M. Murtaza Husain, J
1. The sixteen appellants, of these three appeals, namely, Ram Lakhan, Ram Sahai, Ram Lal, Hanuman Deen, Baijnath, Surya Bhan Singh, Raj Bux Singh. Ikram Sing, Nakchhed, Ram Prakash, Ram Acchaiber, Shiva Ram Singh, Nand Bahadur Singh, Jang Bahadur Singh. Man Singh and Shiv Bux Singh have been convicted under Sections 302/149, 323/ 149, 324/149, 325/149 and 326/149, I.P.C. by the II Temporary Sessions Judge, Sultanpur through his order dated 29-3-1974 passed in Sessions Trial No. 179 of 1973. The learned Sessions Judge has sentenced each appellant to undergo life imprisonment, six months. R. I. two years' R. I, four years' R.I, and five years' R. I. respectively for those offences. Ram Achaiber. Sheo Ram, Sheo Bux and Jang Bahadur Appellants have been further convicted under Section 148, I.P.C. and each sentenced to undergo two years' R.I. for that offence. The remaining twelve appellants have been convicted under Section 147, I.P.C. and each sentenced to undergo R. I. for one year. Different sentences of each appellant have been ordered to run concurrently.
2. There is a village known as Murain Ka Purwa within the circle of police station Jagdishpur in the District of Sultanpur. It is a small village comprising of 100 to 125 houses predominantly inhabited by Morais. This village is the hamlet of a bigger village known as Kanjas. Village Morain Ka Purwa lies just to the north of the Pucca road which goes from Sultanpur to Lucknow. Ram Kewal. who lost his life in the occurrence complained of belonged to village Morain Ka Purwa. His house lies at the south-eastern corner of the abadi of that village and faces towards south. Just in front of his house and adjacent to his Sahan Elarwaza runs Sultanpur-Lucknow railway line. The agricultural chak of the deceased lies at a distance of about 100 paces to the south-east of his house after the intervention of the aforesaid railway line. In the south-eastern portion of the aforesaid chak of the deceased his Karela crop was standing at the time of occurrence. In the south-western portion of the same Chak tobacco crop of the deceased, and in the north-western portion of the Chak his Lahsun crop were standing. To the north of the field where in Karela crop of the deceased was standing is another field of the deceased which is lower in level than the aforesaid Karela crop field by 2 1/2 or 3 feet. Wheat crop ready for being harvested was standing in that field when the occurrence took place. There is yet another plot of the deceased to further north of that wheat field. In that field also wheat crop was, sown and raised by the deceased but it had been harvested before the occurrence. To north-east of that vacant field and after intervention of some land which was, under the cultivation of one Ram Harakh, there is a plot of land belonging to one Ram Nidh which plot is to the north of the railway line.
3. Ram Lakhan, Ram Sahai, Ram Lal, Baij Nath and Nakchhed appellants are Morais by caste. Hanoman appellant is a Bania. The remaining ten appellants are Thakurs, All the Thakur accused are related to each other in some way or the other. Ram Achai Bar, Sheo Ram and Ikram appellants are sons of Ram Prakash appellant. Suraj Bhan is related to Ram Prakash as uncle. Nand Bahadur, Jang Bahadur and Man Singh appellants are real brothers. The ten Thakur accused are residents of village Newada, which is at a distance of about 1/4A miles from Morain Ka Purwa. The five Morai and the remaining Bania accused are residents of village Morain Ka Purwa itself. The prosecution contends that all the sixteen appellants are associates of each other and belong to one and the same party.
4. It is an undisputed fact in the present case that a tube-well belonging to Ram Prakash appellant lies at a distance of a little more than one furlong to the north-east of the aforesaid Karela field of the deceased. The room wherein machinery of that tubewell is fitted was covered by a thatch at the time of occurrence. A temple of Hanoman Ji lies at a short distance to the south of the well which is in the Chak of Ram Kewal deceased. There is a piece of land belonging to the railway department to the south of the railway line. That piece of land was a bone of contention amongst the deceased and Ram Prakash for sometime prior to the occurrence. A litigation under Section 145, Cr. P.C. had taken place in respect of that land amongst the deceased on the one side and Ram Prakash appellant and others on the other. The prosecution contends that on that account there was bad blood amongst the deceased and the appellants.
5. It is further contended by the prosecution that just one day before the occurrence of the present case Ram Kewal deceased was working in his Karela field. Ram Prakash appellant came there while returning from the temple and entered into an altercation with the deceased. Exchange of hot words took place amongst the two on that account. On the very next day of that incident, that is, on 10-4-73 at about 10 a.m. the deceased was cutting his wheat crop in the field which is to the north of the field wherein Karela crop was standing. Mahabir P. W. 3 and Sant Ram P. W. 4 were irrigating onion crop of their Chak which lies to the west of the well which is in the Chak of the deceased. Gokul P. W. 1 and Kedar P. W. 2 were then in their Khalihan which is at a distance of about 100 paces to the east of the abadi of village Morain Ka Purwa. In the meantime the sixteen appellants came in two batches from the side of villages Newada and Morain Ka Purwa and collected in the field of Ram Nidh which is to the north of the railway line. Sheo Ram appellant was then armed with a Pharsa, Sheo Bux and Ram Acchai Bar had spears, Jang Bahadur had a Kanta (fork) while the others had lathis. After collecting in Ram Nidh's field they shouted 'Jai Bajrang Bali' and rushed towards the deceased crossing the railway line. The deceased stopped cutting the wheat crop and ran towards south-east raising alarm. When the deceased reached in his Karela field Ram Prakash struck a lathi blow at him whereby he received injury and fell down. The other appellants then beat him with their respective arms. Gokul P. W. 1 and Kedar P. W. 2 rushed from their Khalihan to save the deceased. They were also beaten by the appellants. Kedar fell down injured in the wheat crop of the deceased. Mahabir P. W. 3 and Sant Ram P. W. 4 were also attracted to the scene of occurrence from the well where they were busy in irrigation work. Nakchhed appellant gave a Pharsa blow to Mahabir who fell down injured in the field of the deceased wherein Lahsun crop was standing. Sheo Ram gave a Pharsa blow to Mahabir in the said field whereby his left leg was cut away. Ram Sahai and Ram Lakhan appellants beat Sant Ram P. W. 4 with lathis. Ram Kewal succumbed to his injuries on the spot. The appellants then went to the tubewell ol Ram Prakash appellant. They pulled down the thatched roofing of the tubewell building and after placing it on the ground burnt it.
6. Ram Kewal's wife, Jhinduri, Chaukidar of the village and other reached the scene of occurrence after the departure of the appellants. They took the injured to Police Station Jag-dishpur leaving the dead body on the spot. That police station is about 8 miles away from the scene of occurrence. At about 12-30 p.m. the same day Gokul P. W. 1 dictated the F.I.R. at the police station wherein all the sixteen appellants were named and a case was registered against them.
7. Sub-Inspector Hari Nath Singh P. W. 6 held initial investigation of the case. For a brief spell investigation was taken over on 12-4-73 by S.-I. Chhotey Lal Chaudhry but he did no substantial work in that connection. On 1-9-73 investigation was again taken over by S.-I. Hari Nath Singh, He submitted charge-sheet against some of the accused whereas charge-sheet against others was submitted by another Sub-Inspector, namely Jang Bahadur Singh.
8. Sub-Inspector Hari Nath Singh reached the place of occurrence at 2.05 p.m. on the day of occurrence. He found Ram Kewal's dead body lying in his Karela field. He found blood in that field as well as in the wheat and Lahsun fields. Bloodstained and plain earth and also plants from those places were taken by the investigating officer into his custody. The investigating officer also found the thatch of the building of Ram Frakash's tubewell lying burnt on the ground. There were no traces of burning on any of the walls of the building. The investigating officer also noticed those drains to be wet through which irrigation was allegedly being done by Mahabir and Sant Ram P. Ws. when the occurrence took place. Relevant witnesses were interrogated. The injured were sent for medical examination and the dead body of Ram Kewal was sent for autopsy.
9. Dr. J.P. Singh examined Gokul, Sant Ram, Mahabir and Kedar at Jagdishpur Hospital in the afternoon in between 6 and 7 p.m. on 10-4-73. He found an incised wound, a punctured wound and two abressions on Gokul's person. He was also complaining of pain in different parts of his body. Two lacerated wounds were found on the person of Sant Ram. He too was complaining of pain in his back though there was no external injury at that place. There (were) two lacerated wounds and an incised wound on the person of Mahabir. The incised wound had separated his left foot in two parts which were anteriorly attached to each other by a piece of skin which was about 2 cm. in length. Kedar had three lacerated wounds, four punctured wounds, four incised wounds, two abrasions and a contusion. He was also complaining of pain in different parts of his body but there, was no visible injury at the said places. Details of the injuries of the aforesaid victims were given by Mr. Singh in injury memos Exs. Ka-1 to Ka-4. He opined that all the aforesaid four victims were assaulted at about 10 a.m. on 10-4-73 by blunt weapons like lathis, pointed weapon like spears and sharp edged weapons like Pharsa and Kanta.
10. Post-mortem examination of the dead body of Ram Kewal was conducted by Dr. R.K. Verma at 3 p.m. on 11-4-73, He found an incised punctured wound, six incised wounds, a contusion and four abrasions on different parts of the body of Ram Kewal which were ante-mortem. Upon internal examination left parietal bone was found cut and fractured under the external incised wound which was located upon the head of the deceased. The fracture lay extended in all directions and it extended up to post cranial fossa. Part of the bone was depressed. Coronal sature was separated. Membranes and brain were cut and lacerated under the aforesaid external injury. Blood-clot was present above the brain surface and other areas were congested and soft, In the base blood was present in the left middle fossa and posterior fossa. Thorax wall was contused and cut under external injuries Nos. 11 and 12. Third to eight ribs on the left side were fractured under external injury No. 11. Left side pleura was cut under external injury No. 12 and was torn under the fractured ribs. The left lung and its vessels were also cut under external injury No. 12. The same were also lacerated under the fractured ribs. The left lung had collapsed but the right lung was normal. Walls of abdomen and peritoneum were distended. Stomach contained about 2 ozs. of thick creamy liquid. Large and small intestines were distended with gas. A small amount of faecal matter was present therein. Bladder was empty. In the opinion of Dr. Verma the deceased had died due to shock and haemorrhage resulting from the incised wounds caused upon the head, and contusion and incised punctured wound on the left side of the back whereby left lung was damaged. Dr. Verma opined in the witness-box that the aforesaid injuries of the deceased were sufficient in ordinary course of nature to cause his death, and that he met his death at about 10 a.m. on the day of occurrence through his assault by means of blunt, sharp-edged and pointed weapons.
11. When charge-sheeted, after the conclusion of the investigation, the appellants pleaded not guilty to the accusation levelled against them. Only three appellants, namely Ram Prakash, Sheo Bux and Ram Lakhan admitted their presence at the time of occurrence but gave their own version of the entire occurrence. According to them the incident of the previous day, suggested by the prosecution, had not taken place. Their contention is that Ram Kewal and his associates were annoyed with Ram Prakash as the latter was successful in the litigation under Section 145, Cr. P.C. On account of that grudge Ram Kewal deceased accompanied by Gokul, Kedar, Maha-bir and Sant Ram burnt the thatch of the tubewell of Ram Prakash at 4 or 5 a.m. on the day of occurrence when there was still pre-dawn darkness. Ram Kewal had a spear and his other companions had lathis. Seeing the roof of his tubewell burning Ram Prakash rushed towards it from the temple. In the meantime Ram Kewal and his companions had started rushing towards Ram Prakash's Khalihan. They met Ram Prakash in the way and started beating him with their arms. Upon the alarm of Ram Bux, Sheo Bux and Ram Lakhan appellants and many others reached there. Ram Kewal and his companions beat Sheo Bux and Ram Lakhan also. Others who had arrived there beat Ram Kewal and his companions to defend Ram Prakash, Sheo Bux and Ram Lakhan. Other appellants denied their presence at the scene of occurrence. Different suggestions for their false implication were put forward by them.
12. The appellants examined Dr. B. P. Banerji D. W. 1 to prove that he had examined Sheo Bux, Ram Prakash and Ram Lakhan in the afternoon of 11-4-73 at Primary Health Centre, Musafirkhana. The doctor found five bruises, a lacerated wound on the head and a punctured wound on the abdomen of Sheo Bux Singh. He found a lacerated wound on the head, and an abrasion on the right knee of Ram Prakash. That appellant was also complaining of pain in the left slide of his chest, but there was no visible injury there. Dr. Banerji found three abrasions one on the left elbow joint and other two on the two knees of Ram Lakhan. Details of those injuries were given by Dr. Banerji in memos Exs. Ka-1 to Ka-3, It was opined by him that the injuries of these three appellants were about 36 hours old at the time of their medical examination. In other words, he stated that those three appellants had received injuries early in the morning of 10-4-73. It was also stated by Dr. Banerji that the punctured wound found on the person of Sheo Bux 5'inch was caused by a spear, whereas the other injuries of the three appellants were caused by blunt weapons like lathis.
13. The prosecution relied upon the testimony of four eye witnesses in the trial Court. They are Gokul P. W. 1, Kedar P. W. 2, Mahabir P. W. 3 and Sant Ram P. W. 4 all of whom had received injuries at the time of the occurrence. The learned Sessions Judge believed them and passed the order under appeal.
13-A. The facts narrated above would reveal that undisputedly an occurrence of marpit took place in the agricultural area of Morain Ka Purwa in the morning of 10-4-73. In that occurrence Ram Kewal deceased and four eye witnesses, namely, Gokul, Kedar. Mahabir and Sant Ram were assaulted by means of blunt, sharp-edged and pointed weapons whereby they received injuries and Ram Kewal succumbed to his injuries on the spot. There is a dispute amongst the parties regarding the time of that occurrence and also about the exact place where it took place. There is again a dispute amongst the parties about the participants of the occurrence and also about the fact whether or not any person on behalf of the accused received injuries at the time of occurrence.
14. According to the prosecution the occurrence took place at about 10 a.m. on 10-4-73. Ram Kewal deceased was then harvesting his wheat crop adjacent to his field wherein Karela crop was standing and the other eye-witnesses were working upon the nearby well and in the Khalihan. The prosecution does not admit use of any arms on its behalf or receiving of any injury by any of the appellants at the time of occurrence. Burning of the thatch of the tubewell of Ram Prakash is admitted to the prosecution but it is alleged by it that when the appellants were retreating from the place of occurrence, they pulled down the thatch of the roof of the tubewell upon the ground and burnt it there.
15. The defence version of the occurrence, on the other hand, is that it took place at 4 or 5 a.m. on 10-4-73 when there was pre-dawn darkness. The contention of the defence is that Ram Kewal deceased and the four injured eye-witnesses went to the tubewell of Ram Prakash and burnt its thatch. Thereafter they turned towards the Khalihan of Ram Prakash. At that time Ram Prakash was at the temple of Hanuman Ji. Seeing the roof of his tubewell in flames, Ram Prakash rushed towards his tubewell. Ram Kewal and his companions met him in between the temple and the Chak of the deceased. Ram Kewal had a spear and others had lathis with them. They started beating Ram Prakash. In the mean time Sheo Bux. Ram Lakhan and others arrived. Ram Kewal and his companions beat Sheo Bux and Ram Lakhan appellants also. They and others who had by that time reached there then beat Ram Kewal and his companions.
16. The first point requiring our consideration is whether or not the occurrence took place at the time and place and in the manner alleged by the prosecution. We have the testimony of four eye-witnesses on the point. They are Gokul P. W. 1, Kedar P. W. 2, Mahabir P. W. 3 and Sant Ram P. W. 4. They have stated about the entire occurrence as eye-witnesses. According to them the occurrence took place at 10 a.m. when Ram Kewal was harvesting his wheat crop. Gokul and Kedar were working in their Khalihan and Mahabir and Sant Ram were irrigating their onion crop. They have further stated that all the sixteen appellants collected in Ram Nidh's field. They came in two batches from the side of the abadi of village Newada and Morain Ka Purwa. Jang Bahadur then held a Kanta, Sheo Ram had a Pharsa, Ram Acchaiber and Sheo Bux had spears, and others had lathis. After shouting 'Jai Bajrang Bali' they rushed towards the deceased who, for his safety, ran towards his Karela field. Ram Prakash gave him a lathi blow in that field. When he fell down others beat him with their arms. In the meantime the four eye-witnesses arrived and they were also beaten by the appellants with their arms. Mahabir fell down in the Lahsun field and his left leg was cut by Sheo Ram by means of a Pharsa. Kedar had fallen injured in the wheat crop.
The aforesaid four eye-wintesses have been fully cross-examined on behalf of the defence but there are no appreciable contradictions or discrepancies in their statements about the details of the occurrence given by them. Mahabir P. W. 3 admitted in his cross-examination that he. Kedar, Sant Ram and Jhinguri Chaukidar were of the party of the deceased. Gokul P. W. 1 admitted in his cross-examination that he was a witness on behalf of one Sheo Das against Sita Ram father of Ram Lal accused. The learned Sessions Judge has held that on that account the four eye-witnesses could be said to be interested and partisan but on that account alone they could not be disbelieved, when their presence at the scene of occurrence stood established by their injuries. We find nothing wrong with this approach of the trial Judge. A witness in a murder trial cannot be disbelieved merely because he happens to be a partisan or interested witness. The medical evidence led by the prosecution establishes that all the four eye-witnesses had received severe injuries at the time of occurrence. The defence also admits their presence when the occurrence took place. They can consequently not be disbelieved on account of interestedness alone.
There are a large number of circumstances borne out by the material on record which speak that the version of four eye-witnesses regarding the time, place of occurrence and the manner in which it took place is correct. In the first place, the prosecution has alleged an immediate motive of the occurrence. According to the prosecution there was an altercation followed by exchange of hot words against Ram Kewal deceased and Ram Prakash appellant in the afternoon just one day before the occurrence. Gokul P. W. 2 has stated about that incident. There is nothing in his cross-examination to discredit him. That incident is mentioned in the F.I.R., Ex. Ka-7, lodged at the police station within two and a half hours of the occurrence. The reference to that earlier incident in a promptly lodged F.I.R. is a circumstance which speaks that most probably that incident had taken place in the manner suggested by the prosecution.
17. Secondly, the medical evidence led by the prosecution gives full support to the version of the occurrence given by the eye-witnesses about the time of occurrence and the manner of the assault of the five victims of the prosecution side. The post-mortem examination report Ex. Ka-6 read with the statement of Dr. R. K. Verma shows that the stomach of the deceased has about 2 ozs. of thick creamy liquid. The intestines of the deceased were distended with gas and small amount of faecal matter was present in it. This condition of the stomach and intestines of the deceased indicates that he was done to death when he had already eased himself and had taken breakfast about 2 hours before the commission of his murder. If the occurrence had taken place at 4 or 5 a.m., as suggested by the defence, that could not be the condition of the stomach and intestines of the deceased. The aforesaid evidence further shows that Ram Kewal was done to death through severe injuries received by him on his back by means of a blunt weapon like lathi, and that he was also assaulted by sharp-edged and pointed weapons.
18. Similarly the statement of Dr. J. P. Singh read with injury memos prepared by him proves that the four eye-witnesses were beaten with blunt, sharp-edged and pointed weapons at about 10 a.m. on the day of occurrence. The medical evidence led by the prosecution thus supports the statements of the four eye-witnesses about the time of occurrence and also about the weapons whereby the 5 victims of the prosecution side were assaulted.
19. The total number. of the injuries received by the 5 victims of the prosecution side comprises of at least 35 visible injuries. Some of the injuries of those victims are multiple as for example, injury No. 11 of the deceased which comprised of a large number of contusions extended over an area of 20 cm. x 6 cm. and had resulted in the fracture of 3rd to 8th ribs underneath, Besides visible injuries at least three victims of the prosecution side were complaining of pain in different parts of their body before the doctor. That excessive beating of the victims of the prosecution side supports the version of the occurrence given by the four eyewitnesses.
20. The other circumstance which lends support to the testimony of the four eye-witnesses comprises of the observations and recoveries made by S.-I. Hari Nath Singh P. W. 6 when he reached the place of occurrence at 2.05 p.m. the same day. He found Ram Kewal's dead body lying in his Karela field. Blood was also found lying there. The investigating officer also found blood lying in the wheat field of the deceased where Kedar P. W. 2 had fallen down and also in the Lahsun crop where Mahabir P. W. 3 had fallen down and his left leg was cut. Plain and bloodstained earth was acquired from those places by the investigating officer. The investigating officer also found harvested wheat crop lying in that field of the deceased where, according to the eyewitnesses, he was cutting the crop when the appellants had rushed towards him after shouting 'Jai Bajrang Bali'. The investigating officer had taken sample of cut wheat crop into his custody. He had also found crop lying in that Khalihan of Gokul and Kedar from where they were attracted to the scene of occurrence. The investigating officer also found that drain to be wet through which Irrigation of onion crop was being done by Mahabir and Sant Ram P. Ws. at the time of occurrence. Those observations of the investigating officer support the statements of the eye-witnesses to the effect that the occurrence took place when the deceased was cutting his wheat crop, Gokul and Kedar P.Ws. were working in their Khalihan, and, Mahabir and Sant Ram P. Ws. were irrigating their onion crop.
Yet another circumstance which lends support to the statement of the four eyewitnesses is that the version of the occurrence given by them at the trial finds place in a promptly lodged F.I.R. There is nothing on record to lead us to the inference that the F.I.R. was not lodged at the time when it purports to have been lodged. It having been lodged within 2V2 hours of the occurrence is definitely a prompt report and the version of the occurrence given in its gives full support to the statements of the eye-witnesses.
21. In view of the above corroborative pieces of evidence the learned Sessions Judge was perfectly justified in coming to the conclusion that the statements of the four eye-witnesses bore every credit about the time and place of the occurrence and also about the manner in which it took place.
22. Coming to the defence version of the occurrence. It is noteworthy that no report containing that version was ever lodged with the police on behalf of the defence. No evidence also has been led by the appellants to show that the occurrence had taken place in the manner pleaded by the defence. It is true that in order to make out a plea of private defence it is not necessary for the accused to lead direct evidence on the point, and it is open to the defence to rely upon the preponderance of probabilities which might emerge in its favour from the material on record. We have already referred to the various circumstances which lend support to the prosecution story and belie the defence theory. According to the defence Ram Kewal deceased armed with a spear and the four eye-witnesses armed with lathis had found Ram Prakash appellant alone and had beaten him. If that version of the occurrence was correct Ram Prakash could not escape only with one lacerated wound on his head and an abrasion on his right knee as found by Dr. B. P. Banerjee D. W. 1. At least some spear injury ought to have been received by him at Ram Kewal's hand. The injuries of Ram Prakash thus belie the taking place of the occurrence in the manner suggested by the defence.
23. Learned counsel for the appellants has mainly relied upon two circumstances in support of his argument to the effect that the occurrence had taken place in the manner pleaded by the defence and not in that suggested by the prosecution. The first circumstance relied upon by him is that the thatch of the roof of the building of Ram Prakash's tubewell was found burnt by the investigating officer. The second circumstance relied upon by him is that the injuries of Ram Prakash, Ram Lakhan and Sheo Bux appellants were not explained by the prosecution. After duly considering those two circumstances we are of the opinion that the same do not definitely belie the prosecution case.
24. The burning of the thatch of the building of Ram Prakash's tubewell at the time of occurrence is accepted by the prosecution. The suggestion of the prosecution in that behalf is that after giving a good beating to Ram Kewal and the other four injured witnesses the appellants went away towards the tubewell of Ram Prakash and in order to concoct a defence, they themselves pulled down the thatch of the building of Ram Prakash's tubewell and burnt it. This fact is mentioned in complainant's report which was promptly lodged at the police station. The investigating officer found burnt thatch of the tubewell building of Ram Prakash lying upon the ground by the side of tubewell's building. He has also stated that he found absolutely no. marks of burning upon the walls of that building. Apparently, therefore, the thatch of tubewell building was burnt after having been brought down upon the ground. If Ram Kewal deceased and his companions had gone to burn Ram Prakash's tubewell there was no reason for them to bring down the thatch upon the ground and then to burn it. They ought to have burnt it as it was, so that the entire building and the machinery installed therein was burnt to ashes. The observations of the investigating officer on the point give support to the prosecution version about the burning of the thatch of Ram Prakash's tubewell and belie the defence version in that behalf.
So far as the injuries of Ram Prakash, Ram Lakhan and Sheo Bux are concerned it has already been remarked above that Dr. B. P. Banerjee D. W. 1 examined those appellants in his dispensary in the afternoon of 11-4-73. He had found five bruises, a lacerated wound and a punctured wound on the person of Sheo Bux; a lacerated wound and abrasion on Ram Prakash's person and three abrasions on the person of Ram Lakhan. The prosecution does not own these injuries. The learned Sessions Judge has not doubted the genuineness of the injuries of the aforesaid three appellants. He has, however, held that the prosecution was not bound to explain the injuries of Sheo Bux, Ram Prakash and Ram Lakhan appellants because according to the defence they had received injuries at 4 or 5 a. m. on the day of occurrence and not at 10 a. m. when according to the prosecution the occurrence had taken place. It had also been observed by the learned Judge that the aforesaid three appellants might have received those injuries at 2 or 2.30 p.m. on the day of occurrence as according to Dr. Banerjee D. W. 1 the injuries of the aforesaid three appellants might have been caused at that time.
25. After considering the statement of Dr. B. P. Banerjee and the entire material on record we are of the opinion that Ram Prakash, Ram Lakhan and Sheo Bux appellants received injuries in the same occurrence wherein murder of Ram Kewal was committed and the four eye-witnesses of the prosecution side were assaulted. The statement of Dr. Banerjee about the injuries of those three appellants having been inflicted at about 2 or 2.30 p. m. was only his approximate estimate. His opinion does not rule out the possibility of receiving injuries by the aforesaid three appellants at about 10 a. m. on the day of occurrence. Once it is held that the injuries of the three appellants are genuine and substantial, it cannot be said that they got the same inflicted on their person at 2 or 230 p. m. The defence has undoubtedly given the time of occurrence as 4 or 5 a. m. on 10-4-1973 but it is nobody's case that two occurrences of mar-pit had taken place on that day, one at 4 or 5 a. m. and the other at 10 a. m. Both the parties agree that there was only one occurrence of marpit on that day. The material on record belies the taking place of the occurrence at 4 or 5 a. m. On the other hand, it proves that the occurrence took place at 10 a. m. It is, therefore, obvious that Ram Lakhan, Ram Prakash and Sheo Bux appellants received injuries in the same occurrence which took place on that date at 10 a. m. That being so. the prosecution ought to have offered some explanation of the injuries of the three appellants. There is, however, no explanation of the injuries of the defence side in the prosecution evidence and we have to consider the effect of that non-explanation of the defence injuries upon the prosecution case and the evidence led. in its support,
26. Relying upon their earlier decision contained in Bankey Lal v. State of U.P. : 1971CriLJ1540 their Lordships of the Supreme Court observed in Bhagwan Tana Patil v. State of Maharashtra : 1974CriLJ145 :
There is no hard and fast rule that simply because the prosecution witnesses did not explain the injuries on the person of the accused, their entire evidence should be discarded.' The effect of the failure of the prosecution to explain the injuries of the defence side when the accused claim right of private defence on the basis of their injuries, again came up for consideration before the Supreme Court in State of Gujarat v. Bai Fatima : 1975CriLJ1079 and Puran Singh v. State of Punjab : AIR1975SC1674 . It was laid down in those authorities that (at p. 1489):
In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow:
(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.
(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all.
27. We have already referred to the direct evidence which is upon the record of the present case and also the weighty circumstances which indicate that the occurrence had taken place in the manner pleaded by the prosecution and not in that suggested by the defence. In, the face of those circumstances we are not prepared to hold that the present case falls under any of the above noted first two categories. It can fall only in the third one, and the reasonable inference, which can be drawn by the failure of the prosecution witnesses to explain the injuries of the defence side, is that they had falsely suppresed the injuries of the three appellants which were definitely received by them at the time of the occurrence. On that account we may subject the statements of the four eyewitnesses to careful scrutiny regarding participation of different appellants in the occurrence, but we cannot reject the prosecution evidence relating to the genesis of the occurrence and the substratum of the prosecution story,
28. In Lakshmi Singh v. State of Bihar : 1976CriLJ1736 their Lordships of the Supreme Court considered the aforesaid earlier decisions and made the following observations (at p. 1742):
In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
: 1968CriLJ1479 and : AIR1975SC1674 relied on.
29. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.
30. 'There may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. : 1975CriLJ1079 relied on)'.
31. We have examined the facts and circumstances of the present case in the light of the above noted guidelines. In our opinion the statements of the four eye-witnesses examined by the prosecution in the present case are credible so far as the genesis and origin of the occurrence are concerned. They received substantial injuries in the occurrence and their presence at the time of occurrence cannot be doubted. The observations and remarks made by the investigating officer and other circumstances referred to above give full corroboration to their statements about the genesis and origin of the occurrence and also the manner in which it took place. The aforesaid circumstances definitely belie the taking place of the occurrence in the manner suggested by the defence. In this state of affairs the failure of the four eye-witnesses to explain the injuries of the three appellants can, at the most lead us to the inference that they have told a lie on that point and have falsely suppressed the injuries which were definitely received by the three appellants at the time of occurrence. It, however, need not be emphasised that the principle of falsus in uno falsus in omnibus is not to be blindly invoked in appraising evidence adduced in our courts where witnesses seldom tell the whole truth, but often resort to exaggerations, embellishments and 'padding-up', to support a story however, true in the main. It is the function of the Court to disengage the truth from falsehood and to accept what it finds to be true, and reject the rest. If, however, truth and falsehood are inextricably mixed up, polluting beyond refinement the entire fabric of the narration given by a witness the Court might be justified in rejecting his evidence in toto.
32. It is accepted by the defence itself in the present case that some villagers had arrived when marpit was going on and they had beaten the wrong doers. If the occurrence had taken place in the manner suggested by the prosecution and the appellants were beating Ram Kewal deceased and the four injured P. Ws. mercilessly, there is nothing surprising if the villagers, who reached the scene of occurrence, beat Ram Prakash, Sheo Bux and Ram Lakhan appellants in order to save Ram Kewal deceased and the other injured persons of the prosecution side. It appears that the four injured P. Ws. thought it proper either at their own initiative, or upon the advice tendered to them, to suppress the injuries of the three appellants. The conduct of these four eye-witnesses in suppressing the injuries of the three appellants can only make the Court alert in scrutinising their statements about the participation of different appellants in the occurrence. The entire statement of these witnesses about the manner in which the occurrence took place cannot be disbelieved on the basis of that conduct alone, when the circumstances of the case, already referred to above, corroborate their statements about the broad features of the prosecution case. We are, therefore, of the opinion that though the prosecution and the four eyewitnesses examined by it have wrongly suppressed the injuries received by Ram Prakash, Ram Lakhan and Sheo Bux appellants in the occurrence, yet their statements cannot be rejected in toto on that account. Those witnesses can simply be categorised as partly reliable and partly unreliable witnesses and their statements about the participation of different appellants should be accepted only when corroborated by other sources,
33. Thus viewed we find no difficulty in placing reliance on the statements of the four eye-witnesses about the participation of Ram Prakash, Sheo Bux and Ram Lakhan in the occurrence because they admit their participation therein and had received injuries at the time of occurrence. Shiv Ram Singh appellant does not admit his participation in the occurrence, All the four eye-witnesses have stated about his participation in the occurrence. They have further stated that Shiv Ram Singh had a Pharsa whereby injuries were caused to Ram Kewal deceased, Gokul, Kedar and Mahabir P. Ws. All the eye-witnesses have consistently stated that the left foot of Mahabir was cut by Shiv Ram Singh appellant by his Pharsa. The medical evidence corroborates the statements of the eye-witnesses on the point. The role assigned to Shiv Ram Singh by the eyewitnesses at the trial is also mentioned in the F. I. R. which was lodged quite promptly, The statements of the four eye-witnesses regarding the participation of Shiv Ram Singh appellant in the occurrence therefore, find support by medical evidence and a prompt F.I.R. On the basis of that corroboration we find it absolutely safe to rely upon the testimony of the four eye-witnesses about Shiv Ram Singh's participation in the occurrence complained of.
34. Jang Bahadur Singh appellant had participated in the occurrence with a Kanta. All the four eye-witnesses have stated that Jang Bahadur Singh beat the deceased and other victims of the prosecution side with his Kanta. Dr. J. P. Singh found Kanta injuries on the person of Gokul and Kedar. Dr. R. K. Verma also found incised wounds upon the body of Ram Kewal. It is mentioned in the F.I.R. that Jang Bahadur Singh armed with a Kanta participated in the occurrence. The statements of the four eye-witnesses regarding participation of Jang Bahadur Singh in the occurrence thus find the memo corroboration from the medical evidence and the F. I. R. which corroboration is available regarding Sheo Ram Singh's participation in the occurrence. We are, therefore, of the opinion that the statements of the four eye-witnesses regarding participation of Ram Prakash and Ram Lakhan armed with lathis, of Sheo Bux Singh armed with spear, of Shiv Ram Singh with a Pharsa and of Jang Bahadur Singh with a Kanta in the occurrence complained of are worthy of credit and can be safely accepted.
35. So far as the remaining eleven appellants are concerned, the F.I.R. shows that Ram Acchaiber and Ikram Singh had spears and others had lathis. The four eye-witnesses stated that Ikram Singh had lathi. No specific role is assigned to Ram Achhaiber either in the F.I.R. or by the eye-witnesses. The spear injuries received by the victims of prosecution side could be caused by Sheo Bux Singh alone whose participation in the occurrence has been believed by us.
36. Regarding lathi injuries of the prosecution side, Ram Kewal deceased is said to have been beaten with a lathi by Ram Prakash alone. The four injured prosecution witnesses had only eight typical lathi injuries (barring abrasions) which could be caused by Ram Prakash and Ram Lakhan appellants who had admitedly participated in the occurrence and, according to the prosecution, were armed with lathis. Considering the total number of lathi injuries received by the victims of the prosecution side it is obvious that they could not be caused by 12 assailants armed with lathis. It is mentioned in the F.I.R. that Nandu, Man Singh and Raj Bux Singh had beaten the first informant, namely Gokul, with lathis. Only two abrasions were found on Gokul's person by Dr. J. P. Singh. That being so, the averment in the first information report about Gokul's assault by three persons armed with lathis cannot be safely accepted. No overt act to other appellants armed with lathis, of course barring Ram Prakash, is attributed in the F.I.R. The medical evidence on record belies the participation of 12 persons armed with lathis in the assault of the four injured eye-witnesses. Thus the statements of the eye-witnesses about the participation of Ram Sahai, Ram Lal Hanuman Deen, Baijnath, Surya Bhan Singh, Raj Bux Singh, Nakchhed, Ram Acchaiber, Nand Bahadur Singh, Man Singh and Ikram Singh in the occurrence is extremely doubtful. We are, therefore, not prepared to uphold their conviction on the basis of the statements of the four eye-witnesses about whom we have already remarked above that because they have suppressed the injuries of the defence side, so their statements cannot be safely relied upon without corroboration by other independent sources. That independent corroboration is lacking regarding the participation of the aforesaid eleven appellants in the occurrence. On the other hand, the medical evidence belies the participation of so many persons armed with lathis in the occurrence.
37. In view of the above discussion we allow the appeals of aforesaid eleven appellants, namely Ram Sahai, Ram Lal, Hanuman Deen, Baijnath, Surya Bhan Singh, Raj Bux Singh, Nakchhed Ram Achhaiber, Nand Bahadur Singh, Man Singh and Ikram Singh, and set aside their conviction and sentences ordered by the trial court as in our opinion their participation in the occurrence is highly doubtful. We have, however, no doubt about the participation of Sheo Bux Singh, Jang Bahadur Singh, Sheo Ram Singh, Ram Lakhan and Ram Prakash appellants in the occurrence. Their participation in it is fully established by the statements of the four eye-witnesses which stand corroborated by a promptly lodged F.I.R., the medical evidence and other circumstances referred to above, The prosecution evidence shows that these 5 appellants, along with others, had formed an unlawful assembly at the time of the alleged occurrence for committing Ram Kewal's murder and for assaulting those who came in their way. The members of that unlawful assembly assembled in Ram Nidh's field and attacked Ram Kewal shouting 'Jai Bajrang Bali'. When Kewal rushed to his Karela field for safety he was felled down there by Ram Prakash, who gave a severe lathi blow upon the back of the deceased causing fracture of several ribs. The other guilty appellants also assaulted him till he died on the spot. The injuries received by Ram Kewal at the hands of his assailants, in the ordinary course of nature, were sufficient to cause his death. When the injured eye-witnesses intervened they were also beaten by the guilty appellants with lathis, Pharsa, Kanta and spear, resulting in grievous injuries to Mahabir and Kedar, and simple injuries to them and the injured witnesses, The learned Sessions Judge has, therefore, rightly convicted the aforesaid five guilty appellants under Sections 302/149, 323/149, 324/149, 325/149 and 326/149, I.P.C. He has also rightly convicted Ram Lakhan and Ram Prakash under Section 147 I.P.C. and the other three guilty appellants under Section 148 I.P.C. The sentences awarded to the five guilty appellants on the said charges do not call for any interference by us.
38. The result, therefore, is that the appeals of Ram Lakhan, Ram Prakash, Shiv Ram Singh, Jang Bahadur Singh, and Sheo Bux Singh appellants are dismissed. Their conviction and sentences ordered by the trial court are upheld. They are on bail. They shall surrender forthwith to undergo their sentences which shall run concurrently. Chief Judicial Magistrate, Sultanpur shall report compliance to this Court within six weeks. The appeals of the remaining eleven appellants, namely, Ram Sahai, Ram Lal, Hanuman Deen, Baijnath, Surya Bhan Singh, Raj Bux Singh Nakchhed, Ram Achhaiber, Nand Bahadur Singh, Man Singh and Ikram Singh are allowed and their conviction and sentences ordered by the Court below are set aside. They are on bail. They need not surrender. Their bail bonds are discharged.