M.L. Shrimal, J.
1. This appeal has been directed against the judgment dated October 20, 1971 of the learned Additional Sessions Judge, Dholpur whereby he convicted Lalla, Ramesh and Gopal under Section 325 read with Section 34 IPC, and sentenced each of them to rigorous imprisonment for two years. The accused Ramesh was also convicted under Section 323 IPC for causing hurt to Balkishan and sentence to rigorous imprisonment for six months Both the sentences were ordered to run concurrently The other accused Devi Charan and Gulab who were tried along with them were acquitted of all the charges.
2. The prosecution story in a nutshell, is that PW3 Balkishan wanted to set up a hotel on the open space outside his house. Devicharan (acquitted) accused who had, already been running a hotal in the vicinity was annoyed by P.W. 3 Balkishen's intention to set up a hotel. There had been verbal altercation between the two. On the morning of the date of the occurrence P.W. 12 Hotilal, brother in-law (loser) of Balkishen, went to Devicharan and tried to persuade him not to create a row and obstruct Balkisben from setting up a hotel in front of his house but the latter did not agree to this At about 2.30 p.m. on March 1, 1971 P.W. 3 Balkishen was sleeping in his house and P.W. 12 Hotilal went out to purchase 'Bidi'. when he was returning to the house of Balkishen, the five accused viz Lalla, Ramesh, Gulab, Gangaram and Gopal came in a 'Riksha'. All of them got down near the house of PW3 Balkishen. They were supplied iron rods and sticks by Devicharan. The accused Lalla was armed with an iron rod and the rest of them were armed with 'lathis'. All of them surrounded P.W. 12 Hotilal and belaboured him as a result of which he sustained six injuries at their hands. P.W 3 Balkishen ran from his house to save his brother-in-law Hotilal, but he was also belaboured and he sustained three injuries in the same occurrence The first information report of this occurrence was lodged at the Police Station, Kotwali. Dholpur at 3 p.m. A case under Section 147, 148, 149 and 307 IPC was registered against six accused persons (including the absconding accused Gangaram). PW12 Hotilal was clinically examined by PW 1 Dr. M.L. Maroo on March 1, 1971 at 2.40 p.m. and he found the following injuries on his person:
1. Contused wound ' x 1/4' x skin deep on the left eye-brow.
2. Contused wound 1 ' x 1/4' x skin deep on the skull, 2' from the middle of the right eye brow.
3. Contused wound 3' x ' x skin deep on the skull 6' from the root of the nose.
4. Contused wound 1' x 1' x skin deep on the skull 4' from the left ear.
5. Contused wound 1' x 1/4' x skin deep on the skull 5' from the left ear.
6. Abrasion 2' x 2' on the left patella.
After taking a sky-gram the following two fractures were detected:
1. Fracture of fronto-parietal bone.
2. Fracture of right temporal bone.
The injury report is Ex. P. 1. The skygram and its result is Ex. P. 2. At the time of the medical examination, PW 12 Hoti Lal was unconscious. On the same day PW 3 Balkishen was medically examined and PW 1 Dr. M.L. Maroo found the following injuries on his person:
1. Contused wound ' x 1/4' x skin deep on the skull 6' from the root of the nose.
2. Abrasion 1 1/2' x ' on the middle and medial side of the left fore-arm.
3. Cellulise 3' x 2' on the upper 1/3rd and doresom of the left fore-arm.
The same doctor examined the accused Ramesh and Gulab at 4 p.m. and 6.15 p.m. respectively. He noticed one contusion and one abrasion on the person of the accused Ramesh and four injuries on the person of the accused Gulab out of which two were abrasions, one was contusion and one was cellulitis. As the accused Gangaram could not be arrested, the Police after usual investigation submitted a challan against the five accused persons in the Court of Munsiff Magistrate, Dholpur, who after taking committal proceedings under Section 207A Cr.P.C committed all the accused to face their trial in the Court of Additional Sessions Judge, Dholpur. The accused pleaded not guilty to the charge.
3. The prosecution in support of their case examined 13 witnesses, out of whom PW 3 Balkishan and PW 12 Hotilal are the victims of the assault. PW 6 Gokul Chand and PW 10 Omprakash were examined as eye witnesses of the occurrence, but both of them were declared hostile and were permitted to be cross-examined on behalf of the prosecution, and as such they are of no avail either to the prosecution or to the accused. Reference may be made to Jagir Singh v. The State (Delhi Administration) : 1975CriLJ1009 . PW 1 Dr M.L. Maroo is the Medico-Legal Jurist, who had clinically examined PW 3 Balkishen, PW 12 Hoti Lal, accused Ramesh and Gulab. The accused dtnied their complicity in the crime. The accused Gulab admitted his presence on the scene of the occurrence but denied his participation in the assault. He pleaded that he simply intervened to separate both the parties and in this benevolent act he was assaulted. The accused Ramesh admitted his participation in the quarrel. He stated that when he was sitting in the hotel of Ganga, both PW 12 Hoti Lal and PW 3 Balkishan appeared on the scene of occurrence and PW 12 Hoti Lal at the instigation of Balkishan delivered a blow on his bead. He took out a bamboo stick from the roof of the hotel and delivered blows in his tight of private defence of his person. Gulab intervened to save him but he too was not spared. The accused did not examine any witness in support of their defence. The learned Additional Sessions Judge held the prosecution case against the accused Devicharan and Gulab false He further held that Devi Charan neither participated in the assault nor supplied the 'lathis' and iron rods to the other accused, nor he instigated them to beat Hotilal and Balkishan. The learned Judge disbelieved the prosecution story that the accused Gulab participated in the assault and cussed injury to any person. With these observations he acquitted both these accused However, he found the three accused appellants guilty He convicted and sentenced them as mentioned above. Hence this appeal.
4. The learned Counsel Mrs. Renu Chatterjee appearing for the accused appellants has contended that the prosecution witnesses have not come out with a correct version as to how the quarrel started, that they had failed to give a reasonable explanation for the injuties found on the person of the accused that the complainant PW 3 Balkishan and his brother-in-law (loser.) PW 12 Hoti Lal were aggressors. The trial court found that the injuries to the accused were caused in the same occurrence and as such the prosecution will fail unless it proves as a matter of law that those injuries were caused by the complainant (sic) the accused party in the exercise of the right of private defence. In any case, the entire prosecution version has become doubtful and in ultimate analysis it must be head that the prosecution has beyond dough failed to bring home the charges to the accused appellants. The learned Counsel further urged that the conviction it based on the testimony of partisan and Inimical witnesses Both PW 12 Hotilal and PW 3 Balkishan in one breath implicated five accused out of whom two have been proved to be innocent and as the case of the acquitted accused cannot be separated from that of the convicted accused-appellants, the entire prosecution case must be discarded.
5. Mr. Moolchand Bhati appearing on behalf of the State urged that the injuries sustained by the accused were superficial and could be easily fabricated. The entire prosecution case cannot be thrown out Armey on the ground that the prosecution witnesses did not explain the doubtful superficial injuries of the appellants. He supported the judgment of the trial court.
6. I have given my anxious consideration to the rival contentions advanced by the parties, As regards the effect of the acquittal of the two accused. Devicharan and Gokul, it is sufficient to note that as the State has not filed any appeal against the acquittal of Devicharan and Gokul. I will proceed on the assumption that the prosecution allegations regarding participation of these two accused in the assault on PW 3 Balkishan and PW 12 Hotilal on March 1, 1971 has not been substantiated and the account of the occurrence given by the two injured persons is partly untrue. PW 12 Hotilal stated that when he was returning to the house of his brother-in-law Balkishan after buying Bidi' from the market, the accused Devicharan Gulab, Lalla Ramesh, Gopal and Ganga attacked him. Lalla inflicted a blow on his head with the iron rod as a result of which he fell down. Then Ramesh inflected another blow with an iron rod on his head. Thereafter all other accused infliscted blows upon his person with 'lathis' at the instigation of Devicharan. The witness goes on to state that owing to injuries he remained unconscious for a period of six days in the hospital. In variance with above statement this witness in this police statement did not state that the accused Devicharan was one of those persons who attacked him and inflicted injuries with a stick, or he instigated others to kill him. Regarding accused Gulab, he in his police statement stated that at the time of assault accused Gulab was empty handed, whereas in his statement before the trial court he stated that Gulab was armed with a lathi' and he was one of those persons who belabored him. IN his statement before the trial court he stated that the accused Ramesh inflicted a blow on his head with an iron rod, whereas in his statement he had stated that Ramesh inflicted lathi-blows on his person In his statement before the Police Ex. D. 3 he stated that he wielded the 'lathi' in his self defence but in his statement before the trial court he denied this fact. When he was confronted with these contradictions he failed to explain them and had no compunction in saying that be did not remember whether he made such a statement or not, Under cross examination he developed a case altogether new and different from that mentioned in the first information report and stated that all the accused came on the scene of occurrence sitting in a 'Riksha' and all of them were supplied 'lathis' and iron rods by accused Devicharan from his hotel For good and sufficient reasons the trial court did not rely on this later development of the prosecution story by the prosecution witnesses The reason for this improvement is obvious because the accused had also sustained injuries in the same occurrence. Therefore, in order to meet the plea of self defence raised by the accused, this prosecution witness has made this leading to the inference that the accused formed an unlawful assembly and were aggressors from the inception of the quarrel Much reliance cannot be placed on the statement of such a witness.
7. Now remains the statement of PW 3 Balkishan, who stated that his mother informed him that the accused were assaulting PW 12 Hotilal on which he rushed out of his house and saw the accused inflicting, injuries on the person of Hotilal. According to him prior to his reaching on the scene of the occurrence the accused had already inflicted 2.3 blows on the head of PW 12 Hotilal and who was bleeding. The witness further goes on to state that accused Ramesh and Lalla were armed with iron rods and rest of the accused were armed with 'lathis'. As soon as he came out Gulab inflicted a 'iathi' blow on his head and Ramesh picked up a 'lathi' from the shop of a fruit-seller. They took PW 12 Hotilal in form of Devi's hotel. Lalla took an iron rod from the shop of a cycle-dealer and intlisted a blow on the head of PW 12 Hatilal. Admittedly this witness appeared on the scene of occurrence after beating had started When the accused began belaboring PW12 Hotilal, the witness was sleeping in his house and he came out on his mother's informing him that his brother-in-law was being beaten. He must have atleast taken a few minutes in coming out of his house and as such he could not have seen entire occurrence but he has no compunction in narrating the story as an eye witness. According to PW 12 Hotilal, the first blow was inflicted on his head by accused Lalla and the second blow was inflicted by Ram she Both these blows were infliced by iron rods. Admittedly, PW3 Balkishan came at a later stage when the quarrel had already started and as such he could not have seen the accused Lalla taking an iron rod, from the shop of a cycle-dealer, and inflicting blows on the head of Hotilal, Besides this he was also confronted with his previous statement made before the Police regarding the part played by the accused Devicharan and Gulab, but he failed to explain any of those contradictions Both these witnesses stated that none of them inflicted any injury on the person of the accused From the statement of PW 1 Dr. M.L. Maroo the statement of the accused Ramesh and Gulab are highly probabilised that they sustained injuries in the same occurrence. The failure of the prosecution to offer any explanation as to how the accused sustained injuries when considered with the other infirmities already pointed out in the statement of the eye-witness shows that the evidence of the prosecution witnesses with regard to incident is not true. This there is no reliable evidence in the record to hold as to what exactly transpired at time of the incident and who acted as the aggressors and who dealt the first blow. No doubt it is the duty of the Court to make an attempt to separate the grain from the chaff, the truth from falsehood, but this could only be possible when the truth is separable from the falsehood. In the present case the truth is so inextricably mixed up with falsehood that in the process of separations this Court will have to reconstruct absolutely a new case for the prosecutions by divorcing the essential details presented by the prosecution completely from the context. the entire case depends upon the testimony of the two witnesses, PW 3 Balkishan and PW 12 Hotilal. Both of them are highly interested witnesses. In their statement they have implicated all the six accused with regard to the assault on PW 3 Balkishean and PW 12 Hotilal. It is not possible to reject the prosecution case with respect to the other three appellants. Both these witnesses have in one breath implicated the two accused, who have been held to be innocent by the trial court. In such circumstances it cannot be vouch safe for the fact that even to suit the needs of the prosecution case the major contradictions appearing in their statements regarding vital part of the prosecution story makes the prosecution highly doubtful. the statements of both these witnesses do not stand corroborated by any other witness. The story given in the first information report has been given up by these witnesses at the stage of trial and the case developed by them during the course of trial has been found to be untrue.
8. The substratum of the evidence given by the tow injured eye witnesses viz. PW 3 Balkishan and PW 12 Hotilal examined by the prosecution can succed only by substantially proving the very story it alleges. It must stand on its own legs. Neither it can take advantage of the weakness of the defence, nor can the court on its own, make out a new case for the prosecution and convict the accused on that basis. the trial court has failed to notice the above circumstances which throw considerable doubt on the evidenceded on behalf of the prosecution excludes reasonable doubt in regard to the guilt of the accused appellants. There is no cogent and reliable evidence to hold that accused appellants were the aggressors. Since the prosecution case against the case against the appellant cannot be said to be free from resonable doubt, I acquit the appellants of the offences charged against them.
9. I accordingly allow the appeal, set aside the convocation and sentences recorded against the appellants by the trial court and acquit them of offences charged against them. They are on ball, and need not surrender to the bail bonds. There bail bonds shall stand cancelled.