K.D. Sharma, J. - (1.) THIS is an application -in -revision filed by Nava, Hamira, Chela and Poonama convicts against the judgment of the Sessions Judge, Balotra, dated 24th January, 1976, confirming the judgment of the Chief Judicial Magistrate, Banner, by which Hamira was convicted under Sec. 326, I.P.C. and the remaining three petitioners, namely, Nava, Chela and Poonama were convicted under Sec. 326/34, I P C and each of them was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 200/ -, in default of payment of fine to further suffer rigorous imprisonment for two months. The prosecution case against the petitioners was as follows: - Mst. Debo daughter of Lumbo was married to Nava, petitioner, in her childhood. After some years, she began to live with husband Nava in the latter's house. Later on, she developed illicit intimacy with one Sona and one day ran away with him. Her husband Nava reported the matter to the police and recovered Mst. Debo from the possession of Sona with the aid of police. After her recovery Mst. Debo was produced the before Deputy Superintendent of Police, Balotra. Mst. Debo expressed her desire before the Deputy Superintendent of Police to go and live with her paramour Sona. The petitioners were annoyed with Mst. Debo on this score. Some how or the other Mst. Debo was brought by Nava, petitioner, in his house, wherein she was detained and compelled to live with him. In the night between 13th and 14th May, 1974, Mst. Debo was being asleep on a cot in a 'Oria' of the house of her husband Nava. At that time. Hamira and Chela petitioners approached her, gagged her mouth, beat her with lathis and lifted her cot and brought her on the same cot to another place insider the home of Nava. From there she was dragged to an open place which lay at the distance of about 600 Paundas near a tree of Bavali, where she was thrown on the ground. Chela petitioner sat on her breasts while Poonama caught hold of her hands and Hamira cut her nose and ears with a knife. She was beaten with hands and lathis also by Hamira, Chela and Nava petitioners As a result of the cutting of the nose and ears Mst. Debo's wounds bled profusely Blood fell on the place of occurrence and on her clothes, which she was wearing on her body. Besides, her bangles were broken and her silver ear -rings also fell on the spot. Then all the four petitioners forcibly made Debo to sit on their lathis for the purpose of taking her to her father's house situated in the same village. The petitioners brought her in front of the house of her father and left her there after calling out her mother Navi and telling her in a loud tone 'TERI MAA KO SAMBHAL' (take care of your mother). After leaving Mst. Debo in front of the house of her father all the four petitioners ran away from there. Mst. Debo's mother Mst. Navi saw the miserable condition of her daughter. She rushed to make a report to the Sarpanch of the village, namely, Mana Ram about the incident. On receiving the report. Mana Ram and one Dharma Ram came to the house of Mst. Debo's father Lumba and saw Mst. Debo lying injured. Lumba was not present in his house. He had gone to some other village for some work. On the next day in the morning he returned to his house and came to know of all that had happened to his daughter. Lumba then carried Mst. Debo to police -station, Gudha Malani, in a bullock -cart along with Mana Ram, Sarpanch. Ratan Singh. Incharge of the Police Station, recorded the statement of Mst. Debo and then registered a criminal case on its basis, under Sec. 323, 324, 147 and 326/149, I.P.C. and deputed Prem Singh, Head Constable to make the usual investigation into the matter. Prem Singh took the blood stained clothes of Mst. Debo into his possession, prepared a site -plan, site -inspection memo and arrested Chela and Hamira petitioner. He recovered lathis at the instance of Chela and Hamira. Upon inspection of the site, he, found places of broken bangles and silver 'Bedlas' of Mst. Debo lying on the piece, of occurrence. He took these articles into his possession in the presence of Motbirs. Then he arrested Nava petitioner who produced before him one blood -stained knife and the skin of Debo's nose. The knife and the skin were taken into possession by Ratan Singh. Mst. Debo was sent for medical examination to Dr Bhanwar Lal, at Primary Health Centre, Gudha Malani. The Doctor examined the body of Mst. Debo on 14th May, 1974, and found the following injuries on her person: 1. an incised cut -wound starting from the lower border of the bridge of the nose running downwards upto the lower end of the nose dividing half of the nose; 2. The upper end was 2 cms. broad, lower end was 2 cms. broad and 1 cm deep in the middle and 2 cms. deep at the right opening of the nose 1 cm. deep at the left opening of the nose; 3. an incised wound 3 cms. x cms over the anterior parts of the legs 15 cms, above the right ankle joint running from above downwards; 4. an incised cut wound over the outer border of the left ear in the upper 1/3rd part of the ear; 5. a cut -wound 1/2 cm. broad x 3 cms. long over the upper part of the right ear beginning from the upper anterior ends of the right ear; 6. swelling about 3 cms. x 3 cms. over the posterior aspect of the skull on the middle of the occipital region; 7. four scratches on the region of the left lumber; 8. a contusion 3 cms. x 2 cms. over the left buttock; 9. 5 scratches over the left side of the abdomen running above; 10. two scratches each 5 cms. x 1/2 cm. downwards over the lower part of the posterior aspect of the thorax running medial to lateral aspect; 11. a scratch 17 cms. x 5 cms over the upper part of the right hand extending from shoulder joint to lower 1/3rd of the upper arm on the lateral aspect; 12. an abrasion 7 cms. x 3 cms. over the posterior aspect of the middle 1/3rd of the right hand; 13. a contusion 10 cms. x 1 1/2 cms. over the lateral region of the upper 1/3rd of the left leg running anterior to posterior aspect. Out of these injuries, injury No. 1 was grievous caused by a sharp -edged weapon, injuries Nos. 2, 3 and 4 were simple caused by a sharp -edged weapon and rest of the injuries were simple in nature caused by hard and blunt weapon. The duration of the injuries was 12 to 15 hours. Debo was admitted in the hospital and remained there for long time on account of her nose being cut and her face was permanently disfigured. The Investigating Officer collected other necessary evidence in the case and, on completion of investigation, filed a charge -sheet against the petitioners in the court of Chief Judicial Magistrate, Barmer, under Ss. 326, 324 and 323/34. I.P.C. The Chief Judicial Magistrate tried the petitioners and found them guilty of the aforesaid offences. He, accordingly, convicted and sentenced them in the manner stated above. Aggrieved by these convictions and sentences, the petitioners preferred an appeal in the court of the Sessions Judge, Balotra, but their appeal was dismissed and their convictions and sentences were upheld. The petitioners have, therefore, come -up in this court in revision.
(2.) I have carefully gone through the record of the trial court and heard Mr. Bhagwati Prasad appearing on behalf of the petitioner and Mr. K.C. Bhandari, Public Prosecutor, for the State. The first contention put forward before me by Mr. Bhagwati Prasad, learned counsel for the petitioners, is that, both the courts below committed an error in convicting the petitioners on the basis of the evidence led by the prosecution in support of its case. According to the learned counsel, the prosecution version about the occurrence given out in the first information report was given a complete go by at the trial and a wholly new story was introduced in as much as even the place of occurrence was changed. The above contention has no force. Upon perusal of the first information report, it is clear that Mst. Debo claimed to have been sleeping on a cot outside an 'Ora', i.e. room of her husband's residential house immediately prior the incident. At about mid -night her husband's brother Dhanna came to her cot and sat on her breasts. She raised a hue and cry, which attracted Chela son of Sardra to that place Chela asked her to keep quiet. Then Dhanna went away from there and she slept again. After sometime, Hamira and Chela, petitioners, lifted her cot on which she was sleeping and then took her inside the room. Mst. Debo woke up but these persons pressed her mouth with their hands. In the 'Ora' she was beaten by Hamira and Chela with sticks. Hamira gave her two lathi blows, one fell on her left leg and the other fell on the left thigh. Chela also struck a lathi blow on her right leg. Then both of them dragged her out of the 'Ora' and brought her in the open Chowk, where Chela openly asked his companions to cut her nose. Thereafter Virma, Ganga Das Dhanna, Nava and Poonma assembled there. Chela caught her both hands and placed his knees on her chest. She raised an outcry, which attracted Gajja to the place of occurrence, but Gajja was not allowed by the miscreants to come near her. Then Poonma caught, hold of her head, Ganga Das caught held of her legs while Hamira cut her nose with a knife. Then her husband Nava twisted her right hand and gave her fist blows. All the miscreants then dragged her out of the 'Ora' and took her to an open place where her both the ears were cut by Hamira with a knife. Then she was forcibly carried on lathis to the house of her father.
(3.) IN her statement also at the trial she clearly stated that her cot on which she was lying asleep was lifted -up and taken inside the 'Ora' by Hamira and Chela, who thereafter pressed her mouth and beat her with lathis. She further stated that Chela gave her two lathi blows on her left leg and another on her left thigh. Hamira also gave her a lathi blow which fell on her right leg. At the trial also she further stated that she was dragged out of the 'Ora' by Poonma, Hamira, Chela and Nava and brought to an open place which lay at a distance of about 300 paundas from her husband's house According to her version at the trial, her nose and ears were cut by Hamira at that place. She did not omit to state that before her nose and ears were cut by Hamira, Poonma had caught hold of her head and Chela and sat upon her breast, and thereafter she was manhandled and beaten had forcibly carried to her father's house. The only difference between her version given in the first information report and at the trial is that in the first information report she stated that her nose was cut by Hamira in the open Chowk and her ears were cut by him at an open place which lay at some distance from the house of her husband, while in her statement at the trial she stated that her nose and ears were cut by Hamira with a knife at an open place near a 'Bavali' tree which lay at a distance of about 500 Paunds from the Dhani of her husband. She was confronted with and contradicted by relevant portions of the first information report. When confronted, she stated that her nose and ears were not cut at different places but at one place. Mr. Bhagwati Prasad, learned counsel for the petitioners, has laid much emphasis on the referred to above discrepancy between her versions which she gave on different occasions about the occurrence. According to him, the prosecution cannot be permitted to reconstruct an altogether a new story which does not find place in the first information report and in this connection he referred me to Dayaji Ram vs. The State, ILR (1951) I Raj 806, wherein it was observed that if a story given at the trial differs in essential particulars from the one given in the first information report, it is regarded highly suspicious and the accused is entitled to the benefit of doubt on the basis of such discrepancies. Mr. Bhagwati Prasad relied upon an authority of the Supreme Court also reported in Sadhu Singh vs. The State of PEPSU : AIR 1954 SC 271, wherein the following observations were made in para 12 at page 276: - "It seems to us that the High Court was in error in thinking that there was not a single difference between the statements made by the witnesses in the first information report and the statements made at the trial, which went to the root of the case. As above pointed out, the whole version as to the nature and character of the act of the accused had been completely changed. An act which on the facts stated in the first information report and on the statements made to the police may well be regarded either accidental or rash and negligent, has been deliberately made to look like an act of deliberate murder. If such a difference does not go to the root of the case it is difficult to conceive what else can fall within that class of cases. We are therefore of the opinion that the High Court was clearly in error in holding that the accused was guilty of the offence of murder under sec. 302, IPC." He cited another case Devilal vs. State of Rajasthan : AIR 1971 SC 1444, wherein it was observed by their Lordships as follows: - "In the present case, two of the accused are held both by the trial court and by the High Court not to have been anywhere near the scene of occurrence. The entire prosecution case was that those two persons pointed to the enemies, namely, Motaram and his son and nephew. The further prosecution case was that those two persons gave the order to the accused to attack them. Those two persons opened the gun fire. Therefore, when those two persons are found both by the Sessions Court and the High Court not to have been present the whole prosecution case changes colour and becomes unworthy of belief." In the instant case, as indicated above, the story given by Mst. Debo at the trial does not differ in essential particulars from the one given by her in the first information report. The difference between her versions in the first information report and at the trial pointed out by the learned counsel for the petitioners does not go to the root of the case and is not of material significance. It cannot be said that the prosecution has reconstructed a new case to the prejudice of the petitioners Mst. Debo was sleeping on a cot immediately before the incident started. The cot on which she was sleeping was lifted -up and was taken inside an 'Ora' where she was manhandled and badly beaten. Her mouth was pressed and she was not in a position to raise a hue and cry. She was dragged out of the 'Ora' to an open Chowk and from there she was forcibly taken to an open place, which lay at some distance from the house of her husband. In this state of affairs it is probable that she might not have exactly remembered at which place her nose was cut and where her ears were cut by the petitioners. Her entire testimony cannot be discarded merely on the ground of this minor discrepancy about the place where her nose was cut. The authorities cited by the learned counsel for the petitioners are, therefore, distinguishable on the facts of this case. Another contradiction pointed out by Mr. Bhagwati Prasad, learned counsel for the petitioners, in the versions given out by Mst. Debo is that in the first information report she implicated Birma, Ganga Das and Dhanna in the commission of the crime apart from the four petitioners, but in her statement at the trail she even denied the presence of these three persons at the place of occurrence. Likewise, in her statement at the trail she denied the presence of her brother Gajja at the time and place of occurrence, while in the first information report she clearly mentioned that Gajja had come to the place of occurrence on hearing her cries. Of course in her first information reports Mst. Debo implicated Birma, Ganga Das and Dhanna in the commission of the crime and ascribed some overt acts to them also, but in her statement at the trial she did not say a single word against them. She even denied their presence at the time and, place of occurrence but on account of this contradiction her evidence against the four petitioners cannot be disbelieved, especially when it finds corroboration from the independent evidence of her mother. The version given out by Mst. Debo at the trial is not entirely false or without foundation. The Court in such a case has to make an effort to get at the truth by applying the principle of separating grain from chaff and it cannot reject the whole of her evidence as unworthy of acceptance, because it is exaggerated or false in some respects. No importance can be attached to the discrepancy with regard to the presence of her brother Gajja at the time and place of occurrence, because Gajja in his statement did not say that he was present near the place of occurrence and was prevented from going to his sister by the four petitioners.;