SHRIMAL, J. - (1.) THERE were two rival groups in village Jaghina one of which was headed by Heera Singh and the other by Lotan Singh, acted as guiding force of the other Heera Singh attached to Bhagor Jat community, whereas Lotan Singh was connected with Sogaris Jats. THERE is no dispute that there was deep seated malicious prolonged hostility between the two groups. They were also involved in protracted litigation. On January 7, 1971 at about 8. 00 a. m. five members of the accused party sustained injuries in a scuffle. The severs hurts caused to Karan Singh were proved to be fatal as a result whereof he died in the hospital 8 days after the accurrence. 11 persons of the complainant's group also sustained injuries in the same incident. The total number of injuries sustained by them went upto 69 The injuries suggest that both the sides must have been equipped with such as spears, lathis and sharp edged weapons. Two reports were lodged with the Police Station Kotwali, Bharatpur, one made by Heera Singh on which emerged in case No. 3 of the 1971 registered against 29 persons including the appellants.
(2.) THE case disclosed in the first information report. Ex P/5, lodge 1 by Heera Singh, is that on the fateful day (i. e on January 7,1971) the informant took 7 or 8 persons on the tube well of Shivram to prod tractor for drawing out water from the well. After the tractor began working, Shivram and his son got themselves engaged in irrigating the standing crop. Soon after the accused having formed an unlawful assembly and arming themselves with lathis, spears and sharp edged weapons came on the tube well of Shivram THEy made violent onslaught with persistence upon the complainant and inflicted a number of injuries on their persons As many as 69 injuries were caused to them Samandar Singh, Tej Singh and Gordhan Singh tried to rescue them, but they too were not spaced. As many as 11 persons of complainant's party were injured. On the information lodged by the opposite camp, case No. 4 of 1971 was registered. THE report gave a conflicting version. After completing investigation in case No 3 of 1971 a challan against 28 persons was submitted to the Court of Additional Munsif Magistrate, Bharatpur. Learned Magistrate, after holding inquiry in accordance with the provisions of section 207-A Cr. P. C. , 1898, committed all the accused to take trial in the court of Sessions Judge, Bharatpur on charges under Sections 147,307/149, 326/149 and 324 I. P. C. The accused pleaded not guilty to the indictments. The prosecution examined 17 witnesses in support of their case Of these witnesses, 11 persons namely, PW 1 Heera Singh, PW 2 Sadan Singh, PW 3 Girraj Singh, PW 5 Roop Singh, PW 6 Mohan Singh, PW 8 Gordhan Singh, PW 10 Janak Singh, PW 11 Samandar Singh, PW 12 Tej Singh, PW 13 Jagan Singh and PW 15 Kishan Singh are the injured eye witness of the occurrence, PW 16 Nihal Singh was also an eye witness of the incident. PW 9 Manjiram and PW 17 Sriram Verma were the formal witnesses, who investigated the case. The depositions of Dr. D. P. Mishra and Dr. M N. Saxena recorded by the committing court were given in evidence in that rial court in accordance with the provisions of Section 509 Cr. P. C. , 1896. They are marked as Exs. P/6 and P/31 respectively. On the requisition of the Medical Jurist, General Hospital, Bharatpur Dr. M N. Saxena, Radiologist conducted X-Ray examination of the injured. The accused denied their complicity in the crime and asserted that they had been falsely implicated because of the prolonged series of conflicts and bitter animosity and rescour. Some of the accused pleaded that the complainant's party comprising of 15 or 16 persons assaulted Karan Singh on his field near Gablawala well. They endeavoured to rescue him, but they too were not spared. In defence they examined six witness, including D W. 6 Dr. D. P. Mishra, who had examined the injuries sustained by the accused. Learned Sessions Judge, Bharatpur held that both the parties had sustained injuries in the course of the same occurrence. He also concluded chat the incident had not taken place on or near the tuba well of Shivram as alleged by the prosecution. The court ascertained that the field of Vijai Singh (i. e. fields Nos. 51 and 52 as shown in the site plan Ex. P/3) were the actual scene of crime. The court further reached the conclusion that the members of the complainant party were also equipped with arms. According to the trial court it is incredible that almost all the witnesses would snatch arms from the accused persons and would in flict injuries on them. Getting support from the various contradictions appearing in the statements of the eye-witness, learned judge held that the accused Lotan Singh and Sheru alias Sher Singh were innocent. They were consequently acquitted As regards the other accused, learned Judge held that their belligerent notion resulted in the numerous injuries causad to the other party's personnel. It was a predetermined attack. He accordingly convicted and sentenced the appellants as under: - **** TABLE **** 1. Chhitar Singh u/s 307 IPC 5 years' R. I. and a fine of Rs. 500/- u/s 148 IPC 2 years' R. I. u/s 326/149 IPC 2 years' R. I. 2. Pauran Singh u/s 326 IPC 4 years' R. I. and a fine of Rs. 300/- u/s 148 IPC 2 years' R. I. u/s 307/149 IPC 2 years' R. I. 3. Basudeo, ) u/s 324 IPC 3 years' R. I and a fine of ) Rs 200/ each. 4. Sheshpal, ) u/s 148 IPC 2 years' R. I. each. ) 5. Karan Singh, ) u/s 307/149 IPC 2 years' R. I. each. ) 6. Devi Singh, ) u/s 326/149 IPC 2 years' R. I. each. ) 7.Kishan Singh, ) 8.Gang a Singh, ) 9.Prakash, ) 10.Babu Singh, ) 11.Diwan, ) 12.Shiv Lal, ) u/s 323 IPC 1 year's R. I. and a fine of ) Rs. 100/- each. 13.Pyarey Lal, ) 14 Dharmi & ) Dharam Singh,) 15. Padam Singh, ) u/s 147 IPC 2 years' R I. each. 16. Chbiddi, ) u/s 307/149 2 years' R. I. each. 17. Hari Singh, ) IPC. 18. Hazari, ) 19. Mahendra Singh) u/s 326/149 2 years' R. I. each. 20. Bhagwan Singh,) I. P. C. 21. Brijlal @ Birji, ) 22. Badan Singh @ ) Badnij ) 23. Bhimsen @ ) " Bhima, ) 24. Ranji Lal, ) 25. Nathi Singh, ) 26. Jangalia Singh,) Aggrieved by the above verdict the convicted accused-appellants have challenged their conviction and sentence by this appeal. Mr. C. L. Agarwal assisted by Mrs. Renu Chatterjes has urged that there are certain preponderant or outstanding features in this case, which are to throw genuine doubt on the prosecution case as whole. It has been urged that the prosecution witnesses have not deposed true version of the occurence. They have changed the location of the incident. The evidence of this case, counsel adds, is of a partisan character on which no reliance should have been placed. The only independent witness examined is PW 4 Devi Singh, who has not supported the prosecution story. He has rather promoted the defence plea that the fight had actually taken place near the well, known as Gulabwala, on the field where mustard crop was standing. The eye witnesses examined in this case on behalf of the prosecution are highly unscrupulous and unreliable. The evidence pertaining to the acquitted accused cannot be distinguished from that which relates to the connected culprits.
(3.) MR. M. I, Khan, learned Public Prosecutor appearing on behalf of the State, supports the conviction of the accused. He contends that from the long standing animosity between the two rival groups it could safely be inferred that both the parties were predetermined to have trial of strength. Some members of the appallants' party armed with deadly weapons lay in ambush in the mus-tared field. Rest of them came from the village. The accused came after making full preparation for a fight. The irresistible inference would be that their intention was to cause injuries to the members of the other party. They indubitably constituted an unlawful assembly and the injuries inflicted on the members of the complainant party, were caused in furtherance of the common object. The accused, therefore, are individually a? d constructively liable for the crimes alleged to have been committed. In support of his contention learned Public Pro-secuter placed reliance on Kartar Singh vs. State of Punjab (1 ). He also argues that it is a case of a free fight. He categorises the free fight under the following two heads; (1) where a mutual conflict develops and there is no reliable and acceptable evidence as to how it had casued and at whose instance Such a case would be one of a sudden fight. In a case of this nature each individual accused could be held responsible for the injuries caused by him; and (ii) where a free fight is the result of a pre planned preparation and attack. In such a case all the persons participating in the occurrence would be held vicariously liable. The learned counsel added that the case in hand falls into the second category. We have given earnest considerations to the rival contentions of the parties, perused the record and examined it in light of the criticism levelled by the learned counsel appearing on behelf of both the parties From the acquittal of the two accused Lotan Singh and Shera alias Sher Singh, against which the State has not filed any appeal, we will proceed on the assumption that the prosecution version regarding exhortation alleged to have been made by these two accused at the time of assault has not been substantiated and the account of the occurrence given by the prosecution witnesses to that extant is apparently untrue. A perusal of the first information report Ex. P/3 shows that it had been lodged with the Police Station on January 7, 1971 at 3:30 pm i. e. after about seven hours and a half of the occurrence. As had been observed by the Supreme Court in Thulia Kali vs. The State of Tamil Nadu (2) delay in first information report is fatal to the prosecution It is an extremely vital and valuable piece of evidence from the stand point of the accused. The first information report also does not bear any endorsement as to when it reached the Court of learned Magistrate in accordance with the provisions of Section 187, Cr. P. C. , 1898. There is also significant different version given by the witnesses in the Court vis-a-vis disclosed in the first information report. Non mention of the injuries received by some of the accused in the first information report is consequential and vital. In the first information report it has been mentioned that members of the accused party went to the field of Shivram and assaulted Roopa, Girraj Singh, Mohan Singh and others, who ran to and fro to be defended from attack or injury. Heera Singh, Shivram and Ghanshyam Singh also left the tractor and rushed for life is the opposite direction to seek shelter and got themselves hidden in the neighbouring fields The eye-witnesse examined on behalf of the prosecution except PW 4 Devi Singh have on the contrary stated that Karan Singh attempted a blow with a spear on Shivram who then snatched away the spear from his hand and inflicted three blows on his person. This suggests an infallible and positive improvement in the statements of the prosecution witnesses. Such an account of the event, it appears has been introduced at the stage of the trial just to explain the fatal injuries sustained by Karan Singh (since deceased) in the course of the same incident. Shivram has also deliberately been assigned the role of assaulting Karan Singh, because by the time the prosecution witnesses could be examined in the Court, Shivram had already expired. Learned Sessions Judge, there is no manner of doubt, correctly held that the fight did not take place on or near Shivram's tube-well Had the incident occurred on Shivram's tube well, Shivram, his son Ghanshyam Singh and Heera Singh would not have been spared. The statement of the investigating officer reveals that no marks of blood marks were discovered in the field of Shivram. In an occurrence where five persons were injured on the side of the accused, out of whom one sustained fatal injuries and 11 persons of the complainant's party sustained 69 injuries, the blood marks, in the natural course of events, should have been visible on the field of Ghyanshyam Singh, Their total absence throws irrisistable suspicion regarding the scene of crime. The absence of blood on the alleged scene of occurrence in suggestive of the fact that the prosecution witnesses heve deliberately changed the site of the event with the ulterior motive of depriving the accused of the plausible plea of self defence. Admittedly all the ey-ewitnesses, except PW 4 Devi Singh examined on behalf of the prosecutions, are biased and inimical. Most of them were facing prosecution in relation to the same occurrence in a cross case instituted on the first information report No. 4 of 1971. When the witnesses are inimical their evidence has to be scrutinised very carefully Reference may be made to Nankhu Singh vs. State of Bihar (3 ). Where a large number of persons make attack, it is very difficult for a person to state as to who caused which injury on a particular part of a particular individual. If any witness attempts to do so, he may excite grave suspicion with regard to his veracity. Reference in this connection may be made to Baldeo Singh vs. State of Bihar (4 ). In that case their Lordships of the Supreme Court held that in a mob where several people give blows to the victim at one and the same time it is impossible to particularise the blows. If any witness attempts to do it, his veracity is doubtful. In the case on hand the witnesses have tried to describe not only their own injuries, but injuries sustained by other persons in surprising detail. They were confronted with their police statements and they had to admit that those details were not given by them in police. Omission of substantial nature in police statement is fatal vide Yudhishtir vs. The State of Madhya Pradesh (5 ). Learned Sessions Judge has discussed thread bare the various contradictions appearing in the statements of the prosecution witnesses. Above all, these witnesses have deliberately given a false account as to the on set quarrel. The prosecution here has not correctly put forth the genesis of the happening, which remains erratic. The prosecution cannot avail itself of its own blatant error. The benefit must go to the accused. Reference may be made to State of Bihar vs. Mohammed Khursheed (6 ). ;