M. F. SALDANHA, J.

( 1 ) THIS is an appeal preferred by the State of Karnataka and is directed against the judgment and order of the learned sessions judge, raichur dated 19-6-1993 in S. C. No. 70 of 1992.

( 2 ) THE charge against the respondent-accused was that on 9-7-1992 at about 6. 00 a. m. at hirapur village within the limits of yeragere police station that he is alleged to have assaulted his mother tayamma on the head with an axe because she refused to give him money and thereby committed an offence punishable under Section 304, part ii, I. P. C.

( 3 ) THE prosecution case was that the accused is alleged to have got into an argument with his mother earlier in the morning on that day and subsequently assaulted her with the butt end of an axe because she refused to give him money for alcohol. The other residents of the house and the neighbours immediately came to the scene and according to them since the accused was in a violent rage, they disarmed him and tied his hands and legs with a rope after which the complainant went to the police station. This is a rather remote village and is at a distance of over 25 k. ms. From the police station and there was a considerable time lag before the police came to the village and removed tayamma to the hospital. Thereafter, the investigation proceeded though rather slowly, possibly because the police had originally registered an offence only under Section 324, I. P. C. tayamma, who was admitted to the hospital with a depressed fracture on the parietal region was in an unconscious condition and virtually kept lingering on and ultimately died after a lapse of 42 days in the hospital. The charge was accordingly altered and the accused who had been arrested in the meanwhile was charge-sheeted and put on trail. The case was committed to the court of sessions and the learned trial judge examined as many as 14 witnesses. We are basically concerned with the evidence of p. w. 3 whn is the cousin and who claims to be the eye-witness, P. W. 4, who is the brother of P. W. 3 and who also claims to be the eye-witness, P. W. 1, who is the elder brother and P. W. 2, who is his wife, all of whom were living in the same residence as the deceased or immediately next doors. The evidence of P. W. 10 who is the minor son of p. w. 1 is also of some consequence. The learned trial judge, after a detailed discussion of the evidence came to the conclusion that at the point of time when tayamma sustained the injury viz. , at 6 a. m. in the morning that none of the witnesses were immediately present and that at the highest they came at the scene shortly thereafter. He has also taken note of the inconsistencies between the evidence interse the fact that there are certain improvements particularly as far as P. W. 1 is concerned and the defence case that it was P. W. 1 who had assaulted the mother because of a partition dispute and has recorded the finding that in this back ground a conviction would not be permissible in law. The State of karnataka, has through the present appeal assailed the correctness of the acquittal recorded in favour of the original accused.

( 4 ) AT the hearing of the appeal on behalf of the respondent-accused, we have had the assistance of the learned Advocate Mr. J. Chandra sekharaiah, who has argued the matter with considerable degree of experience and ability as also of the learned state public prosecutor who has argued on behalf of the state. Since the respondent did not have a counsel of his own, Mr. J. Chandrasekharaiah, has appeared as amicus curiae.

( 5 ) THE principal submission canvassed on behalf of the stateis that if the crime in question were to be virtually constructed, we would have a situation whereby the court would have to take note of one fact, namely, that the huts in which the deceased and the prosecution witnesses were residing are so close to each other that almost everything that happened in that area could not have escaped the notice of all those residing there. His

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