Surgeon at District Wenlock Government Hospital, Mangalore and not a full-time doctor in the Unity Health Complex, Mangalore where A2 and A7 were treated. He also stated that apart from his Government service he was having his own private clinic by name 'Indu Clinic' and he was also doing service in Unity Hospital. Records were not available in the hospital. They were with the doctor. According to him, he got permission from the Administrative Medical Officer and he himself searched and got the same from the old files. He stated as follows: "Case sheets relating to M-L cases are kept separately in the hospital in a store room. The case sheets pertaining to Exts. P23 and P24 were not available in that store room. They were available in another store room. After searching the new store room, I went to the old store room and got the two case sheets." According to him, no entries are made by him in Ext. P25 case sheet. No entries are also made by him in Ext. P25 (a) admission record. He had not admitted the patient and the patient was hot examined by him first. Similar is the case with respect to Ext. P26 and Ext. P26 (a). Ext. P25 (b) and Ext. P26 (b) series are Doctors' records. He has stated that Ext. P25 (b) and Ext. P26 (b) series do not contain any entry/note/direction by him. He further stated that he just examined these patients after referring them by Dr, Umanand Mallya who is an Orthopaedic Surgeon. Date of discharge in Exts. P25 and P26 also is not correct. , Exts. P25 and P26 did not contain doctors' sheet written by Dr. Umanand Millya who treated them. X-ray records were also not produced. Treatment of the patients were over as per the case sheets on 28th February 1994 and from 28th February 1994 to 17th March 1994 no treatment was given. But, on 14th February 1994 there is an instruction by Dr. Mallya in Ext. P25 (b) (1) to stop all drugs. He also stated that there is no wound certificate. According to him, Ext. P25 (e) and Ext. But, on 14th February 1994 there is an instruction by Dr. Mallya in Ext. P25 (b) (1) to stop all drugs. He also stated that there is no wound certificate. According to him, Ext. P25 (e) and Ext. P26 (e) are the doctors' record sheet written by Dr. Umanand Mallya. He further stated that both A2 and A7 were in the hospital till 15th March 1994. But, Exts. P25 and P26, A2 and A7 were discharged on 28th February 1994. They were operated only on 22nd February1994. According to PW 10, even though case sheets are usually maintained chronologically, Ext. P25 and P26 are not arranged so. He again stated that he had helped Dr. Mallya to perform surgeries. 28. When the case was remanded Dr. Mallya was also examined as DW 1. He was not also a permanent doctor of the Unity Health Complex, Mangalore. He was a visiting doctor. He explained what were the injuries caused to A2 as per Ext. P25. He stated that in Ext. P25 (e) PW 10 had not recorded any fracture. He also stated that Unity Health Complex is a private institution. According to him PW 10 alone could issue a wound certificate as A2 was admitted in life casualty. But, in this connection, we see that PW 10 had stated that he was not the first doctor who saw the patient in the hospital. According to him, a register was maintained by the hospital authorities pertaining to medico-legal cases. He stated as follows: ".... The entries in such register involving medico-legal cases are made by the doctors like PW 10 who are called in for that purpose. According to my knowledge that register it called accident register and when a certificate is issued to the patient or the police authorities, that certificate is called as wound certificate." DW 1 was a Professor of Ortho at Kasthurba Medical College, Bangalore, According to him, X-ray films will be there. He also stated as follows: "Ext. P25 as it does not show that after 16th February 1994 A2 was given any physiotherapy treatment. The case sheet in my hand, Ext. P25, does not show that after 16th February 1994 any treatment was given to A2. Ext. He also stated as follows: "Ext. P25 as it does not show that after 16th February 1994 A2 was given any physiotherapy treatment. The case sheet in my hand, Ext. P25, does not show that after 16th February 1994 any treatment was given to A2. Ext. P25 does not show that prior to 16th February 1994 A2 required physiotherapy." But, he stated later, during cross examination as follows: "Do you have any explanation to offer with regard to the absence of entries made by you in Exts. P25 and P26? Those sheets containing my entries are not seen in these sheets (A)." He also stated that: "According to me, the surgery done on A2 and A7 were major. I agree that none of the vital organs of the body of A2 and A7 were affected as could be seem from Exts. P25 and P26. No major blood vessels were cut in respect of these persons. I have not noted that any nerve system was affected or cut in respect of A2 and A7. None of the vital parts of the body of A2 and A7 were affected as could be seen from Exts. P25 and P26." He also stated as follows: "It is possible that the injuries on A2 and A7 could be caused other than by weapons like MO 1 and MO 6. I only said that these injuries were caused by sharp edged weapons. I have not noted the direction of the injury on the body of the patients, A2 and A7." We are of the opinion that what are the specific injuries caused to A2 and A7 during the incident are not proved. Whether these injuries as mentioned in Exts. P25 and P26 were actually caused, whether such injuries were sustained by A2 and A7 as alleged by them at the same scene of occurrence etc., are also doubtful. There is no irrebutable presumption that always evidence given by the doctor should be accepted. Their evidence also is to be appreciated like that of any other witnesses [See Mayur Panabhai Shah v. State of Gujarat (1982) 2 SCC 396 ] 29. We also refer to the defence in the statement under S.313 of the Code of Criminal Procedure. They had no case that they inflicted injuries on PW 2 of the deceased for private defence or they attacked the accused. We also refer to the defence in the statement under S.313 of the Code of Criminal Procedure. They had no case that they inflicted injuries on PW 2 of the deceased for private defence or they attacked the accused. The learned Sessions Judge held as follows: "In the 313 Cr.P.C. statement none of the six accused had stated that they were attacked and, therefore, they in self defence attacked the prosecution witnesses and the deceased. During the argument also, the defence did not put forward a plea of right of private defence. That was the reason why I did not frame a point on that aspect. The clear case of the accused during their examination under S.313 Cr.P.C. is that they were involved in the case as they had supported the Ustad of the Mosque. A2 stated that while he was going to his home, he was prevented and attacked. Thus, there is absolutely no case of right of private defence either in the evidence or for the accused." However, the Sessions Judge held that none of the prosecution witnesses PWs 1 2 of 5 spoke about the manner in which and the circumstances under which A2 and A7 had sustained injuries and, therefore, it was held by the learned Sessions Judge that they cannot be believed. The accused had no case that they were exercising the right of private defence. So, they had no case that the deceased or PWs 2 of 1 attacked them. We are of the opinion that observations of the learned Sessions Judge is incorrect. In fact, it cannot be concluded that any serious injuries were caused to A2 and A7 during the course of incident when deceased and PW 2 sustained injuries. the evidence of PW 10 is very doubtful. No records were kept in the hospital and no accident cum-wound certificate was produced. Date of Discharge itself was seen corrected whereas the certificate and oral evidence of PW 10 will not tally with Ext. D5 certificate produced by the defence. In any event, since the defence has no case that they sustained injuries while exercising the right of private defence, it cannot be stated that what was stated by PWs 1, 2 and 5 are not correct merely because of the injuries alleged to have sustained by A2 and A7 on the date of the incident. In any event, since the defence has no case that they sustained injuries while exercising the right of private defence, it cannot be stated that what was stated by PWs 1, 2 and 5 are not correct merely because of the injuries alleged to have sustained by A2 and A7 on the date of the incident. The manner of commission of the crime was explained by the prosecution. When there are very clear and cogent evidence adduced by the prosecution including the evidence of witnesses, the absence of explanation of the alleged injuries caused to A2 and A7 are not fatal to the prosecution case. 30. Now, we may examine the injuries on the accused with respect to Ext. P14 inquest report. In Ext. P14 inquest report, it is noted that MO 6 Knife wrapped with MO 9 newspaper was found from the waist of the deceased. In the chemical analysis report it was found that there was no bloodstain on it. MO 6 was an unused weapon wrapped in MO 9 newspaper found from the waist of the deceased and police party arrived immediately after the incident. There was a tense situation. There is no case that the prosecution witnesses planted the knife in the waist of the body of the deceased. There was also no chance or need for the same. The fact that MO 6 knife was wrapped in MO 9 newspaper shows that there was no time for the deceased to attack the second or seventh accused or any others. Before making use of such weapon which he was keeping with him for use in case of necessity by way of private defence, he was attacked and he fell down. The prosecution case would be served in no manner by introducing such a weapon on the person of the deceased. Similarly, there is nothing to suggest that the accused would have introduced MO 6 weapon wrapped in MO 9 newspaper on the body of the deceased after the occurrence. Therefore, MO 6 weapon wrapped in MO 9 paper was in the person of the deceased at the time of his death and obviously he had not received time to take out that weapon and use it for offence or defence. The nature in which MO 6 weapon was found shows that the deceased was not the aggressor. Therefore, MO 6 weapon wrapped in MO 9 paper was in the person of the deceased at the time of his death and obviously he had not received time to take out that weapon and use it for offence or defence. The nature in which MO 6 weapon was found shows that the deceased was not the aggressor. If PWs l, 2 and the deceased had intention to attack the group of persons which came against them, it was improbable that the deceased who was walking ahead of them would not have taken out MO 6 weapon which was kept concealed on his body. This probabilise the version of PWs 1 and 2 that it was unanticipated attack on them. So, the minor nature of injuries found on the person of the accused will not show that they sustained injuries in a deliberate pre-planned aggression by the deceased or PW 2 or their group. We are also of the opinion that on the facts and circumstances of the case, no explanation of the injuries on the accused by PWs 1, 2 and 5, the occurrence witnesses is not fatal. In Thakhaji Hiraji v. Thakore Kubersing Chamansing 2001 (6) SCC 145 the Supreme Court held that: "......... the Court ought to make an effort at searching out the truth on the material available on record with a view to find out how much of the prosecution case was proved beyond reasonable doubt and was worthy of being accepted as truthful and the approach of rejecting prosecution case in its entirety for non explanation of the injuries sustained by the accused persons is erroneous. This Court further held, it cannot be held as a matter of law of invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. This Court further held, it cannot be held as a matter of law of invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the Court has to be satisfied of the existence of two conditions: (i) that the injuries on the person of the accused were of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question." In this case, we are not satisfied that any serious injuries were caused to A2 and A7 in the incident. Even though the defence need not prove their case beyond doubt like the prosecution, their defence also cannot be ignored and taking into account their own defence, we can attribute no serious flaw in the prosecution case especially when prosecution themselves had tried to explain injuries by questions PWs 9 and 10. Evidence in this case by the prosecution are consistent and credit worthy and disprobabilise the case of the accused in this regard. 31. Next we may summarise the evidence in this case to reassure ourselves that there is clear and cogent evidence against A1 to A6. 32. PW 1 who gave Ext. P1 first information statement has given evidence also in accordance with the same in the court. There was not contradiction in this deposition before court and the statement given before the police. It is true that he ran away from the place seeing that PW 2 and deceased who were walking ahead of the varambu were injured. He ran away from the place for his safety to the house of CW 9. He has identified all the accused. However, only six names were given at the time of giving F.I. statement immediately after the incident. The statement given immediately after the incident without any time gap has to be given its due weight. He ran away from the place for his safety to the house of CW 9. He has identified all the accused. However, only six names were given at the time of giving F.I. statement immediately after the incident. The statement given immediately after the incident without any time gap has to be given its due weight. Even though delay in lodging F.I.R. itself is not fatal to the prosecution as law has not fixed any time limit, as held by the Supreme Court in Ravinder Kumar and another v. State of Punjab 2001 AIR SCW 3366 taking F.I. statement immediately and lodging F.I.R. without delay expels the opportunity for any possible connection of a false version. In the F.I. statement, PW 1 had stated that the other accused who were present also were known to him even though the name were not stated in the F.I. statement. The manner of attack on the deceased as well as PW 2 were deposed by PW 1 in accordance with the prosecution case. He was an eye witness. He saw the incident till he ran away and he identified the persons involved in the incident. PW 2 was an injured witness. It is not disputed that PW 2 saw the incident. He was also attacked brutally along with the deceased. When he along with PW 1 and the deceased were going to the house of CW 9? they they saw a group of persons standing there and those persons proceeded towards them when they lit the torch and they also lighted the torch on them and the entire incident as per the prosecution story which we have stated at the beginning of the Judgment was deposed by PW 2. He is a direct eye witness. He was injured seriously. He was unable to speak when the police came because of the injuries on the head and bleeding through nose. He was sent to the hospital in the police jeep itself. When police went to the hospital, he was under general anesthesia for operation. When police questioned, he also gave the statement. There are no notable contradictions or omissions in the statement as well as in the deposition. Names of all the 13 persons including the six respondents were also given by him. PW 5 left his house to the place where me sound was heard. When police questioned, he also gave the statement. There are no notable contradictions or omissions in the statement as well as in the deposition. Names of all the 13 persons including the six respondents were also given by him. PW 5 left his house to the place where me sound was heard. He saw some people running away and identified the other people. According to him, he enquired with A7 what happened and he said they have finished two persons. A 13 gave a stab on him. He ran away to his house. In fact, A13 was his own brother inlaw. He also explained how injuries were caused to him. He identified A2, A3, A4, A7, A9, A11, A12 and A13. He also corroborated the evidence given by PW 7 S.I. of Police and stated when police came and how they went to the house of CW 9 and balance part of the prosecution story. The injuries found on the persons of the deceased. PWs 2 and 5 would show that the victims and the assailants must be close to each other. Even believing that injuries were caused to A2 and A7, it can be seen that they were very near to them. They had also taken torches with them. There was no difficulty for identification. Therefore, evidence of PWs 1 and 2 as well as PW 5, eye witness, the statement in the inquest report, medical evidence, motive and the surrounding circumstances etc. would show that the accused inflicted thus injuries on the person of PW 2, PW 5 and the deceased in the manner and at the time and place as alleged by the prosecution. In fact, benefit of doubt was given to accused Nos. 7 to 13 as only names of six persons were mentioned in Ext. P1 F. I. statement and Ext. P14 inquest report. Therefore, we are of the opinion that prosecution was able to prove conclusively, that accused Nos. 1 to 6 are guilty of the offences charged against them. Their presence cannot be disputed and their aver acts were also proved by clear and cogeat evidence of PW 2 supported by PW 1 as well as PW 5. Motive and other circumstances tances are also support the case of the prosecution. 33. We may also point out another disturbing fact in this case. Their presence cannot be disputed and their aver acts were also proved by clear and cogeat evidence of PW 2 supported by PW 1 as well as PW 5. Motive and other circumstances tances are also support the case of the prosecution. 33. We may also point out another disturbing fact in this case. On ground that no opportunity was granted to examine the defence witness case was remanded to the Sessions Court in the appeal against conviction of A1 to A6. At the time when earlier appeal was filed, there was no contention for the appellant that the witnesses already examined were not fully cross examined or they were not given time for cross examination or they want the prosecution witnesses to be called again for cross examination. But, when the case was remanded for defence evidence, if any, PW 4 was again summoned as DW 2 and PW 1 was again summoned as DW 5 as defence witnesses. They were asked leading questions also in chief examination by the defence counsel. Perhaps they might Have been examined to see that by distance of time, the defence will be able to get some contradiction. But, those witnesses stuck on their earlier statements. Nothing was elicited from DW 5 to show that earlier deposition was incorrect. Of course, Exts. D7 and D8 Judgments were marked through him. Details regarding the judgements were questioned to him when he was examined earlier. In any event, he confirmed the prosecution story as a defence witness in his chief examination when he was examined as DW 5. So, by examining DW, the accused's own witness has confirmed that prosecution case is correct. Now, it cannot be stated by the accused that defence evidence adduced in chief examination is not binding on them and evidence of a plea of alibi for A1 and A4 to A6. He was the Panchayat President and he attended a Musilim League meeting at Kasargode on 30th January, 1994 and after the meeting he returned in a jeep driven by A5. In the jeep, A4 to A6 where also there. They on their way home dropped him at 10.45 p. m. In cross examination, he deposed that he did not go to the meeting place, with the accused and he was not aware when they came to the meeting. In the jeep, A4 to A6 where also there. They on their way home dropped him at 10.45 p. m. In cross examination, he deposed that he did not go to the meeting place, with the accused and he was not aware when they came to the meeting. His evidence was shattered during cross examination and the Sessions Judge who acquitted consider the plea of alibi. It is settled law that plea of alibi should be pleaded with absolute certainty completely excluding the presence of accused at the time and presence of occurrence [See Rajesh kumar v. Dharam Vir and others 1997 SCC (Cri.) 591]. Strict proof totally excluding the possibility of presence of the accused has to be established to be plea of alibi as held by the apex court in State of Maharashtra v. Narasingrao Gangaram Pimple 1984 (1) SCC 446 . Here, defence failed to establish the plea of alibi by the examination of DW 4 Senior Advocate who was appearing for the respondents also did not press the plea of alibi. DW 4 also stated in cross examination that he read from the newspapers that the housed of PW 5, his brother, his sister and other close relatives had been destroyed by the Jama-ath people. It will only aid the prosecution case regarding motive. Evidence adduced for the defence after remand did not make any dent on the prosecution evidence. In fact, it only supported the prosecution as a whole. 34. After considering the entire evidence adduced in the case, we are satisfied that prosecution was able to prove the case conclusively against A1 to A6 beyond any shadow of doubt and the finding by the Sessions Court otherwise is perverse and manifestly erroneous. Appreciation of evidence by the Sessions Court in his case lacks coherence and findings are based on unwarranted assumptions. Hence, even though it is an order of acquittal, interference is required [See para 12 of the Judgment of the apex court in Narinder Singh v. State of Punjab 2000 AIR SCW 2313. It was held in Ambika Prasad v. State (Delhi Administration) 2000 (2) SCC 646 ] that a criminal trial is meant for doing justice not only to the accused but also to the victim and the society so that law an order is maintained. In this case, only conclusions possible from the evidence is that accused Nos. It was held in Ambika Prasad v. State (Delhi Administration) 2000 (2) SCC 646 ] that a criminal trial is meant for doing justice not only to the accused but also to the victim and the society so that law an order is maintained. In this case, only conclusions possible from the evidence is that accused Nos. 1 to 6, that is, respondents in this appeal are guilty of the charges leveled against them. Therefore, we set aside the judgment of the learned Sessions Judge in acquitting accused Nos. 1 to 6 under S.302 of the India Penal Code and other offences charged against them. Their identity, their presence and overt acts made by A1 to A6 as alleged by the prosecution were clearly proved. Common object of the unlawful assembly consists of 13 persons including A1 to A6 was to annihilate members of the Thareequet sect. That is the reason why they gathered in the night between the house of PW 5 and CW 9. They were armed with deadly weapons and committed the offences of rioting. Out of the 13 persons, clear identification was made only with respect to A1 to A6 and they cannot in any event escape from constructive liability under S.149. They are equally guilty of offences under S.302 and 307 read with S.149 of the 1 Indian Penal Code in murdering Faizal and attempting to murder PW 2. Even otherwise, it is clearly proved that simultaneous attack done by several persons with common intention attracts S.34 of the Indian Penal Code. In with common intention attracts S.34 of the Indian penal Code. In H.P. Thakore v. State of Gujarat 1976 (4) SCC 640 apex court held as follows: When a murderous assault by many hands with many knives has ended fatally, it is legally impermissible to dissect the serious ones from the others and seek to salvage those whose stabs have not proved fatal. When people play with knives and lives, the circumstance that one man's stab falls on a less or more vulnerable part of the person of the victim is of no consequence to fix the guilt for murder. Conjoint complicity is the inevitable inference when a gory group animated by lethal intent accomplish their purpose cumulative. S.34 I.P.C. fixing constructive liability conclusively silences such a refined plea of extrication. Conjoint complicity is the inevitable inference when a gory group animated by lethal intent accomplish their purpose cumulative. S.34 I.P.C. fixing constructive liability conclusively silences such a refined plea of extrication. [See Amir Hussain v. State of U.P.- 1975 SCC (Cri) 505 and Maina Singh v. State of Rajasthan (1976) SCC (Cri) 332]. Lord Sumner's classic legal shorthand for constructive criminal liability, expressed in the Miltonic verse 'They also serve who only stand and wait' a fortiori embraces case of common intent instantly formed, triggering a plurality of persons into an adventure in criminality, some hitting some missing, some spilling drops of blood. Guilt goes with community of intent coupled with participatory presence or operation. No finer Justice niceties can be pressed into service to nullify or jettison the plain punitive, purpose of the Penal Code. 35. We also refer to the observations of the Supreme Court in State of U.P. v. Jhinkoo Nai (2001) C.C.R. 159 (S.C.) where the apex court held as follows: Further, when several persons simultaneously attack with common intent no distinction between causing the fatal and non fatal wounds could be drawn while allocating the guilt.� Under S.149, unlike S.34, even without prior meeting of minds and concerted action in furtherance of common intention, an unlawful object can develop after people assemble in a place. For an offence committed by a member of the unlawful assemble in a place. For an offence committed by a member of the unlawful assembly in prosecution of their common object, other members also will be liable. Common purpose of the unlawful assembly is an inference of fact common object can also develop subsequently as held by the apex court in Sukha and others v. State of Rajasthan AIR 1956 SC 513 . On the evidence facts of this case, we are of the opinion that S.149 of the Indian Penal Code is attracted as Faizal was murdered and PW 2 was seriously injured in accomplishment of common object of the unlawful assembly. Both S.149 as well as S.34 can be applied with respect to commission of offence under S.302 and 307 I the case of A1 to A6 considering the role played by them as proved in this case. They were not passive members of the assembly who gathered in the right between the house of PW 5 and CW 9. Both S.149 as well as S.34 can be applied with respect to commission of offence under S.302 and 307 I the case of A1 to A6 considering the role played by them as proved in this case. They were not passive members of the assembly who gathered in the right between the house of PW 5 and CW 9. Evidence in this case clearly proves that A1 to A6 are equally guilty for murdering Faizal and attempting to murder PW 2. Defence evidence instead of disproving the same, reinforces the same. We hold that prosecution was able to prove conclusively beyond doubt that A1 to A6 are guilty of offences punishable under S.143, 148 and also under S.302 and 307 read with S.149 of the Indian Penal Code. We convict the respondents for the above offences. Since the accused are convicted for the offence under S.148 of the Indian Penal Code, it is not necessary to convict them for the offence under S.147 which is lesser offence in relation to the offence under S.148 of the Indian Penal Code. The view taken by the learned Sessions Judge in the impugned Judgment and the conclusion made therein area not possible at all on the basis of the evidence adduced in this case. 36. Now, we have to consider the question of sentence, originally, when respondents were convicted by Sessions Court by the Judgment dated 16th June 1996, they were heard on the question of sentences. They submitted that they were innocent and leniency may be shown to them. After considering their plea, court imposed following sentence on each of the accused for the offences now found guilty by us: (1) Imprisonment for life under S.302 read with S.149 or 34 of I.P.C; (2) Rigorous imprisonment for 5 years under S.307 read with S.149 of 34 of I.P.C. (3) Rigorous imprisonment for 6 months each under S.143 and 148 of I.P.C. In appeal, that Judgment was set aside only for non compliance of S.233of Cr.P.C. After remand, they were acquitted by the Sessions Court and we are considering the question of sentence after finding that respondents are guilty of the offences mentioned above in an appeal filed by the state. 37. Art.25(1) of the Constitution of India guarantees freedom of conscience and freedom to profess, practice and to propagate religion. 37. Art.25(1) of the Constitution of India guarantees freedom of conscience and freedom to profess, practice and to propagate religion. While one is exercising this right, he must remember that others also have got similar right and one cannot prevent others from exercising their fundamental rights. In the name of religion which is intended for the benefit of mankind and in the name of God A mighty who is Most Gracious, Merciful and Benevolent, nobody has got power to take life of a fellow-being ridiculing the Great Creator. Lord of entire 'Alamin'call human beings, spirits, Jinn and all that exist) who gives life to all. Intolerance arising out of religious fundamentalism and blind fanatical beliefs in various dogmas is one the increase which is a menace to the peaceful future of the world. It is true that since such offences are on the increase, deterrent punishment should be imposed. While considering the sentence, we also note that accused were acquitted by the lower court after remand and originally also they were not sentenced with death But only with life imprisonment under S.302. Taking into account all relevant factors, we impose the following punishments A1 to A6 (respondents in this appeal): (1) Imprisonment for life under S.302 read with S.149 I.P.C.; (2) Rigorous imprisonment for 5 years under S.307 read with S.149; (3) Rigorous imprisonment for 6 months each under S.143 and 148 I.P.C. We also order that that sentence shall run concurrently. Since only minimum punishment of imprisonment of life is imposed under S.302 and other sentence are to run concurrently and respondents accused were heard on the sentence when they were convicted originally for the very same offences and their submissions at that time were also considered by us, it is not necessary to hear the accused again in the matter of sentence in the appeal. Apex Court in Tarlok singh v. State of Punjab AIR 1977 SC 1747 held that when only minimum sentence under S.235(2) of CrPC. It was held by the Supreme Court in Shanker Kerba Yadav v. Sate of Maharashtra 1969 SCWR 4468 that in view of the powers vested in the appellate court in S.386(a) of Cr.P.C. it is open to the High Court to pass appropriate sentence, if the accused is found guilty so long as the sentence is not harsher than that can be imposed by the Trial Court for such offence. This Judgment is certified to the Court of Sessions, Kasaragod as per S.388 of Cr.P.C. and that Court is direct to take necessary steps to execute the sentence forthwith. The appeal filed by the State is allowed. The Crl.R.P. is also disposed of accordingly.