Man Mohan Singh Gujral, J.
1. This is an appeal by Ram Sarup and his brother Ram Kumar against their conviction under Section 325/34 of the Indian Penal Code and a sentence of eighteen months' rigorous imprisonment and a fine of rupees one hundred and fifty each imposed by the Sessions Judge, Ambala, by his order dated 5th January, 1968.
2. The case of the prosecution, as emerging from the statement of Hari Chand P.W. is that Ram Sarup and Ram Kumar were the sons of his brother Shiv Ram and Vijay Singh was his cousin. On 10th February, 1967, Hari Chand left his village Rawalwas at about 11 a. m. for going to village Kali Rawan in order to return Rs. 1,000/- to his cousin Bhagwanti and when he reached Matar Sham Bridge at about noon time he found the two appellants coming there in a rerhi. The two appellants raised alarm that they would not spare him and when he came down the bridge he found himself surrounded by the two appellants and their companions Shiv Ram and Viiay Singh. At that time Viiay Singh was armed with a bhala and the other accused had lathis with them and finding him in that situation all the four accused gave him injuries with their weapons. Viiay Singh gave blow from the wrong side of the bhala on his leg. On receipt of the injuries Hari Chand fell down and thinking him to be dead the four accused went away.
After a short time one Jai Karan happened to come there and with his help Hari Chand reached Balsamand Bridge from where he was taken in a tempo to the hospital at Hissar. After he was medically examined his statement was recorded by Siri Ram Sub-Inspector on the basis of which a case was registered against the two appellants and Shiv Ram and Vijay Singh. While Shiv Ram and Vijay Singh were given the benefit of doubt and acquitted, the two appellants were convicted and sentenced as above.
3. At the trial the appellants gave a counterversion of the occurrence and stated that Hari Chand attacked Ram Sarup in his field whose alarm brought Ram Kumar accused also to the spot and they gave injuries to Hari Chand in self-defence. The accused, however, did not produce any evidence in defence in support of their plea.
4. The medical evidence in this case shows that Hari Chand had received as many as twenty-one injuries with blunt weapons. Excepting injury No. 7 which was on the ankle all other injuries were simple. The injuries had been caused within about six hours from the time of the examination at 4.45 P. M. There is also the evidence of Dr. Sohan Lal to show that Ram Sarup accused had two injuries which had been caused with a blunt weapon and out of which one was grievous while the other was simple. Ram Kumar appellant was also found to be having one abrasion which was caused with a blunt weapon and had resulted in a simple injury. The appellants had been examined on 11th February, 1967, at 720 P. M. and the injuries on their persons were found to be twenty-four to thirty-six hours old. The above narration of the medical evidence would show that the prosecution story that Hari Chand had been injured with lathis stands corroborated from the presence of the injuries on his person. The prosecution case as to who had caused the injuries mainly rests on the testimony of Hari Chand alone.
The statement of Hari Chand shows that soon after the occurrence he had disclosed the names of the assailants to Jai Karan of village Dobi and had also mentioned these names to Mani Ram, driver of the tempo, but none of these witnesses has come forward to support Hari Chand's version Evidence was also led that lathis had been recovered from the appellants and Shiv Ram, but as these lathis had not been found to be stained with human blood no useful purpose will be served by discussing evidence regarding the recovery of the lathis at the instance of these accused No corroboration can, therefore, be found to the testimony of Hari Chand from the recovery of lathis from the possession of the accused.
5. The statement of Hari Chand is that he was carrying rupees one thousand to be returned to his cousin sister Bhagwanti, but Shrimati Bhagwanti has not been produced to depose whether any money was owing by him to Bhagwanti or not. Leaving that apart, the learned Sessions Judge has not accepted the evidence of Hari Chand that he was carrying money and the money bad been taken from his person by the accused. The evidence of Hari Chand was also disbelieved regarding the participation of Shiv Ram and Vijay Singh accused on the ground that there was no corroboration available to the evidence of Hari Chand regarding the participation of these two accused.
6. While canvassing that the case against the accused was not proved, the learned counsel appearing for the appellants has pointed out that there was no corroboration available to the testimony of Hari Chand against the two appellants also and that the defence set up by the accused could not be used to give the finding that they had participated in the assault on Hari Chand as the entire defence version would have to be taken into account and a portion only cannot be used to support the prosecution story against the appellants. It was also contended that no doubt the burden of proving the right of private defence was on the accused, but this situation would only arise if it is established that there was a case against the accused which they had to meet. It is stated that the evidence of Hari Chand being not worthy of credence it would not be necessary to find whether the defence set up by the accused was plausible or not.
7. It is common case of the parties that there is serious enmity between Hari Chand and the two appellants and their father. The father of the appellants, Shiv Ram, is a step-brother of Hari Chand and some two or three years earlier Shiv Ram and his two sons, who are the appellants, were challaned for having caused injuries to Hari Chand. They were, however, acquitted in that case and after that Hari Chand was implicated in a case by Shiv Ram in which he was also acquitted. It, therefore, stands fully established that the relations between the parties are very strained and this could be a motive for the accused to have assaulted Hari Chand. On the other hand, this enmity could also be the cause of Hari Chand falsely implicating at least some out of the accused.
8. As remarked earlier, the learned trial Court has found that there was some corroboration available to the evidence of Hari Chand in so far as the case against the appellants is concerned. In this respect reliance has been firstly placed on the fact that the first information report contained all the details of the occurrence and was lodged promptly. This piece of evidence was, however, available against all the accused and not only against the appellants. It was then observed by the learned Sessions Judge that Hari Chand could not have implicated innocent persons instead of real culprits. That may be so, but once it is found that some out of the accused have been falsely implicated, some material will have to be found on the record which will give an indication as to which out of the accused have actually participated in the crime before any of the accused can be held liable.
Support was then sought by the learned Sessions Judge from the fact that blood had been found on lathis Exhibits P-1 and P-2 which had been recovered from the two appellants. Again, I find that this piece of evidence is also not available against the appellants as it has not been established that the blood found on the lathis was of human origin. Support was also sought from the medical evidence which shows the presence of a large number of injuries on the person of Hari Chand, but this circumstance is wholly insufficient to show which out of the accused had taken part in the assault. Lastly, corroboration was sought from the statement of Ram Sarup and Ram Kumar wherein it had been pleaded that they had caused injuries in the exercise of their right of private defence of person which was available on account of Hari Chand having opened the assault on them.
On behalf of the appellants it has been debated before me that the learned trial Court was in error in coming to the conclusion that the defence of the accused was untenable and then taking support from their statements, that they had assaulted Hari Chand, for finding the case proved against them. Support for this argument is sought from the following observations made in Narain Singh v. State of Punjab, 1964 (1) Cri LJ 730 (SC):--
'Examination under Section 342 is primarily to be directed to those matters on which evidence has been led for the prosecution, to ascertain from the accused his version or explanation, if any of the incident which forms subject-matter of the charge and his defence. By Sub-section (3) the answers given by the accused may 'be taken into consideration' at the enquiry or the trial. If the accused person in his examination under Section 342 confesses to the commission of the offence charged against him the Court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining circumstaces appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety. It is not open to the Court to dissect the statement and to pick out a part of the statement which may be incriminative, and then to examine whether the explanation furnished by the accused for his conduct is supported by the evidence on record. If the accused admits to have done an act which would but for the explanation furnished by him be an offence, the admission cannot be used against him divorced from the explanation.'
In my opinion, the above observations are fully applicable to the facts of the present case. It was not open to the learned Sessions Judge to dissect those statements' of the accused so as to pick only a part out of these statements which was incriminating. The admission of the accused that they had committed an act which but for the explanation, would be an offence could only be used against them If the admission were taken as a whole. It was also observed that where a person accused of an offence claims the benefit of an exception the burden of proving that exception no doubt lies on the accused, but this burden is only to be undertaken by the accused if the prosecution case establishes that in the absence of such a plea he would be guilty of the offence charged. Where there is no reliable evidence in support of the prosecution case itself and where the responsibility arose only out of the plea raised by him, the Court could convict him only if the plea amounted to a confession of the guilt, but if the plea only amounted to admission of facts and raised a plea of justification the Court could not proceed to deal with the case as if the admission of facts which were not part of the prosecution case was true and the evidence did not warrant the plea of justification.
9. Viewing the facts of the present case in the light of the above observations, I find that no support could be taken against the accused from their plea that they had acted in the exercise of their right of private defence by only using their admission of the fact that they had caused injuries and leaving out of consideration the circumstances in which they alleged to have caused injuries to Hari Chand.
10. For the foregoing reasons, I hold that there is no reliable evidence in this case and it would not be safe to accept the solitary statement of Hari Chand especially when he has been found not to be a witness of truth. His evidence is not of a nature on which implicit reliance can be placed. I am, therefore, of the view that the case against the appellants has not been proved beyond reasonable doubt and accepting this appeal I set aside their conviction and sentence and acquit them. Fine, if paid, shall be refunded. The accused are on bail and their bail bonds shall stand discharged.