SHARMA, J. - (1.) THE appellants were indicted in Sessions Case No. 63/1992 before the learned Additional Sessions Judge Behror, Distt. THE learned Additional Sessions Judge Behror, Distt. Alwar. THEy were found guilty, convicted and sentenced as under : 1. Har Lal u/s. 148 IPC One year R. I. and a fine of Rs. 500 (in default to further undergo one month S. I. u/s. 307 IPC 7 Years R. I. and a fine of Rs. 500 (in default to further undergo 3 months S. I.) u/s. 324 IPC One Year R. I. and a fine of Rs. 100/- (in default to further undergo 1 month S. I.) u/s. 302 r/w 149 IPC Life Imprisonment and a fine of Rs. 1000/- (in default to further undergo 6 months S. I. u/s. 323/149 IPC 6 months R. I. and a fine of Rs. 100/- (in default to further undergo 15 days S. I.) 2 Yadram u/s. 148 IPC One year R. I. fine of Rs. 500 (in default to further one month S. I. u/s. 324 IPC One Year R. I. and a fine of Rs. 100 (in default to further undergo one month S. I.) u/s. 302 r/w 149 IPC Life Imprisonment and a fine of Rs. 1000/- (in default to further undergo 6 months S. I. u/s. 307 IPC 7 years R. I. and a fine of Rs. 500 (in default to further undergo 3 months S. I.) u/s. 323/ 149 IPC 6 months R. I. and a fine of Rs. 100/- (in default to further undergo 15 days S. I.) 3 Chander u/s. 148 IPC One year R. I. and a fine of Rs. 500 (in default to further undergo one month S. I. u/s. 302 IPC Life Imprisonment and a fine of Rs. 1000/- (in default to further undergo 6 months S. I.) S. 307 r/w 149 IPC 7 Years R. I. and a fine of Rs. 500 (in default to further undergo 3 months S. I.) u/s. 324 r/w 149 IPC One Year R. I. and a fine of Rs. 100/- (in default to further undergo 1 month S. I.) u/s. 323/ 149 IPC 6 months R. I. and a fine of Rs. 100/- (in default to further undergo 15 days S. I.) 4 5. 6. Babu Chhotu Singha- u/s. 148 IPC One year R. I. and a fine of Rs. 500 (in default to further undergo one month S. I.) u/s. 323 IPC 6 months R. I. and a fine of Rs. 100/- (in default to further undergo 15 days S. I.) u/s. 302 r/w 149 IPC Life Imprisonment and a fine of Rs. 1000/- (in default to further undergo 6 months S. I. u/s. 307/ r/w 149 IPC 7 Years R. I. and a fine of Rs. 500 (in default to further undergo 3 months S. I.) u/s. 324 r/w 149 IPC One Year R. I. and a fine of Rs. 100/- (in default to further undergo month S. I.) All the aforesaid sentences were directed to run concurrently.
(2.) AGAINST this judgment of conviction and sentence that the present action for filing the appeal has been resorted to by the appellants. The material facts giving rise to the instant appeal are that informant Bhagwana handed over a written report (Ex. P. 1) on September 13, 1987 around 4 p. m. to Om Prakash ASI of P. S. Bansur at B. D. M. Hospital Kotputli. It was stated in the report by Bhagwana that when he was ploughing his field and his son Shanker was making efforts to save the crop of Bajra from the birds, the appellant Harlal, started dismantling the common boundary wall of their fields. On being protested by the informant, Harlal called his sons Babu, Chhotu, Yadram, Chander and Singha. Chander came armed with two Farsies, out of which one was handed over to Harlal. Babu, Chhotu and Singha came armed with lathies while Yadram was having axe. Chander inflicted farsi blow on the head of Shanker, while Babu and Chhotu gave lathi blows. When informant Bhagwana intervened Harlal inflicted farsi blow on the little finger of his right hand. Yadram caused injuries with axe and Harlal gave three farsi blows on his head whereas Singha caused injuries on his right hand with lathi. Bhagwana son of Harnath Jat made attempt to save them. Thereafter injured Bhagwana and Shanker were taken to the Hospital at Kotputli in a tractor. When the report reached at the Police Station Bansur a case bearing No. 161/87 under Secs. 307,324, 147, 148 and 149 of the Indian Penal Code was registered and investigation commenced. After the death or Shanker, Section 302 IPC was also added. The dead-body of Shanker was subjected to postmortem. Memo of site plan was drawn. Statements of witnesses under Sec. 161 Cr. P. C. were recorded. Accused were arrested. Weapons of offences were recovered at the instance of the accused. After completion of the investigation the charge sheet was filed. In due course the case came up for trial. The learned trial judge framed charge against Chander under Secs. 148, 302, 307/149 and 302/149 IPC and the other accused Babu, Chhota, Singha, Harlal and Yadram were charged under sections 148, 302/149, 307/149, 323 and 324 IPC. The appellants denied the charges and claimed trial. The prosecution examined as many as 20 witnesses. Thereafter the statements of the appellants under Secs. 313 Cr. P. C. were record. The appellants denied the allegations and claimed innocence. One witness was produced in defence. The learned trial judge after hearing final submissions convicted and sentenced the appellants as indicated hereinabove. With the assistance of the learned counsel for the parties we have gone through the entire evidence on record and the judgment of the court below. The fact situation that emerges on our such exercise may be summarised thus : (i) Bhagwana son of Harnath (PW. 7) the only eye witness named in the report Ex. P. 1 did not support the prosecution story and was declared hostile. (ii) Before his death Shanker was medically examined by Dr. R. S. Gaur (PW. 14) on September 13, 1987 at 3. 30 A. M. on the request of the Police Station Bansur. As per injury report Ex. P. 22 Shanker sustained following injuries- (1) Incised wound 8" x 1/4" on fronto parietal area of scalp. (2) Swelling with bruise 2" x 2" on back of right shoulder. (3) Swelling 2" in diameter on right thigh. (iii) Bhagwana s/o Ram Karan (PW. 1) was also examined by Dr. R. S. Gaur on Sept. 13, 1987 at 4 A. M. on the request of P. S. Bansur. His injury report is Ex. P. 23. Bhagwana sustained as many as 12 injuries out of which four were incised wounds. Two incised wounds were on right frontal and parietal area of scalp, third was on upper part of right leg and fourth was on right little finger. From the X-ray report injury on little finger was found grievous. Dr. R. S. Gaur gave his opinion about this injury in his report Ex. P. 24. (iv) Om Prakash (PW. 18) in his deposition stated that after receiving information from Kotputli that two persons were admitted in B. D. M. Hospital, Kotputli, he registered report No. 467 in Rojnamcha at 2. 15 P. M. on Sept. 13, 1987 and proceeded to Hospital. At 4. 15 p. m. Bhagwana gave him the report (Ex. P. 1 ). When he made written request for medical examination of the injured, he was informed by the Doctor that medical examination was already conducted. He did not think it necessary to enquire as to who made the request for medical examination. (v) Bhagwana (PW. 1) in his statement before the trial court gave exaggerated account of the incident. He deposed that Chander inflicted Farsi blow on the left temporal region of Shanker whereas Singha, Chhote, Babu gave lathi blows on his thigh. Thereafter Harlal also gave Farsi blow on the left side of Shanker's head. Harlal inflicted Farsi blow on his finger and head and Babu, Chhota and Singha gave lathi blows. Ram Chander, Bhanwara, Leela, Nanchoo and Devi Sahay had seen the occurrence and they took him and Shanker to the Hospital at Kotputli. (vi) Phoolya (PW. 3) is the son of Bhagwana. In his deposition he made an attempt to establish that he had seen the incident but he admitted that he came out of his house after the incident was over and he did not go with his father and brother Shanker to the Hospital. Leela Ram (PW. 4) in his cross examination stated that when he reached at the place of occurrence, the incident was over. Bhuri Devi (PW. 5) is the wife of Bhagwana, she deposed that she also sustained injuries but she did not get them medically examined. Devi Sahay (PW. 6) stated that he had heard hue and cry at a distance of 100 ft. He had seen the sons of Harlal and Shanker running. The incident was over before his intervention, Ramchandra (PW. 11) did not support the prosecution story and was declared hostile. Bhanwar Singh (PW. 8) was also declared hostile. Nanchoo (PW. 12) deposed in the cross examination that Shanker received three Farsi blows, one was inflicted by Chander and two were given by Harlal. Banshi Dhar SHO (PW. 19) stated in his cross examination that he had drawn the site plan Ex. P. 28. There was a boundary wall between the fields of Harlal and Bhagwana. The height of the boundary wall was 2 1/2 ft. and it was not broken.
(3.) IN the light of the above facts we have considered the submissions advanced by the learned counsel for the parties. Evidently deceased Shanker and injured Bhagwana were medically examined before the institution of report Ex. P. 1. According to Dr. R. S. Gaur (PW. 14) he had drawn the injury reports Ex. P. 22 and Ex. P. 23 in the wee hours (at 3. 30 a. m. and 4 a. m.) of Sept. 13, 1987 on the request of Police Station Bansur but Om Prakash ASI (PW. 18) of Police Station Bansur stated that he received the information of the incident for the first time at 2. 15 p. m. on Sept. 13, 1987 and after he reached to BDM Hospital Kotputli, a written report (Ex. P. 1) was handed over to him at 4. 15 p. m. by Bhagwana. His request for medical examination of the injured was turned down by the doctor on the ground that they had already been examined. From the statement of Dr. R. S. Gaur (PW. 14) it is established that somebody from Police Station Bansur had reached at BDM Hospital in the wee hours of Sept. 13, 1987 and made a request to examine the injuries sustained by Shanker and Bhagwana. The story brought forward by the prosecution through the statement of Om Prakash ASI (PW. 18) appears to be suspicious. The prosecution has deliberately withheld this fact as to what was the information received at the Police Station Bansur and on whose request Dr. R. S. Gaur examined the injuries of Shanker and Bhagwana in the wee hours of Sept. 13, 1987. Evidently the written report Ex. P. 1 is a post investigative document. It was handed over to ASI Om Prakash at 4. 15 P. M. on Sept. 13, 1987 i. e. after more than twelve hours of the medical examination of the injuries of Bhagwana and Shanker. Under such circumstances possibility of over implication of the accused cannot be ruled out. Prosecution witnesses Phoolya (PW. 3) Leela Ram (PW. 4) Bhuri Devi (PW. 5), Devi Sahay (PW. 6) and Nanchoo (PW. 12) were not named in the FIR. As already discussed, their testimony is not only so riddled with infirmities that it is not possible to place reliance on the same, but also those infirmities cast a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. We are now left with the exaggerated account of incident narrated by the injured Bhagwana (PW. 1 ). In written report he stated that Shanker received only one Farsi blow on the head inflicted by Chander but in the statement before the trial court he deposed that Harlal also gave Farsi blow on the left side of Shanker's head. In fact Shanker received only one incised injury on his head. We have also tested the statement of Bhagwana with the site plan and testimony of Banshi Dhar SHO (PW. 19 ). Bhagwana in his deposition stated that when Harlal started dismantling the boundary wall he intervened and Harlal called his sons. But Banshi Dhar deposed that he had drawn the site plan Ex. P. 28 and the boundary wall was intact. The question that needs answer at this juncture is whether in view of above exaggeration is it necessary to reject the entire testimony of Bhagwana? We find answer of this question in Leela Ram vs. State of Haryana (1), wherein their Lordships of the Supreme Court para 12 indicated thus- "it is indeed necessary to note that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their over anxiety they may give a slightly exaggerated account. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. " Having considered the testimony of Bhagwana (PW. 1) from the point of view of trustworthiness we find that truth is separable from the falsehood. Grain and chaff are not inextricably mixed up and we can sift the chaff from the grain and find out the truth. A close scrutiny of the entire statement of Bhagwana demonstrates that the incident had taken place all of sudden between Bhagwana and Shanker on one side and Harlal and Chander on the other. Chander inflicted only one injury on the head of Shanker and did not repeat the same. The injury ultimately proved fatal. From the material on record it is established that appellant Chander would not have intended to inflict the injury which Shanker sustained on account of his act. Thus we are persuaded to bring down the offence from first degree murder to culpable homicide not amounting to murder. We however are not inclined to place reliance on the statement of Bhagwana in so far it implicate appellants Yadram, Babu, Chhotu and Singha. These appellants and Chander are brothers and Harlal is their father. In our considered opinion the actual first information report was withheld only with the object to involve all the family members. The post investigative report Ex. P. 1 does not rule out the possibility of over implication of the accused after consultation and confabulation. We find participation of the appellants Yad Ram, Babu, Chhotu and Singha in the crime doubtful and we grant them benefit of doubt. So far as the role assigned to appellant Harlal is concerned we are of the view that he did not share common intention to commit crime with appellant Chander. From the material on record it can not at all be inferred that at any stage there was a meeting of minds of the two assailants. Chander and Harlal can only be convicted on the basis of their individual acts. The injuries caused by Har Lal were incised wounds on the person of Bhagwana therefore he can be convicted under Section 307 IPC. ;