T.N.R. Tirumalpad, J.C.
1. The petitioners Munsar Ali Torab Khan, Rasul Khan and Manjur Ali were convicted and sentenced by the munsiff-magistrate, Udaipur, Munsar Ali under Section 323 to a sentence of 6 months Rule I. and a fine of Rs. 200/-, Torab Khan and Rasul Khan under Section 326 I.P.C. to 18 months Rule I. each and Manjur Ali under Section 326 I.P.C. to Rule I. for 6 months. In the appeal filed by them the learned Sessions Judge upheld the conviction of Munsar Ali under Section 323 I.P.C. but reduced his sentence to 1 month's Rule I. and a fine of Rs 100/-. He also confirmed the conviction of Torab Khan and Rasul Khan but reduced their sentences to 1 year's R.I. each. In the case of Manjur Ali he altered the conviction to one under Section 323 I.P.C. from Section 326 I.P.C. and he reduced his sentence to one month's R.I. and a fine of Rs. 100/.- The petitioners have now come up in revision.
2. The occurrence out) of which this case arose took place in the morning of 29-3-195. According to the prosecution, Munsar Ali attempted that morning to forcibly occupy a land belonging to P.W. 3 Bajlu Mia. It was alleged by the prosecution that the elders of the village like P.Ws 4, 5 and 6 had demarcated the lands of Munsar Ali and of Bajlu Mia a few days before the occurrence that the land where the occurrence took place fell in the portion of Baiju Mia and that when Manjur Ali attempted to occupy that land on that morning, Bajlu Mia approached P.Ws 4-6 and P.Ws 4-6 along with other P. Ws went to the place and P. Ws 4-6 tried to prevent any untoward incident and to pacify the accused persons who had already got ready with dao and lathis. But P.Ws 4-6 did not succeed and the accused were said to have rushed towards Baiju Mia's party and inflicted injuries on P.W. 3 Bajlu Mia, P.W. 8 Badsa Mia, P.W. 9 Sultan Mia. Some of the injuries on Bajlu Mia and Badsa were grievous while those on Sultan Mia were simple. Torab Khan and Rasul Khan were said to have inflicted the grievous injuries on Bajlu Mia and Badsa Mia with daos, and Munsar Ali and Manjur Ali were said to have caused simple injuries on Badsa Mia and Bajlu Mia. Seeing the fight P. Ws 4-6 were said to have retreated from the place since they did not want to get hurt themselves. It is for these offences that the accused persons were convicted and sentenced as stated above.
3. The petitioners denied the offence and stated that they did not inflict any injuries on P. Ws 3,8 and 9. Their plea was that the land on which the occurrence took place belonged to Munsar Ali and that Bajlu Mia and his party attempted to take forcible possession of the said land and in the course of the fight which took place, Torab Khan and Rasul Khan got injuries. They pleaded that whatever the accused did on that morning was in the exercise of their right of private defence of property and that they were, therefore, not guilty This plea of the right of private defence was negatived by both the lower courts and both the lower courts held that the land on which the occurrence took place was in the possession of Bajlu Mia and that therefore there was no right of private defence. The learned Magistrate dealt with a further question whether the petitioners had any provocation to cause the injuries Perhaps, he dealt with this question to see whether such provocation would go in mitigation of the punishment. He came to the conclusion, however that though P. W. 2 Julhas Mia gave the first blow upon Torab Khan, it cannot be held to be provocation for the petitioners who were armed with dao and lathis to cause such grievous hurt to P. Ws 3, 8 and 9. Hence, the Magistrate gave still sentences to the petitioners. But the Sessions Judge appears to have reduced the sentences evidently because he felt that the petitioners had some provocation, even though the Sessions Judge did not discuss the evidence relating to this provocation.
4. What was urged before me in revision was that the lower courts had not properly considered the evidence relating to the possession of the land or relating to the exercise of the right of private defence or to the provocation which the petitioners had and that on a proper appreciation of the evidence the petitioners ought to have been held not guilty, even though P. Ws 3, 8 and 9 have been injured in the occurrence. My attention was drawn in particular to the evidence of P. W. 5 Moulana Abdul Hamid, a respectable man who was admittedly present, according to the prosecution, at the time of the occurrence. P. W. 5 had given definite evidence that the occurrence took place 10 to 12 cubits off in the south-east region of Munsar Ali's cow-shed and that the said land was in the possession of Munsar Ali. My attention was also drawn to the evidence of D. Ws 1-5, all of whom had stated that they knew the disputed land and it was in the possession of Munsar Ali. It was further pointed out that out of P. Ws 2-9 gave direct evidence about the occurrence and about the possession of the land, P. Ws.2,3 and 7-9 belonged to Bajlu Mia's party and that their evidence was interested and should not have been relied on.
It was also pointed out that out of the 3 independent witnesses namely, P. Ws 4, 5 and 6, only P. W. 4 had stated mat the land on which the occurrence took place belonged to Bajlu Mia. The evidence of P. W. 4 was that the village elders had settled the dispute between Bajlu and Munsar Ali and had decided that the region east of the Avowal tree belonged to Bajlu Mia and the region west of it belonged to Munsar Ali and that both the parties possessed the lands accordingly after the settlement and that the occurrence took place a little towards the north-east side of the Avowal tree. It was pointed out that even this evidence of P. W. 4 did not clearly show that the occurrence took place in Bajlu Mia's land whereas P.W. 5 had given definite evidence that it took place on Munsar Ali's land while P. W. 6 gave evidence that he did not know for certain as to who was in possession of the land on which the occurrence took place. In the face of such evidence it was argued that the riding of the lower courts that the occurrence took place in Munsar Ali's land was a perverse finding and should not be accepted.
5. The learned Sessions Judge in his judgment dealt with the evidence of P. W. 5, who was one of the independent witnesses and who was according to the prosecution, admittedly present at the scene of occurrence and he refused to rely on that evidence on the ground that P. W. 5 did not speak about the correct state of affairs and had also suppressed the truth. It has to be mentioned here that in the Magistrate's Court, the prosecution requested for permission of the court to treat P. W. 5 as a hostile witness and to cross-examine him and the Magistrate appears to have perused the statement given by this witness to the police under Section 161 Cr.P.C. and after such perusal declined permission to treat him as hostile and to put questions to him as provided under Section 154 of the Evidence Act. The learned Sessions Judge stated in his judgment that the magistrate should have given the prosecution an opportunity to cross-examine this witness. He stated so, because he felt after a perusal of the entire evidence of P. W. 5 that P. W. 5 did not speak about the correct state of affairs and also suppressed the truth.
Now, the discretion given under Section 154 of the Evidence Act is a discretion vested in the trial court and, this discretion was exercised after perusal of the statement given under Section 161 Cr.P.C. to the police. The appellate court cannot lightly interfere with such discretion exercised by the trial court and that too without perusing the statement given by this witness under Section 161 Cr.P.C. Even if the appellate court was holding that permission to cross-examine the witness should have been given by the trial court, the proper thing for the appellate court to do would be to send back the case to the trial court to take the evidence of the said witness further after granting the prosecution permission to cross-examine the witness. Without doing so, the appellate court cannot straightway proceed to reject the entire evidence of the said witness, as if he was a hostile witness and had been won over by the defence. P. W. 5 was taken to the scene of occurrence by Bajlu Mia himself and he was said to be one of the persons who demarcated the land. It was not shown that he has reason to side with the defence or that he had been won over. Further the evidence of P. W. 5 was the evidence on the side of the prosecution and if any prosecution witness has given evidence against the prosecution case and in support of the defence case, the defence is entitled to rely on such evidence. An accused can be convicted only on the prosecution evidence and not by Rejecting the evidence of one or more of the prosecution witnesses and by relying on the evidence of the rest of the prosecution witnesses. That will be a very wrong procedure and it will be highly unjust and prejudicial to the accused.
6. Thus on the evidence of P. W. 5 which clearly stated that the land on which the occurrence took place was in the possession of one of the accused namely, Munsar Ali, the case of the accused that their acts of violence on P. Ws 3, 8 and 9 were in the exercise of the right of the private defence of property became very strong. The learned Sessions Judge stated that P. W. 5 suppressed the truth. He stated so, because P.W. 5 stated at the end of his evidence that he cannot say who assaulted whom. According to the Sessions Judge, the occurrence took place in broad day-light and P.W. 5 witnessed it from close quarters and it was not possible to believe that he did not see who assaulted whom. The learned Sessions Judge evidently lost sight of the evidence of P. W.3 Bajlu Mia himself who stated that when the attempt of P. Ws 4-6 to pacify the parties failed and the accused persons began to attack, P. Ws 4-6 retired from the scene. Under such circumstances, it is quite possible that P. W. 5 was not able to notice as to who had assaulted whom. That one statement of P.W. 5 was not by itself sufficient to discredit his entire evidence. We have to take the evidence of P.W. 5 along with the evidence of D. Ws 1-5, all of whom had also stated that the occurrence took place in the land belonging to Munsar Ali.
7. The learned Sessions Judge appears to have relied on the evidence of P. W. 10, the A. S. I. regarding the place of occurrence. P. W. 10 said that the place of occurrence was 98 cubits from the house of Munsar Ali. But P. W. 10 was not an eye-witness and he cannot say which exactly was the place of occurrence. Evidently, he spoke about the place of occurrence, as the place wherefrom he had seized two leaves of a tree besmeared with blood. This fact by itself will not shows that the place from where the two leaves were seized was the place of occurrence. P. W. 5, the eye-witness who was present had said that the occurrence was 10 to 12 cubits to the south-east of Munsar All's cow-shed and this evidence was supported by all the D. Ws. The evidence of P. W. 10 alone who was not even an eye-witness based on the seizure of two bloodstained leaves is not sufficient to discredit the evidence of P. W. 5. We have the evidence of P. W. 11, the O/C who stated that he also visited the place of occurrence on 1-4-1959 and that it was on the slope of the till land beneath Munsar Ali's homestead. This evidence was more in accord with that of P.W. 5 and the D. Ws. This evidence was not referred to by the Sessions Judge or by the Magistrate. Thus on the evidence the prosecution had not at all proved that the occurrence took place on the land in the possession of Bajlu Mia. whereas the evidence of one prosecution witness P. W. 5 as well as the evidence of all the D Ws. showed that it took place on the land in the possession of Munsar Ali. Thus their case of the right of private defence became very strong and should not have been rejected by the Slower courts.
8. There is one other aspect of this case which appears to have been missed by both the lower courts. It became clear from the evidence of P.W. l0, the A. S.I. that on 29-3-1959 at 10-30 A.M. two persons Ali Akbar and Sona Mia had given information to the O/C, Radhakishorepur P.S. about the occurrence which took place at 7 A.M. on that date and that the O/C had made a G.D. entry about that information and P.W. 10 was sent to the scene of occurrence as a result of the said information. According to the evidence of P.W. 2 himself, this Ali Akbar was one of the eye-witnesses present at the occurrence and it was this Ali Akbar and one Sona Mia who had given the first information about the occurrence to the O/.C. Under Section 154, Cr.P.C. every information relating to the Commission of a cognizable offence if given orally to an officer in charge of a police station shall be reduced to writing by him and every such information whether given in writing or reduced to writing shall be signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer. Thus before P. W. 11 made the entry in the general diary, he must have recorded the statement of Ali Akbar and Sona Mia which was the first information about this cognizable offence. That statement was not produced in this case as the first information report. This Ali Akbar, an eye-witness was not also examined by the prosecution. We may fairly take it, therefore, that if this first information is produced, it will go against the prosecution. We get further from the evidence of P. Ws 10 and 11 that Munsar Ali had gone to the police station at 1-30 P. M. on the same day and given a statement of the occurrence. That statement also was not produced in the case. The statement Ext. P-1 which was produced as the F.I.R in the case was one taken by P.W. 10 from P.W. 2 Julhas Mia at 2-25 P.M. on the same date an the village where P.W 10 had proceeded. Thus, obviously, Ext. P-l was not the first information about this offence and no reliance should have been placed on Ext. P. 1. It can only be said to be the version given by P. W. 2 who belonged to the party of Bajlu Mia.
9. In a case like this where there are three different versions of the occurrence, the earlier statements recorded one from Ali Akbar and Sona Mia and the other from Munsar Ali, both of which will not be hit by Section 162 Cr. P.C. should have been produced in order to enable the court to arrive at the real truth in the case. No explanation was given by P. W. 10 or P. W. 11 the police officer why those statements were suppressed and not produced. I am mentioning this particularly because P W. 11 himself admitted in his evidence that when Torab Khan and Rasul Khan, two of the petitioners were produced before him after arrest, they also had injuries on their bodies and they were sent to hospital by him. Their injury reports were not produced in the case. In any case, this would indicate that the story of the accused that they were injured by Bajlu Mia's party was also true to some extent. In criminal cases, it is the duty of the police to place all such material before the court in order that the court may do justice. It is not the duty of the police to see merely that the accused persons are somehow or other convicted. It is their duty to see that justice is done. Where in an occurrence both parties had received injuries, it is the duty of the police to see that the entire material is placed before the court. The fact of the injuries on Torab Khan and Rasul Khan should not have been left to be elicited from P. Ws. 10 and 11, the police officers in cross-examination by the accused.
10. In the same connection, I must also refer to the evidence of many of the prosecution witnesses that it was P. W. 2 Julhas Mia, who gave the first blow with a lathi to Torba Khan. The Magistrate has referred to this in his judgment. But all the prosecution witnesses denied that any person of Bajlu Mia's party inflicted any injury on the petitioners. This was clearly proved to be false evidence on their part.
11. Thus the net result of the examination of the entire evidence is that the occurrence took place in the land in the possession of Munsar Ali that though P. Ws 4-6 tried to intervene, there was a fight in the land between Munsar Ali's party and Bajlu Mia's party that in the course of fight both parties got injuries P. Ws. 3, 8 and 9 in Bajlu Mia's party and Torab Khan and Rasul Khan in Munsar Ali's party, that Torab Khan had a dao while the rest had lathis in Munsar Ali's party while Bajlu Mia's party had lathis and that beecause Munsar Ali's party had a dao more severe injuries were caused to Bajlu Mia's party than to Torab Khan's party. The question is whether in the face of such evidence the petitioners should have been convicted under Section 323 or Section 326 I.P.C. Sections 323 and 326 provide that the hurt must have been caused voluntarily. No doubt the petitioners by inflicting injuries by means of dao and lathis must be held to have known or to have reason to believe that they are likely to cause hurt. But it took place in the course of a fight between the two parties in which some of the peti tioners themselves got injured with the lathis of Bajlu Mia's party. At least P.W. 2 Julhas Mia was admitted to have a lathi in his possession. Again the occurrence took place in the land of Munsar Ali where Bajlu Mia's party had entered. Thus whatever happened, happened in the exercise of the right of private defence of property and it will not amount to an offence, even if some members of Bajlu Mia's party got injured. Thus this is a case where the conviction of the petitioners was wrong and the finding of the lower courts, particularly regarding the plea of the right of private defence was perverse.
12. The revision petition is allowed and the conviction and sentence of the petitioners are set aside.