B.C. Chakrabarti, J.
1. This re-visional application is directed against an appellate order confirming the conviction of the petitioner under Section 325, I. P. C. and the sentence of simple imprisonment of one month and fine of Rs. 300/-; in default to further simple imprisonment for two months.
2. The case was started on a petition of complaint filed by the opposite party-No. 2 being case No. 556 of 1977 in the court of the Judicial Magistrate, First Class, Hooghly. This petition of complaint was filed on 14-7-1977. The complaint was preceded by an information at the police station which was recorded in the general diary being entry No. 632 dated 27-6-1977. In this G. D. at the instance of Narayan Chandra Pandit, the complainant, it is alleged that on the previous evening at about 8/8.30 p.m. the informant's nephew Gopal Kundu, Nepal Kundu, Tarak Kundu, Gour Pandit, Hari-das Pandit, Kesto Pandit and Ranjan Pandit trespassed into the house of the informant and assaulted the informant and his wife Sm. Durga Rani Pandit with bamboo sticks as a result whereof both of them sustained injuries. After this the opposite party No. 2 filed a complaint on 14-7-1977 in which it is alleged that the accused persons, 8 in number trespassed into the house of the complainant and started abusing the wife of the complainant in filthy language. The complainant protested when the accused persons fell upon him and assaulted him with fists, blows and lathi. The complainant having raised an alarm his wife came to his rescue when the accused persons likewise assaulted the complainant's wife on different parts of her body with fists, blows and lathi. Thereafter other persons came and rescued the complainant and his wife. It is further stated in the petition of complaint that the complainant's wife was radiologically examined and the examination revealed a fracture on the right hand.
3. On the allegations as aforesaid, several charges were framed against the accused persons. Only 4 of the accused had been summoned. The charges framed against the accused persons were under Sections 147, 323 and 447 of the I P. C. As against the petitioner Gour Chandra Pandit a separate charge under Section 325, I. P. C. was framed for having voluntarily caused grievous hurt to Durga Rani Pandit.
4. The defence was one of false implication arising out of previous enmity. It was further alleged that Durga Rani Pandit was a patient of epilepsy and occasionally suffered from hysterical fits. The defence suggestion was that she received the injury by a sudden fall in course of one such epileptic fit at the bathing ghat.
5. In support of the prosecution 9 witnesses were examined. The defence examined two witnesses.
6. Upon a consideration of the evidence the learned Magistrate found that the charge against the accused persons under Sections 147, 323 and 447, LP.C. had not been proved beyond reasonable doubt The learned Magistrate, however, held that the charge of causing grievous hurt to the complainant's wife was established as against the petitioner Gour Chandra Pandit. Upon such a finding the learned Magistrate sentenced him to simple imprisonment for one month and also to pay a fine of Rs. 300/- and in default to suffer simple imprisonment for two months more with a direction that if the fine be paid, half of the amount should go to the complainant as compensation.
7. On an appeal being preferred by the petitioner, the learned Sessions Judge. Nadia affirmed the order of conviction as also the sentence. Being aggrieved the petitioner filed the present revisional application and obtained the Rule.
8. Mr. Sur appearing on behalf of the petitioner has contended that the story of assault by Gour Chandra Pandit is a later concoction which the two courts below have overlooked. He also complained that the learned courts below having disbelieved the testimony of witnesses in regard to the incident and participation by the other 3 accused persons should not have on the same evidence found the petitioner guilty. He also made a grievance that, the initial story made out by the complainant was radically changed at the trial rendering the entire story unbelievable. Mr. Addya appearing for the opposite party No. 2 and the learned Advocate for the State, however, supported the order of conviction. In elucidating his points Mr. Sur drew our attention to the fact that in the general diary lodged by the complainant there is no allegation that the petitioner alone was armed with a lathi or bamboo stick - far less that he alone assaulted the victim with the lathi. In fact, the G. D. entry reads as if all the accused persons named therein -8 in number__ assaulted the complainant and his wife with lathi. The injury report given by the doctor who examined the complainant and his wife also indicates that the story given out to the doctor was as if the accused persons together assaulted the victims with fists, blows and lathi. Up till that stage there was no specific allegation that this petitioner alone was armed with lathi and that he had inflicted the lathi blow causing the fracture. In the petition of complaint that was filed nearly 3 weeks after the G. D. entry also there is no case that this petitioner alone had inflicted the lathi. The story up to the stage of filing of the petition of complaint consistently had been as if all the accused persons in a body assaulted the complainant and his wife with fists, blows and lathi. It was only at the time of giving evidence in court, nearly l 1/2 years after the incident, that the complainant and his wife came out with a positive story that this accused alone had inflicted the lathi blow. Such being the state of things Mr. Sur contends that the story has been improving from stage to stage and the ultimate version given at the trial is a positive improvement on the initial case made out. As a Court of revision we are not ordinarily required to go into the evidence for the purpose of assessing the credibility of the witnesses when there is a concurrent finding of the courts below in regard to a fact But if it appears that the courts below have failed to take note of a positive aspect of the evidence, we are entitled to see to it and consider it for whatever it is worth.
9. It was contended on behalf of the State as well as on behalf of the complainant opposite party that there could be no point in falsely implicating the petitioner but that it was more likely for the petitioner to have raided the house of the complainant because of the previous grudge and enmity existing between them. The complainant and the accused are closely related as agnates, it is not disputed that they are not on good terms and there is history of previous litigation between them. Ordinarily this is a circumstance which is considered as neutral insofar as previous grudge may supply a motive for false implication as much as it may inspire the accused to take revenge in the manner alleged. Therefore, ordinarily such fact of previous enmity is considered as a neutral factor. But when the courts below have disbelieved the testimony of the witnesses in regard to the other accused persons, the fact of previous enmity and the allegation of false implication on that account so far as regards the other accused is concerned assumes some importance. Mr. Surreferred to us the decision in the case of Uma Shankar v. State of U. P. reported in : 1979CriLJ1119 . In that case there was evidence of enmity between the parties. The F. I. R. mentioned that all the 3 accused raised shouts that the deceased should be killed but during trial the prosecution witnesses attributed the overt act of incitement to only one of the accused. It was held that when the attributing of the overt act to the accused alone during the trial is, in the background of previous enmity, there appeared to be every reasonable possibility of the appellant having been implicated due to enmity to seek personal vendetta. The facts of the case before us are somewhat similar insofar as only before the witnesses came to depose there was no case attributing the overt act to the petitioner alone and it was only during the evidence that such act was attributed to him.
10. Relying upon an observation in the case of Prem Singh v. State of Punjab 1976 SCC (Cri) 194 : 1977 Cri LJ 261. Mr. Sur also contended that if the evidence of eye-witnesses was disbelieved by both the lower courts in regard to, participation by 3 of them, it is difficult to see how it could be accepted so far as the role assigned to the petitioner is concerned. The contention thus made is well supported by the decision relied on.
11. Incidentally it may also be mentioned that all the witnesses named in the petition of complaint were not examined but in their place some others were examined. These are circumstances which the courts below obviously failed to take note of.
12. In view of the fact that in the G. D. and the petition of complaint as well as in the statements made to the doctor while giving the history of the case there was no allegation that this petitioner alone had inflicted the lathi blow, the story made out at the trial considered in the light of the history of previous enmity becomes doubtful and difficult to accept. This is more so because the courts below have disbelieved the same evidence in regard to the other accused persons who were also alleged to have caused assaults upon the complainant and his wife by fists and blows. That part of the story having been disbelieved and all the accused having been acquitted of the charges under Sections 147, 323 and 447 of the I. P. C, the learned Judges in the courts below, in our view, were wrong in accepting the same evidence for the purpose of finding the petitioner alone guilty, particularly in view of thenature of the allegation as against the accused persons.
13. There is yet another aspect of the matter, viz., that the accused-petitioner though specifically charged under Section 447, I. P. C. was acquitted of that charge. If that be so it necessarily follows that the allegation that he had trespassed into the house of the complainant with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property is disbelieved. And if that be so, then again the conviction of the petitioner under Section 325 of the I. P. C. on the allegations made in the petition of complaint becomes somewhat inconsistent and conflicting. The matter would have been different had not the accused been specifically charged under Section 447. But when he was so charged and acquitted of the same, the finding of guilt under Section 325 on the same facts cannot be sustained. Therefore, in our view, the order of conviction cannot be supported.
14. The revisional application, accordingly is allowed. The order of conviction and sentence are set aside. The petitioner be released from the bail bond.
J.N. Chaudhuri, J.
15. I agree.