Dave, J. - (1.) THIS is an appeal by elght persons namely Achhar Singh, Bara Singh, Pyare Singh, Makhan Singh, Hazara Singh, Tara Singh, Pyara Singh 2nd and Santa Singh who have been convicted by the Additional Sessions Judge, Ganganagar on 30th August, 1952, under secs. 148, 302 and 307 reas with sec. 149 I. P. C. Each one of them has been sentenced to one year's rigorous imprisionment under sec. 148 I. P. C. and to transportation for life and to seven years' rigoruus imprisonment under secs. 302 and 307 reas with sec. 149 I. P. C. respectively.
(2.) THE fact giving rise to this case are that on the 15th of May, 1950 at about 12 in the noon one Karamsingh, son of Basawansingh, resident of 8 N. N. B. in the district of Ganganagar lodged a long report at the Police Station, Pandampur which is about five miles distant from the site of occurrence. THE said report, in brief, was that a murraba of land belonging to the Government was allotted to Makhansingh, Pyarasingh and Tarasingh, sons of one Jagsingh for temporary cultivation for one year. Its term of one year had expired after the last crop but these persons had cultivated kharif crop and, therefore, his father who was a mir-ab forbade them from watering that murraba until it was allotted to them again. His father had also told them that no water would be supplied to that plot and, therefore, these people had a grouse against him. On the afternoon of 13th May, 1950, he had begun watering his plot at 2 O'clock and when he had watered it! for only four hours, the flow of water began to decrease. THEreupon he went to the moga to find out the reason for the same. He found that Hazara-singh, Tarasingh, Acharsingh, Makhansingh, Pyarasingh, Barasingh, another Pyarasingh, Bantasingh and Santasingh (appellants) were standing there. THEy were armed with 'burchhas and guns' and had diverted the water in the murraba of one Amarsingh and when he asked them why they had done so, they replied that they were under the impression that it was his further's turn and, therefore they had done so because he did not allow Makhansingh, Tarasingh and Pyarasingh to take water into their murraba. THEy also asked him to send his father in order to decide the matter. He then went back and narrated the story to his father Next day at about 8 O'clock in the morning his father accompanied with Tejsingh, Kripalsingh and Sam-puransingh went to the 'moga'. He himself and his uncle Badhawasingh with Surayan-singh, Mukhtarsingh, Balwantsingh and Channasingh also accompanied them. At that time one Phangansingh was watering his filed. His father asked him (Phangansingh) why he was watering his filed when it was his turn to water his filed. THEreupon Phangansingh replied that he had taken his turn rightly after Amarsingh. At that very time Mahalsingh, Bantasingh, Santasingh, Barasingh Pyarasingh, Achharsingh, Hazarasingh, Pyarasingh, Makhansingh and Tarasingh (appellants) came there from the side of Achharsingh's house. All of them had burchhas in their hands except Mahalsingh who had a gun in his possession. As soon as they reached 'killa No. 25' belonging to Barasingh, they challenged Basawasingh's group and said that they would get the water diverted. THEreupon the arbitrators, Kripalsingh, Tejsingh and others tried to pacify but in vain, Hazarasingh challenged the opposite party to be alert and exhorted his companions to put them to death. THEreafter Mahalsingh fired the gun but it did not hit anybody. Pyarasingh thereupon took the gun from him and after loading it he shot Badhawasingh who fell down, Barasingh then gave burchha blow in Badhawasingh's stomach. Hazarasingh, Pyarasingh. Bantasingh, Tarasingh and Makhansingh (accused) attacked his father Basawasingh with burchhis and so he fell down on account of the injuries. Pyarasingh again fired at Surainsingh as a result of which he was also injured and fell down. Basawasingh's wife Guranditti tried to save her husband but Achharsingh (accused struck burchhi below on her force and hands Pyarasingh again fired at Channasingh and Mukhtayarsingh who were standing there. It was further stated that Badhawasingh, Basawa singh and Surainsingh had died and that the remaining injured persons were lying at the spot. 4 On receipt of this report, P. W. 11 Surajmal, Sub-Inspector of Police went to the site of occurrence and found that not only Basawasingh, Badhawasingh. and Surainsingh of the first party had died but Mahalsingh and Bantasingh of the second party were also lying dead at the spot. He took another report from Hazarasingh of the second party and conducted the investigation in both the cases. Two separate challans against persons of both the parties were made in the Court of the Sub Divisional Magistrate, Karanpur. The prosecution case was that both the parties were determined to decide their dispute regarding water by a trial of strength and that the appellants had committed offences of rioting, murder and attempt to murder. In the present case eight persons (i. e. appellants) whose names have been mentioned above were challaned in the court of the Sub-Divisional Magistrate who committed them to the court of the Sessions Judge, Ganganagar and. They were, however tried by the Additional Sessions Judge, Ganganagar and convicted and sentenced as mentioned above. All the appellants pleaded not guilty, both in the committing magistrate's court and the trial court. The appellants Pyarasingh, Mukhtarsingh and Tarasingh, sons of Jugsingh and Pyarasingh and Barasingh, sons of Tahalsingh pleaded that they were not present at the site of occurence. Achharsingh and Hazarasingh appellants admitted in the trial court that they had gone to the site but their plea was that they had gone there in order to pacify the combatants. Santa-singh also pleaded that he was tending goats at a small distance from the site of occurrence and did not take any part in the fight. No defence evidence was produced by any of the appellants. The trial court did not believe the appellants' version and relied on the prosecution evidence in spite of discrepancies which were pointed out to it. A appeal of the right of private defence was also raised by the appeal-lants in the trial court but it was repelled. The appellants' learned Advocate has contended before us that the prosecution evidence is full of very material discrepancies which cannot be reconciled, and that the trial court has ignored them without good reasons It is further urged that the presence of appellants, Pyarasingh Makhansingh and Tara singh, sons of Jagsingh and Pyarasingh and Barasingh, sons of Tahalsingh, at the site of occurrence is not established by the prosecution evidence. Regarding Hazarasingh, Achharsingh and Santasingh (appellants),it is contended that they did not take any part in the fight. Hazarasingh and Achharsingh had gone to the site of occurrence because Achhar singh was the mir-ab and Hazarasingh was living with him. They only tried to pacify both the parties. According to the appellants only Mahalsingh and Bantasingh were fighting with all the persons of Baswasingh's party and they met their death at their hands. It has been urged that it was Basawasingh's party which was the aggressor, that the appellants have that been convicted on unsatisfactory evidence and that they should be acquitted. For the sake of brevity we would hereafter call persons of the complainant's group as the first party and those of the appellants' group as the second party. From the evidence of P. W. 3 Dr. Jogindar Singh it appears that he had carried out post-mortem examination of the deceased Basawa Singh. Badhawa Singh and Surain Singh of the first party. He has stated that Basawa Singh had eight injuries on his person. Of them one was a gun shot would on the right shoulder, four wounds appeared to be caused bo stabs, one wound seemed to be caused by a sharp cutting instruments, one was a lacerated wound and one bruise seemed to be caused by a blunt weapon. This shows that this deceased was injured by at least three types of weapons, one of which was a fire arm and others were sharp and blunt instruments. The witness also examined Badhawa Singh and found on his person scattered gun shot wounds about 80 in number on the right and upper side of his chest. He also found one stab wound on the back and left side which in his opinion was simple injury but caused by some sharp stabbing instrument He had one incised wound on the abdomen in left hypochondriac region. Similarly on the person of the deceased Surainsingh the witness found two gun shot wounds one on the right side of his chest and the other on the right side of his back in the scapular region Both were grievous injuries caused by fire arm. Among the internal wounds, it was found that his right pleura was punctured and there was also one tear; oval in shape, in the upper lobe of the right lung. He also examined Mst. Guranditti widow of Basawasingh and Mukhtyarsingh, Channasingh and Balwantsingh of the first party and found that they were also injured by fire arms and sharp weapons. Guranditti had three injuries, all of them being incised wounds. Two of them were simple injuries on the left wrist and on the palm of the left hand. The third one was a grievous injury on her face. Mukhtyarsingh, Channasingh and Balwantsingh had !4, 18 and 65 gun shot wounds respectively on different parts of their bodies. It is thus clear from the evidence of this witness that out of the members of the first party three had died and found had received simple and grievous injuries and that they were caused by fire arms. Blunt and sharp weapons. The appellants' learned Advocate has not contested that the said persons of the first party were killed and injured and that the injuries were caused by fire arms, sharp and blunt weapons, as pointed out by the witness What is contended is, that the appellants are not responsible for these injuries. The main points for our determination, therefore, are whether the appellants took part in the fight and were directly or indirectly responsible for the said injuries and what offences they are guilty of? The prosecution has examined 13 witnesses in this case. Of them P. W. 2 and P. W. 3 are Drs. K M. Lal and Jogendarsingh who examined the deceased and the injured persons. P. W. 11 is the Sub-Inspector of Police who conducted the investigation. Among the rest, seven witnesses namely, P. W. 1 Karamsingh, P. W. 5 Phangan-singh, P. W. 6 Mukhtyarsingh, P. W. 7 Bachansingh, P. W. 1 Mst. Guranditti. P. W. 9 Channa singh and P. W. 10 Karnailsingh have been produced as eye-witnesses to the occurence. Out of these seven, four witnesses namely P. W. 6 Mukhtyarsingh, P. W. 7 Bachansingh, P. W. 9 Channasingh and P. W. 13 Karnailsingh have expressed their ignorance about the actual incident. They were declared hostile in the trial court. When Mukhtyarsingh and Bachansingh were faced with their previous statements made by them in the committing court, they stated that the Sub-Inspector of Police had dictated those statement and they were not true. Channasingh stated that he received gun shot wounds when he had gone towards the tail of the canal, that he went away to his house and did not see who were fighting. P. W. 10 Karnailsingh also has said that he was not present on the spot and that he had gone to his father-in-law's house at village Danchal in the district Karnail during those days. These witnesses have admitted that they have been challaned as accused in the counter case The learned Govt. Advocate has argued that these witnesses are concealing the true facts because they afraid that if they admit their presence at the site, their admissions might be used against them in the counter case. It may be so, but it is clear that the evidence of these witnesses is of no avail to the prosecution in the present case. We are thus left with the evidence of the remaining three witnesses, Karamsingh, Mst. Guranditti and Phangansingh
(3.) P. W. 1 Karamsingh has stated that the F. I. R. was made by him. He has narrated the same story as given above so far as the appellants' part in the fight is concerned. According to him all the appellants, together with Mahalsingh and Bantasingh, came to the tail of the canal armed with weapons. Hazarasingh appellant exhorted his companions to kill the members of the first party. Mahalsingh thereupon fired with his gun but since none was hurt, appellant Pyarasingh son of Tahalsingh took the gun from him and fired repeatedly, and as such all the gun shot wounds received by the deceased and others were caused by him. According to him it was Barasingh accused who gave a burchi blow to Badhawasingh while Pyarasingh, Tarasingh, Makhansingh. Hazarasingh, Banta-singh and Santasingh fell on his father and caused him injuries an account of which he died. When these people were attacking his father Basawasingh his mother Guranitti who had happened to come there by that time, fell down on Basawasingh in order to save him, and that the appellant Achharsingh then struck her a burcha below on her month. P. O. 8 Mst Guranditti has also given the same story. The appellants' learned advocate contended that these two witnesses should not be believed because from the cross-examination it has been established that they have changed their statements in the committing magistrate's court and in the trial court and there are serious discrepancies in their statements. It is no doubt true that the statements of both Karamsingh and Mst. Guranditti in the trial court are at variance with their previous statements in the police diary and the committing Magistrate's court. P. W. 1 Karamsingh has even denied the truth of the F. I. R. in certain particulars but it may be pointed out that all these discrepancies are mostly due to their attempt to save Mukhtyarsingh, Channasingh, Balwant singh and others who are said to be the members of the first party. It cannot be denied that both of them are not witnesses of absolute truth but the question then arises whether their statements should be thrown out altogether or that may be used to the extent they are corroborated by other evidence. We have been referred to the case of Asmat-ullah and others vs. Emperor (l) in which it was observed by Young J. that - "in India, the practice undoubtedly has been for the court laboriously and anxiously to search with a microscope for some truth which might, be buried in the evidence. In my opinion, such procedure is wrong, a waste of valuable time, and a danger to the public. The plain duty of the court when it finds the prosecution case false and manufactured in material and vital particulars and supported by perjured evidence, is to throw the whole case out without delay". In the first place it may be pointed out that this observation would not apply to the present case because it cannot be said with fairness that the prosecution case before us is false and manufactured in material and vital particulars. Moreover, it may be stated with respect to the learned Judge that the above observation is, of a rather sweeping nature. In State vs. Sarwansingh and Hazura-singh (D. B. Cr. Appeal No. 95 of 1951 decided by this Court on 10th April, 1953), not yet reported; it was held that it is well settled that the maxim falsus in uno falsus in omnibus does not apply with full force in India, and, as was pointed out in Baga Bharti vs. Sarkar 2), the whole body of testimony cannot be rejected merely because the witnesses were evidently speaking untruth in one or more particulars. It was further pointed out that the salutary principle on which the court should work is that in such cases the evidence should be sifted carefully, and where the falsehood, is merely an embroidery to a story, that would not be enough to discredit the whole of the witnesses' evidence. At the same time, it is true that where witnesses deliberately implicate an innocent person falsely, and perjure themselves to that extent, the evidence of such witnesses as to the other accused also becomes open to doubt. " In the case of Ashiq Ali and others vs. Emperor (3) it was observed that" it is also true that cases not infrequently occur in which the evidence of a witness who has made an untune statement in some respects is accepted as regards the rest of what he states it is not however in pursuance of the supposed rule that, even were a witness has been shown to have deliberately perjured himself in one part of his evidence he may yet be considered without demur to be a truthful witness as regards the rest of his evedence which has not been proved to be false. Such a rule is a dangerous as unrestricted application of the maxim is impracticable. The correct rule to apply in such cases is that part of the evidence of a witness, who has been guilty of untruth in some material particulars, maybe accepted if such part is corroborated by probabilities and other reliable evidence which though insufficient by itself to establish the guilt of a particular accused, nevertheless points to the truth of the statement of the witness directly implicating him. Then evidence which is merely unconvincing or doubtful does not stand on the same footing as regards perjured evidence. Where the statement of a witness has been clearly proved to be un rue, there is no manner of doubt that the witness is prima facie unreliable; and if his evidence is not reinforced by some-thing else, it is highly unsafe to accept it as the basis of conviction. Where however the court considers one part of the evidence of a witness to be not free from doubt, it may well refuse to act upon it without destroying the value of the rest of it, as all that the court implies, in not acting upon one part of the evidence, is that it is not safe to accept it. In our opinion these observations lay down a correct principle. In the case of a witness whose statement has not been found to be wholly true, that part, which is not supported by other evidence, should be rejected while the part which is corroborated by other reliable evidence need not be thrown out. We may stress it again that the duty of the court is to sift the evidence and find out the truth and not to throw out the testimony simply because a witness is found to be speaking untruth in one or more particulars. Of course, hard and fast rules for guidance in believing or disbelieving testimony of a witness cannot be laid down and it would always depend on the facts and circumstances of each case for the court to rely upon or reject the evidence of a certain witness or witnesses. In the present case we would believe the evidence of Karamsingh and Guranditti only to the extent that their statements are corroborated by other evidence or probabilities or circumstances. We do not think it proper to reject their evidence altogether. There is no doubt about the fact that both of them were present at the site of occurence. Karamsingh was present from beginning to end. He made the first information report soon-after the occurrence. The story as given out by him in the main is not incorrect. If he has changed his version it is only to the extent that he has tried to save himself and some persons of his party. So far as his evidence regarding the part played by the appellants is concerned, it is almost consistent Still, since he has not spoken the whole truth, we will rely upon him only to the extent he is corroborated as mentioned above Now, judging the evidence by the standard laid down above, we find that so far as the appellants Pyarasingh, Makhansingh, Tara-singh, sons of Jagsingh, and Pyarasingh and Barasingh, sons of Tahalsingh, are concerned, the case against them stands on a different footing from that against the rest. It is admitted by the prosecution that none of them received any injury. All these five persons have stated that they were not present at the site of occurrence. Makhansingh has stated that he had gone to 9 H, Tarasingh has stated that he had gone to 27 chak five days before the occurence and Pyarasingh has stated that he had gone to Radaiwal three or four days before the occurrence. Although these appellants have produced no evidence to support their plea of alibi, yet, there is no evidence from the prosecution side either to support Karamsingh and Guranditti's version that these people were present at the site. On the other hand, the fact that none of them received any injury goes to support their plea that they may not have gone to the site at all. In the ordinary course of events, it may be expected that in a case like the present where several persons were involved in the fight on both the sides those who took active part or were present at the site, should receive some sort of stamp in the shape of injuries simple or grievous. Thus although according to Karamsingh and Guranditti the first five persons had also caused injuries to Basawasingh and Badhawasingh yet there is no other evidence to corroborate their evidence on the score. Regarding Pyarasingh, son of Tahalsingh, it may be argued that both Karamsingh and Mst Guranditti have stated that it was he who had fired all the shots and killed Badhawasingh and Surainsingh and that their observations about his part should not be disbelieved. We may, however, point out that their version about his part also is not corroborated by other evidence. These witnesses have stated that the gun originally in the hands of Mahalsingh deceased and the Pyarasingh had snatched it form his hands. They also say that Mahalsingh had fired the gun but since it did not hit any body, it was taken away by Pyarasingh. This story is not easily believe able because if Mahalsingh used to keep a gun, it may be taken that he should also know how to use it. There was not only one target but there were a number of persons in the first party and therefore, even if it be taken for granted that Mahalsingh was not very good at shooting, some person from the group could be injured even at the hand of a notice. It is not unlikely that since Mahalsingh was already dead, so in order to rope in one more person from the opposite party, Karamsingh and Guranditti might have placed the gun in the hands of Pyarasingh. In the absence of a corroborating evidence, such a possibility cannot be ruled out. P. W. 5 Phangansingh also does not say in his statement in the trial court if he had seen any of the five appellants going towards the site of occurrence. Therefore, we think it proper that the conviction of the five appellants namely, both Pyarasingh, Tarasing, Barasingh and Makhasingh should be set aside and they should be acquitted. As regards the remaining three appellants Hazarasingh, Achharsingh and Santa-singh, they have been found to have received injuries on the day of occurrence and they have also admitted this fact. According to P. W. 3 Dr. Jogendarsingh, who had examined these three appellants also, Achharsingh appellant had three incised wound, one on his right scapula, another on his right shoulder and the third on the right cheek. These injuries are said to have been caused by sharp weapons. ;