1. These are two appeals by the accused Baga Bharti, one filed by him from jail and the other through his learned counsel Mr. Indernath Modi, and this judgment will dispose of both of them as they arise out of the same incident and the same judgment of the learned Sessions Judge. Baga Bharti was challaned under Section 302, Penal Code but the committing Magistrate recommended his discharge under that section and charged him under Section 304 (2), The learned Sessions Judge tried him under that section for causing the death of Heersingh and convicted and sentenced him to three years rigorous imprisonment. Two other persons were also tried by the learned Sessions Judge, namely, Parmanand Bharti under Section 323, Penal Code and Ganpat Bharti under Section 339, Penal Code, but both of them have been acquitted and in this appeal, we are not concerned with them.
2. This case hails from the heart of the city of Jodhpur. The parties are close neighbours and have their houses situate almost opposite to each-other. In between these houses, there runs a road called Fatehsagar road and in the middle of this road is situate a Khaliya. It appears that behind the house belonging to Parmanand Bharti, there is a depression which had been giving trouble-daring the rains and accordingly, Parmanand was on the look out to have this depression filled up. On the 1st February 1948, the day of the occurrence at about 12.30 or 1 P.m., P.W. 4 Razak was carrying debris on a few donkeys and passing along the road, when Parmanand asked him to deposit it by the side of the wall of his house. P. W. 6, Nathusingh, who was a tenant of Heersingh and, at the same time, a Jamadar in the Municipal Committee did not like the unloading of the donkeys in this manner and accordingly, objected to it and snacthed the empty sack from Razak and took it away, Razak naturally complained to Parmanand with the result that the latter, who was inside his house at the time, came out and an altercation ensued between Parmanand and Nathusingh They came to grips with each other when Heersingh, who had just returned after a bath, was called by Nathusingh and he intervened. Parmanand let go Nathusingh and went for Heersingh, caught hold of him and began to beat him with fiats. The prosecution story is that at this stage, Baga accused came out of his house and dealt a blow on the head of Heersingh. The latter fell down immediately and so also Parmanand who was held in his grip by Heersingh Baga is alleged to have aimed another blow on Heersingh but it fell on Parmanand's head. Mt. Mohan Kanwar w/o Heersingh, who was standing in the door of her house and watching, also received a blow at the hands of Baga when she came out to take Heersingh away into the house. Thereafter, the accused can away. Heersingh was taken to the hospital where treatment was accorded to him and from there, he went to the Police Station and EX. P-2 first information report was lodged by him. Heersingh's condition deteriorated during the night and he died nest morning. On 2nd February 1948, post-mortem examination was performed and the following four injuries were found on the body of Heersingh: (i) The head was covered with dressings and on their removal, a stitched wound was noticed. The wound was fresh and not healed up yet. The wound had irregular edges as examined often removal of stitches. The wound was 2 1/2' x 3/4' x bone deep and was situated 1/2' to the right of the middle line of the head and parallel to it lying across the right frontorparietal autare with its 1/3 in front and 2/3 behind the suture. (2) A lacerated wound 1/2' x 1/4' x skin-deep was situated over the left palm thinar eminence. (3) Contusion 1/2' x 1/3' over the right shoulder. Oontuaion 3/4' x 3/4' over the right parietal tuberosity.
3. A T-shaped fissured fracture of the skull wag found on the right aide of the skull and both the tables of the skull were involved. What was the exact nature of this fracture, we will deal with it in greater detail elsewhere. In the opinion of the Doctor, the cause of the death was come due to intracranial bleeding caused by the fracture of the skill. The accused Baga Bharti was arrested on 3rd February 1948 and challaned in the Court of First Class Magistrate, Jodhpur, where he pleaded alibi. He stuck to the same statement in the Court of the learned Sessions Judge as well and produced one witness in defence, Parmanand admitted the incident substantially, with differences here and there in minor details, as alleged by the prosecution up to the stage of the fight with Nathusing. Thereafter, he stated that Nathu singh called Heersingh and as soon as Hearaingh arrived, he struck a blow on Parmanand's head with a lathi. Parmanand then left Nathuaingh and grappled with Heeraing with the result that Heeraingh's head came under Parmanand's arm-pit. Heersingh bit him in the axillary pit and thereafter, both of them fell to the ground. Heersingh fell on the top of Purmanand but his head struck against the Khaliya with force And fractured the skull. Parmanand also lodged a report of this incident with the Police which 19 EX. P-l on the record. It may be pointed out in passing that this report does not contain all the details which were subsequently rendered in Court. Three witnesses were produced in support of this defence. The prosecution examined P. Ws. 2, 3, 5, 6 and 7 as eye-witnesses. The learned Sessions Judge considered the prosecution version as well as the one put forward by the accused as supported by the evidence produced on either side, and ultimately came to the conclusion that the fatal blow had been given by the accused. Considering the fact, however, that, Baga Bharti had no intention to cause the death and had given the blow in order to rescue his brother from the grip of Heersingh he awarded to him a sentence of three years, rigorous imprisonment.
4. Out of the prosecution witnesses produced in the Court below, the learned Government Advocate has placed his reliance upon the state. ments of P. W. 2 Ugamsingh, P. W. 3 Bheroon-Bingh, P. W. 6 Nathuaingh, P. W. 6 Mohan Kanwar and P. W. 8 Dr. Padamchand. He has not relied upon the statement of P. W. 7 Jag-dish son of the deceased Heereingh, probably because P. W. 3 Bheroon Singh stated that he had arrived on the scene after the fight was over. So far as the remaining prosecution evidence is concerned, it does substantially support the version put forward by it. It is not necessary to repeat the statements of these witnesses, as is done by the learned Sessions Judge, verbatim or even in considerable detail in this judgment. The version put forward by them is simply this that after Nithusingh had objected to the unloading of the donkey behind the house of Parmanand, Parmanand and Nathuaingh came to grips with each other. Thereafter, Heersingh came out of his house to rescue them and Parmanand released Nathusingh and grappled with Heersingh. Seeing this, Baga Bharti, accused came out of hia house with a lathi and gave a blow on the head of Heersingh. Heeraingh and Parmanand then fell down on the ground Baga Bharti, thereafter, gave another blow to Heersingh but it landed on the head of Parmanand. The third blow was given on the hand of Mt. Mohan Kanwar wife of the deceased who had come to rescue her husband. We will not say that the above version has been delivered by these witnesses without discrepancies here and there. There are differences in details but those differences are to our mind, of a minor character and do not affect the important details Which the witnesses wanted to deliver. The evidence, however, it must be said, suffers from a number of defects and that we consider is due to a very crude effort on the part of the prosecution to construct some sort of a story to explain the injury on Parmanand. For instance, after a blow had been given by Baga sccused on the head of the deceased, the story is that he aimed another blow at him but did not succeed in doing BO and the blow landed instead on the head of Parmanand, Parmanand had, as a matter of fact, received an injury and it had to be accounted for. We are not prepared to believe for a moment that this injury was received by him in the manner described by the witness. Whatever may happen, Baga Bharti, a real brother of Parmanand, would not even think of plying his lathi if he found his brother placed in such an awkward position that if he aimed a blow at Heersingh, he would be likely to bit Parmanand. How this injury was received, we will deal with it later on, but at the moment, we merely wish to point out that an explanation has been furni-shed for this injury which appears to be, to say the least, rather clumsy.
5. The prosecution version has also been, it appears to us, a little exaggerated in details here and there. According to the statement of Ugam singh, only one blow was given whereas the witnesses have deposed to as many as three blows having been given, It is further not clear from the story as placed on the record why should Heersingh, on being summoned by Nathusingh or happening to come on the scene of his own accord, jump into the quarrel and why should Parmanand let go Nathusingh and go for Heersingh. The learned counsel for the accused subjected the statement of Nathusing to considerable scrutiny and argued that in view of a previous statement made by him in the municipality and the contradictions introduced by him between that statement and the one made in Court, he was not a reliable witness at all. A perusal of the relevant portion of the statement of Nathusingh, as made in Court, shows that only one particular matter from the previous statement was put to him and that was whether his report to the effect that Ganpat Bbarti bad recalled the ass boy was correct. The witness admitted this to be so. Thereafter, the entire report was read out to him without particular parts of this report being put to him, and he admitted that he had forgotten the details and, therefore, the details rendered by him in that Court were different from those mentioned in the report. The learned Government Advocate argues that inasmuch as the witness was not contradicted by his attention being called to particular parts of his report, it cannot be said that the statement made by him on matters other than those which were put to him, was unreliable. In a way, there is some force in this contention. According to Section 145, Evidence Act, if it is intended to contradict a witness, he must be cross examined as to the previous statements in writing and his attention must be drawn to those parts of the previous statements by which it is intended to contradict him in order to enable him to explain the inconsistency between the statement in Court and the previous statement. Even where this course is followed, the previous statement unless relevant under some section of the chap 2, Evidence Act, is not substantive evidence and is admissible only for the purpose of impeaching the credit of the witness. From the trend of the cross examination to which this witness was subjected, all that has been elicited from him is that he had given different details in this Court from the report in the municipality. Accordingly, while it cannot be said that the statement of this witness should be thrown away in its entirety, there is no doubt whatsoever that it is to be received and dealt with utmost caution. P. W. 2 Ugam Singh has contradicted the other prosecution witnesses on a material detail and that is, that he had not seen the accused giving more than one blow. All this would not signify that the prosecution evidence should be discarded in its entirety. The learned counsel for the appellant has frankly conceded that he does not at all press for the maxim falsus in uno falsus in omnibus being applied to this case and the reason is obvious for, if a whole body of testimony were to be rejected because the witnesses were evidently speaking untruth, in one or more particulars, it is to be feared that witnesses might always be dispensed with as in a majority of cases, the evidence of a witness may be found to be tainted with falsehood. The salutary principle on which the Courts should work is that in such cases the evidence should be sifted carefully, grain separated from chaff and only that portion accepted which is found to be true and the rest rejected. Where the falsehood is merely an embroidery to a story, that would not be enough to discredit the whole of the witness's evidence.
6. In the light of the above, it only behaves this Court to ecrutinise the evidence carefully, As stated already, the differences in details introduced by the various witnesses which touch only the fringe of the case are immaterial. The learned counsel for the appellant has placed a number of points before the Court in order to discredit the testimony of these witnesses and we will deal with them. It is pointed out, in the first instance, that the blow which is imputed to the accused could not possibly be given by him as at that time Parmanand and Heersingh were grappling with each other and accordingly, Parmanand wag intervening between Heersingb and the assailant, i. e., the accused, and, there-fore, it would not be possible for him to land the lathi blow in the middle of the head of the deceased without injuring Parmanand. We have carefully considered this contention of the learned counsel but are unable to find any force in it. In the first instance, we do not know the exact position or the exact postures in which Parmanand was holding Heer Singh, Secondly, the location of the injury appears to belie the contention of the learned counsel. The injury is not exactly in the middle of the head but was situated half an inch to the right of the middle line of the head. Therefore, while we do not know where the assailant was standing and in what positions the other two persons were, wherever he was, he dealt the blow after avoiding Parmanand and wielding the lathi in such a manner that he did not miss the mark. The learned counsel has farther contended that the prosecution evidence as regards the fatal blow having been given by the accused should not be believed inasmuch as according to P. W. 8 Dr. Padam Chand, the skull injury was not unlikely to be caused by a fall upon a hard object. We must say that a proper question was not put to the Doctor and accordingly, the answer furnished by him to a general and vague question cannot be put to any use, so far as the facts of this case are concerned. The question in this case was not whether a fracture of the skull could be caused by a fall upon a hard object but whether it could have been caused by the fall as alleged by the defence. In other words, the defence ought to have cross-examined the Doctor in the light of the case which they were going to develop in their evidence later on and elicit from him a definite opinion in order that it may be possible to rebut the prosecution case. Apart from this, the argument of the learned counsel necessitates a scrutiny of the nature of the fracture to be able to say whether any element of doubt is introduced into the case. It was without doubt a fracture of a very serious character as is clear from the details of it given in the statement of the Doctor. He has described the fracture in the following words :
'A T shaped fissured fracture of the skull was seen on the right side of the skull with its horizontal limb 1 1/2' long lying an antero-posteriorly over the frontal bone close to and on the right of the Bregma, The vertical limb of the T started from the middle of the horizontal limb in the frontal bone, crossed the right fronto-parletal suture, the antero-inferior angle of the right parietal bone and crossing the right temporal bone reached and ended at the external auditory meatus in the right temporal bone. The iracture involved both the tables of the skull throughout. The meninges and brain were congested badly and there was profuse intracranial bleeding into the right side of the skull both intra and extradural: the blood waa mostly fluid with a few clots.'
7. Now,' the Doctor stated that a fracture could be caused by a fall. The cross-examiner stopped there and put no further question to him. He might, for instance, have asked for some information regarding the height from which if a person fell, the skull may be fractured like this or some information regarding the nature of the impact with the hard substance. The defence version is that the head of the deceased was caught by Parmanand in his armpit as it were in a vice and Heersingh gave him a bite and thereafter both fell to the ground Heersingh falling on the top of Parmanand and hitting his head against a Khaliya, Now, this is the exact position which should have been put to the Doctor and if he had stated that if a person fell in circumstances like these it would be possible for the skull to be fractured as it was in this case, it may have been helpful to the accused. On these points, however the record is silent. The learned counsel for the accused at one time, argued that it was a duty of the prosecution to re-examine the Doctor arid elicit further details from him but we do not at all agree with this contention. The prosecution probably was of the view that the Doctor's statement did not touch even the fringe of the case and, therefore, they thought it wholly unnecessary to develop what they considered to be a useless point any further. To us it appears that there seema to be no good ground whatsoever for rejecting the testimony of the prosecution witnesses according to which it is established that the fatal blow was given by Baga with his lathi. The defence evidence that Parmanand and Heersingh grappled with each other along with the other embellishments referred to above is not at all believable and is in our opinion, wholly insufficient to rebut the prosecution evidence. The theory of the head coming under-the armpit of Parmanand is falsified by the fact that Parmanand's injury under the armpit appears to have been caused by a blunt weapon and not by a bite at all. Further if Heersingh fell on the top of Parmanand, it was all the more unlikely that such a gerious injury to his skull should have been caused by the fall. Besides, if the injury had been caused in this manner, it is indeed a wonder that Parmanand escaped totally unhurt. the defence version appears to be correct to this extent and it also supplies a gap in the prosecution story that when Nathusingh called Heersingh from the house Heersingh came out with a lathi in his banda and aa soon as he arrived, he gave Permanand a blow on his head. This part of the story, in our opinion, has been suppressed by the prosecution and the missing link has been supplied by the defence but beyond this, we are not prepared to believe the defence evidence and we have already given our reasons.
8. In this connection, only two points remain. The one is the theory of right of private defence propounded by the learned counsel for the accused in this Court and the other relates to the evidence of alibi. No doubt, according to Section 97, Penal Code, every person has a right subject to the restriction contained in Section 99 of the Code to defend his own body and the body of any other person against any offence affecting the human body. According to Section 99, Penal Code, the right of private defence does not extend to the inflicting of more harm than is necessary to inflict for the purpose of defence. Now, in this case, granting that in law in proper circumstances it would be open to the accused to defend the person of his brother Parmanand, the question is whether any occasion for a defence being offered had at all arisen. According to the case on either side, after Parma-nand and Nathusingh had grappled with each other, Nathusingh shouted for Heersingh and the latter, as soon as he arrived, dealt a blow on the head of Parmanand. This we may point out resulted in a contused wound 1 1/2' x 1/2' x 1/4' over the skull and does not seem to have made any difference to the act and conduct of Parmanand as he grappled with Heersingh after receiving the blow. Now, where wag the occasion for Bsga Bharti, the accused, to intervene and land a blow over the head of Heersingh in defence. So far as the evidence of alibi is concerned, it has been furnished by the statement of D. W. 3 Laxmanlal. His position as a Deputy Station-Master, Jodhpur, has been put forward as an important factor for the purpose of showing that a witness of his status must be believed. We have carefully considered his statement and also that of D. W. 4 Mt. Shiv Kanwar, mother of the accused and are definitely of the opinion that Laxmanlal is out to favour the accused and oblige his mother. A question was put to him how he remembered the date when the accused had visited him at the railway station and accord-ing to his allegation remained in his office from 11 A.M. till 2.90 P.m. He stated in reply that he remembered the date because accused's mother had come to his house the next day and inform-ed him that her sons had been taken into custody although the accused Baga Bharti was with the witness. To the same effect is also the statement of D.W. 4 Mt. Shiv Kanwar but it is falsified by the fact that the accused was not arrested on 2nd February 1948 and was actually arrested on 3rd February 1948. Apart from this, a brother of the accused is a signaller in the Railway Department and the accused, it is stated by the witness, had met him 8 or 10 times during the last 8 months. We do not wonder that the witness came to have interest in the accused as he not only took leave for the purpose of appearing as a witness but also came to Court without a summons. In the circumstances, it is not possible to rely upon such evidence. It is urged by the learned counsel for the appellant in the end that in any case, some relief may be granted to the accused in the matter of sentence but we consider, in the circumstances of this case, the sentence can by no means be said to be severe. The result is that both these appeals fail and are hereby dismissed.