JUDGMENT:- This is an appeal by accused nos.1 and 2, who were convicted for the offences punishable under Sections 324 r/ w. 34 of the Indian Penal Code by the Additional Sessions Judge, Panaji, even though they were charged under Section 307 of the Indian Penal Code. The accused have been sentenced to rigorous imprisonment for two years and fine of Rs.20.000/-. 2. The facts leading to this prosecution arc as follows - On 22nd July. 2001, it is alleged that accused no.3 Sanjeev had stabbed the complainant Antonio. One Rajesh was also along with the accused Sanjeev. At that time the complainant had lodged the report of incident with the police. Upon investigation. the police have filed a charge-sheet against the accused no.3 Sanjeev and Sessions trial In respect thereof is pending before the Sessions .Judge. Since then accused no.3 has been persisting on the complainant to withdraw the said sessions case. He also used to give threat that if he does not, he will see him. It is further alleged that accused no.2 frequently used to accost the complainant and give Such threats . 3. On 16/6/2003, the complainant Antonio along with his friends Neville Baretto and Dinesh Naik had gone to the hotel of one Ulhas. They went there around 9.45 a.m. While they were having tea, it is alleged that a blow was dealt on the head of the complainant and therefore, he turned back to see as to who has assaulted him. He found that it was Kamlesh - accused no" I. who is brother of accused no.3, who had wooden log (Danda) in his hand Said Kamlesh dealt four blows on the head of the complainant. Dinesh asked accused as to why the complainant was being assaulted. Accused no.1 Kamlesh gave him threat and said that it \Vas none of his business and charged at him. Dinesh. therefore. backed out. In the meanwhile. accused no.2 Nilesh took sword and attacked the complainant. He dealt six blows on the person of the complainant. While the complainant tried to ward off the assault with his hand, he suffered cut injuries on the forehand. Thereafter, it is alleged that accused no.3 Gabba @ Sanjeev took out a revolver, pointed it at the complainant and threatened him to kill him. He dealt six blows on the person of the complainant. While the complainant tried to ward off the assault with his hand, he suffered cut injuries on the forehand. Thereafter, it is alleged that accused no.3 Gabba @ Sanjeev took out a revolver, pointed it at the complainant and threatened him to kill him. The complainant got scared and was about to run and it is Nilesh accused no.2, who gave blow of sword on his back. Accused No.3 instigated accused nos. 1 and 2, to assault the complainant and brake his hand and leg. Accused no. 1 Kamlesh once again dealt a blow of wooden log on the leg while accused no.2 Nilesh dealt a blow of sword on the leg. Thereafter, all of them went away in Maruti Zen car parked nearby. The owner of the hotel gave some Soda to the complainant and then Dinesh Naik brought the complainant to the Government Medical College and Hospital at Bambolim, The complainant was examined by the Medical Officer. He found injuries with sharp cutting weapons on the person of complainant and issued a Certificate to that effect. The complainant was also referred to Neuro Surgery Department. His blood was collected. It is alleged that on 24/6/293 accused nos.1 and 2 surrendered before the court and were remanded to two-days custody. While in police custody, it is alleged that on 25/6/2003, accused nos.1 and .2 both made a statement that they would show the weapons of the offence which they have concealed. Accordingly, memorandum was prepared. The accused led the police and panchas to the place where it is alleged that accused No.1 Kamlesh discovered the wooden log while accused no.2 Nilesh discovered the sword. 80th were seized by the police. In the meanwhile, the police had drawn panchanama of the place of occurrence from where tile pieces of broken glasses stained with blood were seized by the police. The weapons of offence and the pieces of glasses were later forwarded to the Forensic Science Laboratory and upon completion of the investigation, a charge-sheet came to be filed before the Magistrate. The learned Magistrate committed the case to the court of Sessions. 4. The leaned Additional Sessions Judge framed charge under Section 307. 506 r/w 34 of the Indian Penal Code and 4 and 25 of the Arms Act. 5. The learned Magistrate committed the case to the court of Sessions. 4. The leaned Additional Sessions Judge framed charge under Section 307. 506 r/w 34 of the Indian Penal Code and 4 and 25 of the Arms Act. 5. The learned Sessions Judge recorded the evidence of witnesses and upon consideration of the evidence found accused no.3 not guilty of any offence with which he was charged. He was as such acquitted. The learned Additional Sessions Judge, however, found accused nos. 1 and 2 guilty of offence under Section 324 instead of Section 307 and sentenced them as stated earlier. 6. Being aggrieved by this order of conviction and sentence. accused nos. l and 2 have preferred this appeal. 7. I have heard the learned counsel for the appellant/accused and the State and have perused the record. 8. The prosecution has examined as many as fifteen witnesses in the instant case. Out of them. PW-I Antonio is the complainant. PW-2 Neville. PW-4 Dinesh, PW-5 Ujwala are said to be the eye-witnesses. PW-3 is the panch on the spot panchanama. PW-6 is the real brother of the complainant (PW-7). The others arc the panch witnesses, Medical Officer and the Investigating Officer. 9. The trustworthiness of the prosecution case has always to be tested on the touchstone of F.I.R. The learned counsel for the appellant/accused contends before me that in the instant case the FIR was lodged very late and there has been no explanation whatsoever from the prosecution. A need to lodge a report immediately has been emphasized by the Courts, although in each and every case the delay may not be fatal. A more credibility is generally attached to an FIR which is lodged instantly and within a reasonable time but when there is a delay. the same kind of credibility cannot be attached to it. The evidence of PW 1 Antoni shows that the incident in question had taken place at 9.45 a.m. The printed FIR ((Exh.PW.1/A)) shows that the F.I.R. was lodged at 18.00 hrs. i.e. 6.00 p.m. in the evening. There is thus a delay of almost ten hours. It appears from the evidence of PW 15 Ashish - the Inspector of Police -that upon instructions of P.1. Nigalye, he went to the hospital to record the complaint of Antonio. i.e. 6.00 p.m. in the evening. There is thus a delay of almost ten hours. It appears from the evidence of PW 15 Ashish - the Inspector of Police -that upon instructions of P.1. Nigalye, he went to the hospital to record the complaint of Antonio. It is obvious that nobody had gone to the police voluntarily to lodge a report but report was taken down because police officers were to the hospital. The printed FIR Co1.No.5-A shows that the spot of incident is only half a kilometer away from the police station. Further, the evidence of PW 1 Antonio shows that he had gone to the place of incident along with his friend Neville and Dinesh and they were all the while with him. PW-I Antonio claims that both these persons had witnessed the incident. He also mentions in the FIR that Dinesh had taken him to the hospital. Neither of these two persons had suffered injuries in the incident. There was. Therefore, no difficulty at least for Neville to report the matter to the police immediately. There was also no difficulty for even Dinesh to come to the police station after admitting Antonio to the hospital and submit a report or Dinesh could have given information to the police out-post in the government hospital where Antonio was admitted. This conduct of both these persons is far from natural. Besides this unnatural conduct. let us see if there is any explanation why no report was lodged at all till 18 hrs. If the evidence of these prosecution witnesses i.e. PW I Antonio and PW 2 Neville as well as PW 4 Dinesh is seen, the prosecution has not even tried to explain the delay through them. This too is very unnatural. At least one of them could have explained the delay in lodging the FIR as to why none of them ever could go to the police and inform the police about the incident. The only inference that can be drawn from this conduct is that either these two persons were not at all present or did not know anything or they have no explanation to offer why they did not go to the police station at all. The only inference that can be drawn from this conduct is that either these two persons were not at all present or did not know anything or they have no explanation to offer why they did not go to the police station at all. Considering the gravity of the offence, the distance between the police station and place of incident, and number of persons available to lodge the report, this delay has to be treated as serious lapse and in fact fatal. It is said that delay in lodging FIR quite often results in embellishment which is a creation of afterthought. It looses its spontaneity and danger of coloured version and concocted story creeps in. In this back ground, the learned Senior Counsel Shri. Desai for the accused/appellant invited my attention to the judgment in the writ petition No.19/2003 by the Goa Bench. This writ petition was filed by the wives of the accused. who were facing trial. It was alleged in this writ petition that the police officers investigating this crime had paraded the three accused half naked in their village al the behest of the Minister. Although the court has not opined as to whether the Minister was at all concerned with the incident but it is certainly held that the accused while in custody in this crime were paraded half naked with handcuffs I quote here the observations made by the coul1 in paragraph nos.19 to 21. "19. In the case of Fattuji Vs. The Superintendent of Police, Akola and Ors ., (2002 ALL MR (Cri) 107). A Division Bench of this court dealt with the death of an accused in custody and directed the State to compensate the children of the deceased in the sum of Rs.1.75.000/- and further directed the State not only to take disciplinary proceedings against the Police Officers, who were found responsible for the death of the said accused Suresh Fattuji Gedam, while in police lock-up but also to prosecute them for having committed offence to which they may be found guilty in the course of investigation by handing over the investigation of the case to an Officer of the rank of D.I.G. Police or above. The court also directed action to be initiated against all those Police Officers, who were on duty at the Police station during the time when the deceased was arrested and till his death. The court also directed action to be initiated against all those Police Officers, who were on duty at the Police station during the time when the deceased was arrested and till his death. In the case of Shobha Anil Londase Vs. State of Maharashtra and Ors. (2003 ALL MR (Cri) 1491), another Division Bench of this Court, to which one of us were parties (R.M.S. Khandeparkar. J.) also dealt with custodial death and ordered compensation to be paid in the sum of Rs.3.00.000/- to the petitioner being the husband of the said accused within a period of six weeks and to file compliance report. The Court also directed to hold necessary inquiry to fix up responsibility to contribute the said compensation and ordered to take necessary steps in accordance to the provisions of law to recover the same from those persons and further directed compliance report to be filed within a time prescribed. This court also directed to initiate necessary proceedings against all the persons responsible for the custodial death of the husband of the petitioner namely Anil Londase and to take legal action against those persons and directed that compliance report be filed within the stipulated time. 20. In the last two cases, referred to herein above, this court followed the principle laid down by the Apex Court in Nilabati Behera Vs. State of Orissa (AIR 1993(2) S.C.C. 746 ), that enforcement of constitutional right and grant of redress embraces award of compensation as part of legal consequences of its contravention and award of compensation is a remedy available in public law based on strict liability for contravention of fundamental rights. 21. In the case at hand, although respondent nos.1 to 3 came to the conclusion, on an inquiry report submitted by the Submitted Police Officer, that there were certain lapses on the part of the police and, accordingly, transferred all the six Police Officers/Officials, nothing happened as far as the disciplinary proceedings ordered to be initiated against P.S.I. Rajan Nigalye and P.I. Salim Shaik and it has been alleged by the petitioners that in spite of the said Order to initiate disciplinary proceedings, at one stage, P.S.I. Rajan Nigalye was promoted and then again reverted. The handcuffing of the said two accused has been admitted. The handcuffing of the said two accused has been admitted. The reasons assigned for the said handcuffing cannot at all be accepted and they are only accuse to justify the actions of respondent nos.4 to 6 and the parading of the said two accused in handcuffs, which was done only to humiliate them. We, therefore, direct the respondent State to compensate each of the said two accused for violation of their human rights and consequent humiliation meted out to them by parading them in handcuffs, in the sum of Rs.15.000/- each. We further direct respondent no.3 to file a compliance report within a period of six weeks from today, as regard payment of compensations. We direct the respondent State to hold and complete the disciplinary proceedings against respondent nas.4 to 6. Police Officers, within a period of six months from today and file compliance report within two weeks thereafter. Respondent State will be at liberty to recover the said compensation from respondent nos.4 to 6 as deem fit and in accordance with law. We make it clear that no observations made herein will come in the way of prosecution of the said accused in Crime No.96/03. In view of the above. Rule is made absolute in terms of above directions with costs of Rs.5.000/-"• Now from this observations of the High court, it is very much clear that everything was not normal during the course of the investigation and the police officers had gone out of the way. This fact cannot be lost sight of while considering the evidence. It appears that one hide out panchanama (disclosure panchanama) was prepared by the police. One wonders why this panchanama at all was prepared, what is sought to be proved under this panchanama is the place where the accused had allegedly hidden themselves. This appears to be a very strange conduct in the context of the above facts. This panchanama is dated 28/6/2003. It appears to me that the pachanama was prepared to overcome the difficulty in explaining the presence of the accused persons out of custody on 28/6/2003 as it is alleged that they were paraded on 28th itself. Although it is not clear as to at whose behest the police did this, the fact remains that therefore is somebody behind it. There is, Therefore, something more than meets the eye. 10. Although it is not clear as to at whose behest the police did this, the fact remains that therefore is somebody behind it. There is, Therefore, something more than meets the eye. 10. Further, the learned Senior Counsel Shri. Desai submits that this report upon which FIR (Exh.PW.1/A) is registered could not be treated as an FIR at all. He submits that it is only the information first in time given to the police becomes an FIR and all subsequent reports or statements are attached to be treated as statement under Section 161 of Cr.P.C.. 11. He relied on a decision reported in (2001)6 SCC 181 (T. T. Antony Vs. State of Kerala and ors.). The Supreme court has observed that - "21. The learned Solicitor-General relied on the judgment of this court in Ram Lal Narang Vs. State (Delhi Admn.) (referred to as "'Narang case") to contend that there can be a second FIR in respect of the same subject-matter. In that case the contention urged by the appellant was that the police had committed illegality, acted without jurisdiction in investigating into the second case and the Delhi Court acted illegally in taking cognizance of that (the second) case. A reference to the facts of that case would be interesting. Two precious antique pillars of sandstone were deposited in the Court of lIaqa Magistrate, Karnal, as stolen property. One N. N. Malik filed an application before the Magistrate seeking custody of the pillars to make in detail study on the pretext that he was a research scholar. It appears that the then Chief Judicial Magistrate of Karnal (H. L. Mehra), was a friend of Malik. At the instance of Mehra the said Ilaqa Magistrate ordered that the custody of the pillars be given to Malik on his executing a bond. About three months thereafter Malik deposited two pillars in the Court of I1aqa Magistrate, Karnal. After some time it came to light that the pillars returned by Malik were not the original genuine pillars but were fake pillars. An FIR was lodged against both Malik and Mehra under Section 120-8 read with Section 406 and 420. IPC alleging conspiracy to commit criminal breach of trust and cheating. CBI after necessary investigation tiled charge-sheet in the Court of Special Magistrate. Ambala, against both of them. An FIR was lodged against both Malik and Mehra under Section 120-8 read with Section 406 and 420. IPC alleging conspiracy to commit criminal breach of trust and cheating. CBI after necessary investigation tiled charge-sheet in the Court of Special Magistrate. Ambala, against both of them. Ultimately on the application of the Public Prosecutor the case was permitted to be withdrawn and the accused were discharged. Sometime later the original genuine pillars were found in London which led to registering an FIR in Delhi under Section 120-B read with Section 4 11,IPC, and Section 25( 1) of the Antiquities and Art Treasures Act. 1972 against three persons who were brothers (referred to as "the Narangs"). The gravamen of the charge against them was that they. Malik and Mehra. conspired together to obtain custody of the genuine pillars, got duplicate pillars made by experienced sculptors and had them substituted with a view to smuggle out the original genuine pillars to London. After issuing process for appearance of the Narangs by the Magistrate at Delhi. an application was filed for dropping the proceedings against them on the ground that the entire second investigation was illegal as the case on the same facts was already pending before the Ambala Court, therefore, the Delhi Coul1 acted without jurisdiction in taking cognizance of the case on the basis of illegal investigation and the report forwarded by the police. The Magistrate referred the case to the High Court and the Narangs also filed an application under Section 482. Cr.P.C. to quash the proceedings. The High Court declined to quash the proceedings. dismissed the application of the Narangs and thus answered the reference. On appeal to this Court, it was contended that the subject-matter of the two FIRs and two charge-sheets being the same, there was an implied bar on the power of the police to investigate into the subsequent FIR and the Court at Delhi to take cognizance upon the report of such information. This Court indicated that the real question was whether the two conspiracies were in truth and substance the same and held that the conspiracies in the two cases were not identical. It appears to LIS that the court did not repel the contention of the appellant regarding the illegality of the second 1;IR and the investigation based thereon being vitiated, but on facts found that the two FIRs. It appears to LIS that the court did not repel the contention of the appellant regarding the illegality of the second 1;IR and the investigation based thereon being vitiated, but on facts found that the two FIRs. in truth and substance were different - the first was a smaller conspiracy and the second was a larger conspiracy as it turned out eventually. It was pointed out that even under the Code or 1898. after filing of final report, there could be further investigation and forwarding of further report, The 1973. Cr.P.C. specifically provides for further investigation after forwarding of report under sub-section (2) of Section 173. Cr.P.C. and forwarding of further report or reports to the Magistrate concerned under Section 173(8). Cr.P.C. It follows that if the gravamen of the charges ill the two FIRs -the first and the second-is in truth and substance the same, registering the second FIR and making fresh investigation and forwarding report under Section 173. Cr.P.C. will be irregular and the court cannot take cognizance of the same. " In another decision reported in AIR 1960 SC 391 (The State of Bombay Vs. Rusy Mistry and another), The Supreme Court has observed that - "7. The first information report is the information recorded under 5.154 of the Cr.P.C. It is an information given to a police officer relating to the commission of an offence. It is also an information given by an informant on which the investigation is commenced. It must be distinguished from information received after the commencement of the investigation which is covered by Ss.161 and 162 of the Cr.P.C. It is well settled that the first information report is not substantive evidence, but can only be used to corroborate or contradict the evidence of the informant given in court or to impeach his credit. It follows that a judge cannot place such a report before the jury as substantive evidence, but can only refer to that portion of it which had been used for one or other of the aforesaid purposes. 8. In this case, the learned Sessions Judge found that Exh.26 was not a firsl information report as it was not the first complaint Mrs. Bapasola made to the police. 8. In this case, the learned Sessions Judge found that Exh.26 was not a firsl information report as it was not the first complaint Mrs. Bapasola made to the police. If it was not the first information report, it was hit by 55.161 and 162 of the Cr.P.C. and the learned judge should not have relied upon it except to the extent permitted by the proviso to 5.162 of the Cr.P.C. i.e. to contradict Mrs. Bapasola with reference to any particular statement therein. The learned Sessions Judge had. Therefore, clearly misdirected himself in reading the so called "relevant portions" of the said document to the jury." 12. The proposition as made by Shri. Desai cannot be disputed. Mr. Desai submits that the evidence of two police officers would disclose that they have had some information before the statement of the complainant PW 1-Antonio was recorded. PW 15. PSI Ashish states that he was in the hospital (Government Medical College) and he was informed by PI Nigale that Antonio was assaulted and admitted in the hospital and to record his statement. PW 14 PI Rajesh Nigale. however. does not say that he had given any instructions to PI Ashish (PW 15). However, it appears that PI Nigale who was in the police station had some information. That information is not coming before the court at all. It may be mentioned fairly here, that some station diary entry was brought and shown in this court but no copy of it is filed. It is, therefore, difficult to take cognizance of the same hut the fact is that before trial court that information was not placed. What was the information, who gave the information is not clear. It is also not clear if the information that was give was very cryptic information or detailed information, was it given on the telephone or was given orally. There has been an attempt, therefore, to suppress that information. Had that information been placed before the court then perhaps the court would have come to the conclusion as to whether the complaint recorded by PSI Ashish in the hospital, could he treated as an FIR or one which was given to the police could be treated as FIR. This cannot be decided because nature of the information in the police station is not placed before the court. This cannot be decided because nature of the information in the police station is not placed before the court. In the reported cases, the court had found that if the information, that is available with the police at the first instance, is very cryptic or given on phone, that cannot be treated as an FIR. But in the absence of that particular information before the court, it cannot be said that the information first in time that was available was not an FIR and could not be treated as an FIR. Normally, in the Government hospital or at least the district hospital and the Government Medical College, there is always police out-post available where the information of medico legal cases is immediately sent, No such kind of information is even placed before the court and therefore, it must be said once again that said information is suppressed. 13. It is in this background, the veracity of the prosecution version needs to be considered. Shri Desai, Senior Counsel, submits that if the evidence of the witnesses is read in the above context, one is left with no other alternative but to say that no case beyond reasonable doubt is made out against the accused. He submits that the court may first take into consideration the antecedent of this witness. 14. PW 1 Antonio, who is the victim, admits that he was co-accused along with accused no.3 in sessions case for attempt to murder. He admits of being charged in sessions case along with accused no.3 also. He further admits of there being four criminal cases against him and finally admits that externment proceedings were taken up against him. These are his antecedents. They would not by themselves be enough to reject his testimony outright. Law is well settled that even such a witness can be relied, but his evidence has to be appreciated with more circumspection. But these antecedents assume importance in the context of the circumstances pointed above and which I shall presently point out. 15. PW I Antonio deposes that he had gone to the hotel of Ulhas around 9.45 a.m. with Nevil and Dinesh. He states that when he was taking tea, accused no. 1 Kamlesh gave a blow of Danda on his head and when he resisted and questioned him, he gave four more blows on the head. He further states that when Dinesh tried to intervene. He states that when he was taking tea, accused no. 1 Kamlesh gave a blow of Danda on his head and when he resisted and questioned him, he gave four more blows on the head. He further states that when Dinesh tried to intervene. Accused no.l Kamlesh gave him a threat and Dinesh got frightened and went aside. He further testifies that accused no.2 Nilesh was present there with sword. He dealt 5 to 6 blows to him. Further he goes on to depose that when he tried to ward off the blows with the hands, he suffered injuries to his forehand. He tells further that his veins were cut, further he goes on to depose that accused no.3 (acquitted) challenged him to come out and then pointed a revolver at him and threatened him to kill him. Next, he states that accused no.1 again dealt a blow of sword on his hack and he fell down. Even thereafter, it is alleged by him that accused Kamlesh gave a blow or Danda on a knee and accused no.2 gave a blow of sword on a knee. In this regard, it may be mentioned that Danda as well as the sword were produced before the court. Danda is nothing but a wooden log which appears w be very heavy and is in fact capable of crushing, if dealt with even minimum of force. Now, the witness says that five blows with the Danda arc dealt on his head. Danda is a hard and blunt object. The injury certificate is at (Exh.55). PW 10 Dr. C. N. Fernandes described the injuries as follows - Incised looking wounds wit active bleeding. 1. Measuring 2 x 1 x 1 cms. on the left lower leg. 2. 6 x 4 x 2 cms. on the left side of the head. 3. 6 x 3 x 2 cms. on the right side of the head. 4. 5 x 2 x 2 cms. on the back of the head. 5. 2 x 2 x 1 cms. on the forehead. 6. 0.5 x 0.5 x 1 cms. on the partial region of the head. These injuries were caused by sharp object, within 6 hours duration and were taken collectively as dangerous. 7. Incised looking wound with underlying muscles cut 8 x 4 x 2 cms. on the right forearm. 8. 7 x 3 x 2 cms. on the forehead. 6. 0.5 x 0.5 x 1 cms. on the partial region of the head. These injuries were caused by sharp object, within 6 hours duration and were taken collectively as dangerous. 7. Incised looking wound with underlying muscles cut 8 x 4 x 2 cms. on the right forearm. 8. 7 x 3 x 2 cms. on the right hand. 9. 3 x 2 x 1 cms. on the left forearm. 10. x 3 x I cms. on the right forearm. The above injuries were caused by sharp object. within 6 hours duration and collectively serious, patient also had haemarthrosis of the left knee joint caused by blunt object within 6 hours duration and grievous in nature. 16. Injuries nos.2 to 6 above appear to be on the head. He says that all injuries on the person of victim are caused by sharp object Danda, as said earlier, is not a sharp cutting instrument but it is a hard and blunt object None of these injuries noticed on the person of the complainant could be attributed to Danda at all Even though five blows of Danda are said to have been dealt on the head, there is no fracture of the skull Further, the witness PW 1 says that Nilesh had given him a blow of sword on his back and then he fell down, If the location of the injuries is seen, there is no injury whatsoever on the back of complainant, much less an injury with sword. PW. 1 claims that on left knee, accused no, 1 Kamlesh had given a blow of Danda, There is no injury with hard and blunt object on the knee at all. In fact there is not even a contusion either on the head or on the leg. 17. Another important thing, which cannot just be ignored is that the FIR discloses that accused no.2 Nilesh had given 5 to 6 blows with sword and when he tried to ward off he suffered injury to his hand. The FIR docs not disclose that the blows of sword were given on the head at all. Even during course of evidence the witness docs not state that any blow of sword was given on the head. What is stated is that 5-6 blows with sword were given but their location is neither given in the FIR nor in the evidence. Even during course of evidence the witness docs not state that any blow of sword was given on the head. What is stated is that 5-6 blows with sword were given but their location is neither given in the FIR nor in the evidence. But there are injuries with sharp object on the head. Just as the witness could tell the blows with Danda were given on the head, there was no difficulty in saying as to where the blows with the sword were given. This shows that actually there is no injury caused with Danda on head, though it is stated on oath and FIR. since those injuries arc with sharp cutting object There is no oral evidence that blows with sword is given on the head nor the FIR discloses that Obviously, there is discrepant version which raises a doubt and suggests that the truth is not coming before the court. Not only this aspect renders the testimony of PW I untrustworthy but there arc other circumstances, which support this conclusion. 18. PW 1 Antonio states that prior to this incident in question there was dispute between him and accused no.3. He states that accused no.3 and Rajesh had attacked him and he had lodged the report with the police on 22/ 7/2001 and sessions case is pending against accused no.3. He states that accused no.3 was pressurizing him to withdraw the case. He also states that accused no.3 used to accost him frequently and insist on withdrawal of the case. Now, this is the cause that is being put forth by the complainant for assault on him. II' the evidence of PW I is seen, it is clear that accused no.3 has not played any part in actual assault which appears to be very strange. It is alleged that accused no.3 had given threat by pointing revolver at him. This revolver is not recovered nor any attempts have been made for its recovery. The sword and the Danda are recovered but no revolver of accused no.3 against whom the complainant had major grievance is recovered and that appears me to be strange. PW I Antonio is a person, who is himself facing so many sessions trials. Similarly, accused no.3 is also facing Sessions trial in many cases. It is. The sword and the Danda are recovered but no revolver of accused no.3 against whom the complainant had major grievance is recovered and that appears me to be strange. PW I Antonio is a person, who is himself facing so many sessions trials. Similarly, accused no.3 is also facing Sessions trial in many cases. It is. Therefore, difficult to assume that none of these persons knows that the sessions case cannot be withdrawn, Therefore, what is alleged by the complainant that accused was insisting upon withdrawal of the sessions case does not appear to be true and correct. 19. PW 2 Neville and PW 4 Dinesh are said to be the eye-witnesses. PW 2 Neville states that he had gone with the complainant and Dinesh to the hotel for having tea. He states that accused nos.1 to 3 came to hotel and accused no.1 Kamlesh hit a Danda on the head of the complainant and when Dinesh questioned, accused no. I charged at him. He also states that accused no.2 Nilesh assaulted with sword but the evidence of this witness reveals that it is really doubtful if this witness as well as Dinesh watched the incident of assault. He states that after the assault. the accused came out of the hotel and went away in the car. He states that thereafter complainant came out and was seen bleeding. The fact that the witness speaks of accused and the complainant both coming out of the hotel. suggests that the witness himself was outside the hotel and not inside. Such a conclusion can, not only be drawn, from the above statement but also from his statement in the cross- examination that he and Dinesh both had run away from the hotel by the back door. Obviously it is also doubtful if both had seen the incident. On the their hand, in fact, there is no doubt that Dinesh did not see the incident at all. 20. PW 4 Dinesh is the friend of the complainant. He was declared hostile by the prosecution. He does not appear to be ready to make a clean breast. He states that the accused came and had a heated exchange of words with the complainant and when he tried to pacify them, they gave him threats and he went towards kitchen. He states that when he carne to the spot, the accused had suffered injuries. He does not appear to be ready to make a clean breast. He states that the accused came and had a heated exchange of words with the complainant and when he tried to pacify them, they gave him threats and he went towards kitchen. He states that when he carne to the spot, the accused had suffered injuries. He admits in cross-examination that spot of incident cannot be seen from the kitchen. This clearly again shows that he did not watch the incident at all. The last and most vital admission that this witness gives is that he says that he did not see any weapon or Danda or sword with any of the accused. Further Dinesh says that he could not inform the police as he was alone with the complainant and the complainant was bleeding. But PW 2 Neville says that he and Dinesh both took complainant to the hospital. Thus, on the very material point the witnesses contradict each other. It appears to me that it is really very doubtful whether these two witnesses at all watched the incident and were present there. May be because or that they did not lodge any report with the police. 21. The other witness, who is examined as an eye-witness, is PW 5 Ujwala-owner of the hotel. She too has been declared hostile and docs not claim to have seen the incident at all. Her evidence does not take the case any further. 22. It was contended on behalf of the State that the discrepancies in the evidence are very minor and court should not take them into consideration. He submits that there was a strong motive for the accused to assault the victim, He relied on a decision of the Supreme Court reported in (1973)2 SCC 583 (Akalu Ahir and others Vs. Ramdeo Ram). The Supreme Court has observed as follow - (ii) Enmity as usual is a double-edged weapon. providing motive both for the offence as well as for false implication, The evidence in such a case. Has, therefore, to be scrutinised with care so that neither the guilty party wrongly escapes on the plea of enmity, nor an innocent person gets wrongly convicted on that basis. 23. In the instant case, there appears to be old m airy between the parties. Both have criminal background. Has, therefore, to be scrutinised with care so that neither the guilty party wrongly escapes on the plea of enmity, nor an innocent person gets wrongly convicted on that basis. 23. In the instant case, there appears to be old m airy between the parties. Both have criminal background. Therefore, the motive docs not assume great importance in the instant matter The discrepancies and quality of evidence as pointed above leave no alternative but to discard the testimony of all these witnesses. In fact, in cases of direct evidence, motive assumes very less importance. A decision reported in 2000(4) SCC 515 (State of U.P. Vs. Babu Ram) was placed before me. From this decision, it is clear that the court has to take into consideration the motive even in cases of direct evidence but it does not assume that importance which it assumes in cases of circumstantial evidence. In the instant case, the motive does not assume any importance because of the fact that the accused and the complainant both could be said to be knowing that the sessions cannot be withdrawn unilaterally by the complainant or at his instance. Further, although PW I Antonio says that he was repeatedly being given threats for withdrawal, he admits that he did not lodge report of any such incident of threats with the police and this suggests that what is being told is not true. 24. Shri. Desai, learned Senior counsel for the appellant/accused, contends that not only this oral evidence is discrepant but the so-called circumstantial evidence cannot inspire any confidence to prove the trustworthiness of the persecution, lie first invited my attention to the spot panchanama i.e. PW-3/A. PW-3 Raya is the panch witness. He states that he was called by police as a panch around 6.30 pm. at a hotel at Talegaon He says he saw blood stains on the table and wall around and the blood stains to some extent were wiped out. He states that pieces of the broken glasses were also found stained with blood and they were seized by the police. Section 100 of Cr.P.C. says that a witness could be an independent person from that locality. The witness appears to be in fact a stock witness. He admits in cross-examination that he is an electrician and he had done electrical work at the house of PSI Nigle and in the police station. Section 100 of Cr.P.C. says that a witness could be an independent person from that locality. The witness appears to be in fact a stock witness. He admits in cross-examination that he is an electrician and he had done electrical work at the house of PSI Nigle and in the police station. He also admits to have acted as a panch in 2-3 cases and particularly in another case against accused no.3. Although the witness says that the blood stains were found on the pieces of the glasses, the report of the chemical analyzer (Exh.62) shows that no stains of blood were found on the pieces of the glasses. Thus, what the witness states is not true. Another thing that needs to be noted is that PW 5 Ujwala - the owner of the hotel says that after the incident she had cleaned the hotel and had arranged furniture in the hotel in order. The incident had taken place around 9.30 to 10.00 a.m. while the panchanama had taken place at 6.30 p.m. PW 5 has clearly stated that she had arranged furniture and everything in order soon after the incident. Yet PSI Nigle (PW 14) in examination-in-chief says that when he went to the spot at 6 pm ., he found all furniture in disarranged manner and pieces of glasses strewn around and blood stains were also found. This is contrary to the contents of the panchanama as well as the evidence of the owner. PW 3 Raya-the panch-says that the blood stains were found on the wall and even contents of panchanama also shows so. Contrary to this. PSI Nigle (PW 14) admits in cross-examination that he did not collect any blood stains from the wall by scrapping it and it was not removed. If they were blood stains, there was no difficulty for the PSI to collect those blood stains by scrapping that portion of the wall. The fact that he did not do so suggests that there were no blood stains whatsoever on the spot. This evidence, therefore, also docs not inspire any confidence at all. 25. This takes me to the next circumstantial evidence of discovery. The undisputed fact is that accused nos. 1 and 2 were in the custody of the police. PW 7-Edward Menezes Jose is the witness on this memorandum panchanama (Exh.33). This evidence, therefore, also docs not inspire any confidence at all. 25. This takes me to the next circumstantial evidence of discovery. The undisputed fact is that accused nos. 1 and 2 were in the custody of the police. PW 7-Edward Menezes Jose is the witness on this memorandum panchanama (Exh.33). He state that he was called in the police station and accused no. 1 Kamlesh made a statement in Konkani that he will show Danda where he has concealed it. He states that this statement of accused Kamlesh was taken down in Konkani. Further he states that thereafter accused no.2 Nilesh stated that he had kept the sword at Vodlebhat and this statement was also recorded. It is deposed by PW 7 Edward that they went with accused and police in the police jeep at Vodlebhat as shown by the accused. Further, he states that the accused persons took them to the paddy field and from bushes accused no. 1 took out Danda and it had blood stains. It is further stated that accused no.2 Nilesh from same place dug mud and removed a sword. He further states that both the articles had blood stains on it. The learned senior counsel Shri. Desai advances a very strange argument in order to discard this discovery evidence. According to him, the accused should give information and on that information the police should discover or recover the object. The submission does not appear to me to be very sound. In a case of discovery, what is necessary is that, not only the accused should give such information, but such information, must lead to discovery of some object at the instance of the accused. The accused must lead the police and the panchas to such place which could be said to be in the exclusive knowledge of the accused. The learned Public Prosecutor had cited a ruling to me which is reported in 2003(9) SCC 277 (Golakonda Venkateshwara Rao Vs. State of A.P.). The accused must lead the police and the panchas to such place which could be said to be in the exclusive knowledge of the accused. The learned Public Prosecutor had cited a ruling to me which is reported in 2003(9) SCC 277 (Golakonda Venkateshwara Rao Vs. State of A.P.). The observations is as follows - "The provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information call safely be allowed to be given in evidence because if such an information is further fortified and confirmed by the discovery of articles or the instrument of Clime and which leads to the belief that the information about the confession made as to the articles of crime then cannot be false. MO .3, MO 4 and MO 5 were received from the well. MO 2. MO 6 and MO 8 are the pieces of langa dug out and unearthed at the disclosure of the appellant. These materials were not found lying on the surface of the ground hut they were found inside the well, which had 6-11 2-feet-deep water, with the help of swimmers and were found after being dug out and unearthed only after the place was pointed out by the appellant. It is not found from a place where the public can have free access. Therefore. there is no reasonable apprehension of the material exhibits being planted there to rope in the appellant in the crime. 26. Shri. Desai. learned counsel for the accused/appellant also placed reliance on the decision of the Supreme Court, reported in 2004(10) SCC 657 (Anter Singh Vs. State of Rajasthan). The court observed as follows- "15. At one time it was held that the expression "fact discovered" in the section is restricted to a physical or material fact which can be perceived by the senses. and that it does not include a mental fact, now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kottaya case and Udai Bhan Vs. State of U.P.. 16. and that it does not include a mental fact, now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kottaya case and Udai Bhan Vs. State of U.P.. 16. The various requirements of the section can be summed lip as follows: (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must nave been discovered. (3) The discovery must have been in consequcnce of some information received from the accused and not by the accused' s own act. (4) The person giving the information must be accused of any offence. (5) He must he in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved, The rest is inadmissible." 27. Shri. Desai, the learned senior counsel, it seems had made aforesaid submission all the basis of use of words in that judgment "not by accused' s own act", This has to he read in the context or observations made in paragraph no,15. It simply means that if the accused voluntarily comes to the police station and produces certain articles voluntarily, that would not rail under Section 27 or the Evidence Act. The discovery cannot, therefore, be rejected on the ground that is raised by Mr. Desai. 28. In the instant case, both the punch witness do not appear to me to be independent witnesses. They seem to be very close to the investigating Officers. As far as PW 7 Adward is concerned, he says that he had parked his vehicle for going to the Mamlatdar' s office and while passing he was called. He admits that he was called as PSI Nigk knows him very well. They seem to be very close to the investigating Officers. As far as PW 7 Adward is concerned, he says that he had parked his vehicle for going to the Mamlatdar' s office and while passing he was called. He admits that he was called as PSI Nigk knows him very well. Leaving aside his own work he goes to the police station, moves along with the police for the whole day. He docs this perhaps because or the fact that he was facing action under Section 151 of Cr.P.C ., which speaks or detention of the person to prevent a breach of peace. In the circumstances, this person or witness cannot be said to be an independent person who can be safely relied upon. The other witness admits that he knows PSI Nigle very well and he works in the Municipal Council. Obviously, he is also under the thumb of the Inspector and could not be said to be an independent witness. 29. Assuming for the sake of argument that such objects were discovered and recovered at the instance of the accused, the question is whether those objects could be connected to the crime. If they can, then alone the discovery carries any weight. In this regard both the witnesses say that there were blood stains on both the objects, The report of the chemical analyzer (Exh.62) shows that blood was detected on the objects but the blood group of the stains could not be detected at all. Obviously, there is nothing to show that these are the very objects which can be said to be used in the crime. It must be shown that the blood stains on the objects match with the blood group of victim in the crime, That is not proved by the prosecution. This discovery is, therefore, inconsequential. 30. To sum up, following are the factors which render the case of the prosecution to be untrustworthy. We have seen that there is no explanation of delay in submitting the first information report. Not only that, the two persons who were with injured Antonio did not voluntarily go to police station any time to lodge FIR but the real brother of complainant i,e. Santan Cruz (PW 6), who had received an information on phone of Antonio having been admitted to hospital. docs not go to the police station and does not lodge the report. docs not go to the police station and does not lodge the report. Although, therefore, three persons have had information of the incident. none of them goes to the police station to lodge the report. Neither PW 2 Nevil nor PW 4 Dinesh goes any time to the police station until the police choose to record their statements on 25th. The report Exh.PW l/A shows that it was lodged on 16/6/2003. The report disc loses the names of both the witnesses. Yet no statement of any of the accused is recorded by the police for nine days. There is no explanation to this even. PW 1 and 2 were not arrested until they voluntarily surrendered. We have already seen that the oral evidence of eye-witnesses is extremely discrepant and contradictory. The medical evidence docs not corroborate the version of the complainant and the eye-witnesses. The circumstantial evidence is not also free from blemish. 31. The learned Sessions judge, to my mind, failed to consider all these aspects in proper perspective and came to wrong conclusion. It was rightly submitted that on the same set of facts and evidence, the learned sessions judge chose to acquit the accused no.3 and convicted accused nos. 1 and 2, particularly when Section 34 was applied. The learned sessions did not consider the evidence in proper perspective and therefore, came to a wrong conclusions. I find that the prosecution has failed to establish its case beyond reasonable doubt and therefore, the accused are entitled to benefit or doubt. In the result. the appeal must succeed. The appeal is allowed. The conviction of both the accused under Section 324 of the I.P.C. and the sentence imposed by the sessions judge arc set aside. The accused arc acquitted of the offence publishable under Section 324, read with section 34 of the I.P.C. Their bail bonds stand cancelled. Appeal allowed.