S. Barman, C.J.
1. This is an appeal from an order of acquittal of 31 accused-respondents on a charge against accused Kshetrabasi Samal under Sections 147, 323 and 325 Indian Penal Code for being a member of the unlawful assembly having voluntarily caused hurt to the complainant-appellant Jagabandhu Behera and grievous hurt to him by dislocating a tooth by means of a knife-like black thing; against the other 30 accused-respondents under Section 147/323 Indian Penal Code for voluntarily causing hurt to the complainant by forming an unlawful assembly with the common intention to assault the complainant as alleged.
2. The case arose out of an incident on October 4, 1962 which was a Thursday at broad day light in the morning at about 11.00 a.m. in village Anantapur at Kujang Melan Padia near the Dak Bunglow belonging to the former local zamindar, in course of which, the accused-respondents are stated to have assaulted the complainant Jagabandhu Behera (appellant herein) with lathis and sharp instruments -- all in the manner as stated by the eye-witnesses hereinafter discussed. The motive is said to be some enmity due to Grampanchayat election contest against the accused Kshetrabasi Samal and also previous enmity with him in connection with some litigation. The same day at 5.00 p.m. the first information report was lodged by Maguni Charan Bis-wal who, however, was not examined at the trial. In the said first information report, he named the accused-respondent Nos. 1 to 7, namely, Kshetrabasi Samal, Chakradhar Samal, Pranakrishna alias Panu Majhi, Narayan Majhi, Narayan Panda, Dhadi Dalai, Brundaban Rout and two others. There is no mention of the other accused-respondents in the said first information to the police. On the said report to the police, a G.R Case No. 1943/62 was instituted against 10 accused persons (including accused-appellants 1 to 7) in the court of Magistrate Shri S.N. Murty.
3. It was not until November 23, 1962 that a complaint petition was filed by the complainant Jagabandhu Behera before the Magistrate in which he named all the accused Nos. 1 to 31 including the accused Nos. 1 to 7 against whom the F.I.R. was already filed as aforesaid. The complaint petition was filed in these circumstances as stated in the complaint petition: The complainant was senseless due to the injuries on him; the doctor apprehending that he might die took from him a statement and sent him to the Cuttack hospital; he was under treatment in the hospital till November 18, 1962; it was after his discharge from the hospital he came to know that an F.I.R. had been lodged at the police station, but the local police remained silent. The complainant stated in his petition that although the police got evidence against all the accused-respondents, they submitted charge-sheet against only accused Nos. 1 to 10; it was also complained that the police had not taken step the complainant expressed doubt that the police had not given complete and accurate statement of facts in the case diary; that the police had submitted charge-sheet against only 10 persons and not against all the 31 accused-respondents. The complaint was numbered as 909 C-I/62/216 T/63 in the court of S.D.M., Sadar, Cuttack.
4. The defence plea is a complete denial of the occurrence as alleged. The specific plea of all the accused persons, except Kshetrabasi, is that they have been falsely implicated in this case due to enmity. The plea of the accused Kshetrabasi is one of alibi in that, according to him, on the date of occurrence he was not present at Anantapur and was at Bisuali in the house of Loka-nath Samal where he went for attending a meeting of the cultivators protesting against mass eviction, etc., D. Ws. 6 and 7 are the alleged alibi witnesses.
5. The cases against accused Nos. 1 to 10 on police report and the case against all the 31 accused persons on the complaint petition including the accused Nos. 1 to 10 were clubbed together. In due course, after investigation, they were charged and tried by the learned Magistrate who acquitted them of all the charges against all the accused-respondents.
6. A point of law was raised on behalf of the defence challenging the maintainability of the appeal as against accused Nos. 1 to 10 which initially was taken cognizance of on a police report being G.R. Case No. 1943/62. The defence point in substance is this: The institution of the case against accused Nos. 1 to 10 was initially upon a police report under Section 190(1)00) Criminal Procedure Code, whereas the case against the remaining accused Nos. 11 to 31 -- along with accused Nos. 1 to 10. was upon a complaint petition under Section 190 (1)(a) Criminal Procedure Code. For the purpose of appeal against acquittal, the case instituted on police report under Section 190(1)(b) is provided for in Section 417(1) of the Code; the case of acquittal of accused persons against whom the case instituted upon receiving a complaint under Section 1.90(1) (a) Criminal Procedure Code is provided for in Sec 417(3) of the Code. In such a case, according to the learned defence counsel clubbing together of the two cases -- G.R. case and complaint case --as done in this case by order of the Mag'strate for joint trial of the two cases, will not amount to conversion of the two cases from one class to another. It was argued that the maintainability of the complainant's appeal is to be judged on the footing as tohow the case was Initially instituted against the accused-respondents; admittedly the case against accused Nos. 1 to 10 in the G, R. case was initially instituted on the foot-Ing of a police report; whereas the case against the remaining accused Nos. 11 to 31 was initially instituted upon complaint which was subsequently received by the Magistrate. It was on this reasoning it was submitted on behalf of the defence that the complainant's appeal, so far as accused Nos. 11 to 31 are concerned -- against whom cognizance was taken on a complaint petition -- is maintainable under Section 417(3) Criminal Procedure Code; whereas the complainant's appeal as against accused Nos. 1 to 10 -- against whom cognizance was taken on police report as aforesaid -- is not maintainable under Section 417(3). While challenging the maintainability of the complainant's appeal as against acquittal of accused Nos. 1-10, it was contended that it was a serious defect in the procedure which could not have been waived by consent.
7. In support of the defence contentions on the question of maintainability, the learned defence counsel relied on certain decisions which, in my opinion, do not cover the points on the facts of this case. The learned defence counsel relied on a decision of the Supreme Court in Jamuna Singh v. Bhadai Shah, AIR 1964 SC 1541. This case is not an authority on the point of merger, that is to say, clubbing or tagging together of two criminal cases for joint trial of the accused persons, as in the present case. The Supreme Court decision was also considered by a learned single Judge of this Court in Bankebehari Modi v. Ramawa-tar Saha in Cri Revn. No. 488 of 1965 (unreported) D/- 2-9-1966 (Ori) -- in which the peculiar facts of that case were noted; indeed, the decision is no authority on the question of merger of a complaint case into police case or vice versa.
8. In none of the decisions relied on behalf of the defence on the point of maintainability the provisions of Section 239 of the Code of Criminal Procedure, as to what persons may be charged and tried jointly, do not appear to have been considered. Section 239 Criminal Procedure Code, so far as relevant for the present case, is this:
'239. The following persons mav be charged and tried together, namely:--
(a) persons accused of the same offence committed in the course of the same transaction;
(b) XX XX XX XX (c) XX XX XX XX(d) persons accused of different offence committed in the course of the same transaction;
(e) XX XX XX XX(f) XX XX XX XX (g) XX XX XX XXand the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges.'
9. On careful examination of the procedure adopted by the Magistrate in each of the two cases -- the G. R. case against accused Nos. 1 to 10 and the complaint case against accused Nos. 1 to 31 including accus-sed Nos. 1 to 10 -- were clubbed together for the purpose of joint trial because all the 31 accused-respondents were accused of offences committed in course of the same transaction. Considered from this aspect I do not find any merit in the defence contentions challenging the maintainability of the appeal against order of acquittal of accused Nos. 1 to 10.
10. This view is confirmed by what appears from the order sheet of the Magistrate's record in the court of S.D.M., Sadar of Cuttack in the complaint case No.
(Jagabandhu Behera v. Bhagi Samal and Ors.) under Section 147/328 Indian Penal Code. By order dated January 23, 1963 quoted hereunder accused Nos. 1 to 10 were excluded. For clear appreciation of the point, the relevant portions of the said order sheet are set out below:
'23-1-63 -- I have persued the statement of the witnesses and the enquiry report. I agree with the finding of the Enquiring Magistrate. There is a prima facie case against the accused persons Under Section 147/323 I. P.C. except the first ten accused persons as per the complaint petition since they have already been sent up for trial in G. R. No. 1943/62. Cog. taken, against accused persons for serial Nos. 11 to 31 as per the complaint petition Under Section 147/323 I.P.C. ... Summon the accused persons for 5-3-63.
5-7-63. -- XX XX XX. The complainant files a petition to club this case with the analogous G. R. Case No. 1943/62 on the grounds stated in the petition. The pleader for the accused objects to it.
Put up on 12-7-63 for consideration ofthis petition. XX XX XX
12-7-63. XX XX. The petition ofthe complainant for clubbing this case withthe analogous G. R. case is put up today.Heard parties. They want to place specificrulings on the legality and procedure aboutthis point. Put up on 15-7-63 for orders. . .
15-7-63. -- Heard lawyers further on the point, as per order dated 15-7-63 in G. R. case No. 1943/62. this case is clubbed with the aforesaid case when provisions under, Section 252 Cr.P.C. will be followed. Summon witnesses to 8-8-63. Complainant to take steps .... . . '
11. It is clear from the records of the proceedings that cognizance was taken first in the G. R. case against accused nos 1 to 10 by one court; thereafter, cognizance waa taken on complaint petition by another court against accused Nos. 11 to 31. In course of the proceedings, petitions were moved in each court for the hearing of both the cases together under the provisions of Section 239 (a) and (d). Criminal Procedure Code for joint trial of the accused persons. Both the courts granted the prayer separately. Thereafter, there was a common trial of the cases as a complaint case. Thus, no party has been prejudiced by reasons of the court adopting this procedure.
12. This view is supported by the provisions of Section 239, Criminal Procedure Code quoted above. Section 239 permits a Magistrate to hold a joint trial of various persons under the conditions mentioned therein. If, therefore, it is permissible under |the section for the Magistrate to hold a joint trial of the accused named in the police report and the accused named in the complaint, there is nothing illegal in the Magistrate amalgamating the two cases and holding a .joint trial even though the accused in the police report may not all be the same as those in the complaint. The Magistrate is of course not bound to hold a joint trial for there may be circumstances in a particular case where it may not be proper to hold a joint trial e.g. though the offence may be one, the persons prosecuted by the police may be totally different from the persons named in the complaint; in such a case, it will obviously be improper to amalgamate the two cases and hold a joint trial. But if there are no circumstances which make a joint trial in particular cases improper, a Magistrate has the jurisdiction to amalgamate the two cases and hold a joint trial of the accused mentioned in the police report and in the complaint, provided he can do so under Section 239 (Mukania v. Acha-lia, AIR 1952 Raj 160).
13. This brings up to the merits of the prosecution case against the 31 accused-respondents.
14-26. [His Lordship then discussed the evidence and continued as under]:--
The broad reasoning on which the learned Magistrate did not accept the direct testimony of the eye-witnesses (P. Ws. 1, 2 and 5) is -- as stated in his judgment --This:
'The witnesses to the occurrence ar' P. Ws. 1, 2 and 5. P. W. 1 is a man of village Balarampur, which is also the village of complainant's father-in-law Jagu Behera. Krishna is the son of the Jagu Behera and he calls Krishna as his brother, Per chance this P. W. 1 came to Anantapur bazar when he saw the occurrence. It is difficult to place any reliance on the evidence of this P. W., who is somewhat related to the complainant.
P. W. 2 though not formally declared as hostile is a hostile witness and P. W. 3 has also stated in his chief that this witness along with Maguni Biswal, the first informant of the G. R. case and others were subsequently gained over by the accused persons. Though in the chief this P. W. 2 gives a vivid description of different assault by different accused persons at different stages, in cross-examination he could not say who assaulted whom during the occurrence and he also did not see any injury on the person of Jagabandhu. He even went to the extent of saying that he did not sea accused assaulting Jagabandhu on the date of occurrence. The hostility of this witness has been sufficiently brought out from his own evidence, and evidently he is suppressing the truth ....
The only witness who remains is P. W. 5 Babaji Behera, the fisherman carrying on business at that place. This Babaji Behera is a fisherman of Cuttack and he used to go to Kujang for carrying fish business. He was remaining in the rented house of one Kula Patnaik. Curiously enough nobody sold any fish to him on the date of occurrence ..... it is difficult to believe that when 31 accused persons came in a body armed with lathis and assaulted the complainant mercilessly, none from those shops came there excepting a chance witness who was only occasionally going to the place for carrying fish business who came from his house for witnessing the occurrence.'
27. It is not understandable why the evidence of P. Ws. 1 and 5 -- so far as they said about the 7 accused persons having participated in the crime in the manner as mentioned in the F. I. R. -- should not be accepted. One of the grounds on which the learned Magistrate did not accept the evidence of P. W. 1 is that he was 'somewhat related' to the complainant; it is on such flimsy extraneous considerations that the learned Magistrate did not rely on the evidence of this witness. That apart, the evidence of both P.Ws. 1 and 5 was discarded by the learned Magistrate on the ground that they were chance witnesses. There is no magic in the comment 'chance witnesses'. Though this is the usual argument, its implication is hardly understood. In broad day light, as in the present case, different persons are bound to follow their own avocations of life and while doing so they are likely to come across incidents which in the ordinary course they never contemplated to see. Unless their evidence is otherwise assailable, it cannot be whittled down merely on the theory that they were chance witnesses : Himirika Lokanath v. State, ILR 1962 Cut 661.
28. What P. W. 1 stated in evidence implicating the said 7 accused persons --named in the F.I.R. -- taking part in the incident in the manner they did is, in substance, this; Upon hearing the shout of the crowd to assault the complainant Jagaban-dhu, he (Jagabandhu) came out to the Melan Padia towards the motor stand; then accused Brundaban and Narayan Majhi gave two lathi blows on the back of Jagabandhu; then Jagabandhu ran towards the P.W.D. tent; at that time, among others, accused Kshetrabasi, Chakradhar, Pranakrushna Majhi, Dhadi Dalai and Narayan Panda assaulted the complainant by means of lathis; the complainant entered into the tent out of fear for life; accused Kshetrabasi, Chakradhar and Narayan pulled out the pegs of the tent and wanted to enter into it; while they entered into the tent, the complainant went running towards the banian tree. He also said that accused Kshetrabasi, Chakradhar, Pranakrushna Majhi alias Panu Majhi, Narayan Majhi and others assaulted the complainant with lathi blows while the complainant fell down as a result of the assault and was crying for help; while the complainant was crying for help, accused Kshetrabasi thrust a knife-like black thing into the mouth of the complainant, as a result of which, his tooth was broken; he saw his mouth bleeding; while the complainant was crawling into the Debi Ghar, accused Brundaban gave a lathi blow on the right leg of the complainant; similarly, accused Dhadi Dalai raised a blow at the complainant; complainant fell down in the Debi Ghar and became unconscious.
29. Then as regards what the other witness (P. W. 5) has said about those -- out of the 31 accused persons -- specifically mentioned in the F. I. R. as having assaulted the complainant in the manner they did was, in substance this:
On the date of incident when he was at Anantapur bazar, accused persons raised hulla and hearing it he went to the spot: he found people including the said accused persons coming to the verandah of the Dak Bungalow where the complainant was sitting; the accused were shouting to assault Jagabandhu; then Narayan Majhi and Brundaban Rout with lathis assaulted Jagabandhu from behind on his head when he was try-Ing to enter into the tent and his head was wounded: then accused Kshetrabasi, Chakradhar. Pranakrushna Majhi. Narayan Panda, Dhadi Dalai and others with lathi assaulted on the head, hand and waist of Jagabandhu when he entered inside the tent: the witness (P.W. 5) tried to dissuade the accused persons, but accused Chakradhar, Kshetrabasi and Narayan Majhi uprooted the southern pegs of the tent and assaulted the complainant with lathi blows; when the complainant went to a tree, he was dealt lathi blows by some of the accused persons and his head was wounded; by then, accused Kshetrabasi gave a push to Jagabandhu with a black knife, and as a result of which, one tooth of Jagabandhu was broken and blood was coming out of his mouth; when Jagabandhu was going to the temple of Debi Ghar, accused Brundaban dealt a lathi blow on his right leg.
30. In such a case, the duty of the court in the matter of appreciation of evidence has been laid down by the Supreme Court thus: Though the prosecution witnesses have not told the whole truth and though it is not possible to get an absolutely true picture of the events from the evidence, still it is not possible to accept the contention that the prosecution case is a complete fabrication and where it appears that certain assaults -- even murders -- have resulted from rioting in which some at least of the accused persons participated, the Court must make an effort to disengage the grain from the chaff. It is an error to take an easy course of holding that the evidence is discrepant and that the whole case was untrue -- (Abdul Gani v. State of M. P. AIR 1954 SC 31).
31. In the present case, the learned Magistrate has taken the easy course of discarding the evidence of the eye-witnesses altogether, without taking the trouble of sifting the grain from the chaff. It was a case of broad daylight assault on the complainant in a public thoroughfare, in the bazar area, in the vicinity of the Dak Bungalow. It was within a few hours of the incident that the F.I.R was lodged at the local Police Station the same day in the afternoon. It is understandable that the benefit of doubt can be given with regard to those other accused persons subsequently named as afterthought in the complaint petition filed more than 1.1/2 months after the incident, but no such ground can be given for disbelieving the evidence of P. Ws. 1, 2 and 5, with regard to the accused named in the F.I.R. The learned Magistrate discarded their evidence on extraneous considerations as discussed above.
32. As regards the alleged plea of alibi, in view of the consistent clinching evidence of the eye-witnesses that the accused Kshetrabasi Samal with a knife broke one tooth of Jagabandhu, the alibi evidence of the defence witnesses D. Ws. 6 and 7 that the accused Kshetrabasi Samal was at Biswali in the house of Lokanath Samal cannot be accepted.
33. In this view of the case, the order of acquittal of the accused-repondent Kshetrabasi Samal is set aside; he is convicted under Section 325 Indian Penal Code and sentenced to six month's rigorous imprisonment: he is also convicted under Sections 147 and 323 Indian Penal Code but no separate sentence on those counts. The order of acquittal of the accused Chakradhar Samal, Pranakrushna Majhi, Narayan Majhi, Narayan Panda, Dhadi Dalai and Brundaban Rout is also set aside; they are convicted under Section 323 Indian Penal Code and are sentenced to three month's rigorous imprisonment each; they are also convictedunder Section 147 of the Indian Penal Codebut no separate sentence on that count.The criminal appeal against the orderof acquittal of the said 7 accused-respondents is allowed in terms aforesaid; and thecriminal appeal against the order of acquittal of the remaining 24 accused-respondentsis dismissed.