SREEDHAR RAO, J, J. ( 1 ) THE case of the prosecution discloses that on 1. 7. 2001 at 10. 00 pm near Azeezia Hotel in Mysore A-1 wielding a knife, A-2 to a-4 wielding broken pepsi bottles severely assaulted the Akram (deceased ). A-5 dropped the concrete blocks on the face of the deceased. On account of the injuries sustained, Akram succumbed before he was taken to the hospital. It is the case of opponent of norolla the accused who are the supporters of the Syed Norolla have caused the murder on account of the political rivalry. ( 2 ) PW 2 to PW 5 are the eye witnesses to the incident. PW2 lodges the FIR at Ex. P2. The contents of the FIR reveal that immediately after assault, a Garuda van arrives at the spot. The accused decamped from the scene. The deceased was taken by a van to the hospital. PW 2 follows the van and visits the hospital where the deceased was taken. The PM report discloses that the death is on account of fatal injuries received on the vital parts of the body and that the death is a homicidal death. ( 3 ) PW 1 is the Doctor who conducted P. M. examination. PW 2 to PW 5 are the eye witnesses to the incident and all of them have supported the prosecution version that A1 to A6 were wielding the above said deadly weapons, attacked and caused the death of akram. At the voluntary instance of A-1, knife- MO9, at the voluntary instance of A2 to A4- broken pepsi bottles- M. Os 4 to 8 and at the instance of A-6, a small knife are recovered. ( 4 ) BEFORE the Trial Court, the Learned Counsel for the accused and the Public Prosecutor submitted that SC No. 218/01 is the counter case, the deceased, PW 2, PW 3 and three others are the accused in the counter case facing the charge for committing offence u/s 307 r/w Section 149 IPC and other allied offences. A-1 in the present case is the injured complainant in SC No. 218/01. A-1 in the present case is the injured complainant in SC No. 218/01. ( 5 ) THE trail court on the testimony of PW 2 to PW 5 coupled with the PM report comes to the conclusion that it is case of face to face fight between deceased and his men on the one part and the accused on the other part. The accused had taken law into their hands and brutally killed Akram. Thus convicted A-1 to A-6 for the offence punishable U/s 302 r/w Section 34 IPC. The accused are in appeal. ( 6 ) SRI Tomy Sabestian, Learned Senior Counsel for the accused made reference to the omissions and contradictions in the evidence of PW3 marked at Ex D 3 to Ex. D5 which are as follows:- (a) The gist of Ex. D 3 discloses that "the deceased and PW 3 were standing at the madarasa. A4 and A5 were also standing at madarasa. A1, A2, A4, A5 and A6 pass by the side of the deceased and PW 3 and go towards azeezia Hotel Circle. " The deceased gets provoked and wants to follow the accused. PW 3 dissuades the deceased not to go fearing that there could be danger. The deceased ignores the advise of PW3 and proceeds towards Azeezia hotel. One Jabiulla follows the deceased. PW 3 also proceeds towards Azeezia Hotel. (b) The gist of Ex. D 4 discloses that the deceased assaulted A-1 with knife. (c) The gist of Ex. D5 discloses that "pw 3 assaulted A-1 with chopper. On seeing the assault, A-2, A-4, A-5 and A-6 on seeing the assault come towards the deceased. PW 3 threw chopper in the drainage and decamped from the scene. " ( 7 ) THE contradictions at Ex. D3 to Ex D5 are confronted to pw3 and are also marked through PW 6 (IO ). PW 2 is the nephew of the deceased. PW 4 and PW 5 are the brothers of PW2. In the fir, PW 2 does not mention the presence and participation of A-6. Similarly the FIR does not mention the presence of PW 3 to PW 5 at the scene. It is argued that PWs 4 and 5 speak about the presence and participation of A-1 to A6. But in their statement before the police, they name only A-3 and A-5 as the assailants. Similarly the FIR does not mention the presence of PW 3 to PW 5 at the scene. It is argued that PWs 4 and 5 speak about the presence and participation of A-1 to A6. But in their statement before the police, they name only A-3 and A-5 as the assailants. The presence arid participation of A1, A4 and A6 is not stated. The said omission is also got marked through PW 16. ( 8 ) THE Learned Counsel for the Appellants strenuously argued that PW 3 to PW 5 cannot be considered as eye witnesses to the incident since their presence at the scene is not mentioned in the fir. PW 4 and PW 5 are brothers of PW 2 and if they are really present at the scene, PW 2 would not have missed to mention their names in the FIR as eye witnesses. It is further argued that PW 4 and pw 5 in the evidence incriminate A1 to A6 as the assailants but in their statement made to the police there is no mention of participation of A1, A2 , A4 and A6. . In view of the above omissions and contradictions, it is strenuously argued that a false case is concocted against A-1 to A6. Further it is argued that the FIR does not mention the presence and participation of A-6. Hence the case against A-6 is a rank concoction. ( 9 ) THE Learned Counsel for the appellant submitted that ex. D 9 is the complaint in the counter case lodged by A-1 herein. The contents of Ex. D9 shows that the deceased PW2, PW 3 and 3 others assaulted A-1 at 9 p. m. The wound certificate Ex. D10 shows a1 was in the hospital at 10 pm taking treatment. In view of the contents of Ex. D9 and Ex. D10, it is argued that A-1 could not have participated in the assault on the deceased at 10 p. m,. therefore, the evidence of PW2 to PW 5 should be rejected as false and concocted. ( 10 ) THE Trial Court on the basis of the oral and documentary evidence has given a categorical finding that it is case of pitched fight between accused on the one part and the deceased and his men on the other part. The assault on one another takes place simultaneously at the same place. ( 10 ) THE Trial Court on the basis of the oral and documentary evidence has given a categorical finding that it is case of pitched fight between accused on the one part and the deceased and his men on the other part. The assault on one another takes place simultaneously at the same place. The contradictions in the evidence of PW 3 marked at Ex. D3 and D4 fully supports the view taken by the trial court that both the incidents pertaining to this case and the counter case have occurred simultaneously, at the same time and place. The PW 3 at ex. D5 incriminates himself stating that he assaulted A-1 with chopper. The said statement may not be used in law against PW 3 for his prosecution. But nonetheless as a contradiction simplicitor in the overall context of facts, justify the finding of the trial court that it was free fight situation between the accused persons on the one part and the deceased and his men on other part. The evidence discloses that the deceased commits the first act of aggression by stabbing A1 with knife. A1 to A6 in retaliation assault the deceased with deadly weapons and caused the death. ( 11 ) THE contents of the FIR does not disclose the presence and participation of A-6. PW 2 to PW 5 in their statement before the police do not implicate A-6. Therefore, the evidence of PW 2 to pw 5 becomes doubtful to be believed with regard to A-6 In that view the order of conviction recorded against A-6 is bad in law. ( 12 ) THE evidence discloses that the deceased is the aggressor, assaulted A-1 with knife. In retaliation, the accused assaulted the deceased which results in death. The facts and evidence discussed above shows that the case falls within the purview of exceptions 1 and 4 of Section 300 IPC and that A-1 to A5 are liable for conviction U/s 304 Part-I IPC. ( 13 ) THE facts in the charge sheet warranted invoking Section 149 IPC against the accused to make each one liable for acts of the other. The trial court has not framed the charges properly. ( 13 ) THE facts in the charge sheet warranted invoking Section 149 IPC against the accused to make each one liable for acts of the other. The trial court has not framed the charges properly. The prosecution has overlooked the lapse and has not made efforts to get the charge altered for invoking Section 148 IPC against the accused and for invoking 149 IPC to read with the offence U/s 302 IPC. Therefore, the conviction of the accused for the offence punishable U/s 304-I r/w Section 34 IPC is affirmed. ( 14 ) THE facts and the evidence discloses that A1 was assaulted by the deceased. The accused immediately in retaliation, assaulted the deceased and caused his death and it is a case and a counter case. Both the incidents take place at the same time and at the same place. In volume II of the Karnataka Police Manual, at page 75, 1998 edition, the following guidelines have been given in respect of factious riotings. "factious RIOTINGS-INVESTIGATION OF: 1779. (1) In a factious rioting, a Police officer should not content himself with laying charge- sheets against both the contending parties, making the prosecution witness in one case the accused in the other and vice-versa, and put forward their versions to the court without any attempt at finding out the truth. If complaints of the offence of rioting containing two divergent versions are given by the parties, it is the duty of the investigating officer to find out which case is true and charge it. The easier course of referring both the case and the counter case undetectable should not be adopted. An impartial, efficient and painstaking investigation should invariably disclose the true facts of any occurrence. The laying of charge sheets in both the case and the counter-case should be resorted to only in exceptional cases or where as stated below, both the parties are guilty of aggression and lawless acts. (2) The principles set forth above apply mutatis mutandis to all tension and clashes between parties, whether they be due to faction or communal or political differences. In such cases, the police should remain completely neutral, but that does not mean that they should not make a distinction between the aggressors and the victims. (2) The principles set forth above apply mutatis mutandis to all tension and clashes between parties, whether they be due to faction or communal or political differences. In such cases, the police should remain completely neutral, but that does not mean that they should not make a distinction between the aggressors and the victims. When a group takes the law into its hands with a view to imposing its will or programme upon those opposed to it, the latter have a right conferred upon them by law to act in defence of their lives and properties. Whenever trouble occurs or is anticipated between two parties, the police should distinguish between the aggressor and the victim in the matter of action under preventive or specific sections of law, the leaders of both the parties being charged in specific cases or put up under security sections only where there is evidence to show that both the parties have been committing aggression. Where one party has been forced to act in self- defence, only the aggressive party should ordinarily be proceeded against. " ( 15 ) THE Division Bench of this Court in STATE OF karnataka vs BALAPPA BHAU VADAGAVE AND OTHERS, has referred to catena of decisions on the point and has held that in the case of complaint and counter complaint, it is be registered separately but the same IO should conduct the investigation in respect of complaint and counter complaint. It is directed that necessary circular instructions to be issued to the police agency to adhere to the guidelines given in the judgment while conducting the investigation in the case of complaint and counter complaint. ( 16 ) IN the instant case, we find that the investigation is not conducted by one and the same IO. . We also find that the PW 16 the IO in this case, has not conducted the investigation with required probity and rectitude PW 16 was in full know of the facts when he recorded the statements of PW4 and PW 5. The said witness implicate only A3 and A5 as the assailants in the statement recorded U/s 161 (3) Cr. P. C. They do not implicate A1 A2, A4 and A6. PW 16 does not verify the correctness of the statement and does not offer any reasons in the charge sheet for rejecting the version of PW 4 and pw 5. The said witness implicate only A3 and A5 as the assailants in the statement recorded U/s 161 (3) Cr. P. C. They do not implicate A1 A2, A4 and A6. PW 16 does not verify the correctness of the statement and does not offer any reasons in the charge sheet for rejecting the version of PW 4 and pw 5. while submitting final report against A1, A2 A4 and A6. The charge sheet is evidently filed with inherent discrepancies and contradictory versions regarding the role and the participation of each of the accused, perhaps obviously to benefit the accused. PW 4 and PW 5 in their evidence implicate A1 to A6 as the assailant and deny that they have not omitted to mention the names of A1 to A6 before IO when their statement is recorded. The above omissions and contradictions appears to be deliberate mischievous manipulations by the IO. In our view it appears that the IO has misused the powers of recording the statement of the witness U/s 161 (3) Cr. P C. and deliberately manipulated the statements to benefit the accused at the time of trial. When the IO deliberately manipulates the statements of witnesses U/s 161 (3) Cr. P. C. to be used as evidence in the court, the io would be guilty of committing the offence punishable U/s 192 IPC. ( 17 ) THE provisions of Section 36 Cr. P. C. reads thus: "36. Powers of superior officers of police. Police Officers superior in rank to an officer-in-charge of a police station may exercise the same powers throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station. The legislative intendment of Section 36 of Cr. P. C is that all the superior rank police officers above SHO including the superintendent of Police should involve in supervising the investigations to ensure the integrity and quality. Unfortunately we find that as a matter of routine the superior rank police officers do not involve in supervising the investigations made by the SHO. It is rarely and only in sensational cases, the S. P and senior police officers take control of the investigation to guide the SHO. The non-use of the provisions of section 36 Cr. P. C by the S. P and other senior police officers has resulted in free and unfettered situation to the. It is rarely and only in sensational cases, the S. P and senior police officers take control of the investigation to guide the SHO. The non-use of the provisions of section 36 Cr. P. C by the S. P and other senior police officers has resulted in free and unfettered situation to the. Os to conduct the investigation in a causal and caviler manner and also to dishonestly manipulate the final reports submitted U/s 173 Cr. P. C. It is very essential that the draw backs in current practices in the investigations have to be over come to bring about effective and quality investigations to bring the culprit to justice. In our view to achieve the above object, it should be made compulsory by circular instructions and by amending the police manual to make it mandatory that the final reports of all the cases triable by sessions, the Superintendent of Distinct shall verify and counter sign the final report before it is filed into the Court In respect of lesser heinous offences, all the final reports have to be verified and countersigned by the Addl. S. P or the ACP Such corrective steps in the police investigation would hopefully bring about fairness and quality in the investigation and would obviate malpractice. ( 18 ) WE direct the Registry to send the copy of the judgment to the Director General of Police and to the Home Secretary for effective compliance of the observations made in the judgment. We also direct the Director General of Police and the Home Secretary to enquire and find out the mala fide if any, of PW 16. e. , IO in recording the statement of the witnesses U/s 161 (3) Cr. P. C. If enquiry reveals that PW 16 is guilty of the offence U/s 192 Cr. P. C, the needed action for prosecution is to be initiated. ( 19 ) FOR the reasons and discussions made above, we convict a-1 to A-5 for the offence punishable U/s 304 Part I r/w Section 34 ipc and each of them is sentenced to undergo R. I for a period of 10 years and to pay a fine of Rs. 20,000/ each, in default to suffer S. I for a period of one year. Criminal Appeal No. 851/04 is partly allowed. Criminal Appeal No. 668/04 is allowed. A-6 is acquitted. 20,000/ each, in default to suffer S. I for a period of one year. Criminal Appeal No. 851/04 is partly allowed. Criminal Appeal No. 668/04 is allowed. A-6 is acquitted. and to be set free forthwith if not required in any other case.