JOSHI, J. - (1.) THIS is an appeal by 11 convicted persons against the order of their conviction passed by the Sessions Judge, Bharatpur, on 23-6-70 in criminal original case No. 13 of 1969.
(2.) IN order to appreciate the controversy in this case, it will be useful to give the chart of various counts of charges against each of the accused : (1) Ramkishan - Under secs. 324, 148, 302, 326, 323 read with sec. 149 I. P. C. (2) Ramkhilari - Under secs 323, 148, 302. 326. 324 read with sec. 149 I. P. C. (3) Laturia - Under secs 323. 148, 302, 326, 324 read with sec. 149 I. P. C. (4) Harisingh - Under secs. 323, 148 and 302, 326, 324 read with sec. 149 I P. C. (5) Mangilal - Under secs 323, 148 and 302 326. 324 read with sec. 149 I. P. C. (6) Bora - Under Secs. 323, 148 and 302. 326 read with sec. 149 I. P. C. (7) Surajmal - Under secs 323, 148 and 302, 326, 324 read with sec. 149 I. P. C. (8) Dhanpal - Under secs 324, 148 and 302, 326, 323 read with sec. 149 I. P. C. (9) Chhitaria - Under secs, 323, 148 and 302,326, 324 read wiih sec. 149 I. P. C. (l0) Rambabu - Under secs. 447, 323, 148 & 302, 326, 324 read with S. 149 IPC. (11) Ramswarup - Under secs 302, !48 & 326, 324, 323 read with S. 149 I. P. C. The charge under sec. 148 against the appellants was that each of them was a member of the unlawful assembly on 16-7-68 the common object of which was to commit murder of Bhavi Chand and to cause injuries to the alleged interveners-rescuers (hereinafter referred to as the complainant-party ). Charges under Secs. 302, 326, 324, 323 read with sec. 149 I. P. C. related to the constructive liability of the members of the unlawful assembly for the culpable acts done by the members of such assembly in prosecution of their common object. The Sessions Judge, Bharatpur, convicted the accused appellants under Secs. 326, 325, 324, 323 read with sec. 149 I. P. C. The appellants were also convicted under sec. 148 I. P. C. Ramswarup appellant was further convicted specifically under sec. 302 I. P. C. In other words, he was convicted under sec 302 I. P. G. simpliciter also. Each of the appellants was sentenced to three years' rigorous imprisonment under sec. 326 read with sec. 149, to 18 months' rigorous imprisonment, under sec. 325 read with sec. 149, to six months' rigorous imprisonment, under sec. 323 read with sec. 149 and to three months' rigorous imprisonment under sec. 148 of the Indian Penal Code. Appellant Ramswarup was further convicted to rigorous imprisonment for life under sec. 302 I. P. C. The prosecution case as disclosed during the trial was that Ramswarup and Rambabu accused dug a ditch in the field of Ramdhan and extracted earth therefrom for raising 'doli' (small earthern wall) around their field. Ramdhan felt seriously aggrieved on account of this as the ditch caused obstruction in taking bullocks into his field.) He, therefore, took serious objection to this act of Ramswarup and remonstrated with him to fill up the ditch by levelling it. This, according to the prosecution infuriated Rambabu who along with Ramswarup went to the field of Ramdhan and inflicted a lathi blow on his head. Ramdhan is then said to have rum away towards the village in order to save himself. It is said that both Ramswarup and Rambabu chased Ramdhan and caught hold of him by his hands in Johri Jat's field. It may be stated here that according to the site plan Ex. 15, Johri Jat's field is just contiguous to Ramdhan's field on its northern side. After catching hold of Ramdhan, Ramswarup and Rambabu are said to have dragged him to the Dagra (village path-way ). The other appellants who are alleged to have assembled in the hut of Ramswarup came running at the Med of Johri Jat's field and belaboured Ramdhan with Lathis and caused severe blows. Ramdhan thereupon raised a cry. Hearing his cries, Bhavi Chand (since deceased, Nihal Singh, Hariram and Bhagwan Singh rushed to the spot. It is said that accused Ramswarup was armed with a Farsi, Rambabu was armed with a lathi, Ramkishen had a Ballam, Dhanpal had a Sela, Santoria was armed with a Farsi and the remaining accused persons had lathies in their hands. The prosecution story further goes on to say that all the appellants shouted that Bhavi Chand had come as a "himayati' and so he should be finished off. As a result of this command, Ramswarup dealt a 'farsi' blow on the head of Bhavi Chand on account of which Bhavi Chand fell down on the ground The remaining appellants caused various injuries to Ramdhan as well as to the rescuers (members of the complainant-party. Bhavi Chand's condition became very serious on account of the head injuries and so he was taken to Bayana Hospital in a semi-conscious state where he died on that very day in the night. Ramdhan lodged a first information report with the Station House Officer, Bayana, who in the first instance registered a case under Secs. 307, 147, 148, 149 and 447 I. P. C. Subsequently on account of the death of Bhavi Chand, the Station House Officer added the offence under sec. 302 I. P. G. also. The injured persons were sent to the doctor for examination of the injuries on their person. The doctor after examination of the injured persons recorded their injuries and prepared the injury reports. The injury reports of Ramdhan, Hariram, Nihalsingh and Bhagwan Singh are Exs. P. 1, P. 2, P. 3 and P. 4 respectively. Bhagwan Singh's X ray report is Ex. P. 5 and Ramdhan's X-ray report is Ex. P. 6 Ex P. 7. is the injury report of Bhavi Chand deceased and his post-mortem report is Ex. P. 8. Ramdhan had five contusions and one cut on the scalp 1" x 1/2" with bleeding edges. Hariram had two contusions, a cut on the helix of the right ear across in line of the pinna and diffused swelling on the left palm, on the hypothenam eminence fracture of metacarpal corresponding to little finger. Nihal Singh had one cut injury on the left hand and one contusion on the back Bhagwan Singh had one contusion, a cut on the scalp on the right side 2-1/2" x 1" with a depth of about 1". Bhavichand's injury may be reproduced here : "triangular cut on the scalp 5" x 2" broad and another slit of 3" long. " At the time when Bhavichand was taken to the hospital, his pupils were dilated and he was bleeding from ear and nose. Blood pressure was not recordable and he was in semi-conscious state. Injury No. 1 was, according to the doctor, caused by a sharp object and was grievous in nature His injury report is Ex. P. 7. On opening the body, the following facts were found by the doctor : "fracture of parietal bone across the sagittal suture. The injury was ante-mortem in nature. There were haemorrhages in the brain and the membranes were cut along the lines of scalp cut. " According to the doctor, the injury was sufficient in the ordinary course of nature to cause death. After the usual investigation, the accused appellants were charge-sheeted in the court of the Additional Munsiff-Magistrate, Bayana, who by his order dated 7-2-69 after inquiry under Chapter XVIII Cr. P. G. committed the accused persons to face their trial under Secs. 302, 302-326-324-323 read with sec. 149 I. P. C. The accused appellants pleaded not guilty and claimed to be tried. The prosecution in all examined 16 witnesses out of which Ramdhan P. W. 2, Bhagwan Singh P. W. 3, Bheem Singh P. W. 4, Hariram P. W. 5, Nihal Singh P. W. 6, Teekam P. W. 7. and Gyasiram P. W. 8 are said to be the eye-witnesses. Out of these eye-witnesses, Ramdhan P. W. 2, Bhagwan Singh P. W. 3, Bheem Singh P. W. 4, Hariram P. W. 5 and Nihal Singh P. W. 6 are alleged to be injured eye-witnesses whereas Teekam P. W. 7 and Gyasiram P. W. 8 are the non-injured eye-witnesses to the incident. On behalf of the defence, two witnesses in all were examined. They are Teekam D. W. 1 and Dr. Anant Narain D. W. 2. On examination under sec. 342 Cr. P. G. accused Dhanpal, Mangilal and Bora denied their presence on the spot at the time of the incident. The positive defence version has been disclosed by Ramswarup accused in his statement under sec. 342 Cr. P. C. which may be translated in English as follows : "at the time of the incident, I was at my well. At that time the members of the complainant-party namely Amichand, Dharma, Govind, Nihal Singh Daroga, Sirmaira, Hariram, Ramswarup, Revti, Bheem, Ramdhan, Bhagwan Singh, Ramkhilari, Teekam, Tota Maharajsingh and Gordhansingh in all 17 persons came armed with lathies from the village side at my well and caused me severe beating. I entreated them to desist from beating. Santoria, Ramkhi-lari Rambabu, Ramkishen, Surajmal, Laturia, Chhitaria and Harisingh and some other persons came to rescue me but they also received injuries at the hands of the members of the complainant parry. " Ramswarup accused further stated that he did not know as to who had caused injuries to the members of the complainant-party. The gist of the statements of the remaining appellants who had admitted their presence at the time of the incident is broadly in the same terms. All the appellants who had admitted their presence at the time of the incident except Rambabu have denied to have given any beating to the members of the complainant-party. Rambabu has, however, admitted that he took out a stick fixed on the well and wielded it to ward off the attack in order to save himself and in the act of wielding some body might have been injured. The learned Sessions Judge came to the conclusion that the death of Bhavichand was a homicidal one. He also recorded a finding that all the accused were members of an unlawful assembly and they inflicted injuries on the person of the four prosecution witnesses Ramdhan P. W. 2, Bhagwan Singh P. W. 3 Hariram P. W. 5 and Nihal Singh P. W. 6 and also on the person of Bhavi Chand since deceased. The learned Judge however rejected the prosecution version that the incident started first at the field of Ramdhan as no blood-stains were found in that field. He, therefore, recorded his finding in this connection in these terms : "in the circumstances I am inclined to doubt this aspect of the case of the prosecution that the trouble started in the manner presented by the prosecution," He further found that no right of private defence accrued to the accused persons as in his opinion it was a free fight and in a free fight no right of private defence is available to the accused persons. Having come to this conclusion he convicted the accused persons as already referred to above. Mr. Chatterjee on behalf of the appellants has urged that the story as told by the prosecution is not at all proved. Even the learned Judge, so submitted the counsel, has rejected the version of the prosecution that the trouble in the first instance started at the field of Ramdhan. He submitted that whereas in the first information report there is mention of only an incident in the field of Ramdhan, the story developed during the trial envisages two incidents one at the field of Ramdhan and the other at the Dagra near Johri Jat's field. On these premises, the learned counsel urged that the prosecution has failed to prove the case as put forth by it in the first information report and therefore the accused should be acquitted on that account alone. He also submitted that the learned Judge evolved a new case on behalf of the prosecution by holding that the incident took place near about the Neem tree just near the Medh of Johri jat's field. It is true that in the first information report it was alleged that all the accused appellants had criminally trespassed into the field of Ramdhan and had given serious beating to him. There is no mention of the fact of beating near about the neem tree in the first information report. The learned counsel wanted us to discard this whole prosecution story as there was serious omission in the first information report with respect to the fact of incident having taken place in the field of Ramdhan, in the first instance and so also the omission of the fact of catching hold of Ramdhan and thereafter dragging him to the Dagra. In other words, the contention of the learned counsel is that the learned trial Judge having discarded the version of the prosecution in material particulars had no jurisdiction to re-construct a story of his own. It may be stated here that the testimony of the above referred four injured eye-witnesses as well as the two uninjured eye-witnesses namely Teekam and Gyasiram is uniform as to the version that the incident had taken place near-about the neem tree just near the Med of Johri Jat's field. The appellants were fully alive to this part of the case as will appear from the questions put to them under sec. 342 Cr. P. C. Although in the first information report, the incident is alleged to have taken place at the field of Ramdhan, but the dispute between the field of Ramdhan and the place of occurrence is 30 to 35 paces only. As pointed out earlier, both the fields of Ramdhan and Johri Jat are contiguous to each other. It appears to us that Ramdhan had tried to shift the place of incident to his field presumably by way of exaggeration and embellishment in order to save himself and the members of his party from the apprehended accusation against them of causing injuries to the accused party. But nevertheless in broader details, the testimony of the eye-witnesses injured as well as uninjured are uniform as to the fact of beating by the party of the accused near about the neem tree. Moreover, the testimony of the eye-witnesses finds due corroboration from the fact that blood stains on the earth were found at the Med of Johari Jat's field near the neem tree. Nothing substantial has been brought out in their cross-examination to discard their testimony in regard to substratum of the prosecution version.
(3.) MR. Chatterjee's further attack on the testimony of the eye witnesses was that they have suppressed the truth when they had deposed that they were unarmed and that they neither caused injuries to the party of the accused nor did they notice any injury on the person of the members of the accused party during the incident. He has therefore submitted that as the prosecution has failed to explain the injuries found on the bodies of the accused persons, we must discard the entire prosecution evidence. In this connection he invited our attention to the observations contained in Mohan Rai vs. State of Bihar (l ). In that case on the facts the court came to the conclusion that the failure on the part of the prosecution witnesses to explain the injuries on the person of the accused went to show that the prosecution witnesses were not truthful witnesses and further on the material on record, the Supreme Court held that the possibility of the plea of self-defence could not be ruled out. On the other hand, in Bankeylal vs. State of U. P. (2 , the Supreme Court distinguished Mohar Rai vs. State of Bihar supra) and proceeded to observe that - "if prosecution witnesses are proved to have not deposed truly in all respect, their evidence is required to be scrutinised with care. " The question, however, is whether on account of there infirmities, we should reject the whole prosecution story. It, ofcourse, transpires from the record that as many as five accused had received injuries at the hands of the members of the complainant-party and the prosecution has not been able to explain them but that by itself, in our opinion, is not sufficient to discard the whole prosecution case. We may point out that the maxim falsus in uno falsus in omnibus is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, our duty to scrutinise the evidence carefully and in term- of the apt metaphor, separate the grain from the chaff. Having done that, if the substratum of the prosecution case is found to be true, then merely because of the embellishments, improvements of exaggerations, the case of the prosecution cannot be thrown out. On the other hand, if the substratum of the prosecution case is not worthy of credit or the material parts of the evidence do not to salvage the infirmities by reconstructing the new story. In our view, the substratum of the prosecution does not stand discredited in material particulars. All the prosecution witnesses have uniformly deposed as to the date and the time of the incident and so also as to the part played by each of the accussed in the incident and to the nature of the weapons used by them during the incident. It is further proved by the witnesses that the members of the complainant-party received injuries which are duly corroborated by Dr. Balkishen P. W. 1. The change of the place of incident, in our view, is of very little significance looking to the very short distance between Ramdhan's field and the place of the incident. The trial Judge cannot be said to have re-constructed a new prosecution story, as, in our opinion, the substratum of the story in material particulars remains the same and the accused could not be said to be in any way prejudiced on that account. It was urged on behalf of the appellants that at any rate even if it is held that the accused persons had caused injuries to the members of the complainant party, the appellant were protected under the right of private defence of their person. In this connection,the learned counsel took us to the injury reports Exs. D-20 to D 25. Ex. D. 20 relates to Rambabu, Ex. D 21 related to Teekam, Ex. D. 22 to Santoria, Ex. D. 23 to Ramkhilari, Ex. D 24 to Ramswarup and Ex. D. 25 to Surajmal Rambabu had 3 injuries two contusions and one inflammation of inter pharyngeal joint of thumb left hand dorsal aspect. Teekam had one injury and inflammation 2" x 1" on the right parietal region anterior to right parietal imminence. Santoria had also 3 injuries one abrasion plus one contusion and one inflamation of imminence of thumb and dorsal aspect of first Metacarpal region. Likewise Ramkhilari had only one injury in the nature of inflamation 3" x 2" on dorso medial aspect of the left hand. Ramswarup had, however, in all 20 injuries. We deem it proper to reproduce these injuries as it will go a long way to determine the part of Ramswarup in the course of incident: 1. Incised wound 3-1/2" x 3/4" x 1/2" vertically on anterior aspect of left shoulder directing from below upwards and backwards in lower half. 2. Abrasion 1" x |" skin deep in continuation of injury No. 1 and above it, vertically. 3. Lacerated wound 3/4" x 1/4" x 1/6" on posterior medial aspect of left forearm near junction of upper l/4th and lower 3/4 with inflammation of upper 3/4 of left forearm. 4. Punctured wound 1" x 1/4" x 1/3" on posterior aspect of right forearm 2" below elbow joint. 5. Contusion 4" x 1/2" obl quely postero lateral aspect of Rt. forearm with inflammation Of upper 1/4th of Rt. forearm 6. Contusion 3" x 1-1/2" obliquely on right side of Back postero axillary line of level of 12th thoracic vertebra 7. Inflamation 1/2" x 1/4" superficial on Rt. glutial region with abrasion. 8. Abrasion 1/4" x 1/4" superficial three in number on ant. aspect of right knee joint. 9. Lacerated wound 1-1/4" x 1/4" x 1/4" near right parietal imminence. 10. Contusion 3" x 1/2" on Rt. back near pit of axilla. 11. Contusion 1" x 1" - on back 1" below injury No. 10. 12. Contusion 4" x 1-1/4" vertically on right back 1" lateral to mid line from 6th thoracic level to 10th thoracic level. 13. Contusion 1" x 1" below upper injury (No. 12) with abrasion. 14. Contusion with abrasion 1-1/4"x 1" below injury No. 13 of 12th thoracic level. 15. Contusion with abrasion 1-1/4" x 3/4" on back 1" below injury No. 12. Contusion 1-1/2" x 1/2" on back l-1/2" below injury No. 15. Contusion with abrasion 3" x i \" on mid line of back 4th thoracic level. Contusion 1" x 1" on left back 1" lateral to mid line 12th thoracic level. Contusion 2-1/2" x 1/2" - right side of back on the spine of scapula. ;