Mohan M. Shantana Goudar, J.The Judgment & Order dated 23.10.2008 passed by the Fast Track Court-I, Dakshina Kannada, Mangalore in Criminal Appeal No. 129/2008 is called in question in this appeal by the State.

The respondents herein are Accused Nos. 2 and 3 in C.C. No. 454/1996. They were tried for the offences punishable under Sections 341 and 326 of IPC. The trial Court convicted Accused Nos. 2 and 3 by virtue of the Judgment & Order dated 26.10.2007. It is relevant to note that the case against Accused No. 1 was split up. Questioning the Judgment & Order of conviction, Accused Nos. 2 and 3 filed Criminal Appeal No. 129/2008 before the Fast Track Court-I, Dakshina Kannada, Mangalore and the said appeal came to be allowed by the impugned Judgment dated 23.10.2008.

2. Case of the prosecution in brief is that the State Government had provided certain number of roof tiles of the house to the father of PW.3; however the father of PW.3 did not want the roof tiles and in that regard, Accused No. 1 had requested to provide the said tiles to him; in the meanwhile, PW.3 also requested for allotment of the said tiles in his favour and consequently PW.3 was given the tiles by the authorities. In that regard, there was animosity between PW.3 and Accused No. 1.

In the afternoon of 24.10.1995, Accused Nos. 1,2 and 3 were talking with one another in front of the shop of PW.1; PW.3 was passing on the said same road; on seeing PW.3, accused No. 1 took out chopper and assaulted on the head and other parts of the body of PW.3; consequently, PW.3 became unconscious and fell down; thereafter Accused Nos. 1 and 3 allegedly held PW.3 tightly on the ground and Accused No. 2 assaulted PW.3 with an iron rod; thereafter the accused went away from the scene; the injured was taken to Government Hospital, Sullia; the doctors of Sullia hospital have referred the patient to the Government hospital, Puttur; the victim was treated by the doctor PW.6; PW.3 had sustained fracture of left radius, fracture of right radius and fracture of left lateral malleolus (left); Ex. P4 is the wound certificate issued by the Medical Officer of Sullia Hospital based on the records of Puttur Government Hospital; complaint came to be lodged as per Ex. P3 on 27.10.1995 at Sullia Police Station. PW.9, the Inspector of Police registered the complaint. Ultimately, the charge sheet came to be laid against all the three accused for the aforementioned offences.

3. As aforementioned, Accused No. 1 is absconding and therefore case against him is split up. Trial went on only against Accused Nos. 2 and 3.

4. PW.1 is an eye witness; he is the owner of the shop, in front of which the incident has taken place; he has turned hostile to the case of the prosecution; he is also the witness for scene of mahazar - Ex. P1. PW.2 is the witness for scene of offence mahazar - Ex. P1. PW.3 is the injured; he is also the complainant. PW.4 is the eye witness to the incident. PW.5 came to the spot later after coming to know about the incident. PW.6 is the Medical Officer who treated the injured and issued the wound certificate as per Ex. P4. PW.7 is the witness for seizure mahazar - Ex. P6. PW.8 is another witness for seizure mahazar - Ex. P6. Both of them have turned hostile. PW.9 is the Assistant Sub-Inspector of Police; he registered the crime after receiving the complaint from PW.3. In the matter on hand, unfortunately the Investigating Officer is not examined by the prosecution.

5. The important witnesses in the matter on hand are PWs. 1, 3 and 4. Though the son of PW.3 is stated to be the eye witness, he is not even cited as a witness in the charge sheet. Out of the three eye witnesses examined, PW.1 is the injured eye witness. PW.1, in front of whose shop the incident has taken place has turned hostile. The prosecution relied upon the evidence of PWs. 3 and 4 and the evidence of the doctor.

6. We have perused the material on record and the judgments of both the Courts below. The first appellate Court has assigned detailed and valid reasons for acquitting Accused Nos. 2 and 3.

7. Admittedly, the motive for commission of the offence is alleged against Accused No. 1. There was animosity between Accused No. 1 on one side and PW.3 on the other in the matter of getting the tiles from the State Government. Absolutely no motive is alleged against Accused Nos. 2 and 3. Even according to the case of the prosecution, Accused Nos. 1,2 and 3 were chatting on their own on the road in front of the shop of PW.1. They have not come to the spot with a view to assault PW.3 or anybody. Since they were friends, they were talking with one another in the afternoon of the date of incident. At that point of time, PW.3 passed through the said road and he was assaulted by Accused No. 1 initially. According to the versions of PWs. 3 and 4, it was Accused No. 1 who assaulted with chopper on the head and other parts of the body of PW.3 and consequently PW.3 - injured became unconscious and fell down on the ground. However it is further deposed by PW.3 that Accused No. 2 assaulted him with iron rod. If really PW.3 has become unconscious after sustaining injuries due to the assault by Accused No. 1, he would not be in a position to know as to what has happened subsequently. Therefore it seems the overt acts attributed to Accused Nos. 2 and 3 by PW.3 appear to be an after thought.

8. Moreover since Accused Nos. 1 to 3 were talking with one another on the road on their own, they would not have visualized that PW.3 would pass through the said road and that they would have to assault him with deadly weapons like chopper and iron rod, meaning thereby that the accused No. 2 and 3 would not have come to the spot fully prepared for assaulting PW.3 with such weapons. The incident must have occurred because of the verbal quarrel between Accused No. 1 and PW.3 and in that incident, the victim must have sustained certain injuries.

9. Though the incident has taken place on 24.10.1995 at about 2.30 p.m., complaint came to be lodged by PW.3 only on 27.10.1995 at about 10 p.m. Absolutely no reasons are forthcoming as to why the complaint came to be lodged with the delay of 3 Vi days. The inordinate delay in lodging the complaint has remained unexplained. In this context, the defence is justified in arguing that Accused Nos. 2 and 3 are falsely implicated after due deliberation. There was no hurdle for PW.3 to lodge the complaint immediately after the incident. Admittedly, the victim was taken to Sullia hospital and thereafter to Puttur hospital. As is clear from Ex. P7 - first information report, the intimation sent by the hospital of Sullia is received by PSI, Sullia at 7.45 p.m. on 24.10.1995. Consequently, the Sub-Inspector of Police, Sullia has directed the Assistant Sub-Inspector of Police to inquire into the matter by visiting the hospital. The First Information Report further clarifies that the Assistant Sub-Inspector of Police, Sullia went to hospital. However by that time, the victim was shifted to Puttur hospital for treatment. Subsequently, no attempt is made by the Police either to secure the complaint or to register the case suo motu based on the medical records. The Police did not even venture to visit Puttur hospital which is about 30 to 40 kilometers from Sullia. PW.4 or the son of PW.3 who is so called eye-witness or anybody on behalf of PW.3 did not attempt to lodge the complaint. Thus the inordinate delay which has remained unexplained would clearly reveal that the prosecution had got ample time to concoct the story against Accused Nos. 2 and 3.

10. The only overt act attributed to Accused No. 3 is he kicked the victim. Merely because Accused No. 3 is the friend of Accused No. 1 or even assuming that he was also standing alongwith Accused No. 1 during the relevant time, it cannot be presumed that he has shared the common intention with Accused No. 1, more particularly when he did not have any motive for committing the offence as against PW.3.

11. Having regard to the totality of facts and circumstances, we are of the considered opinion that the prosecution has not proved its case beyond reasonable doubt as against Accused Nos. 2 and 3. We also do not find any material to show that they had shared the common intention with Accused No. 1 for commission of the offence. Hence it is not a fit case to interfere in the order of acquittal. Since the view taken by the first appellate Court while acquitting the accused is one of the possible views, we decline to interfere in the order of acquittal.

Accordingly, the appeal fails and the same stands dismissed.

We place on record the valuable services rendered by Sri Derick Anil, learned amicus curiae. In recognition thereof, we direct the Registry to pay Rs. 6,000/- (Rupees six thousand only) to the learned amicus curiae as honorarium.