- (1.) These two appeals relate to the common judgment of Karnataka High Court whereby the judgment of acquittal passed by the trial Court was set aside. Augustine Saldanha-appellant in Criminal Appeal No. 854/1996 was held guilty of offence punishable under Section 302 of Indian Penal Code, 1860 (in short 'IPC') and sentenced to undergo imprisonment for life. Rocky Saldanha-appellant in Criminal Appeal No. 1734/1996 was found guilty for offences punishable under Section 324, IPC and sentenced to undergo imprisonment for one year. They were also sentenced to pay fine of Rs. 5,000/- and Rs. 1,000/- respectively with default stipulation of six months SI and one months SI respectively. Accusations which, formed foundation of prosecution version are essentially as follows : On 17-5-1989 Paul Saldanha (hereinafter referred to as 'the deceased') and Felix Saldanha (P.W. 1) were returning to their houses after viewing a movie. When they reached near the house of the appellants, accused Augustine and Rocky along with Henry Saldanha (acquitted) assaulted the deceased. They were armed with sticks. As a result of the assaults the deceased breathed his last while P.W. 1 suffered grievous injuries. The incident took place between 10.00 to 10.30 p.m. On next day morning around 5.15, P.W. 8 ASI of Mulki Police Station received information from an unknown person of Kumeri that two bodies were lying at Shadguri of Aiala village. Though he could not ask the name and address of the informant, he made entries in the General Diary and proceeded to the spot along with other police personnel. At the spot he found dead body of the deceased and P.W. 1 in injured condition. They were taken to hospital and complaint (Exhibit P-1) was recorded. P.W. 8 registered the FIR after coming to the police station, and dispatched the same to the Magistrate at Mulki which was received at about 11.15 a.m. Investigation was undertaken on the basis of the report of P.W. 1, and after completion thereof charge-sheet was placed. It needs to be noted that on the basis of information given by the accused while in custody recoveries were made. In the complaint (Exhibit P-1) the informant P.W. 1 had stated that he could see assailants by focusing a torch. He had lost consciousness temporarily, but when he was in sense, could hear that P.Ws. 3 and 4 i.e. two taxi drivers were asked by the accused to shift him and deceased to different places; but they refused to do so. In Court, apart from the evidence of P.W. 1 the evidence of P.Ws. 3 and 4 were also tendered and pressed into service to substantiate the accusations. The Additional Sessions Judge of Dakshina Kannada, Mangalore found the evidence of P.W. 1 to be not believable and directed acquittal, and the circumstances which weighed with him are as follows : Credibility of the report (Exhibit P-1) was doubted because the injury sustained by P.W. 1 was so serious that he was given treatment in the emergency room and it was highly improbable that he would have been in a position to give statement (Exhibit P-1). While P.W. 8 stated that he had recorded the complaint, handwriting therein was similar to those in which Exhibits P-8 to P-10 (Panchnamas) were written. Prosecution version was also doubted because P.W. 2 stated at one place that P.W. 1 had been taken out of the hospital at the time of spot inspection, he stated subsequently that P.W. 1 was not taken out. The evidence of P.W. 1 was also discarded on the ground that there were exaggerations and improvements and there was no specific mention about identification by torch and moonlight in Exhibit P-1 as was stated in Court. Only in the first information report, it was mentioned that witness was holding a torch. He also found that the recovery of the torch from the spot was doubtful. It was also noted that the torch was broken and P.W. 1 did not say as to how the torch was broken. The trial Court doubted the version of P.W. 1 because no explanation was given as to how his shirt was torn and this indicated that there was some violence. The trial Court noted that P.W. 1 did not specifically say as to why P.Ws. 3 and 4 declined to take the dead body of deceased and P.W. 1 to a different place, though PWs. 3 and 4 give details in Court. Another circumstance to doubt the version of P.W. 1 was that there were several injuries on the body of the deceased, and the P.W. 1, while P.W. 1 stated that one blow each was given to the deceased and to him, With these findings the trial Court found the accused persons not guilty and they were acquitted. In appeal, the High Court found that each of the reasons given by the trial Court suffered from vulnerability. The High Court found that evidence of P.W. 1 was credible and cogent. So far as injuries on the deceased and P.W. 1 are concerned, it was noted that doctor had stated that several injuries were possible because of one blow. In case of P.W. 1 one injury related to complaint of pain on the leg. When P.W. 1 had stated specifically about the torch in Exhibit P-1, the mere fact that there was non-mention of moonlight was not good enough to discard the evidence as unreliable. Similarly, even if torch was broken it was not necessary for P.W. 1 to explain how it was broken. Evidence was that he had fallen down after receiving the blow on the head. It was also noticed that P.W. 2 doctor's evidence did not affect the credibility of prosecution evidence that P.W. 1 was taken to the spot, in view of what had been indicated by the doctor in his evidence and as borne out by documents. Merely because P.W. 1 had not indicated in Exhibit P-1 as to why PWs. 3 and 4 did not want to take deceased and P.W. 1 in their respective taxies that cannot be considered to be a vital omission. In fact evidence of P.Ws. 3 and 4 clearly establish the role of accused persons and the veracity of prosecution version. With these findings accused Augustine Saldanha was convicted and sentenced by Additional Sessions Judge under Section 302 IPC as aforesaid. Similarly, considering the nature of the injuries sustained by P.W. 1, accused Rocky Saldanha was sentenced to undergo one year imprisonment as noted above for offences punishable under Section 324, IPC.
(2.) In support of the appeal learned counsel has submitted that the trial Court had correctly appreciated the evidence and the High Court was not justified in reversing the findings. It was quite improbable that P.W. 1 identified the accused persons in the dark night. The injuries found on the body of the deceased and P.W. 1 do not tally with the version as stated by P.W. 1 in his evidence.
(3.) The evidence of P.W. 1 and P.W. 8 suffers from many infirmities. For example, as to how P.W. 1 who was in unconscious condition could be able to give a report without any medical aid, is not explained. Residually, it was argued that one blow was given in the dark night and it would rule out application of Section 302, IPC.;