D. Noronha, J.
1. Sessions Case No. 5 at 1974 before the Sessions Judge, Mandya, has given rise to Criminal Appeal No. 3W of 1974 with Criminal Referred Case No. 53 of 1974, and Sessions Case No. 2 of 1974 has given rise to Criminal Appeal No. 396 of M74. The two Sessions Cases relate to the same occurrence and were rightly treated by the learned Sessions Judge, as cross or counter cases. He followed the Prescribed method of trying the earlier case viz., S. C- No. 5 of 1974 to its conclusion, and then the second case viz.. S. C- No. 2 of 1974 was taken, up and also tried to its conclusion. After hearing arguments in both the cases, the learned Sessions Judge pronounced judgments in them simultaneously and disposed them. of. The procedure followed by him conforms to the settled position of law.
2. My learned brother and I have u followed precisely the same procedure. In Criminal Appeal No. 399 of 1974, which goes along with Cri. Referred Case No. 53 of 1974, arguments were addressed first, Immediately following, arguments in Cri. Appeal No- 396 of 1974 were addressed next. We shall be at once today pronouncing the judgment in the first set (Criminal Appeal No. 399 of 1974 and Criminal Referred Case No. 53 of 1974). Now we proceed to judgment in Criminal Appeal No. 396 of 1974
3. I am in full and respectful agreement with the detailed any well-considered judgment to be rendered by my learned brother in. Criminal Appeal No 396 of 1974 connected with Criminal Referred Case No. 53 of 1974. Therein we hare dealt with the utmost caution and circumspection, every aspect of that main case in its entire amplitude.
4. Since the above is the position, it would be entirely superfluous to reiterate the contents of that judgment except, of course, when it becomes inevitable, in the interest of trend and sequence.
5. In this Criminal Appeal No. 396 of 1974 Sri M. M. Jagirdar for the appellants was very brief in his arguments. This was obviously for the reason that there was hardly anything for him to argue. The Advocate General appears to have taken a leaf from Mr. Jagirdar's book and addressed .the Court only for a very short length of time. He was content with expressing his indignation and told us without mincing matters that for reasons, which we shall advert to in the next para, he was disillusioned with this cross case, that on principle had no more truck with it and that on account of his extremely indifferent health those few days he was walking out of the case leaving the conduct of it to his learned colleague Sri B- K. Ramachandra Rao to do me best he can. in an obviously losing battle.
6. The following were the most important reasons which perturbed the Advocate General, The investigating agency in S. C 2/74 and the investigating agency in S. C. No. 5 of 1974 was the same. The prosecution in both the cases was conducted by the same prosecutor. What is said above would aptly attract the age-old saying that a person cannot ride &n; two horses- running in opposite directions and if he attempts to do so, the earth would be his destination. Sri Jagirdar drew our particular attention to the commencing portion of paragraph 46 of the judgment of the Sessions Judge, which runs thus:
In the end I must observe that the prosecuting agency do not seem to have evinced the same interest while investigating this case right from the beginning till the end, as they have done in the cross case, though the same incident has given, rise to both the cases....
7. Sri B- K. Ramachandra Rao in the delicate and embarrassing situation which he was placed in, yet tried his utmost, and we appreciate, it, to support the judgment of the learned Sessions Judge in S. C. No. 2 of 1074- His valiant efforts were of no avail. Sri Jagirdar did not even choose to reply, in the fitness of things.
8. We shall now briefly refer to a few facts which in this cross case, we feel, are somewhat called for though the entire picture has been scanned in S C No. 5 of 1974.
9. Ganadhal is a tiny wayside village in the political and prosperous Mandya District, hardly 5 to 6 miles away from Mandya City. On 26th August 1973 in that village, between about 6.30 and 8 A. M. a ghastly catastrophe took place which wag only to be expected - involving the coat of three precious human lives namely, those of Kariyappa and his brother Chikkabommegowda of one faction and Mantrada Bommiaih of the other, and injuries - both grievous and simple - to some others.
10. The occurrence of 26-8-1973 is undoubtedly attributed to the deep partisan feelings and the high tensions in Ganadhal village. One faction led by G. S. Basavegowda (A-l in S. C. No. 5 of 1974) and the second faction led by Nathe Gowda fP- W. 44 in S. C. No. 5 of 1974) waited for an immediate chance to truth each other's faction.
11. The complaint Ex. P-41 in this case (S. C. No. 2 of 1974} was filed by P. W- 27 Bommiah fA-24 in S. C. No. 5/74) before the Police at Ganadhal. It was Quite some time later than the complaint of P.W. 44 Nathe Gowda in S. C. No. 5 of 1974, and to us the contents do not inspire confidence. While in S. C No. 5 of 1974 Twenty-five persons are enumerated as the accused-aggressors, in S C No. 2 of 1974 seventeen persons are named as the accused-aggressors. Out of these seventeen persons, six were prosecution witnesses in S. C No. 5 of 1974 viz.. A-2 Gooti Sanniah (P.W. 40). A-5 Nathe Gowda (P.W. 44), A-9 Kemparaju (P W- 22), A-ll Karivana Manchaiah (P.W. 35), A-12 G. K. Nagaraju (P.W. 31) and A-17 G. B. Basavaraju (P.W. 21). (Note: The order in which P.Ws. are mentioned above is as per S. C. No. 5 of 1974). Among the seventeen accused in S. C. No. 2 of 1974. four were injured. Of them, A-2 Gooti Sanniah, A-ll Kariyana Manchaiah and A-12 Nagasraju sustained grievous injuries and A-9 Kemparaju sustained simple injuries.
12. Thirty-seven witnesses were examined for the prosecution. The accused were next questioned under Section 342, Criminal P.C. They all pleaded innocence. No defence witness was examined.
13. The learned Sessions Judge convicted only four of the seventeen accused persons viz., A-2 Gooti Sanniah. A-6 Ramu, A-8 Lingappa and A-17 G. B. Basavaraju. The State has not appealed against the acquittal of thirteen accused, and this finding remains final.
14. We are thus concerned only with the four convicted accused and as such, the material concerning them, to ascertain whether their convictions and sentences can be sustained or not.
15. A-2 Gooti Sanniah and A-8 Lingappa has each been convicted for an offence under Section 342 read with Section 34, I. P. C-, and sentenced to six months Rigorous Imprisonment. A-6 Ramu and A-17 G. B. Basavaraju has each been convicted of an offence under Section 326 read with Section 34, I. P. C, and sentenced to one Year's Rigorous Imprisonment.
16. With the initial stand adopted by the prosecution itself and the acquittal of as many as 13 out of 17 persons, it is not possible to lay foundation for this frail case which, as contended by both sides, is an afterthought and cooked-up with the assistance of some of the authorities who are amenable to influence,
17. In his judgment, the learned Sessions Judge 'has devoted considerable time, and . the cost of repetition, on the question of motive, which he had already considered exhaustively in his judgment in S. C No. 5 of 1974. We have also in our judgment in Criminal Appeal No. 399 of 1974 connected with Criminal Referred Case No. 53 of 1974, dealt with the aspect of motive in minute particulars. As already referred to, motive looms large in the occurrence and it would be a surplusage to dissect it over and over again.
18. With the subject-matter we are immediately involved, the Sessions Judge has devoted only a few brief paragraphs which do not carry conviction. It is needless to reproduce them bodily as it would be superfluous. To us, as a Court of final facts, they do not impress.
19. Paragraph 36. however, can with advantage be reproduced, since Sri Jagirdar who appeared for the accused in this case in the Sessions Court also, has adopted the same stand here. In the grounds of appeal there is even further amplification. That para. (36) reads thus:
36. Sri Jagirdar, the learned Counsel appearing for the accused pointed out that when P.Ws. 25 and 26 appeared before P.W. 9 Dr. Rajasekhar they have not mentioned the names of the accused A-2, A-8, A-6 and A-17 as the assailants and their names are also not noted in the accident register and the certificates. The other criticism levelled against P.Ws. 25 and 26 may be summed up thus: P.W. 25 has sustained only a small injury though clubs and spears are said to have been used. In Ex. P-41 P.W. 27 had not stated the details regarding the assault. P- Ws, 25 and 26 have admitted that they did not so to Shivalli or Mandya for treatment nor did they approach the police to get redress. P.Ws. 25 and 26 are both accused in S. C- 5 of 1974. The prosecution has not come with the whole truth inasmuch as they had not referred to the deaths of Kariyappa and Chikkabommegowda and had not stated how they died. What happened to Channappa that accompanied Mantrada Bommiah is also not spoken to by the prosecution witnesses. For all these reasons and relying on the decision reported in : 1968CriLJ1479 , (Mohar Rai v. State of Bihar), Sri Jagirdar contended that the prosecution have failed to offer any explanation with regard to the injuries found on some of the accused which is clear from the evidence on record and when the evidence with regard to the entire incident is not before Court, it will not be proper to rely and act on the evidence of P.Ws. 25 and 26.
The first sentence of paragraph 37 of the Judgment reads:
I am unable to agree with his contention.....
Convincing reasons for disagreeing are not set out. Again, in para 37 the learned Sessions Judge says:
Having regard to the circumstances of the case. I am inclined to believe P.Ws. 25 and 26....
One's inclination is no criterion in a criminal case. There ought to be some convincing reasons. The learned Sessions Judge has not even made a note about the demeanour of P.Ws. 25 and 26 in the witness-box.
20. Yet, another aspect needs to be mentioned. The prosecution alleged the recovery of two weapons of assault, M. Os. 8 and 9, as per Section 27 of the Evidence Act. The prosecution also alleged the abscondence of, the four accused involved here. The prosecution version on both these points has been discarded by the learned Sessions Judge. This adds the last nail to the coffin of the prosecution case, which is already so frail and weak for the various reasons we have already set out, and cannot, for a moment, stand the test of scrutiny. A-2, A-6, A-8 and A-17 who have been singled out for conviction on flimsy matter collected from here and there, and on which dependence cannot be placed, with any degree of safety and have to be given the benefit of the most reasonable doubt.
21. In the result, this appeal is allowed1- The order of conviction and sentence of the learned Sessions Judge on the above four accused-appellants is set aside. They are acquitted. Their bail bonds stand cancelled.