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PETITIONER: D.V. SHANMUGHAM & ANR.

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT:       25/04/1997

BENCH: G.N. RAY, G.R. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT: Present Hon’bleMr. Justice G.N. Ray Hon’bleMr. Justice G.B. Pattanaik K. Parasaran,  Sr. Adv., V. Krishnamurthy, Adv.with him for the appellants Mrs. K. Amreshwari, Sr.  Adv.,G.  Prabhakar, Adv. with her for theRespondent      The following Judgment of the Court was delivered:       JU D G ME N T PATTANAIK, J.      The appealis directed against thejudgment of theHigh Court of  Andhra Pradesh  dated15th April, 1994 in Criminal Appeal no.  695of 1993arisingout of SessionsCase No. 251 of having  committed several  offences and weretried by the Additional Sessions  Judge,  Chittoor  at  Tirupati  and  by judgment dated9th July,  1993all  ofthem  were convicted under different sections of  the penal Code. All  ofthem except A-2 wereconvicted underSection302/149IPC andwere sentenced to imprisonment for life. They were also convicted under Section  148 andsentenced to  imprisonment  for one year,  under   section307/149  theywere   sentenced  to imprisonment for  five years  and underSection324/149were sentenced to  imprisonment forone year,  all the sentences have been  directed torun concurrently.  A-2 was convicted under Section 302 for causing murder ofMohan and Sekhar and was sentenced  to imprisonmentfor  life,  convicted  under Section307  and sentenced  or rigorous imprisonment for  5 years and a fine of  Rs. 200/- in a default imprisonment for 2 months  convicted under  Section 324IPC andsentenced to imprisonment of one year,  and324/149IPC andsentenced to imprisonment for one year, sentences torun concurrently. In appeal,the  High Court by the impugned judgment set aside the conviction of accused Nos. 3, 4 and5 and acquittedthem of allthe charges.  The HighCourt  Also  set  aside the Conviction andsentence of  accused No.  1  under  Sections 148,307/149 and 324/149 IPC.  His conviction  under Section 302/149 was  modifiedto  one undersection 302/34 and sentence  of   imprisonment  for  lifewas  confirmed. His conviction under  Section 324  for causing  hurt to PW-2 was also maintained.  so far  as accused  no. 2 is concerned the

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High Court  confirmed the  conviction and sentence passed by the learned  Sessions Judge  for the  offence under Sections 302 and 307 IPC.  His conviction  under  Sections  148 and 324/149and thesentence passedthereunder was set aside and thus the present appeal.      The prosecution  case  innutshell  is  that  all the accused persons  belong  to  village  Dasarimatam  and the complainant party  belong to the same village. Some incident had happened  between the  two groups  on 6th  May, 1990  in respectof  which a  complainant had  been lodged by accused No.1. on  account of  the Same there was ill feeling between the two groupsand  on the  date  ofoccurrence  on22nd September, 1990at 8.00P.M. when one Natarajanwas coughing on account of his feverthe accused No.1 was passing bythat road on his scooter.  He tookthis to be a  taunting, and therefore, brought  hisbrother accused No.2  and picked up quarreland challenged him. Said Natarajan was a relation of the  complainant.   Shortly  thereafter  at  10   P.m. the complainant PW1 and  the deceased  - Mohan  were returning from a theatre and whenthey had reached the house of one V. Murli the  fiveaccused persons formed themselves into  an unlawful assembly  andattacked  the  complainant  and the deceased with deadly weapons. While accused No.1 caughthold of deceased-Mohan  accused No.2 stabbed him with a knife on the  abdomen   and  Mohan   fell  down wounded.  When the complainant, PW-1  intervened he  was also  stabbed with   a knife by  accused No.2on hisleft hand  and accusedNo.1 dealt a blow with  a stick  onthe  right hand.  PW-1then raised an  alarm and  on hearing  the  cries  his  relatives including Sekhar who isthe other deceased cameout of their houses and  rushed towards  Mohan. Thefive accused persons then also  attacked these  people  andwhile  accusedNo.3 caught hold  ofSekhar, accused No.2 stabbed him with knife on hisabdomen and  caused  fatal  injury.  These  accused personsmore  particularly accused  No.4 and 5 hurled stones which caused  injury tothe member of the complainant group. AccusedNo.1 also stabbed one Ravi Kumar with aknife on his left elbow,  asa  result  of  which  said  Ravi  Kumar was injured. The  injured persons were taken to thehospital for treatment and  Mohan died  during the midnight on account of shock and  haemorrhage as a result of the injuries sustained by him. The sub-Inspector  of Police, East PS,on receiving the information about the  incident rushed  tothe hospital and recorded the statement of injured Sekhar at5 a.m. on 23 rd  September,1990  and  Sekhar  ultimately  died  in the Hospital on  24th September,  1990  p.m.  On  the  basis  of information given by PW-1 the investigation proceeded and on completion  ofinvestigation  charge  sheet  was  submitted againstthe  five accused  persons as  already stated and on being committedthey stood their trial.      The prosecution  to establish  thecharges against the accused persons  examined  asmany  as  23  witnesses and exhibited a  large number  of documents. The defence did not examine any   witnessbut   exhibited several   documents including the former statementsof the prosecution witnesses recorded underSection161   Cr.P.C.  for  the purpose  of contradicting them  during thecourse of  their examination during trial.  The learned  Sessions Judge  on scanning the evidence  on   record  came   to  the  conclusion  that the prosecution witnesses  are reliable  and basing upon  their testimony convicted  the accused  persons and sentencedthem as already  stated. The High Court,  however, in the appeal reappreciated the  evidence led by theprosecution andcame to theconclusion that the prosecution  has been  able  to establish the  charge beyond reasonabledoubt with regard to

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the role  played by  accused No.1 and 2for causing injuries to deceased  - Mohan  on account  of which  Mohan ultimately died. But so far as theinjuries causedon Sekhar though the prosecution hasbeen able to establish the roledescribed by accusedNo.2  on that score butthe role ascribed to accused No.3 and  5 have  not  been  established  beyond  reasonable doubt. In otherwords, the HighCourt discardedthe evidence of the eye-witnesses sofar as they ascribed different parts played by  accused No.3,  4 and 5 in  formingthe  alleged unlawful assembly  and in  assaulting  the complainant party essentially because  none of  them in their earliest version to thepolice and  implicated these accused persons. Having come to the aforesaidconclusion theHigh Court heldthat none of the charges  against accused  No.3, 4 and  5 can be said tohave been established by the prosecution and assuch they were  acquitted of the charges.  But relying  upon the evidence of  the self-same  prosecutionwitnesses  theHigh Courtcame tohold that  the role ascribed toaccusedNo.1 and 2  in causing  injuries on deceasedMohan and Sekhar may be held to have  been established  beyond reasonable doubt, and therefore, convicted A-2 under Section 302 IPC and A-1 under Section  302/34 IPC.  TheHigh  Court  also  convicted these accused 1and 2 who are the  appellants in this appeal under Section  324 IPC of  causing hurt  to PW-2  andPW-1 respectively  and   further  convictedaccused No.2  under Section307 IPCfor attempting to commit the murder of PW-7. It may be stated that the High Court gave a positive finding on reappreciating  the evidencethat accused No.4 and 5have not Pelted  stones as  narratedby the prosecution witnesses an this finding will  have vital  bearing in  deciding the presentcriminal  appeal. It  may alsobe stated  that the state has  not preferred any appeal against theacquittal of accusedNo.3,  4 and  5which  order of acquittal hasthus become final.      Mr. K.  Parasaran,the learned senior counsel appearing for the two appellants arguedwith  emphasis that no doubt two persons  Mohan andSekhar have  died in  the course  of occurrence butthe prosecution story as unfolded through a number of  prosecution witnesses  who are  alleged to be the eye-witnesses to  the occurrence  is not the correct version and theprosecution is guilty of suppressing the genesis and the origin  of the occurrence in asmuchas no explanation has been  offeredfor  the   injuries  sustainedby  the two appellants  as well  as  their  father  Subramanium,more particularly, the  injuries onthe head of accused  No.1 on accountof  which the said accused had multiplestitches and was required  to be  removed toNeurological Surgical Centre and the injuryis  grievous in nature,  Mr.  K.  Parasaran furtherarguedthat  the  prosecutionis  also  guilty  of shifting  theplace  of   occurrencein  asmuchas  though according  tothe  prosecution   witnesses  the   incident including the  stabbingof  Mohan and  Sekhar took  place in front of  the house of accused Murli but the blood and blood stainedstone could be recovered from the Veranda of one Mr. Reddy which  isfar away from the houseof accused Murli and the prosecution is totally  silent as to how such blood and blood stained  stone could  be recovered from the Veranda of Shri Reddy.  Mr. K  Parasaran also  contented that  all the prosecution eye-witnesses are related to each other andthey have repeated  the version  in the  same mannerand theonly independent witness  PW-10 didnot support  the prosecution case atall andin suchcircumstances when other independent witnesses wereavailable as  narratedby  the prosecution witnesses  themselves, non-examination   ofsuch   other independent witnesses availableaffectsthe prosecutioncase

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also. Mr.  K. Parasaran, lastlyurged that the role ascribed to accused  No.1 and  accused No.3  being  identical  namely accusedNo.1  caught hold of Mohan whenaccusedNo.2 stabbed Mohan and  accused No.3 caughthold  of Sekharwhen accused No.2 stabbed Sekhar andthe High Court having Re-appreciated the evidence  has already  rejected the same so  far as the role  ascribedto  accused  No.3  is  concerned,  thesame infirmities m  relationto the role ascribed toaccusedNo.1 also vitiates  the ultimate  conclusionof the High Court in convicting accused  No.1 and the accused No.1 is entitled to get benefit  ofdoubt  .  Mrs.Amreshwari,  learned  senior counselappearing  for the state on theother hand contended that when  two courts  of facthave already appreciated the evidence and  have recorded  their conclusion  to the effect that the  prosecution has been able to establish the charges againstaccusedno. 1 and 2 beyond reasonable doubt it would not beproper for  thecourt  to interfere  with  thesame conclusion in  exerciseof  power under Section 136  of the Constitution more  particularlywhen  two precious lifehave been lost.  Thelearned counsel also  urged that it istrue that prosecution  has not  beenable  to explain injuries on the accused  persons but  the said  question has  alsobeen considered by  the High Court and  yetin viewof the clear agent evidenceof theprosecution witnesses  when theHigh court has  convicted the  two accused persons. the sameneed not beinterfered with by this  Court.  According  to the learnedcounsel the substratum of thecase isthat accused No.1 caught  hold of  Mohan when  accused No.2 stabbed Mohan with the  knifeat  hisabdomen has been  fully established throughthe  several  witnesses who  themselves  havebeen injuredin  the Course of  incident,and  therefore, the conviction of  the twoappellants maintained  by  theHigh Court need  not be  interfered with  by  this CourtMrs. Amreshwari, however,  in her ultimate submission statedthat though accusedNo.1 may  be entitled to benefit of doubt by applying the  same reasoning and the same infirmities in the prosecution witnesses  on  which  accused  No.3  hadbeen acquitted,  but  so  far  as  accusedNo.2  is  concerned, conviction being  basedupon  clear and cogentevidence the same cannot be interfered with.      Coming  to the  questionof  non-explanation  of the injuries on  the accused,  it appears  from  Exhibit  D-6  , Private WoundCertificate  the  accused  appellant  No.  1 sustained  a  lacerated injury of  5x1/2  cmon  parietal eminence-clot formed  and  wasadmitted  in  MS  III  under Neurosurgery ward  but discharged against the medical advice and the said injury  is grievous  in nature but mighthave been caused  byblunt  object. It is also clearfrom Exhibit P-10 issued  by Dr.  S.  Koteswara  Rao,  Casualty  Medical officerof  thehospital at Tirupati that the appellantNo.1 was dischargedfrom the hospital on 24.4.1990 at 10 p.m. to get treatment  for Neurosurgery care at  higher centre. The Doctor (PW-15) in his evidence stated :      "A-1 was  examined by  me on  the      requisition  sent by  East   P.S.      Tirupati on  23.9.90. TheA-1  was      sent to the hospital with an escort      of fivepolice constables.   I      examined A-1  on 23.3.1990 at 4.45      a.m. As  per accident  register A-1      told me  at that  time that  he was      assaulted with  iron  rods,  sticks      and chains.  I  found  a  lacerated      injury  5X  1/2  cms.   On   right      parietal eminence. Blood clot were

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    found. X-ray  was also  taken.  A-1      was admitted  in M.B.3  ward  under      Neurosurgeon. Theinjury found  on      A-1 was  grievous and  there are 12      and  13   stitches and  after  the      receipt of the said injury to A-1,      heshould have profused bleeding."      Exhibit D-11  is the  certificategiven  by  thesaid Doctor indicating  thaton 5.10.1990 the accused - appellant No.1 attended  the hospital  for sutureremovaland dressing and even on that date the woundwas notcompletely healed up and according to Doctor. It would take another one month for healing. The aforesaid injury on accused - appellant No.1 on vital part  of the bodyis undoubtedly a grievous injury and the injured  must have profusedbleeding as stated by PW-15. The accused-  appellantNo.2  had  sustained  the  following injuries as  isapparent  from ExhibitD-7, which  was the certificate  Issued by PW-15:      "1.  Multiple    abrasions    with      swelling of  2x1 cm.      Size over      right eye.      2.  Rightblack eye present.      3.  Swelling of  right Molar  bone      present."      PW-15 in his evidence alsostated:      "The samepolicebrought A-2  at      4.45  a.m.  and  examined him  on      police requisition.  He  identified      A-2  Comparing  his  identification      marks. A-2 also stated  before  me      that he  was  assaulted  with  iron      rods, chains  and sticks.I  found      the following  injuries on A-2  at      that time. I. Swelling  of 2x1 cm.      Size on the right molar bones. 2. A      black eyepresent. 3.  Swelling in      right molar  bone.The injuries are      simple innature. Ex.D.7 is  the      certificate issued in favour of A-      2."      The aforesaid injuries on accused -  appellant No.2 are undoubtedly simple in nature. The father of both the accused -  appellants,Subramanium  also  sustained  the  following injuries as  isapparent  from the  certificateExhibit D-8 issued by PW-15:-      "1.  An abrasion of 5 cm. In length   over the  vault of  the skull.   Red in colour.      2.  Swelling in left eye brow.      3.  Swelling in upper part of leg.      4.  Abrasion of  6x3 cm. Over left   calf muscle.      5.  Abrasion of 7x4 cm. below left   calf muscle      X-Ray No.1505/14536 of  skull AP-      Nobony injury noted.      Hehas been admitted in MSIII ward      under Neurosurgery and  discharged      against Medical advice.      The injury is  simple  in nature,      might have been  caused  by  blunt      object  and  the  age  isabout  6      hours.      Station : Tirupati.   Sd/-

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    20.10.90  20-10-90   (Dr. S. KOTESWARA RAO)   CIVILASST. SURGEON   S.V.R.R. HOSPITAL,   TIRUPATI."      PW-15 also in his evidence  reiterated  the  same  by stating:-      "Ifound  the following injuries on      him. I  have examined  himat  4.45      a.m.  1.  An  abrasion  5cms.  In      length over  the walt  of skull, 2.      Swelling on  left eye browpresent.      3.Swelling  of upper  part of  the      left leg.4. Abrasion of 6 x 3 cm.      over the  left calf  muscle. 5.  An      abrasion of  7x4 cms.  Below  right      cough     muscles. He   was   also      admitted ward  No.3  in charge  of      Neurosurgeon.  The  injuries   are      simple innature and  the age  is      about sixhours. 5xD.8 isthe said      certificate."      The aforesaid injuries no doubt are simplein nature as opined by PW-15.      The High  Court came  to the  conclusion that  both the accused  appellants as well as  theirfather - Subramanium received the  injuries in  course  of  the  occurrence. The question  thatarisesfor  consideration  iswhether the prosecution hasofferedany explanationfor such injuries on the accused-  appellants as  well as  their father and if no explanation has been offered  then forsuch non explanation has  been   offered  then   for suchnon-explanation the prosecution case  in anyway  gets affected.  The law inthis regard has  been well  discussed in a judgment of this Court in theCase of LAKSHMI  SINGH AND  OTHERS  VS.  STATE  OF BIHAR,(1976) 4SCC 394,  It has  been held  bycourt in the Aforesaid casethat where  theprosecution fails to explain the injuries onthe accused then two results may follow:- 1.   that the evidence of the prosecution witness is untrue; and 2.   that the  injuriesprobabilise  the plea  taken by the appellants.      Ithas  also beenheld inthe aforesaid case thatin a case that  in  a  caseof  murder  non-explanation  of the injuries sustained  by the  accused at about the time of the occurrence is  a very  important circumstance from which the court can draw the following inferences:      (1)  that the   prosecution   has   suppressed the genesis and the   origin of  the occurrence  and   has  thus  not  presented  the   true version;      (2)  that the  witnesses  who  have   denied  the  presence of  the   injuries on  the person of the   accused are  lying on a  most   material point  and  therefore   theirevidence is unreliable;      (3)  thatin   case  there   is  a   defence version whichexplains   the injurieson the person of   the  accusedit  isrendered   probable so  as to throw doubt   on the prosecution case."      Ithas  further been  heldthat omission on the part of

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the prosecutionto explain the injurieson the person of the accusedassumes much greater  importance wherethe evidence consists of  interestedor  inimical witnesses. But  it  is equallywell  settled that the prosecution is not obliged to explain the  injuriessustained  by  the  accused  if the injuries are  minor and superficial and  wherethe injuries are not sustained in  course of  the occurrence.  On abare examination theinjuries found on the two appellants aswell as their  father   - Subramanium,  we found  that though the injuries on  appellant No.2  aswell asfather - Subramanium were minor  in nature  and quite superficial and as such the prosecution was not obliged  to explain  thoseinjuries but the injury  on appellant  No.1 was  of such  nature that  it cannot go  unnoticed bythe witnesses to the occurrencemore so when the medical  evidence is  to the  effect that there must be profused bleeding.  In respect  of  such  grievous injury sustained  by the  appellant No.1  the prosecution is bound to  offersome  explanation and  if explanation is not offered  then the  court is  entitled to  drawinference as held by this Court in the caseof LAKSHMI SINGH  AND OTHERS VS. STATE OF BIHAR referred to supra, PW-1 who is admittedly an eye-witnessto  theoccurrence and was at the stop right from the  beginning, inhis evidence stated: "It is nottrue to saythat in the incident  A-1 and A-2 received bleeding injuries on  the head and A-1 sustainedserioushead injury. It is  not true to say that at  the time  of the  incident Subramanium -  the father  of A-1 and A-2 was present and he received injury on heshead and other parrots of his body." PW-2 who  is also an eye-witness to theoccurrence stated "I have seen  the bleeding injuries on the head of A-1 and A-2 but he said injuries were caused due tohurlingof stones by A-4 and A-5 from  the building."  It was  elicited from his cross-examination :  "police asked  me as to how A-1 and A-2 got bleeding  injuries and  1 did not state to the police at that time that A-1 and A-2 received bleeding injuries due to hurlingof  stones by A-4 and A-5". PW-3 who isalso aneye- witnessto  theoccurrence  didnot state anything about the injuries beingsustained  by  A-1  and A-2  and  howsuch injuries were  sustained. PW-6 is also an eye-witness to the occurrence andwas himself also one ofthe injured. Healso in hisevidence stated that there  were no injuries on A-1 and   A-2 at  the timeof occurrence  and further he states that he does not  knowwhetherA-1 andA-2 andtheir father were admitted to the hospital by the Police. PW-7 is also an witnessto  theoccurrence  andhe  stated inhis evidence that at the time  of  occurrence  there  wereno  bleeding injuries on  the head  of A-1  and A-2. PW-8 is  equally  a witnessto the occurrence and he no doubt had stated that he had marked  thebleeding injuries on the head of A-1 and A-2 but did not state   asto how accused A-1 and A-2 sustained those injuries.PW-10 though was examined by the prosecution but did not  support  the  prosecution and  therefore was permitted  bythe  court   to be  cross-examined  by the prosecution. PW-12  is a  witness to  the assault by accused No.2 on Sekharas  well as  the assault  on PW-7 by accused No.1. He  in hes  evidence hasstated :  "at the  scene  of occurrence didnot see any bleeding injuries on A-1 and A- 2". Thus,  out of  theaforesaid  7  eye-witnesses  to the occurrence except  PW-2and  PW-8 rest did not even state to have seen  the injuries on the head  of  thetwo  accused appellants. PW-8  though statedto havesen theinjuries but did not offer explanation  as too  howthose  injurieswere sustained by  the accused appellants. PW-2 though offered an explanation namely  theinjuries are sustained on account of hurlingof  stones by  A-4 andA-5 but the High  Court  on

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appreciating the  evidence came to the positive conclusion that the  prosecution story  that A-4  and A-5were hurling stones is not believable and infact they had not hurled the stones as  alleged. That apart as has been indicated earlier the PW-2  had not  stated  before  thepolicewhile  being examined underSection161  Cr.P.C. about  theexistence of injuries on  the head  of the  accused personsor as to how those injurieswere caused.  In the  aforesaidcircumstance the conclusionis irresistiblethat the prosecution has not offered any   explanation  for the  grievousinjuries  on accused-appellant No. 1which the prosecution was obliged to explainand  such omission on the part of the prosecution to explainthe  injuries  on  accused  appellant  No.1  assumes greatersignificance  since all the  eye-witnesses  to the occurrence  are related  to  the  deceased  and  thuswere interested in  the prosecution. In asmuchas PWs 1 and 2 are brothers of  deceased Sekhar, PW-3 is the mother of deceased Sekhar,PWs  6 and 7 are brothers of deceased Mohan, PW-8 is the brother-in-law  of Mohan and PW-12is the elder brother of Mohan.  In the  aforesaid premises,we findconsiderable force in the submissionof Mr. Parasaran, the learned senior counsel for   the  appellants, that  prosecution  has not explained the  grievousinjuryon thehead  of  accused  - appellant No.1 and suchnon-explanationpersuades us todraw an inference that the prosecution has not presented thetrue versionat  least so  far as  the  role played by  accused appellant No.1and thewitnesses who have beenexamined and who have ascribed a positive role to the appellant No.1that he caught  holdof  Mohan whenappellant No.2 stabbed Mohan are not true on  material point and their evidence thus has become vulnerable.  Even though the accused-appellantNo.2 also sustainedsome injuries as indicated earlier but those injuries beingsimple and  superficialthe  prosecution may not beobligedto offer the explanation to thesame but the same principlewill have  no application  whenan injury of such grievous  nature as  was sustainedby accused-appellant No.1 had not been explained by the prosecution witnesses who are grossly  interestedin the prosecution being all related to one another.      Atthis  stage it would beproper for us to; notice the contention advanced  byMrs.  Amreshwari, the learned senior counsel appearing   for  the  State  that  the prosecution evidence having been scrutinised  by the  learned  sessions Judge and the High Court and having been accepted by the two courts below  it wouldnot beproperfor  this  Court  to interfere withthe convictionin exercise  ofpowers under Article136  ofthe  Constitution. We,however, are unable to persuade  ourselves to agreewith the submission wince we are not appreciating the  evidence inthis case but we are only applying  a principle  ofcriminal jurisprudence which casts an  obligation  on  the  prosecution  toexplain the injuries on  the accused  particularly when theinjuries are of  grievous  nature  and  theconsequences  of  suchnon- explanation ofthe injury.  That apartin appropriate cases there is  no bar on thepowers of this Court even to examine the evidence  if the  appreciation of  such evidence  by the Courts below  on the  face of it appears to be erroneous and such erroneousappreciation causes  miscarriage of justice, However, we  are not delving further into the question since we arenot appreciating   the evidencein the case in hand. The High  Courtin  ouropinion committed  gross  error  in comingto   the  conclusion  that  non-explanation  of the injuries on  A-1 is  not material.  Thevery approach of the High Court  that since police did not confront the witnesses about the  accused receiving  injuries while  examiningthem

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under Section  161 Cr.P.C., no explanation is forthcoming is erroneous.      Itwould  also appear fromthe materials on recordthat though according  to the eye-witnesses the incident occurred in front  of the  houseof  accused No.3 where both deceased Mohan and  Sekhar werestabbedby  accused No.2  and  while taking the  injured persons  Mohan felldown infront of the house of  Prabhakar asa result of which bloodfell down in front of  the house  ofPrabhakar.  yetit  is difficult  to imagineas  to how blood stainswere found fromthe house of Prabhakar uptothe house of Venkat Reddy as has been stated by PW-2 and PW-22  oneof  theinvestigating  officers and according to the said PW-22 thedistance between Prabhakar’s house and Venkat Reddy’s house is more than 120feet. Though Mohan and  Sekhar werestabbedin  front of  the  house  of accusedNo.3  as stated by the prosecution  witnesses but blood stains  being available upto the house ofPrabhakar is explained fromthe  fact  that the  injured  personswere carriedupto that placebut beyond thatit is no body’scase that the  injured persons  werecarried any further  and as such no explanation is forthcoming as to howblood stains could be found upto theVerandaof the house ofVenkat Reddy and then  bloodstained stoneswere also recovered from the Verandaof  said Venkat Reddy.This  feature also indicates that the  prosecution witnessesare notsure asto where the occurrence tookplace. It also appearedfrom the evidence of PW-2 and  PW-8 that  there were several   other people who witnessed the  occurrence and  they arenot theresidents of that locality.If suchindependent witnesses were available and yet were not examined by the prosecution and only those personswho  are related  to the deceased were examinedthen in  such   a  situation the  prosecution  case has  to  be scrutinised  with   more  care and  caution.Further Mr. Parasaran is  right inhis submissionthat  the  witnesses ascribed the  role of  caching hold of Mohan byaccusedNo.1 and role  of caching  hold of Sekhar byaccusedNo.3 and the High Court  gave the  benefit to  accused No.  3  since the witnesses had  not narrated  the same  to  thepolicewhen examination   under  Section  161  Cr.P.C.  took  place and therefore the self sameinfirmities having crept in when the prosecution witness  stated about  catching hold of Mohan by accusedNo.1,  the said accused No.1  is  entitled  to the benefitof doubt. In fact as stated earlier Mrs. Amreshwari, the learned  senior counsel  appearing for  the Statealso fairly stated that possibly it would bedifficult to sustain the convictionof accused  No.1 when  the accused No. 3 has hot benefit andhas been acquitted and no appeal against the said order  of acquittal  has been  filed by  the State.  On accountof  such infirmities  in that  prosecution  case  as indicated above and more  particularlywhen the prosecution has  failed  to offerany  explanation  for  the  grievous injuries sustained  by accused No.1 on his headand theHigh Court has  already found  that the saidinjury was caused in course of  the incident,  we have no hesitationto heldthat the accused-appellant  No. 1  D.V. Shanmugam  is entitled to the benefit  ofdoubt  and  weaccordingly  set  aside the conviction and sentenceof the said accused- appellant No. 1 both under  Section 302/34  IPCas wellas under Section 324 IPC and directthat heshall be set atlibertyforthwith if his detention is not required in any other case.      But comingto the case of appellant No.2 the same stand on a  slightly different footing. Mr. Parasaranno doubt had argued with vehemence that the entire case mustbe discarded in asmuchas  the prosecution  has  notpresented  thetrue versionand  has suppressed  the genesis  and origin  of the

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occurrence  which   inference  is   tobe  drawn  fornon- explanation of the injuries on the accused person. But as we found that  theinjuries  on the  accused-appellant No.2 are all simple  andsuperficial in nature and the Prosecution is not bound  to explain  such minor  and superficial injuries. That apart  where the  evidenceis absolutely, clear, cogent and consistent coming from an independent source that it far outweighs the  effect of  the omissionon thepart of the prosecution toexplainthe injuries onthe accused, insuch a casea conviction  can be based notwithstanding injury is not being  explained as has been  heldby thiscourt in the very case  of  LAKSHMI SINGH AND OTHER Vs. STATE OF BIHAR on which Mr.  Parasaran,  the  learned  senior  counsel  placed reliance upon.So faras the substratum of the prosecution case of accused -  appellant No.2  is concerned it hasbeen consistently  stated   by  all the  eye-witnesses  to the occurrence that accused No.  2stabbedMohan on his abdomen with the  knifeand  stabbed Sekhar also on theabdomenwith the knife.  Their evidence  also gets  corroborated from the medicalevidence as well as from the post-mortem examination of thedead bodies of the two deceasedpersons. Even in the earliest version,  in the  FIRit  had been  categorically stated that  accused No.2  D. VaidvelustabbedMohan with a knife on  his abdomen  and alsostabbedSekhar with Knife on his stomach andintestine came out. In view of the aforesaid clinching evidence  so for as the role ascribedto accused - appellant No.  2, notwithstanding  the infirmities indicated earlierfor  which we have given benefit of doubt to accused - appellant  No. 1,  itmust  be heldthat the prosecution case as against the  appellantNo.2  has been proved beyond reasonable doubt  and therefore the convictionand sentence againstthe said accused - appellant No.2 as affirmed by the High Court  does not warrant any interference by this court. In thenet result, theconviction and sentenceof appellant No.1 -D.V. Shanmugam passed by the High Courtis set aside and heis acquitted  of the  charges. He  be set at liberty forthwith unless  required in  any other  criminal case but conviction andsentence as against appellant No.2 passed by the bythe High Court stands affirmed and the appeal so far as A-2is concerned isdismissed. Thisappeal is allowed in part.