J.C. Gupta and S.K. Agarwal, JJ.@mdashThis appeal arises out against the judgment and order dated 15.10.1980 passed by the then I Vth Additional District and Sessions Judge, Bulandshahr in Sessions Trial No. 352 of 1979 u/s 302, I.P.C. and Sections 147, 148, 323/149, I.P.C. convicting and sentencing the Appellants to life imprisonment, two years'' R.I. and one year R. I. respectively. All the sentences were to run concurrently.
2. The prosecution version as available from the F.I.R. is that on 12.3.1979 at about 5.30 p.m., the sister Smt. Rajbiri and daughter Soma of the informant have gone for bringing water from the well and the two were coming back with water. They were on the way, when wife of Appellant No. 2 started hurling abuses on them. The informant along with Inder, Binnani and nephew Tejbir were present in the baithak. They came out of the baithak and asked why the abuses are being hurled. Immediately all the Appellants started assaulting them. Amongst the assailants Prabhu and Chandra Bose were armed with ballam, rest of the assailants were possessing lathis. In the assault, Tejbir died at the spot due to ballam injuries received on the chest by him. Binnani, Bhup Singh and Inder sustained lathi injuries. Prabhu prepared a written report ex-Ka. 1 and submitted it at the police station Chandpur, district Bulandshahr. The report was registered at the police station at 6 O''clock and general diary entries were prepared which were proved on record by the Investigating Officer, P.W. 6 Sukhbir Singh since the Head Moharrir has not been examined by the prosecution.
3. The autopsy on the person of the deceased was performed by Dr. H. U. K. Bunari, P.W. 4 on 13.3.1979 at 2.45 p.m. The deceased had one incised wound of the dimension 1" ? 1/2" ? chest deep on left side 2-1/2" below the nipple. In the internal examination the membrane of the heart was found cut, the left side of the heart was also found cut underneath the injury. In the opinion of the Medical Officer the injuries sustained by the deceased Tejbir were sufficient to cause death in the ordinary course of nature and which could have occurred at 5 or 5.30 p.m.
4. The other three injured Binnani, Bhup Singh and Inder were examined by Dr. Banwari Lal, P.W. 5 on 12.3.1979 from 10.15 p.m. to 10.35 p.m. Injuries of these injured persons were all of blunt weapon and together they had sustained five lacerated wounds and one abrasion. All these injuries were simple in nature.
5. The prosecution in support of its case has examined three eye-witnesses Bhup Singh P.W. 1, Inder P.W. 2 and Smt. Rajbiri P.W. 3. Rest of the witnesses examined by the prosecution are formal witnesses. Out of them P.W. 6 Sukhbir Singh is the Investigating Officer. P.W. 4 and P.W. 5 are the Medical Officers who have conducted post-mortem and the medical examination of injured persons. Rest of the witnesses are wholly conjectural and details about them are not necessary for the decision of this case.
6. The defence has denied the prosecution case and have set up altogether a different case. The version as given out by one of the Appellants Prabhu is that Dhani Ram, Preetam, Netraram and Gulab Singh had gone to the market to sell cow dung cakes. They were returning with the sale price at about 5.30 p.m. As soon as Dhani Ram reached near the tiraha of village abadi Rajpal, Inder, Binnani, Bhup Singh, Tejbir, Chander, Sriram, Jwala and Moti who were armed with lathis, ballam and pharsa and lying in wait at this crossing observed, "we will see you today". They attacked him and took out Rs. 700 from his pocket. The alarm of Dhani Ram attracted Prabhu, Gopali and Panna and they were also assaulted with lathi, ballam and pharsa. Prabhu snatched ballam from someone and plied it which struck Tejbir. The other companions of his had snatched lathies and plied them in their right of private defence resulting into injuries to Tejbir, Binnani, Inder and Bhup Singh. A report was lodged by him also. The Head Moharrir had taken their report and asked him to sit down. In the meantime Shriram reached the police station and informed the Sub-Inspector that Tejbir had died. They were immediately lodged into the police station lock-up. Their report was not registered however, their medical were got conducted. Cross cases came up against Bhup Singh and others in the same Court. The Investigating Officer sided with the prosecution.
7. In the present case on behalf of these Appellants, two submissions have been advanced by their learned Counsel Sri P. N. Mishra. The first submission is that the genesis of the marpit having been suppressed by the prosecution, the conviction of the Appellants in the case is wholly impossible. The other submission made by him is that the prosecution has utterly failed to explain the injuries upon the person of some of the accused Appellants. This failure of the prosecution goes to the root of the case if both these submissions are taken up together for consideration. In order to appreciate this contention, examination of the prosecution evidence is necessary.
8. P.W. 1 Bhup Singh is the nephew as also an eye-witness of the incident. According to him when his sister and daughter were returning after taking water towards their house, wife of Prabhu, Bhagwati had started abusing them. This witness along with other three injured persons came out of their baithak and inquired about the cause of hurling of abuses. On this Appellants who were standing prepared armed with ballam and lathis started assaulting them as a result of the same, injury was sustained by Tejbir on his chest which was caused by a ballam blow given by Chandra Bose son of Prabhu, Appellant. Tejbir died at the spot. The lathiwalas assaulted other injured persons. None of these lathiwalas had assaulted the deceased. It has been specifically stated by this witness that the Appellants had told him that they will see him today and the incident occurred immediately thereafter. On this exhortation Chandra Bose landed one blow on the chest of the deceased and thereafter ran away from the spot. They snatched the lathis from some of the assailants after the fall of Tejbir on the ground and plied them in their defence. It has been stated by him that he had not seen any injury upon any of the Appellants. The statement, contained in para 10 of this witness clearly indicates that some dispute was already going on between the parties in respect of the well from where both the parties were taking water. It is also apparent that the Appellants'' side was residing in the vicinity of the informant and their family members were taking water from that well. It has been clearly admitted by this witness that the Appellants were preventing him from taking water from the well for the last six years. He had never lodged any report or complained any where about this act of the Appellants. From the tenor of his evidence, it is apparent that the Appellants were claiming the well as their own. It is admitted by this witness that he has not transcribed either in his F.I.R. or stated to the Investigating Officer that the assailants told him that they will see him today. He has also further admitted that he had told the scribe of the F.I.R. that Chandra Bose ran away from the spot after giving one ballam blow to the deceased Tejbir. If it is not there in the F.I.R. he cannot offer any explanation. This fact, from the statement, is apparent that he had not disclosed even to the Investigating Officer in the deposition u/s 161, Cr. P.C. They have defended themselves after snatching lathis from some of the accused persons is also not there either in the F.I.R. or in the Section 161, Cr. P.C. statement. From these discussions one thing becomes very clear that this witness in particular is not coming out with true facts with regard to the initiation of the incident rather he has been jealously suppressing the same. If the prosecution had defended itself against the Appellants by snatching weapons from them itself, we are not able to comprehend why this fact is not there either in the F.I.R. that was dictated by this witness or in his statement to the Investigating Officer. These are crucial facts in the determination of aggression. Apart from this omission the fact of Chandra Bose giving the ballam blow on the chest of the deceased and thereafter running away is yet another important omission on his part which further weakens his testimony regarding the manner of commencement of the assault and even about, the actual number of participants. The story of running away of Chandra Bose after he injured Tejbir is an introduction as an afterthought. Thus not only that the prosecution had materially developed and improved its version from the F.I.R. and the investigation stage but also the fact that it has tried to explain the injuries of the defence in a manner which is wholly improper and unacceptable. In the circumstances, we find ourselves unable to accept this explanation for the defence injuries. Furthermore, this witness had stated that they have protected themselves by snatching the lathis from some of the assailants. On the side of the prosecution, there were only four persons and all these four persons were wholly unarmed whereas the assailants were 10 in number. It does not, therefore, stand to reason as to how injuries larger in number were caused upon the Appellants than the prosecution. Only 5 lacerated wounds were sustained by three persons on their side and nine lacerated wounds and contusions by as many as five persons on the defence side were suffered. They have not explained what happened to the weapons they had snatched. Neither any such weapon was deposited by them at the police station nor given to the Investigating Officer on his arrival at the spot or recovered by the Investigating Officer himself from the spot. Presence of all these circumstances lead us to no other inference than that this witness is not reliable. He has deliberately suppressed the genesis of the assault and offered a wholly ingenious explanation for the defence injuries.
9. P.W. 2 Inder stands no better than P.W. 1 Bhup Singh. He has supported the prosecution story in its totality as brought about in the trial court. This witness has gone on to state that Prabhu had wielded his ballam as a lathi. He had further blindly supported P.W. 1 in so far as the explanation of the defence injuries is concerned, i.e., that they had snatched the lathis from some of the accused persons and plied them in defence of their person. On being enquired that what happened to those lathis, he is unable to explain. He has further stated that when they came out, they did not see any of the assailants armed with weapons, the assailants were sitting empty handed when the abuses were exchanged amongst the women folk. The weapons were lying in the contiguous room. On their request not to abuse, the assailants brought out the weapons from the kothari and started assaulting them. The assault continued for 2-3 minutes. Thereafter Chandra Bose struck a ballam blow on Tejbir and ran away. No further assault took place after injury to Tejbir was caused. In this manner this witness has contradicted the statement of P.W. 1 materially on the issue of Chandra Bose initiating the marpit. This witness has further stated a most unusual fact that the assailants were plying their weapons indiscriminately and they were receiving the injuries but they have not moved from their position. In an assault the natural instinct of self preservation immediately overcomes the recipient of the blows and he either will run away or protect himself. The injuries received by these three persons from the side of prosecution are nowhere but on the palms or on the lower parts of the hands. This further dispels their case that they had plied lathis by snatching the same from some of the accused persons. He had also not stated to the Investigating Officer that the accused persons had told that they will see him today nor the fact that Chandra Bose ran away from the spot after giving the solitary ballam blow. He has concealed the facts because he is the uncle of the deceased and brother of P.W. 1.
10. Taking up the statement of P.W. 3 Rajbiri, she happened to be the niece of Bhup Singh. Her father and the informant were brothers. She has come out with altogether a different case. With regard to the cause behind the incident she had stated that she was bringing water from the well which was on her land. This was neither the case taken up by P.W. 1 nor P.W. 2 who were her close relations. She had supported P.W. 1 and P.W. 2 with regard to the part played by Chandra Bose and also their statement that they plied lathis after snatching the same from some of the Appellants in their defence. None of the witnesses have categorically stated that as a result of plying of the lathis any of the accused persons sustained injuries. They preferred to be evasive on this point. She has also admitted that Prabhu was preventing them from taking water from that well for the last two years. The allegation that earlier also marpit amongst them had taken place was denied by her. She had stated that as soon as the marpit started, she ran into her house. This fact is quite contrary to the statement of P.W. 2 who said that she went behind some house and had seen the incident from that place. If she had gone from there, how she stated the role attributed to Chandra Bose. In the circumstances, the testimony of this witness also suffers from the same infirmities with which the evidence of other two witnesses suffer. She also cannot be relied upon.
11. The most vital question that arises for consideration in this case is whether the prosecution has satisfactorily explained the injuries of the defence and if not, what shall be the effect of this failure on the evidence of the prosecution witnesses. As already discussed by us while dealing with the evidence of the three eye-witnesses, the material circumstances, such as improvement in the prosecution case with regard to the explanation of the injuries of the defence side, as many as five persons were injured, their injuries have not been satisfactorily explained. They had sustained five lacerated wounds, one incised wound, three contusions excluding the abrasions which were four in number. So far as the prosecution side is concerned, three persons had sustained five lacerated injuries leaving apart single abrasion sustained by Binnani. Thus the injuries sustained by five persons on the side of the defence are larger in number than the injuries sustained from the side of the prosecution. The difference in number on both the sides is of importance. Four persons were on prosecution side and they all were empty handed whereas ten persons were on defence side, two of them were armed with ballam and rest were armed with lathis. All of them were ready to assault. This lesser number of injuries on the prosecution leads us clearly to the inference that they are suppressing not only the genesis of marpit but also the reason behind it and the manner in which it has occurred. What appears probable from the evidence of the witnesses is that the defence was preventing the prosecution side from taking water from the well in dispute and the prosecution side was bent upon to take water from that very well by force. That being so, the prosecution evidence is to be rejected as a whole. The other improvements such as role of Chandra Bose which does not find place either in the F.I.R. or in the statement u/s 161, Cr. P.C. of the three witnesses and the fact that Prabhu plied ballam from its reverse side along with case of snatching of lathis and plying the same in their self-defence are proved to be false. In the circumstances the failure of the prosecution to explain the injuries of five persons from the side of defence will be having a material effect upon the truthfulness of the prosecution story. Not only this even, the authenticity of the F.I.R. in this case has also become suspicious. According to the prosecution, the F.I.R. was lodged at 8.15 p.m. at police station Chandpur by P.W. 1. The Sub-Inspector had arrived at the scene of occurrence at 11 p.m. The inquest was completed by 11.55 p.m. The dead body was handed over to constables immediately thereafter. The body was not taken to the mortuary by the constable throughout the night. They started from the place of occurrence in the morning at 6 a.m. They reached the mortuary and handed over the body at 10.10 a.m. but the statement of P.W. 4, Dr. H. U. K. Bunari shows that the papers were handed over to him at about 2.30 p.m. No satisfactory explanation was offered by the prosecution for not starting the journey to the mortuary of the dead body immediately on its receipt and why it was detained at the spot till 6 a.m. These are the circumstances which rendered the authenticity of the prosecution evidence and the version as brought out in the F.I.R. to be highly doubtful.
12. Learned Counsel for the State Sri A. K. Jain had argued before us that the defence has also come up with absolutely false version and, therefore, the prosecution stands fortified in its version. It is settled law that the falsity or weakness of the defence is no ground for the strengthening of the prosecution. The law is that the prosecution has to stand or fall on its own. It cannot gain support from failure or weaknesses of the defence. We have already held that the prosecution in this case appears to have miserably failed in establishing its version beyond the pale of doubt.
13. In the result, this appeal is allowed. The conviction and sentences passed upon these Appellants for the offences for which they were charged are hereby set aside and they are acquitted. They are on bail, they need not surrender, their bail bonds are cancelled and sureties discharged.
