Point of Law: When the essential material facts are disclosed in the material at Exhibit P4/FIR, but FIR is not a substantive evidence and it cannot be used to contradict the testimony of the eye-witnesses except that it may be used for the purpose of contradicting the maker of the report.

JUDGMENT :

This appeal is directed against the judgment of conviction and order of sentence rendered by the Trial Court in S.C.No.237/2010 dated 24.10.2011, convicting the accused for offences punishable under Sections 448 and 323 of the IPC, 1860. This appeal is filed seeking for consideration of the grounds urged in this appeal and consequently to allow the appeal and to set aside the judgment of conviction and order of sentence, for the grounds urged therein.

2. Heard the learned counsel Shri P. Nataraju for the appellant and the learned HCGP for the State who are present before court physically. Perused the judgment of conviction and order of sentence rendered by the Trial Court in S.C.No.237/2010 dated 24.10.2011.

3. The factual matrix of the appeal is as under:

It transpires from the case of the prosecution that PW-1 / M. Mahadevashetty who is none other than the son of PW-2 / Chikkathayamma, had filed a complaint before the Badanavalu P.S. as per Exhibit P1 and based upon his complaint, Exhibit P4 / FIR has been recorded by PW-10 / D. Shivappa by avocation as an ASI, in the aforesaid P.S. It is alleged in his complaint that in his absence and also in the absence of his father, in their house situated at Badanavalu, at around 11.45 p.m. on 24.02.2010, that the offender namely Nagashetty S/o. Chikkaningashetty is alleged to have trespassed into their house and made an attempt to take away the life of his mother / PW-2 Chikkathayamma by putting a pillow on her face and pressing it, so as to cause smothering. As a result, PW-2 / Chikkathayamma had started shouting. On hearing the hue and cry made by PW-2, the complainant’s senior uncle’s sons namely Bellashetty, Basava S/o. Karishetty, Naganna S/o. Gopala Shetty had rushed to the house of the complainant including the general public who had also gathered at the scene of crime. But the offender namely Nagashetty is alleged to have fled away from that place leaving his green with yellow flower designed shirt with strips. Though on hearing the hue and cry made by PW-2, her neighbourers had rushed to the scene of crime and had attempted to apprehend the offender namely Nagashetty, but they failed in their attempt. Thereafter the neighbourers got admitted the complainant’s mother PW-2 / Chikkathayamma in Nanjangud Hospital to provide treatment to her. In pursuance of the act of the accused, a complaint was filed by M. Mahadevashetty, S/o. Amase Madashetty, on 26.02.2010 at around 1.30 p.m. but the incident is alleged to have taken place on 24.02.2010. In spite of the delay of 2 days in filing, criminal law was set into motion by recording an FIR as per Exhibit P4. Subsequent to registration of the crime, the I.O. was examined as PW-13 and had taken up the case for investigation and thoroughly investigated the case and drew the spot mahazar as per Exhibit P2 and also collected the Wound Certificate at Exhibit P5 inclusive of the demand register extract at Exhibit P6 relating to the scene of crime and laid the charge-sheet against the accused consisting of the statement of witnesses.

4. Subsequent to laying of a charge-sheet by the I.O. against the accused, the learned JMFC, Nanjangud took cognizance of the case. Thereafter, the case was committed to the Committal Court by following the provisions of Sections 207 and 208 Cr.P.C. and passed an order under Section 209 of the Cr.P.C. Accordingly, the case has been committed to the Court of Sessions and accordingly, the case was assigned for trial in S.C.No.237/2010. Thereafter, the Trial Court framed charge against the accused for offences punishable under Sections 307, 448 of the IPC, 1860 whereby the accused had declined the charges framed against him but claimed to be tried. Subsequent to framing of charge by the Trial Court for the aforesaid offences, the prosecution let in evidence by examining PW-1 to PW-13 and got marked Exhibits P1 to P6 and so also got marked contradictory statements at Exhibits D1 to D8. Subsequent to closure o