- (1.) THIS is an appeal by the accused Mangu, Jiwan and Dhulla sons of Rambuxa, Bhana S/o Part and Ganpat S/o Bhura against their conviction and sentence by the learned Additional Sessions Judge, Sikar by his judgment, dated, 1st January, 1957. Mangu, Bhana and Jiwan have been convicted u/s 302, I P. C. read with sec. 34 I. P. C. and sentenced to imprisonment for life. They have also been convicted u/s 148 and sec. 326 read with sec. 149, I. P. C and sentenced to 3 years' R. I. each under each count. Dhulla and Ganpat have been convicted u/s 148 and sec. 326 read with sec. 149, I. P. C. and sentenced to 3 years' R. I. each under each count.
(2.) THE prosecution case was that on 28th June, 1955, Chandra S/o Sheo Buxa Gujar resident of village Harsh along with his mother Mst. Jarav was going towards village Harsh at about 9 A. M. to participate in a marriage ceremony at some Mahajan's house. As they passed by the field called Kothi Khawaswali, which is also called as 'jab land' on account of being irrigated land they saw eight persons, viz, Mangu S/o Rambuxa, Bhana S/o Parta, Jiwan, Dhulla, Surja, Ganpat, Gopi and Mangu S/o Bhura ploughing the said field. This field was in the joint cultivation of Sheobuxa, father of Chandra and Rambuxa, father of the accused Mangu, Jiwan and Dhulla. Chandra asked Mangu S/o Rambuxa why he was ploughing the field when there was dispute about it. On this Mangu along with Jiwan and Bhana ran towards Chandra on the public way, where the latter was standing. THE three accused fell upon Chandra and began to belabour him with lathis causing injuries to his head. Chandra fell down and Mst. Jarav fell upon him to protect him. THE three accused, however, pushed her aside and belaboured her also with lathis THE remaining 5 accused, namely, Dhulla S/o Rambuxa, Ganpat S/o Bhura, Mangu S/o Bhura, Surja and Gopi also ran up and joined the first three. On hearing the cries of Mst. Jarav Kalu another son of hers came to the spot and intervened, but he was also belaboured with lathis. Other sons of Mst. Jarav, namely, Doonga, Bhola, Jaila, Rekha, Rameshwar and her husband Sheobuxa also heard the cries and rushed to the spot. With the exception of Sheobuxa all the other last named persons came armed with lathis or sticks and as soon as they reached the spot there was free fight between both the parties and members of both the parties received injuries. After beating Chandra's party the accused returned to the field and from there they ran towards Sikar. Chandra immediately succumbed to his injuries. Injuries were also caused to Rameshwar, Sheobuxa, Doonga, Jaila and Bhola and Mst. Jarav. First Information Report of the occurrence was made by one Dilsukh S/o Bhura Gujar at Sikar Police Station at about 1 P. M. As the report disclosed a case u/s 302, special report was sent by the Sub-Inspector-incharge of the police station to the Superintendent and Deputy Superintendent of Police concerned. The S. I. incharge then took the statement of Dilsukh. Immediately after the Superintendent and Deputy Superintendent of Police came to the police station, the S. I. in the company of them went to the scene of the occurrence and reached there at about 4 P. M. The police party found the dead body of Chandra lying on the public way just near the disputed field. This public way led from Devgarh to Harsh. He also found the following relations of the deceased on the spot - Kalu, Bhola, Surja, Rekha, Jaila and one other. Most of the persons sitting there were found injured. The S. I. prepared the site map and the site notes which are Exs. P. 15 and 15a on the record. He took some blood stained earth from the place where the dead body of Chandra was found lying and prepared a separate note in respect of it, and it is Ex. P. , 16 on the record. He held the inquest and prepared panchayatnama relating to the dead body of Chandra and it is Ex. P. 6 on the record. Thereafter he took the statements of injured persons and sent the dead body of Chandra for post-mortem examination to Sikar hospital. Other injured persons of the prosecution party were also sent for examination and treatment. Then Surja, Ganpat and Gopi accused were arrested from their houses. When he returned to the police station at about 7 P. M. he found four of the remaining accused, namely, Mangu S/o Rambuxa, Dhulla, Jiwan and Bhana sitting there. He immediately took them into custody and prepared the memos of their arrest. The memos of arrest of the above 7 accused are Exs P. 17 to 23 on the record. He received the blood-stained clothes of Chandra deceased from Head Constable Madan Singh who had taken Chandra's dead body to the hospital. He prepared sealed packets of the bloodstained earth and the blood stained clothes on 28th June, 1955 and 29th June, 1955 for being sent to the Chemical Examiner, Jaipur and they were sent to the Chemical Examiner through constable Bhanwar Singh. It is said that on 30th June, 1955 the accused furnished information as to the presence of lathis in their houses and in pursuance of that information the seven accused produced 7 lathis from their respective houses and seizure memos Exs. P. 7 to, 13 were prepared in respect thereof. After further investigation and the arrest of the remaining accused Mangu s/o Bhura the case was challenged in the court of the S. D. M. , Sikar against all the eight accused u/s 302 read with sec. 149 and sec. 148, I. P. C. A report was lodged on behalf of the accused party also against the complainant's party and the accused were also medically examined. Sheobuxa Kalu, Bhola, Doonga, Jaila, Rekha, Rameshwar and Mst. Jarav of Sheobuxa's party were challaned u/s 307, I. P. C. and riot sections. The case was subsequently transferred to the court of the Extra Magistrate First Class, Sikar who committed all the accused to take their trial in the court of the Additional Sessions Judge, Sikar u/ss. 148 and 302 read with sec. 149, I. P. C. The accused in the cross case were also committed to take their trial u/s 307 and some other sections. All the accused denied the charge. The defence of Surja, Mangu and Gopi was that off alibi. The defence of four of the accused, namely, Mangu s/o Rambuxa, Bhana, Dhulla and jiwan was that the field in dispute had been in possession of Rambuxa, Mangu and a few other - sons of Rambuxa who had been cultivating it since long and that Sheobuxa had nothing to do with it. On the morning of the date of the occurrence these four accused were ploughing the field when Sheobuxa, his wife Jarav and his sons, Chandra, Rekha, Bhola, Jaila and others, in all 9 persons, came to the disputed field armed with lathis. They had brought three ploughs also with them. Immediately on their coming some of them entered the field through the gali and some jumped into the field from over a fence and started beating Mangu. Ganpat accused then came to the spot and asked the parties not to fight, but he was also injured by the party of Sheobuxa. Ganpat's defence is that he went to intervene when he was himself beaten by the party of Sheobuxa. A number of witnesses were produced on behalf of the prosecution party againts the accused. Kalu P. W. 3, Jaila P. W. 4, Bhola P. W. 5, Doonga P. W. 6, Mst. Jarav P. W. 8, Rameshwar P. W. 9, and Sheobuxa P. W. 10 are the persons who were themselves injured Reikha is one of the sons of Sheobuxa who is said to have run to the rescue of his brothers when they were being beaten. Among the eye-witnesses there is only one person Ladu P. W. 2 who was neither injured nor belonged to the family of Sheobuxa. The prosecution sought to prove that the field in dispute has been in possession of both the parties since before the date of the occurrence. Learned Additional Sessions Judge was satisfied by the evidence of the eye-witnesses for the prosecution that the fight ensued as alleged by the prosecution. He found that only five of the accused, namely, Mangu s/o Rambuxa, Bhana, Jiwan, Ganpat and Dhulla were proved 10 have taken part in the beating of the party of Sheobuxa. He found all these 5 accused guilty u/s 148, IPC and also u/s 326, IPC by virtue of sec. 149. He however found Mangu s/o Rambuxa, Bhana and jiwan only guilty of the offence u/s 302 read with sec. 149 IPC for the murder of Chandra. As regards the remaining three accused he felt doubt that they formed an unlawful assembly or took part in the beating and consequently acquitted them. The five convicted persons have come in appeal to this Court. Before we take up the arguments of the learned counsel for the parties we may say here that the cross-case against Sheobuxa and his party ended in acquittal of the accused. We have heard Sri J. K. Mathur on behalf of the appellants and Sri R. A. Gupta on behalf of the State. It has been argued by Shri Mathur on behalf of the appellants that the judgment of the lower court is vitiated by the fact that it is based not only on the evidence recorded in the present case, but also on the evidence recorded in the cross-case. It was argued that it cannot be said as to what extent the lower court was influenced by the evidence in the cross-case and, therefore, its judgment is liable to be set aside on this ground alone-It was further argued that the prosecution altogether failed to prove that Sheo-buxa had any possession of the field in dispute on or before the date of occurrence. It was argued that the evidence shows that the field had been in possession of Rambuxa and some of his sons only from before the occurrence and that Sheobuxa's party had been making an attempt to interfere with their possession. The party of the accused therefore had to file a criminal complaint u/s 117, IPC against Sheobuxa and his sons only a few days before the occurrence. It was the party of Sheobuxa who committed aggression on the date of the occurrence inasmuch as they went armed with weapons of offence to interfere with the possession of Rambuxa and his sons and not only threatened to criminally trespass on the field but also gave beating to the party of Rambuxa, and that the four accused Mangu, Bhana, Jiwan and Dhulla only dealt some blows to Chandra and other members of his family in the exercise of their right of private defence of property and person. So far as Ganpat is concerned it was argued that he had not given beating to anybody. It was argued that all the accused deserve to be acquitted. In any case it was argued that none of the accused could be convicted by virtue of sec. 34, IPC as the prosecution has failed to prove that Chadra was belaboured in pursuance of the common intention of Mangu and others. It was argued that no common unlawful object of the party of Rambuxa has been proved and consequently the offence of rioting and any other offence by virtue of sec. 149, IPC could not be held to have been committed. Mr. Mathur also argued that in the beginning Dilsukh PW 1 and one Binja were also mentioned as eye-witnesses, but as their evidence would have damaged the prosecution subsequently the position was taken that they had not witnessed the occurrence. On behalf of the State Sri Gupta has argued that there was voluminous direct evidence on the record to prove that the appellants were aggressors and that they not only caused various injuries with the common object of beating the party of Sheobuxa's but also caused the death of Chandra in pursuance of the common intention of beating Sheobuxa's party. All the accused were, therefore, rightly convicted of the various offences. It was argued that Dilsukh and Binja were not eye-witnesses as has been proved by the evidence on the record and, therefore, the learned Additional Sessions Judge has rightly held that they were not eye-witnesses of the occurrence
(3.) WE have considered the arguments of both the learned counsel. On a reading of the judgment of the learned Additional Sessions Judge we are certainly of opinion that he has taken some of the evidence of the cross case into consideration in convicting the accused in this case. Take, for example, the F. I. R. in the cross case. WE have not been able to find that document on the record of this case. Evidently the learned Additional Sessions Judge has made use of this document from the record of the cross-case In para 21 of his judgment he has gathered the defence of the accused in this case from the F. I. R. made by Mangu in the cross-case. He has given the summary of that document in this paragraph. The difficulty has arisen from the fact that the learned Additional Sessions Judge has given a single judgment in both the cases. The correct procedure in the trial ci cross-cases should be that both the cases should be tried separately although by the same Judge and separate record should be prepared for each case. The judgments should be separately given and they should be based on the evidence on the record of that case alone. By giving a single judgment in two cross-cases there is likelihood of confusion that evidence in one case might be acted upon in the other. This is what appears to have happened in this case. Although we find that the learned Additional Sessions Judge has tried his best in each case to refer to the evidence produced in that case alone but he has not been able to be on the guard throughout and as has been said above in some places he has referred to the material of one case in arriving at the finding in the other case. It has been observed in the judgment of a Division Bench of Bombay High Court in Banappa Kallappa Ajawan vs. Emperor (1) that "the most desirable procedure in such cases (cross-cases) would be that both the cases should be tried by the same Judge, though with different assessors or juries. The first case should be tried to a conclusion and the verdict of the jury or the opinion of the assessors taken. But the Judge should postpone judgment in that case till he has heard the second case to a conclusion, and he should then pronounce judgments separately in each case. He would of course be bound to confine his judgment in each case to the evidence led in that particular case and would not be at liberty to use the evidence in one case for the purpose of the judgment in the other case and to allow his findings in one case to be influenced in any manner to the prejudice of the accused by the views which he may have formed in the other case. " It is therefore necessary for a trial court to prepare separate record for each of the two cross-cases and base Its judgment only on the evidence in that case & not on that of cross-case. The question, however, is whether, where the trial court makes some use of the evidence in one cross-case in the other, the judgment and order of it must be altogether set aside. This depends upon the circumstances of each case. In some cases evidence in one cross case may be used in the other to such an extent that if that evidence is disregarded the order of the lower court might not stand only on the evidence of that case. In some cases although the evidence in one case may be used in the decision of the other but after discarding that evidence the evidence in that particular case alone might be sufficient to support the order of the trial court. It has been observed by Oudh Chief Court in case Debidayal vs. Emperor through Baburam (2) that "where two cases are tried by the same Magistrate and the evidence in one case is acted upon in the other, the procedure is a mere irregularity and unless the accused bus been prejudiced by reason of the evidence in the cross-case being acted upon, the trial should not be set aside. " In that case the accused were held not to be prejudiced at all by the consideration of evidence in the other cross-case and therefore their conviction was upheld. We perfectly agree with the observation of Bombay High Court and Oudh Chief Court in the above two cases and proceed to scrutinise the evidence of the present case relied upon by the learned Additional Sessions Judge in order to find out if the judgment of the learned Additional Sessions Judge in the present case can be sustained. We may say at the out-set that the finding of the learned Additional Sessions Judge that Dilsukh and Binja were not eye-witnessess of the occurrence and that their statements before the police with which they were confronted at the trial were not the result of faithful recording by the police is not at all acceptable to us. Learned Additional Sessions Judge has said that the report Ex. P. 4 made by Dilsukh and his statement recorded by the police u/s 161, Cr. P. C. are altogether irreconcilable. On a careful reading of the two documents we do not think that this is so. It is of course true that the report Ex. P. 4 is a concise document whereas the statement of Dilsukh before the police Ex. D. JO was much more detailed but this very often happens in criminal cases. The F. I. R. is mostly lodged in the hurry of the moment with a view to help police take immediate steps to investigate the case. Statements u/s 161, Cr. P. C. are recorded by the police in order to find out correct facts and are very often detailed. That is why the statement Ex. D 10 of Dil Sukh is not as concise as the statement in the F. I. R Ex 4. The only material omission which we find in the report Ex 4 is that the names of Mst. Jarav, Sheobuxa and Rekha among the party of Sheobuxa are not given therein, but in the statement Ex. D. 10 the names of these three have also been added. However at the trial the presence of these three persons along with the six mentioned in both the documents has been shown at the time of the occurrence. It cannot therefore be said that Ex. D. 10 on that account is a spurious document. Learned Additional Sessions Judge has said that there was no necessity to the Investigating Officer to record the statement of Dilsukh. We do not think why it was unnecessary. First Information Report is made by the informant and thereafter the police embarks upon investigation. During investigation police has to find what is the direct evidence. From the F. I. R. Ex. 4 it could not be clear as to whether Dilsukh was an eyewitness and therefore if in order to find out if he and seen the occurrence with his own eyes, the Investigating Officer recorded his statement, it cannot be said that it was due to an ulterior motive. As a matter of fact it was very necessary that the statement of the person who made a very concise statement in the F. I. R. should be recorded in order to find out whether he has personal knowledge of the occurrence. Learned Additional Sessions Judge has remarked that the statement Ex. D. 10 does not bear the signatures of Dilsukh We presume that the learned Additional Sessions Judge was aware of the provisions of sec. 162, Cr. P. C. which lay down that no statement made by any person to a police officer in the course of an investigation under Chapter V shall, if reduced into writing, be signed by the persons making it Thus there is an express prohibition against the getting of the signatures of a witness during investigation on the statement recorded by the Investigating Officer. Learned Additional Sessions Judge should not have therefore drawn any adverse inference from the fact of the statements not being signed. As the witnesses were confronted at the time of trial with their statements recorded before the police, we have gone through them. They are Exs. Dl, (statement of Ladu), D3 (statement of Jaila), D4 (statement of Doonga), D5 (statement of Rekha), D6 (statement of Mst. Jarav), D7 (statement of Kalu), D8 (statement of Bhola), D9 (statement of Rameshwar), D10 (statement of Dilsukh) and D11 (statement of Binja ). These statements do not show as if they have been manufactured by the Investigating Officer. It appears as if what the witnesses had said had been taken down. Although all the witnesses denied that they had made these statements before the Investigating Officer yet they have been proved to be the statements of these witnesses by the evidence of Sri Ramkishan PW 14, Investigating Officer He has sworn that Ex. Dl is the statement of Ladu, D3 of Jaila, D4 of Doonga, D5 of Rekha, D6 of Mst. Jarav, D7 of Kalu, D8 of Bhola, D9 of Rameshwar and D10 of Dilsukh. He has sworn that the statement Ex. D 11 is of Binja. Prosecution did not bring out anything in the evidence of this witness to show that these statements were not the statements of the persons whose statements they purport to be and that they were the product of imagination of Sri Ramkishan. It was natural for Sri Ramkishan to examine the prosecution witnesses during investigation and it has not been shown that any other statements of these witnesses had been recorded, and they have been suppressed and these fabricated statements have been produced. We see no reason for Sri Ramkishan to make a false record of the statements of these witnesses. Learned Additional Sessions Judge has not clearly said that these statements were not the faithful record of the statements of the various witnesses he however appears to have been impressed by the argument of the prosecution that the Investigating Officer had introduced certain things at variance with the statements of the witnesses at the trial in their statements u/s 161 either through over-zealousness in pursuit of the difficult task of atonce trying to prove both cases as true and chellanging both the parties or under the influence of the accused Mangu's party who were faced with the more serious charge of murder. This argument of the posecution has been taken rote of in para 18 of the judgment by the learned Additional Sessions Judge. After referring to this argument of the prosecution the learned Judge observes as follows : - "it is no doubt a complicated task for the police to steer the right course in cross-cases of rioting where the accused in one case are the prosecution witnesses in the other. But if their investigation, as is suggested, gets coloured and tainted by extraneous considera tions, it only adds to the complication. In such cases, the need of the court is very much enhanced to apply stricter scrutiny to the evidence presented by both sides. " The rejection of those portions of the various witnesses before the police which were in conflict with their statements at the trial along with the above remark of the learned Additional Sessions Judge goes to show that he was influenced by the above stated argument of the prosecution that those portions of the statements where it has been said that the party of Sheobuxa went to the spot armed with lathis and with three ploughs and that Dilsukh and Binja had witnessed the fight were not the record of the statements of these witnesses but were introduced by the Investigating Officer himself due to ulterior motives. We must atonce s|ay that this view of the learned Additional Sessions Judge was very uncharitable. The police has to perform a very difficult task of detecting culprits. | Ordinarily it is to be presumed that whatever they have done was done honestly and faithfully. There should be strong reasons to show that the record prepared by the police was false and imaginary. No reasons have been shown in the present case excepting that the report is a very brief one whereas the statements of the witnesses are somewhat detailed and certain persons of the prosecution party, who have been mentioned in these statements, were not mentioned in the police report, and no mention of the ploughs of Sheobuxa's party has been made in the F. I. R. To our mind these reasons did not justify that the police statements were falsely prepared. It it well known that First Information Reports are often very brief as they have to be made in the heat of the moment in order to obtain police help at the earliest possible moment in the detection of the crime. At that time it is not expected that every detail would be given. Whenever any such details are given the courts are sometimes forced to observe that the reports were not spontaneous and were made after due deliberation. The brevity of the report was therefore no reason for holding that the record of the statements of the prosecution witnesses by the police was unreliable. Then the fact that the ploughs of Sheobuxa's party were not mentioned was also no reason for holding the statements to be false or exaggerated record. The report clearly says that six persons of Chandra's party went to the field. Obviously, it suggests that they went to plough it and does not made it unbelievable that Sheobuxa's party had taken their ploughs with them. The fact that the names of Sheobuxa, his wife and Rekha are not mentioned in the F. I. R. is also no reason for the rejection of the statements of the witnesses before the police. Even at the trial it has been stated by the prosecution witnesses that these three persons were present when the occurrence took place. If therefore there is any defect it is in the F. I. R. and not in the statements of the prosecution witnesses before the police in which all the 9 persons of Sheobuxa's party have been mentioned. The fact that it is not mentioned in the F. I. R. or in the statements of the witnesses that Chandra and his mother Jarav were going to Harsh is more a reason to disbelieve the evidence of the prosecution witnesses that these two persons were going to Harsh to join a marriage than to reject the F. I. R. or the statements of these witnesses before the police. It is common experience that sometimes the prosecution witnesses give a true story before the police when their statements are recorded immediately after the occurrence and they have no opportunity for deliberation and consultation, but as the case proceeds the parties make improvement and exaggerations in their favour. We are therefore of opinion that the prosecution evidence so far as it shows that Dilsukh and Binja were not eye-witnesses and Sheobuxa's party had not gone to the field in dispute to plough it taking lathis and ploughs and that Mst. Jarav and Chandra were going to attend the marriage party at Harsh is not believable. The question however is whether rejecting those portions of the evidence which are inconsistent with the statements of the prosecution witnesses before the police or the statements in the F. I. R. an offence of murder or any other offence against all or any of the appellants has been made out. Before discussing the evidence we might set out points for determination in this appeal. They are as follows: - (1) Whether the party of Mangu accused consisted of five or more persons? (2) Whether this party had unlawful common object within the meaning of sec. 141, I. P. C. and consequently formed an unlawful assembly? (3) Which if any of the appellants was member of that unlawful assembly? (4) Did this unlawful assembly commit any riot? (5) Which if any of the members of this unlawful assembly was armed with a deadly weapon at the time of the riot? (6) Which offence or offences if any was or were committed in prosecution of the common object of that assembly or such as the members of that assembly knew to be likely to be committed in prosecution of that object? (7) Whether an offence of murder was committed by any two or more of the appellants in furtherance of their common intention? (8) Did the appellants or any one of them commit any offence in the exercise of the right of private defence of property or person and if so did they or any of them exceed that right? Before we take up these points one by one we may say at the outset that it has been established not only by the evidence of Ladu PW2, Kalu PW3, Jaila PW4, Bhola PW 5, Doonga PW 6, Rekha PW 7, Mst. Jarav PW 8, Rameshwar PW 9 and Sheobuxa PW 10 of whom all excepting Rekha had received injuries in the fight that took place between Sheobuxa's party on one side and Mangu's (Ram-buxa's) party on the other, but it is also admitted by the defence. Therefore there does not remain the least doubt that there was fight between the two parties. It has also been proved by medical evidence that some of the members of Mangu's arty including Mangu himself received injuries. This gives additional strength to the fact that there was fight between the two parties. It is also established not only by the evidence of the above prosecution witnesses but has also been admitted by the defence that Chandra and other 8 persons of Sheobuxa's party were present at the fight. This has been admitted by the defence also. There is also the evidence of both the parties that the 5 appellants received the injuries at the fight. All the appellants excepting Ganpat were medically examined on 28th June, 1955 and injuries were found on their bodies by the medical examiner. It is therefore firmly established that nine persons of Sheobuxa's party including Chandra deceased and 4 of the party of Mangu participated in the fight. Ganpat also received injuries but his defence is that he came later on in order to intervene in the fight between the nine persons of Sheobuxa's party and 4 of Mangu's party. We would consider his case when we deal with the above points seriatim, which we now proceed to do: - (1) Whether the party of Mangu accused consisted of 5 or more persons? It has been held by the learned Additional Sessions Judge that all the accused of Mangu's party who were challenged were present at the fight. He has however acquitted all excepting the five appellants of all offences. We will therefore not go into the matter whether the accused who have been acquitted participated in the fight or not and would confine our attention only to the five appellants. It has been said just above that the prosecution evidence is unanimous that the 5 appellants were present at the fight. They had also received injuries. On behalf of the defence also it is admitted that these 4 appellants were presents at the fight. The difference between the prosecution and t|he defence is only with respect to Ganpat. The prosecution evidence is unanimous that he also participated in the fight whereas the defence of Ganpat is that he came later on in order to intervene. The prosecution evidence of course has not given out the truth when it has stated that Dilsukh and Binja were not the eye-witnesses and that all the 9 persons of Sheobuxa's party including Chandra deceased had gone to the spot with three ploughs in order to plough the field in dispute in the morning of the occurrence. In their statements before [ the police they have unanimously deposed that Binja and Dilsukh were also among the eye-witnesses and that Chandra's party consisting of 9 persons had gone to the field in dispute with three ploughs to ploughs it. It has already been stated above that the learned Additional Sessions Judge was not justified in saying that the statements recorded by the police were not the versions given by the prosecution witnesses before the police. We have disagreed with this view of the learned Additional Sessions Judge and are of opinion that the statements recorded by the police with which the prosecution witnesses were confronted were the statements given by them before the police and were not concocted by the investigating agency. But the maxim "falsus in uno, falsus in omnibus" cannot be applied to this country, It has often been seen that most of the witnesses for one party while giving out substantial truth introduce one or two falsehoods or exaggerations into their statements. If the courts were to act upon the above maxim it will be very difficult if not impossible, to decide majority of cases correctly. The courts are therefore called upon to very carefully scrutinize the evidence produced before them and separate chaff from the grain and sift out truth from falsehood. Any number of rulings may be quoted in which this principle has been laid down but we need refer only to a ruling of this Court in Bhaga Bharti vs. Sarkar (3 ). It was observed that - "if a whole body of testimony were to be rejected because the witnesses were evidently speaking untruth, in one or more particulars, it is to be feared that witnesses might always be dispensed with as in a majority of cases, the evidence of a witness may be found to be tainted with falsehood. " It was held that - "the salutary principle on which the Courts should work is that in such cases the evidence should be sifted carefully, grain separated from chaff and only that portion accepted which is found to be true and the rest rejected. Where the falsehood is merely an embroidery to a story, that would not be enough to discredit the whole of the witness's evidence. " It is of course true that in some cases it is not possible to extricate truth from falsehood and it becomes difficult for the court after applying all checks as to which portion of the statement of a witness is true and in such cases courts are compelled to reject the testimony of the witness altogether, but in some cases after applying checks the court can find out truth from falsehood and if that can be done there is no reason why that statement of the witness should not be believed about the veracity of which the court is fully satisfied. Learned Additional Sessions Judge has very carefully considered the evidence of all the prosecution eye-witnesses. He was not unmindful of the fact that all the witnesses excepting Ladu were close relations of Chandra deceased and were interested in the prosecution. Of course he has erred so far as he believed the evidence of these witnesses about the absence of Dilsukh and Binja from the scene of the occurrence at the time it took place and he has also erred in holding that it was not correct that the party of Sheobuxa went to the spot with three ploughs armed with lathis. This portion, as has been said, could not be believed in face of the statements before the police with which all these witnesses were confronted. However, so far as the fact about the persons taking part in the fight from the side of the accused is concerned the statements of all the prosecution witnesses who numbered no less then 9 have been consistent. Learned counsel for the appellants could not point out anything in the evidence of these witnesses at the trial which was not consistent with their previous statements in this respect. Ganpat also as has been said, had injuries. Therefore it cannot be doubted that he was also among the fighters on the side of Mangu. The evidence about the presence of Surja, Mangu S/o Bhura and Gopi Pandey is also consistent, but we need not examine whether they actually participated in the fight because even without them the number of the fighters on the side of Mangu was five and, therefore, if this party had unlawful object within the meaning of sec. 141, I. P. C. , it can be held to form an unlawful assembly. ;