Kanta Bhatnagar, J.
1. This appeal arises out of the judgment passed by the learned Additional Sessions Judge, Bundi, dated 26-11-1970. By hat judgement, the learned Judge held the respondents not guilty for the charges under Sections 148, 302/35, 309/149, 325/34 and 323 Indian Penal Code, and passed the order of acquittal.
2. Briefly stated, the facts of the case leading to the trial of the respondents, are that at village Chapawada two daughters of Rama Nanda, namely, Mohini and Gopali were married to Hazari son of Snri Kishan, PW 1 of Ganpatpura and Mohan, grand son of Rugga, resident of Bezad, respondent, respectively on the 'Akhateez' the 3rd April, 1966. On the next day of the marriage, the two Barat parties of Ganpatpura and Bezd, had assembled beneath a tamarind tree for Beengoth A 'Nut' from Bazad reached there. Rugga gave him Rs. 9/- and also asked Shri Kishan to give him money On Shri Kishan's reluctance to do so, there was not alteration between the two parties. Bhanwarlal S/o Shri Kishan, is said to be lying on Jajim' (Car-per) near the carts Some body from Bazad party snatched his watch A complaint to that effect was made by Shri Kishan and others to Ram Nanda, father of the brides, at his house. Rama Nanda assured them that he would get the watch returned He went to Rugga, who is said to be at the house of Chandra, to have a talk in the matter. After some time sixty or seventy persons including the respondents came armed from towards Bazad and assembled on a hillock and many of them threw stones towards the Barat party of Ganpatpura, Ten person came down from the hillock and gave a beating, with lathis, to Shri Kishan, Ram Narain, Gomnda, Kalyan, Mali, Smt. Keshar and Bhanwarlal Bhanwarlal sustained severe injuries and succumbed to those injuries. Shri Kishan along with some of his companions took the dead body of Bhanwarlal to the Police Station, Telera, in a cart and lodged the First Information Report there at about 4.C0 P.M before PW 18, Kurshid Ali. The dead-body of Bhanwarlal was sent so Bundi Hospital for post mortem That First Information Report along with me inquest report, Ex P. 14, prepared by Kurshid Ali, was given to Prakash Chand, the then Incharge of the Police Station who on the basis of the First Information Report registered the case under Section 302 Indian Penal Code. The clothes taken from the dead body of Bhanwarlal vice memo Ex P 16 at the time of post mortem, were taken in possession, and sealed. On 26-4-1966, Prakash Chand went to the site of occurrence sod prepared the site inspection memo Ex P. 2 and site plan Ex.P. 3. He took the blood stained stones and blood stained earth from two places vide memo Ex P. 4 Ex P 5 and Ex P 6. On 25-4-J96b, on receiving the information about the incident the Station House Officer, K. K Paten went to the scene of occurrence, and found the condition of Kanwara respondent serious. He, therefore, took him to Bundi Hospital and got him admitted there He arrested the respondent and in pursuance of the information furnished by Hira, Chhota, Kalal, and Kalyan recovered nicks,
3. On 24-4-1966, Or. R N. Jhanji, PW 15 examined Gomnda, and noted one grievous injury caused by blunt object, being of the fourth rib left side anteriorly. On the same day the Doctor examined Gopal and noted one bruise on the right half of the back near the inner border of right scapula. The injury was simple and caused by blunt object. On the same day, the doctor examined Smt Kesar, wife of Shri Kishan, and noted one simple injury cawed by blunt object being the bruise of left half of the back over left scapula. The doctor on the same day, on examination of the injuries of Ram lal had noted two bruises on his person, Those injuries were simple and caused by blunt object. One bruise each* on the persons of Kalyan and Bhawana was also noted by the doctor on examining them. They were simple injuries and caused by blunt object. Ex P. 12 is the injury report of all those persons.
4. On 25-5-1966, at 9.00 A.M. Dr. Jhanji conducted the autopsy over the dead body of Bhanwar Lal and observed as under .'
(1) The whole of the posterior aspect of trunk is full of bruises merging into each other. Margins ill defined, so that separate measurements cannot be given.
(2) An incised wound 1/2'x 1/6' in transverse direction 1' infront of left ear bone deep.
(3) An incised wound 1/8' x l/8' in front of injury No. 2, 1 ''below outer angle of left eye penetrating upto bone.
(4) A bruise 2' x 1/2' around Injury No. 3.
(5) A bruise 4' x 2' left half of occipital region of left scalp part.
5. On dissection following Internal injuries were noted:
(1) Presence of clotted blood all over the external surface of carebral bemishoeres. Blood clots present in the posterior cranial fotsa, around earebellum and in the ventricles.
(2) Blood in the left plaural space.
(3) Bruising of left lung upper lobe.
6. According to the Doctor, the death was caused by shock haemorrhage and cerebral compression due to injuries external and internal stated above. He further opined that the head injury individually as well as all the injuries collectively were sufficient in the ordinary course of nature to cause death. His report is Ex P. 13.
7. Dr. B.L. Maheshwarl, PW 21 examined Ram Narain on 25-4-1966 and noted the nine simple injuries caused by blunt object on his person. The Injury report is Ex P 38. On the same day, Dr. Maheshwari examined Shri Kishan and noted three injuries on his person out of which one was grievous being the compound fracture of left ulna with lacerated wound in the lower and middle parts of left forearm. It was caused by some blunt object. The two other injuries were simple in nature and caused by some blunt object. His Injury report is Ex.P. 39.
8. On 28-4-1966, Dr. Maheshwari at the request of police, examined Kanwara, and noted four injuries on his person. According to the doctor, one injury was grievous and caused by blunt object. The remaining injuries were simple and caused by blunt object He found him unable to speak and swallow, though he had understanding and consciousness. He was admitted in the hospital on account of his head injury and inability to speak. Ex D 18 is the certificate for his injuries.
9. After completing the necessary investigation in the case, charge sheet against the respondents was filed in the court of Additional Munsif Magistrate No. 2, Bundi. The learned Magistrate after conducting the preliminary inquiry committed the respondents to stand their trial in the court of Additional Sessions Judge, Bundi. The learned Additional trial Judge charge-sheeted the respondents for the charges mentioned above and recorded their pleas. A9J of them denied the charges and claimed to be tried.
10. To substantiate its contention, prosecution examined 23 witnesses in all. In their statements under Sections 342 Code of Criminal Procedure (Old) Rugga and Katwara Mated that they were sleeping at the house of Chandra. Kanwara deposed that be was called by Ram Nanda, and when he went to the site he asked the Baratls' not to quarrel, and then he was given a beating by Shri Kishan. Ganesh, Hira and Chhota pleaded alibi. All the remaning respondents denied the allegations. Four defence witnesses were examined to support the contention that Rugga and Kanwara were at the house of Chandra, and to substantiate the plea of alibi of Ganesh and Judge did not believe the prosecution version about the quarrel and held that the prosecution has failed to prove that the respondents formed an unlawful assembly and in pursuance of the common object of that assembly they caused injuries to the Barat-party of Ganpatpura. The learned trial judge also discussed the evidence regarding the individual acts of the respondents and came to the conclusion that it could not be proved as (to which of the respondents was responsible for the injuris caused to deceased Bhanwarlal, and the other injured persons of Ganpatpura. In view of that the learned trial judge acquitted all the respondents for the charges levelled against them
11. Being aggrieved by that judgment of acquittal, the State of Raj. has preferred this appeal in this Court.
12. We heard Mr. N.S. Acharya, Public Prosecutor for the State, & Mr. V. L. Mathur for the respondents.
13. The learned Public Prosecutor has assailed the finding of the learned trial judge on a number of grounds. His first contention is that despite there being evidence about all the respondents along with a number of others coming together to pick up a quarrel with the Barat of Ganpatpura the learned trial judge has erred in holding that there was no unlawful assembly formed by the persons of Bazad.
14. It has been next argued by the learned Public Prosecutor that even if it is assumed the quarrel was at the spur of the moment, still there is sufficient evidence to hold the respondents guilty for their individual acts. It has also been urged that so far as Ganesh is concerned, there is ample evidence against him and the medical evidence that the head injuries were incised wounds should cot have been taken to mean that the injuries were caused by some sharp edged weapon and on that court Ganesh should not have been held not guilty. Advancing arguments against respondent Kana wara, Mr. Acharya stressed that his sustaining injuries in the incident proves his presence at the site, and therefore, there was no justification in acquitting him.
15. Controverting these arguments, Mr. Mathur, learned Counsel for the respondents, submitted that witnesses supporting the prosecution case belonged to the Barat Party of Ganpatpura, and are said to have sustained injuries, and therefore were partisan Witnesses, whose testimony has been rightly discarded by the learned trial judge It has been contended by Mr. Mathur that the nature of the injuries sustained by Kanwara indicates that fee was given a severe beating, and therefore, if any body from the Barat-party caused injuries to the persona of Ganpatpura, it must have been done exercise of the right of private defence of persons.
16. We heard the rival contentions, and gave our anxious consideration to the material on record From the prosecution evidence it is established that the quarrel between the two Barat-parties had started with the payment of the money to the 'Nut' by Rugga and refusal to pay by Shri Kishan. So far as the story of snatching the watch of Bhanwar Lal is concerned, there is no specific evidence to show as to who actually was the person who snatched It Shri Kishan, Ram Narsin, Gopal, Kalyan, Bhawana and Gomdu have described in detail, the incident The learned trial judge has discussed the evidence of all these witnesses in connection with each individual respondent, and has arrived at a conclusion that from their testimony offences against the respondents could not be proved In order to arrive at a correct conclusion the most important point to be considered is, whether the prosecution could prove the ingredients of an unlawful assembly consisting of the respondents. The witnesses supporting the prosecution version that sixty or seventy persons from the Barat Party arrived and assaulted the Baratis of Ganpatpura are ail residents of Ganoatpura Independent witnesses examined are PW 5 Mod, PW 6 Kanwarlal & PW 13 Ram Nanda who are the residents of Chapawada Ram Nanda and Kanwarlal have been declared hostile by the prosecution, & were cross examined by the learned Public Prosecutor with the permission of the court Moti is the brother of the two brides He has stated about the quarrel taking place, but, according to him both the parties were already there. He does not support the prosecution case about the Bazad party coming armed and starting the quarrel. Moti and Ram Nanda must be equally interested in both the parties, and there fore their statements carry weight Kanwaralal, resident of Chapawada an independent person has also not supported the prosecution case The fast of Kanwarlal respondent having serious injuries and the same proved to have been sustained in the same incident, and the failure of the prosecution to explain those injuries, also creates doubt on the prosecution case regarding the origin of the quarrel. In this view of the matter, the finding of the learned trial judge that there is no convincing evidence about the respondents forming an unlawful assembly, cannot be said to be perverse Coming to the individual acts alleged against the respondents there is evidence of Bhawana, Ramarain, Ramkishan Ram Lal, Moti and Shri Kishan that Ganesh Heeran and Chhota Kalal gave one lathi blow each on the head of Bhanwarlal. This evidence is not corroborated by the medical evidence because according to Dr. Jhanji, injuries on the bead of Bhanwarlal were two incised wounds. The arguments of the learned Public Prosecutor that those wounds though caused by lathis might be appearing as incised wounds, has no force for the reason that it has not been got clarified by the doctor that those Incised wounds could have been caused by a lathi. In the absence would be that the head injuries of Bhanwarlal were caused by same sharp weapon. The learned trial judge has also taken into consideration, the evidence about the deformity of the right hand of Chhota Kalal as deposed by the witnesses, and also the evidence of Dr. Maheshwari that Chhota Kalal cannot use violence by his right hand, and he cannot give a blow with force by his left hand.
17. In a case, when there are a number of assailants, and the number of victims is also quite good in order to find out who caused injuries to whom the evidence of identifications is of considerable importance. The identification of the respondents by certain witnesses, in the court, has been challenged on the ground that they could not identify them in the trial. Out of the three witnesses identifying Ganesh in the parade only one Moti has been examined. As stated above, the act assigned by Moti to Ganesh in causing lathi injury on the head of Bhanwarlal which has not been supported by medical evidence. Similar is the criticism against the evidence of Moti in the case of Chhota Kalal. The witnesses identifying Deva respondent have not stated that he had given any beating to Bhanwarlal. As stated above the witnesses identifying Beera has stated about his giving a lathi blow on the head of Bhanwarlal, which version is belied, by medical evidence.
18. So far as the case of Rugga and Kanwara is concerned' their presence at the time of the incident, could not be proved. Initially Shri Kishan had come with a case that Rugga had a country made gun with him and it was with the barrel of the gun that he had caused Injuries to Bhanwar la). In his deposition in the trial, the witness has changed this version, and on his attention being drawn to the First Information Report, Ex.P1 lodged by him, he disowned that part. DW 1 Chandra has stated that Kanwara and Rugga were at his house at the time Of the incident, and Ramnanda had gone there to call them. There is no reason to disbelieve that version In view of the statement of Moti that Rugga was not there and Kanwara did not give any beating to anybody. It is not only for the reason of the prosecution witnesses supporting the case being partisan witnesses that they have been disbelieved rather the fact of their statements being inconsistent with there police statement and the statement of the committing court has also been taken note of by learned trial judge in discarding their testimony.
19. Yet another point of no less importance in the case is that most of the prosecution witnesses have admitted that the Barat parties had taken wine at that time. It was in the condition of intoxication that hot altercation took place. In such circumstances, when both the parties had sustained injuries, and there is no specific evidence as to who was responsible for whose injury, the unavoidable conclusion would be that prosecution has failed to prove the origin of the case and to bring home the guilt against any of the respondents.
20. In such circumstances, when the learned trial judge after a detailed discussion of the material on record, has arrived at a conclusion, that the guilt of the respondents could not be brought home, we do not find any justification in reversing those findings, based on sound reasonings.
21. In the result, the appeal filed by the State, being devoid of force, if dismissed. The respondents are on bail. Their bails bonds are discharged.