KUMAR RAJARATANAM, J.

( 1 ) THE State being aggrieved by the judgment of the Trial Court dated 7-11-1997 in S. C. No. 40/94 in acquitting the accused respondent for an offence punishable under S. 307 of IPC, has preferred this appeal against acquittal.

( 2 ) THE prosecution case in brief is that there were some differences between the family of PW Nos. 1 to 5 and PW-7 on the one hand and the accused and his father on the other hand. On 29-8-1993 at about 4. 30 P. M. PW-2 was passing in front of the house of the accused and the accused is alleged to have abused PW-2 in Tulu language. Thereafter, PW-2 went to his house and reported to his mother about the incident. Thereafter, PW-2 after about 20 minutes, left his house to go the shop of PW-6 near the junction of Moodabidri-Shirthady road. After sometime, PW-2 noticed that the accused was chasing PW-2 with an axe in his hand. On seeing the accused, PW-2 took to his heels and when PW-2 was near the 'daviadakallu' situated on Moodabidri Shirthady road, the accused assaulted PW-2 with the axe on the back of his head. On account of the blow sustained by him, PW-2 fell down at the spot. Thereafter the accused assaulted PW-2 on his nose, chin and on his legs. The said assault was according to the prosecution, witnessed by PWs 3, 4, 5, 6 and 8 apart from PW-7. Looking at the condition of PW-2, PW-7 brought him to Alva Health Centre, Moodabidri in an autorickshaw. The police arrived at Alva Health Centre and recorded the complaint of PW-1 as per Exhibit P1. PW-2 was removed to K. M. C. hospital in a car for better treatment.

( 3 ) IT is the case of the prosecution that after PW-2 was admitted in the Alva Health Centre, PW-12 P. S. I. was informed about the same on phone. He immediately came to Alva Health Centre and thereafter recorded the complaint of PW-1 as per Exhibit P1. In the meantime, PW-2 had been shifted to KMC Hospital, Manipal. PW-12 thereafter returned to the Police Station along with the complaint Ex. P1. On reaching the Police Station, PW-12 the P. S. I. on the basis of the complaint Ex. P1 registered a case in Crime No. 91/93 for an offence under S. 307 IPC against the accused and issued F. I. R.

( 4 ) PW-13 is the Doctor at Manipal who examined PW-2 on 29-8-1993 at 8. 30 p. m. PW-13 states that PW-2 (the patient) was referred to him from Alwa Nursing Home from Mudabidri. On examination, he found the following injuries :-" 1. There was a transverse laceration measuring 11/2" having the depth of the bone situated over the left thigh. 2. There was a laceration over the right thigh measuring 1" x 1". 3. There was a laceration over the neso-labial fold measuring 1" and it was bone deep. 4. There was a laceration over the chin measuring 1" with bone deep. 5. There was a laceration over the left side of the forehead measuring 1" and underneath bones had been exposed. 6. There was a laceration over the right parietal region measuring 1" and it was bone deep. 7. There was a laceration over the volt on the head measuring 1/2" x 1/2". 8. There was a laceration over occipital region measuring 1/2" x 1/2". 9. There was a fracture of the body of the right mandible. 10. There was fracture of the right macilla. 11. There was a fracture of right zygomatic complex. The wound certificate given by the Doctor PW-13 is marked as Exhibit P-8. He also states that the axe MO-3 can cause these injuries.

( 5 ) WHEN a specific question was asked in the cross examination that MO-3 could only cause incise wounds, the Doctor has denied the suggestion and stated that it is possible that MO-3 can cause lacerated wounds.

( 6 ) THE complaint was admittedly given by PW1 who is not an eye witnesses. Both in his evidence as well as in the complaint PW-1 states that he came to know that his nephew PW-2 was attacked by an axe by Vishwanatha S. Anchan (the accused) and that PW-2 sustained grievous injuries. He came to know about this incident from one Naveen who is PW-7. PW-1 further states that the said Navee

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