S.S. Dewan, J.
1. This appeal is directed against the judgment dated 6-11-1978 of the Additional Sessions Judge, Rohtak whereby he convicted Mam Chand, his brother Sarupa and the latter's three sons Om Singh, Raghbir Singh and Chhote under Section 302 read with Section 149, I.P.C. and sentenced each of them to life imprisonment for committing the murder of Zile. They were further convicted under Sections 323/149 and 148 of the I.P.C. and sentenced to one year's rigorous imprisonment under the first count and two years' rigorous imprisonment under the second count. All the sentences so awarded were ordered to run concurrently.
2. The parties to the present case are residents of village Pehlpa, Tehsil Jhajjar, District Rohtak situated at a distance of about 9 miles from the Tehsil headquarters. They are all neighbours and reside in the same street. The complainant party had a polli (baithak) which had fallen during the rainy season prior to this occurrence. There was also vacant space beyond the said polli by the side of the street. Briefly, the prosecution case is that on 7-12-1977 at about 11 a.m., the complainant party namely Chandu, Chandgi, Surta and Zile deceased were raising construction of a wall by the side of the public street in front of their polli for the purpose of raising a cattle shed. The accused Surta objected to the encroachment on the public street and proclaimed that he would not allow the encroachment to be made. The complainant party asserted their ownership of the land under the proposed wall. Surta left after making the above remark and the complainant party started smoking Hukka in the polli. After about five minutes of the said incident, Sarupa accompanied by other accused came there. Mam Chand, Sarupa and Raghbir were armed with a Jaili each. Chhote was armed with a farsa and Om Singh was armed with a balam (spear). Immediately on their arrival there, the accused told the complainant party that they would teach them a lesson 'for the construction of a wall and saying so they opened the assault upon Zile who was then lifting the kacha bricks. Chhote gave a farsa blow on his head. When Zile slumped on the ground, the other accused then inflicted injuries on him with their respective weapons. Mam Chand gave three jaily blows to Chandu. All the accused also gave injuries to Chandgi and Surta. It is stated that Chandgi and Surta caused injuries to the accused party in self-defence. This occurrence was witnessed by Ishwar Singh and Raghbir. The injured were removed to the hospital at Badli. The doctor was not present there and then they were removed to the hospital at Jhajjar but Zile succumbed to his injuries on the way to the hospital. Chandu lodged the F. I. R. Ex. PH at Police Station, Jhajjar at 5.15 p. m. on the same day. The case was investigated by S.T. Telu Ram (P. W. 12). He prepared the injury statements of the injured witnesses, got them medically examined and obtained their medico-legal reports. He also held inquest Ex. PZ on the dead body of Zile and sent the same to the mortuary for autopsy. He visited the village on the same night and prepared the visual plan. The accused were searched but they were not available. They were, however, arrested on 12-12-1977. On interrogation by the investigating officer, Chote Sarupa and Raghbir suffered disclosure statements leading to the recoveries of farsa Ex. P4, jailis Ex. P1 and Ex. P2 respectively, from the specified places of concealment. Farsa was found to be stained with human blood.
3. Dr. Vinod Kumar (P.W. 1) medically examined Surta, Chandgi and Chandu PWs on 7-12-1977 and found the following simple injuries on their persons:
Surta-(1) One punctured wound l/2 cm. x l/2 cm. x 1 cm. with irregular and averted margins. 2.5 cms. above and medial to posterior auxiliary fold, 3' below and behind the left shoulder joint. The margins were red in colour.
(2) One punctured wound of 1/3 x l/3 x i cm. with irregular and averted margins 3 cms. below and one cm. medial to injury No. 1.
(3) On palpation there was tenderness and surgical emphysema around the injuries.
Chandgi - (1) A lacerated wound 5 cm. x 1 cm. x 0.8 cm. on the left eygomatic region in front of the left ear. x-ray advised.
(2) A contusion 2 cms. x 1 cm. of red colouration on the back of right side of chest in the scapular region with two small abrasions of l/3 cm. x 1/3 cm. over it.
(3) A contusion of 4 cms. x 1 cm. on the back of right side of chest in the scapular region. 2' below injury No. 1.
Chandu (1) A contusion of 5 cms. x 1 cm. of red colouration on the superior aspect of the left shoulder joint.
(2) A contusion of 1.5 cms. x 1 cm. on the back of left side of chest on the scapular region, 2' below and medial to the injury No. 1. The colour was red.
(3) A bruise 1 cm. x 1 cm. on the lateral side of the back of left elbow joint with red colouration.
(4) Tenderness over the knee joint. 4. Dr. S.K. Bhatnagar (P. W. 14) examined Sarupa and Chote accused on 7-12-1977 at 11.45 p.m. and found the following injuries on their persons: Sarupa (1) A curved incised wound on the right parietal region of the scalp 5' above the right mastoid process measuring 3' x i' x bone deep. Anterior end of the wound was tapering, occult blood was present in the wound. Surrounding area was swollen and was tender on palpation.
(2) A piercing wound on the outer surface of the base of the left index finger measuring 1/4' x 1/4' x 1/2'. Occult blood was present in the wound. Surrounding area was swollen and tender on palpation.
Chhote (1) A lacerated wound on the upper posterior border of the left axilla measuring l1/4' x 1/2' x 1/5'. Occult blood was present in the wound. Surrounding area was swollen and tender on palpation.
(2) A transverse bruise on the outer surface of the right arm in the middle measuring 3' x 1'. Pink in colour and was tender on palpation. Dr. Om Parti (P. W. 9) conducted autopsy on the dead body of Zile on 8-12-1977 at 3 p. m. and found as many as 10 injuries on the dead body. Death was opined to be due to haemorrhage and shock as a result of injury to the brain which was sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was within 12 hours and between death and post-mortem within 48 hours. After necessary investigation, the accused were challaned and committed.
5. Inevitably, the material evidence in a case of this kind is that of the eyewitnesses Chandu (P. W. 2), Surta (P. W, 3) and Chandgi Ram (P. W. 4), the injured persons and Ishwar Singh (P. W. 5). Sarup Singh (P. W. 8) deposed regarding the recovery of weapons at the instance of Raghbir and Chhote accused. S.I. Telu Ram (P. W. 12) is the investigating officer of the case and the rest of the testimony more or less is of subsidiary and formal nature.
6. When examined under Section 313, Cr. P.C. Chhote accused while denying the prosecution allegations in answer to question No. 29, took up the following positive stand:
I was in my house where I heard hue and cry of my father who was smoking 'Hukka' in front of our Baithak. When I reached there I found Surta with farsa; Chandu. Chandgi and Zile armed with jailis had attacked my father and when I tried to intervene they attacked me also and caused injuries. Our ladies threw brickbats on the assailants and in the meantime Malkhan and Bhartu also reached there who intervened and saved us. The assailants also received injuries during the scuffle and by brickbats. During scuffle, Zile deceased had fallen down also. They were the assailants but they had falsely implicated me and all the adult members of the family who were in the village, in collusion with the police. Blood had fallen in front of my baithak.
Sarupa adopted the plea taken by his son Chhote accused. The rest of the accused took up the plea of alibi. Maman Ram H.C. (D. W. 1), Raghbir Singjh (D. W. 2), Malkhan (D. W. 3) Bhartu (D. W, 4), Chander Bhan (D. W. 5) and Dhara Singh (D. W. 6) were examined in defence.
7. The Additional Sessions Judge, Rohtak on the basis of the material so placed before him convicted and sentenced the accused as already noticed. Hence the appeal at their instance.
8. The learned Counsel for the appellants argued that mere ipse dixit of (the eye witnesses who were interested, and inimical is not sufficient to sustain the conviction of the appellants and the Court must look for independent corroboration of their statements.
9. We find no merit in the contention advanced by the learned Counsel. It is, no doubt, true that Surta, Chandgi and Chandu PWs were interested in the deceased but that by itself is no ground for discarding their evidence straightway nor does it warrant a search for independent corroboration of their statements. However, there is no gainsaying the fact that their testimony has to be viewed with caution and requires close scrutiny. The number and location of injuries on their persons leaves no doubt whatsoever in our mind about their presence at the time of occurrence. By and large, their testimony does not suffer from any material infirmity.
10. One improvement that the eyewitnesses made on their previous statements and which the learned Counsel for the appellants considered rather [material was with regard to the presence of injuries on the persons of Sarupa and Chhote appellants alleged' to have been caused by the complainant party. In the F. I. R. Ex. PH it is mentioned that Surta also caused them (accused party) injuries in his self-defence but at the trial, the eye-witnesses explained as to how they caused injuries to the accused party. This is simply an omission and can hardly be described as important. One does not expect the first informant to supply every minute detail in the first information report. What the witnesses stated at the trial amounted to an amplification of the number of statements given in the first information report and this cannot be considered an improvement, much less a material deviation from the version given in the earlier statements. The fact that the names of the appellants and the weapons used by them find mention in the first information report, which appears to be spontaneous, further strengthens the intrinsic reliability of the testimony of the eye-witnesses in this regard. The number of injuries sustained by the complainant party including the deceased Zile was 19 and they consisted mostly of punctured wounds and contusions from which circumstance it may reasonably be inferred that the number of their assailants was large and may well have been five and that farsa, balam and jailis were the probable weapons of offence as is claimed by the eye-witnesses. For all these reasons we find that the version of the prosecution witnesses that the accused party had come in a body having armed itself with lethal weapons to attack the complainant party appears to be not only plausible but also convincing.
11. The presence of the injured witnesses at the alleged time and place of occurrence cannot consequently be doubted. On an overall appraisal of the testimony of these witnesses we are inclined to place implicit reliance on their words. Their testimony receives further corroboration from the statement of Ishwar Singh (P. W. 5) in all its material particulars and also from the medical evidence and the recovery of bloodstained earth from near the place where the complainant party was constructing the wall.
12. The learned Counsel next argued that there was considerable delay in lodging of the first information report which must have been utilised by the complainant party in connivance with the investigating officer in evolving a twisted and fabricated version involving falsely their enemies though otherwise innocent. There is no doubt about the fact that there was some delay in the lodging of the first information report but that by and large stands explained. The occurrence took place at about 12 noon on 7-12-1977 whereas the first information report was lodged at Police Station Jhajjar at 5.15 p. m. The special report reached the Illaqa Magistrate at 8 p. m. on the same day. The witnesses were bound to take more than usual time both on account of the death of Zile and also on account of their injuries, in proceeding to the police station which was located at a distance of about 9 miles from the place of occurrence. An hour or two's delay there might have been in lodging the first information report and the trial court took due account of this delay. We are, however, of the opinion that the delay, if any, in the lodging of the first information report has not at all contributed to the false implication of the appellants in the crime or the false introduction of any person as eye-witness to the occurrence.
13. Unable to offer any meaningful criticism against the testimony of stamped witnesses, it was sought to be argued that Raghbir had also witnessed the occurrence but he was given up by the prosecution as unnecessary. This submission again can hardly hold water. It is well known that the evidence has to be weighed and not counted. The testimony of Raghbir could be nothing more than a pure duplication of what has been deposed to by the injured witnesses and Ishwar Singh. In these circumstances, we are of the view that the non-production of Raghbir does not in the least detract from the prosecution case. The learned Counsel then contended that no one of the adjoining householders had come up to support the prosecution case. In the cross-examination of the witnesses, it was neither elicited as to how close the other inhabitants were from the spot where the occurrence took place nor was anyone named or suggested to have come therefrom and witnessed the occurrence. We are unable to see how the prosecu-iion was obliged to call any other witnesses in the absence of any positive suggestion that they had also witnessed the occurrence.
14. As far as the right of self-defence pleaded by Chhote and Sarupa is concerned, the less said the better. The stand taken by Chhote in his statement under Section 313, Cr. P.C. was that while he was present in his house, he heard hue and cry of his father Sarupa who was smoking Hukka in front of his baithak. He (Chhote) reached there and found Surta armed with farsa; Chandu, Chandgi and Zile armed with jailis attacked Sarupa and when he (Chhote) tried to intervene, they attacked him also and caused injuries. Some ladies threw brickbats on the assailants and in the meantime Malkhan and Bhartu also reached there who intervened and saved them. It is stated that the assailants also received injuries during the scuffle and by brickbats. This version has been adopted by Sarupa also. The plea put forth by these two appellants was addressed to the eye-witnesses who emphatically repudiated the same. We may mention here that the fact of hurling of brickbats by the ladies at the complainant party was never suggested to the eyewitnesses. The theory of an attack on Sarupa and Chhote by the complainant party was sought to be rested on an altogether flimsy data. There is not a title of evidence to support the defence case that the complainant party had attacked the said appellants in front of the baithak of Sarupa. Besides, the investigating officer has clearly stated that he lifted blood-stained earth from point '1' shown in the site-plan Ex, PHH where Zile deceased and the witnesses were alleged to have been attacked by the appellants (It is so recorded in the plan Ex. PL). The place of occurrence is at some distance from the wall which was being raised by the witnesses on the Southern side of their polli. This fact exposes the hollowness of the defence version and confirms the prosecution story. If, as suggested by the defence, Sarupa and Chhote were attacked by the complainant party in front of their baithak, there would have been blood lying there which they were bound to show to the investigating officer and make full use of it for their defence. The defence theory, thus, had no tangible effect to support it and was rightly rejected by the trial court. Once such theory was eliminated there was nothing to support the defence plea of innocence. The fact of blood having been lifted from near the wall of the complainant party coupled with the evidence of the stamped witnesses, on the other hand, clinches the prosecution version that it were the appellants who came there to attack the complainant party,
15. The question is whether Section 149, I.P.C. is applicable in this case and would cover the case of the appellants. It stands established beyond doubt from the evidence of the stamped witnesses namely Surta, Chandgi and Chandu that the appellants armed with jailis, farsa and balam (spear) attacked the deceased. From the conduct of the appellant it appears that the members of the unlawful assembly were prepared to attack the complainant party at any cost. The lalkara raised by the appellants that they would teach them a lesson for the construction of a wall is indicative of the fact that they were fully prepared to meet any eventuality even to commit the murder if it was necessary for the accomplishment of their common object. There is also no doubt that considering the various lethal weapons with which the appellants had gone armed, they must have known that there was likelihood of murder being committed in prosecution of their common object. If ever there was a case which patently and squarely calls for the applicability of Section 149, I.P.C. it is the present one. The argument on this score, therefore, merits nothing but rejection.
16. The appeal is without merit and is herein dismissed.