L.S. Mehta, J.
1. The prosecution story, as accepted by the trial court, in brief, is that there was a labour Union of the workers of the Sadul Textile Mills Ganganagar. Accused Bala Prasad was its Propoganda Secretary. He was also working in the Mills. On October 6, 1965, he for some reason or other was removed from his job by the Mill-Management. This led to a labour strike. It commenced from October 11 and lasted till October 18, 1965. The Mills worked in 3 shifts of 8 hours each. The first shift started at 7 a.m. the second at 3 p. m , and the third one at 11 p.m. Workers Mahendra Shingh, P.W. 1, and Jai Kishan, P.W 3, did not join the strike. Mahendra Shingh worked in the shift, which began at 7 a. m. His brother Shital Singh and Jaikishan, P. W. 3, joined, the shift, starting at 11 p.m. On October 13, 1965 Jai Kishan went to Shital Shing's quarters at about 9 p. m. He took, as usual some rest there. At about 10.30 p. m., Jai Kishan and Shetal came out of the quarters and proceeded towards the Mills. They met Bhim Sen on their way. Mahendra Singh, P. W. 1, also followed them just to close the door of his quarters. Jaikishan, Shital and Bhim Sen hardly covered a distance about 20 ft. when they were confronted by the accused Bhagwan Singh, Tapasvi Shiv Charan, Bala Prasad, Jogendra Singh Malkan Sing, Lal Sing and 2 others, namaly, Nathu and Gingaram, who were strikers. They were armed with sticks The accused Bala Prasad told his friends that as Shital was going to the Mills with his co-workers he should be put to death There upon all the seven accused as also Nathu and Gangaram beat Shital with their sticks Mahendra Singh, P W. 1, and Jai Kishan, P. W 3, raised an alaram, whereupon the accused persons ran away. Jai Kishan, Mahendersingh, Fakir chand and Bhim Sen then took Shital to his quarters. After about 20 minutes Mr. Sondhi, an officer of the Mills, arrived on the spot in a jeep car. Shital was taken to the police station Kotwali. Ganganagar, in the vehicle. Mahendra Singh also accompanied Shital. First information report of the occurrence was lodged with the above police station that very night at about 11 Padam Singh, P.W. 8, Station House officer registered a case under Section 307/159 I. P. C, and investigation was taken in hand. Shital was sent to the Government Hospital, Ganganagar, for medical examination. Dr. S. N. Vyas, Medical Jurist, examined him that very night at 11 p. m. He found the following injuries on his person:
1. Irregular lacerated wound on right parietal region of the scalp 4' above right pinna ear 1' x 1/10' bone deep.
2. Long abrasion 2'x1/10' at the right side fore-head.
3. 2 abrasions 1'xl/10' x 1/3' x 1/3' on the left side forehead just above left eyebrow.
4. 3 abrasions 1/3'x 1/3' on the nesl.
5. Abrasion 1/5' x 1/5' on the right knee joint.
6. abrasion i'x' on the left knee joint.
2. On October 15, 1965, Shital breathed his last in the hospital at 11. 30 a. m. Dr. Vyas conducted the autopsy of the dead body of Shital. He noticed the following injuries on his body.
1. Big bllod clot was present over the posterior part right frontal region, right parietal region, right occipital region.
2. Clotted blood was present over the back of occipital region and left temporal region.
3. Fracture of the right parietal region was going downwards 'long and other was involving the right side occipital region, back of the occipital region, and going upto the left temporal bone in an encirculing manner. The fracture started below injury No. 1 extra dural Haematoma present beneath the fractured bones. Haematoma was present over left temporal region of celebral hemisphere occipital region of the cerebellum and right parietal region of the cerebellum with laceration of the left temporal region of the cerebellum 2' x '. Rest of the brain was congested. Some free blood fluid was present in the posterior cranial fossa, left mid cranial fossa, and right mid cranial fossa.
3. In the opinion of the Doctor, Shital Singh died of the head injury which was sufficient in the ordinary course of nature to cause death. Other injuries could not have resulted in his demise.
4. On October 14, 1965, Dr. Vyas also medically examined Lal Singh, Bhagwan Singh and Malkan Singh. He found 8 injuries on the person of Lal Singh. Of these, injuries Nos. 2 and 3 were grievous. He found 1 simple injury on the person of Bhagwan Singh and 10 injuries, including one grievous hurt, on the body of Malkan singh. When Shital died on October 15, 1965, case under Section 307, read with Section 149, I. P. C, was altered into one under Section 302/149, I. P. C. The police prepared a site plan (Ex P. 5), recovery memo of the blood stained clothed of the injured Shital Singh (Ex P. 9), inquest report (Ex. P.10) and arrest memos of the accused Shiv Charan, Jogendra Singh, Tapasvi and Bala Prasad (Ex. P. 11 to Ex. P. 14 respectively). After the investigation was brought to a close a challan was put up by the police in the court of the Munsiff-Magistrate, Ganganagar That court conducted perliminary inquiry in accorcance with Section 207-A. Cr. P.C , and committed the accused (J) Bhagwan Singh. (2) Tapasvi, (3) Shiv Charan, (4) Bala Prasad, (5) Jogendra Singh, (6) Malkan Singh and (7) Lal singh to the court of Sessions Judge, Ganganagar, to face trial for offences, punishable under Sections 302 and 148, I. P. C. On February 14, 1966, the trial court reframed the charges under Section 148, and S 302, read with Section 140, I. P. C , to which the accused did not plead guilty. In support of its case the prosecution examined 8 witnesses. Mahendra Singh, P.W. 1, Fakir Chand, P.W. 2, and Jai Kishan, P. W. 3, were the eye witnesses of the occurrence. P.W. 5 Dr. S.N. Vyas conducted autopsy of the dead body of Shital P.W. 4 Harvendra Singh scribed the first information report. P.W. 6 Shanker Vasisth, P.W. 7 Allah-din and P. W. 8 Padam Singh associated themselves with the investigation. In their statements, recorded under Section 342, Cr P.C., all the accused denied the indictment. Accused Bhagwan Singh further stated' that he was a member of the executive committee of the labour union. Bala Prasad was its Propaganda Secretary He was removed from his job on October 6, 1965. by the Management of the Sadul Textile Mills. This led to declaration of strike with effect from October 11, 1965. On October 13, 1965, at 10:30 p. m. Shital, Mahendra and others came to his colony. Shital hit him on his head with a stick and then took to his heels. Thereafter he went to the office of the labour union, where he narrated the whole episode to Jogendra Singh, Shiv Charan, Tapasvi and Bala Prasad. All of them, except Tapasvi, went to the colony and found the gate of Lal Singh's house wrecked. They asw Nand Kishore lying badly injured. Accused Lal Singh added to his statement of denial that he was a member of the labour union. He, Malkan Singh and others were sitting in house No. 175 on October 13, 1965, at 10.30 P. m. Shital, Mahendra Singh, Hanstaj, Deen Bandhu, Mohan and Kishan arrived there and broke open the gate of Lal Singh's quarters. They also gave beating to him and to Malkan Singh. They took him with them. On the way some one threw a brick which hit Shital on the back of his head. Shital fell down on the road with his face downwards. The associates of Shital then called him and Malkan Singh in the Mills boundary They tied their hands on their backs and threw them on the bricks. After some time Shankerlal, S, I , visited the spot and he untied their hands Shital and his companions were armed with sticks. The rest of the accused persons besides denying the charges deposed that the correct position had been unfolded by Bhagwan Singh and Lal Singh. In their defence, the accused examined D.W. 1 Kedar Nath and D.W. 2 Arjun Singh. The trial court, by its judgment, dated April 29. 1966, convicted the accused Tapasvi under Section 325, I. P.C. and sectenced him to three years, rigorous imprisonment. It also convicted him under Section 148, I. P.C , and sentenced him to six months' rigorous imprisonment. Both the sentences were directed to run concurrently. The rest of the accused were convicted under Section 148, I. P.C, and sentenced to six months' rigorous imprisonment each They were further held guilty under Section 325, read with Section 149, I. P, C and sentenced to 18 months' rigorous imprisonment. Both the sentences were ordered to run concurrently.
5. Aggrieved by the above verdict, the accused Bhagwan and others have filed S. B. Criminal Appeal No 315 of 1966, praying that their conviction being illegal and unwarranted should be quashed. The State of Rajasthan has also taken an appeal against the verdict of the trial court, submitting that the trying Judge went wrong in not convicting the accused persons under Section 302, read with Section 149, I. P.C.
Both the appeals were heard to gether.
6. We may first take up the appeal filed on behalf of the accused. The main contention of learned counsel for the appellants is that according to Dr. S. N. Vyas, P.W. 5, the accused Lal Singh sustained 8 injuries, including 2 grievous hurts. The accused Bhagwan Singh received one simple injury. The accused Malkan Singh got 10 injuries, of which No. 2 was grievous in nature. The trial court ignored the significance of all these injuries, found on the appellants. According to learned counsel the version of the appellants that they sustained injuries at the time of the occurrence is highly probablised. These injuries, counsel submits, could not have been self inflicted and that it was unlikely that they would have been caused at the instance of the appellants themselves. Learned councel further urged that the failure of the prosecution to offer explanation in the matter of these injuries shows that the evidence of the prosecution witnesses relating to the incident is not true or, at any rate, not wholly true and that these injuries probabilise the plea that the accused were first attacked by the deceased Shital and his partymen. In support of this proposition reliance was placed on a decision of the Supreme court, reported as Mohar Rai v. State of Bihar : 1968CriLJ1479 . The above fact of the argument received consideration of trial court. Its finding, as given in para No. 8 of its judgment is:
If the accused persons received injuries in the same incident it is no doubt the duty of the prosecution to explain those injuries, Evidence on the record is that some workers were on strike and that others were not on strike. Under these circumstances there may have been clashes more than once. I, therefore feel that it was not at all necessary for the prosecution in this case to explain how accused received injuries.
We have carefully scanned the evidence on the record. We do not think that the defence taken by the appellants is highly probabilised. The accused Bhagwan Singh says that on the removal of the Union Propoganda Secretary, Bala Prasad, a strike was declared by the labour union on October 11, 1965. On October 13, 1965, at about 10.30 P. m., Shital, Mahendra and others came to his colony and Shital hit him with a stick on his head and then escaped. He then proceeded to the office of the labour union along with Arjun Singh. Arjun Singh had injuries on his person. Jogendra Singh, Shiv Charan, Tapasvi and Bala Prasad were available in the office. He narrated the whole incident to them. Tapasvi went to the colony This statement shows that it was not the plea of the accused that the injuries caused on his body were connected with the same incident which pertained to the murder of Shital The accused Lal singh states that he, Malkan Singh and others were sitting in the house No. 175. on October 13, 1965; at 10.30 p m. Shital, Mahendra, Hansraj, Dinbandu and Kishan came there and broke open the gate of his quarters and administered beating to him and to Malkan Singh. They took him with them. On their way, somebody struck a brick blow which fell on Shital's head, as a result of which he fell down on the road with his face downwards. The associates of Shital then took him and Malkan Singh in the Mills boundary, where they tied their hands and threw them on the bricks. The other accused persons have stated that Lal Singh's version presents a true picture of the whole happening. Lal Singh does not connect the injuries of the accused with the main incident relating to the murder of Shital. He, on the other hand, has specifically pointed out that after Shital had been injured, his partymen took him and his companions to the Mills premises, where their hands were tied and they were thrown on bricks. This even occurred after the main incident relating to the injuries having been caused to Shital. This explanation suggests that the injuries which the 3 accused Bhagwan Singh, Malkan Singh and Lal Singh sustained were neither caused at the time, nor at the place, when and where the main event of beating to Shital occurred. Besides the accused did not raise specifically the plea that Shital was beaten in exercise of the right of private defence of person. Therefore, the argument of learned counsel for the appellants that the accused sustained injuries at the place and time of the principal occurrence is hardly tenable.
7. The accused Lal Singh has stated that when Shital's partymen were taking him and Malkan Singh from his, quarters, someone threw a brick, which hit Shital on the back of his head and he fell down on the road with his face downwards. This statement is controverted by the medical evidence of P. W, 5 Dr. S. N. Vyas. A positive question was put to the medical man and his reply was that the head injury of Shital could not be the result of a stone throw and that other injuries on the person of Shital could not have been caused by a single fall on a hard object. The Doctor has categorically pointed out the injuries of Shital could have been caused with lathis. Learned counsel for the appellants submits that the opinion of the Doctor is not in consonance with Modi's views expressed in his Medical Jurisprudence and Texicology (1963, Edn. at pages 225 to 227). Where the opinions of the authors are neither shown to have been given in regard to circumstances exactly similar to those in a particular case, nor are they put to the Medical witness, it is not a sound method of disposing of the testimony of the Doctor to discredit it on the ground that his opinion does not accord with the one expressed in the text books: vide Bhagwan Das v. State of Rajasthan : 1SCR854 . In this case the Doctor was not confronted with Modi's views His opinion, therefore, cannot be discredited on the basis that it is not in conformity with the above author's opinion. The Doctor has examined the victim and he is of the definite view that his injuries could not have been the result of the impact of a stone hurled at him. He has also opined that these injuries could not have been sustained by a fall on a hard object. These injuries could have been sustained by lathis. In this view of the matter, we are not inclined to hold that the plea taken by the accused that Shital received injuries on account of a stone throw while he was walking on the road is sustainable. It is also worth-while to mention, inter alia, that the above plea was not taken by the accused immediately after the occurrence. The cross-examination of the prosecution witnesses were not directed towards such an end. That shows that the plea in question is an after-thought.
8. For the foregoing reasons, submission of learned counsel for the accused that the trial court ignored the significance of the injuries found on the accused and the probability is that they sustained the injuries at the time of the occurrence does not appear to us to be convincing and the same is, therefore, repelled.
9. The next point raised on behalf of the accused-appellants is that as the relation of the Mills Management with the strikers were not congenial, an effort was made by the Management to foist this accusation on the appellants. Learned counsel pointed out that it was Mr. Sondhi, an officer of the Sadul Textile Mills, who was behind the scene and got the first information report prepared falsely, implicating the accused persons:
P.W. 1 Mahendra Singh states:
Mr. Sondhi arrived at my quarter after about 20 minutes of the incident. I had been to the quarter of Ravendra Singh to get report written. It is wrong to say that the report was got written by Mr. Sondhi. It is wrong to say that the report was presented to the Thana in the morning. It is wrong to say that names of witnesses were supplied by Mr. Sondhi. Mr. Sondhi had driven the jeep to police station but he did not go inside the Thana.
P.W. 3 Jai Kishan has deposed:
After 15 or 20 minutes of the occurrence Mr. Sondhi arrived in a jeep. Shital was put in that jeep and was taken to the police station.
Harvendra Singh, P. W. 4, who scribed the report, says:
Mr. Sondhi did not see me before I wrote Ex. P. 1. I saw him in the Mill at about 12 mid-night. It is absolutely wrong to say that I wrote Ex. P. 1 at the instance of Mr. Sondhi.
From the above evidence it is plain that Mr. Sondhi reached the spot about 20 minutes after the occurrence and that Harvendra Singh, P. W. 4, Labour Welfare Officer, did not scribe the report at his instance. No defence evidence has been led on behalf of the accused that Mr. Sondhi was at the bottom of the entire trouble and that it was he who foisted the crime on the accused persons. It was the duty of Mr. Sondhi to take the injured to the police station soon after the crime. Under the circumstance, it is incorrect to suggest that the Mills Management brought about false accusations against the accused.
10. Another argument put forth on behalf of the accused-appellants is that the trial court should not have placed reliance upon the testimony of Mahendra Singh, P. W. 1, Fakirchand, P. W. 2 and Jai Kishan, P. W. 3. Fakirchand's name does not appear in the first information report. Fakirchand admits in his cross-examination that 5 or ft days after the occurrence he was promoted as a jobber. No reason is forthcoming as to why his name does not find place in the first information report which incorporates the names of other witnesses. His promotion soon after the occurrence also creates some suspicion about his veracity. The trial court should have, therefore, ignored his testimony,
11. Now the question remains whether, if Fakirchand's evidence is discredited, there remains sufficient evidence to connect the accused with the crime. Mahendra Singh, P. W. 1, is, no doubt, the real brother of the deceased Shital. He used to live with the deceased and that assures his presence on the spot. He lodged the first information report with the police station soon after the crime. This statement guarantees his presence on the scene. His presence is further corroborated by P. W. 3 Jai Kishan. The fact that the prosecution witness in a criminal case is the brother of the deceased does not detract by itself from the value to be attached to his evidence, because naturally enough he is interested in seeking that the real culprits are brought to book. He cannot be expected to adopt a course by which some innocent persons would be sustituted for the persons really guilty of the crime, and that too when no enemity as such has been proved to have existed between him and the accused as would induce him to give false evidence; vide Bhupendra Singh v. State of Punjab : 1969CriLJ6 . The trial court, which examined the witness, relied upon his evidence and there is no reason why a contrary view should be taken in the matter. The witness gives a graphic account of the whole incident. He has pointed out that Bala Prasad first set the ball rolling and then at his instigation the other accused beat Shital Singh with sticks. The statement of Mahendra Singh is corrobotated in all its material aspects by P. W. 3 Jai Kishan. Jai Kishan used to take rest during the off hour at the quarters of Shital. He used to go along with the deceased to the Mills for work. The name of this witness is given in the first information report. His presence is vouch-safed by P.W. 1 Mahendra Singh. His testimony, which remains unshattered in the cross-examination, implicates all the accused persons in the crime. No doubt, he does not name Bhagwan Singh and says that one or two other persons were also present there. Bhagwan Singh has been named by P. W. 1 Mahendra Singh. His name appears in the first information report. Bhagwan Singh also admits his presence on the spot in his statement. Therefore, omission of the name of Bhagwan Singh in the testimony of Jai Kishan will not exonerate him. There is thus enough evidence on the record from which it can be inferred that the accused-appellants participated in beating the deceased Shital
12. In the light of the above discussion, we agree with the submission made by learned counsel for the accused-appellants that the trial court should not have based the conviction upon the testimony of Fakirchand, P W. 2. We, however, refuse to agree with him that the trying Judge committed error in reposing confidence on the testimony of P. W. 1 Mahendra Singh and P. W. 3 Jai Kishan.
13. Another point raised on behalf of the accused-appellants is that the Station House Officer, Shanker Vasisth, P. W. 6, arrested Malkan Singh, Lal Singh and Bhagwan Singh in time in the course of the investigation. He did not arrest the other accused persons as there was not enough material against them. The other persons were arrested after about more than a month, that is, in the month of November, 1965. This delay in connection with the arrest of the accused other than Malkan Singh, Lal Singh and Bhagwan Singh, shows that the police itself suspected that the accused had a hand in the crime.
14. We have gone through the entire record of the case. The record reveals that remand had been obtained by the police in regard to the detention of Malkan Singh, Lal Singh and Bhagwan gingh on the ground that other accused persons were absconding. From the testimony of P. W. 7, S H.O. Allahdin, to whom the investigation was transferred on October 27, 1965, it is apparent that the 4 accused surrendered themselves to the police on November 15, 1965. There is, therefore, ample justification for the arrest of the accused Tapsvi, Shiv Charan, Bala Prasad and Jogendra Singh at a late stage. It is correct that P. W. 6 Shanker Vasistha in his statement said;
I did not arrest them. I did not find enough material against them as I had recorded statements of some witnesses.
An identical point in issue received consideration of their Lordships of the Supreme Court in Surajpal v. State of U.P. : 1955CriLJ1004 . The head note B runs as follows:
In a murder trial it appeared from the evidence of the Investigating Officer that in the course of the investigation the prosecuting authorities were of the opinion that the murder in that case was to be attributed to the prosecution witness R and not to the accused and that in their view even the evidence as against R was not sufficient to put him on trial for murder:
Held that such an opinion of the prosecuting authorities had no relevancy in the case and should not have been placed on the record in the case.
It appears from the evidence of S. H O. Shanker Vasisth P.W. 6 that he did not arrest the other accused as he did not find enough material against them. His opinion whether there was enough material or not had no relevancy in the case, particularly when there is credible, convincing and cogent testimony of the eye-witnesses, connecting the accused with the crime. The testimony of Shanker Vasistha that the accused were available, but he did not arrest them as there was no enough material against them is controverted by the record in as much as the accused had absconded away after the occurrence and for that reason remand in respect of Malkan Singh and Bhagwan Singh had to be obtained. Be that as it may, the argument that Shankar Vasistha's testimony that he could not find enough material against some of the accused should come to the rescue of the accused cannot bear fruit, and is consequently rejected.
15. Learned counsel for the accused-appellants has also submitted that Assaram, and Bhim Sen were the eye-witnesses of the occurrence, but for the reasons best known to the prosecution they have not been produced in the witness box He urges that the evidence which could have been and is not produced, would, if produced, be pressumed to be unfavourable to the persons who withholds it: vide illustration (g) to Section 114, Evidence Act. In this connection, it may be pointed out that there is an application, dated February 14, 1966, submitted on behalf of the prosecution, stating therein that as these witnesses were not going to give true account of the incident, they were not to be put up for examination by the court. In the light of this application, these witnesses, if produced, would have been no better than suborned 'witnesses. They were not witnesses 'essential to the unfolding of the narrative on which she prosecution was based,' and, if examined, the result would have been confusion. No oblique reason for their non-production was alleged, least of all proved. There was, therefore, no obligation on the part of the prosecution to examine them In this connection a reference is made to Bakhsish Singh v. State of Punjab : 1957CriLJ1459 . In these circumstances, this court would not interfere with the discretion of the prosecutor as to which witnesses should be called for the prosecution and no adverse inference under illustration (g) to Section 114 of the Evidence Act can be drawn against the prosecution for not examining Bhim Sen and Assaram.
16. We may now take up the appeal filed by the State Government. Learned Additional Government Advocate has argued that Jai Kishan, P. W. 3, has positively stated that Tapasvi delivered fatal blow on the head of Shital and, therefore, he should have been convicted under Section 302 or in the alterative under Section 304, Part I, Penal Code He however, concedes that there was no common intention or common object of the accused persons, Shiv Charan, Bala Prasad, Jogendra Singh, Malkan Singh and Lal Singh to commit the murder of Shital Singh and, therefore, they have been rightly convicted under Section 325, I. P. C. He has thrown a challenge only in respect of the conviction of Tapasvi under Section 325 I. P. C.
17. It is true that P. W. 3 Jai Kishan has stated that the first blow from the stick was given to Shital by Tapasvi and it fell over his right ear. This statement of Jai Kishan is not supported by P. W. 1 Mahendra Singh. This fact also does not appear in the first information report. The first information report simply says that all the accused administered beating to Shital with sticks. These circumstances create doubt as to whether Tapasvi was the main author of the deadly blow on the vital part of the body of Shital. The prosecution evidence, no doubt, goes to connect Tapasvi with the injury on the head of Shital, but, as has already been pointed out, that evidence is not consistent. We are, therefore, of the opinion that Tapasvi in this case cannot be convicted of an offence under Section 302 or 304, I.P.C. The intention or the object of the accused persons was not to commit the murder but to prevent Shital and his partymen from going to the Mills for work and when all the accused persons have simultaneously attacked their victim, it can be fairly presumed against every one of them that he had at least the intention of causing grievous hurt. We think, therefore, that each one of the accused is guilty of an offence under Section 325/149 I. P. C Though one of the injury proved fatal, it is not possible to ascribe any particular injury to Tapasvi and hence his conviction under Section 302 or Section 304, I.P.C., cannot be established. He has rightly been convicted under Section 325, I P.C. He ought not have been awarded severer sentence than the one imposed upon the co-accused.
18. In the result, we dismiss the appeal filed on behalf of the State Government. We partially accept the arppeal of the accused Tapasvi. We convict Tapasvi under Section 325, read with Section 149; I. P. C. and sentence him to 18 months' rigorous imprisonment instead of 3 years' rigorous imprisonment awarded to him by the trial court. We maintain his conviction and the sentence under Section 148, I. P.C. We dismiss the appeal of the other accused Bhagwan Singh, Shiv Charan, Bala Prasad, Jogendra Singh, Jalkan Singh and Lal Singh. Their conviction and sentence under Sections 148 and 325, read with Section 149, I. P. C , are maintained. We further direct that the sentences of the accused under Sections 148 and 325 read with Section 149. I. P. C, shall run concurrently. The District Magistrate, Ganganagar, is directed to arrange for the arrest of the above accused and send them to jail to undergo the sentences, awarded to them.