M.L. Shrimal, J.
1. The two appellants Lakha and Taga were tried, by the learned Additional Sessions Judge, Jalore along with six other accused (acquitted) in connection with an offence which took place in the intervening night of 3rd and 4th April, 1975, in the house of Dewa (since deceased). In the course of that occurrence Dewa (deceased) sustained serious injuries;, and as a result of those injuries he met an instantaneous death. The learned Additional Sessions Judge convicted I both the accused appellants under Section 302, I.P.C., and sentenced each of them to life imprisonment and a fine of Rs. 500/- each, in default of the payment of which they were to undergo further imprisonment for a period of one year. Rest of the accused were acquitted of all the charges.
2. Shorn of all, unnecessary details, the prosecution story as disclosed at the trial is that P.W. 7 Mst. Mani was betrothed to Bhagwara, son of Kana Jat, resident of village Meerpura. Since Dewa (deceased), father of Mst. Mani was not agreeable to their marriage, a Panchayat was held and ultimately Dewa ostracised for not acting upto the decision of the Panchayat. On April 1, 1973 Dewa (deceased) took his daughter P.W. 7 Mst. Mani for clinical examination to a doctor at Jalore. Kehra in the company of 21 person's including the accused-appellants met Dewa (deceased) in the way and asked him to take his daughter to Meerpura. Dewa (deceased) refused to oblige them, and ran with his daughter to the quarters of Manaram. It is alleged that after some time all the 21 persons went to the house of Manaram, broke open the door of the house, and made an unsuccessful attempt to take away Mst. Mani. A complaint of this occurrence was lodged by Dewa (deceased) against all the 21 persons, in the Court of Munsif-Magistrate, Jalore on April 2, 1973. Besides this on 31.5.1973 Dewa deceased) also got filed another complaint through P.W. 1 Pura Ram Jat against 33 persons including the accused-appellants before this Court under Section 107, Cr.P.C. A case under Sections 147, and 326 I.P.C. was also instituted against the appellants along with others and they were being dragged to courts off and on, which enraged them against Dewa (deceased). On April 1, 1975 the accused persons along with others fad to attend the Court of Munsiff-Magistrate, Bhinmal, which added fuel to the fire. Prior to the occurrerce they came to the house of Lakha, where they decided to do away with Dewa (deceased) so as to be relieved of the harassing litigation and recurring trouble once for all. P.W. 6, Bhala, who used to live adjacent to the house of Lakha, over heard their conversation. He came to the house of Dewa (deceased) and informed him of the conspiracy by the accused persons. Dewa (deceased) did not take it seriously and told him that the accused were in the habit of giving such threats, if they had really meant to murder him, he would not have been left alive for so long. On the second thought, Dewa (deceased) asked Bhala to stay with him, Bhala (P.W. 6) took his meals at the house of Dewa (deceased) and thereafter, Dewa (deceased) slept in the 'chowk' of his house; P.W. 6 Bhala slept near the door, whereas P.W. 7 Mst. Mani, daughter of Dewa (deceased) slept in the 'Orsari'. At mid-night when the moon had come up in the sky, the accused appellants in the company of six other persons trespassed into the house of Dewa (deceased). Lakha was armed with a 'Dhariya'; Taga was armed with a dagger and the rest of the accused were armed with 'lathis'. It is alleged that Lakha and Taga simultaneously inflicted two 'Dhariya' blows on the head of Dewa (deceased) and dagger blows respectively. Thereafter, the other accused inflicted injuries with 'lathis'. Seeing this P.W. 6 Bhala ran away for life. P.W. 7 Mani kept quiet and remained lying on the cot. After the injuries were inflicted on Dewa (deceased), the appellant Lakha told that since Dewa was dead they should leave the place. After the accused persons had left the place, P.W. 7 Mani went, near her father and found him dead. She got frightened and came out of the house weeping and went to the house of P.W. 9 Isra for her own safety. There she met Isra's sister P.W. 5 Mst. Sugni to whom she narrated the whole incident. In the mean time P.W. 6 Bhala straight away reached the house of P.W. 1 Pura Ram, son-in-law of Dewa (deceased) and told it all to him Pura Ram collected some persons and came to the house of Dewa (deceased) in the company of P.W. 6 Bhala and others. Before entering the house of Dewa (deceased), they called other persons from the village and thereafter went inside the house and saw Dewa (deceased) lying in a pool of blood, and found him dead. PW. 1 Pura Ram enquired from P.W. 7 Mst. Mani about the incident and thereafter went to lodge a first information report of the occurrence. The first information report of this occurrence was lodged at the Police-Station, Sarchore, at 9 a.m.. The distance between the place of occurrence and the police station is 15 miles. P.W. 8 Motilal, Station House Officer, Sanchore registered a case against the accused persons under Section 302 I.P.C. and reached the spot. Autopsy on the dead body of Dewa (deceased) was performed by P.W. 4 Dr. N.T. Hirani. He found the following external injuries on the person of Dewa (deceased):
1. Incised wound with clotted blood, size 5' x 1 x 1' transverse on forehead with gape-fracture of frontal bone size 4' x thickness of bone.
2. Incised wound with clotted blood-size 1' x 1/4 ' x 1/3' on the left eyebrows' below injury No. 1.
3. Lacerated wound with clotted blood, size 2' x 1' x 1' on upper part of nose.
4. Lacerated wound with clotted blood-size 1' x 3/4' x 1/4' on right side fact on cheeks ' below right eye.
5. Incised wound with clotted blood-size 1 1/4' x ' ' on the right side face ' away from the lower lip.
6. Contusion-size 1' x 3/4' on right eye-brows adjacent to injury No. 1.
He further noticed the following internal injuries:
The frontal bone and left parietal bones found fractured-a gap of size 4' x /' x thickness of wound transverse present on forehead on frontal bone. The fracture of frontal bone is communicated and there is communication between fracture in brain substance-blood clots and laceration of brain tissues visible from gap-fracture of frontal bone is continuous with fracture of left parietal bone extending upto its middle with triangular gap size 1' x 1' x /' prominent on upper part of frontal bone, mouth, pharynx and oesophagis-mouth-fracture upper jaw present.
In the opinion Of the doctor the cause of death was shock and intracranial hemorrhage due to fractures of skull bones (frontal and left parietal) assisted by fracture of face bones (ehmoid and mandible) caused by multiple injuries leading to damage of vital part of frontal and left parietal lobe of brain. The doctor further opined that the injuries Nos. 1 and 2 could be caused by a Dhariya' and injury No. 5 could be caused by a dagger and injuries Nos. 3 and 4 could be caused by 'lathis'. The Police after usual investigation submitted a challan against the eight accused persons in the Court of Judicial Magistrate, Sanchore. But as the learned Munsiff and Judicial Magistrate, Sanchore had not taken charge there, the case was transferred to the Court of Chief Judicial Magistrate, Jalore, who committed all the eight accused to take their trial in the Court of Additional Sessions Judge, Jalore. The learned Additional Sessions Judge, Jalore after hearing the arguments framed charges against the accused under Sections 147, 148, 460, 302/149, 326/149 and 120B Indian Penal Code.
3. The accused pleaded not guilty to the charges, and the prosecution examined 10 witnesses in support of their case. The accused persons denied their complicity in the crime and examined one witness D.W. 1 Heera Ram in their defence. Out of the ten witnesses examined by the prosecution, P.W. 1 Pura Ram is the son-in-law of Dewa (deceased) P.W. 3 Lakha was examined to prove the presence of P.W. 7 Mst. Mani in the house of Dewa (deceased) on the day prior to the night of occurrence. P.W. 4 Dr. N.T. Hirani had performed autopsy on the dead body of Dewa (deceased), P.W. 5. Mst. Sugni is the person in whose house P.W. 7 Mst. Mani took shelter after the occurrence. She has been examined to corroborate the. statement of P.W. 7 Mst. Mani. P.W. 6 Bhala is the first cousin of P.W. 1 Pura Ram, son-in-law of the deceased Dewa, and nephew of accused Lakha. He has been examined as a witness to the conspiracy leading to the occurrence and eye-witness of the occurrence. P.W. 7 Mst. Mani is the daughter of deceased Dewa and has been examined as an eye-witness. The learned Additional Sessions Judge found the two accused-appellants guilty of the offence punishable under Section 302 I.PC. and sentenced them as motioned above. However, he acquitted the other six accused of all the charges framed against them. The accused-appellants were also acquitted of other charges. The convicted accused have come up in appeal before this Court.
4. From the statement of P.W. 4 Dr. N.T. Hirani and the post-mortem report Ex. P.5 as well as the statement of P.W. 7 Mst. Mani and the Investigating Officer P.W. 8 Motilal it stands proved beyond reasonable doubt that Dewa (deceased) sustained injuries at the place and time alleged by the prosecution.
5. The learned Counsel Mr. Than Chand Mehta, appearing on behalf of the accused appellants has assailed the judgment of the trial court on a number of grounds, which will be dealt with seriatum. The learned Additional Government Advocate Mr. Murlidhar Purohit appearing on behalf of the State has supported the judgment of the trial court.
6. We agree with the learned Counsel for the accused-appellants that the entire prosecution case depends upon the veracity of the statements of the two eye-witnesses : P.W. 7 Mst. Mani and P.W. 6 Bhala. If both of them are held to be unreliable, the prosecution case must fall because the remaining evidence would not be sufficient to bring home the guilt to the accused-appellants.
7. The learned Additional Sessions Judge while convicting the accused-appellants has placed reliance on the statement of PW. 7 Mst. Mani, who is the daughter of Dewa (deceased) PW. 7 Mst. Mani stated that three days prior to 'Holi' her sister and her mother had gone to village Madu for cutting the crop of wheat and the remained with her father. On the day prior to the night of occurrence PW. 3 Lakhma came to their house to purchase a horse from her father for Rs. 1300/-. In the evening PW. 6 Bhala catne and informed her father that the accused Lakha, Taga, Prema, Pabu Moola Pabuka, Lakha's son Moola, Sona and Sona's son Virma were conspiring at the house of Lakha to put an end to his life. Her father stated that they were in the habit of saying so. If they wanted to put an end to his life, they would have come it much earlier. However, her father asked Bhala to stay with him. Bhala took his meals in her house and thereafter ad of them slept she slept in the 'Osari', her father Dewa (Deceased) slept in the 'chowk' and Bhala near the door. On the fateful night after the moon had come up in the sky she hoaro some noise and saw Lakha armed with a 'Dhariya'. Taga armed with a dagger, and Pabu, Virma. Moola, Prema and Sona armed with 'lathis' She further stated that there were two Moola, one was the son of Lakha & the other was the son of Pabu. Lakha inflicted two 'Dhariya' blows on the head of her father. Taga inflicted a dagger blow on the face of her father and thereafter all the accused inflicted lathi-blows. Some of the accused went towards Bhala and seeing them he ran out for his life. She kept quiet for the fear of her own life lest she would be murdered. There after Lakha told his companions that Dewa (deceased) was dead & all of them took to their heels. After the accused persons had left the scene of occurrence, she went near her father and found her father dead and profusely bleeding, which frightened her so-much that she went out of the house weeping and rushed to the house of Isra and narrated the entire happening to PW. 5 Mst. Sugni, sister of Isra. She further stated that she disclosed the names of all the accused persons to PW. 5 Mst. Sugni. Thereafter, Mst. Sugni took her to the house of Mala. She returned to her Dhani early in the morning, when Pura Ram and others had come to her house. The learned Counsel for the accused-appellants has vehemently urged that no reliance can be placed on the statement of this witness. According to the prosecution case she narrated the entire story to P.W. 1 Pura Rani before the lodging of the first information report in this case, but in the first information report her name has not been mentioned, and this casts a doubt about the presence of this witness on the scene of occurrence at the time of occurrence. In support of his contention he placed reliance on Ram Kumar v. State of Madhya Pradesh AIR 1975 SC 2026. He further urged that she is an interested witness She was the main bone of contention. If she had been in the house at the time when the accused persons entered the house of Dewa (deceased) she would have been lifted away or at least would not have been left unhurt. It was also urged that by no means can she be reckoned as a witness of sterling worth. Another infirmity pointed out in her statement was that in her statement before the court she stated that the six other accused inflicted lathi-blows on the person of Dewa (deceased). In the cross-examination she stated that these injuries were inflicted on the chest and stomach of Dewa (deceased). A perusal of the post-mortem report and the statement of P.W. 4 Dr. N.T. Hirani reveals that Dewa (deceased) did not sustain any injury on his stomach and chest. The learned Additional Sessions Judge, who tried the case has held that looking to the medical evidence he was convinced that at the most only two accused Lakha & Taga must have taken part in the occurrence. On the basis of this finding, the learned Counsel urged that her statement against the other six accused acquitted by the learned Additional Sessions Judge becomes false, and as such she can be termed to be a very dangerous witness, who with no qualms of conscience had the audacity to implicate six persons and as such ho reliance can be placed on her statement. He pointed out another infirmity in her statement that though P.W. 6 Bhala has been branded as a cooked up witness by the learned Additional Sessions Judge who tried the case, she in her deposition has stated that he was present prior to the occurrence as well as at the time of occurrence. The contention is that she falsely introduced the witness Bhala who was not present on the scene of occurrence in order to incriminate the accused who had not taken part in the assault, as such she cannot be termed to be a witness of sterling worth and the conviction of the two accused-appellants who had been held guilty on the basis of her solitary statement for an offence punishable under Section 302 I.P.C. cannot be sustained.
8. It is a fact that P.W. 7 Mst. Mani's name has not been mentioned as an eye-witness in the first information report. It will be pertinent to note that the occurrence is alleged to have taken place in the mid-night. P.W. 1 Pura Ram lives at a distance of near about 2 miles from the place of occurrence. After receiving information from P.W. 6 Bhala regarding the occurrence he came to the scene of occurrence, and after talking with Bhala, Mani and others, he went to the Police Station, which is situated at a distance of 15 miles from the place of occurrence. A first information report of this case was lodged at 9 a.m. P.W. 1 Pura Ram is not an eye-witness of this case. After knowing about the ghastly death of his father-in-law Dewa (deceased), the witness must have got stunned and must have taken some time to feel normal. He after talking with Mst. Mani and others in hot haste went to the Police Station to give a first information report. In such circumstances if he forgot to mention the name of Mst. Mani as an eye-witness of the case, the veracity of her statement cannot be doubted, simply on this ground, specially when she was examined by the Investigating Officer on the same day i.e. April 4, 1975.
9. In Bharat Singh v. State of U.P. : 1972CriLJ1704 , one of the five miscreants travelling in the bus pointed a pistol at driver Bhajanlal and compelled him to stop the bus. Thereafter all the five miscreants robbed the passengers and ran away. In the first information report of that case the name of one Krishna Kumar, who claimed to have been looted & who was one of the two identifying witnessed was not mentioned in the first information report While confirming the conviction of the accused of that case their Lordships of the Supreme Court observed as under:.it must be remembered that about twenty persons were travelling by the bus and though almost all of them were looted, the First Information Report contains the names of some of them only. The fact therefore that Krishna Kumar's name is not included in the first information report cannot justify the inference that he was travelling by the bus.
10. The case of Ram Kumar Pande v. The State of Madhya Pradesh AIR 1975 SC 2026 is of no avail to the accused appellants. It is distinguishable on facts. The prosecution story in this case was that Suresh Ahuja, accused, had stabbed Harbinder Singh on the right side of the chest at the door of the kitchen, and thereafter Ram Kumar Pandey was said to have attached PW. 7 Satwant Kaur. In the first information report the fact of Suresh's stabbing Harbinder Singh was not mentioned. It was mentioned therein that PW. 2 Taranjit Kaur and PW. 6 Amarjit Kaur. daughters of Uttam Singh had wrapped a 'chaddar' on the wound of Harbinder Singh but it was not mentioned that they had witnessed the occurrence, whereas during the trial they stated that they hid witnessed Harbindar Singh being injured by the appellant. In the facts and circumstances of that case their Lordships of the Supreme Court held that non mentioning of the names of these two eye witnesses in the first information report weighed heavily against the prosecution. In the case on hand, as already stated, the first information report was given by a third person, who was not an eye-witness of the occurrence and as such the case relied upon by the learned Counsel for the accused appellants cannot be of any help to the case of the accused-appellants. The fact that the witness is a close relative of the deceased is all the more a good ground for believing her statement. It is not expected of her to leave the real accused and implicate innocent persons.
11. Thirdly, it was urged that the learned Additional Sessions Judge has held that only the accused appellant Lakha and Taga took part in the occurrence. This observation of the learned Additional Sessions Judge was based on the ground that she in her statement before the court stated that lathi' injuries were caused by the other accused persons on the chest and stomach of Dewa (deceased), whereas no lathi-injury was found on these parts, of the body of the deceased. The learned Judge has failed to appreciate this point in its proper perspective. Mst. Mani (PW. 7) was sleeping on a cot at a distance from Dewa (deceased) at the dead of night, when the accused persons, entered her house. She saw Lakha inflicting two injuries on the head of Dewa (deceased) with a 'Dhariya' and the injury with a dagger on the face of Dewa (deceased) Her statement stands amply corroborated by the statement of PW. 4 Dr. N.T. Hirani and the post mortem report Ex. P. 5. Her statement to the effect that the other accused inflicted other injuries on the person of Dewa (deceased) and they fall on the chest: and stomach of her father Dewa (deceased) may not be literally true. She was lying at a distance keeping quiet and not even moving, lost she should also be murdered. In such circumstances she could have watched only the persons who first inflicted the blows. When the other accused surrounded her father, she could not possibly notice where exactly the blows hit her father's body Only this inability on her part and her statement to the effect that the 'lathi-blows' fell on his chest and stomach cannot vitiate her statement. Her failure to give details may also have been because of the fear that her evidence night be held unreliable in respect of the event which she had seen clearly. Reference may be made to Sohrab v. State of Madya Pradesh : 1972CriLJ1302 . Their Lordships of the Supreme Court laid down the law as under:
It appears to us that merely because there have been discrepancies and contradictions in the evidence of some or all of the witnesses does not mean that the entire evidence of the prosecution has to be discarded. It is only after exercising caution and care and surfing the evidence to separate the truth from untruth, exaggeration, embellishment, the Court comes to the conclusion that what can be accepted implicates the appellants it will convict them. This Court has held that falsus in uno falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth, or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered.
12. As human testimony resulting from widely different powers of observation and description is necessarily faulty & even truthful witnesses not infrequently exaggerate or imagine or tell-half truths, the courts must try to extract & separate the hard core of truth from the whole evidence. This is what is meant by the proverbial saying that Courts must separate 'the chaff from grain'. If, after considering the whole mass of evidence, a residue of acceptable truth is established by the prosecution beyond any reasonable doubt the Courts are bound to give effect to the result flowing from it & not throw it overboard on purely hypothetical conjectural grounds. The learned Addl. Sessions Judge while holding that only the accused Lakha and Taga must have taken part in the occurrence because there were no lathi injuries on the other parts of the body of the deceased Dewa, appears to be conjectural. The evidence of Mst. Mani (PW. 7), as it has been read, stands corroborated by the medical evidence. A perusal of the statement of Dr. N.T. Hirani (PW. 4) fun her shows that three of the injuries sustained by the deceased could be caused by a lathis and as such the finding of the learned Additional Sessions Judge that none of the accused except the two accused-appellants must have taken part cannot be sustained, but as no appeal has been field against their acquittal, we do not want to go in detail about the merits of that finding. As held by their Lord-ships of the Supreme Court in Shivaji Sahabrao Bodade v. State of Maharashtra AIR 1973 SC 2627 while scanning the evidence of witnesses we have to inform ourselves that variances on the fringes, discrepancies in details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony. There is no doubt that in the case on hand, substantially the wounds and the weapons and the manner of causation run congruous. As regards the two accused-appellants the statement of this witness stands fully corroborated in the minutest details. Simply because she stated that the 'lathi' blows caused by other (acquitted) accused fell on the chest and stomach of Dewa (deceased) her statement cannot be discarded. P.W. 4 Dr. N.T. Hirani noted three blunt weapon injuries on the face of Dewa (deceased) in the post-mortem reports Photographic picturisation of blows in an attack where a large number of persons surround the injured cannot be expected from the witnesses who are not tutored. Efforts to harmonies humdrum details betray police tutoring, not unmistakably exact truthfulness. The argument of the learned Counsel that because PW. 6 Bhala was not present on the scene of occurrence and yet Mst. Mani (PW. 7) has shown his presence there at the time of the incident, her statement should not be relied upon, is equally devoid of force as we will explicate, while considering the veracity of the statement of Bhala.
13. As regards the next contention, it would suffice to say that nearly three years back, prior to the date of the date of occurrence Dewa (deceased), father of Mst. Mani (PW. 7), was ostracized for not marrying Mst. Mani, with Kana's son and thereafter Kana and others including the accused made an unsuccessful attempt to take away Mani regarding which the prosecution against the accused-appellants along with others was pending in the Court of Munsiff-Magistrate, Jalore, but this itself cannot be held to be the proximate cause of the murder. As already stated in the resume of the case, the proximate cause of the incident was that the accused, persons felt aggrieved on the ground that even though they had nothing to do with the marriage of Mst. Mani, as she was not going to be married to any of their relations, they were being dragged to the court by Dewa (deceased) from time to time. The record shows that besides the complaint Ex. P. 18 another complaint under Section 107 Cr. P.C. was also filed by Dewa (deceased) against 33 persons including the accused persons. They had attended the court on April 1, 1975. The consequent irritation was so exasperatory that they had decided to be rid of it by killing Dewa himself. In such circumstances, there was no necessity for the accused, persons to make a search for Mst. Mani at the time of assault. More-over, she was sleeping in the 'Osari' which is a covered portion. Moreover, they, might not even have seen her. The accused had already committed the murder of Dewa (deceased) and thereafter it was not expected of them to search for the other occupants of the house. We do not find any thing unnatural in Mani not being lifted away by the accused or being injured by them.
14. The contention of the accused appellants that after the murder of her father Mani should have gone not to the house of Isra but to one of the. Jats, is to forget that the responsibility of ousting him from society was theirs, and so her choice was guided by considerations of her safety. Further, Harka Ram, one of her uncles, had gone out of the village. She has further stated that Isra's wife was known to her and so she preferred to go 10 her house for rescue. We find no unnaturalness in her going to Isra's house whose wife and other ladies of the house were already on good terms with her. It is most natural for a young girl to seek shelter at the dead of night in a house the occupants of which she can rely on. Mst. Mani's presence on the day prior to the night of occurrence has been established by the statement of PW. 3 Lakhma who deposed that when he came to purchase the horse from her father, he found Mst Mani and Dewa (deceased) in the house. Nothing has been brought out in the cross-examination on the basis of which the statement of this witness can be disbelieved. Besides this, her presence in the village just after the occurrence has been established by the statement of PW. 5 Mst. Sugni. If Mst. Mani was in the house of Dewa (deceased) during the daytime prior to the night of occurrence, and was also in the village just after the occurrence, as stated by PW. 3 Lakhma and PW. 5 Sugni, it does not stand to reason why her presence at the time of occurrence in her own house should not be believed. Mst. Mani (PW. 7) is a young girl of 16 years. The question of whose marriage was causing serious concern. Her father had taken the risk of even being ostracized, and in such circumstances Mst. Mani (PW. 7) must have been in the house, where Dewa (deceased) was staying on the day of occurrence.
15. She had specifically stated that Lakha inflicted two injuries with a 'Dhariya' on the head of her father had Taga inflicted injuries with a dagger, Her statement stands corroborated by the statement of PW. 4 Dr. N.T. Hirani, who stated that injuries Nos. 1 and 2 could be caused by a 'Dhariya' and injury No. 5 could have been caused by a dagger. She further stands corroborated by the statement of PW. 5 Mst. Sugni who has stated on oath that just after the occurrence she went to her place where Mani fell on her knees and started sobbing. Mst. Mani (PW. 7) stated the names of all the accused including the appellants who came to her house and inflicted injuries on the person of her father, but the witness could remember the names of only Lakha, Taga and Moola. The trial court has convicted the two accused-appellants placing reliance on the statement of this witness. For the reasons mentioned above we find no ground for not believing the statement of Mst. Mani (PW. 7) regarding the two accused-appellants. In considering the effect of each allegation proved to be incorrect or the likehood of its being true or untrue, the courts are required to view it in the light of whole setting or concatenation of facts in each particular case.
16. As regards PW. 6 Bhala, the learned Counsel for the accused-appellants has stated that the witness had no business to be present at the place of the incident at that late hour of the night and the reason for his being present there stands contradicted by the averments made in the first information report. Mr. Mehta has urged that the theory of conspiracy at the house of Lakha was falsely introduced by the witness. In the first information report the place of conspiracy has been mentioned as Pura's house whereas the wit- ness has shifted it to the house of Lakha. This improvement has been made with a purpose so as to make it possible and natural for PW. 6 Bhala to overhear the accused conspiring to murder Dewa (deceased). It was further urged that the trial court, who had the advantage of observing the witness in the witness-box has branded him a cooked-up witness, and so no reliance can be placed on his statement. Contradiction regarding the nature of the weapon of offence in the hand of Pura (acquitted accused) appearing in the statement of this witness and PW. 7 Mst. Mani was also pressed into service. It was also urged that the description of the injuries given by this witness regarding infliction of injuries by the accused persons on Dewa (deceased) did not tally with the injuries mentioned in the Post-mortem Report of Dewa (deceased) and the statement of PW. 4 Dr. N.T. Hirani. The fact that he remained unhurt further suggests that he was not present at the time of occurrence, and no reliance can be placed on his statement.
17. The object of the first information report from the point of view of the informant is to set the Criminal Law in motion. From the point of view of the Investigating Authorities it is to obtain information about the alleged criminal activity so as to be able to take suitable steps for training and bringing to book the guilty party. The report does not constitute substantive evidence though it is important as conveying the earliest information about the occurrence. It can be used only as a previous statement for the purpose contemplated under Sections 157 or 145 of the Evidence Act, that is for corroborating or contradicting its maker and not of other witnesses. Reference may be made to Hasib v. State of Bhihar : 1972CriLJ233 . In his statement before the Court, Pura Ram (PW. 1) did not state that the plan for committing the murder of Dewa (deceased) was hatched in the house of Pabu. The averments made in the first information report relied upon by the learned Counsel for the accused -appellants cannot be used to contradict Bhala's statement on oath.. Thus there is no legal evidence on record to hold that Bhala (PW. 6) had at any stage stated that the conspiracy for murdering Dewa (deceased) was hatched in the house of Pabu. The learned Counsel appearing on behalf of the State has also brought to our notice that a close reading of para No. 2 of the first information report reveals that the reference regarding the house of Pabu in the first information report has not been made regarding hatching of a conspiracy in that house but it relates to the staying of the accused persons in the house of Pabu on April 1, 1975 Hence we feel persuaded to agree with him rather than with the learned Counsel for the accused-appellants.
18. It has been urged by the learned Counsel for the accused-appellants that PW. 6 Bhala belonged to the party of the deceased. He is the first cousin of Pura Ram (PW. 1). The sons of the accused Lakha had appeared as witnesses in litigation against him and as such he has been introduced as a witness of conspiracy and an eye witness, though, he was not present in the house of Dewa (deceased) at the time of occurrence It is a fact that he is the cousin of Pura Ram (PW. 1), son in-law of the deceased, but this must not be forgotten that he is the real nephew of the accused Lakha. We find it difficult to believe that simply because Lakha's son had appeared as a witness against him in some case he would come out with a false story which may send his own uncle to gallows The house of the witness and that of the accused-appellant Lakha are so adjacent to each other that there is nothing unnatural in his over-hearing the talk regarding conspiracy to murder Dewa (deceased). There is another reason for holding that PW. 6 Bhala was at the house of Dewa (deceased) on the night of occurrence. PW. 1 Pura Ram and the witness are residents of the same village. PW. 1 Pura Ram's Dhani is situated at a distance of 300 to 400 'pavandas' from the village Kalada The distance between the place of occurrence and his village is nearly two and a half miles The murder is alleged to have taken place at 1 A.M. on April 4, 1974. PW. 1 Puraram stated that after midnight PW. 6 Bhala went to him & informed him that Dewa (deceased), his father-in-law was murdered by the accused persons of this case. After collecting some persons he proceeded towards the house of his father-in-law. The first information report of the occurrence was given at the police station, Sanchore which is at a distance of 15m. & the informant must have taken nearly 4 hours' to reach there. Prior to that he must have taken some time in questioning PW. 7 Mst. Mani and observing the dead body of the deceased Dewa. He must have taken nearly an hour to reach the scene of occurrence from his 'Dhani'. All this could not have been done unless Puraram must have known about the death of his father-in law by at least 3 A.M. These circumstances are explicable only on one hypothesis and no other that PW. 6 Bhala informed about the incident to Puraram and Puraram could not have informed him about the occurrence at 3 A M. unless he would have been in the house of Dewa (deceased) on the night of occurrence. There is no reason to disbelieve the statement of PW. 1 Puraram that PW. 6 Bhala informed him at his own place about the murder of Dewa (decased) and he told him that 8 accused persons entered into the house of Dewa (deceased). The learned Counsel's contention that if Bhala (PW. 6) would have been present at the time when the injuries were being inflicted on the person of Dewa (deceased) by the accused pet sons, he would not have been spared, has got some force. The probabilities of the case are that he was sleeping in the house of Dewa (deceased) at the time when the accursed appellants and other entered into the house. Seeing them approaching near Dewa (deceased) he ran out of the house. From a perusal of the statement of PW. 6 Bhala it appears that Bhala (PW. 6) had over-heard the hatching of the conspiracy in the house of Lakha by the accused persons, and thereafter he went to the house of Dewa (deceased) and informed him of it. Dewa (deceased) asked him to stay with him for that night and Bhala agreed to that. But later on when the accused persons committed trespass into the house of Dewa (deceased), and armed with deadly weapons too, he awoke, and seeing them rushed out of the house without noticing the actual assault on the person of Dewa (deceased) by the accused persons. The statement of PW. 6 Bhala that he actually saw the accused persons inflicting the injuries on the person of Dewa (deceased) and the details given by him regarding the part played by each of the accused persons appears to us to be an improvement on his part, and cannot be relied upon.
19. Now let us sum up the whole case in the light of the evidence we have found to be of worth. We must observe that even if a witness is not reliable, he need not be false and even if the Police has embroidered the story to give a credible look to their case, it cannot defeat justice if there is clear and unimpeachable evidence making out the guilt of the accused Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. In State of Punjab v. Harisingh : 1974CriLJ822 their Lordships of the Supreme Court setting aside the order of acquittal observed as under:
As human testimony resulting from widly different powers of observation and description, is necessarily faulty and even truthful witnesses not infrequently exaggerate or imagine or tell half truths, the Courts must try to extract and separate the hard core of truth from the whole evidence. This is what is meant by the proverbial saying that Courts must separate 'the chaff from the grain'. If, after considering the whole mass of evidence, a residue of acceptable truth is establised by the prosecution beyond any reasonable doubt the Courts are bound to give effect to the result flowing from it and not throw it overboard on purely hypothetical and conjectural grounds.
Informing ourselves of these important principles we have analysed the evidence and have found the evidence of PW. 7 Mst. Mani good and reliable. Even if the case against the accused would have hung on the evidence of PW. 7 Mst. Mani alone it would have been enough to sustain the conviction of the accused-appellants. In view of the circumstances that she is an interested witness, we have sought corroboration in this case to reassure ourselves. Her statement against the accused-appellants stands strongly corroborated in material particulars by the statement of PW. 4 Dr. N.T. Hirani and the past-mortem report Ex. P. 4. She further finds support from the statement of PW. 5 Mst. Sugni and from the statement, of PW. 1 Puraram. Both these witnesses have stated that she gave the names of the accused after the occurrence, and narrated the entire story. A portion of the statement of PW. 6 Bhala held to be reliable by us could also be used to, support the conclusion so reached.
20. Mr. Thanchand Mehta, learned Counsel for the appellants, urged that the accused-appellants were in fact charged under Sections 302/149, 326/149, 147, 148 and 120B I.P.C. As no charge was framed against them under Section 302 I.P.C., they could hot have been convicted under Section 302 I.P.C., simpliciter. The charge sheets of accused Lakha and Taga clearly show that both of them have been charged under Sections 302/149, 326/149, 147, 148 and 120B, I.P.C. In the main body of the charge it has been mentioned that the accused along with the other accused formed an unlawful assembly and in prosecution of the common object of that assembly committed such and such act.
21. A charge for substantive offence under Section 302 I.P.C. is for a distinct and separate offence from that under Section 302 read with Section 149 I.P.C. In the present case there was no direct and individual charge against the accused-appellants for specific offence punishable under Section 302 I.P.C. The absence of a specific charge is a serious irregularity which has materially prejudiced the accused. The argument advanced on behalf of the Additional Government Advocate that this is only an irregularity which is curable under Sections 535 and 537 Cr.P.C. is not correct In Nanakchand v. State of Punjab : 1955CriLJ721 their Lordships of the Supreme Court have observed as under:
If there is a conviction for a charge not framed it is an illegality and not an irregularity curable by the provisions of Section 535 and 537 Cr.P.C.
This illegality is not curable as the appellants must have been prejudiced in their defence by the absence of a positive charge under Section 302 I.P.C, By framing a charge under Section 302/149 I.P.C. the trial court gave an indication that it was not charging the accused with the specific offence Under Section 302 I.P.C. simpliciter and therefore in defending themselves the appellants were not called upon to meet such a substantive charge. In this connection a reference may be made to Lakhan Mahto v. State of Bihar : 1966CriLJ1349 . The Lordships of the Supreme Court after referring to a decision of the Privy Council : Barendra Kumar. Ghosh v. Emperor AIR 1925 Privy Council I have observed as under:
That the High Court has taken the view that Section 149, I.P.C. does not constitute a substantive offence and it was only an enabling section for imposition of vicarious liability & the conviction on vicarious liability can, therefore, be altered by the appellate court to conviction for direct liability, though there was an acquittal by the trial court of the direct liability of the offence In our opinion, the view taken by the High Court is not correct. There is a legal, distinction between the charge under Section 302, I.P.C., and a charge of constructive liability under Section. 302/149, I.P.C.
The law laid down in Nanakchand v. State of Punjab : 1955CriLJ721 was reiterated in Gokul v. State of Rajasthan : 1972CriLJ42 . That being the settled position of law there is no escape from the conclusion that the appellants viz. Lakha and Taga have been errone only convicted for the offence punishable under Section 302 I.P.C. mentioned in the judgment of the trial court and their conviction under Section 302 I.P.C simpliciter, cannot therefore be maintained.
22. The learned Additional Government Advocate, appearing on behalf of the State, has vehemently urged that even if the conviction of the accused appellants cannot be maintained under Section 302 I.P.C simpliciter they can very well be convicted under Section 302 read with Section 34 I.P.C., because the evidence on record is clear and cogent on this point. Mr. Than Chand Mehta, appearing on behalf of the accused-appellants, has urged that the appellants were acquitted by the trial court for a charge punishable, under Section 302 read with Section 149, I.P.C, and as such they can, not be convicted under Section 302 read with Section 34 I.P.C. The acquittal under the one amounts to an acquittal under the other. The learned Additional Government Advocate, in support of his argument has placed reliance on Bhoorsingh v. State of Punjab : 1974CriLJ929 , Dharam Pal v. State of U.P. : 1975CriLJ1666 , Karnail Singh v. State of Punjab AIR 1954 SC 204, Willie (William) Slaney v. State of Madhya Pradesh : 1956CriLJ291 .
23. We agree with the learned Additional Government Advocate that there is much difference in the scope and applicability of Section 34 and Section 149 I.P.C. though they have some resemblance and are to some extent overlapping. Section 34 I.P.C. does not by itself create any offence, whereas Section 149 I.P.C. does. In a charge under Section 34, there is, active participation in the commission of the criminal act; under Section 149, the liability arises by reason of the membership of the unlawful assembly, with a common object and there may be no active participation at all in the perpetration or commission of the crime.
24. Now let us examine whether the evidence on record is sufficient to convict the accused-appellants under Section 302 read with Section 34, I.P.C. From the evidence, as already discussed above, it stands proved beyond reasonable doubt that both the appellants came together and trespassed into the house of Dewa (deceased) after being armed with 'Dhariya' and dagger. Both the appellants when entered in the house of Dewa (deceased) at the dead of night knew that they will be using the weapons fully and effectively. PW. 7 Mani stated that Lakha inflicted, two 'Dhariya' blows on the head of Dewa (deceased and the accused Taga simultaneously gave ablow with a dagger, on the face of Dewa (deceased). Both of them made good, their, escape after murdering Dewa (deceased). The number and nature of the injuries read with the statement of PW. 4 Dr. N.T. Hirani support this, fact that both the accused took part in causing injuries to Dewa (deceased) as a result of which he met instantaneous death. According to PW. 4 Dr. N.T. Hirani, the injuries inflicted were sufficient in the ordinary course of nature to cause death. The assault, was thus murderous and it must have been apparent to both the appellants that the injuries they were inflicting in furtherance of the common intention were sufficient in the ordinary course of nature to cause death. It is always a question of fact whether the accused shared a particular knowledge or intent. One must look for common intention, that is to say some prior concert and what that common intention is. It is not necessary that there should be an appreciable passage of time between the formation of the intent and the act. The common interaction may be formed at the Spur of the moment Both the accused-appellant entered into the house of Dewa (deceased) at the dead of night after arming themselves with deadly weapons like dagger and 'Dhariya'. It has also come in evidence of PW. 6 Bhala that prior to the occurrence, a plan was hatched at the. house of the accused-appellant Lakha wherein it was decided to commit the murder of Dewa (deceased). Looking to the nature of injuries and the manner in which the blows were inflicted, it can be safely inferred that both of them intended to cause the injuries with the sharp edged weapons on the head and face of the deceased Dewa. In these circumstances, both of them can be held guilty of the offence punishable under Section 302 read with Section 34 I.P.C.
25. Now the question arises whether any prejudice will be caused to the accused-appellants by convicting them under Section 302 read with Section 34 I.P.C, because at no stage of the enquiry or trial a charge with the aid of Section 34 I.P.C. had been framed against the accused appellants. The learned Additional Sessions Judge while recording the statements of the accused had asked the accused whether Lakha inflicted two injuries with a 'Dhariya on the fore-head of Dewa (deceased) and Taga inflicted an injury with a dagger on his face and thereafter the other accused inflicted injuries with 'lathis'. In reply to this question both the accused-appellants have stated that the allegation is wrong. A perusal of the statement of the accused recorded under Section 313 Cr. P.C. shows that the replies of almost all the questions have been given is negative. The only plea which has been raised is that the witnesses have made the statements against them due to enmity. From the statements of the witnesses recorded in their presence it was made clear to them that they were being tried for an indictment in which they could be held liable for causing injuries to the deceased Dewa in furtherance of their common intention. In the facts and circumstances of the case it cannot be said that the accused-appellants would be prejudiced in their defence if their conviction is altered from Section 302 to 302 read with Section 34 I.P.C.
26. The net result of the above discussion is that the conviction of both the accused-appellants under Section 302 I.P.C. is converted to Section 302 read with Section 34 I.P.C. The sentences awarded to each of them by the trial court are maintained. The appeal is disposed of accordingly.
27. The learned Counsel for the accused-appellants prays for leave to appeal to Supreme Court. We find no reason to certify that the case is a (sic) one for appeal to the Supreme Court. The prayer is refused.