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[Cites 25, Cited by 4]

Karnataka High Court

Shri Mallikarjun Ningappa Ragati, Shri ... vs The State Of Karnataka Through C.P.I. ... on 13 July, 2006

Equivalent citations: 2006 (5) AIR KAR R 516

Bench: B. Padmaraj, S. Abdul Nazeer

JUDGMENT

1. There is no appearance for the appellants when the matter has reached and taken up for hearing though the appellants have appeared through their Counsel and the cause-list indicated the name of the learned Counsel for the appellants. There was absolutely no representation on behalf of the appellants when the appeal had reached for final hearing. The learned Counsel appearing for the appellants did not turn up to argue the matter though we waited for quite some time. This appeal being of the year 2003 and there being no representation on behalf of the appellants, we had no other alternative except to proceed with the matter in the absence of the learned Counsel for the appellants for the reason that we cannot dismiss the Criminal Appeal for default. It is needless to point out that the Criminal Appeal cannot be dismissed for default and it has to be disposed of only on merits. Under the circumstances therefore, to be fair to the appellants, we thought it just and proper to appoint an Amicus Curiae for the appellants to argue the matter and also to assist the Court in disposing of the appeal on merits. Under the circumstances, we deem it proper to appoint an Amicus Curiae and accordingly, we appoint the learned Counsel Sri V.F. Kumbar to argue and to assist the Court as Amicus Curiae.

2. The appellants herein were the accused Nos.1 to 3 before the Trial Court. They are convicted by the Trial Court for the offences punishable under Sections 302 and 307 read with Section 34 of the Indian Penal Code, for having committed the murder of their brother, deceased Sidramappa and attempting to commit murder of his wife Smt. Yallawwa- PW .2, on account of their previous enmity with the deceased. They are sentenced to undergo imprisonment for life for the offence under Section 302 read with Section 34 of Indian Penal Code and to undergo rigorous imprisonment for seven years each, for the offence under Section 307 read with Section 34 of Indian Penal Code.

3. The Trial Court has however acquitted the accused NOS. 4, 7, 8, 9, 10 and 11 of all the offences charged against them. The accused Nos. 5 and 6 were not sent up for trial.

4. The appellants alongwith others were charged with the offences punishable under Sections 143, 147, 148, 323, 504, 302 and 307 read with Section 149 of Indian Penal Code alleging that on 16.10.2000 at about 11.30am in the morning on Hullur-Devihal Road, behind the temple of Shivappa, within the limits of Hullur Village, they formed themselves into an unlawful assembly with the common object to commit the murder of the deceased Sidramappa and his wife Yallawwa- PW r.2 and in prosecution of the common object of such unlawful assembly, committed assault on the deceased Sidramappa and his wife Yallawwa- PW .2 with deadly weapons like Kandli and sickle and thereby caused the death of the deceased Sidramappa and serious injuries to the person of his wife Yallawwa- PW .2.

5. The appellants and others having pleaded not guilty to the charges framed against them, they were put on trial before the Trial Court for the above said offences.

6. The case of the prosecution in brief is:

The deceased Sidramappa was aged about 4O years at the time of his death. Yallawwa- PW .2 is the wife of the deceased. The appellants are the brothers of the deceased. The appellants Nos. l and 2 are the elder brothers and the appellantNo.3 is the younger brother of the deceased. The deceased and his brothers constituted a joint hindu family, owning certain extent of land within the limits of Hullur Village. They were residents of the same Village. The deceased Sidramappa was managing the affairs of the joint family, while the appellants were attending to the cultivation work of the lands belonging to the joint family. Basically, the joint family of the deceased and the appellants was an agricultural family. The deceased Sidramappa had incurred certain debts. When the appellants demanded their share in the joint family properties, the deceased had stated that they should also share the debts incurred by him. The appellants declined to share the debts incurred by the deceased, as according to them, the debts incurred by the deceased were not for the benefits of the joint family, but they were incurred towards the vices of the deceased like gambling etc. In that regard, there were ill-feelings between the appellants and the deceased and their relationship were very much strained at the material time. In fact, a panchayath was also convened to settle the disputes between the deceased and the appellants, but without any success. Apart from this, the mother and sisters of the deceased had also filed a suit for partition against the deceased by demanding their share in the joint family properties wherein they had also impleaded the appellants herein as party-defendants and the said suit was pending adjudication in a Court at the material time. Further, the appellants had also a grouse or grievance against the deceased on the ground that he was responsible for ransacking or looting their house and taking away the movables from their house towards the discharge of certain debts incurred by the deceased. Thus, all was not well with the appellants and the deceased at the relevant time of this incident. One Channappagowda- PW .l was cultivating the land belonging to the family of the deceased on a crop share basis and at the material point of time, he had raised the jawar crop in the said land. While this was so, it is stated that on that relevant day, i.e., on 16.10.2000 in the morning, the deceased Sidramappa alongwith his wife Yallawwa- PW .2, her brother Shiddappa- PW .3 and Channappagowda- PW .l who was cultivating the land on crop-share basis, had proceeded to the land in order to harvest the jawar crop which was ripened through the labourers engaged by them. They were in fact waiting for the arrival of the labourers engaged by them, by standing near about their land. At that point of time, all these appellants, who were armed with deadly weapons like kandli and sickle came near the place where the deceased was standing and mounted assault on him, It is stated that while the deceased was being held by the women accused who have been acquitted in the case, the appellants who were armed with deadly weapons committed assault on the deceased with the said weapons. On witnessing such ghastly assault on her husband, when PW. 2 Yallawwa went to the rescue of the deceased requesting the accused persons not to assault her husband, she was also assaulted by the appellants over her neck, face and the other parts of the body resulting in serious injuries to her person. PW .l Channappagowda and PW .3 Shiddappa did not have the courage or get the courage to go near the accused persons who were armed with deadly weapons and were so brutally assaulting the deceased and his wife. On seeing such brutal assault committed on the deceased and his wife by the appellants, both PW. l and PW. 3 had actually retreated and did not make themselves bold to gp forward to rescue the deceased and her husband. After committing such assault on the deceased and his wife when the accused had left the spot, they went near the place where the deceased and his wife were tying with injuries. The deceased was found to have died on the spot while the wife of the deceased was still found to be breathing. They both proceeded to the Village and informed the occurrence to Shivappa- PW. 8, the father of PW. 2. At that time, there was no conveyance available to go to Laxmeshwar. But, however, Shivappa - Fw. 8 secured a car from Laxmeshwar and the injured PW. 2 Yallawwa was removed to the Hospital at Laxmeshwar in the car. Thereafter, Channappagowda- PW. l went to the Police Station and lodged the first information of the occurrence as per Ex.P-l. Fw.17 was then the PSI of Laxmeshwar Police Station. On 16.10.2000, when the PSI- PW .17 was present in the Police Station, the complainant PW. l appeared before him and lodged the first information of the occurrence as per Ex.P-7 which was recorded into writing lay him, on the basis of which, the ' PSI- PW. l7 registered the case and took up investigation. He proceeded to the spot atongwith hip... staff and deputed his staff to guard the scene of incident which was situated on Devihal road, the dead body of the deceased was tying at the spot. PW. 18 was then the CM of Shirahatti Circle and that on 16.10.2000, at about6pminthenight, he received information regarding there registration of this case at the jurisdictional Police Station. On receipt of such information, the CPI - PW. l8 visited the spot and took up the further investigation in this case from the PSI- PW. 17. He recorded the statement of Shiddappa- PW. 3. He examined the scene of incident in the presence of the panchas PW s. 5 and 6 and also held the inquest proceedings on the dead body of the deceased as per Exs.P-4 and P-3 respectively. He seiaed the bloodstained clothes and clotted mud from the scene of incident. He also recorded the statements of PW a 8,9, and 10. Thereafter, he had deputed the ASI to visit the KMC Hospital at Hubli and record the statement of the injured Yallawwa- PW .2 who was undergoing treatment in the Hospital. Accordingly, the ASI- PW. 13 proceeded to Hubli where he gave a requisition to the Tahsildar to record the statement of the injured PW. 2 who was undergoing treatment in the KMC Hospital at Hubli. Pursuant to a requisition received from the Police concerned, on 17.10.2000 at 3.30pm, PW -12 who was then the Tahsildar of Hubli visited the KMC Hospital and after ascertaining the condition of the injured PW .2, to give her statement, he recorded the statement of the injured PW. 2 and obtained the signature of the medical officer who was then present on the said statement of the injured. Thereafter, the CH- PW. 18 seized the blood stained clothes of the deceased which were produced before him by the ASI under a panchnama Ex.P-6. MOB 7 and 8 are the blood stained clothes of the injured PW. 2. Subsequently, the CH- PW. 18 also visited the KMC Hospital at Hubli and recorded the statement of the injured Yallawwa- PW. 2 on 20.10.2000. Further, on 30,10.2000, he learnt that the accused persons have surrendered before the Court, Thereupon, he made a request to the Court to handover the PC remand of the surrendered accused for the purpose of investigation.... Accordingly, as per his request, the PC remand of the accused was given and after they were so remanded to police custody, the CPI- PW. 18 interrogated each of these appellants and recorded their voluntary statements separately- Pursuant to the voluntary statements made by the appellants, he seized certain incriminating material objects in the presence of the panchas under a panchanama Ex.P-2, On 4.11.2000, the accused were produced before the Court as they were no longer required by him for the purpose of investigation. He sent the seized articles in this case for their chemical examination to the Forensic Science Laboratory at Bangalore. Then, after completion of the investigation, he submitted the charge-sheet to the Court against the accused persons.

7. To establish the charges against the accused, the prosecution had examined at the trial PW s. l to 19 and placed on record Exs. P-l to 14 and Mos. l to 8. The defence has got marked certain contradictions in the statements of the PW s. 3 to 8 as per Exs.D-1 to D-3.

8. Out of the 19 witnesses examined by the prosecution, the material witnesses are the injured Yallawwa- PW .2, the informant Channappagowda- PW. l and Shiddappa- PW .3. They are the eye-witnesses to the incident and of whom, PW. 2 Yallawwa who is the wife of the deceased is an injured eye-witness. PW. 8 Shivappa, who is the father of PW. 2, had come to the spot on being informed of the occurrence by his son Shiddappa- PW. 3. He had secured a car from Laxmeshwar and removed the injured PW. 2 to the Hospital for treatment in the said Car, When PW. 8 Shivappa had visited the spot, he found the dead body of the deceased tying on Devihal road by the side of the land. Even the injured PW. 2 Yallawwa was also lying near the deceased and since she was still alive, he had removed her to the Hospital for treatment in the Car. He admitted the injured PW .2 for treatment in the KMC Hospital at Hubli. She was initially taken to Laxmeshwar and from there to the KMC Hospital at Hubli. According to PW. 8, he had secured a car from Laxmeahwar on phone. PW. 11-Kallappa who is the resident of Hullur Village had participated in the Panchayath which was held in regard to the dispute between the deceased and his brothers viz., the appellants herein. According to him, the decision of the Panchayath was not agreeable to the accused appellants. The said Panchayath was stated to have been held about 15 to 20 days prior to the incident in question. It is he who had received the phone-call of PW. 8 and had sent a car from Laxmeshwar. PW. 11- Kallappa though a resident of Hullur Village was having his shop at Laxmeshwar. He had also accompanied the inured PW. 2 to the Hospital. PW s.9 and 10 claim to have seen the appellants proceeding towards their land on that relevant day in the morning, while saying that since the deceased is declining to give their share, they want to see a finality in the matter. IV.19 is the Medical Officer, who conducted the Post-Mortem examination on the dead body of the deceased and issued Post-Mortem Report as per Ex.P-14. He had also examined the injured PW. 2 and had referred her for higher treatment to the KMC Hospital at Hubli, He has issued the wound certificate Ex.P. 13 in respect of the injured PW. 2. The rest of the witnesses are the panchas and the Police Officers who have either assisted the investigation or conducted the investigation of the case.

9. Theaccused persons, when examined under Section 313 Cr.P.C., except admitting their relationship with the deceased and PW. 2, have denied all the incriminating circumstanced appearing against them ill the prosecution evidence. The defence of the accused persons appears -to be one of a total denial of the prosecution case. The accused No. l has however, filed a written statement during the course of questioning under Section 313 of Cr.P.C., which m found at Page 78 of the Paper Book and it reads as under:

10. The Trial Court,, on consideration of the entire evidence placed on record and after hearing the submissions on both sides, has by its impugned judgment, convicted and sentenced the appellants in the manner as stated supra, Hence this appeal by the convicted accused persons.

11. We have heard the arguments of the learned Counsel Sri V.F.Kumbar as Amicus Curiae and the learned State Counsel and carefully perused the evidence placed on record by the prosecution with their assistance. We have also carefully perused the impugned judgment and order of conviction and sentence passed by the trial Court.

12. Learned Counsel, Sri V.F.Kumbar as Amicus Curiae for the appellants has contended as under:

That the mother and sisters of the deceased and the appellants have filed a suit for partition of the family properties against the deceased and the appellants and the same was pending adjudication at the relevant time of this incident. Further, though the deceased was younger to the accused Nos. l and 2, he was managing the affairs of the family and had incurred certain heavy debts. That the appellants were demanding their share in the joint family properties on account of the mismanagement committed by the deceased, but the deceased was refusing to give their share and was always insisting that they should also share the debts incurred by him. In fact, a panchayath was also convened about a few days prior to the incident to resolve the dispute between the parties in the matter of partition of their properties, but, the same did not yield any result. Apart from this, there was a complaint filed by the appellants against the deceased and the other prosecution witnesses stating that they have looted their house and removed the movables from their bouse towards the discharge of the debts incurred by the deceased for his illegal acts. On account of such enmity or hostility between the parties, the appellants have been falsely involved in the case. In this context, the delay in lodging the First Information Report would assume importance, There was an inordinate delay in lodging the First Information Report toy the complainant PW. l to the police concerned. The complainant PW. l who was cultivating the land on crop share basis sought to involve all the accused persons who were sent for trial. One of the brothers of the deceased who had actually left, the village was also impleaded in the complaint and he was subsequently deleted from the proceedings when the Police filed their charge-sheet. The evidence of the complainant- PW .1 would show that they were thinking who were to be included in the complaint before lodging the complaint to the Police concerned and at that time, he was accompanied by PW. 10. Thus, there was a due deliberation by the complainant PW. l with others before lodging the complaint to the Police concerned. That the appellants herein are also the co-owners of the land alongwith the deceased and in that context, it is quite natural to accept that they must have also gone to the land in order to harvest the crop. It would appear since there was a dispute in the family, the complainant- PW. l must have taken the deceased and PW. 2 alongwith him to the land to harvest the crop which was alleged to have been raised by him. In the circumstances of the case, the appellants in all probability, must have gone to the land only to harvest the crop and not with intent or object to kfll or assault the deceased and PW. 2. The FIR given toy the complainant PW. l was fabricated and was a result of due deliberation. There was absolutely no difficulty on the part of PW. l or PW. 3 to lodge a complaint earlier than the one lodged by PW. l to the Police. The explanation for the delay given by the complainant PW. l is not acceptable. There were tractors available in the Village and any one of them would have travelled in the Tractor to go to the Police Station to lodge the complaint. But they did not do so and on the other hand, the complaint that was filed to the concerned Police after an inordinate delay was purely an afterthought concocted after due deliberation as to who are all the persons to be included as accused in the case. In this context, the view of the Trial Court that the delay stands explained in the circumstances of the case is not correct and proper. That apart, there is no consistency in the evidence of PWs. 1 to 3. According to the complainant- PW. l, the accused No. 7 wan not holding any deadly weapon and the overt-acts attributed by him are to the Police and also to some others who have been acquitted by the Trial Court. The conduct of the complainant- PW .1 is also very unnatural inasmuch as, he did not go to the rescue of the deceased and PW. 2. Further, there was no occasion for the complainant- PW. l to go to the land when according to him, the deceased and appellants were in possession of the said land. Hence, the complainant- PW. l cannot be believed to be an eye-witness. According to PW. 2, the accused No,7 did not assault her and it is only the accused No. 2 who had assaulted her, Further, she has stated that the other accused persons other than the appellants were only holding the deceased. She has also stated that she regained consciousness after about four days in the Hospital. Admittedly, PW. 2 was residing with her parents and hence, there was no occasion for her to accompany the deceased to the land. Apart from this, having regard to the facts and circumstances of this case and keeping in background that there was a serious dispute between the parties in the matter of partition of their lands, the incident in question must be an outcome of such dispute between the parties when they went near the land to harvest the crop and the appellants in all probability, must have committed the act under sudden provocation. Coming to PW. 3, he did not speak to the overt-acts committed by each of the appellants. Even the evidence of PW s. 9 and 10 is highly unnatural, Even otherwise, their evidence would not in any way implicate the appellants and what has been stated by them is that the accused were found going towards the land for the purpose of harvesting the crop. Further, the witness- PW. 9 had lent money to the deceased. Therefore, both PW s .9 and 10 are highly interested witnesses. Besides this, PW. 10 had accompanied the complainant- PW. l to Police Station. Moreover, PW. 9 does not mention the presence of PW. 10 in his evidence. Thus, it creates doubt about the presence of these two witnesses PW s. 9 and 10 so as to enable them to Bee the accused proceeding towards their land. In addition to this, the accused had lodged a complaint against both PW s. 9 and 10 and thus, they had an axe to grind against the appellants. Insofar as PW. 11 is concerned, he is related to both the appellants and the deceased. But the accused had also lodged a complaint against PW. 11 and thus, he had a grouse against the appellants. In all probability, there must have been some quarrel between the parties at the land over the issue of the harvesting of the crop and hence, the acts committed by the appellants would not attract the offence under Section A href="javascript:fnOpenGlobalPopUp('/ba/disp.asp','16125','1');">302 of Indian Penal Code and at the most, it would attract lesser offence. To sum up, there was an inordinate delay in lodging the First Information Report, the evidence of PW. 1 to 3 suffers from contradictions and when the co-accused have been acquitted on the very same evidence, the Trial Court could not have convicted the appellants herein in the face of such infirmities. Hence, the appellants deserve to be acquitted.

13. As against this, the learned State Counsel has contended as under:

The delay in lodging the FIR stands explained from the circumstances appearing in the case, as has been observed by the Trial Court in its impugned judgment. That apart, the complainant, PW. 1 being a rustic villager and a total stranger to the family, would have consulted the relatives of the deceased before lodging a complaint to the Police end that by itself cannot be construed as a deliberation to concoct a case. Moreover, PW. 1 being a rustic villager, no significance can be given to such statement made by him in the cross-examination that he alongwith the elders were on consultation with each other before lodging a complaint. The prosecution evidence placed on record is quite consistent and corroborative and the Trial Court committed no error in recording conviction of the appellants on the basis of such evidence. Moreover, PW. 2- Yallawwa being an injured eye-witness, here evidence can not at all be discarded since her presence at the spot cannot be doubted. Therefore, the appeal filed by the appellants is devoid of merit and it is liable to be dismissed.

14. Having heard the submissions on both sides and having carefully perused the material evidence on record, in the light of the submissions made on both Bides, the question for consideration is whether, the impugned judgment and order of conviction and sentence passed by the Trial Court warrants any interference in the appeal?

15. Before dealing with the merits of the appeal, we may propose to make a few preliminary remarks provoked by the facts and circumstances of this case. The appellants herein are none other than the brothers of the deceased. As we have already indicated, basically they were all agriculturists owning certain extent of land within the limits of their village. Though the deceased was younger to two of the appellants, he was (SIC) the affairs of the family while the other brothers were only attending to the cultivation work of the land belonging to the family, The deceased had borrowed certain loan or incurred debts and whenever the appellants demanded their share in the properties owned by the family, the deceased used to say that if they want a share in the family properties, they should also share the debts incurred by him and in that regard, there were certain serious ill-feelings and hostility between the deceased and his brothers (the appellants herein). Their relationship had been strained on account of such dispute. The appellants were not prepared to share the debts that were incurred by the deceased because, the said debts, according to them, were incurred by the deceased to satisfy his vices like gambling etc..., and not for any benefit or necessity to the family. It would further appear from the material placed on record that the appellants herein had a grouse or grievance against the deceased as they were labouring under the impression that it is the deceased who had been responsible for their house being raided and the movables found in their house being forcibly taken away or removed towards the discharge of the debts that were incurred by the deceased to satisfy his vices. It is also on record that the mother and sisters of the deceased had filed a suit for partition against the deceased making the appellants herein also a party-defendants and the same was pending adjudication before a competent Civil Court at the material time, The incident in question had occurred in a broad day light, but on the outskirts of the Village at some distance from the land of the family of the deceased and the Village habitation, It is to be seen therefore, that the scene of incident is rural and the witnesses are rustics and so their behavioral pattern and perceptive habits have to be judged as such. Further, when scanning the evidence of the various witnesses, we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments cannot militate against the veracity of the core of the testimony, provided there is an impress of truth and conformity to probability in the substantial fabric of testimony delivered. Merely because, there have been certain discrepancies and contradictions in the evidence of some or all of the witnesses, it does not mean that the entire evidence of the prosecution has to be discarded. It is only if, after exercising caution and care, and sifting the evidence to separate truth from untruth, exaggeration, embellishments and improvement, the Court comes to the conclusion that what can be accepted implicates the accused, it will convict them, The maxim "falsus in uno falsus in omnibus" is not a sound rule for the reason that hardly one comes across a witness, whose evidence does not contain a grain of untruth or at any rate, exaggeration, embroideries or embellishments. In moat cases, the witnesses when asked about the details, venture to give some answer not necessarily true or relevant, have fear that their evidence may not be accepted in respect of the main incident which they have witnessed but, that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered though, where the substratum of the prosecution case is disbelieved, it may not be permissible for the Court to reconstruct a story of its own out of the rest, In this connection, a reference may be made to a decision of the Hon'ble Supreme Court in the case of Krishna Mochi v. State of Bihar reported in 3002 SCC (Criminal) 1220, wherein it is held as under:

Even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove the guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to the end. The maxim falsus in uno, falsus in omnibus has no application in India and the witnesses cannot be branded as liars. This maxim has not received general acceptance nor has thus maxim come to occupy the status of rule of law. It is merely a rule of caution. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called " a mandatory rule of evidence". Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who were convicted. The doctrine is a dangerous one, specially in India, for if a whole body of the testimony were to be rejected, because the witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop, Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care, The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroidery or embellishment. An attempt has to be made to separate the grain from the chaff, the truth from falsehood. Where it is not feasible to separate the truth from falsehood, because the grain and the chaff are inextricably mixed up, and in the process of separation, an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto.

16. The maxim "falsus in uno falsus in omnibus" is not to be blindly invoked in appraising evidence adduced in our courts where witnesses seldom deliver the whole truth, but, often resort to exaggerations, embellishments and padding-up to support a story however true in the main. It is the Junction of the Court to disengage the truth from falsehood and to accept what it finds to be true and reject the rest. Further, as human testimony resulting from widely different powers of observation and description, is necessarily faulty and even truthful witness not infrequently exaggerate or imagine or deliver half truths, the Courts must try to extract and separate the hard core of truth from the whole evidence. This is what is meant by the proverbial saying that "the Courts must separate chaff from the grain". If, after considering the whole mass of evidence, a residue of acceptable truth is established by the prosecution beyond any reasonable doubt, the Courts are bound to give effect to the result flowing from it and not to throw it over board on purely hypothetical and conjectural grounds. Indeed, it is very difficult to find a witness whose evidence is so flawless that it has to be wholly, completely and unqualifiedly accepted. There is no general rule that the evidence of the relations of the deceased must be corroborated for securing the conviction of the accused. Likewise, merely because, the other persons who could have been present at the spot and witnessed the occurrence have not been examined, would not be a sound reason to reject the evidence of the relatives, which is otherwise acceptable and reliable to decline to act upon the testimony of the relations of the deceased merely because of the absence of other witnesses to corroborate them in Court, is to defeat the cause of justice in a given case. The ordinary presumption is that a witness speaking under an oath is truthful unless and until he is shown to be untruthful or unreliable in any particular aspect. Witnesses solemnly deposing on oath in the witness box during the trial upon a grave charge of murder, must be presumed to act with full sense of responsibility of the consequences of what they state. The close relative of the deceased in a murder case, who is a very natural witness cannot be regarded as an interested witness. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate the innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person, against whom, a witness has a grudge alongwith the guilty, but the foundation must be laid for such a criticism and the mere feet of relationship far from being a foundation is often a sure guarantee of truth. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. In substance, the mere fact that a witness is a relation of the deceased or his partisan is not sufficient to discard his or her testimony.

17. Also, there is no rule of law that if the Court acquits the accused on the evidence of a witness finding it to be open to some doubt, any other accused against whom there is absolute certainly about his complicity in the crime based on the remaining credible part of the evidence of that witness, should also be acquitted. In this connection, a reference may be made to the decisions of the Hon'ble Supreme Court in the case of Swaran Singh v. State of Punjab reported in 2001 SCC (Criminal) 190 - B and in the case of Komal v. State of Uttar Pradesh reported in 2002 SCC (criminal) 1600-D.

18. It is the allegation of the prosecution that the deceased had borrowed debts and whenever there was a demands for partition by the appellants, he used to insist that they should share the debts incurred by him and the appellants declined to do so on the ground that they were incurred by him for certain immoral and illegal deeds. It was also an impression of the appellants that the deceased had been responsible have taking away the movables from their house towards the discharge of the debts incurred by him. The material on record would also show that the mother and sisters of the deceased had filed a suit for partition, which was pending at the relevant time of this incident. Thus, certain materials have been placed on record by the prosecution to show that the appellants had some ire or anger towards the deceased. Only thus far could be established but not further. It is generally an impossible task for the prosecution to prove what precisely would have impelled the murderers to kill a particular person. All that the prosecution in many cases would point to is the possible mental element which could have been the cause of the murder. In this connection, it may be useful to refer to the observations of the Apex Court in the State of Himachal Pradesh v. Jeet Singh reported in 1999 SCW 982 wherein it is held as under:

No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended. In this context we may extract the observations made by a two-Judge Bench of this Court (Dr.A.S. Anand J., - as the learned Chief Justice then was and Thomas J.) in Nathuni Yadav v. State of Bihar :
Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in R. v. Palmer (Shorthand Report at p.308 CCC MAY 1856) thus:
But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal Courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage and to drive off for a time pressing difficulties.' Though, it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant," (para 17) (of SCC): (para 16 of AIR)

19. Let us now sift the evidence placed on record by the prosecution from the proper perspective outlined above avoiding both the exploitation of every plausible suspicion as militating against the certitude of guilt and the unjust loading of the dice against the appellants merely because of a conviction rendered by the trial Court.

20. The probative items placed on record by the prosecution, there is no defence evidence adduced, are the medical evidence, motive, the eyewitness account of the mortal attack as given by PW s. l, 2 and 3 and discovery under Section 27 of the Evidence Act of certain material objects pursuant to the statements made by the appellants supported by the evidence of the Investigating Officer.

21. The trial Court has mainly relied upon the eyewitness account of the mortal attack as given by PWs. l to 3 and the medical evidence on record coupled with the motive alleged by the prosecution, With vigilant scepticism let us scan the important evidence without going over the whole ground again, MEDICAL EVIDENCE

22. PW. 19-Dr.Askar held autopsy or conducted the post-mortem examination on the dead body of the deceased Sidramappa on 17.10.2000 between 11.15 a.m. and 1.30 p.m. and has issued the post-mortem report as per Ex. P.14. He found as many as 31 external injuries, which were ante-mortem in nature. Majority of the injuries that were found on the dead body of the deceased were incised wounds. The internal injuries that were observed by him on dissection of the dead body of the deceased were almost corresponding to the external injuries found on the dead body of the deceased. The external and internal injuries that were observed by the autopsy Doctor on the dead body of the deceased have been mentioned in detail in paragraph-34 of the impugned judgment. In the opinion of the Doctor- PW. .19, the death of the deceased or the cause of the death of the deceased was due to haemorrhage and time since death may be about 6 to 48 hours prior to the post-mortem examination. Under the cross-examination done by the defence, he has stated that the death of the deceased could have been instantaneous. He has further stated that the injuries No.11to 15 found on the dead body of the deceased could not be caused due to a fall and the injuriesNo.4, 5, 6, 10 and. 19 could not be caused by a club, He has clearly denied the suggestion that the weapon MO. l (kandli) is not capable of causing the injuriesNo.3, 7, 8, 18, 29, 20 and 30.That means, the MO .l Kandli is capable of causing these injuries that were found on the dead body of the deceased. According to him, injuryNo.18 could not however be caused by the weapon MO. l. He has further stated that since the weapon Mo .3 has a tip, it could not have caused the injury found on the dead body of the deceased. He has again stated that such injuries could be caused by the weapon MO. 3 if assaulted with force. He has stated that MO. 2 is not capable of causing the curved injuries found on the dead body of the deceased. AH these answers elicited in the cross-examination of the autopsy Doctor by the defence would not in any way dilute the evidence of the Doctor- PW. . 19 that the deceased had sustained the above said injuries which are capable of being caused by certain material objects like the Mos. l to 3 and that the cause of death of the deceased was due to haemorrhage as a result of the injuries sustained by the deceased. Some of the injuries that were found on the dead body of the deceased could be caused by the weapon MO. 1 and some others could be caused by the other two weapons Mos. 2 and 3. He has further stated that since the stomach of the deceased was empty, the death of the deceased in all probability might have been caused in the early hours of the morning and that further since both the large and small intestines were also empty, the deceased might have eased himself prior to his death. In the absence of any evidence on record to show as to what were the food and easing habits of the deceased, and also as to when exactly the deceased had taken his food, no significance can be attached to such answers elicited in the cross-examination of the Doctor- PW. 19.The stomachic contents cannot determine with precision the time of death inasmuch as the power of digestibility may remain in abeyance for a long time in states of profound shock and coma and it must also be remembered that the process of digestion in normal healthy person may continue for a time after death. Be it noted, all the imponderables pointed out by Dr.Modi in his book on Medical Jurisprudence which makes the digestive testimony inconclusive, and, therefore insufficient, to contradict positive evidence, if any about the time of death. To impute exactitude to a medical statement, oblivious to the variables noticed by experts and changes in the dietary and eating habits is to be unfair to the Science. We are not prepared to run the judicial risk of taking the whole verdict on such nebulous medical observations made by the Doctor- PW .19. The possibility of the deceased not having taken his food is not ruled out. If so, the medical evidence as to the time of death with not be inconsistent with the post-mortem findings.

23. The Doctor- PW .19 had also examined the injuries that were sustained by the injured PW. . 2-Yellawwa. He found as many as six injuries on her person when examined by him on 16.10.2000. They have been mentioned in detail in paragraph-35 of the impugned judgment. The injured PW. . 2-Yallawwa had been referred by him for higher treatment to the KIMS Hospital and as per the medical record of that Hospital, the injured PW .2-Yellawwa had suffered a fracture of facial bone and some of the teeth of the injured had become loose and shaky. According to him, all the injuries that were found on the injured- PW .2 were grievous in nature and could be caused by a sharp and heavy instrument. In the opinion of the Doctor- PW .19, the injury NOS. 2 and 6 could have been proved fatal Accordingly, he has issued the wound certificate Ex.P.13 pertaining to the injured- PW. 2.

24. The Doctor- PW .19 has further opined that the injuries that were sustained by the injured- PW. 2 and the injuries that were found on the dead body of the deceased could be caused by the weapons like Kudugol and Kandli. Under the cross-examination, he has stated that except the injury No.2 of PW. 2, the other injuries could not be caused by the kandli- Mo. 3. He has further stated that the weaponMo. l ia capable of causing the injuries No. 3, 4 and 5 and not the other injuries of PW. 2. He has stated that injury No. 5 could be caused by the kudugol- Mo. 3. He has also stated that in order to sustain or cause the injuries on the face of the injured- PW .2, the assailant must be on the right side of the victim. Apart from this, nothing substantial was elicited in the cross-examination of the Doctor- PW. 19 SO as to discredit his evidence with regard to the injuries found on the person of injured- PW. 2,

25. A careful perusal of the evidence of the Doctor- PW. 19 would clearly indicate that the injuries found on the dead body of the deceased as well as the injuries that were found on the person of the injured- PW. 2 could be caused by the assault with the weapons like Mos. l to 3,

26. Prom the evidence of the Doctor- PW , 19 and the post-mortem report as well as "the wound certificate issued by him, it can safety be inferred that the deceased had died of violence and his wife PW. 2 had sustained certain injuries on her person which could have been proved fatal but for the timely treatment and they were caused by an external violence. Almost all the injuries sustained by the deceased and the injured- PW. 2 could be caused by the weapons like the Mos. l to 3 that have been produced in the case. Under the circumstances, therefore, it can safely be held that the prosecution has been able to establish that the death of the deceased was homicidal and the injured- PW. 2 had sustained certain serious injuries on her person which could have been proved fatal, but for the timely treatment.

REGARDING MOTIVE:

27. The evidence placed on record by the prosecution would show that though the deceased was younger to two of his brothers, he was managing the affairs of the family and his brothers viz., the appellants were attending only to the cultivation work of the land belonging to the joint family. The deceased had incurred certain debts and was insisting upon the appellants to share the debts incurred by him in order to have share in the property, which however was not acceptable and declined by the appellants as according to them, the debts incurred by the deceased were of immoral and illegal acts of the deceased. A panchayath wan also convened to settle the dispute between the parties as spoken to by PW. 8, but the same did not materialize. The appellants had also a grouse or grievance against the deceased as being responsible for taking away the movables from, their house towards the discharge of debt incurred by the deceased for his immoral and illegal activities. In addition to this, there was a suit for partition pending adjudication before a competent Civil Court at the material time. It must be remembered that the dispute regarding the sharing of lands in so far as the agriculturists in the rural area arc concerned, it is .a very sensitive matter. There are a very large number of cases resulting in serious disputes culminating in murders over small land disputes. Various persons react different in similar circumstances and one cannot therefore exclude the possibility of the appellants in the present case having reacted very sharply against what they considered to be an inequitable distribution of property in partition if they are to be directed to share the debts incurred by the deceased for his illegal and immoral acts. This would undoubtedly provide an adequate motive for the murder which is demonstrated by the fact that the deceased was actually murdered by the appellants and his wife- PW. 2 when came to the rescue of the deceased was seriously injured in the incident. Apart from the above, the appellants had a grouse or dissatisfaction towards the deceased since he was not only insisting them to share the debts incurred by him but was also responsible for removing all the movables from their house towards the discharge of debts incurred by him. Thus, the motive attributed by the prosecution could be established. It is generally an impossible task for the prosecution to prove what precisely would have impelled the appellants to kill the deceased. All that the prosecution in many cases could point to is the possible mental element, which could have been the cause of the murder. Even the case suggested by the defence would show that all was not well between the deceased and his brothers viz., the appellants herein. Under the circumstances, therefore, we are of the view that the prosecution has been able to establish that there was a motive for the appellants to commit, the crime.

REGARDING THE EYEWITNESSES:

28. Out of the three eyewitnesses PWs. l, 2 and 3 examined by the prosecution, PW. 2-Yellawwa is an injured eyewitness. She is the wife of the deceased and had accompanied her husband to the land on that fateful day. She has deposed regarding the occurrence that on that relevant day, they had gone to the land for harvesting the crop at about 9 a.m. in the morning. Her husband had engaged certain labourers and was waiting for their arrival alongwith PW. l. The deceased and PW. l were near the temple of Shivappa while she and her brother were at the land. She has stated that she found the presence of these accused persons in the land. According to her, when she called her husband to come over to the land in order to harvest the crop, among the accused persons who were present at the land, the women accused caught hold of her husband and the male accused assaulted the deceased. She has specifically stated about the overtacts committed by these appellants. She has stated that the accused Nos. l, 2 and 3 (the appellants herein) were armed with deadly weapons like the kandli and kudugol and committed assault upon the deceased with such weapons. She has stated that on seeing such ghastly assault committed on the deceased, when she raised hue and cry, she was also assaulted by the accused persons. She has stated that she was assaulted by the accused No. 3 over the neck and the other parts of her body. On being so assaulted, she collapsed to the ground and could not recollect as to who others had assaulted her. She has stated that she was tying unconscious in the land. Subsequently she was taken for treatment to Laxmeshwar Hospital and from there to the KMC Hospital at Hubli where she was admitted as in-patient. She has stated that her husband has died on the spot. She has identified the weapons Mos. l to 3 as being used in the commission of the offence,Mos.6, 7 and 8 are her blood stained clothes, She also speaks to the motive aspect of the case. Under the cross-examination done by the defence, she has stated that the distance from their land to the temple of Shivappa may be about 100ft.When her husband was assaulted, she was at a distance of about 10 to 15ft from the place of assault. She has denied the suggestion that at the material time there were about 20 to 25 persons from the tanda on the road. She has stated that she alongwith her husband and the complainant as well as her brother- PW. 3 were only present at that time. She had made a request to all the accused not to assault her husband. She has denied the suggestion that the incident in question did not take place in the manner as stated by her. The defence has elicited certain omissions and contradictions in the evidence of this witness which are not so material as to take away the core of the testimony given by her, regarding the occurrence as witnessed, the Court.

29. The other two eyewitnesses PWs. l and 3 had accompanied the deceased and PW. 2 to the land on that fateful day and their evidence read as a whole substantially supports the evidence of the injured eyewitness- PW. 2. Of these two eyewitnesses, PW. 3 is a younger brother of PW. 2 and PW. l was cultivating the land at the relevant time of this incident on crop share basis. Besides being an eyewitness to the incident, PW. l was also the first informant of the occurrence to the Police. PW. 3-Siddappa who is an younger brother of PW. 2 has deposed that on that day he had accompanied the deceased alongwith PWs. 1 and 2 to the land for harvesting the crop and while they were waiting for the arrival of the coolies or labourers engaged by them to harvest the crop, the accused persons emerged from the land and committed assault on the deceased and also on PW. 2. He has stated that among the accused persons, the accused Nos.l and 3 were armed with kudugol and kandli while the accused No. 7 was armed with kandli. Even the accused No. 2 was also armed with kandli. The accused No. 3 had first committed assault on the deceased with kandli followed by accused No. l. He has stated that the other accused persons had firmly held the deceased. When his sister PW. 2 went to the rescue of the deceased, she was also assaulted by the accused. Thereafter, the accused left the spot and proceeded in the direction towards the village Devihal. After the accused had left the spot, they went near the place where the deceased and PW. 2 were tying with injuries and found that the deceased had already died at the spot and his sister PW. 2 was still alive, He has stated that both he and PW. l proceeded towards the village where he informed the incident to his father Shivappa. He has also stated that thereafter hisiatherhad secured a car from Laxmeshwar and the injured PW. 2 was removed to the Hospital for treatment in the car. Under the cross-examination, he has stated that on that relevant day they had left the village at about 8 a.m. in the morning and when they went near the land, the labourers who were engaged by them to harvest the crop had not yet arrived at the land. He has stated that the place of incident was situated over the fallow portion of the land. After the deceased was assaulted, he fell on the road, at a little distance from the land. He has further stated that the distance between the temple of Shivappa and the place where the deceased had fallen may be about 20 to 30ft. He has stated that there was no verbal altercation before committing assault on the deceased. He cannot specifically state as to who had actually held the deceased at the time of the incident. He also made reference to the motive aspect of the case in his deposition. He has clearly denied the suggestion that he has deposed falsely in Court in order to knock off the property of the family of the deceased.

30. PW. l has deposed that on that relevant day, she had accompanied the deceased, his wife PW. 2 and her brother PW. 3 to the land and they were waiting for the arrival of the labourers engaged by them for harvesting the crop. He has stated that while they were so waiting, all these accused persons came in a group armed with kandli and kudugol. Among the accused persons, the accused No. l was armed with kudugol, the accused No. 2 was armed with kandli and the accused No. 3 was also armed with, kandli. According to him, all these accused persons had emerged out of the land. On seeing the sudden arrival of the accused armed with weapons, he got afraid and retreated from the spot. He has stated that the accused No. l had first assaulted the deceased with kudugol folbwed by the accused No. 3 with kandli. Thereafter the accused No. 2 assaulted the deceased with kandli. He has further stated that when the wife of the deceased had intervened to rescue the deceased, she was also assaulted by the accused. He has stated that after witnessing the assault, both he and PW. 3 proceeded to the village. After reaching the village, they informed the incident to one Shivappa, the father of the deceased. Thereafter the car was secured from Laxmeshwar and the injured was removed to the Hospital for treatment in the Car. He has stated that he went and lodged a complaint with the Police, which is as per Ex.P. l. He has further stated that the incident in question might have occurred at about 8.30 a.m. in the morning. He has also stated that after the arrival of the Police to the spot, he had pointed out the place of incident to the Police. Under the cross-examination done by the defence, he has stated that by the time he could reach the Police Station, it was already 4 or 5 p.m. in the evening. According to him, he had gone to the Police Station alongwith few others. He has ateo stated that before lodging a complaint with the Police they had consultation, with each other. At the Police Station, he had lodged a verbal complaint, which was recorded to writing by the police. Apart from this, the defence had also sought to elicit the details of the assault and the overtacte committed on the deceased and PW. 2 through this witness. It is no doubt true that the complainant- PW , 1 has stated that before lodging of the complaint with the Police, they had consultation with each other. But that by itself is not sufficient to doubt or to discredit the FIR and to infer that the FIR was fabricated. Admittedly, the complainant- PW. l was not related to the deceased and he was only cultivating the land belonging to the family of the deceased at that time, on crop share basis. In the fact situation, it is quite natural for him to have consultation with the relatives of the deceased and the elders of the village before lodging a complaint with the Police moreso when the assailants were none other than the brothers of the deceased. In this contextual fact, if the complainant- PW. l had consultation with the relatives of the deceased and other elderly persons in the village, it sounds natural. In this connection, a reference may be made to a decision of the Hon'ble Supreme Court in the case of State of U.P. v. Nahar singh (dead) and Ors. wherein it is observed in paragraph-15 of the decision as under:

Regarding preparation of the FIR in consultation with others, it is noticed that this is spoken to by PW. 2 who is the brother of the deceased-Ram Gopal The complainant is said to have been prepared by PW. l, son of the said Ram Gopal, late in the night at about 2.00 a.m. When there are two male members of the faintly who were grief-stricken, it was but natural that PW. l and his uncle ( PW. 2) should talk about giving the complaint and draft the same. This fact, in the circumstances of this case, can hardly be a ground a weaken the case of the prosecution.
Therefore merely because the complainant- PW. l and the relatives of the deceased had talked about giving the complaint to the Police, the said fact in the circumstance of the case can hardly be a ground to weaken the case of the prosecution.

31. The testimony given in Court by PW. 3 would receive credence from the evidence of his father Shivappa- PW. 8. He has clearly stated that he has informed of the occurrence by his son PW. 3 and thereafter he had secured a car from Laxmeshwar and removed the injured- PW. 2 to the Hospital for treatment

32. All the three eyewitnesses PW s. l, 2 and 3 had accompanied the deceased on that relevant day in the morning to the land and while they were waiting nearby the land for the arrival of the labourers engaged by the deceased to harvest the crop raised in the land, the incident in question has happened. Hence PWs. 1, 2 and 3 are the natural witnesses to the occurrence being the companions of the deceased at the time of the occurrence. Their evidence would find substantial support from the medical evidence as wefl as from the FIR, A combined reading of the evidence of PWs.l to 3 in general and that of PW. 2 in particular, coupled with the medical evidence of the Doctor- PW. 19 would show that there is absolutely no discrepancy between the ocular evidence and the medical evidence and it: clearly establishes the offences alleged against the appellants though not against all the accused persons who were sent up for trial In testing the veracity of the witnesses, the trial Court is the best Judge and it found their evidence is acceptable in so far as the participation of these appellants in the occurrence. Merely because PWs. 1 and 3 did not go to the rescue of the deceased and PW. 2, it could not be a ground to discard their evidence as they were unarmed and the appellants who were armed with deadly weapons were not in their senses while committing the brutal attack on the deceased and PW. 2. In this connection, a reference may be made to the decisions of the Hon'ble Supreme Court reported in 2OO3 SCC (Cri) S2-B, 1447-C and 1697-G Thus, where the appellants were armed with weapons and PW s. 1 and 3 being unarmed and that the incident in question having occurred on the outskirts of the village when nobody was readily available to be informed without loess of time, the behaviour of the witnesses PW s. l and 3 is quite natural when on seeing the appellants assaulting the deceased and PW. 2 ran towards the village to inform the occurrence to PW. 8, the father of PW. 2. Further, the mere fact that benefit of doubt was given to those accused against whom the prosecution evidence is either discrepant or insufficient and thereby fail to prove its case to the hilt, that does not mean that other accused persons against whom there is sufficient material to establish the prosecution case should also be given such benefit of doubt. In this connection, a reference may be made to the two decisions of the Hon'ble Supreme Court in the case of 2003 SCC (Crl) 184O-F and 32-E

33. For these reasons, we are unable to reject the evidence of PWs. 1 to 3andmore particularly, the evidence of PW. 2, on the ground that they were the relatives of the deceased. We have ourselves carefully gone through the entire evidence of these three witnesses and more particularly, the evidence of PW. 2 and we find that the shorn of few embellishments here and there, their testimony read as a whole has a ring of truth, a colour of consistency and a sense of straightforwardness as a result of which, their evidence inspires great confidence. In these circumstances, therefore, we do not see any good reason to discard the assessment of the trial Court regarding these three eyewitnesses and more particularly that of the injured eyewitness- PW. 2. It is needless to point out that the evidence of the injured eyewitness- PW. 2 cannot be doubted for the simple reason that she being an injured, her presence at the scene of incident cannot be doubted. Moreover, she being the wife of the deceased had accompanied him to land for the purpose of harvesting of the crop raised in the land.

REGARDING THE RECOVERY OF THE INCRIMINATING MATERIAL OBJECTS AT THE INSTANCE OF THE ACCUSED UNDER SECTION 27 OF THE EVIDENCE ACT

34. The Investigating Officer- PW. 18 has stated that on 30.10.2000 he learnt that the accused persons have surrendered before the Court and accordingly he had sought for the police custody remand of the surrendered accused, He has stated that the accused No,3 furnished the voluntary information as per Ex.P. 9 and the accused No. 2 furnished the voluntary information as per Ex.P. 10. Likewise the accused No. l furnished the voluntary information as per Ex.P.11 and so also the accused No. 7 as per Ex.P. 12. In pursuance to such information, the accused No. 3 Manjappa got recovered the blood stained clothes and the weapons ued in the commission of the offence, which were seized under a panchanama Ex.P. 2. Thereafter since the accused were no longer required by him for the purpose of investigation and also since their police custody remand was over, they were produced before the Court for being remanded to the judicial custody. Under the cross examination done by the defence, he has clearly denied the suggestion that the above said accused persons did not give any voluntary information to him and that nothing was required pursuant to such information. Apart from such suggestion, which was denied by the Investigating Officer nothing substantial has been elecited in the cross-examination by the defence to disbelieve the circumstance regarding the recovery spoken to by the Investigating Officer- PW .18. In this context, the evidence of the Doctor- PW. 19 who conducted the post-mortem examination on the dead body of the deceased would show that the injuries that were found on the dead body of the deceased could be caused by weapons like that of Mos. l to 3. Kven the injuries that were found on the person of the injured PW. 2 could also be caused according to the Doctor PW. 19 by the weapons like Mos. l and 3. Merely because the panch witness had turned hostile, that is no reason to discard the evidence of the Investigating Officer- PW. 18 regarding the recovery of the incriminating material objects at the instance of the appellants. The testimony of the Investigating Officer- PW. 18 should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses, the testimony of the Investigating Officer cannot be relied upon, The presumption that a person ads honestly applies, as much in favour of a police personnel as of other persona and it is not a proper judicial approach to distrust and suspect without good grounds. The ground realities cannot be lost sight of that even in normal circumstances, members of the public are very reluctant to accompany a police party, which is going to arrest a criminal or is embarking upon search of some premises. There is absolutely no material or evidence on record to show that the Investigating Officer had any reason to falsely implicate the appellants. Therefore the circumstance regarding the recovery as spoken to by the Investigating Officer- PW. 18 and supported by the medical evidence on record it cannot be discarded. The same if accepted will lend credence to the evidence of the eyewitnesses examined in the case.

35. It is no doubt true that there has been some delay in lodging the FIR to the Police concerned. But then, it has to be pointed out that in the instant case when the deceased and PW. 2 were assaulted, one of them had died on the spot and the other was seriously injured. Therefore, the anxiety on the part of the persona is to first shift the injured to the Hospital instead of going to the Police Station to lodge a complaint. That is to say, the first priority of the people is to shift the injured- PW. 2 to the Hospital for treatment. PW s. 1 and 3 who had actually accompanied the deceased and PW. 2 had got frightened on witnessing such ghastly incident and they had returned to the village and informed the occurrence to one Shivappa- PW. 8 the father of PW. 2. Thereafter they all proceeded from the village to the spot and secured a Car from Laxmeshwar in order to remove the injured PW -2 to the Hospital for treatment It is onty thereafter, the complainant- PW. l thought of lodging complaint to the Police concerned. If in the circumstances, the complainant- PW. l had taken a couple of hours to go to the Police Station to lodge a complaint it sounds natural. There is nothing unnatural in the conduct of either PW. l or PW. 3 to proceed to the village and secure some assistance in order to remove the injured- PW. 2 to the Hospital, It was contended on behalf of the appellants that the tractors were available in the village and the same could have been made use of by the complainant- PW. l or PW. 3 to go to the Police Station to lodge the FIR. The tractors may be available in the village but whether they were available at the time when the incident in question had occurred is not free from doubt. If really the tractors were available in the village, there was no need for the persons to secure the Car from Laxmeahwar to remove the injured to the Hospital. Even otherwise, merely because the informant- PW. l did not choose to use a tractor to go to the Police Station that cannot be a suspicious circumstance. It has only been brought on record that there were tractors available in the village. There is no evidence to show that the tractors were in usable condition and they could have been spared either to the complainant- PW. l or to PW. 3. Even if it was in usable condition, the frame of mind of the persons who had lost the life of a person and the other was seriously injured, using a tractor at that point of time to gp to the Police Station. It is not unusual for a person to avail public transport facility to go to the Police Station and the same being not available at that time, the complainant- PW .1 could not immediately proceed to the Police Station, More over, there was anxiety on the part of every one to remove the injured PW. 2 to the Hospital for treatment Under the circumstances, therefore, we find that there was no inordinate delay in lodging the FIR as sought to be contended by the learned counsel for the appellants. In this connection a reference may be made to a decision of the Honble Supreme Court in the case of State of Punjab v. Pholasingh and Anr. reported in 3004 SCC (Crl Page276-D

36. Now let us sum up the whole case in the light of the evidence we have found to be of worth. We must observe that even if a witness is not reliable, he need not be false and even if the police have trumped up one witness or two or embroidered a story to give a credible book to their case, that cannot defeat justice if there is clear and unimpeachable evidence making out the guilt of the accused. Certainty, it is a primary principle that the accused' must be and not merely' may be guilty before a Court can convict and the mental distance between may be' and 'must be' is long and divides vague conjectures from sure conclusions. Informing ourselves of these important principles, we have an alyged the evidence found good by us. In our view, the testimony given in Court by the three eyewitnesses and more particularly, the injured eyewitness- PW. 2 could be accepted. We are pursuaded that the injured eyewitness- PW. 2 is a witness for truth, but in view of the circumstances that she is the wife of the deceased, we would still want corroboration and that we have in this case.

37. Having regard to the fact that the three appellants had committed an incriminating assault with deadly weapons on the unarmed deceased and caused as many as 39 injuries on his person which resulted in instantaneous death would show that they had acted in a most cruel and unusual manner. Having regard to these facts of the case, we are not inclined to accept the submission made on behalf of the appellants that the acts committed by the appellants would not attract the offence under Section A href="javascript:fnOpenGlobalPopUp('/ba/disp.asp','16125','1');">302 of IPC and that it attracts lesser offence. We are of the clear -view that in the facts and circumstances of the case, the acts committed by the accused would clearly attract the offence under Section A href="javascript:fnOpenGlobalPopUp('/ba/disp.asp','16125','1');">302 of IPC and nothing less than that. Hence, they have been rightly convicted by the trial Court for the offence under Setion A href="javascript:fnOpenGlobalPopUp('/ba/disp.asp','16125','1');">302 read with Section 34 of IPC for causing the death of the deceased.

38. Therefore having given our anxious consideration to the entire matter in issue, we are of the clear view that the impugned judgment and order of conviction and sentence made by the trial Court warrants no interference in the appeal.

39. In the result, therefore, this criminal appeal filed by the appellants is hereby dismissed. The impugned judgment and order of conviction and sentence passed by the trial Court is upheld and the same is confirmed in the appeal.

40. Before we part with the case, we place on record the service and assistance rendered by the learned counsel Sri.V.F. Kumbar, as Amicus Curiae. We find within a short time he had rendered the assistance to us in a commendable manner. Hence, while placing on record the assistance of learned Amiens Curiae Sri.V.F. Kumbar, we fix his fee at Rs. 3,000/- and direct the registry to pay the same forthwith. It is ordered accordingly.