K.D. Sharma C. J.
1. This is an appeal filed by Rana and Teja against the judgment of the learned Sessions Judge, Udaipur, dated June 22 1977, by which each of the appellants was convicted under Section 304 part II, read with Section 34, Sections 380 and 323, I.P.C. and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 300/-, in default of payment of fine to further suffer rigorous imprisonment for three months on the first count, on the second count to undergo rigorous imprisonment for one year and on the third count to suffer rigorous imprisonment for six months and to pay a fine of Rs. 200/-, in default of payment of fine to further undergo simple imprisonment for two months. The substantive sentences of rigorous imprisonment awarded to each appellant on all the three counts were, however, ordered to run concurrently. The trial Judge further ordered that out of the amounts of fine, if recovered, a sum of Rs. 200/-, be given to Surta and Bhera witnesses each as compensation.
2. The incident that led to the arrest and prosecution of the two appellants may be briefly stated as follows:- Bhuriason of Surta Bhil resident of village Mohalla accompanied by Dhira and Eja went to Police Station, Bikarni, District Udaipur on August 17, 1975, and lodged a verbal report with the police that in the night between August 15 and 16, he was sleeping inside his house wherein his cattle were tied with a rope. In the night his two she-goats were stolen away by the miscreants after cutting the rope with which they were tied. In the morning when he woke up he saw his two she-goats missing from his house and the rope lying cut therein. There upon, his father Surta and his brothers Bhera and Chena went in search of the she-goats. While searching she-goats they reached village. Tinchara following the foot-prints of the she-goats. The foot-prints were not visible beyond the house of Pura. They asked Pura about the where abouts of the she-goats Pura informed them that Rana and Teja appellants along with Rama and Eja had brought two she-goats in the village. Upon receiving this information Bhuria's father Surta and his brothers went to the house of Rama and saw his she-goats there. Surta and his two sons caught hold of the she-goats but they were beaten by Rama, Teja, Rana and Eja with lathis. As a result of the beating, Chena, Surta and Bhera sustained multiple injuries on their bodies. Enda and Pura came to the rescue of the appellants. One Galla, who had gone along with the father of Bhuria came running to village Mahalla and informed Bhuria about the incident. Bhuria then brought the injured to the Police Station.
3. On the basis of the verbal report lodged by Bhuria the police registered a criminal case under Sections 457, 380, and 392, LP C. and took up usual investigation into the matter. As the condition of Chena was precarious, Head Constable Dula Khan recorded his statement Ex. P. 11 and obtained his thumb impression on it in the presence of Chena and Kera Motbirs. Dula Khan inspected the house where from the she-goats were stolen and prepared a sits plan Ex. P. 40. The investigation was then handed over by him to Takhat Singh, Station House officer on August 18, 1975. Takhat Singh received an information from Medical Officer Kotlra that the condition of Chenia was serious Takhat Singh rushed to the Hospital, Kotlra, but before he reached there Chenia breathed his last. Takhat Singh prepared a Panchnama Ex. P. 4 on the dead body and thereafter reached village Tinchara. There he inspected the site and prepared a site plan Ex. P15 and recovered blood stained earth from the spot. He arrested liana appellant vide memo of arrest Ex.P. ft. Teja also was arrested vide memo of arrest Ex. P. 7. After his arrest Rana, while in police custody, gave Takhat Singh an information on August 30, 1975, that he had concealed one lathi in his house and that he was ready and willing to get it recovered at his instance. The above information was recovered by Takhat Singh in a memo Ex.P 16. Later on, Takhat Singh recovered a lathi from the house of Rana appellant at his instance and in consequence of his above information. At the time of arrest Teja appellant had a lathi with him. So the lathi was taken into possession by Takhat Singh.
4. After the death of Chenia post-mortem examination was performed on his dead body by Dr. Om Prakash on August 18, 1975. The Doctor found the following external injuries on his body.
(i) Condition of subject- stout emaciated, decomposed: Rigor mortis was present all over the body. Mouth was open and hands were flexed at wrists.
(ii) Wounds-position, size character. Large laceration was found on the whole length of right occipital region and right temporal region of the scalp. Size 7,, x 3' to 3 1/2'.
(iii) Bruises- position, size, nature. Abrasion circular shape was present on the left perietal bone of the scalp. Size 5 mm in diameter.
(iv) Mark of ligature on neck, dissection & c. -Nil-
(v) Condition of pupils. Dilated, eye-lids of the left eye were swollen bluish. Cornea opaque.
Upon dissection of the dead body, the following internal injuries were detected by the Doctor:
(a) Scalp, skull and vertebrea.
Large haematoma of the scalp was found beneath the right occipital, Right temporal and left temporal region of the scalp.
Skull was fractured on the right side. The linear fracture line was extended from the right occipito-parietal suture, commencing in the middle reaching upto the right maxilla beneath the right zygomatic bone of the face. Size 7' long linear. 10 1/2 long fracture was also found on the right-occipital bone longitudinal in direction, occipital-parietal suture on the right side were separated.
b. Membranes. Healthy but showing congestion over its surface that gave rise to ecchymosis in the left temporal region due to extra dural haemorrhage.
c. Brain and spinal cord. Charged congestion was present on the surface of the brain.
5. In the opinion of the Doctor, death of Chena occurred on account of fracture of right skull caused by a blunt object leading to intra-cranial haemorrhage followed by coma and death due to paralysis of vital centres of the brain.
6. Surta also was medically examined as to his injuries. The Doctor found the following injuries on his person:
(i) Lacerated wound 1' x 0.2' xO.1' on the right parietal bone 5 1/2' above the trigus of the right ear;
(ii) Contusion bluish 7' x 1' on laterial border of the left scapula;
(iii) Contusion bluish in colour 7' x 1' over the left scapular region:
(iv) Contusion bluish in colour 10' x 1' across the back of the level of 4th thoracic vertebrae obliquely
(v) All these injuries were simple in nature and caused by a blunt object.
Likewise Bhera was found, upon medical examination, to have received the following injuries:
(i) Lacerated wound horizontal 2'x O. 2'x O. 1' on left side of the occipital bone of the scalp:
(ii) I acerated wound transverse 1 1/2' xO. 2' xO. 1' mid line of the occipital bone of the scalp,
(iii) Lacerated wound 1 1/2 'xO. l'x 2 mm. right side of the occipital bone of the scalp.
All these injuries were simple in nature and caused by a blunt object.
Takhat Singh, Investigating Officer, collected other necessary evidence in the case & eventually filed a charge sheet against Rana & Teja appellants for the offence under Section 302 read with Section 34, I.P.C. The other two coaccused Rama and Eja were absconding after the commission of the crime. A charge sheet under Section 299, Cr.P.C. was filed against them also for the offence under Section 302 read with Section 34, I.P.C. in the court of the Munsif and judicial Magistrate, Udaipur. The learned Magistrate, upon finding a prima-facie case, against the two appellants & the other two co-accused under Section 302 read with Section 34, I.P.C. committed them to the court of the Sessions Judge, Udaipur, for trial. The Sessions Judge, Udaipur charge-sheeted Ran a appellants under Sections 380, 302/34 and 323 I. P. C. while Teja appellants was charge sheeted for the offences under Sections 380 and 302 simpliclter or in the alternative under Section 302 read with Section 34 and 323, I. P.C The other co-accused could not be arrested as they were absconding, After framing the aforesaid charges against the two appellants, the Sessions Judge, Udaipur, conducted the trial and, upon conclusion there of, found them guilty of Sections 30 and 304 Part II read with Section 34 and I the offences punishable under Section 323, I.P.C He accordingly, convicted and sentenced the two appellants, in the manner, stated above.
7. Aggrieved by their convictions and sente ces Rana and Teja appellants have preferred this appeal. I have carefully gone through the record and heard Mr S. K. Sharma, learned counsel for the appellants, and Dr. S.S. Bhandawat, Public Prosecutor, for the State Firstly it has: been contended on behalf of the appellants that there is no independent and reliable evidence to prove the connection of the two appellants with the crimes alleged. The learned counsel for the appellants further urged that out of the four eye-witnesses to the actual occurrence, PW 4 Mala has turned hostile to the prosecution case and PW 9 Hada his been disbelieved by the trial Judge Thus, remains the evidence of PW 2 Surta and PW 3 Bhera only which also is full of material contradictions and improvements and is liable to be rejected outright. According to the learned counsel for the appellants, the prosecution relied upon the dying declaration of Chena dec ased Ex.P 11 also to connect, the two appellants with the crime but the trial court rightly found this piece of evidence untrust-worthy upon close and careful scrutiny thereof The Public Prosecutor, on the other hand, contended that the evidence of PW 2 Surta and PW 3 Bhera is of sterling worth and no fault can be found within it. Both of them have clearly stated in their deposition that the two appellants along with their guilty associates, namely, Rama and Eja, who are absconding, made a concerted attack on Surta and Bhera injured and Chena, deceased, and that Chena later on died of the injuries sustained by him at the hands of the miscreants. The Public Prosecutor further contended that the two appellants were rightly convicted of the offence punishable under Section 304 read with Section 34, I.P.C. and no interference with the findings of fact arrived at by the trial Judge after close and careful scrutiny of the entire evidence on the record is justified.
8. I have carefully considered the rival contentions mentioned above. Surta P W 2 is an eye-witness to the occurrence in which he sustained simple injuries also on his body. His evidence is that following the foot-prints of the stolen she-goats he along with Bhera, Chena and Galla reached village. Tinchara and saw that that the foot-prints were not visible beyond the house of Rama, Eja, Rana and Teja. They then saw his stolen she-goats in the house of Rana and Teja appellants. On seeing the she-goats he along with Bhera and Chena deceased tried to catch hold of the she-goats. Thereupon, Rana & Teja appellants along with Rama & Eja, co-accused, who are absconding, made a concerted attack upon him and his companions with lathis. Surta further stated that Rana and Teja at first inflicted lathi blows on his head and, thereafter, Teja struck a lathi blow on his back, as a result of which he fell down. Thereafter, Teja, Rana and Rama caused injuries to head and face of Bhera, as a result of which he fell down. Then Rama inflicted a lathi blow on the back of Chena. Rama struck a further blow on the head of Chena with a lathi, as a result of which blood came out and his head was fractured. Chena fell down and became unconscious. Eja, co-accused, also inflicted lathi blows on his body & on the body of Bhera. Before Surta, Bhera and Chena were beaten the two appellants and their guilty associates had beaten Galla also who, out of fear, ran away from there. Surta was cross-examined at length in the trial Court by learned Counsel for the appellants but his evidence could not be shaken at all in cross-examination. The evidence of Surta finds support from the testimony of Bhera PW 3. Bhera stated in his deposition at the trial that he had accompanied Surta to village Tinchira where he saw stolen she-goats in the house of Rana and Teja appellants. As soon as he and his companions Surta, Chena and Galla made an attempt to catch hold of the stolen she-goats, Rama at first struck a lathi blow on the head of Surta and then struck a blow on his head also. Thereafter Teja inflicted a lathi blow on the head of Chena, deceased. Out of fear Galla ran away from there. Chena and Surta fell down as a result of the injuries sustained by them. Galla went to the village and brought some persons from there who took the injured to Police Station.
9. The learned Counsel for the appellants strenuously urged before me that there are material contradictions between the evidence of these eyewitnesses, namely, Surta PW and Bhera PW 3, which could not be ignored in assessing the value of their testimonies. According to the learned Counsel for the appellants, Surta stated in his deposition that Rana and Teja had inflicted lathi blows on his head and then Teja struck a lathi blow on his back. While Bhera merely stated that Teja and Rama had beaten him, Surta and Chena. Another contradiction pointed out by the learned Counsel for the appellants is that Surta in his deposition stated that Rama had struck a lathi blow on the back of Chena deceased and thereafter Rama inflicted a lathi blow on the head of Chena as a result of which head was fractured and blood came out, while Bhera PW 3 ascribed the injury on the head of Chena to Teja appellant. Third contradiction pointed out by the learned Counsel for the appellant is that Surta stated in his deposition at the trial that Bhera PW 3 sustained injuries on his head and back at the hands of Teja and Rana appellants and Rama co-accused, while Bhera merely stated that Rama co-accused had caused an injury to his head with a lathi. On the basis of the referred-to-above contradictions, the learned Counsel for the appellants argued that the evidence of these witnesses is wholly unreliable and cannot be relied upon for convicting the two appellants.
10. I have considered these contradictions. In my opinion, they are not of material significance, because Surta, Bhera and Chena were attacked, all-of a-sudden, by the two appellants & their associates with lathis. In a sudden and simultaneous attack by several assailants it is often not possible for the victims of assault to describe the actual part played by each of the assailants. In such case, the evidence of the eyewitnesses of the victims of the assault cannot be discarded merely on the grounds of minor discrepancies pointed out in their evidence. It is the duty of the court in such cases to sift the evidence care-fully and to come to a conclusion which part of the evidence of the victims of assault and the eye-witneses is true and which part is not true. Reference in this connection may be made to an authority of the Supreme Court Masalti v. State of U.P : 8SCR133 . In the instant case, Surta and Bhera were the victims of assault. They were not shown to have any such enmity with the appellants as could induce them to give false evidence and to substitute the appellants as perpetrators of crime in place of the persons really guilty. Apart from this, upon a bare reading of the testimony of Dr. Om Prakash read with the post-mortem report, which was proved by him, it appears that Chena deceased had two injuries on his head, one was large laceration upto the whole length of the occipital region and right parietal region of the scalp of the size of 7'x 3'x 3.2' and another was an abrasion of circular shape on the left parietal bone of the scalp, the size of which was 5 m. m. in diameter. In view of these two injuries found on the head of the deceased by Dr. Om Prakash at the time of post-mortem examination the statement of Surta PW 2 that Rama co-accused, who is absconding, had inflicted a lathi blow on the head of Chena as a result of which the head was fractured and the statement of Bhera PW 3 that Teja appellant had struck a lathi blow on the head of Chena deceased do appear to be true because Chena deceased had two injuries on his head out of which one was caused by Rama as alleged by Surta and the other was caused by Teja appellant as stated by Bhera. Likewise, Surta received a contused wound over the right parietal bone 5 1/2' above the trigus of the right ear apart from three other injuries-two on his scapular region and one on his back as is evident from the evidence of Dr. Om Prakash read with injury report Ex. P. 9. Hence, his statement that Rana and Teja appellants inflicted blows on his head and thereafter Teja appellant struck a lathi blow on his back does not appear to be untrue. Consequently, I do not attach any weight to the minor discrepancies pointed out by the learned Counsel for the appellants which are bound to occur in the evidence of truthful and untutored witnesses. Reference in this connection may be made to an authority of State of Assam v. Krishna Rao and Anr. : 1973CriLJ169 . It will not be out of place to mention that, while scrutinising the evidence led by the prosecution, the trial Judge rightly rejected the evidence of dying declaration and the testimony of eyewitness Hada PW 9. The trial Judge has given good reasons, with which I fully agree, for rejection of the dying declaration and the evidence of Hada eye-witness and I also have excluded these pieces of evidence from consideration in arriving at the conclusion whether the prosecution has proved the guilt of the two appellants beyond reasonable doubt. Upon careful review of the entire evidence, I am of the view that the two appellants are responsible for causing injuries to Surta, Bhera and Chena deceased.
11. The next question that requires determination is whether common intention between the two appellants and their companions, who were all concerned in this offence, has or has not been proved. The learned Counsel for the appellants vehemently contended before me that the two appellants were wrongly held guilty of culpable homicide not amounting to murder punishable under Section 304 Part II, I.P.C. read with Section 34, I.P.C. in the absence of proof of such intention to cause the death of Chena. The above contention has no force, because the two appellants and their associates joined together in attacking Surta, Bhera and Chena, deceased, with lathis and so all of them were liable for the death of Chena although it was not proved that the two appellants actually caused the fatal injury on his head. Surta, Bhera and Chena, deceased were not aggressors. As soon as they made an attempt to catch hold of the stolen she goats of Surta, the two appellants and their companions Rama and Eja, co-accused, having been armed with lathis made an entirely unprovoked attack upon them and out of the assailants Rama caused a fatal blow on the head of Chena and Teja, appellant;, in flicted another lathi blow on his head and the assailants, further inflicted lathi blows on the persons of Surta and Bhera. In these circumstances, each of the assailants must have known that attack on the head of Chena with lathis was likely to cause his death and the trial. Judge committed no error in holding that the two appellants were guilty of an offence punishable under Section 304 Part II read with Section 34, I.P.C.
12. As slated earlier, there is reliable evidence of Surta on the record that Rana add Teja appellants voluntarily caused simple hurts to him with lathis without any lawful excuse. Likewise, there is reliable evidence of Bhera, PW 3, that he was beaten by Teja appellants. The evidence of these two witnesses finds corroboration from the medical evidence of Dr. Om Prakash read with injury reports marked Ex.P. 9 and P.10. It is further proved by the evidence of Surta that his two she-goats were stolen from his house and were found in the house of the two appellants soon after the theft. The two appellants could not afford any reasonable explanation for their recent and exclusive possession of the stolen she-goats belonging to Surta. The trial Judge rightly drew presumption of guilt under Section 380, IPC against the two appellants on the basis of their unexplained recent and exclusive possession of the two stolen she-goats belonging to Surta PW.2
13. Lastly, the learned Counsel for the appellants argued before me that the trial Judge wrongly discarded the evidence produced by the two appellants in their defence from which it was proved that Surta, Bhera, Chena and others had gone to the house of Teja appellant in an aggressive mood, having armed themselves with lathis on account of enmity due to the fact that his father-in-law refused to marry his daughter Devli with Chena deceased. It was further urged by the learned Counsel for the appellants that Surta, Bhera and Chena and 10 others entered the house of Teja and began to drag out his wife Devli with the intention to take her away by force. Teja thereupon came to the rescue of his wife and wielded his lathi, as a result of which Surta, Chena and Bhera might have received injuries on their persons. In support of the above defence version the appellants examined Devli wife of Teja, appellant and one Dhulia. The trial court considered their evidence carefully & found it unreliable for reasons given in its judgment, with which I fully agree and which I need not reproduce for fear of repetition. As regards sentences awarded to the appellants on all the three counts, I may say that they are not excessive in the circumstances of the case.
14. The result of the above discussion is that the appeal filed by the two appeallants fails and is hereby dismissed. Appellants Rana and Teja are on bail and are not present today in this Court. They shall surrender to their bail bonds. The Chief Judicial Magistrate, Udaipur, is directed to get them arrested & sent to jail for serving out the sentences awarded to them by the trial Judge. However, the period of detention, if any, undergone by them during investigation, inquiry or trial of this case and before the date of such conviction, shall be set off against the terms of imprisonment imposed on them and their liability to undergo imprisonment, on such conviction, shall be restricted to the remainder, if any, of the terms of imprisonment imposed on them.