1. Eight person, 1 ori, 2 Chokhey, 3Ishwar Din, 4 Brij Lal, 5 Moti, 6 Bhailal, 7Bipat and 8 Har Bhajan were convicted by theCivil and Sessions Judge of Lucknow for offencesunder sections 147, 325/149 and 323/149, Penal Code.Under sections 147 they were sentenced to two years'rigorous imprisonment each, under section 325/149 tothree years' rigorous imprisonment and undersections 323/149 to one years rigorous imprisonmenteach; the sentences were to run concurrently.They come up in appeal.
2. The prosecution story as sought to be establishedat the trial was that on the 21st of May1947, at about 8in the morning while Dhanpathis son Ram Nath and Dhanpat's grove to irrigate theRampal went to Dhanpat's grove to irrigate thetrees, 18 persons, including the present eightappellants, attacked them. Ram Nath ran awayand informed his uncle Mahabir and other membersof the family. Thereupon Mahabir, his sonBabu Lal, his wife Ram Piari and Dhanpat'swife Ram Dulari all reached to the help of Dhanpatand Rampal. The concurrence took place notfrom the village site of Ghuskar, hamlet ofHussainpur, which is at a distance of about fourmiles from police station Gossainganj. WhenMahabir and others reached the place of occurrenceand remonstrated with the assailants ofDhanpat and Rampal, violence was used againstthem also. Information of the occurrence reachedMohan, a relation of Dhanpat who lives in anothervillage. He came to Ghuskar, and havingascertained the facts from such of the victims ofthe assault as could speak, went and made areport at thana Gosainganj at 7-20 p.m. It appearsthat Dhanpat had received serious injuriesand was unconscious. Mahabir had also beenbadly beaten. Some of the other members of thefamily also received minor injuries. In the reportmade by Mohan, 18 persons, including the8 appellants, were named as the assailants ofDhanpat and his companions.
3. It may be mentioned that another reportwas made at thana Gosainganj at 11-30 a.m. byChokhey appellant. His brother Ori had alsoaccompanied him to the thana. Chokhey's reportis a very brief one. He stated that he was removingearth from the nala when Dhanpat belabouredhim with lathis and that his brotherOri who came to his help was also assaulted.
4. Dhanpat died in the Balrampur hospitalwhere he was sent for treatment of his injurieson 16th June 1947. As a result of the investigation,the police submitted a charge sheet against18 persons. Two of them died before the case wascommitted to the Court of Sessions. One wasdischarged by the Committing Magistrate andthe remaining 15 persons were committed to theSession for trial. The defence put forward on behalfof Ori and Chokhey at the trial was not thesame as mentioned in the first information reportmade by the latter at thana Gosainganj.In the Court of Session it was stated by themthat on the morning of 21st May 1947, there wasa marpit between Dhanpat and Mahabir on theone side and their brother Mabangu on the other.That Ori and Chokhey attempted to intervenewhereupon they were assaulted by Dhanpat andhis associates. This defence was not accepted bythe learned Sessions Judge. He held that thoughthe witnesses for the prosecution had grosslyexaggerated matters, falsely implicated a numberof innocent persons and given a version of theaffair which was not accurate, still there could beno doubt on the evidence that there was a fightin which the present appellants participated, andthat they were responsible for inflicting injuriesupon Dhanpat, Mahabir, Ram Piari, Ram Dulariand Babu Lal. He acquitted seven of the accusedagainst whom the case was held not to be established,and convicted the present eight appellantsunder sections 325/149, 323/149 and 147, Penal Code asalready stated.
5. It was strenuously argued by the learnedcounsel for the appellants that in view of theobservations made by the learned Sessions Judgein his judgment against the prosecution witnesses,the appellants' conviction could not stand.It was pointed out that according to the learnedSessions Judge no independent witnesses hadbeen produced to support the prosectuion case,though a number of them were named in thefirst information report. The learned Judge hasfurther observed that the statements of the witnessesproduced in the Courts were not convincing.That though the witnesses had stated thatOri, Bipat and Har Bhajan had used sharp cuttinginstruments like a khulari, tabbal, andspears, no injuries evidencing the use of suchweapons were found on the person of any of thevictims of the assault. It was argued that inthese circumstances the case was not free fromreasonable doubt even so far as the present eightappellants were concerned and they should beacquitted.
6. The argument is not without force. Accordingto the version given by Mohan in the firstinformation report made by him, first there wasa quarrel between Mahabir and Dhanpat on theone side and Mahangu on the other. ThatMahangu was belaboured by Dhanpat whereuponMahangu went and reported the matter to Oriand Chokhey and other accused who were theirassociates. That there was enmity between theaccused and Dhanpat who were friendly withMahangu. On hearing from him that he hadbeen belaboured by Dhanpat, the accused wentand assaulted Dhanpat and the other members ofhis family, who came to help him. At the triala twist was given to this version and part of thestory which dealt with the quarrel betweenDhanpat and Mahabir and their brother Mahanguwas suppressed. On the other hand, a bald storythat while Dhanpat, his son Ram Nath and hisbrother Rampal were irrigating the trees in theirgrove, the accused went armed with lathis, spears,khularis and tabbals and assaulted them. WhenDhanpat's brother Mahabir and other membersof his family went to his help they were alsoassaulted.
7. There can be no doubt that, as observedby the learned Sessions Judge, the statements ofthe witnesses for the prosecution who were allrelations of Dhanpat are not convincing. Theyhave suppressed certain facts and grossly exaggeratedothers. The issue for determination is,however, not the conduct of the prosecution witnesses;it is whether there is satisfactory evidenceon the record to establish that the appellantscommitted the offences for which they have beenconvicted. They have been convicted of riotingand causing grievous and simple hurt to a numberof persons. That Dhanpat, Mahabir, BabuLal and Ram Dulari were assaulted on the morningof 21st May 1947, cannot admit of any doubt.That Dhanpat died as a result of the injuriesinflicted upon him is also satisfactorily established;in fact this was not and could not be disputed.The only question for consideration iswhether these injuries were caused by the presentappellants or any one of them. So far as thecases of Ori and Chokhey are concerned the matteris clear. According to the prosecution witnessesthey were among the assailants of Dhanpat andother members of his family. It is a legitimateinference from their own version both, asgiven in the first information report as alsowhat was stated by them at the trial, that theyparticipated in the marpit which resulted in theinjuries that led to Dhanpat's death and injuriesbeing carried to other members of his family. Ican attach no weight to the argument advancedby the learned counsel that if the story given bythe prosecution witnesses was not true, or opento reasonable doubt, the statements made by Oriand Chokhey should be discharged and theyshould be acquitted. The question as already observedis whether Ori and Chokhey are provedto have inflicted the injuries found on the personof Dhanpat and other members of his family. Afact is said to be proved when, after consideringthe matters before it, the Court either believesit to exist, or considers its existence so probablethat a prudent man ought, under the circumstancesof the particular case, to act upon thesupposition that it exists. In judging whether afact is or is not proved, the Court is entitled totake into consideration not only the statementsof the witnesses but also the surrounding circumstancesand the probabilities of the case. Even ifthe statements of the witnesses standing bythemselves be open to criticism, a fact may beheld established on such evidence read in thelight of other circumstances. In the present case,apart from the evidence of the prosecution witnesseswho were themselves victims of the assault,great significance attaches to the firstinformation report made by Chokhey and thesubsequent statements made by him and his brotherat the trial. All these taken together leaveno doubt in my mind that the learned Judgecame to a correct conclusion when he held thatthese two accused were responsible for inflictinginjuries which resulted in Dhanpat's death andin causing grievous and simple hurt to othermembers of the family.
8. The case of the other appellants does not,however, stand on the same footing as that ofthese two persons. It cannot be affirmed withany degree of certainty that on the evidence beforeus it is established that all the remainingsix appellants also participated in the assaultupon Dhanpat and his associates. As held by thelearned Sessions Judge, a number of innocent personswere wrongly implicated by the witnesses.We cannot be certain that none of the other sixappellants was not falsely roped in. In thesecircumstances the case against them cannot besaid to be satisfactorily established.
9. The result, therefore, is that the appeal ofOri and Chokhey is dismissed. It is allowed withregard to the other six appellants, Ishwar DinBrij Lal, Moti, Bhailal, Bipat and Har Bhajan.Having regard to the evidence in the case andto the number of injuries inflicted upon Dhanpatand other members of the family, there canhardly be any doubt that the persons who participatedin the occurrence along with Ori andChokhey were more than five. The conviction ofOri and Chokhey for the offences for which theywere convicted, including that of rioting, musttherefore stand. Ori and Chokhey must surrenderto their bail and serve out their sentences. Theother appellants, Ishwar Din, Brij Lal, MotiBhailal, Bipat and Har Bhajan are acquitted.They are on bail and need not surrender thereto.