JUDGMENT :

H.P. SANDESH, J.

These two appeals are filed by the accused challenging the judgment of conviction for the offence punishable under Section 326 read with Section 34 of Indian Penal Code and the State challenging the judgment of acquittal for the offence punishable under Section 307 read with Section 34 of Indian Penal Code and to convict and sentence the accused for the offence punishable under Section 307 read with Section 34 of Indian Penal Code.

2. Brief facts of the case:

It is the case of the prosecution that the complaint was given by one Durga Prasad on 18.08.2009 alleging that an incident has taken place at about 11 p.m. and when he was in the premises of ‘Navadurga Yuvaka Mandala’ at Nooyi in Adduru Village, one Shafiq came and informed that a person is lying by the side of the road leading to B.C. Road with injuries sustained in an accident. Immediately, himself and others rushed there and found a person with bleeding injuries. The injured told that his name as Dombayya Poojary and two persons came in a motorcycle, dashed the vehicle against him and caused injuries. The complainant secured a vehicle through one Musthafa and shifted the injured to City Hospital, Mangaluru. Based on his complaint, the case was registered. On the instructions of the Doctor, shirt and banian of the injured were removed and found that injured has sustained stab injuries on the chest and thigh. The police, based on the complaint registered the case under Section 307 read with Section 34 of Indian Penal Code. The Investigating Officers have conducted the investigation, recorded the statement of witnesses and after completion of the investigation, filed the charge sheet for the offence punishable under Section 307 read with Section 34 of Indian Penal Code.

After filing of the charge sheet, the case was registered as C.C.No.1753 of 2010 and thereafter, case was committed to the Sessions Court and the same is numbered as S.C.No.66 of 2010 on the file of the Principal Sessions Judge, Dakshina Kannada, Mangaluru. The accused persons were secured and they did not plead guilty and claimed for trial.

3. The prosecution, in order to prove their case examined P.Ws.1 to 15 and got marked the documents at Exs.P1 to 16 and also got marked M.Os.1 to 4 and closed their evidence. The Court below recorded the statement of the accused persons under Section 313 of the Code of Criminal Procedure and the accused did not choose to lead any evidence. The Court below, after hearing the arguments, instead of convicting the accused for the offence punishable under Section 307 read with Section 34 of Indian Penal Code, convicted accused Nos.1 and 2 for the offence punishable under Section 326 read with Section 34 of Indian Penal Code and acquitted accused No.3. Hence, the present appeals are filed by both the accused as well as the State respectively.

4. The accused in Criminal Appeal No.876 of 2013 would contend that the Court below has committed an error in convicting the accused persons. From a reading of the complaint as well as the evidence of P.W.1, it is clear that injured P.W.2 has not disclosed the name of the assailants, who had assaulted him. From the evidence on record, it is clear that accused persons were known to injured. The accused persons were visiting the shop of the injured and according to the injured, they were not in good terms. If at all the accused persons had assaulted the injured, he would have definitely identified them and informed P.W.1, who is also from the same locality. Therefore, it is very clear that because of the ill-will, the injured person has falsely implicated the appellants.

5. It is also contended that the complainant P.W.1 as well as the other eye witness P.W.3, Mohammed Shafique have not supported the case of the prosecution. The conviction is solely based on the evidence of P.W.2, injured person. Having regard to the admitted enmity between the parties and also having regard to the fact that the injured had not initial