Nandana Menon, J.
1. In Sessions Case No. 8 of 1955 of the Quilon Sessions Court seven accused were charged for offences connected with an occurrence alleged to have taken place at about 3-30 P.M. on 23-6-1124 All except accused 1 were acquitted by the lower Court. He was sentenced to three years' rigorous imprisonment under Section 323, Travancore Penal Code though the charge was under Section 307.
In Criminal Appeal No. 67 of 1955 accused 1 seeks to get his conviction and sentence set aside. Criminal Appeal No. 94 of 1955 is by the State for the enhancement of accused 1's sentence and against the acquittal of accused 2 by the lower Court. The parties involved are relatives. Accused 1 and 2 are the sons of accused 3 and accused 4, their brother-in-law. Accused 2 is the son-in-law of P. W. 2. P. Ws. 1, 3 and 4 are P. W. 2's sons.
According to the prosecution on 23-6-1124'accused 2 found P. Ws. 3 and 4 playing with cashewnuts in the compound given as dowry at the time of his marriage, there being a bearing cocoanut tree there. Accused 2 scolded P. Ws. 3, and 4. Then their father, P. W. 2, intervened when accused 2 took a chopper and tried to assault him.
Seeing that, P. W. 2's wife and daughters tried to wrest the chopper from his hand. At that time P. W. 1 came there and wresting the chopper from accused 2's hand threw it away. At that moment accused 1, being the younger brother of accused 2 came running with a dagger and stabbed P. W. l on his neck. P. W. 2 was beaten with a cane by accused 2. The remaining accused also came there and joined in the assault on P. Ws. 1 and 2. This is the prosecution version of the occurrence. P.Ws. 1 to 5 are the witnesses who depose to the incident.
On behalf of accused 1 it is contended that the prosecution evidence is vitiated because of irregular procedure, that the lower Court has erred in relying upon the interested evidence of P. Ws. 1 to 4 and that no conviction can be sustained on the sort of evidence now before Court. On behalf of the State what is urged is that in view of the nature of the prosecution evidence there was no justification at all in acquitting accused 2 and bringing the offence of accused 1 under Section 326, Travancore Penal Code, as it really was a case of attempted murder falling under Section 307.
The prosecution evidence is challenged by the defence on the ground that there was irregularity in the recording of the First Information Report, that there was omission to examine material witnesses and that only evidence of interested person was placed before Court. With regard to the recording of the crime, Ex. H is the First Information Report where the crime is seen registered at 7-30 A.M. on 25-6-1124.
There information about the crime is stated to have been received as per Ex. F report sent by the Head Constable in charge of Kadakkal Police Station. A copy of the report is given there. Then there is a note saying that on receiving the said report the Police Officer went to the Kadakkal Hospital and took the statement of the complainant and registered the crime. Thus the report sent by the Head Constable has been correctly treated as the first information by the Sub-Inspector.
The only irregularity is that instead of registering the crime on receipt of the said information he recorded only after visiting the Kadakkal Hospital and getting the statement of P.W. 2, Abdur Rahiman. That statement is Ex, A, The accused's counsel contended that in view of the prior receipt of Ex. F report Ex, A is inadmissible in evidence being a statement taken by a Police Officer after the investigation had started. The Public Prosecutor's contention is that Ex. F cannot be considered as the first information as it did not contain details about the crime and hence investigation could not be considered as having been started on the receipt of the same.
A perusal of Ex. F shows that there is a reference to the wound having been caused by a dagger and the Head Constable states that the report was being submitted so that further action might be taken. When the information received by the Sub-Inspector is of such a nature it must be held that it was sufficient to be treated as first information as contemplated under the Criminal Procedure Code.
So Ex. A must be considered as a statement taken by the Police Officer after he started the investigation and hence it is inadmissible as substantive evidence. On that ground itself the trial will not be vitiated. The question is whether the lower Court's conviction is based upon other reliable evidence. P. Ws. 1 and 2 are the persons directly involved in the occurrence, P. W. 2 deposes in full support of the prosecution case, about accused 2 picking up a quarrel with P. Ws. 3 and 4 charging them having stolen cashewnuts from his trees, about P. W, 2's intervention, the attempted assault by accused 2 and the rest of the case. He refers to accused 1 coming on the scene when accused 2 and P. W. 1 were standing there and to his stabbing P. W. 1. The subsequent attack on himself and P. W. 1 is also deposed to P, W. 1 corroborates him regarding the incidents which took place after he reached the spot and wrested the chopper from the hands of accused 2. P. W. 2's other two sons, namely P, Ws. 3 and 4, also depose in support of the prosecution case.
Then there is P. W. 5. He is an independent witness and deposes to the stabbing by accused 1. The evidence of these witnesses as it stands clearly supports the prosecution case against accused 1. Now, what is urged on behalf of accused 1 is that some material witnesses were not examined and that vitiates the whole trial. It is pointed out that the wife and daughters of P.W. 2 who even according to the prosecution witnesses were present on the scene and are alleged to have tried to wrest the chopper from, accused 2 have not been examined, P. W. 2 refers to his wife and his daughter catching hold of the chopper when accused 2 tried to assault him with that.
In the face of such evidence there was a clear duty cast upon the prosecution to examine these witnesses. Though there is this defect in the prosecution evidence, in the present case it cannot be considered that it vitiates the trial as such. Here the witnesses who, according to the defence, are material ones are closely related to P. W. 2 and there is no reason to think that they would have deposed to a new case.
'Habeeb Mohammed v. State of Hyderabad : 1SCR475 was cited as an authority in support of the defence position that when material witnesses are not examined the prosecution evidence must be considered as entirely vitiated. In that case the trial Court did not allow the defence to examine material witnesses and an important Police Officer was not examined by the prosecution. That decision is only to the effect that if some witnesses are not examined the Court has to see whether that affects the prosecution evidence and a presumption of suppression of evidence is to be made. Here there is no ground to suspect that these witnesses were kept back with an ulterior motive.
The lower Court has considered this point and has held that the trial is not vitiated on this ground. We do not see any reason to think otherwise. Here Ex. J, wound certificate of P. W. 1 proved by P. W. 10 shows the nature of the injuries sustained by P. W. 1 Exhibit P is the earliest report about the occurrence. The evidence before Court is to the effect that it could have been caused only in the way deposed to by P. Ws. 1 and 2. So, the fact that the injuries found on P. W. 1 were caused by accused 1 is clearly proved.
The said finding of the lower Court cannot on any basis be challenged. Then there is the defence contention that the statement of the accused to the effect that the first accused intervened only while accused 2 was being assaulted by tying a cloth round his neck by P. W. 2 and his sons ought to have been believed. Except a vague suggestion there is nothing to support this defence plea.
There is only the accused's own statement on that point. No injury as would have been caused by tying a cloth round his neck was noted on accused 2. So this defence cannot stand. The occurrence took place on the road as deposed to by the prosecution witnesses. The accused were clearly not exercising any right of private defence at that time. Under such circumstances, the conviction of accused 1 cannot be challenged.
Then there is the question whether there is any justification for enhancing his sentence as contended for on behalf of the State. No premeditation or deliberate preparation on the part of the accused are alleged. The evidence does not justify a finding that there was any attempt at murder by accused 1. So there is no ground at all to interfere with the lower Court's conviction of accused 1 under Section 326. Travancore Criminal P.C.
2. Coming to the question of the acquittal of accused 2 the prosecution case is that he used a cane to beat P. W. 2. How he came to possess that is not brought out by the prosecution. The medical officer's evidence is to the effect that the minor injuries found on P. W. 2 could have been caused by a fall. Under such circumstances there is no justification to interfere with the lower Courts order acquitting him. Thus it is seen that there is merit In neither of the appeals.
3. In the result both the appeals are dismissed and lower Court's conviction and sentence of accused 1 confirmed. He will surrender to his bail. Bail bonds cancelled.