M.L. Shrimal, J.
1. This appeal is directed against the judgment dated November 29, 1973 of the Additional Sessions Judge, Gangapur City whereby he convicted accused Mandoo under Section 207 I.P.C., and sentenced him to undergo rigorous imprisonment for eight years. The said accused was also convicted under Section 148 I.P.C., and sentenced to undergo rigorous imprisonment for one year. Accused Harphqol, Topha, Ramphool, Suwa. Kalyan, Chhotya, and Ramjilal were convicted under Section 307 read with Section 149 I.P.C., and sentenced to undergo rigorous imprisonment for a period of eight years.
2. The afore mentioned seven accused were also convicted under Section 147 I.P.C. and each of them was sentenced to undergo rigorous imprisonment for one year. In addition to that they were convicted under Section 323 I.P.C., and each of them was sentenced to undergo three months' rigorous imprisonment. All the sentences were ordered to run concurrently. Hence the convicted have tome up in appeal before this Court.
3. The prosecution case in nut she is that accused Mandoo, Harphool, Topha, Gujar approached Onkariya P.W. 2 and declared their intention to fix a 'Charkhi' for squeezing sugar cane in front of his house, where-upon Oakariya told then not to do so. On October 12, 1972 all the eight accused appell his fromed an unlawful assembly, armed themselves with lathis and 'Gandasi' with the common object to use force to use force to the extent of causing death in case they were thwarted from fixing the 'Charkhi' in front of Onkariya's house. They brought the 'Charkhi' in their bullock cart and dropped it before the house of Onkariya. Onkariya protested against the fixing of the 'Charkhi'. He requested them not to fix it in front of his house, but the accused could not be desisted. Mandoo gave 'gandasi' blow on the left side of the head of Onkaruya and other persons Inflicted lathi blows on various parts of the body of Onkariya, Gansya and Giri Raj. P.W. 4 Harji and P.W. 5 Manbhawan appeared on the scence of occurrence to rescue the injured . After causing the injuries all the accused ran away together with the bullock cart. A first information report of the occurrencxe was given at 2 p.m. at the police station, Gadmora, which is situated at a distance of one mile. Site plan was prepared on the same day. Accused Mandoo was arrested on January 5, 1973. Accused expressed his desire to get the weapon of offence discovered Information Ex. P. 8 was recorded. In consequence of information Article 2 'Kulhadi' was recovered vide Ex. P. 9. Injured Onkariya was examined by Dr. Surajmal Gupta (P.W. 10), and he found the following injuries on his person:
1. Vertical injuries wound 1 1/2' 1/2' into depth into bone on left side of the head in front from head line upwards.
2. Acchymosis on left eye 2' 1'.
3. Contusion 3' 1' pack of right side of chest.
4. Contusion 2' 1 ' on right loin on back.
The face was paralysed on right side. Pulse 100 per minute. Temperature 97. B.P. 115/75. The patient was unconscious and was unable to give statement.
On the same day Dr. Suraj Mal Gupta (P.W. 10) also examined Ghisiya (P.W. 3) and he found the following injuries on his person:
1. Swelling 3' 2' on back of she left hand near thumb and index finger.
2. Abrasion 1/2' 1/4' on lower part and outer side of right lore-arm.
3. Contused wound 1/2' 1/4' 1/3' on front of the head in mid line two inches above the hair line.
Dr. M.N. Saxena (P.W. 9) prepared the X-Ray report Ex. P. 19 regarding the injury No. 1 on the person of Onkariya injured. After investigation the police submitted a challan against all the accused persons in the Court of Additional Munsiff-Magistrate, Gangapur City.
4. The learned Magistrate after complying with the provisions of Section 207A Cr.P.C. committed all the accused to take their trial in the Court of Additional Sessions Judge, Gangapur City. All the accused pleaded not guilty to the charge. The prosecution examined ten witnesses in support of its case out of which P.W. 1 Kishna, P.W. 4 Harji and P.W. 5 Manbhawan are the eye witnesses. The accused except Mandoo on their statements under Section 342 Cr.P.C. denied the prosecution allegations regarding their participation in the assault of Onkariya and Ghisiya. Accused Mandoo Admitted his presence on the scene of occurrence and pleaded that he had taken the land from Tundiya and Laxman in exchange of two Bghas of land and had constructed a 'Patore' three years back. He wanted to fix 'Charkni' near the 'Patore' and for the purpose he was digging the hole. At that stage Onkariya, Kishan, Ghasi, Man Bhawan, Harji came and obstructed him from fixing the 'Charkhi' and gave him a beating. He did not cause any injury to them . Accused did not examine any witness in defence. Topha D.W. 1 appeared under Section 342A Cr.P.C. and produced notices Ex. D. 9 and receipt of the payment of penalty Ex. D. 10. The injury report of the accused Mandoo was also taken on the record and marked Ex. D. 11.
5. The learned Sessions Judge fund the prosecution evidence reliable. He held that injury No. 1 sustained by Onkanya wis grievous and sufficient to cause the death in the ordinary course of nature. He further held that the act of the accused would have fallen under Clauses (2) of Section 300 I.P.C. if the injured might have expired. He further held that the accused Mandoo attempted to repeat the blows but was restrained by Harji and Manbhawan. He held the accused Mandoo guilty under Sections 323, 147, 307/149 I.P.C. and sentenced each of them as mentioned above.
6. The convicted accused persons have challenged their conviction by this appeal.
7. The first contention raised by the learned Counsel for the appellants is that the prosecution witnesses are entirely unreliable, and as such the accused are entitled to acquittal. In support on the above contention he has placed reliance on the following infirmities.
(1) Accused Mandoo sustained ft injuries during the course of the same occurrence, but the prosecution witnesses are guilty of suppressing the truth They have denied she fact of the accused Mandoo sustaining the injuries at their hands or at the time of occurrence. This point has been dealt with by the learned Additional Sessions Judge and he his held that the accused were examined after 3 days of the occurrence. The duration of the injuries mentioned in Ex. D. 11 is about 2 or 3 days No suggestion was made to Dr Surajmal Gupta (PW. 10) that the injuries on the person of the accused Mandoo were of the same time as those on the person of Onkariya and Ghisiya. He further held that the accused might have sustained or received these injuries after the occurrence. The learned Public Prosecutor appearing on behalf of the State bas placed reliance on the above mentioned observations and has further urged that if the accused Mandoo would have sustained the injuries in the same occurrence, he would not have kept quiet, and would have given a first information report immediately. I do not consider this argument tenable. The accused very well knew that Onkariya had sustained severe blows, his condition was precarious and there was every likelihood of his arrest. In such circumstances if be did not develop sufficient courage to give a first information report, it cannot be held that Mandoo did not sustain the injuries during the course of the occurrence. A perusal of the statement of Dr. Surajmal Gupta (P.W. 10) shows that according to him Mandoo sustained injuries two or three days prior 10 the date on which he was examined by him. This is suggesetive of the same period on which the occurrence took place. It cui fairly be held that accused Mandoo sustained injuries during the same occurrence in which Onkariya and Ghisya were injured. The question, however, is whether on account of this infirmity the prosecution case can be thrown overboard. The learned Counsel for the appellants had pieced reliance on Mohar Raj v. The State of Bihar AIR 1966 SC 1281. On the facts of that case the Court came to the contusion that the failure on the part of the prosecution witnesses to explain the injuries on the person of the accused went to show that the prosecution witnesses were not truthful witnesses and further on the material on record the Supreme Court held that the possibility of the plea of self-defence could not be ruled out. Their Lordships of the Supreme Court in Bankey Lal v. State of U.P. : 1971CriLJ1540 distinguished Mohar Raj v. State of Bihar AIR 1968 SC 1281 and proceeded to observe that,
Where prosecution witnesses have not deposed truly in all respects, Court should scrutinise their evidence with care But simply because prosecution did not explain injuries on the person of accused, Court cannot discard the entire prosecution evidence.
In Onkarnath Singh and Ors. v. the State of U.P. : 1974CriLJ1015 their Lordships have observed.
This Court has repeatedly pointed out that the entire prosecution case cannot be thrown over board simply because the prosecution witnesses do not explain the injuries on the person of the accused.
Thus this infirmity pointed out by the learned Counsel in itself is not sufficient to throw the prosecution case over board. In the facts of the case at band it should have no adverse effect on the prosecution case.
(2) The other infirmity relied upon by the learned Counsel for the accused-appellants it that according to the statements of the prosecution witnesses the accused Mandoo was armed with a 'Gandasi' at the time of occurrence where as Station House Officer Shri Roop Singh (P.W. 8) has stated that he arrested the accused Mandoo on January 5, 1973 and thereafter the accused Mandoo expressed his desire to get the weapon of offence 'Kulhadi' discovered and in consequence of the information 'Kulhadi' Article 2 was recovered. The learned Additional Sessions Judge has dealt with this aspect of the case. He has held that the weapon of offence is of the type which can be termed as axe and 'Gaodasi' both. I agree with him There is not much difference between 'Kulhadi' and 'Gandasi'. Both have edged blades Bi that as it may, the alleged discrepancy is of a minor character. The prosecution has succeeded in proving to the hilt that a sharp edged weapon was used by accused Mandoo and as a result of which Onkariya sustained grievous injury on his head. Thus this point, raised on behalf of the appellants, therefore, is of no substance.
(3) The third infirmity pointed out by the learned Counsel is. that P.W. 2 Onkariya and P.W. 1 Kishan stated that accused Suwa inflicted the injuries with an axe, whereas the other witnesses stated that Suwa accused inflicted injuries with lathi. In the circumstances of the present case it will not have an adverse effect on the prosecution case. Because when a large number of persona all of a sudden start inflicting injuries, the victim loses balance and it becomes very difficult for the witnesses to assert with exactitude the particularly of the weapon attributed to each of the accused. On the basis of such a minor contradiction it cannot be held that Suwa accused did not participate in the commission of the offence and he has been falsely implicated.
7. The fourth infirmity relied upon is that in the first information report the specific part in causing the injuries was assigned to only 4 accused Mandoo. Kalyan, Chhotiya and Harphool, and an omnibus statement has been made regarding other accused, whereas in the statements recorded before the court the prosecution witnesses have stated the portions of the body on which such injuries were inflicted by each of the accused appellants They have improved their statements and they have scant regard for truth. I have given ray careful consideration to these facts and do not find any substance in it. It will be pertinent to observe here that the principal object of the first information report is to set the criminal law into motion. It cannot be treat c as the last word of the prosecution. While considering the omissions in the first information report one cannot derive inference from them like mathematical formulas. What is required to be done is to find out their true effect in the light of all the circumstances of the case and material on the record The first information report in this case was given within an hour of the occurrence Onkariya and Ghisiya were injured in the occurrence, the condition of Onkariya was very serious at the time who the first information report was given, The first information report contains the names of all the accused It has been mentioned therein that all of them came together with a bullock cart. They placed the 'Ctiarkhi' in front of the house of the complainant, and started fixing it. All of them were armed with weapons and they caused the injuries. Kishan's attention was focused on the injuries sustained by Onkariya and as such he mentioned the details of the injuried on the person of Onkariya, and did not mention the details regarding the injuries sustained by Ghisya, either due to lack of intelligence to realise the importance of the details in the first information report, or due to his anxiety to reach to the injured, one of whom was his own father On this count alone it cannot be said that the prosecution witnesses have improved their statements, and they have scant regard for truth. It is an admitted case of the parties that the prosecution witnesses were not inimical to the accused and as such on this count alone she prosecution story cannot be discarded. The minor discrepancies relied upon by the appellants are of little importance photographic pasturisation of blows in an attack cannot be expected from the witness who are not fabricated and little turns on indifferent incompatibility parrot-like repetitions of details betary tutoring not rugged rugged truthfulness. I may point out that maxim falsus in uno falsus in omnibus in neither a sound rule of law nor a rule of law nor a rule of practice. Hardly one comes across a witness whose evidence dose not contain a grain of untruth or at any rate exaggerations, embroideries or embellishment. It is, therefore, the duty of the court of scrutinise he evidence. Hiving done so if the substratum of the prosecution case is to be true, then merely because of embellishment or improvements the case of the prosecution case dose not stand discredited. All the prosecution witness have named all the accused persons, have uniformly deposed the part played by each of the accused in the incident P.W. 2 Onkariya and P.W. 3 Ghisiya had injuries on their persons which are alleged to have been received during the course of the present occurrence. Their presence on the spot cannot be doubted. P.W. 1 Kishan and P.W. Kishan and P.W. 6 Gir Raj are the sons of Ghisya P.W. 3. The occurrence had taken place in Bhawan P.W. 5 and Harji P.W. 4 reside in the same locality. They have no exe to grind against the accused. Accused Mandoo in his statement under Section 312 Cr P.C. has admitted the presence of the witnesses Oakariya, Kishan, Ghisya, Man Bhawan and Harji on the scene of occurrence. The statements of Onkariya, Ghisiya as well as that of the other eye witnesses stand corroborated by. the medical evidence of Dr. Suraj Mal Gupta (P.W. 10) Nothing has been brought out in their cross-examination on the basis of which the statements of the prosecution witnesses can be discarded.
8. The second contention raised by the learned Counsel for the appellant is that, the present is not a case wherein each of the appellant can be said to have entertained along with the ether members of the assembly the common object as defined in Section 141 IPC. The 'Charkbi' was being fixed on a Sand which belonged to the accused and which was under their peaceful possession. A 'Gandasi' was being carried by the accused for the purpose of digging the land. The village people are in the habit of keeping lathis while gong out of their house. Sire ply because all of them came together and the quarrel ensued on the spot it cannot be said that all the eight accused formed an unlawful assembly armed themselves with luthis and Gandasis' with the common object to use force to the extent of causing death, in case they were thwarts d from fixing the 'Charkhi' in front of Onkariya's house.
9. In support of the above contention Ex. D. 8, Ex. D. 9, Ex. D. 10 and the statements of accused Mandoo, recorded under Section 342 Cr.P.C., and the statement of accused Topha recorded under Section 342A Cr.P.C. were relied upon. According to Mandoo the land in dispute where the 'Charkhi' was being fixed was near his 'Patoe'. He obtained the land in dispute to exchange of 2 Bighas of land from Laxman and Tundiya. The accused Topha has stated in his statement recorded under Section 342-A Cr.PC. that he was in possession of 5 Biswas of land for last 10 or 12 years. The land was being utilised by him for fixing a 'Charkhi'. Topha accused appellant in his cross-examination admitted that Khasra No. 62 consisted of 4 Bighas. Ex. D. 8 and Ex. D. 9 are the notices issued by the Tehsildar under Section 91 of the Land Revenue Act to eject the trespasser from the land measuring 5 Bissau. Ex. D. 8 and Ex. D. 9 are no sufficient to specifically locate the 5 Biswas (sic) out of Khasra No. 62. Ex. D. 10 is a receipt for the payment of penalty. This receipt is of no use to the accused. It does not even indicate the Khasra number of the land regarding which penalty amount was deposited. The plea taken by Tophan and Mandoo is contradictory. According to Tophan the land in dipute was under his possession as trespasser where as according to the accused Mendoo he obtained the land in exchange from Laxman and Tuniya Laxman and Tundiya have not been examined on behalf of the defence. It has been emply proved by the prosecution evidence that the land over which the 'Charkhi' was being fixed is a part of the 'Sawai Chak' (Government land). The prosecution witnesses Kishan (P.W. 1), Onkariya (P.W. 2) and Ghisya (P.W. 3) have stated that the 'Charkhi' was being fixed near their 'Patore' and the land was in their peaceful possession. Thus it stands empty proved that the land was in their peaceful possession. Thus it stands empty proved that the land on which a 'Charkhi' was being fixed did not belong to the accused. It was over it. The contention of the accused that the 'Charkhi' was being fixed in their own land stands disproved.
10. The prosecution has examined six witnesses : P.W. 1 Kishan, P.W. 2 Onkariya, P.W. 3 Ghisiya, P.W. 4 Harji, P.W. 5 Man Bhawan and P.W. 6 Gir Raj as eye witnesses. All these witnesses are unanimous on the point that ah the eight accused-appellants came together. They brought a 'Charkhi' in a bullock cart. They placed the same in front of the house of Ghisya and made an attempt to fix it there. P.W. 2 Onksriya protested but the accused insisted and asserted their tight to fix a 'Charkhi' Harphool asked Mandoo to inflict a blow to Onkariya on which Mandoo delivered a 'Gandasi' blow causing injury on the left side of the head of Onkariya. Thereafter the accused Chhotiya Kalyan, Harphool and others inflicted lathi blows on the person of Onkariya. Ghisya was also belaboured by accused Ramjilal and Tophan P.W. 6 Gir Raj came to rescue them. He was also beaten by the accused Topha and Ramphool. In the first information report it has been mentioned that prior to the date of the occurrence the accused Mndoo, Harphool and Topha had informed Onkariya that they will fix the 'Charkhi' in front of his house, whereupon Onkariya had told them not to do so.
11. From the evidence on the record it is evident that the accused Topha and Mandoo were bent upon to establish their right to fix a 'Charkhi' on the disputed land. In order to enforce their so called right or supposed right of fixing a 'Charkhi' in front of the house of Onkariya, the accused formed an unlawful assembly consisting of eight appellants, each one of them entertained along with the other members of the assembly the common object of establishing the right to fix the 'Charkhi'. All the members of the unlawful assembly aimed themselves with 'laihis' and 'Gandasi'. They reached together on the spot with the 'Charkhi' to establish their right by use of force to the extent it was necessary and in furtherance of the common object of be assembly they caused injuries to Onkariya and Ghisaya, and after inflicting the injuries at of them went together with the bullock cart in the tame direction. Even if it is held that on or two accused did not inflict any blow, they cannot be termed to be innocent spectator without intending to share the common object of the assembly nor did they happen to be there out of ideal curiosity, nor they were merely gazing at having nothing to do with the assault. Their presence on the spot after being armed with the weapons can be attributed to them for the purpose of over coming any outside interference; with the attainment of their common object Besider this after causing injuries to Onkariya, Ghisya and Gir Raj all the accused ran away together is the same direction. All these facts have definite bearing on the existence of a common object of the unlawful assembly formed by the accused.
12. Thus it stands proved beyond any manner of doubt that all the eight accused appellants formed an unlawful assembly, the common object of which was to establish by force the disunited right or supposed right of Mandoo and Topha to fix the 'Charkhi' on the disputed land situated in front of Onkarlya's house. That Onkariya, Ghisya and Gir Raj were beaten up by the members of the unlawful assembly formed by the appellant and Onkariya sustained grievous hurt with a sharp edged weapon at the hands of accused Mandoo. Lathi injuries were inflicted on the person of Onkariya, Ghisya and Gir Raj by the members of the unlawful assembly. The injuries were caused to the three victims by the members of the unlawful assembly in prosecution of the common object of the assembly.
13. It has been urged that the learned Additional Sessions Judge has committed an error of law in convicting the accused Mandoo under Section 307 I.P.C. Dr. Suraj Mal Gupta (P.W. 10) duning the course of cross-examination stated regarding the injury No. 1 in Ex. P. 5 as follows:
bZ,Dl iks0 5 es pksV ua0 1 gsM ij Fkh A ftles vUnj okbVy ikVZ gksrk gS A bZ,Dl isk0 5 dh pksV ua0 1 vksjMujh dkslZ vkQ uspj es MsFk dkt djus es buQ Fkh ;k ugh eS MsfQusV ugh dg ldrk A ,slh pksVks ls cp Hkh tkrs gS o ej Hkh tkrs gS A
On the basis of this statement it has been vehemently urged that if Onkariva would have died then also the act of the accused cannot be said to have been covered by Clauses 3rdly of Section 300 I.P.C., and he would not have been convicted for commission of murder. Onkariya injured sustained four injuries out of which only one was grievous. The injury inflicted by the accused Mandoo though endangering life could not be deemed to be an injury which could hive necessarily caused the death, but for timely medical aid, the benefit of doubt must therefore be given to the accused Mandoo, with regard to the injury intended to be caused and in my opinion the offence is not one under Section 307 I.P.C., but under Section 326 I.P.C. Admittedly there was no previous eamity between the accused-appellants on the one hand, and Onkariya and Ghisiya injured on the other. The occurrence was the off shoot of a trifling incident whereby the accused were not allowed to affix a 'Charkhi' in front of the house of Onkariya injured. The common object of the assembly was to establish their right to affix a 'Charkhi' and to give chastisement to Onkariya and others, if the necessity so arises. Out of the four injuries caused to Onkariya, apart from the one injury on the head, the other injuries were simple and caused by blunt weapon. From the facts and circumstances of the case it can not be inferred that all the accused intended to commit the murder of Onkariya, or the common object of the assembly was to use force to the extent of causing the death or grievous hurt in case they were thwarted from affixing the 'Charkhi' in front of the house of Onkariya. The fact that one of the accused exceeded the bound and inflicted a blow with a 'Farsi' on the vital Dart of the body of Onkariya would make him personally liable for the vital injury. But so far as the other accused are concerned, they will be held liable for the injuries which were caused in furtherance of the common object of the unlawful assembly.
16. I therefore, set aside the conviction of the accused Mandoo under Section 307 I.P.C. and convict hi n under Section 326 I.P.C., his sentence of eight years' rigorous imprisonment, will accordingly be reduced to three years rigorous imprisonment and to pay a fine of Rs. 300/ (Rupees Three Hundred), in default to further undergo three months rigorous imprisonment. His conviction and sentence under Section 148 I.P.C. is conformed. The conviction of accused Harpool, Topha, Ramphool, Suwa, Kalyan Chhotya and Ramji Lal under Section 307 read with Section 149 I.P.C. is set aside, they are convicted under Section 324 read with Section 149 I.P.C and each of them is sentenced to undergo rigorous imprisonment for a period of fifteen months. The conviction and sentences imposed upon the aforesaid seven accused appellants under Sections 323 and 147 I.P.C. are maintained. The sentences awarded to each of the accused-appellant shall run concurrently. It is, however, made clear that the appellants would be entitled to get set off or adjustment under Section 428 Cr.P.C. 1973, of the period, if any, during which they remained in jail as under trial prisoners.