JUDGMENT : Mohan M. Shantana Goudar, J. 1. The Judgment & Order dated 6th May 2009 passed by the Sessions Judge, Udupi in S.C. No. 17/2001 is the subject matter of these appeals. By the impugned Judgment, the trial Court convicted Accused Nos. 1 to 3 and 5 for the offence punishable under Section 304Part II of IPC and sentenced them to undergo imprisonment for three years and to pay a fine of Rs. 15,000/- each. By the very judgment, Accused Nos. 1 to 3, 5, 7 to 13 and 15 to 21 are acquitted of the charges levelled against them for the offences punishable under Sections 143, 144, 148 and 302 r/w Section 149 of IPC. Criminal Appeal No. 370/2009 is filed by convicted Accused No. 2; Criminal Appeal No. 372/2009 is filed by convicted Accused Nos. 1, 3 and 5; Criminal Appeal No. 30/2010 is filed by the State praying for enhancement of sentence as against Accused Nos. 1, 2, 3 & 5 and Criminal Appeal No. 31/2010 is filed by the State questioning the Judgment & Order of acquittal of Accused Nos. 1 to 3, 5, 7 to 13 and 15 to 21 of the offences punishable under Sections 143, 144, 148 and 302 r/w Section 149 of IPC. 2. Case of the prosecution in brief is that some of the Environmentalists called for bandh of Brahmavar town on 21.12.1995 and 22.12.1995 protesting against the establishment of Ushasispot Iron and Steel factory and also against the action of discharge of effluents by MRPL company, Mangalore in river; that majority of Environmentalists who participated in the bandh were stated to be from Bharatiya Janatha Party; Accused Nos. 1 to 21 were stated to be supporters of Janata Dal political party; they were against such protest by Environmentalists and they were pro-development. Accused Nos. 1 to 21, in order to show their solidarity with the development and their support for establishment of Iron and Steel factory, assembled themselves near Janata Dal party office at Brahmavar at 9 a.m. on 23.12.1995. The house of Mr. Jnana Vasantha - PW.13 (one of the Environmentalists) is situated near Janata Dal office. All the accused allegedly raised slogans against said Jnana Vasantha and also against Environmentalists and thereafter assaulted Jnana Vasantha. After assaulting Jnana Vasantha, the assembly of more than 100 persons including the accused continued their protest near Janata Dal office. The house of Mr. Jnana Vasantha - PW.13 (one of the Environmentalists) is situated near Janata Dal office. All the accused allegedly raised slogans against said Jnana Vasantha and also against Environmentalists and thereafter assaulted Jnana Vasantha. After assaulting Jnana Vasantha, the assembly of more than 100 persons including the accused continued their protest near Janata Dal office. The Environmentalists who were supporters of several political parties including Bharatiya Janatha Party had assembled near Sameer Complex at Brahmavar at about 12 to 12.30 p.m. on that day. The Inspector of Police (PW.48) after getting the news of pro-developmentalists' assembly near Janata Dal office, came to that place and tried to evacuate the accused and others from the said place. However the accused and others told PW.48 that the Environmentalists have grouped together near Sameer Complex, which is about 1 kilometer away from Janata Dal office and the Inspector should visit that place and evacuate them from that place inasmuch as Environmentalists were blocking the road near Sameer Complex, which affected the public at large. Accordingly, Inspector - PW.48 went near Sameer Complex and tried to pacify the Environmentalists. However the Environmentalists told PW.48 that he should advise the persons who had gathered near Janata Dal office, who had assaulted Mr. Jnana Vasantha in the morning and that he should get them evacuated. Once again PW.48 came back near Janata Dal office and tried to advise the accused and others who had assembled. However the assembly of more than 100 persons including accused became unruly and they started marching towards Sameer complex holding various weapons including choppers in their hands. The Police force was unable to curtail the movement of the accused and 100 others towards Sameer complex. All the accused and their companions numbering more than 100 came near Sameer complex and thereafter assaulted Mr. Rajarama Shervegar. The incident of assault of Mr. Rajarama Shervegar took place at 2 p.m. in the open area behind Sameer complex. Consequently, the injured Rajarama Shervegar sustained as many as 21 injuries and was shifted to the hospital. However, he was declared dead at about 6.30 p.m. on 23.12.1995. The first information came to be lodged by the Inspector PW.48 as per Ex. P38 at about 4 p.m. on 23.12.1995 and the same was registered in Crime No. 157/1995 in Brahmavar Police Station at about 5 p.m. on the very day. However, he was declared dead at about 6.30 p.m. on 23.12.1995. The first information came to be lodged by the Inspector PW.48 as per Ex. P38 at about 4 p.m. on 23.12.1995 and the same was registered in Crime No. 157/1995 in Brahmavar Police Station at about 5 p.m. on the very day. The first information reached the jurisdictional Magistrate at 7.30 a.m. on 24.12.1995. The first information lodged by PW.48 specifies the names of Accused Nos. 1,2,3,4 and 5 only. However the names of other accused are not found in the first information. It is alleged in the first information that the accused including Accused Nos. 1 to 5 assaulted the deceased Rajarama Shervegar with arms like talwar, clubs etc., After falling down due to the injuries, the injured Rajarama Shervegar took out revolver which was hidden by him in his waist in order to fire at the accused. However the Inspector of Police (PW.48) averted further loss of life by snatching the revolver from the hands of the victim Rajarama Shervegar. 3. It is relevant to note that after registration of the crime, the investigation was handed over by PW.48 to PW.47 on 28.12.1995 inasmuch as certain allegations were made against PW.48 to the effect that he was not investigating the crime fairly and as per law. However the Investigating Officer - PW.47 handed over the investigation to CoD on 1.2.1996. Thereafter the Investigating Officers viz., PWs. 44, 45 and 43 investigated into the crime. Ultimately, PW.43 completed the investigation and laid the charge sheet. 4. In order to prove its case, the prosecution in all examined 48 witnesses and got marked 70 Exhibits and 20 Material Objects. On behalf of the defence, 127 Exhibits were got marked. 5. The trial Court as aforementioned, acquitted Accused Nos. 1 to 3, 5, 7 to 13 and 15 to 21 of all the charges levelled against them for the offences punishable under Sections 143,144, 148 and 302 r/w 149 of IPC. However, the trial Court convicted Accused Nos. 1 to 3 and 5 for the offence punishable under Section 304 Part II of IPC. 6. Before proceeding further, it is relevant to note that three more crimes were registered in respect of the very offence on 23.12.1995. However, the trial Court convicted Accused Nos. 1 to 3 and 5 for the offence punishable under Section 304 Part II of IPC. 6. Before proceeding further, it is relevant to note that three more crimes were registered in respect of the very offence on 23.12.1995. The very Inspector who lodged the first information in Crime No. 157/95 lodged another first information against the deceased alleging that the deceased was possessing the revolver unlawfully and was attempting to use the same. The said first information lodged by PW.48 against the deceased was registered in Crime NO.158/95. However the Crime No. 158/95 abated due to the death of the deceased. Another case i.e., Crime No. 160/95 came to be registered based on the first information lodged by Accused No. 1 against the deceased and 5 others viz., PWs. 1, 6, 19, 10 and one Nagaraj. The said complaint is marked at Ex. P41 in this matter. However no charge sheet came to be filed in the said Crime No. 160/95. Another crime i.e., Crime No. 159/95 came to be registered in the very Police Station based on the first information lodged by PW.13 against certain of the accused in this case viz., Accused Nos. 11, 3, 4, 6 and 12 making certain allegations against them. However the said case ended in acquittal. From the above, it is clear that a Crime was also registered against the deceased on the allegation that he was possessing a revolver unlawfully and that he was attempting to make use of the same and such attempt was aborted by PW.48 Inspector. 7. However the said case ended in acquittal. From the above, it is clear that a Crime was also registered against the deceased on the allegation that he was possessing a revolver unlawfully and that he was attempting to make use of the same and such attempt was aborted by PW.48 Inspector. 7. Sri A.H. Bhagwan, learned advocate appearing on behalf of the convicted accused taking us through the entire material on record and the judgment of the Court below submits that the Court below is not justified in convicting the accused; the trial Court has merely proceeded on conjectures and surmises; there is no legal evidence on record to convict any of the accused; the evidence of the eye witnesses is contradictory to one another; the versions of the witnesses before the Court are completely improved versions and the omissions are proved by the defence as per law; number of contradictions are elicited from the evidence of the witnesses, more particularly from versions of the eye witnesses and all such contradictions are proved in accordance with law by confronting the same to the Investigating Officer; if the material omissions and contradictions so proved by the defence are eschewed from consideration, then practically no material worth would be available for the Court to convict the accused. He further draws the attention of the Court to the investigation follies committed by the Investigating Officer. He also submits that allegations were made against the Investigating Officer - PW.48 that he was not conducting the investigation in accordance with law and he was acting in partisan manner and based on such allegations, investigation was ordered to be handed over by PW.48 to PW.47 and thereafter to PW.45 etc., The statements of the eye witnesses were recorded belatedly i.e., after about more than 12 to 13 days of the date of incident; even after the investigation was handed over by PW.48 to PW.47 and others, the statements of the material witnesses were not recorded early; the non-recording of the versions of eye witnesses within the reasonable period is not explained by the prosecution muchless satisfactorily. He further submits that the group which was standing in front of Sameer Complex at Brahmavar, was having about more than 200 persons and they were also armed with weapons; more than 100 people allegedly came from Janata Dal party office towards Sameer complex and according to him, there was mele and it appears that in the mele the incident has taken place. According to him, the trial Court is justified in concluding that that there was no common object on the part of any of the accused to commit any crime including the crime in question; the evidence on record does not satisfactorily prove the individual overt acts of any of the accused. Sri Seetharama Shetty, learned advocate appearing on behalf of the acquitted accused opposing the State appeals, argued in support of the judgment of the Court below. He fully supports the arguments of Sri A.H. Bhagwan. He has taken the Court through Exhibits which came to be marked on behalf of the defence to contend that the prosecution witnesses are not worth to be believed and their versions are unreliable. Sri Prasad Hegde also supported the arguments of Sri A.H. Bhagwan. Per contra, Sri Keshavamurthy, learned Addl. SPP opposes the submissions of counsel for the defence. He submits that the evidence of the eye witnesses is consistent, cogent and reliable; the evidence of the eye witnesses would clearly reveal the complicity of Accused Nos. 1 to 6 in the crime in question; the evidence on record points towards the guilt of Accused Nos. 1 to 6 for the offence under Section 302 of IPC. He further draws the attention of the Court to the fact that PWs. 39 to 48 are the Police personnel who have supported the case of the prosecution before the Court by deposing about complicity of each of the accused; the wound certificates Ex. P19 and Ex. P20 pertaining to Accused Nos. 5 and 1 respectively would prove the presence of Accused Nos. 5 and 1 on the spot and that they have sustained injuries in the incident in question. On these among other grounds, he prays for allowing the appeals filed by the State and for dismissal of the appeals filed by the defence. 8. Before proceeding further, it would be beneficial, if we note the gist of evidence of each of the witnesses who have deposed before the Court. PWs. On these among other grounds, he prays for allowing the appeals filed by the State and for dismissal of the appeals filed by the defence. 8. Before proceeding further, it would be beneficial, if we note the gist of evidence of each of the witnesses who have deposed before the Court. PWs. 1 to 10, 12 and PWs. 39 to 42 and PW.48 are the eye witnesses to the incident in question. Among them, PW.48 - the Inspector of Police of Brahmavar Circle lodged the first information as per Ex. P38. Based on Ex. P38, Crime No. 157/95 came to be registered in Brahmavar Police Station for certain offences including for the offence under Section 307 of IPC. Subsequent to the death of the deceased Rajaram Shervegar, the provisions of Section302 of IPC came to be inserted. Among the aforementioned eye witnesses, PWs. 39 to 42 and PW.48 are the Police personnel. The eye witnesses i.e., PWs. 2, 4 and 12 have not supported the case of the prosecution with regard to the incident of assault by any of the accused. PWs. 7, 8, 9, 39 to 42 do not specifically implicate any of the accused in the crime. The remaining eye witnesses viz., PWs. 1, 3,5, 6, 10 and 48 specifically depose against only certain of the accused attributing certain facts against them. It is also relevant to note that PW.10 implicates Accused No. 6 and PW.48 only. Accused No. 6 has expired and PW.48 is not arrayed as accused. However PW.6 also has implicated Accused No. 15 and such implication is not supported by any other witness. The remaining eye witnesses who depose about overt acts of certain of the accused and whose evidence is to be considered with due care and weighed are PWs. 1, 35, 12 and 48. PW.11 is the witness for inquest mahazar Ex. P7. PW.12 is the hearsay witness. He has deposed about the assault on PW.3. However, he has not deposed about the assault on the deceased. It is also relevant to note that PW.3 has not sustained any injury. PW.13 has deposed about the assault on him on 23.12.1995 at 10.30 a.m. He lodged the complaint as per Ex. P8. The wound certificate of PW.13 is at Ex. P9. However, he has not deposed about the assault on the deceased. It is also relevant to note that PW.3 has not sustained any injury. PW.13 has deposed about the assault on him on 23.12.1995 at 10.30 a.m. He lodged the complaint as per Ex. P8. The wound certificate of PW.13 is at Ex. P9. It is relevant to note here itself that the case of the prosecution starts with the story of assault on Jnanavasantha (PW.13) by the accused and other persons at 10.30 a.m. on 23.12.1995. PW.14 is the Journalist who was called by PW.13 -Jnanavasantha after he was assaulted. PW.15 is the owner of Bar & Restaurant near Janata Dal office. He has deposed about the gathering of people near the Janata Dal office. He has not deposed about the incident in question. Therefore he is treated as hostile witness. PW.16 is another witness who has turned hostile. He was supposed to depose about the incident near Janata Dal office. PW.17 is the Medical Officer attached to Ananda Nursing Home. He has deposed about the first aid treatment given to Accused Nos. 1 and 5. PW.18 is the driver of Ambulance belonging to Ananda Nursing Home. He has deposed about shifting of Accused Nos. 1 and 5 to the hospital. PW.19 is the witness for mahazar Ex. P14. He has deposed about the arrest of Accused No. 7 -Vasantha Shetty. Two bus tickets, invitation cards and certain currency notes were seized from his possession by the Police under panchanama - Ex. P14. PW.20 is the owner of shop which is situated near Janata Dal office at Brahmavar. He is a hearsay witness. PW.21 who was working in the office of the deceased has turned hostile. PW.22 has also turned hostile to the case of the prosecution fully. PW.23 is the doctor attached to Ananda Nursing Home. He has deposed about the first aid treatment given to Accused Nos. 1 and 5. The wound certificates of Accused Nos. 1 and 5 are at Ex. P20 and 19 respectively. PW.24 is the doctor attached to Government Hospital, Udupi and he treated Accused Nos. 1 and 5. PW.25 is the doctor who conducted autopsy over the dead body of the deceased. Ex. P25 is the Post-mortem report. PWs. 26, 27 and 28 have turned hostile to the case of the prosecution. P20 and 19 respectively. PW.24 is the doctor attached to Government Hospital, Udupi and he treated Accused Nos. 1 and 5. PW.25 is the doctor who conducted autopsy over the dead body of the deceased. Ex. P25 is the Post-mortem report. PWs. 26, 27 and 28 have turned hostile to the case of the prosecution. Their evidence is neither helpful to the case of the prosecution nor to the defence. PW.29 is the Assistant Sub-Inspector of Police. He registered the case on the basis of the complaint lodged by Accused No. 1 in Crime No. 160/95; the first information report is at Ex. P41. However no charge sheet came to be filed in the said crime. PW.30 is the Head Constable who recorded the statement of Accused No. 1 in the hospital. PW.31 is the Head Constable who registered the case in Crime No. 157/95 based on the first information lodged by PW.48. PW.32 is one of the Investigating Officers, who conducted part of the investigation. PWs. 33 to 37 have turned hostile to the case of the prosecution. Their evidence is of no use either to the prosecution or to the defence. PW.38 is the Police Constable who has deposed that number of people had assembled near Janata Dal office on the relevant day and started proceeding in a procession towards sameer complex. As aforementioned, PWs. 39, 41, 42 and 48 are the eye witnesses to the incident. PW.43 is the Inspector attached to CoD. He conducted further investigation of the crime. He laid the charge sheet after completion of the investigation. PW.44 is the Deputy Superintendent of Police, CoD. He also conducted investigation to certain extent. PW.45 is another Deputy Superintendent of Police attached to CoD. He also conducted investigation of the crime to certain extent. PW.46 has turned hostile to the case of the prosecution. PW.47 - M.B. Kamal conducted investigation till 4.2.1996. PW.48 was Inspector of Police attached to Brahmavar Circle. He also conducted preliminary part of the investigation. He lodged the complaint as aforementioned as per Ex. P38, based on which crime came to be registered. However certain allegations were made against PW.48 by the family members of the deceased, prosecution witnesses and pro-environmentalists to the effect that he was not conducting investigation of the crime properly. In view of the same, he handed over the investigation to PW.47. Thereafter investigation was conducted by PWs. P38, based on which crime came to be registered. However certain allegations were made against PW.48 by the family members of the deceased, prosecution witnesses and pro-environmentalists to the effect that he was not conducting investigation of the crime properly. In view of the same, he handed over the investigation to PW.47. Thereafter investigation was conducted by PWs. 44 & 45 and finally completed by PW.43. 9. The appeals filed by the State being the appeals against the order of acquittal and against the insufficiency of sentence, the burden lies on the prosecution to show that the view taken by the trial Court while acquitting the accused for the offence under Section 302of IPC is not the possible view under the facts and circumstances of the case. So also, it is for the convicted accused to show in support of their appeals that none of the Accused Nos. 1 to 3 and 5 are liable to be convicted for the offences for which they are convicted by the trial Court. In this regard, learned advocates on record for the defence and the learned Addl. SPP have taken us through the entire material on record and the judgment of the Court below and argued in support of their respective cases. 10. As aforementioned, it is the case of the prosecution that hundreds of people including certain of the accused were pro-development. They were opposing the move of the Environmentalists stopping the establishment of steel factory in Brahmavar taluk and in that regard, number of persons including some of the accused had opposed bandh called by the Environmentalists on 21.12.1995 and 22.12.1995 at Brahmavar. Even on 23.12.1995, the Environmentalists tried to block the road near Sameer complex. In that regard, certain of the accused and hundreds of other people gathered near Janata Dal office at about 9.30 a.m. on 23.12.1995. At about 10.30 a.m., PW.13 - Jnanavasantha, one of the Environmentalists was allegedly assaulted by certain of the accused and others. It is relevant to note that the house of Jnanavasantha is situated near Janata Dal office. In respect of the said incident which has occurred near Janata Dal office at 10.30 a.m. on 23.12.1995, the injured Jnanavasantha (PW.13) lodged the complaint against some of the persons as per Ex. P8. Thereafter, the congregation of more than 100 people continued to protest near Janata Dal office. In respect of the said incident which has occurred near Janata Dal office at 10.30 a.m. on 23.12.1995, the injured Jnanavasantha (PW.13) lodged the complaint against some of the persons as per Ex. P8. Thereafter, the congregation of more than 100 people continued to protest near Janata Dal office. Aforementioned portion of case of the prosecution is practically not disputed by the defence. Ever otherwise, the Police officers who were the eye witnesses to the incident and who were entrusted with the duty of maintaining the law and order situation at Brahmavar have deposed that more than 100 people had gathered near Janata Dal office on the relevant day and among them, some of the accused were also there. 11. That the Environmentalists who had gathered near Sameer complex at Brahmavar were numbering more than 100; the deceased and certain of his close friends viz., PWs. 6 and 10 also came with the deceased in a jeep to Sameer Complex at 12.30 p.m. on 23.12.1995. PW.39 - Police Officer has deposed that more than 200 people had gathered near Sameer complex and they were armed with weapons. This portion of case of the prosecution is also not in dispute. The defence in fact practically does not deny that there was congregation of people numbering more than 100 near Janata Dal office and that there was also congregation of more than 100 people at Sameer Complex. Even the eye witnesses have deposed about these facts. The evidence of the eye witnesses clearly reveal that there were grouping of people at two different places as aforementioned. It is also not in dispute that the distance between Sameer complex and the Janata Dal office is about one kilometer. 12. However the defence strenuously disputes all other facts including complicity of the accused in the crime of murder of the deceased Rajaram Shervegar. It also disputes about the existence of common object among the accused. 13. The trial Court on consideration of the entire material on record meticulously, has concluded that the prosecution has not proved the common object allegedly shared by the accused for committing the crime in question. The trial Court also has concluded that the prosecution has not proved its case beyond reasonable doubt that Accused Nos. 7 to 21 were involved in the incident in any manner. So also the trial Court has concluded that the case against Accused Nos. The trial Court also has concluded that the prosecution has not proved its case beyond reasonable doubt that Accused Nos. 7 to 21 were involved in the incident in any manner. So also the trial Court has concluded that the case against Accused Nos. 1 to 6 is proved, but they cannot be punished for the offence under Section 302 of IPC, but are liable to be punished for the offence under Section 304Part II of IPC. Among them, Accused Nos. 4 and 6 had expired during the course of trial and therefore Accused Nos. 1 to 3 and 5 only are convicted by the trial Court for the offence under Section 304 Part II of IPC. 14. Before evaluating the evidence of the eye witnesses, it is relevant to keep in mind following facts. In the matter on hand, no specific motive is alleged and proved by the prosecution. The trial Court has also rightly concluded that the aspect of motive is not proved. However the records vaguely disclose that it was a fight between the Environmentalists and the people who were pro-development. Vague allegations are also found that it was a fight between the supporters of two political parties viz., Janata Dal party and Bharatiya Janatha Party. It is carious to note that, it has come in the evidence that PW.13 - Jnanavasantha is from Janata Dal political party. It has also come in the evidence that the group of Environmentalists was having people from various political parties including Janata Dal, Congress and Bharatiya Janatha party. 15. Thus the trial Court is justified in observing that it is not a political feud, or that it is not a dispute relating to two political parties. However vaguely, as aforementioned, it is brought on record that the tussle seems to be between Environmentalists and the people who are pro-development. Some of the accused were allegedly in the group of persons who were pro-development. The deceased and the prosecution witnesses were Environmentalists. The Environmentalists had called for bandh on 21.12.1995 and 22.12.1995 and they were successful. Even on 23.12.1995, the Environmentalists were blocking the road near Sameer complex which was being opposed by the group of pro-development people. Thus the persons who were pro-development, numbering more than 100, grouped together near Janata Dal office and among them, some of the accused were also there. Even on 23.12.1995, the Environmentalists were blocking the road near Sameer complex which was being opposed by the group of pro-development people. Thus the persons who were pro-development, numbering more than 100, grouped together near Janata Dal office and among them, some of the accused were also there. The Environmentalists had also grouped together near Sameer complex and they were also numbering more than 100. In this view of the matter, no motive is forthcoming on the part of the people who were pro-development to commit the murder of any person including deceased Rajaram Shervegar. There was no motive on the part of any of the accused or any of the persons who had gathered near Janata Dal office to harm any person or damage the properties of anybody including the properties of Environmentalists. Admittedly, the shops of PW.1, deceased and certain other witnesses were located in Sameer complex. None of the shops were ransacked by any of the accused or other persons who were pro-development. None of the prosecution witnesses are assaulted by anyone of the persons who were in the group which had gathered near Janata Dal office. Thus, virtually, the aspect of motive is not proved by the prosecution. Moreover there is nothing on record to show that the deceased Rajaram Shervegar was heading the group of Environmentalists or that the accused or other persons had the plan to take away the life of such leader. Per contra, the evidence on record reveals that PW.1 and certain other witnesses who were leaders of Bharatiya Janatha Party were in the group of Environmentalists. Having regard to the totality of facts and circumstances of the case, we are of the clear opinion that the prosecution has not proved the motive for commission of the offence i.e., the murder of the deceased. 16. It is also relevant to note that all the prosecution witnesses, more particularly the eye witnesses PWs. 1 to 10 and PW.12 are the close associates and friends of the deceased. There was no recovery of any weapon from any of the accused or from the spot in which the incident has taken place. Even a drop of blood is not found on the scene of offence. In the matter on hand, recoveries of certain weapons are made from the jeep of the deceased. There was no recovery of any weapon from any of the accused or from the spot in which the incident has taken place. Even a drop of blood is not found on the scene of offence. In the matter on hand, recoveries of certain weapons are made from the jeep of the deceased. If really any of the accused or any of the persons who had assembled near Janata Dal office had carried any of such weapons, atleast one weapon would have been found on the spot or such weapon should have been recovered by the Police during the course of investigation. It is also relevant to note that it was a fight between the two groups and both of such groups were armed with weapons. Even according to the case of the prosecution, both the groups were armed with weapons. The first information report at Ex. P39 itself reveals that the group which was standing alongwith the deceased near Sameer complex was also having weapons such as choppers etc., Practically it appeared to be a free fight between the two groups. 17. In addition to the same, in the matter on hand, curiously, the statements of majority of the important witnesses including the eye witnesses are recorded by the Investigating Officer highly belatedly. Except the statement of PW.1, which is recorded on 24.12.1995, the statements of all other eye witnesses are recorded only after 10 days of the incident in question. It is further relevant to note that though the first information came to be lodged by PW.48 -Rafiq Mulla (jurisdictional Inspector of Police) and though he conducted investigation to certain extent, allegations were made against him by the group supporting the deceased to the effect that he was not conducting the investigation properly and fairly. In that regard, petitions were filed before the Superintendent of Police and other higher Police officials. Accordingly, PW.48 was directed to hand over the investigation to PW.47 (Mr. Kamal), another Investigating Officer. Said Mr. Kamal (PW.47) took over investigation from PW.48 on 28.12.1995. Despite the same, he also did not even venture to record the statements of any of the eye witnesses till 8.1.1996. The first statement recorded by Mr. Kamal (PW.47) was on 8.1.1996. Till such time, he did not record statements of any of the eye witnesses. Said Mr. Kamal (PW.47) took over investigation from PW.48 on 28.12.1995. Despite the same, he also did not even venture to record the statements of any of the eye witnesses till 8.1.1996. The first statement recorded by Mr. Kamal (PW.47) was on 8.1.1996. Till such time, he did not record statements of any of the eye witnesses. Such delay on the part of the Investigating officer in recording the statements of the eye witnesses has remained unexplained. Normally this Court would not have taken serious note of non-recording the statements of the eye witnesses at an earlier point of time or within the reasonable period of time, but the same has to be viewed seriously in the instant case looking to the totality of the circumstances. In the matter on hand, admittedly PW.47 - Mr. Kamal has taken over investigation since serious allegations were made against the earlier Investigating Officer (i.e., PW. 48). None of the eye witnesses allegedly came forward to give statement before the earlier Investigating Officer i.e., PW.48. Only for that reason, the Investigating Officer was changed. Inspite of the same, even subsequent Investigating Officer i.e., PW.47 also did not record the statements of any of the eye witnesses, that too without any valid reason. 18. The say of PW.47 that the witnesses did not come forward to give statements before him, cannot be believed, though prima facie it may sound plausible explanation. We decline to accept such explanation of PW.47 in view of the fact that even the statements of the Police people who were the eye witnesses to the incident were not recorded by the Investigating officer till 11.1.1996. The first statement of the Police personnel (who is the eye witness to the incident) was recorded only on 11.1.1996 though PW.47 taken charge of the investigation on 28.12.1995. There was no bar for recording the statements of atleast the Police Officers who were eye witnesses. They would not have refused to give statement on 28.12.1995 or on the next day. Thus, we find that the explanation offered by the prosecution for belated recording of statements under Section 161 of Cr.P.C. of important witnesses including eye witnesses is un-acceptable. All the aforementioned factors will have to be taken into consideration and kept in mind while evaluating the versions of the eye witnesses, more particularly the versions of PWs. 1, 3, 5 and 48. 19. All the aforementioned factors will have to be taken into consideration and kept in mind while evaluating the versions of the eye witnesses, more particularly the versions of PWs. 1, 3, 5 and 48. 19. The case of the prosecution mainly rests on ocular testimony of eye-witnesses. As aforementioned, PWs. 1 to 10, PWs. 12, 39 to 42 and 48 are eye witnesses to the incident in question. The Trial Court has concluded that the prosecution has proved its case only against Accused Nos. 1 to 6 for the offence under Section 304 part II of IPC on the ground that the eye witnesses have specifically deposed against them. Keeping these observations of the Trial Court, we have considered the entire material with regard to all the accused in general and Accused Nos. 1 to 6 in particular. It is needless to observe that if the common object is not proved by the prosecution, then, individual accused will be liable to be convicted for the overt acts committed by them (if proved). 20. Case of the prosecution mainly rests on the ocular testimony of the aforementioned eye-witnesses. Among the eye-witnesses, PWs. 2, 4 and 12 have not supported the case of the prosecution regarding the incident of assault. Practically, their evidence may not be of any use for finding out the complicity of any of the accused. However their evidence would reveal that more than hundred people had gathered near Janata Dal office and among them, some of the accused were also there. Their evidence also discloses that more than 100 people had gathered near Sameer complex. 21. The eye witnesses viz., PWs. 7, 8, 9, 39 to 42 do not specifically implicate any of the accused in the incident. Though these eye witnesses were stated to be very much present on the scene of offence, their evidence is omnibus and vague. They have not specified the names of any of the accused in their versions before the Court so as to connect such accused to the crime. 22. The remaining eye witnesses viz., PWs. 1, 3, 5, 6, 10 and 48 specifically attribute certain facts to certain of the accused relating to the crime in question. PW.6 implicates only Accused No. 6 and PW.48 in the crime. 22. The remaining eye witnesses viz., PWs. 1, 3, 5, 6, 10 and 48 specifically attribute certain facts to certain of the accused relating to the crime in question. PW.6 implicates only Accused No. 6 and PW.48 in the crime. He has deposed that not only Accused No. 6 assaulted the deceased, but also PW.48 - the Inspector of Police assaulted the deceased. As aforementioned, Accused No. 6 has expired and PW.48 is not arrayed as accused and he is examined before the Court as a prosecution witness. As a matter of fact, PW.48 is the person who lodged the first information as per Ex. P38, based on which Crime No. 157/95 came to be registered in Brahmavar Police Station. He conducted part of the investigation. Thus practically, the evidence of PW.6 may not be much help to the case of the prosecution. PW.6 apart from implicating Accused No. 6 and PW.48, strangely implicated specifically Accused No. 15 also. None of the eye witnesses have deposed about either the presence of Accused No. 15 or the overt acts of Accused No. 15 before the Court. However for the first time, PW.6 has deposed about Accused No. 15 also before the Court though he has not stated about the same before the Police under Section 161 of Cr.P.C. during the course of investigation and such omission is proved by the defence. Thus such improved version of PW.6 implicating Accused No. 15 for the first time in Court cannot be made use of by the prosecution against Accused No. 15, particularly in the absence of any other material against him. The eye witness PW.10 also merely implicates Accused No. 6 and PW.48. As aforementioned, Accused No. 6 has expired and PW.48 is not arrayed as accused. Thus practically the evidence of PWs. 6 and 10 will not assist the case of the prosecution. 23. Then what remains to be considered is the evidence of PWs. 1, 3, 5 and 48. We have meticulously perused and considered the evidence of these witnesses. PWs. 1, 3 and 5 have not deposed that Accused Nos. 1, 3 and 5 have assaulted the deceased. Except PW.48, no other eye witness has deposed against Accused Nos. 1, 3 and 5. It is the case of the prosecution as also the version of PWs. We have meticulously perused and considered the evidence of these witnesses. PWs. 1, 3 and 5 have not deposed that Accused Nos. 1, 3 and 5 have assaulted the deceased. Except PW.48, no other eye witness has deposed against Accused Nos. 1, 3 and 5. It is the case of the prosecution as also the version of PWs. 6 and 10 that Accused No. 6 and PW.48 assaulted the deceased, consequent upon which he died. PWs. 6 and 10 have not deposed about the complicity of other accused in the crime except Accused No. 6 and PW.48. PW.1 has deposed that Accused No. 6, Accused No. 2 and PW.48 assaulted the deceased with club. Among them, accused No. 6 has expired and PW.48 is not an accused. It has come in the evidence of PW.1 that Accused No. 2 is his sworn enemy. Though they are relatives inter se, there are number of disputes between PW.1 and Accused No. 2. There was a dispute with regard to the family properties. There were also criminal cases between them. Since there were civil and criminal litigations between them, it will be difficult to believe the evidence of PW.1 against Accused No. 2 inasmuch as there is likelihood of false implication. His evidence needs to be evaluated in the light of other attending circumstances. Moreover, it is seen from the evidence of PW.1 that he is highly interested in the matter and is also close friend of the deceased. Ex. D11 is the important contradiction elicited by the defence from the evidence of PW.32 - Devaraya, the Assistant Sub-Inspector. It is the evidence of PW.1 that on seeing the mob, he went inside the shop of PW.4 and immediately thereafter PW.4 closed the shutter to protect themselves (himself and PW.1) and thereafter he (PW.1) saw the incident peeping through the window of the shop of PW.4. Such evidence of PW.1 before the Court is watered down by the contradiction Ex. D11 elicited by the defence. Ex. D11 discloses that PW.1 has not stated during the course of investigation that he has seen the incident through the window of shop of PW.4. Per contra, PW.1 has stated that he saw the incident standing outside the shop and ran away. D11 elicited by the defence. Ex. D11 discloses that PW.1 has not stated during the course of investigation that he has seen the incident through the window of shop of PW.4. Per contra, PW.1 has stated that he saw the incident standing outside the shop and ran away. Though this contradiction does not appear to be a major contradiction having regard to the facts and circumstances of the case, such contradiction assumes importance in view of the fact that PW.1 is the important witness in the matter on hand. As aforementioned, PW.1 does not depose anything against Accused Nos. 1, 3 and 5 though he has deposed against Accused No. 2. Undisputedly, Accused No. 2 is the known enemy of PW.1 inasmuch as they were fighting both civil and criminal litigations in various Courts. PW.3 is another close associate of the deceased. He has deposed that he saw Accused Nos. 2, 4, 6 and PW.48 assaulting the deceased. Among them, Accused Nos. 6 and 4 have expired. Though allegation is made against PW.48 by PW.3, said PW.48 is not arrayed as accused. Thus his evidence is virtually against Accused No. 2. As aforementioned, it is relevant to note that the statement of PW.3 is recorded by the Investigating Officer on 9.1.1996. Absolutely no explanation is forthcoming relating to belated recording of statements of eye witnesses including PW.3. Moreover, PW.3 has got criminal background. He is involved in criminal cases. Among the criminal cases in which PW.3 is involved, one is a murder case relating to the murder of Jayaprakash Shetty (Accused No. 6 in the case on hand). It has also come on record that PW.3 has not stated against Accused No. 2 in his statement recorded under Section 161 of Code of Criminal Procedure before the Investigating Officer. For the first time, PW.3 has deposed against Accused No. 2 before the Court. Such omission is proved by the prosecution as per law. The statement of another eye witness PW.5 is also recorded on 9.1.1996 though the incident has taken place on 23.12.1995, which means the statement of PW.5 is recorded after about 15 days of the incident in question. The delay has remained unexplained. According to PW.5, Accused Nos. 2, 6 and PW.48 participated and assaulted the deceased. As aforementioned, Accused No. 6 is dead and PW.48 is not arrayed as accused before the Court. The delay has remained unexplained. According to PW.5, Accused Nos. 2, 6 and PW.48 participated and assaulted the deceased. As aforementioned, Accused No. 6 is dead and PW.48 is not arrayed as accused before the Court. Though PW.5 has deposed taking the name of Accused No. 2 specifically before the Court, it is clear from the records that he has deposed so against Accused No. 2 for the first time before the Court. He has not stated anything as against Accused No. 2 before the Investigating Officer while recording his statement under Section 161 of Cr.P.C. Such improvement/omission is proved by the defence. 24. Practically, the trial Court has convicted Accused Nos. 1 to 3 and 5 on the basis of the evidence of PW.48. We have already explained as to how the evidence of any of the eye witnesses mentioned supra is not helpful to the case of the prosecution. However, the trial Court practically relying upon the evidence of PW.48 has concluded that Accused Nos. 1 to 3 and 5 have committed the offence under Section 304 part II of IPC. It has also relied upon the wound certificates - Ex. P19 and Ex. P20 relating to Accused Nos. 5 and 1 respectively for coming to the conclusion. PW.48 in his deposition before the Court has stated specifically about the presence of Accused Nos. 1,3,4 and 5 on the spot and about their complicity. Among them, Accused No. 4 is no more. It is the defence of the accused that certain incident has taken place near Ashraya complex prior to the incident in question; at that point of time, the deceased and some of the prosecution witnesses allegedly came to Ashraya complex, at which time, Accused Nos. 1, 5 and others were taking their lunch in a restaurant situated in Ashraya complex; the deceased and others assaulted Accused Nos. 1, 5 and others, consequent upon which Accused Nos. 1 and 5 sustained certain injuries; immediately thereafter, Accused Nos. 1 and 5 were rushed to the hospital and have taken treatment in Anand nursing home as well as the Government hospital, Udupi. The evidence of Doctors PWs. 23 and 24 would make it clear that Accused Nos. 1 and 5 took treatment not only in Anand Nursing Home, Brahmavar, but also in Government Hospital, Udupi. The wound certificates of Accused Nos. 1 and 5 are at Exs. The evidence of Doctors PWs. 23 and 24 would make it clear that Accused Nos. 1 and 5 took treatment not only in Anand Nursing Home, Brahmavar, but also in Government Hospital, Udupi. The wound certificates of Accused Nos. 1 and 5 are at Exs. P20 and P19 respectively. The perusal of these wound certificates Exs. P19 and 20 makes it clear that the doctor has recorded history of assault on accused Nos. 1 and 5 at about 2.00 p.m. The history so recorded by the doctor in Government Hospital, Udupi, discloses that accused Nos. 1 and 5 were assaulted with hands and Talwar by Rajaram Shervegar and six other persons. Initially, they took treatment in Anand Nursing Home and thereafter in Government Hospital, Udupi. The wound certificates also make it clear that both these accused absconded from the Government Hospital at 8.00 p.m. on 23.12.1995. Based on these documents and the evidence of aforementioned doctor, it is contended by the prosecution that the presence of accused Nos. 1 and 5 on the spot at Sameer Complex is proved. Such contention cannot be accepted. It seems, the incident of assault on accused Nos. 1 and 5 has taken place in a restaurant situated at Ashraya Complex wherein accused Nos. 1 and 5 and others were taking lunch and at that point of time, the deceased and six others said to have come to the said spot and assaulted these persons, consequent upon which accused Nos. 1 and 5 sustained simple injuries. Even in their statements recorded under 313 of Cr.P.C, accused Nos. 1 and 5 have explained that they sustained injuries in a quarrel that took place in a restaurant situated in Ashraya Complex building. It is curious to note that PW.48, the jurisdictional inspector, though specifies the names of accused Nos. 1, 3, 4 and 5 in the incident, does not implicate accused Nos. 2 and 6. On going through his deposition, we find that he has deposed omnibusly implicating aforementioned accused Nos. 3, 4 & 5. It is relevant to note that the evidence of PW.48 becomes unreliable in view of the fact that he himself was arrested in the very crime, inasmuch as the grave allegations were made against him to the effect that he committed death of the deceased by joining hands with accused No. 6. 3, 4 & 5. It is relevant to note that the evidence of PW.48 becomes unreliable in view of the fact that he himself was arrested in the very crime, inasmuch as the grave allegations were made against him to the effect that he committed death of the deceased by joining hands with accused No. 6. In view of the same, PW.48 was arrested in the very crime and subsequently he was released on bail. Based on such allegations, he was directed to hand over the investigation to another Inspector of Police. It is relevant to note and as we have already observed supra in detail that PWs. 1, 3, 5, 6 and 10 have specifically deposed against PW.48 implicating him in the incident in question as one of the assailants. Moreover, the version of PW.48 is practically not supported by any other witness. As pointed by learned Addl. SPP, so also as is clear from the material on record that PW.48 was sought to be arrayed as accused (accused No. 22) in this case. However, the State Government for the best reasons known to it did not accord sanction for the same. He was treated as witness and is examined as PW.48. In this context, Sri. A.H. Bhagawan, learned advocate appearing for defence is justified in arguing that the evidence of PW.48 at the most can be treated as the evidence of approver/accomplice. Though necessary procedure is not followed in treating him as approver and by ignoring the technicalities, if any, we are of the firm opinion that the evidence of PW.48 is unbelievable and his evidence is tainted. The State Government in its wisdom and for the reasons best known to them, did not accord sanction to implicate PW.48 as accused. May be the Government might have taken decision on merits having regard to the material on record. We are also unable to comment on that aspect of the matter in view of the lack of any relevant material before us. The matter is of the year 1995. Already 20 years have elapsed. No useful purpose will be served in ordering for reinvestigation into the crime, inasmuch as the evidence already on record of the police officers is not helpful to the case of the prosecution. The matter is of the year 1995. Already 20 years have elapsed. No useful purpose will be served in ordering for reinvestigation into the crime, inasmuch as the evidence already on record of the police officers is not helpful to the case of the prosecution. Even assuming that the action of PW.48 was not fair and was tainted, it is not open for the prosecution to take benefit of the same for getting reinvestigation into the crime, inasmuch as no useful purpose will be served, particularly in view of the fact that the evidence on record including the evidence of the Investigation Officers who are eye witnesses to the incident in question is not helpful to the case of the prosecution. Moreover, In the matter on hand as aforementioned, PW.48 was investigating the crime for about 3 to 4 days after the incident; thereafter investigation was handed over to different Investigation Officers; even the CID has investigated into the crime. Totally, four Investigation Officers viz., PWs. 47, 44, 45, 43 have investigated into the crime and ultimately charge-sheet came to be filed by CID; despite the same, the prosecution is not able to gather sufficient and reliable material to pinpoint the crime against any of the accused. 25. It is also relevant to note that though PW.48 is the person who gave first information to the Court as per Ex. P38, his version is totally different before the Court. His further statement is not recorded during the course of investigation. Therefore, PW.48 is bound by the version as found in the complaint Ex. P38. He has not at all stated in the first information about the presence and specific overt acts of accused Nos. 1, 3 and 5. But he has deposed before the Court in a different tone by specifying the alleged overt acts against accused Nos. 1, 3 and 5. In other words, he has substantially improved his version, that too in material particulars. 26. The other eye witnesses are police personnel viz., PWs. 39, 40, 41 and 42. Though they have deposed in the examination chief against case of the prosecution to certain extent, no value can be attached to their version in view of the fact that practically they have not specified anything against any of the accused. We have already narrated that PWs. 39, 40, 41 and 42. Though they have deposed in the examination chief against case of the prosecution to certain extent, no value can be attached to their version in view of the fact that practically they have not specified anything against any of the accused. We have already narrated that PWs. 39, 40, 41 and 42 do not specifically implicate any of the accused. Their deposition before the Court is omnibus and vague. They have also admitted about the improvements made by them before the Court. All such omissions are proved by the prosecution. Curiously, as aforementioned, the statements of the police personnel, the alleged eye witnesses viz., PWs. 39, 40, 41 and 42 are also recorded after about 10 days after taking over the investigation by Mr. Kamal (the Police Inspector). Since they do not specifically implicate any of the accused and their depositions are vague and omnibus, their version is practically not helpful to the case of the prosecution. 27. Aforementioned discussion of us leads to only conclusion that the prosecution has not proved its case beyond reasonable doubt as against any one of the accused including accused Nos. 1, 2, 3 and 5. 28. Further, on evaluation of entire material on record, we are of the clear opinion that there is no common object on the part of the accused to commit murder of the deceased. We have already explained supra that object of the persons, who were pro-development activists, was to protest against the environmentalists calling for bandh. The environmentalists were blocking the road near Sameer Complex on 23.12.1995 and the pro-development activists had gathered near Janata Dal office in order to protest against environmentalist calling for bandh. In that regard, more than 100 pro-development activists went in a procession towards Sameer Complex. When they reached Sameer Complex, the incident in question has taken place. Since eye witnesses' version with regard to the complicity of any of the accused in commission of the death of the deceased is not reliable for the reasons mentioned supra and as there was no common object on the part of persons who were pro-development, for committing any crime much less the offence of murder, we are of the opinion that none of the accused can be convicted for the offences with which they are charged. The object of the pro-development activists was to prohibit environmentalists from blocking the roads. The object of the pro-development activists was to prohibit environmentalists from blocking the roads. They did not have object of harming anybody and the properties of anybody. Admittedly, in the matter on hand, none of witnesses are injured and none of the properties of any of the witnesses are damaged. No weapons are seized from the spot or from the houses of the accused at the instance of the accused. Even a drop of blood was not found on that spot. Therefore, we are of the considered view that the Trial Court is justified in holding that the common object as contemplated under Section 149 of IPC is not proved. 29. The first information lodged by PW.48 as well as the evidence of the witnesses before the Court would make it clear that the deceased was possessing a revolver and was about to make use of the revolver. He came to the spot in a Jeep along with PWs. 6 and 10. It is the case of the prosecution that the weapons are seized from the Jeep of the deceased. It is specific defence of the accused that it was the deceased who had come there fully prepared to assault the pro-development people. Moreover, there is nothing on record to show that there were blood stains on the spot in question. Though the victim-Rajaram Shervegar had sustained as many as 21 injuries and though his body was completely blood stained, not even a drop of blood was found on the scene. Scene of offence panchanama also does not disclose the blood stains on the spot. It is also admitted by the police officers that no blood stains were seen on the spot. In this context, the argument of defence advocate that the incident must have been taken place elsewhere and not at the scene of offence also assumes importance. 30. We find that the origin and genesis of the case of the prosecution is shrouded with mystery inasmuch as the prosecution has suppressed the genesis of the case. Incident has taken place in a Mele. Both sides were armed with weapons. Hundreds of people had gathered in each group. Names of only few persons are specified in the evidence and the evidence in respect of those persons whose names are specified is not reliable. As many as 40 to 50 material omissions are proved by the defence. Incident has taken place in a Mele. Both sides were armed with weapons. Hundreds of people had gathered in each group. Names of only few persons are specified in the evidence and the evidence in respect of those persons whose names are specified is not reliable. As many as 40 to 50 material omissions are proved by the defence. As many as 127 contradictions are marked. Out of them, more than 50 are material contradictions and they are proved in accordance with law. If the material omissions and contradictions are eschewed from consideration, virtually there is no evidence against any of the accused. The suspicion however grave it may be, would not take place of proof. The moral conviction however strong or genuine cannot amount to legal conviction sustainable in law. The prosecution has not come out with true case before the Court and the genesis of the prosecution case is fully suppressed inasmuch as revolver seized from the possession of the deceased by the Investigation Officer is not produced before the Court in this case. Having regard to the totality of facts and circumstances, we are of the clear opinion that the accused are entitled for benefit of doubt and the order of their acquittal. Having regard to the aforementioned material on record, it will be very difficult for the Court to convict any of the accused for the offences with which they are charged. The Trial Court has convicted accused Nos. 1, 2, 3 and 5 merely on grave suspicion and mainly on the basis of evidence of PW.48 which is fully tainted. Even according to the prosecution, the evidence of PW.48 cannot be believed. Hence, the judgment and order of acquittal passed by the Trial Court acquitting all the accused for the offence under Section 302 of IPC is liable to be confirmed. However, the judgment and order of conviction convicting accused Nos. 1, 2, 3 and 5 for the offence under Section 304-II of IPC is liable to be set aside. The accused are entitled to be acquitted of all the charges levelled against them. Accordingly, the following order is made. ORDER "(a) Crl.A. Nos. 370/2009 and 372/2009 filed by the convicted accused are allowed. Accused Nos. 1, 2, 3 and 5 are acquitted of all the charges levelled against them. (b) Crl.A. Nos. 30/2010 and 31/2010 filed by the State stand dismissed. Accordingly, the following order is made. ORDER "(a) Crl.A. Nos. 370/2009 and 372/2009 filed by the convicted accused are allowed. Accused Nos. 1, 2, 3 and 5 are acquitted of all the charges levelled against them. (b) Crl.A. Nos. 30/2010 and 31/2010 filed by the State stand dismissed. Consequently, the judgment and order of acquittal acquitting the accused for the offence under Section 302 of IPC and for other offences stands confirmed."