JUDGMENT : M. Nagaprasanna, J. Heard the learned Additional State Public Prosecutor on behalf of the appellant-State and the learned counsel Sri. Chaitanya Kumar C.M. on behalf of the respondent-accused. 2. The State is in appeal being aggrieved by the judgment and order acquitting the respondent accused by judgment dated 17.11.2011 rendered in SC No.14/2011. The case of the complainant/deceased is that, he was an agriculturist and about 15 days prior to 16.11.2010, there was a quarrel between the deceased and the wife of the first accused with regard to grazing of cattle in the complainant’s field. 3. That the third accused, on 16.11.2010 came to the house of the complainant at about 11.00 p.m. and asked the deceased to accompany him as there was some urgent work and thereafter he took him to accused No.2 who invited him to consume alcohol and thus all the accused assembled in the field of one Sangappa Anabi and consumed alcohol. That the first accused suddenly assaulted the deceased with a wooden club on the head and other parts of the body. That the other two accused have instigated the first accused and the third accused is also said to have kicked the deceased with his legs on the chest. That as a result of the assault, the deceased/complainant screamed out and upon hearing his screams, PW3 is said to have rushed to the spot and rescued the deceased. PW3 is said to have conveyed this fact to the wife of the deceased. 4. That the deceased/complainant was taken to Government Hospital and MLC intimation was sent by the Hospital Authorities to the SHO. That the SHO Gurmitkal visited the hospital and took down the complaint. The complaint was recorded on 17.11.2010 at about 2.00 p.m. and the FIR came to be registered in Crime No.183/2010 for the offences punishable under Sections 323, 324, 504, 506 R/w 24 of IPC. That the complainant/deceased passed away on 20.11.2010 and upon his demise, the police forwarded the requisition to the jurisdictional Magistrate for invoking the provisions of Section 302 of IPC. 5. The matter was sent up for trial. On behalf of the prosecution, 14 witnesses were examined as PW.1 to PW.14, out of the 17 charge sheet witnesses, 14 witnesses were examined on behalf of the prosecution as PW1 to PW14 and got marked MOs 1 and 2. 5. The matter was sent up for trial. On behalf of the prosecution, 14 witnesses were examined as PW.1 to PW.14, out of the 17 charge sheet witnesses, 14 witnesses were examined on behalf of the prosecution as PW1 to PW14 and got marked MOs 1 and 2. That thereafter an application under Section 311 came to be preferred by the prosecution for examining the doctors. The doctor who conducted the autopsy and the doctor who initially treated the deceased, when he was admitted on 17.11.2010 were examined. After closure of evidence, the accused have been examined under Section 313 on 17.10.2011 and accused have denied the incriminating circumstances in the trial. The following charges were framed by the Sessions Court. xxx xxx 6. With regard to the first charge as to whether the death is a Homicidal death, the Court rendered a finding in the affirmative. 7. With regard to the second charge of culpability of the accused, the Sessions Court has rendered a finding in the negative. It is this finding which is contested by the appellant-State. 8. The trial Court with regard to the second charge has placed reliance on the evidence of PW12, the doctor who initially treated the deceased on 17.11.2010 and the doctor has deposed with regard to the injuries noticed by him on the date of admission and in para 15, the trial Court has extracted the injuries detailed by PW12. The PW12 has further deposed that the deceased got himself discharged from the hospital on 18.11.2010 against medical advise. The trial court has examined the evidence of PW13, who conducted the post mortem on the deceased. It is relevant to note the deceased again got himself admitted to the hospital on 19/20.11.2010. The PW13 has recorded the following external injuries, which are, multiple abrasions and contusions present on right and left arms and right and left legs i.e. at knee joint and shin and ankle joint measuring 2½ cms. PW13 has further recorded that the examination of the brain tissue revealed oedematous and also multiple haemorrhagic spots present on the surface of brain and finally recorded bleeding in the right testicles of the deceased. 9. PW.13 is the Doctor who conducted the postmortem. In the postmortem report he has opined that the death is due to blunt force over the head and testicle resulting into neurogenic shock leading to cardio respiratory failure. 9. PW.13 is the Doctor who conducted the postmortem. In the postmortem report he has opined that the death is due to blunt force over the head and testicle resulting into neurogenic shock leading to cardio respiratory failure. 10. The learned Additional State Public Prosecutor on a query fairly submits that as the deceased got himself discharged from the Hospital, no wound certificate has been maintained by the Government Hospital which initially treated the deceased. He would contend that the deceased was assaulted on the head and death is caused on account of injury on the head. Hence, he would submit that the trial court erred in holding that accused were not culpable of murder of the deceased. 11. Per contra, the learned counsel for the respondents – accused would submit that, the complainant had never complained of any assault on the testicles and that injury came to be noted only during the postmortem examination. That neither Hospital records nor complaint of the deceased which came to be recorded in the Hospital on the next day i.e., on 17.11.2010 narrates of any assault by the accused on the private part of the deceased. He would contend that if indeed the deceased had been assaulted on the private part by the accused resulting in a bleeding injury to the testicles, he would, definitely have suffered severe pain and would have revealed it to the Doctor or to the Police. But complainant has not disclosed the same and death having occurred on account of neurogenic shock due to the assault on the testicles, the respondents cannot be found guilty or culpable of causing homicidal death of the deceased. 12. In the above background, we have examined the material on record and given our anxious attention to the evidence and material marked in the case. The entire case of the prosecution hinges on injuries said to have been caused by accused in the night of 16.11.2010. 13. PW.1 is the inquest panchanama witness who has spoken about noticing the injuries on the head, bleeding testicles and on the shoulder of the deceased. 14. PW.2 is the spot panchanama witness who turned hostile and nothing has been elicited from him in the cross examination by the prosecution. 15. PW.3 who is said to be the eyewitness has deposed that he witnessed accused No.1 assaulting the deceased with fist and legs. 14. PW.2 is the spot panchanama witness who turned hostile and nothing has been elicited from him in the cross examination by the prosecution. 15. PW.3 who is said to be the eyewitness has deposed that he witnessed accused No.1 assaulting the deceased with fist and legs. He further deposed that accused No.3 threatened him, and asked him to leave the place. In the cross-examination he clearly omitted to support the case of the prosecution that accused have assaulted on the deceased with sticks and accordingly he was declared as hostile witness by the prosecution. 16. PW.4 is the wife of the deceased who has spoken about the quarrel between accused No.1 and the deceased with regard to grazing of cattle. She has further deposed that at about 08.00 a.m. the deceased and she were having meals, when accused No.3 came to the house of the deceased and deceased accompanied him stating that accused No.2 had asked the deceased to come over. PW.3 informed her that accused Nos.1 to 3 have assaulted her husband and her husband had fallen in the land of Sangappa. Immediately, thereafter they proceeded to the field and brought him home. Thereafter, they gave a cup of tea. After consuming tea, he told her that he had been beaten by accused. Thereafter, he was taken to the Government Hospital Gurmitkal. Thereafter, to Raichur Hospital. From the above it is apparent that PW.4 is not an eyewitness. 17. PW.5 is also a hearsay witness. He stated that he went to the field and saw that the deceased had fallen on the ground. That he along with others have taken him to the house and gave him a cup of tea, after which the deceased is said to have regained full consciousness and informed that accused Nos.1 to 3 have beaten him. 18. PW.6 is the Engineer who has prepared the spot sketch. 19. PW.7 is the younger brother of the deceased. He has deposed that he took the deceased to the Government Hospital at Gurmitkal. Since, there was no doctor, he was taken to OPEC Hospital at Raichur. (Emphasis by Court) 20. 18. PW.6 is the Engineer who has prepared the spot sketch. 19. PW.7 is the younger brother of the deceased. He has deposed that he took the deceased to the Government Hospital at Gurmitkal. Since, there was no doctor, he was taken to OPEC Hospital at Raichur. (Emphasis by Court) 20. PW.8 is the Head Constable, who has deposed that on receipt of information from the Government Hospital at Gurmitkal, he proceeded to Hospital and recorded the complaint of the deceased, which is marked as Ex.P.7 and signature has been identified and marked as Ex.P.7(a) and he has also taken the left thumb impression of the complainant and returned to the police station and registered the FIR as Cr.No.183/2010 and forwarded the same to the jurisdictional Court. He has also spoken about the recovery of the wooden stick said to have been used to inflict the head wound. (underlining by this Court) 21. PW.14 is the Doctor who made entries in the MLC Register and he has spoken to that effect. PW.12 is the RMO of the OPEC Hospital, at Raichur. He would state that the deceased was brought to the Hospital on 17.11.2010 at about 11.15 p.m. and he was referred to OPEC Hospital, at Raichur for higher treatment. As per the case sheet the deceased was accompanied by his brother. The witness further stated that he has not seen the assault done by the accused, or about the injuries rendered to the testicles. 22. In the above background the points arose for our consideration is as under :- 01. Whether the judgment and order of the Court below acquitting the accused is sustainable ? 23. The trial Court after going through the material on record has observed that the prosecution has placed reliance on the evidence of PWs.1, 4 and 5. Though PW.3 has been lined up as a eyewitness to the assault, he has turned hostile. PWs.1, 4 and 5 have clearly deposed that they are hearsay witnesses. The deposition of PW.4-wife of the deceased reveals that source of her information is PW.3, who himself has turned hostile. In fact PW.3 has gone to the extent of omitting to depose with regard to the use of any weapon and he would depose that deceased was assaulted by accused No.1 with his hands and legs. 24. The deposition of PW.4-wife of the deceased reveals that source of her information is PW.3, who himself has turned hostile. In fact PW.3 has gone to the extent of omitting to depose with regard to the use of any weapon and he would depose that deceased was assaulted by accused No.1 with his hands and legs. 24. A perusal of the cross examination reveals that the prosecution has not been successful in eliciting any fact which demonstrate the culpability of the accused. It is the categorical statement of PW.3 that accused assaulted the deceased with hands and legs. Accordingly, the trial Court has rightly held that evidence of the eyewitness is not helpful to the prosecution to bring home the guilt of the accused. 25. PW.1 is inquest panchanama witness, has clearly spoken about the bleeding injuries to the testicles, which admittedly has been noticed on 20.11.2010 and at the time of postmortem only. PW.12 who treated the deceased on 17.11.2010 does not depose with regard to the fact that he treated the deceased for injuries suffered to the testicles. The injury to the head was apparent and was treated on 17.11.2010 itself. 26. Admittedly, it is the case of the prosecution that after treatment of the head injury, the patient has got himself discharged against medical advice and returned home and that he was again readmitted on 19/20.11.2010. 27. We have examined the evidence of PW.4- wife of the deceased, who in her deposition before the Court has narrated that when she brought her husband back home, after consuming tea, he told her that accused had beaten him on the head, by hands and legs and to the mouth. Even her evidence did not disclose that she was informed that the deceased had been assaulted on the testicles. If that be so, onus was on the prosecution to demonstrate that death was caused only on account of injury to the head which is a matter of record, finding a place in the evidence and in the medical records. 28. In the postmortem report it is stated that the death is caused on account of neurogenic shock and on account of injuries caused to the head and to the right testicles by a blunt object. 28. In the postmortem report it is stated that the death is caused on account of neurogenic shock and on account of injuries caused to the head and to the right testicles by a blunt object. There can be no doubt that the said injury to the testicle was neither mentioned by the deceased-complainant nor was bleeding injuries to the right testicles, noticed by the doctors who examined and treated him at the initial stage or later. The bleeding injuries to the right testicle is of significance as the postmortem report clearly relied on it, as one of the reasons which resulted in a neurogenic shock. The said injury not having been recorded on the date of incident nor was reported on the date of incident, the burden of proving the same was on the prosecution. More so in the light of the fact that the head injury did not result in his instantaneous death. But the fact remains that he regained consciousness and has reported the act of assault and is also said to have got himself discharged against medical advice. It is not the case of the prosecution that it was others who got him discharged against medical advice. 29. Admittedly, the head injury was caused three days prior to the date of death. There is no categorical evidence that the death has been caused on account of injury to the head. There is absolutely no explanation or evidence with regard to as to how the injury to the bleeding right testicle was caused. In fact, the defence was successful in eliciting from PW.12 the Doctor of the Hospital to the effect that the progressive sheet does not contain anything even about the head injury. 30. It has also come out in the examination-in-chief of PW.12 that the deceased got himself discharged against medical advice. It has also been elicited in the cross-examination of PW.12 that the deceased was examined by one Dr.K.S.Bhopayya, Neurosurgeon and it is even admitted that the head injury was treated by him and he has attended to him only at the first instance and thereafter he has been referred to one Dr.Basavesh, an orthopedician. It is also admitted that patient has been treated in OPEC Hospital, at Raichur. It has also been admitted that neurophysician would attend to any complaints about the nervous system and the body including any injuries to the head. It is also admitted that patient has been treated in OPEC Hospital, at Raichur. It has also been admitted that neurophysician would attend to any complaints about the nervous system and the body including any injuries to the head. If that be so, the only inference that can be drawn is that, the doctors were of the opinion that the head injury was not life threatening. If the head injury was life threatening, then the Neurosurgeon or Neurophysician would have continued him under their care. If this not be the case then the doctors are deposing falsely to cover up their own failures. 31. PW.13 has also been subjected to extensive cross-examination and in the cross-examination it has been elicited that he has not called upon and referred to the treatment records from the Rajiv Gandhi Super Specialty Hospital, Raichur before furnishing his opinion as to the cause of death. It has also been elicited that urinary organs were intact. It is further elicited from PW.13 that he has not noticed any fracture of the skull and he has merely mentioned the dimensions of the injury. Though the doctor has denied the suggestion that the size of the injury cannot lead to haemorrhagic spots on the surface of the brain. Being an expert, the doctor ought to have clarified positively and deposed as to whether the injury caused to the head is sufficient to cause death. The said witness has also admitted that if a hard and blunt object is used, it would lead to contusion. The onus was on the expert witness, the doctor, to depose that the head injury alone was sufficient to cause the death. The opinion is that, the injury to the testicles of the head caused neurogenic shock. It is also not deposed as to how the neurogenic shock occurred after three days. The onus was on the prosecution to prove that neurogenic shock can occur after three days of suffering the injury. There is no deposition that there is severe damage to the central nervous system. There is no evidence that the assault on the head resulted in injury to the spinal cord. The fact remains that the deceased/complainant walked out of the hospital. Apart from stating “Neurogenic shock” no other details are deposed by the expert. 32. There is no deposition that there is severe damage to the central nervous system. There is no evidence that the assault on the head resulted in injury to the spinal cord. The fact remains that the deceased/complainant walked out of the hospital. Apart from stating “Neurogenic shock” no other details are deposed by the expert. 32. The Medical Officer of Government Hospital, Gurmitkal has been examined as PW.14 and looking into the MLC register, he has deposed that the injured was brought to the hospital on 17.11.2010 at 10.00 a.m. Apart from the MLC register, no wound certificate is produced. Though the said hospital is the hospital of first instance which treated the deceased. The trial Court after examination of the material has concluded that none of the witnesses have spoken about the injury to the testicles, though the injury to the testicles noted in the post mortem examination report is recorded as one of the causes for the neurogenic shock resulting in cardio respiratory failure resulting in death. 33. In the light of the above discussion, we are of the considered opinion that the prosecution has failed to convincingly bring home the guilt of the accused and the trial Court has rightly recorded the judgment and order of acquittal. The order of acquittal stands affirmed, consequently appeal stands rejected.