R. S. VERMA, J. - (1.) SEVEN persons, namely, Limba, Kashna, Harji, Sava Veera, Bhera and Nathu were put up for trial before learned Addl. Sessions Judge, Udaipur, to face trial of offences under secs. 148 and 302 read with sec 149 I. P. C. The gist of the charges against the accused persons was that on 8-8-78 at about 11-12 noon, they formed an unlawful assembly, the common object whereof was to commit murder of one Kishore Singh and in furtherance of the said common object, each one of then, made deadly assault on the said Kishore Singh resulting in injuries to him, which caused his death and thus, they committed riot and murder.
(2.) BESIDES the other evidence, the prosecution examined PW 1 Hadmat Singh, PW3 Vaja, PW4 Gamu and PW5 Jawansingh as the alleged eye witnesses of the occurrence. Learned Addl. Sessions Judge after critical examination of the aforesaid evidence, arrived at a definite conclusion that Hadmat Singh, Gamu and Jawan Singh did not witness the actual assault on the deceased. As regards Vaja, he was of the view that he was a partly reliable witness and had seen appellant Veera opening assault on the deceased with an axe. Participation of other accused persons in the assault was held to be not proved. The learned trial Judge found that testimony of Vaja regarding assault on Kishore Singh by the appellant by an axe was corroborated by medical evidence. He further held that Veera had committed the said assault to protect his possession over the agricultural land and standing crop thereupon, which was in his possession. He also found that the assault had been made in exercise of right of private defence of person as well but he found that in doing so, the appellant had exceeded his right of private defence. In these premises, he acquitted all other accused persons of charges under secs. 148 and 302 read with 149 I P. C. He acquitted Veera, the present appellant of charge u/s 148 I. P. C. as also for charge u/s 302 read with 149 IPC but convicted him of an offence u/s 304 Part I, I. PC. and sentenced him to undergo rigorous imprisonment for six years and a fine of Rs. 1000/- and in default of payment of fine, to undergo simple imprisonment for six months. Aggrieved, Veera has come to this Court in appeal. Learned counsel for the appellant has seriously challenged the conviction of the appellant of offence u/s 304 Part I, I. P. C and he submits that when the prosecution had failed to prove its case against other accused persons, learned Addl. Sessions Judge fell in serious error in accepting the testimony of Vaja against the appellant alone. He contends that the case of the appellant was in no way different from the case of the other accused persons and particularly from the case of Harji, who was also alleged to have opened an assault on Kishore Singh with an axe/'kudi' (a deadly sharp edged weapon) and hence, prosecution case should have been thrown out m its entirety. His next contention is that the learned trial Judge did not correctly appreciate the statement of the appellant and unduly dissected the same into parts He picked up such parts of the statement of the appellant, which would fit in the prosecution story and he discarded the other material parts of the statement for no cogent reason. It is submitted that the learned trial Judge ought to have read the entire statement of the appellant as a whole and had he done so, it would have been clear to him that the appellant had succeeded in establishing the right of private defence of property and person. Lastly, he contended that once the learned trial Judge had acquitted the appellant of charge u/s 302 read with 149 l. P. C, he could not have convicted the appellant for a charge u/s 302 LP C. simpliciter when no such charge had been framed at all against the appellant. He, therefore, vehemently urged that the appellant's appeal may be accepted and the appellant should be acquitted of the charge u/s 304 Part I, l. P. c Learned P. P. has opposed the appeal and has vehemently supported the judgment of the learned Addl. Sessions Judge. I may first take up the last contention. A large number of rulings were cited before me in support of the proposition that when the appellant had been acquitted of charge u/s 302 read with 149 l. P. C, he could not have been convicted of charge u/s 304 part I, simpliciter, particularly when there was no charge for an offence u/s 302 I. P. C simpliciter against the appellant. I need not encumber the judgment by citing these rulings because I find that so far as this Court is concerned, the point is concluded by a Full Bench decision of this Court reported in Moti Lal vs. State of Rajasthan (1 ). In this case, all those rulings, which were cited before me, have been considered and the Court observed as follows:- " In view of the judgment by the four Judges directly covering the point of reference before us, and which was given by them in order to resolve the controversy between the decisions of Nanakchand and Surajpal's case (supra) we have got no hesitation in holding that the absence of specific charge for substantive offence of S. 326 IPC as is the case before us convicting the accused under S. 326 IPC read with S. 149 IPC, is not an illegality or irregularity which is fatal to the conviction per se and the conviction can be sustained. Such a conviction can only be set aside if it is bound that the accused has been prejudiced in his defence and, if that finding is given the court can further decide that the re-trial should be ordered or the case should be concluded on account of other circumstances intervening. " In the present case, it has to be seen if any prejudice had been caused to the appellant by not framing a charge u/s 302 I. P. C. simpliciter. A charge u/s 302/ 149 I. P. C. implied that the appellant was only vicariously liable for the acts of his other companions. He was never charged with having caused the entire assault on the deceased. Learned trial Judge still assumed that the entire assault had been made on the deceased by the appellant aolne. If that was to be so, the charge should have been suitably amended. This was not done. Hence, the appellant could not be expected to meet the charge that all the injuries on the person of the deceased had been caused by the appellant alone. Thus, I find that the appellant has been seriously prejudiced in his defence. However. I need not comment any further on this aspect of the matter, because I have taken the view that the appeal should even otherwise succeed. This takes me to the consideration of the first contention, namely, that the appellant ought to have been acquitted because the testimony of Vaja was not considered to be reliable against the other accused persons. It may readily be stated that principle of 'falsus in uno, falsus in omnibus' does not apply to courts in India. It is lawful for the courts to accept the evidence a of a witness qua a particular accused and to reject the same qua other accused provided the part to be accepted is trustworthy and is capable of being separated from the chaff of falsehood. Hence, I am of the view that if the learned Addl. Sessions Judge found the evidence of Vaja unreliable against other accused persons, then it cannot be said on this basis alone the evidence should have been discarded against the appellant as well.
(3.) HERE, I would like to refer to the evidence of PW 3 Vaja in brief, Vaja stated in his examination-in-chief that on the fateful day, he was ploughing the field at Kunatalal along with deceased Kishore Singh. According to him, the accused persons including the appellant came to the field, upon which Kishore Singh started running away. When Kishore Singh reached near the pali of his own field, Harji Jangi gave a blow from a 'kudi' on the beck of his hand. At that very juncture, Veera gave an axe blow on the head of Kishore Singh and thereafter all other accused persons started belaboring Kishore Singh. Kishna and Limba threatened this witness of dire consequences, upon which he ran away from the place. He has further stated that his wife Guma had also come to the field with meals for this witness and when this witness started running away, she also ran away from the field, The witness states that after about two hours, he came to the field and at that time, saw that witnesses Laxman Singh, Jodh Singh, Jawan Singh and Hadmat Singh were sitting with the deceased. Deceased was then taken to Kurebad. He further stated that prior to the incident, accused Viriya had told him not to plough the field. At this, he had gone to Kishore Singh and told him that Viriya was not permitting him to plough the field. He stated that upon this, Kishore Singh had told him that he would accompany the witness to ensure ploughing. . In cross-examination, the witness admitted that deceased Kishore Singh had told him. ************* According to him, Veera had come to the field and told this witness and Kishore Singh not to plough the field because the field belonged to him. _in cross-examination, he was confronted by his police statement Ex. Dl in portion A to B in which he had deposed that Harji was wielding an axe. He denied this statement and struck to the version that Harji was carrying a 'kudi'. According to him, two blows by 'kudi' had been given to the deceased. He further deposed that each one of the other accused persons had given at least five lathi blows to the deceased- Here it may be stated that post-mortem examination of the deceased Kishore Singh was conducted on 9. 8. 78 by Dr. Dungar Singh Chaudhary. He found following injuries on the person of the deceased : " (1) Two incised wound over left side of forehead. Margins are clean cut and retracted 3x1 cm. x bone deep and 5x2 cm. x bone & meninges seen (Brain exposed ). Blood around wound seen. (2) Incised wound over right occipital region 3x0. 5 cm. (retracted) x muscle deep. Bleeding present. Margins are clean cut. (3) Incased wound over left arm lower one third laterally 1x0. 1 cm. x skin deep with deformity of left arm. Fracture humerus lower one third. There is diffuse swelling of left arm around elbow. (4) Two incised wound over right leg medially middle one third of about 1x0. 2 cm. x skin deep each margins are clean cut. Distance between two wounds are about 4 cm. approx. " It may be stated that he did not find blunt weapon injury on the person of the deceased. It was in light of this medical evidence that the learned trial Judge did not accept the testimony of Vaja so far as accused Limba, Kishna, Sawa. Bhera and Nathu were concerned, inasmuch as they were alleged to have assaulted the deceased by lathies. He discarded the testimony of Vaja against Harji on the ground that in his police statement, he had deposed that Harji was carrying an axe while at the trial, he stated that Harji was carrying a 'kudi'. He, however, found the story of assault by the present appellant established on the basis of the aforesaid corroboration from medical evidence. Learned counsel for the appellant submits that in this case though Harji has been acquitted, the possibility cannot be ruled out that after Vaja had run away from the scene or occurrence, Harji miget have dealt various blows to the deceased by 'kudi', which is also a sharp edged weapon and hence, all the injuries found on the deceased could not have been escribed solely to the appellant. Even according to Vaja, he saw the appellant giving only one blow from the axe to the deceased, while two blows had been given by Harji with a 'kudi'. In my opinion, there is a good deal of strength in this submission. Vaja categorically stated that assault on the deceased was opened by Harji as well as the appellant. Of course, in his police statement, he said that Harji was armed with an axe while during the course of trial, he had stated that Harji was armed with a 'kudi', however, it could not make very material difference and if his evidence was acceptable regarding assault by the present appellant, then it is difficult to exclude the possibility that Harji also might have caused various other injuries on the person of the deceased because to this extent, the statement of Vaja was also corroborated by medical evidence. Be that as it may, the testimony of Vaja at best proves that the appellant caused only one blow on the head of the deceased by an axe. It is very difficult to ascribe other injuries on the person of the deceased solely to the appellant. In my considered opinion, in the present case, the possibility that Harji might have caused various other injuries to the deceased, cannot be ruled out altogether. ;