Chandrapal Singh, J.
1. The accused-appellants were charged with and tried for offences punishable Under Sections 148, 307/149 and 307/149 on two counts in their having, on 20-3-1978 at about 1-30 P. M. at Nagda while being armed with weapons like iron chains, rubber belts and sticks, formed an unlawful assembly whose common object was to murder Shantigopal (P.W. 2) and Raja-ram (P.W. 12) and in the prosecution of their common object, injured Shantigopal (P- W. 2) and Rajaram (P.W. 12) with such intention and under such circumstances that had they died, they (appellants) would have been guilty of their murder, before the Second Additional Sessions Judge, Ujjain (in Sessions Trial No. 96 of 1978). The Additional Sessions Judge though has acquitted each of them of offence punishable Under Sections 307/149 Indian Penal Code on one' of the counts - regarding the injuries caused to Raiaram (P.W. 12, has held them guilty of offence punishable Under Section 323/149 Indian Penal Code for injuring Raiaram (P.W. 12) and of offences punishable Under Sections 307/149 and 148 Indian Penal Code. For the offence punishable Under Section 323/149 I. P. C, each of them has been sentenced to rigorous imprisonment for six months; for the offence punishable Under Section 307/149 Indian Penal Code each of them has been sentenced to rigorous imprisonment for 3i years and for the offence punishable Under Section 148 Indian Penal Code each of them has been sentenced to rigorous imprisonment for six months with a direction for these sentences to run concurrenily.
2. In the town of Nagda, there is a Textile Factory called 'Bharat Commerce' and there are two rival unions of labourers working in it. One of them is named Bharat Commerce Majdoor Sangh whose General Secretary is Shantigopal (P.W. 2, President Jagdishchandra Shukla (P. W- 3) and the Vice-President Rajaram (P.W. 12). The rival union is called 'Textile Kamgar Union'. This Textile Kamgar Union on 26-2-1978 had directed its labourer members to remain on strike but this strike had been held to be illegal by the Labour Court, Ujjain on 26-2-1978. None the less quite a few of the labourers of the Textile Kamgar Unio were continuing to be on strike, whereas the members of the rival union were opposed to such a strike and their office holders particularly including Shantigopal (P.W. 2) were persuading them to call off their strike and go to work in the factory.
3. It was in this context that on 20-3-1978 at about 1-30 p. m. while Shantigopal (P. W- 2, Jagdishchandra (P.W. 3) and Raiaram (P.W. 12) from the house of Jaedishchandra Shukla (P. W- 3) in Birlagram Nagda were returning to the house of Shantigopal (P.W. 2) situated in the Government Colony, Nagda and were passing in front of the appellant Sohalal's house that the appellants coming out of their house armed with sticks, iron chains and belts started shouting that they (the three prosecution witnesses) being stooge s were favourites with the administrators of the factory. They be done away with. Jagdishchand-ra Shukla (P.W. 3) managed to run away little distance but not Shantigopal (P.W. 2) whom the appellants surrounded and smarted severely beating with their respective weapons. When Rai.a-ram (P.W. 12) went to rescue Shantigopal (P.W. 2) he also was beaten. Shantigopal (P.W. 2) severely injured and profusely bleeding became uncon- scious. At 1-45 p. hi. at a distance of ll furlongs, Jagdishchandra Shukla (P- W. 3) lodged the first information report (Ex. P. 31). B. K. Vyas (P.W. 16) Sub-Inspector Police went to the spot took Shantigopal (P.W. 3) to the Civil Hospital, Nagda where Dr. Miss Silawat (P.W. 1) on examining Shantigopal (P.W. 2) found eight bruises of varying sizes - first with ecchymosis on the left side of the face, second on the left cheek, third on the upper side of left eyebrow, fourth on the left side of the neck, fifth on the righl upper side of the chest, sixth on. the right lower side of the chest, seventh on the upper right side of the back and eight on the lower right side of the back; an abrasion on the right side of the lower eyelid; three lacerated wounds - one situated on the front of the middle of the leg, second just near it and the third also below the second of these injuries and two ecchymosis on the right forearm near the elbow joint and the other on the left forearm near the wrist joint. All these injuries were capable of being caused by a hard and blunt object. She advised X-ray photographs to be taken of the bruises on the right side of the chest and the lower side of the chest, ecchymosis on the right forearm near the elbow joint, ecchymosis on the left forearm near the wrist joint and bruises on the upper right side of the back and lower right side of the back respectively. She also advised for X-ray of the right and left forearms. She found Shantigopal (P.W. 2) in unconscious state and his general condition was not good. He was in neurogenic shock. He was kept under observation and later on he was referred to the Grasim Jana-Seva Trust Hospital, Nagda for further treatment.
4. Dr. D. R. Sonar (P- W. 10, the Chief Medical Officer, Grasim Jan Seva Hospital, Nagda on examining Shantigopal (P- W. 2) at 4-5 p. m. the same day found that Shantigopal (P.W. 2) had contused lacerated wound l' x 1/2' x 1/4' on the right leg in front, contusion 2' x 1/2' on the left Jhigh, contused lacerated wound 4' x 1/4' on the right elbow, multiple contusions seven in number on whole of the left arm, contused lacerated wound 4' x 1' on the left forearm dorsum and middle, contused lacerated wound 3' x 1/2' on the 1982 Cri. L. J./42 IV anterior wall of the left axilla, three contused lacerated wounds on the left side of the face, below the left eye, left cheek in the middle and left cheek be-hind the immediately foregoing injuries respectively; contused lacerated woutfd 1' x l' oh the right side of the face df the cheek, six contusions at various places on the back, surgical emphysema on the right side of the chest anteriorly, and fracture of the 8th, 9th and 10th fibs on the right side. He confirmed that the patient was under severe neurogeflic shock, in his opinion, all the injuries could have been caused by a hard and blunt object. Their duration was within six hours of his examining the patient. The injuries on the right side of the chest and fractures of 8th, 9th and 10th ribs were grievous in nature. Others were simple. By surgical emphysema, he had meant accumulation of air in the subcutaneous tissue which had come from the lungs as a result of trauma. The neurogenic shock was as a result of injuries sustained and sometimes this shock could be dangerous to life and injury entailing fractures of the 8th, 9th and tenth ribs was dangerous to life. According to him, contused lacerated wounds on the right leg, right elbow, left forearm, left axilla, left side of the face and right side of the face could have been caused by chains like articles B and D. Other injuries could have been caused by lathis. But a belt like Articles C could not have caused these injuries.
5. Dr. D. R. Sonar (P.W. 10) the same day examined Rajaram (P.W. 12) also and found that he had five contusions on the right arm just below the shoulder, middle and back side of the left leg, right lower eyelid, upper eyelid with subconjunctival, haemorrhage in the left eye and right side of back. These injuries were simple in nature capable of being caused by a hard and blunt object. Their duration was within six hours of his examining the patient. He got the X-ray photographs taken and found that Shantigopal (P.W. 2) had fractures of 8th, 9th and 10th ribs.
6. The appellants were arrested and pursuant to the information given by the appellants Shripat, Ganesh, Sohan-lal, Ttaju alias Laxminarayan, Ompra-kash, Amritlal, Kuldeep, Isudas and Ramchandra, Articles E lathi, a chain, a lathi, a lathi, a lathi, a lathi, a chain (Article B, a belt, and a chain (Art J) respectively were seized.
7. On these facts when charged with and tried, the appellants denying their guilt explained that they had been falsely implicated because Shantigopal (P.W. 2, Jagdishchandra Shukla (P.W. 3, Raiaram (P.W. 12) and Narayansingh (P, W. 6) etc., were members of the rival trade union (affiliated to INTUC) and were mixed up with the management of the Bharat Commerce. 6n earlier occasion also, they had falsely prosecuted them. They without doing any work, none the less got payments from the administration. Of them Ram-chandra further explained that some of the labourer members of the Textile Kamgar Union had been on strike since 26-2-1978 and the members of the rival labour-union had thrown stones on them with the result that one Nathu had sustained injuries. This had led some of the labourers belonging to Textile Kamgar Labour Union to retaliate identically (thereby suggesting that the concerned witnesses for the prosecution came to be injured at the hands of those labourers).
8. The learned Additional Sessions Judge relying on the evidence of the .eye-witnesse,s and the corroborative medical evidence though acquitted all the appellants on one of the counts for offence punishable Under Section 307/149 Indian Penal Code and holding them guilty instead of offence punishable Under Section 323/149 I P. C. and all the other offences charged sentenced them of which a detailed reference has been made at the very outset.
9. As regards the guilt of the appellants for offence punishable Under Section 148 Indian Penal Code, I find that it is not made out. Section 148 IPC prescribes enhanced punishment to only those persons who while committing rioting are armed with deadly weapons or with anything which used as a weapon of offence is likely to cause death. It is, however, not necessary that any such weapon or anything which used as a weapon of offence likely to cause death was actually used in the rioting. It would suffice if it was merely displayed. The application of the principle of constructive or joint responsibility laid down in Section 149 IPC is impossible of being extended by the very terms of section; to Section 148 IPC The evidence by the prosecution witnesses, assuming it to be true, attributes the possession of weapons like sticks (lathis, chains, or belts to the appellants. Neither of these weapons intrinsically is a deadly weapon and there is no evidence specifying that any of the appellants had used his weapon of offence in such a way as was. Ukely to cause death of either of his chosen victims - Shantigopal (P.W. 2) and Raja-ram (P.W. 12). Assuming, therefore, that the appellants had formed an unlawful assembly while they were armed with weapons like sticks, chains or belts with their common object of murdering either of their chosen victims and in the prosecution of that common object had committed rioting, they had committed only the offence punishable Under Section 147 IPC and not one punishable Under Section 148 IPC. Every one of them has been wrongly found guilty of the offence punishable Under Section 148 IPC and wrongly sentenced for it.
10. The question for decision is whether the appellants have committed the offence punishable Under Section 147 IPC or the two other offences of which they have been found guilty and sentenced with the helD of Section 149 IPC.
11. The offence of rioting made punishable Under Section 147 IPC and Section 149 IPC laying down a principle of constructive or joint responsibility have four elements in common. Both of them required:
(1) an assembly of five or more persons;
(2) all of them having a common object,
(3) that object being one of those laid down in Section 141 IPC or generally speaking to commit any offence; and
(4) that assembly using force or. violence in the prosecution of the common object of the assembly.
12. Section 149 IPC lays down the principle of constructive or joint criminal responsibility making every member of the unlawful assembly responsible for the act of the other, provided that the act is achieved in the prosecution of the common object of that assembly or as the members of that assembly knew to be likely to be committed. In other words, it will depend upon the circumstances of each case to make one criminally responsible for the act of the other and it would not matter whether the offence is committed by any one of them, or some of them, or all of them. It is very rare, though by no means impossible, to prove by direct evidence the prior agreement by an assembly of persons more than five in number regarding -heir achieving one of the unlawful objects specified Under Section 141 IPC and set-Ling out to achieve it. In most cases, as also in the present case, there is no such evidence and hence the formation of the unlawful assembly with the common unlawful object and the setting out of the members of that assembly to achieve that object (or objects) has to be inferred from the other evidence adduced.
13. A person is not guilty merely because he is present at the scene of crime and does nothing to prevent it. Complicity in a crime may be inferred by exhortation from other to commit a particular crime or his helping him t>r encouraging him. The concept of help includes co-operation, and help may be given even if the member to whom the help is being given be unaware of it, provided his conduct is such which leads that member to believe when committing the offence that he is being helped or will be helped if necessary by him. Mere presence may in certain circumstances constitute encouragement thereby emboldening the main perpetrator to commit the crime, But there must be a purpose to encourage, only accidental presence will not do. Even purposeful presence is not conclusive of co-participation where it does not indicate encouragement to the actual perpetrator. Then the principle of constructive (fictitious or non actual) or joint responsibility has not to be unduly extended. It has to be strictly construed. A charge for the commission of an offence with the help of Section 149 IPC (among other sections like Sections 34, 109 and 120B) can he embarrassing to the accused because of its vagueness and hence there is necessity of the proof of overt acts on the part of the constituent member of the unlawful assembly having a common object.
14. Bearing these principles of law in mind, let us examine the evidence on record, particularly in the context that in this case there was no compliance with the provisions contained in Section 157(1) Criminal P. C. thereby creating some suspicion that the first information report was not necessarily lodged immediately after the event. (See Ishwar Singh v. State of U. P. : 1976CriLJ1883 ) and Laxmi-narayan v. State (1977 MP LJ (Notes) 38)). The other reason for careful scrutiny of the evidence is that all the eyewitnesses for the prosecution belong to a rival union of labourers.
15. First to the participation of the appellants in the alleged rioting entailing beating t0 Shantigopal (P.W. 2) and Rajaram (P.W. 12)., As regards the appellant Sohanlal, no doubt according to Shantigopal (P- W. 2) as soon as he along with Jagdishchandra Shukla (P.W. 3) and Raiaram (P.W. 12) passed in front of his quarters (of the appellant Sohanlal) 10 or 12 persons came out of the house and beat him, but he could not be certain whether their number was 10, 12 or 13. Then he narrated the names of those persons, who came out of the appellant Sohanlal's house after seeing the accused persons in the dock during the trial. He does not attribute any overt act to the appellant Sohanlal at all except the fact that the other miscreants had come out of his house.
16. The evidence of Jagdishchandra (P.W. 3) includes the appellant Sohanlal also as one coming out of his house along with others but he in the first information report contained in the documents (Exs. P. 31 and P. 4) did not specifically relate that the appellant Sohanlal was also one of those, who had come out of his house, Narayansingh- P.W. 6's evidence is vague. According to him when he was passing through the place of the incident he saw accused persons beating Shantigopal (P.W. 2) and Rajaram (P.W. 12) in front of the appellant Sohanlal's house, Ramprasad- P.W. 7's evidence is similarly also vague that the accused persons were beating Shantigopal (P.W. 2) and Rajaram (P.W. 12).
17. Regarding the possession of a weapon, the evidence of Shantigopal (P.W. 2) who has not named the appellant Sohanlal among the persons beating him at all, has vaguely deposed that other miscreants were armed with sticks. According to Jagdishchandra (P.W. 3) Sohanlal was armed with a stick but he had not said so in the first information report or when interrogated by the Police, Narayansingh has been uncertain in pinpointing the weapon held by Sohanlal but later on added that the other accused (impliedly including Sohanlal) were armed with sticks, but he has been unable to pinpoint its use. The evidence of Ramprasad (P. W- 7) is also vague and follows in the footsteps of Narayan-singh (P.W. 6). No doubt a lathi had been seized from the house of Sohanlal but it does not have any incriminating significance. The evidence of Rajaram (P.W. 12) is also to the effect that the miscreants had come out of the house of Sohanlal. He does not attribute any overt act to the appellant Sohanlal. This evidence is insufficient to hold that the appellant Sohanlal was a member of the unlawful assembly. It is quite likely that he had ven not come out of his house.
18. As regards the criminal responsibility of the appellant Mohanlal except the bald statements of the concerned witnesses regarding rioting or injuring Shantigopal (P.W. 2) and Rajaram (P.W. 12, no overt act has been attributed to him with the exception of the ' deposition of Jagdishchandra Shukla (P.W. 3) contained in paragraph 7 to the effect that he was armed with a chain. But Jagdishchandra (P.W. 3) had not specified in the first information report that the appellant Mohanlal was armed with a chain. From some other appellants, allegedly incriminating articles, were seized but from the appellant Mohanlal no article like a chain or any other thing had been seized. From the evidence of Shantigopal (P.W. 2, it appears that the appellant Mohanlal could not have been armed with a chain. By implication the appellant Mohanlal could only have been armed with a stick which is not what Shukla (P.W. 3) has deposed. Shantigopal (P- W. 2) does not attribute any overt act in the sense of the appellant Mohanlal having used either a chain or a stick. Narayansingh-P.W. 6's evidence is equally., vague. He also does not attribute any act to the appellant Mohanlal. In the same footsteps follow the other witnesses - Ramprasad-(P.W. 7) and Rajaram (P.W. 12). Participation of the appellant Mohanlal in the incident, therefore, is most doubtful.
19. As regards the appellant Babulal S/o Ramchandra with the exception of the bald . statement of Jagdishchandra (P. W- 3) contained in paragraph 7 that the appellant Babulal S/o Ramchandra had a stick, no other witness, and even Jagdishchandra (P- W. 3) himself, does not attribute any overt act to him. He had in his first information report also not specified that the appellant Babulal S/o Ramchandra was armpd with a stick. No stick was seized from him. The evidence regarding his participation in the act is, therefore, again doubtful.
20. Regarding the appellant Babu S/o Shivram, there is not even this much of evidence except by implication it be conjectured that he might have been armed with something or the other.
21. As regards the appellant Shripat, there is again no evidence except that he was one of those, who had come out of the house of the appellant Sohanlal. Similar is the case with the appellant Lalchand.
22. With regard to the appellant Laxminarayan alias Raju, one of the injured Shantigopal (P.W. 2, who had identified others and named after seeing them in the Court, did not point out that the appellant Raju was among them. His evidence was that he did not remember whether there were others also along with the accused, he had identified by their names. Even Rajaram (P.W. 12) does not say that this appellant Laxminarayan alias Raiu was among those who had assaulted him. The complicity in the act of the appellant Laxminarayan, therefore, is doubtful.
23. With regard to the appellant Ramchandra according to Jagdishchandra (P.W. 3) and Rajaram (P.W. 12, Ramchandra Presswala had shouted that the stooges and sycophants of the administration of the mill were going and they were to be done away with. (See his deposition in paragraph 6). This declaration by the appellant Ramchandra would certainly constitute encouragement if it was followed by evn presence of the appellant Ramchandra while the beating by others was going on. But there is doubt about this part of the prosecution story. Shantigopal (P.W. 2) does net say that the appellant Ramchandra had uttered any words encouraging the other members of the assembly in any way. Nor do the witnesses Narayan-singh (P- W. 6) and Ramprasad (P.W. 7) say so. In the face of this conflicting evidence, the participation of the appellant Ramchandra in the sense of encouragement to other members of the assembly is not made out. Regarding his participation with others in the common abject of the (unlawful assembly otherwise, according to Shantigopal (P.W. 2, the appellant Ramchandra had dealt a stick blow. Jagdishchandra (P.W. 3) also deposes that the appellant Ramchandra was armed with a stick. But Narayansingh (P.W. 6) and Ramprasad (P.W. 7) say that he was armed with a chain. From the evidence of Raiaram (P.W. 12, it appears that with the exception of the appellant Ramchandra (and the appellant Ishudas) catching hold of him, he (by implication) had done nothing. He does not specifically sav that Ramchandra was armed with any weapon. Neither of the witnesses Shantigopal :(P. W- 2, Narayansingh (P.W. 6) and Ramprasad (P.W. 7) corroborates the fact that the appellant Ramachandra was one of those who had caught hold of Rajaram (P- W. 12). A cycle chain had been seized from his (the appellant Ram-chandra's) house but in the face of conflicting evidence regarding the weapon, if he was carrying one at all, the seizure of a chain is insignificant. His participation in the act is not free from doubt.
24. As regards, however, the participation in the act of the appellants Ishudas, Amritlal, Ganesh, Omprakash and Kuldeepsingh, there is no doubt. The evidence of Shantigopal (P.W. 2) contained in para 5 proves that these five appellants were among those, who had come out of the appellant Sohanlal's house. He had identified them in the Court and also named them. Then his evidence is that they had participated in the beating not only to him but also to Raiaram (P.W. 12). His evidence, however, with regard to the beating given to Rajaram (P- W- 12) has to be ignored because he (Shantigopal-P.W. 2) had become unconscious because of the beating he had already received. The evidence of Shantigopal (P.W. 2) is that the appellant Ishudas was armed with a belt and the appellant Kuldeepsingh with f cvcle chain, who had dealt two or three blows with it on his head, cheek and shoulder and the appellant Omprakash with a stick who had dealt two or three blows on his waist. Jagdishchandra (P.W. 3) corroborates him regarding the appellant Kuldeepsingh being armed with a chain and the appellant Ishudas with a belt. According to Narayansingh (P.W. 6, each of the appellants Genesh and Kuldeepsingh was armed with a chain, Ishudas with a belt and the -rest with sticks. The evidence of Ramprasad (P.W. 7) also corroborates the fact that the appellant Kuldeepsingh was armed with a cycle chain and the appellant Ishudas with a belt. Rest of them had sticks. The evidence of Rajaram (P.W. 12) is that the appellant Amritlal with a stick, among others, had beaten Shantigopal (P.W. 2) and others had beaten him with chains and a belt. When he tried to rescue, the appellant Ishudas slapped him. The evidence of B. K. Vyas (P.W. 16) and Prakash Dube (P.W. 18) further proves that from the houses of the appellant Ganesh a chain and from the appellant AmritlaL a stick had been seized. They also Drove that from the appellant Omprakash a bamboo stick had been seized.
25. It is true that neither of these articles taking in isolation connect, either of these appellants with the offences charged but on evaluating the entire evidence it does not remain in the least doubtful that at least these appellants were participants in the beating given to Shantigopal (P.W. 2) and Rajaram (P.W. 12). The evidence of Dr. Miss Silawat (P. W- 1) and Dr. Sonar (P.W. 10) which has already been referred to in detail, provss that either of these weapons-hard and blunt as they are, could have caused injuries to Shantigopal (P.W. 2) and Rajaram (P.W. 12).
26. There are no doubt contradictions but some of them have already been referred to in detail and others are not significant. For example, it has already been noted that in the first information report (Exs. p. 4 and P. 31) though the fact of the weapons carried by the members of the unlawful assembly being sticks, chains and a belt, had been specified generally, it was not specified that a particular member of the unlawful assembly had carried a particular weapon. But on analysis of. the evidence it has been ascertained that the possessor of the chains undoubtedly were the appellants Ganash and Kuldeepsingh, of belt the appellant Ishudas and of sticks the appellants Omprakash and Amritlal. It is again true that the first information report had not described in detail the roles of each of the members constituting the unlawful assembly, and Jagdishchandra (P- W. 3) came to describe the happenings in detail at the time of giving his evidence in the Court, but such a situation is understandable. The role of the first information report is primarily to set the machinery of law into motion. The first information report, therefore, is not supposed to be an encyclopedia containing all the details.
27. It is again true that with regard to some of the appellants, the evidence of the concerned witnesses has not been found sufficient to hold them to be the members of the unlawful assembly, but from that it does not necessarily follow that those very witnesses could not be relied upon with regard to others. The evidence of Narayansingh (P.W. 6) in paragraph 7 admits of the presence of other persons also (apart from the alleged appellants) on the scene of offence. According to Narajwnsingh (P.W. 6, when he reached the spot, he found 20 to 25 persons assembled and within a minute or two the crowd had increased to 60 or 70 persons. According to Ram-prasad (P.W. 7) apart from the appellants there were 10 to 12 other persona also present at the scene. The possibility of some of the appellants being mere spectators being not ruled out, it became necessary for me to examine in detail the evidence of the concerned witnesses to find out who were the actual participants and who were those against whom there was doubtful evidence.
28. Supreme Court on repeated occasions has warned us not to take the line of least resistance in discarding the evidence of a witness altogether when he happens to depose falsely on one point, it becomes the duty of the Court to strive to come lo the conclusion whether the evidence of such a witness is reliable on other points. If the witness is reliable on other points, his evidence is to be accepted in proof of those points and disregarded with respect to the point on which he has deposed falsely. The task of isolation of truth from falsehood may at times become impossible, when, for example, bulk of falsehood is mixed with traces of truth here and there inextricably. In such a situation the task has to be abandoned. (See for example, Masalti v. State of U. P. : 8SCR133 ).
29. The argument for the appellants that some of the witnesses for the prosecution have been suppressed, is attractive only On surface. No particular number of witnesses is required to prove a fact, at any rate the type of fact involved in this case. (See Section 134 Indian Penal Code). Before raising an Inference adverse to the prosecution Under Section 114(g) of the Evidence Act, it has to be first shown that the prosecution has withheld a witness, who was to unfold the story for the prosecution. In this case there were already sufficient number of witnesses for the prosecution and the examination oL other possible witnesses would only have added to the repetition of the same story over again by those witnesses, entailing a protracted trial. (See State of U. P. v. Jaggo : 1971CriLJ1173 ).
30. Ex. D/5 undoubtedly is an appeal by Shantigopal (P.W. 2) to labourers all and sundry presumably released on 1-4-1978 recalling the incident of 31-3-1978 and also the incident in question of 20-3-1978 but that document has to be construed only in the context in which it has been issued. It aims at amity among labourers. It cannot be construed as is being argued by the learned Counsel for the appellants that since i has omitted to specify appellants by name, his identifying them in the Court at the time of trial was not believable.
31. Similarly, it has been argued that since no blood was found on the place of the incident, it could not have been the place of the actual incident. It is not an invariable rule that the blood oozing out of the victim's body should always stain the ground. It mav be absorbed by the garments or be not sufficient to stain the ground or may have disappeared in the dust. Looking to the injuries sustained by both of the victims it does not appear to be a case of profuse bleeding and hence merely because no bloodstains were found on the scene of occurrence it cannot be held that in fact vit was not the place of the incident.
32. The argument that the injuries sustained by Shantigopal (P.W. 2) and Rajaram (P.W. 12) could have been caused to them by means of pieces of stones, that were possibly thrown ati them .bv those persons, who were standing near the strikers is not tenable. To neither of the injured witnesses had this suggestion been made. On the other hand, it was suggested to Jagdishchandra (P.W. SMin paragraph 43) that it was Rajaram (P. W- 12) and his companions, who had thrown stones on those who were on hunger strike and it was during the course of that stone-throwing that Shantigopal (P.W. 2) and Rajaram 'P.W. 12) had come to sustain injuries. We have already seen that the place of the incident was not where hunger strikers were sitting but it was in front of the appellant Sohanlal's house. The question, therefore, of Shantigopal (P.W. 2) and Rajaram (P.W. 12) sustaining injuries as a result of pelting of stones on them does not arise.
33. After having ascertained that the participants of the unlawful assembly were undoubtedly the appellants Ishu-das, Amritlal, Ganesh, Omprakash and Kuldeepsingh while they were armed with a belt, a stick, a chain, a stick and a chain respectively the evidence of two injured Shantigopal (P.W. 2) and Rajaram (P.W. 12) conclusively proves that they were beaten by means of those weapons. Their evidence is corroborated by Jagdishchandra (P.W. 3) Narayan-sineh (P.W. 6) and Ramprasad (P.W. 7) and above all by the independent medical evidence of Dr. Miss Silawat (P.W. 1) and Dr. Sonar (P- W- 10, which has already been referred to in detail. Each of them has committed the offence of rioting punishable Under Section 147 IPC. Each of them having a common object and neither of them by any overt act indicating that he had ceased to be a constituent member of the unlawful assembly at any point of time till that assembly had achieved its common object of beating its adversaries, each one of them is guilty of offence punishable Under Section 323/ 149 IPC with regard to injuries inflicted on Raiaram (P.W. 12).
34. The important question remaining for decision is whether with regard to injuries inflicted on Shantigopal IP. W- 2, each of the appellants is responsible for committing the offence punishable Under Section 307 IPC (with the help of Section 149 IPC).
35. For offence punishable Under Section 307 IPC, the prosecution has to prove that the accused has done an act with such a guilty intention (one of the three kinds of intention specified in Section 300 IPC) and knowledge and in such circumstances that but for some intervening fact the act would have amounted to murder in the normal course of events. The words 'under such circumstances' mean that the act must be done in such a way and with such ingredients that if it succeeded resulting in death the legal result would be murder according to the terms of Sections 299 and 300 IPC. 'It seems to me that if a person who has an evil intent does an act which is the last possi- ble act that he could do towards the accomplishment of a particular crime that he has in mind, he is not entitled to pray in his aid an obstacle intervening not known to himself. If he did all that he could do and completed the only remaining proximate act in his power, I do not think he can escape criminal responsibility, and this is because, his own set volition and purpose having been given effect to, to their full extent, a fact unknown to him and at variance with his own belief intervened to prevent the consequences of that act which he expected to ensue, ensuing.' Per Straight, J. in Queen-Empress v. Niddha ILR (1892) 14 All 38) quoted with approval in Wasudeo Balwanti Gogte v. Emperor AIR 1932 Bom 279 at p. 281 :1932-33 Cri LJ 613 at pp. 614, 615) which was again approved in Sariu Pra-sad v. State : 1965CriLJ766 .
36. No doubt Shantigopal ((P.W. 2) had sustained as many as 12 injuries (see the evidence of Dr. Miss Silawat-P.W. 1) but most of them were not of serious nature and they were inflicted on parts of Shanfcigopal P.W. 2's body which could not be called vital like head (containing brain, heart, liver, kidney, spleen and lungs (the injury to one of the lungs was indirect). Three lacerated wounds of minor sizes were on the middle of his leg- There were eight bruises scattered on the left ear, left cheek, left eyebrow, left side of the neck, right upper side of the chest, lower side of the chest, and right side of the back. There was one abrasion again of small size on the right side of the lower eyelid, ecchymosis on the right forearm near the elbow joint and another ecchymosis on the forearm. Weapons chosen to inflict them were not intrinsically lethal, Dr. Arun Desai (P.W. 11, who had taken the X-ray photographs had found the fractures of 8th and 9tJh ribs and according to Dr. Sonar (P- W. 10) there was fracture also of. the 10th rib. These injuries were neither accidental . no.r self-inflicted. They had been inflicted while the five appellants were pursuing their common object.
37. The learned Additional Sessions Judge has held that an offence punishable Under Section 307 IPC was committed, influenced undoubtedly by the opinion of Dr. Miss Silawat (P- W. 1) and Dr. Sonar (P. W- 10). According to Dr. Miss Silawat (P.W. 1, the general condition of the patient was not good. He was in a neuro-genie shock. Dr. Sonar (P- W. 10) also had noted that there was surgical emphysema by which is meant accumulation of air in the subcutaneous tissue and a surgical emphysema is sufficient to cause death, if it is untreated. According to him, injury No. 1 entailing fractures to the 8th, 9th and 10th ribs were dangerous to life.
38. Emphysema merely means gaseous distension of the tissues. It may be pulmonary which may again be either generalized or localized. Generalized emphysema often accompanies chronic bronchitis and localized emphysema may entail partial obstruction of a bronchus or bronchiole or it may be in alveoli adjacent to a segment of collapsed lungs. There are no data in the expert evidence to indicate that emphysema had reached such a stage1 as to cause death in ordinary course of nature.
39. The other reason for calling the iniuries sufficient in the ordinary course of nature to cause death was that the patient was suffering from neurogenie shock. By neurogenic shock is ordinarily meant a shock originating within or forming nervous tissue. 'Emotional disturbances, the effects of a blow across the throat, rupture of the uterus, a bleeding wound, crushing pelvic injuries, burns, corrosive poisoning, overwhelming bacterial infection, electrocution, can all cause shock of some kind. The common factor is iniurv - to emotional stability, to the delicate vaso-vagal or electrical control of the circulation, tissues. It is these traumas that bring about the consequences wrapped up in the word 'shock' - haemodynamic, physiological, and biochemical disturbances that betray a state of shock....' The instanft reaction to any hurt is largely a vaso-vagal reflex response, a 'neurogenic' kind of shock. A blow across the neck, in the 'solar plexus' or the scrotum may cause an instant vaso-motor collapse - a disturbance of heart rhythm or breathing that may be fatal. An electric discharge through the body may also cause instant or near-instant arrest of heart action and breathing, or of brain function. If not fatal, these functional disturbances may set in train the classical features of circulatory failure - hypotension, peripheral capillary stasis and anoxia, described by Moon in 1943 as: 'a disturbance of fluid balance resulting in a peripheral circulatory disturbance which is manifest by a decreased volume of blood, reduced volume flow, haemo-concentration and renal functional deficiency.' '
Shock results largely from:a) hypotension - or a reduced cardiac output (b) anox'a - from loss of blood pressure or output volume or oxygen-carrying capacity, and (c) endothelial permeability - increasing so as to cause loss of fluid, electrolytes and protein
'So when doctors use the word 'shock' in Court, they must be prepared to explain what they mean-simple emotional disturbance, vaso-vasal reflex, loss of blood tissue destruction, an immune reaction, drug damage or the consequences of these changes on the cardiac output, the blood pressure, the peripheral circulation and return flow; or the more profound and lasting effects of such changes - anoxia, capillary damage, histamine substance, becterial or drug toxicity. The ultimate effects of injury may indeed be complex, but the law accepts a chain of effects as linking cause and effect, however, tenuous, both in criminal and in civil law. It is only when some entirely unexpected happening occurs that this chain is broken. When a man injured at work is being taken to hospital with good prospects, but the ambulance is struck by lightning or overturns in a ditch with fatal results, the chain of events is broken. The law calls $his a novus actus interveniens.' (See Forensic Medicine VII Edition by Keith Simpson page 121 et seq.).
40. In this case there are no data furnished by the two experts even though Dr. Miss Silawat (P.W. 1) in paragraph 12 has admitted that if a patient be suffering from neurogenic shock, his blood pressure will be low, pulse will be of low volume, extremities will be cold and respiration will be irregular, She has noted neither of these. The opinion of Dr. Sonar (P.W. 10) also suffers from infirmities that he had not recorded the data that were necessary for coming to the conclusion to which he has come.
41. In Shabbir v. State (Criminal Appeal No. 154 of 1961) decided by this Court on 3-8-1961, the appellant Shabbir had been found guilty of the offence punishable Under Section 307 IPC by the Additional Sessions Judge, Dewas for having inflicted four stab wounds on the middle of the left buttock and two other wounds near around them apart from a lathi wound on his victim and the medical opinion was that all the stab wounds were dangerous to life. this Court relying on the cases of Provincial Government; v. Abdul Rahman AIR 1943 Nag 145 :1943-44 Cri LJ 512) and Wazira v. Emperor AIR 1940 All 113):(1940-41 Cri LJ 362) acquitted him of the offence punishable Under Section 307 IPC and convicted him Under Section 324 IPC. In this case, the question of finding the concerned appellants guilty of offence punishable Under Section 324 IPC does not arise as K stands proved to the hilt that the injuries inflicted on Shantigopal (P.W. JO had entailed the fractures of his ribs. The safe conclusion, therefore, is that the concerned appellants have committed the offence punishable Under Section 325/149 IPC with regard t0 injuries inflicted on Shantigopal (P.W. 2,
42. To conclude, the appeal is partly allowed. It being doubtful that the appellants Sohanlal, Mohanlal, Babulal S/o Ramchandra, Babu S/o Shivram, Shripat, Ramchandra, Raiu alias Laxmi-narayan and Lalchand were the members of the unlawful assembly whose common object was to beat their adversaries and in the prosecution of that common object they participated in either committing rioting or injuring either of their adversaries, they are acquitted of all the offences of which they have been found guilty. Their sentences for those offences are set aside. The appellants Ishudas, Amritlal, Ganesh, Om-prakash, and Kuldeepsingh in having committed rioting while being members of the unlawful assembly though are acquitted of the offence punishable Under Section 148 IPC, are instead found guilty of the offence punishable Under Section 147 IPC. Each of them having rightly been found guilty of offence punishable Under Section 323/149 IPC has rightly been sentenced to rigorous imprisonment for six months. Each of them is acquitted of the offence punishable Under Section 307/149 IPC but instead is found guilty of offence punishable Under Section 325/149 IPC for which each of them is sentenced to rigourous imprisonment 'for two years. Since the common object of the assembly was to grievously injure Shantigopal (P.W. 2) and cause simple hurt to Rajaram (P.W. 12) by means of hard and blunt objects, which the constituent members of the unlawful assembly did achieve, during the course of which they also happened to commit rioting, taking into account the provisions contained in Section 71 IPC, it would not be logical to sentence the concerned appellants separately for the offence punishable Under Section 147 IPC. They are, therefore, not. being separately sentenced for this offence. The sentences awarded for offence punishable Under Section 325 and Section 323 IPC both read with Section 149 IPC shall run concurrently. Each of the appellants shall be entitled to have his period of confinement during investigation, inquiry and trial set off against the period of sentence awarded. Articles seized in the trial be destroyed.