Adarsh Sein Anand, J.
1. This appeal is directed against an order of acquittal passed by the learned Sessions Judge, Jammu, on 10-1-1972.
2. The respondents were tried for an offence under Section 302 R.P.C. for causing the death of one Bhim Singh. According to the prosecution story Des Raj accused used to chop off branches of a 'Beri' tree belonging to Sardar Singh P.W. and his brother Bhim Singh, deceased and on this account their relations had become strained. Despite objections by Sardar Singh P.W., Des Raj accused, did not desist from cutting the branches of the tree whereupon Sardar Singh convened a meeting of the residents of village Gonper on the evening of 12th March, 1971. Although, the real purpose of the meeting was to deal with the situation arising out of the cutting of branches of the tree but as a camouflage it was given out that the meeting was meant to consider the proposal regarding the construction of a water tank. The accused persons were also present, amongst others at the meeting. Some inconclusive talk regarding the construction of water tank took place and soon thereafter the matter regarding unauthorised cutting of the branches of the 'Beri' tree was brought up. Amar Nath, accused, was asked to urge upon Des Raj accused to desist from committing the mischief. Des Raj accused then reported that let alone the branches of an insignificant 'Beri' tree, he can even chop off the head of a person. The meeting was about to take an unfortunate turn on this remark but the same was averted by the intervention of other persons present there. When the meeting dispersed, Des Raj accused hurled abuses at Bhim Singh deceased and a fight ensued. It is further the prosecution story that Amar Nath accused then instigated all the members of the accused party. He shouted that the period of the reign of Chib Rajputs had ended and, therefore, Bhim Singh and Sardar Singh should not be allowed to go home alive. On being so instigated, Des Raj accused pelted a stone which hit Bhim Singh deceased on the left side of his head. Major Singh accused, father of Des Raj aimed another stone on Bhim Singh which hit him on the right side of his head. As a result of the injuries received, Bhim Singh fell down. All the accused are then alleged to have inflicted blows on the deceased with stones and fists. Shonku and Dhyan Singh attempted to rescue Sardar Singh and his brother Bhim Singh deceased but they were also assaulted by the accused party. Mulkh Raj accused inflicted injuries on Sardar Singh on his lip and back while Mela Ram accused inflicted injuries on the shoulder of Shonku with an axe and Anant Ram caused injuries on the right arm of Dhyan Singh with an axe. Apprehending, that the deceased who had fallen down, had died, the accused party ran away from the spot. Bhim Singh deceased was, thereafter, taken to the hospital and report of the occurrence was made at the police station, Chamb, by Sardar Singh, Shonku Ram and Dhyan Singh. Initially a case was registered under Sections 307/147/148/149 R.P.C. but after Bhim Singh died on the next morning, the offence was converted into an offence under Section 302 R.P.C. The case was investigated and the challan was put in the court. The accused persons were committed to stand their trial by the learned committing magistrate.
3. During the trial, the prosecution examined Sardar Singh, Dhyan Singh, Chhailo Ram, Manga, Jullander Singh, Baldev Singh, Shiv Nath, Dewan Chand, Dr. Ravinder Gupta and Tej Ram, Sub-Inspector of Police. The accused denied to have participated in the occurrence and in their statements recorded under Section 342 Cr.P.C. they alleged that they had no knowledge about the occurrence. They also denied their participation at the alleged meeting convened by Sardar Singh. In their defence they examined Shonku Ram, who was originally cited as a witness by the prosecution, Sain Dass and Devan. After adverting to the evidence led in the case, the learned Sessions Judge, Jammu, disbelieved the prosecution case and acquitted the accused. Aggrieved against the acquittal, the State has come up in an appeal.
4. The learned Advocate General appearing for the State has in the first place submitted that the learned trial Judge did not try to sift the evidence and that has resulted in the wrong judgment. He urged that it is the duty of a court to try and separate the grain from the chaff and not to adopt an easy course of throwing out the prosecution case on finding certain discrepancies in the case without looking to the effect of those discrepancies. Mr. Tickoo has further urged that powers of the court of appeal, in dealing with an appeal against acquittal are as wide as its powers in dealing with an appeal against conviction and in the present case it is urged by Mr. Tickoo, the reasons given by the learned trial Judge are so faulty that the acquittal which is based on surmises and conjectures cannot be upheld. According to Mr. Tickoo, from the unimpeachable evidence of Sardar Singh, Dhyan Singh, Manga and Jullander Singh P.Ws. it stands fully established that Des Raj and Major Singh caused injuries to the deceased Bhim Singh and there was no justification for acquitting these two accused at least. The prosecution evidence regarding the part played by Des Raj and Major Singh is very consistent and the trial Judge has erred in not relying upon the same.
5. Mr, S. P. Gupta, learned Counsel for the respondents, has on the other hand submitted that the prosecution has failed to establish, by convincing and cogent evidence, that all the accused were members of an unlawful assembly, and as such, the offence under Section 148 was not made out.
6. As regards the prosecution evidence Mr. Gupta has urged that the prosecution tried to attribute a passive role to the complainant party in the fight and that by itself would expose the falsity of the prosecution case. He urged that the prosecution case to the effect that a meeting had been called late in the evening did not show any logic and the learned trial Judge was justified in disbelieving the same. Mr. Gupta then submitted that the prosecution witnesses were partisan witnesses who had made improvements in their statements and in view of the discrepancies in their statements, the learned trial Judge was well justified in rejecting their testimony and acquitting the accused. It is urged that since the prosecution had introduced a false story about the recovery of stones at the instance of the accused party, it detracts so materially from the evidentiary value of the prosecution evidence that it would be unsafe to rely upon any part of the prosecution story. Commenting upon the part attributed to Des Raj and Major Singh accused it is urged that since most of the prosecution case has been found to be false, there is no guarantee that the part of the case relating to Major Singh and Des Raj accused must be true and in that view of the matter their acquittal was also justified. Mr. Gupta has submitted that the stone which caused injuries to Bhim Singh had been thrown by Jullender P.W. towards Diwan D.W. and it accidentally hit Bhim Singh when Diwan D.W. ducked to save himself. It is urged that the defence evidence is more reliable and should be believed.
7. We shall now scan the evidence with a view to appreciate the rival contentions raised at the bar.
8. P.W. 1 Sardar Singh, in his deposition stated that Des Raj respondent used to cut branches of a Beri tree belonging to him and his brother Bhim Singh deceased and that when he went to the house of Des Raj to lodge a protest he did not find him there. In the evening a meeting was called and the inhabitants of the village assembled with a view to discuss a proposal for the construction of a water tank and he availed -of the opportunity to make a complaint against Des Raj regarding the cutting of the branches of the Beri tree. Amar Nath accused was requested to persuade Des Raj to desist from damaging the Beri tree but Des Raj was not amenable to any reason and he retorted that what to speak of a Beri tree, he would even chop off the head of any person. Later on when the meeting dispersed Des Raj abused Bhim Singh, who returned his abuses. Thereupon, at the instigation of Amar Nath the accused party committed assault on the complainant party in the manner which has been given above while narrating the prosecution case. During his cross-examination, the witness admitted that he had not lodged any complaint nor had he made any report or filed a suit in any court against Des Raj accused for causing damage to the Beri tree. According to the witness besides the accused-respondents, Vakil Singh, Shonka and Dhian Singh were also present at the meeting when the occurrence is alleged to have taken place. The witness clearly deposed about the part played by Major Singh and Des Raj accused in causing injuries to Bhim Singh deceased with the stones.
9. P.W. 2 Dhyan Singh has corroborated the statement of Sardar Singh in all material particulars regarding injuries of Bhim Singh deceased but added that in addition to the accused-respondents and the prosecution witnesses there were some other persons also who were present at the meeting.
10. Chhailo Ram P.W. 3 was attracted to the spot on hearing noise. On reaching there he had found Bhim Singh lying in an injured condition. According to him, Amar Nath pelted a stone towards the witness and ran away.
11. P.W. Manga described in details the part played by each of the accused respondents in the attack and corroborated in all material particulars the statement of Sardar Singh and Dhian Singh P.Ws. regarding the injuries received by Bhim Singh and the manner in which the injuries were received. During cross-examination the witness stated that he did not know as to wherefrom the accused respondents had brought the stones.
12. According to Jullander Singh P.W. 5, he was present at the meeting. He deposed about the sequence of events which took place at the meeting. The witness supported Sardar Singh and Dhian Singh in material particulars and unequivocally deposed that Des Raj and Major Singh, apart from others, had caused injuries to the prosecution witnesses.
13. P.W. 6 Baldev Singh is a witness of the recovery and seizure of some stones pursuant, to a disclosure statement allegedly made by Des Raj, Major Singh, Anant Ram and Chhailo Ram and when his statement is read along with the statement of P.W. 7 Shiv Nath, the other witness of recovery, the story about the making of disclosure statement and the recovery of stones becomes doubtful.
14. Dewan Chand Patwari P.W. 8 had prepared the site plan. Dr. Ravinder Gupta P.W. 9 performed the post-mortem on the dead body of Bhim Singh. He had also examined Sardar Singh, Dhian Singh, Manga, Chhailo and D.W. Shonka. On performing post-mortem on the dead body of Bhim Singh he found the following injuries:
(1) Haematoma over the right parietal bone on anterior aspect 10 cm. x 6 cm. in size.
(2) A haematoma over the left parietal bone in centre 5 cm x 2 cm. in size.
15. According to the doctor both the injuries were grievous in nature and were caused by some blunt weason. Ha went on to add that the life of Bhim Singh could be saved, if he were operate ed upon by an expert surgeon and if prompt medical aid had been provided.
16. P.W. 10 Teja Singh, investigated the case. According to him F.I.R. No. 3 was registered by him on the oral report of Sardar Singh, Dhian Singh and Shonka. He had then gone to the hospital and found Bhim Singh injured in great pain and agony. He deposed about the disclosure statements and the consequent recovery of stones and admitted in cross-examination that for want of conveyance he had not sent the injured to Jammu for medical treatment.
17. The accused respondents while denying the prosecution case and the allegations against them in their statements under Section 342 Cr.P.C. produced Shonka Ram, in their defence. According to Shonka Ram D.W. a meeting was held on 12th March, 1972 in connection with the construction of a water tank. During the meeting there was an exchange of abuses between the members of Chib community and the members of the Jat community. The witness went on to state that Jullander Singh P.W. had pelted a stone on Diwan D.W but that stone missed Diwan and accidentlly struck Bhim Singh and when alarm was raised he (the witness) ran away from the spot.
18. D.W. Diwan made a similar statement and stated that Jullunder had pelted a stone on him which accidentally hit Bhim Singh and that thereafter there was free exchange of stones when he ran away. Sain Dass corroborated the evidence of Shonka and Diwan. This is the entire evidence in the case.
19. The learned Sessions Judge acquitted the accused respondents by rejecting the evidence of the prosecution witnesses not only on the ground that they were partisan witnesses but also by observing that they appear to be tutored witnesses who had made improvements in their statements. The learned Sessions Judge disbelieved the prosecution version that the meeting was called by the accused party and observed:
As is evident from F.I.R. and statements of the witnesses to the police as also from the report of the cause of death Ex. P-Z3 the meeting was called by the complainant party with the object of settling the dispute of the Beri tree with Des Raj accused.... The convening of a meeting during the night for an insignificant purpose speaks more of a mala fide intention of the complainant party rather of the accused party. The trouble was invited by the complainant party itself, thereby verifying the truth of the maxim 'One who digs ditch for others falls himself into it...
20. The learned Sessions Judge further doubted the bona fides of the prosecution story on account of the alleged recovery of stones pursuant to the disclosure statement allegedly made by the accused and found this part of the prosecution case to be false and fabricated. In this connection he observed 'in a. case where false documents are brought by the police, the possibility of fabrication of evidence cannot be excluded' and doubted the entire prosecution version.
21. We have given our anxious considerations to the respective contentions raised at the bar and have also carefully perused the evidence on the record.
22. We are conscious of the fact that an order of acquittal is normally not to be set aside except for sufficient and cogent reasons and that too when the I court of appeal is not in a position to1 accept the reasoning of the trial court.) We are also conscious of the fact that the presumption of innocence is fortified by an order of acquittal and unless there are compelling reasons, the findings recorded by the trial courts are not to be lightly disturbed. Indeed, it is i so well settled that though the powers j of a court of appeal are equally wide while dealing with the judgments of acquittal as they are while dealing with the judgments of conviction, yet, a court of appeal is reluctant to interfere with an order of acquittal simply on the ground that on the given state of evidence, two views are possible. However, when there is not only gross misreading of evidence but also the trial court makes no serious attempt to separate grain j from chaff and the reasonings of the trial j court are so faulty that the same can- not be upheld or when the trial court falls into errors of law while dealing with i the case, it is not only open to a court' of appeal but it is duty to interfere with such an order and upset the acquittal, i which has resulted in miscarriage of justice. It is in the light of these guide- lines that we shall deal with the present case.
23. To us it appears that the learned Sessions Judge fell into grave error in, doubting the prosecution version regarding the convening of the meeting by-relying upon the statements of witnesses as made to the police (under Section 161 Cr.P.C.) and the F.I.R. This approach is not warranted by law. It was not open to the trial court to make use of these statements unless they had been brought on the record and then also their use was limited to the extent laid down under Section 162 Cr.P.C. By making use of the statements of the witnesses recorded under Section 161 Cr.P.C. and of the contents of the F.I.R. in a manner, as if those statements were substantive pieces of evidence, the learned Sessions Judge appeared to have ignored the restrictions and bars contained in ,S. 162 Cr.P.C. The statements made to the police under Section 161 Cr.P.C. cannot be availed of by the trial court to doubt the prosecution version unless the statements have been brought on the record and that too for the limited purpose. It is not open to the court to rely upon such statements in preference to the evidence on oath. It is only by relying upon Section 161, Cr.P.C. statements and the contents of the F.I.R. that the learned Sessions Judge doubted the convening or the holding of the meeting. There is sufficient prosecution evidence to show that the meeting had been convened and the defence witnesses have also admitted the convening of the meeting and the occurrence which took place. This aspect of the case was lost sight of by the learned Sessions Judge. The finding of the trial court that no meeting was convened as urged by the prosecution is not supportable at law.
24. It also appears to us that the approach adopted by the learned Sessions Judge in rejecting the evidence of prosecution witnesses on the ground that they were interested and had made improvements in their statements was not a correct approach. Hardly does one come across a case where witnesses do not make improvements in their evidence and situate as we are, we cannot close our eyes to the realities that in factional fights it is generally the interested witnesses who come forward and unconnected witnesses are reluctant to give evidence. In the instant case it is admitted by the defence witnesses also that:
(a) a meeting was held on 12th March 1971 in the evening.
(b) that during the meeting abuses were exchanged between the Chib and at communities;
(c) that Bhim Singh received grievous injuries during the fight which took place at the time of the meeting. When all this is admitted the task o the court in appreciating evidence becomes lighter. The divergence between the defence version and the prosecution version then narrows down to the determination whether Bhim Singh received injuries at the hands of Jullender Singh as deposed to by the defence witnesses. With a view to test the correctness of either version, the, evidence has to be carefully scanned and to use the famous metaphor an attempt has to be made 'to separate the grain from the chaff'. The learned Sessions Judge made no .such attempt and adopted the easy course of disbelieving the entire prosecution case. Ho did not even advert to the admitted case of the parties and observing that the prosecution witnesses had roped in everyone of the accused party, he acquitted all the accused persons. We are constrained to observe that this approach is wholly erroneous. The case of Major Singh and Des Raj rests on a completely different footing than the rest of the accused
25. According to the defence, the injuries were received by Bhim Singh in a manner different than the one urged by the prosecution. Although, the prosecution is required to prove the whole of its case and weakness of defence cannot help the prosecution, yet the admission made by the defence, if it corroborates the prosecution version, can certainly be availed of by the prosecution. In the instant case the fact that Bhim Singh received injuries at the time of the alleged occurrence has not been disputed by Shonku D.W., whose presence is accepted by the prosecution also. In what manner were the injuries received, only requires to be seen from the evidence on the record.
26. Reading carefully the statements of Sardar Singh, Dhian Singh, Manga and Jullander Singh P.Ws., it transpires that the injuries to Bhim Singh, deceased were caused by Des Raj and Major Singh accused. All the four witnesses have unanimously stated so. This part of their statements was not challenged in cross-examination. The suggestion of the defence that Jullunder Singh P.W. pelted a stone towards Diwan D.W. which accidentally hit Bhim Singh deceased appears to be an afterthought. None of the accused respondents have taken this specific stand in their statements recorded under Section 342 Cr. P, C. though, according to the evidence of the defence witnesses members of the accused party were also present at the time of occurrence and there was a free exchange of stones between the parties. What is more important is, that no suggestion was made to Jullander Singh P.W, to the effect that he had thrown a stone towards Diwan D.W. which had, accidentally hit Bhim Singh when he appeared as a witness. It, therefore, does not lie in the mouth of the defence now to urge that the injury to Bhim Singh deceased was caused by an accidental striking of the stone thrown by Jullander P.W. towards Diwan D.W. The learned Sessions Judge did not deal with this aspect of the case at all and threw out the prosecution case in its entirety on wholly flimsy grounds. The statements of Sardar Singh, Dhian Singh and Jullunder Singh unmistakably show that the injuries to Bhim Singh were caused by Des Raj and Major Singh when they hurled stones at him. We find no reason to disbelieve them on this aspect of the case. The argument of Mr. Gupta, learned Counsel for the accused respondents, that it is not possible that stones thrown by Des Raj and Major Singh would hit Bhim Singh on either side of the head has not impressed us. No challenge was made to the assertions made by these witnesses in their cross-examination. Facts may sometimes appear to be stranger than fiction. We find no reasons to disbelieve these four witnesses about the manner in which Bhim Singh received injuries. The medical evidence corroborates the ocular testimony of these witnesses about the injuries of Bhim Singh deceased. We, therefore, find ourselves unable to accept the finding of the learned Sessions Judge that the authorship and manner of the receipt of injuries by Bhim Singh has not been satisfactorily established. We find that the injuries to Bhim Singh deceased were caused by Des Raj and Major Singh in the manner suggested by the prosecution.
27. According to the medical evidence injuries received by Bhim Singh were grievous in nature. The authors of the injuries were Des Raj and Major Singh accused. Both these accused are, therefore, guilty.
28. The case of the other accused persons, however, rests on a different footing. There are discrepancies and contradictions in the statement of the various witnesses regarding the participation of the other accused in the fight. There is divergence between the prosecution witnesses regarding the manner in which the injuries were received by Sardar Singh, Dhian Singh and Shonku. Moreover the assertion of the witness that Thoru accused also caused an injury to Bhim Singh has not been supported by the medical evidence. Similarly, we find it difficult to accept the prosecution version regarding the injuries allegedly caused by Mulkh Raj, Mela Ram and Anant Ram on Sardar Singh, Shonku and Dhian Singh P.Ws. It appears that the complainant party has tried to rope in as many members of the accused party as was possible. The tendency to rope-in some innocent with the guilty is quite prevalent in this part of the country and that is why we have been at our guard to sift the evidence more carefully. The part attributed to Mulkh Raj, Mela Ram and Anant Ram accused is not free from doubt. Similarly, we find it difficult to accept that Amar Nath accused should have raised the alleged 'Lalkara'. Since, it was a sudden fight, there was no occasion for Amar Nath accused to raise the 'Lalkara1. We have often found that where the prosecution has no definite case against someone, the device of attributing the shouting of a 'Lalkara' to him is employed so as to rope him in and fasten the liability on him. The case against Amar Nath accused also is not free from doubt.
29. The learned Sessions Judge opined that the injuries suffered by Sardar Singh, Dhian Singh and Shonku were self inflicted. That may or may not be true as according to the medical evidence injuries could be caused in the manner suggested by the prosecution and no suggestion was made either to the doctor or to the witnesses by the defence that the injuries were self inflicted. However, in view of the discussion in the above paragraph, we feel hesitant to reverse the findings of the learned Sessions Judge with regard to the non-reliability of the evidence in respect of the authorship of the simple injuries caused to Sardar Singh and Dhian Singh P.Ws. and Shonku D.W. We are also not satisfied about the participation of Thoru Ram and Amar Nath accused in the crime. Taking the totality of the circumstances into consideration, we do not find any justification to upset the findings of the learned Sessions Judge regarding the doubtfulness of the prose- cution case against Mela Ram, Mulkh Raj, Anant Ram, Thoru Ram and Amar Nath accused.
30. Faced with this situation and in this state of evidence, Mr. O.N. Tikku, the learned Advocate General, appearing in support of this appeal has frankly conceded that he is not in a position to press the appeal as against the accused respondents other than Des Raj and Major Singh. Therefore, the appeal against the acquittal of accused respondents, other than Des Raj and Major Singh, is hereby dismissed and their acquittal is confirmed.
31. As regards Des Raj and Major Singh accused, in view of the discussion above, it stands clearly established that they caused grievous injuries to Bhim Singh deceased. The question which now requires determination is as to what offence was committed by them. According to the prosecution version itself the fight took place after an exchange of abuses between the parties when tempers had risen high. Des Raj and Major Singh had pelted only one stone each towards Bhim Singh deceased. From a careful perusal of the prosecution evidence we are not satisfied that the accused respondents Des Raj and Major Singh had the intention to commit the murder of Bhim Singh. They had caused only one injury each to the deceased by means of stones. It is unfortunate that the stones caused injuries on the head of the deceased and due to lack of proper medical care, the injuries received by him proved fatal. An accused person is expected to know and anticipate the normal consequences of his act. Des Raj and Major Singh accused can, thus, only be fastened with such liability which they could have anticipated as a result of their action in throwing one stone each on Bhim Singh deceased. The direct impact of stones resulted in grievous injuries to Bhim Singh deceased. According to medical evidence, the life of the deceased could be saved if he was properly operated upon. The investigating officer has admitted that he did not send the injured to the Jammu hospital for medical treatment for want of conveyance.
32. Mr. Tikku, the learned Advocate General, has argued that in the facts and circumstances of this case, both Des Raj and Major Singh accused are guilty of an offence under Section 325 R.P.C. We find there is force in the submission of the learned Advocate General and in view of the discussion above we find both Des Raj and Major Singh accused guilty of an offence under Section 325 R.P.C. and sentence them to suffer rigorous imprisonment for three years each and to a fine of Rs. 100 each. In default of payment of fine, they shall suffer further rigorous imprisonment of two months each. Fine, if and when realised shall be paid to the heirs of the deceased, Bhim Singh. In view of the amendment to the Code of Criminal Procedure, we direct that the period, if any, spent by the accused in jail during the investigation or pending the trial shall be offset against the period' of sentence passed above.
33. In the result the appeal against the acquittal of Thoru Ram, Mela Ram, Anant Ram, Amar Nath and Mulkh Raj fails and is dismissed as such. The appeal against the acquittal of Des Raj and Major Singh is accepted and they are convicted and sentenced in the manner given above. They shall be taken into custody to serve the sentence. Necessary warrants be issued.
34. I agree