K.D. Sharma, J. - (1.) This appeal filed by Bhagirath and Suraj Mal is directed against the judgment of the Additional Sessions Judge No. 2, Jodhpur, dated 29th September, 1976, by which Bhagirath appellant was convicted under Ss. 326/34 and 324/34, IPC and 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 three months on the first count and on the second charge to undergo rigorous imprisonment for one year and to pay a fine of Rs. 200/ -, in default of payment of fine to further suffer rigorous imprisonment for three months, while Suraj Mal appellant was convicted under Ss. 326 and 324, IPC and 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 three months on the first charge and on the second to undergo rigorous imprisonment for one year and to pay a fine of Rs. 200/ -, in default of payment of fine to suffer further rigorous imprisonment for three months. The trial Judge convicted Bhagirath under S. 323, IPC also but he did not pass my sentence upon him for the offence of voluntarily causing simple hurt. The prosecution case against both the appellants was as follows: The two appellants and Yudhister complainant live in Vyas Colony, Jodhpur. The house of the appellants is situated at a distance of about 400 yards from that of Yudhister. Two months prior to this occurrence the complainant's wife was coming to the colony along with other women. In the way these women were molested by the two appellants. Yudhister saw the two appellants teasing the women. He advised the appellants not to tease or molest women of the locality as eve -teasing was repugnant to their culture. The appellants resented the advice of Yudhister and threatened him with dire consequences in the future. After this incident the appellants began to entertain grudge against Yudhister. On 2nd March, 1976, at about 8 or 8:30 a.m. Yudhister had gone to answer the call of nature inside the boundary wall of Mool Singh near Physical Training Centre. When he got -up after passing stools, he saw both the appellants coming to him having a naked sword and a lathi in their hands. As soon as they came near him, Bhagirath instigated Suraj Mal to kill Yudhister. Suraj Mal, thereupon, began to strike blows on the body of Yudhister with a sword which he had in his hand at that time. Bhagirath also joined him in attacking Yudhister. He dealt several blows on his body with his lathi Yudhister tried his level best to save himself. He ran away from there and reached tempo -stand. He boarded tempo -rickshaw and rushed to the Police Lines Control Room. From the Police Lines he was taken to Mahatma Gandhi Hospital, Jodhpur where his injuries were examined by Dr. R.K. Gehlot. The injuries found on his body at the time of medical examination were as follows: 1. Incised wound 2.5 cm. x 0.4 cm. into full thickness of the ear at the junction of upper 1/3rd and lower 2/3rds of pinna of left ear. Incised wound on left mastoid region 6.0 cm. x 5 cm. into scalp deep, which was obliquely placed: 2. Incised wound 0.7 cm. x 0.4 cm. into skin deep on the left nostril with incised wound over the left side of upper lid 0.5 cm. x 0.5 cm. into skin deep; 3. Incised wound 11.5 cm. x 2.5 cm. x muscle deep inverted 'V' shaped on the antero -lateral aspect of right side of neck at its upper 1/3rd with muscle fibres of pletijoma were cut; 4. Incised wound 14.0 cm. x 2.6 cm. x muscle deep on the antero -lateral aspect of the left arm at its upper 3/4th depth increasing from below upward Wound was 'U' shaped. Fibres of the deltoid muscle were partially cut; 5. Incised wound 15.0 cm. x 8 cm. on the postero -medial aspect of left elbow region. The joint had been exposed and the medial epicondyle of the humerus had been chopped off. Skin fascia of varying depth over the wound were missing; 6. Incised wound 6 cm. x 0.5 cm. x tend deep on the femur aspect of left hand at about its middle horizontally placed from about mid -line extending medially; 7. Incised wound (V) shaped 6 cm. x 0.5 cm. x tendon deep in continuity of injury No. 6 from its medial end extending upwards and laterally reaching upto base of ring -finger on the palmer aspect; 8. Abrasion 0.4 cm. linear on the palmer aspect of left little finger at its proximal phalanx horizontally placed; 9. There was incised wound 1.5 cm. x 0.2 cm. x skin deep on the palmer and middle aspect of the left little finger at its middle phalanx; 10. Incised wound 2.8 cm; x 0.5 cm. x skin to muscle deep on the palmer aspect of left middle finger at its proximal phalanx extending upwards from medial side to lateral side; 11. Incised wound (r) shaped 2.5 cm. x 0.4 cm, x muscle deep on the palmer aspect of left middle finger at its middle phalanx; 12. Incised wound inverted 'U' shaped 4 cm. x.3 cm. x skin deep to muscle deep increasing depth from distal to proximal side on the palmer aspect of left index finger from middle of middle phalanx to base of proximal phalanx; 13. Incised wound 9.0 cm. x 0.5 cm. x tendon deep on the palmer aspect of right hand about 1 cm. below the base of finger horizontally placed; 14. Incised small wound on the palmer aspect of distal phalanx of all the fingers of right hand measuring about 0.5 cm. to 0.7 cm x 0.2 cm. x skin deep horizontally placed; 15. Incised wound 4.8 cm. x 1.4 cm x skin deep on the right axilla; 16. Incised wound 2.0 cm x 0.2 cm. x skin deep on the dorsal aspect of penis at its proximal 1/3rd horizontally placed; 17. Incised wound 1.8 cm. x 0.2 cm. x skin deep on the right lateral aspect of scrotum; All the injuries, except injury No. 5, were simple in nature and caused by a sharp edged weapon. Injury No. 5 was grievous in the opinion of the Medical Officer. The duration of these injuries was within 4 to 6 hours of their medical examination, The Doctor X -rayed injury No. 5 and found that in the left elbow medial epicondyle of the left humerus wall was chopped off. According to Dr. R.K. Gehlot the cumulative effect of all the 17 injuries was dangerous to life of the injured as all the injuries cumulatively were sufficient to cause death in the ordinary course of nature without medical aid. A report of this incident was lodged by Yudhister on 2nd March, 1976 at 11:45 a.m. On the basis of the said report a criminal case under S. 307, IPC was registered. The police made usual investigation into the case and arrested the two appellants. After his arrest Suraj Mal appellant gave the Station House Officer; Police Station Shastri Nagar an information that he had concealed one sword in his court yard in a pit dug by him after removing earth and that he would get it recovered at his instance. The Station House Officer recorded the above information in a memo Ex. 6 and, later on, recovered the sword from the courtyard of the house of Suraj Mal at the latter's instance and in pursuance of his referred to above information. Suraj Mal dug the pit and took out one sword from it, which he gave to the Station House Officer. AS the sword was suspected to have blood -stains on it, it was seized and sealed by the Station House Officer in the presence of Motbirs. The Station House Officer took blood -stained clothes of the injured also into his possession and sent them along with the sword to the Serologist and the Chemical Examiner, Government of Rajasthan, for examination, who detected human blood on these articles. The Station House Officer collected other necessary evidence in the case and eventually submitted a charge -sheet against both the appellants in the court of the Additional Munsiff -cum Judicial Magistrate No. 1, Jodhpur. The learned Judicial Magistrate perused the papers submitted by the police along with the challan and, upon finding a prima -facie case exclusively triable by the court of Sessions, committed the appellants to the court of the Sessions Judge, Jodhpur, for offences under Ss. 307, 326, 324, IPC, who transferred it to the court of the Additional Sessions Judge No. 2, Jodhpur, for disposal according to law. The Additional Sessions Judge No. 2, Jodhpur, tried Suraj Mal for offences punishable under Ss. 307, 326, 324, IPC and Bhagirath appellant under Ss. 307, 326/34 and 323, IPC. As too case beyond reasonable doubt was made out under Sec. 307, IPC against any appellant, the trial Judge acquitted the appellants of that offence and convicted and sentenced them as indicated above. Aggrieved by their conviction and sentences, the appellants have preferred this appeal.
(2.) I have carefully gone through the record and heard Mr. K.C. Gaur for the appellants and Mr. K.C. Bhandari, Public Prosecutor, for the State. It has been contended on behalf of the appellants that the trial Judge committed an error in convicting Bhagirath and Surajmal appellants u/s. 326/34, 324/34, and 326 and 324, IPC respectively without there being any reliable evidence from the side of the prosecution against them. To appreciate the above contention put forward before me by Mr. K.C. Gaur, learned counsel for the appellants, in the first place, I have perused the entire evidence led by the prosecution in support of its case, I take -up the case of Bhagirath appellant. The role ascribed to this appellant by the eye witnesses and the injured is that he actively participated in the assault made upon Yudhister at the time and place alleged by the prosecution. According to the version given out by the eye -witnesses, Bhagirath had a lathi in his hand with which he struck several blows on the body of Yudhister. The injured also stated in his deposition that he had received 2 or 3 blows on his person at the hands of Bhagirath. He claimed to have sustained injuries on his hips as a result of the lathi blows. He further stated that after he had received two blows with a sword at the hands of Suraj Mal, he was assaulted by Bhagirath with a lathi, but he warded off the two lathi blows by quick movements of his body. Curiously enough, the evidence of the eye -witnesses Mahesh Chandra PW 10 and Sohanlal PW 11 and that of Yudhister, injured, is directly in conflict with the medical evidence on this point. It is evident from the statement of Mr. R.K. Gehlot that no injury caused by a blunt weapon like a lathi was found on the body of Yudhister at the time of his medical examination. If Bhagirath had hit Yudhister many a time with a lathi, the latter would have surely sustained some such injuries as abrasions, bruises or contusions on his body, Mahesh Chandra PW 10 even went to the length of saying that he saw Bhagirath wielding a lathi by his both hands and inflicting blows with it on the body of Yudhister. Sohanlal PW 11 also stated in his examination that he had seen Bhagirath appellant beating the injured and lathi blows inflicted by Bhagirath fell on the shoulder and thigh of the injured. As stated earlier, there was not a single injury on any part of the body of Yudhister which could be caused by any blunt -weapon. The injured even claimed to have shown an injury on his hip to the Doctor which, according to him, was caused by Bhagirath with a lathi. It is not understandable that the Doctor deliberately omitted to mention the injuries caused to the body of Yudhister with a lathi in his injury report even though the injuries were shown to him by the injured at the time of his medical examination. There is nothing on the record that the Medical Officer was prejudiced against the injured or was hostile to him for any reason. The medical evidence is not open to any doubt or suspicion on this point. Hence, the oral testimony of the injured and the eye -witnesses, when tested in the light of the medical evidence, does not exclude the possibility of false implication of Bhagirath in this case. Reliance in this connection may be placed an authority of the Supreme Court Ram Narain vs. State of Punjab : AIR 1975 SC 1127 wherein the following observations were made by their Lordships in para 14 thereof on the point in issue: - "Where the evidence of the witnesses for the prosecution is totally inconsistent with medical evidence of the evidence of the ballistic expert, this is a most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case. In Mohinder Singh vs. The State, : 1950 SCR 821 : AIR 1953 SC 415 : 1953 Cri. LJ 1761) this Court observed in similar circumstances as follows: - "In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle." It is obvious that where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. While appreciating the evidence of the, witnesses, the High Court does not appear to have considered this important aspect, but readily accepted the prosecution case without noticing that the evidence of the eye -witnesses in the Court was a belated attempt to improve their testimony and bring the same in line with the Doctor's evidence with a view to support an incorrect case." It will not be out of place to mention that the injured clearly stated in his first information report that Bhagirath had also beaten him with lathis but in his statement at the trial he made an effort to improve his testimony by stating that the two lathi blows armed on his body by Bhagirath did not hit him, because he succeeded in warding them of by quickly moving his body. The injured presumably made an attempt to change his earliest testimony with a view to avoid its conflict with the medical evidence and to convince the court that Bhagirath tried his best to hit him with a lathi but the lathi blows were warded off by him. Such an attempt makes his evidence unreliable so far as it relates to the participation of Bhagirath in the commission of the crime.
(3.) Mr. K.C. Bhandari, learned Public Prosecutor, however, vehemently contended that in the course of the assault Bhagirath had many a time instigated the other appellant Suraj Mal to kill the injured and that he was, therefore, guilty under Sec. 326/114, I.P.C. even if no case under Sec. 326/34 and 324/34, IPC is held to have been made out against him. The above contention is devoid of substance, as there is no satisfactory evidence on the record to show that Suraj Mal had inflicted blows on the body of Yudhister with a sword at the instigation of Bhagirath From a bare perusal of the statement of Yudhister at the trial it appears that, as soon as, the appellants came to him, Bhagirath instigated Suraj Mal to finish Yudhister as he was in their grip. Thereupon Suraj Mal struck blows on his body with a sword. It is further evident from the statement of Yudhister that, thereafter, Bhagirath inflicted two or three lathi blows on him and again instigated Suraj Mal to kill him. Thereupon, Suraj Mal inflicted further blows on the body of Yudhister with a sword. Then again Bhagirath told Suraj Mal that Yudhister might not be allowed to run away and he should be finished. In this manner, Yudhister alleged in his statement at the trial that Bhagirath had thrice instigated Suraj Mal to kill him. Yudhister was cross examined on this point by the defence. He was confronted with and contradicted by his previous statement Ex. P.12 which he gave before the police and wherein did not state that Bhagirath had thrice instigated Suraj Mal to finish him. When confronted with his statement Ex. P.12 Yudhister could not afford any reasonable or convincing explanation for the material omission in his two statements. He merely stated that he had informed the police that Surajmal was instigated thrice or four times by Bhagirath in the course of the assault made on him. On further cross -examination, Yudhister admitted that the statement Ex. P.12 given by him on this point before the police was correct. Hence it is clear that Yudhister made improvements on his earliest version to convince the court that Bhagirath also actively participated along with Suraj Mal in the assault made upon him. There is another circumstance which throws considerable doubt on the story of instigation offered by Bhagirath. In the first information report it was not mentioned that before Suraj Mal opened the assault, he was instigated by Bhagirath. In the first information report Yudhister clearly stated that, as soon as, the appellants approached him, Surajmal armed a sword blow on his shoulder but the blow fell on his hands, as he had raised them toward it off. In this manner, the evidence of Yudhister that the assault made on him by Suraj Mal was at the instance of Bhagirath is highly discrepant. Apart from this, the eye -witnesses to the occurrence, namely, Mahesh Chandra and Sohan Lal have not corroborated the testimony of Yudhister on this point. They did not say in their depositions that Bhagirath had been instigating Suraj Mal to kill Yudhister. Consequently, I am of the view that the prosecution could not prove beyond reasonable doubt that Bhagirath instigated Suraj Mal or participated in the assault made on Yudhister by Suraj Mal and caused injuries to him with a lathi.;