Nar Singh and others vs State of M. P.

Chandra Pal Singh, J.—The appellants were charged with and tried for offences punishable u/s 307 read with section 149 Indian Penal Code and section 148 Indian Penal Code for having, while being armed with deadly weapons like a gun, an axe and lathis on 19-2-1977 between 7 and 8 a. m. near village Rupkheda, formed an unlawful assembly whose common object was to cause death of Govind (P. W. 1) and in the prosecution of that common object of them, the appellant Narsingh firing his gun at Govind and the members of the unlawful assembly grievously injuring him under such circumstances that had Govind died, they would have been guilty of his murder, before the Additional Sections Judge, Mandlesbwar in Sessions Trial No. 133 of 1977, who finding all the appellants guilty of offence punishable u/s 307 read with section 149 Indian Penal Code, has sentenced each of them to rigorous imprisonment for seven years and of them Nasingh and Sakharam in addition guilty of offence punishable under session 148, Indian Penal Code has sentenced each of them to rigorous imprisonment for one year and Rs 300/-fine failing the payment of which he is to further undergo rigorous imprisonment for three months and the rest of the appellants in addition guilty of offence punishable u/s 147 Indian Penal Code has sentenced each of them to rigorous imprisonment for six months with Rs. 200/-fine failing the payment of which he is to undergo further rigorous imprisonment for one month. The substantive sentences are to run concurrently. They appeal.

The daughter of Govind (P. W. 1) had been betrothed to the son of the appellant Narsingh enabling the appellant Narsingh to often visit Govind P. W. 1''s house leading to his intimate relations with Govind''s wife. Govind (P. W. 1) coming to know of it stopped the appellant Narsingh from visiting his house. This led to strained relations between Govind (P. W. 1) and the members of his family on the one hand and the appellant Narsingh, the members of his family and his servants on the other hand. It was in this context that on 19-2-1977, the appellant Narsingh being armed with his 12 bore gun, the appellant Sakharam with an axe and the rest of them with lathis unlawfully assembled by the side of a well in one Laxman''s field in the neighborhood of Govind--P W. 1''s field, where or near bout each other Govind (P. W. 1), Sitaram (P W. 3). Shambhu (P. W. 4), Bhagwan (P W. 5) and Gopal (P. W. 12) were working. The appellants started abusing Govind (P. W. 1) and throwing stones at him injuring Sitaram (P, W. 3). When Govind protested, the appellant Narsingh fired his gun at Govind injuring his legs enta(sic)tying his fall on the ground. Seeing this, the companions of Govind (P. W. 1) abandoning him, fled away to take refuge in the village. The appellants then surrounding Govind (P. W. 1) thoroughly beat him. They then with their weapons ran back home.

Soon after the appellant Narsingh on his motor cycle hurried to Balakwada Police Station at a distance of 6 k. m. where he at 10 a.m. lodged a report (Ex. D. 8) recorded by Govindsingh (P. W. 15) Station House Officer complaining that while he had gone to his field in the morning, Bhagwan (P. W. 5) and Govind P.W. 1) were loading cotton in their bullock cart. On seeing him, they started abusing and pelting stones at him He shouted protesting why he was being beaten attracting Sitaram (P. W. 3), Shambhu (P.W. 4) and Gopal (P. W. 12) to the scene. Bhagwan (P. W. 5) was armed with an iron rod. Govind (P.W. 1) with an axe, Sitaram (P.W. 3) with a lathi and Shambhu (P. W. 4) and Gopal (P.W. 12) had pieces of stones. They surrounded him. Bhagwan (P. W. 5) dealt an iron rod blow on his right wrist and Govind (P. W. 1) an axe blow by its blunt side on his right waist. He snatched the axe from him. On hearing the hue and cry, the appellant Sakharam and one Rajar m and others came there and rescued him. Govind (P. W. 1) suspected (Narsingh''s) illicit relations with his (Govind''s) wife.

In the meantime, the severely injured Govind (P. W. 1) was taken in a bullock cart to Balakwada Police Station, where he lodged the first information report (Ex. P. 1) again recorded by Govindsingh (P. W. 15) containing among others the fact of his at the time of the incident being armed with an axe which the appellant Narsingh had snatched from him. Dr. Abdul Khalik Siddique (P. W. 17), the same day at 1.30 p. m. examined Govind (P. W. 1) and found that he had three lacerated wounds adjoining each other on the occipital-parietal region, 3 "x 1/2" x bone deep, 2-1/2 x 1/2" x bone deep and 2" x 1/2" x bone deep, six bruises on the right forearm, left fore and upper arm, both lower limps (tibial and fibular areas) with marked tenderness with blood oozing out from the skin of wounds which were 1" deep, left side of the back of the lower chest left shoulder and the left arm. Apart from these injuries, there was tenderness and swelling on the ring linger at its root. These injuries, in his opinion, could have been caused by hard and blunt object and they were of 23 hours'' duration. He found injury No. 5 the bruise with small lacerated wound 3 or 4 on both the lower limbs (tibial and fibular areas) with marked tenderness and blood oozing from wound 1" deep with roundish and irregular margins, very small in size and like pin points. They could not be measured but their depth was about 1" on the front side. He admitted that they were penetrating wounds and penetrating wounds could be caused by pellets of gun cartridges. He did not consider them to be gun shot wounds because gun shot wounds, according to him would have been through and through.

Dr. A. K. Datta (P. W. 16) on taking the X-ray photographs of Govind--P. W. 1''s skull, right forearm, left hand and the legs (with the help of skiagrams--Ex. P. 32, P. 33, P. 34, P. 35. P. 36 and P. 37) found that there were fractures of parietal, middle ulna shaft, head of metacarpals, proximal phalanx of fourth finger, communited fracture of tibia and fibula middle, fibula lower forth and right tibia.

The appellants were arrested. At the instance of the appellant Nar-Singh, an axe, and a lathi at the instance of each of the other appellants was seized.

Dr. S.C. Jaini (P. W. 2), the same day earlier at 12.20 p. m. on examining Sitaram (P. W. 3) at Kasrawad Primary Health Centre had found that Sitaram had a contusion on the right arm and two lacerated wounds on the scalp All the injuries were simple and capable of being caused by hard and blunt object. The duration of the injuries was between 4 and 8 hours. The appellant Narsingh was also examined by Dr Jaini at 3 20 p. m. the same day. The appellant Narsingh had two abrasions with contusions on the right forearm and right iliac fosa and a contusion on the left leg. All the injuries were simple and capable of being caused by hard and blunt object. The duration of the injuries was between 8 to 10 hours. The injuries could be caused by pelting of stones In between on discovery that in Govind''s first information report (Ex. P. 1), there had been no reference made to the appellant Narsingh having shot at him with his gun, the matter was reported vide Ex. P. 42 and the latter part of the investigation was, therefore, concluded by Manoharraoji (P. W. 18), who seized the gun with one license from the appellant Narsingh. The gun was sent to the Ballistic Expert, who vide his report (Ex.D. 9) found that the combustion products of gun powder were not present in the swab.

On these facts when charged with and tried for offences punishable under sections 307 with the help of section 149 and 148 Indian Penal Code and section 27 of the Arms Act. The defense of the appellants was that they had been falsely implicated due to enmity. Of them, the appellant Narsingh explained that on the date of the incident he had alone gone to his field. There were Gopal (P. W. 12), Govind (P. W. 1), Shambhu (P. W. 4), Bhagwan (P.W. 5) and S. taram (P.W. 3) there. They came towards his field. They started abusing and pelting stones. He ran towards his field. They came running and surrounded him. Bhagwan (P. W. 5) dealt his iron rod on his head and Govind (P. W. 1) an axe blow When Govind attempted to deal yet another blow with the axe, he snatched / that axe from him the others were pelting stones. He thereafter cam; back running home. One Rajaram had also by that time come there. He related the event to the persons and then went to the dispensary at Kasrawad for his treatment.

The learned Additional Sessions Judge relying upon the eye witness account given by Govind (P.W. 1) and Sitaram (P. W. 3) the two injured, Shambhu (P. W. 4) and Bhagwan (P. W. 5) and the corroborative evidence of Gopal (P. W. 12) and particularly the medical evidence finding the appellants guilty of offence punishable u/s 147 or 148 Indian Penal Code depending upon the nature of weapons they had used and section 307/149 Indian Penal Code, sentenced them as already pointed out.

The question for decision by me is whether the appellants have been rightly found guilty of those offences and rightly punished for them.

The offences punishable u/s 147 or 148 Indian Penal Code and the principle of constructive criminal responsibility laid down in section 149 Indian Penal Code have four elements in common. They are :

(i) Assembly of five or more persons;

(ii) All of them having a common object;

(iii) That object being one of those laid down in section 141 Indian Penal Code or generally speaking to commit any offence; and

(iv) That assembly using force or violence in the prosecution of the common object of the assembly.

As regards sections 147 and 148 Indian Penal Code, section 147 prescribes punishment for simple rioting, whereas section 148 prescribes enhanced punishment to one, who while committing rioting is armed with a deadly weapon or with anything which used as a weapon of offence is likely to cause death. It is not necessary that the deadly weapon or anything which used as a weapon of offence is likely to cause death was actually used in the rioting. It would, suffice, if it was merely displayed.

The appellants Narsingh and Sakharam have been held guilty of offence punishable u/s 148 Indian Penal Code because they have been found to have used a gun and an are respectively while being members along with the other appellants of an unlawful assembly whose common object was to murder Govind (P.W. 1) (and Sitaram - P.W. 3), and in the prosecution of that common object to a great degree succeeding. The trouble is that the first information report (Ex. P. 1) duly proved by Govindsingh (P.W. 15) does not make any reference to either of these weapons being held by the concerned appellants. Even during the initial investigation by Govindsingh (P.W. 15) the concerned witnesses Govind (P W. 1), Sitaram (P.W. 3) Shambhu (P.W. 4) and Bhagwan (PW. 5) vide their statements contained in the document (Ex. D/10, D/11, D/12 and D/13) respectively did not claim that either of the concerned appellants was armed with these weapons. It is quite likely that Govindsingh (P.W. 15) had not recorded the first information report (Ex. P. 1) faithfully, influenced probably by the complaint (Ex D. 8) made by the appellant Narsingh earlier at the Police Station and it could be that while interrogating these witnesses he chose to omit to record in their statements the fact of the appellant Narsingh having used a gun or the appellant Sakharam an axe during the commission of the offences. It is again quite likely that for the same reasons he taking advantage of the illiteracy of Govind (P.W. 1), who had put merely his thumb impression on the first information report recorded in it, among others, the fact of his carrying an axe which the appellant Narsingh had snatched from him (vide A to A in Ex P. 1) (without probably reading it over to Govind-P.W. 1 as deposed by him vide para 17 of his deposition) The additional reason for the Investigating Officer Govindsingh (P W. 15) for taking a casual approach to the report of Govind (P.W. 1) could have been that he had not thought the injuries sustained by Govind (P.W. 1) or Sitaram (P.W. 3) serious enough as according to Sitaram (P.W. 3) who had arrived earlier at the Police Station, the Investigating Officer Govindsingh had refused to record his report saying ironically that what was the hurry inlodging a report as he (Sitaram) was not going to die. (See Sitaram''s evidence contained in para 2).

Be it as it may, neither the first information report nor what has been stated to the Investigating Officer during investigation by the witnesses constitute substantive evidence. Its the evidence before the Court which is substantive. In a suitable case, therefore, if it is shown that the Investigating Officer has deliberately chosen to help the accused, or has otherwise under pressing reasons deliberately recorded facts contrary to those stated by the person lodging the first information report or other persons interrogated during investigation such deliberate false records cannot be lightly used to deflect the course of justice. Their Lordships of the Supreme Court in Baladin and Others Vs. State of Uttar Pradesh, while dealing with a Sub-Inspector, who was not honest and faithful (to his duties) came to observe as follows :--

Thus the police officer was allowed by the High Court to succeed in his effort to favour the accused. Ordinarily accused persons are entitled to challenge the testimony of witnesses examined in Court with reference to the statements said to have been made by them before the investigating police officer. Statements made by prosecution witnesses before the investigating police officers being the earliest statements made by them with reference to the facts of the occurrence are valuable material for testing the veracity of the witnesses examined in Court, with part collar reference to those statements which happen to be at variance with their earlier statements; but the statements made during police investigation are not substantive evidence.

Hence the record made by a Police investigating officer has to be considered by the Court only with a view to weighing the evidence actually adduced in Court. If the police record becomes suspect or unreliable, as in the present, case, on the ground that it was deliberately perfunctory or dishonest, it loses much of its value and the Court in judging the case of a particular accused has to weigh the evidence given against him in Court keeping in view the fact that the earlier statements of witnesses as recorded by the police is tainted record and has not as great a value as it otherwise would have in weighing all the material on the record as against each individual accused.

In this case, however, it is not only on account of the infirmity in the first information report (Ex P. 1) or the statement of the concern-witnesses during investigation that the possession of the concerned deadly weapons by the appellants becomes doubtful. It is also due to other inherent weaknesses in the prosecution case that it becomes doubtful.

To illustrate, Govind (P. W. 1) deposes to appellant Sakharam''s dealing an axe blow on his head and so is the evidence of Sitaram (PW 3) to the effect that the appellant Sakharam had dealt an axe blow on Govind (P. W. 1) (without specifying that it was ''Govind''s head) There is no corroboration of their testimony in the evidence or Dr. A. K; Siddique (P W. 17) who had not found even a single incised injury on Govind when he had examined him the same afternoon at 1.30 p. m. In his opinion, all injuries to Govind were capable of being caused by a hard and blunt object. An axe undoubtedly had been seized but it had been seized from the appellant Narsingh and not from the appellant Sakharam. (See the evidence of Nathu P. W. 9 and the document Ex. P. 8 the memo seizing it) implying that after all the version of the appellant Narsingh in the document (Ex. D. 8) and the version of the injured Govind (P.W. 1) in Ex. P. 1 regarding the appellant Narsingh having snatched the axe from Govind (P.W. 1) was the true one so as to make the seizure of the axe from Narsingh later on possible.

With regard to the appellant Nar Singh firing a gun, even though all the witnesses Govind (P. W. 1), Sitaram (P. W. 3), Shambhu (P.W. 4) and Bhagwan (P.W. 5) claim that the appellant had shot at Govind injuring his legs which Govind (P. W. 1) had not stated in his first information report (Ex. P. I) and he along with ''others had not stated during investigation at any rate when interrogated by Govindsingh (P.W. 15) vide documents (Ex. D. 10, D. 11, D. 12 and D. 13), there is no independent corroboration. The learned trial Judge has construed the evidence of Dr. Siddique (P.W. 17) contained particularly in Para. 4, ignoring what this witness had stated to begin with, to mean that the injuries on the legs of Govind (P.W. 1) were gunshot wounds. Dr. Siddique (P. W. 17) had described injury No. 5 as bruise (with small lacerated wounds 30 or 4) on both the lower limbs (tibial and fibular areas) with marked tenderness and blood oozing from skin wound 1" deep from the front side But his opinion was specific that all the injuries sustained by Govind (P.W. 1) were capable of being caused by a hard and blunt object. His opinion about these injuries was that they could have been probably caused by stones. On seeing the depth of these four or five wounds, he thought that they could be called as penetrating wounds but admitted that he had not mentioned that they were so. He agreed that a penetrating wound could be caused by pellets of a gun cartridge but he did not think the wounds in question to be gun shot wounds because they were only on one side of the skin. Had they been gun shot wounds, they would have been through and through and he had not found any through and through wound. There was also no smoke found around the wounds.

Some of the conclusions of Dr. Siddique may be wrong because it is not an invariable rule that there should be two wounds of entrance and exit when it is caused by a fire arm It may be that sometimes and particularly when the velocity of a pellet is not high or when it comes to strike against a bone, there may not be any wound of exit. But in that case it is normally expected that the pellet or its fragments would be found embedded near about the wound in the body. If on the other hand the pellet had not succeeded in breaking the bone through and through but had only just hit it, again depending upon its velocity, such pellet or its fragments would be found near about the person, who has been fired at. There is no corroborative evidence regarding any pellets or their fragments having been found either at the place of incident or in the affected part of the body of Govind (P.W. 1). Dr. Siddique (P.W. 17) had found the margins of these injuries to be irregular. The margins usually are smooth and inverted in the case of wound of entrance.

Dr. A. K. Datta (P. W. 16) had taken the X-ray photographs among others of the right leg and left leg and found the fractures of right Tibia Fibula bones in the middle and fracture of the left Tibia. He could not give any opinion regarding the nature of these injuries because they were stitched. He did not remember whether the injuries sustained on Govind''g legs were caused by pellets. The bare perusal of the X-ray photographs Ex.P. 37) shows that the injuries to the legs could not have been caused by pellets.

Finally, as proved by Manoharraoji (P.W. 18), the Sub-Inspector who had taken over the investigation pursuant to a complaint against Govind Singh (P. W. 15) he had seized from the appellant Narsingh his gun and license (vide Ex P. 24). This gun had been sent for its examination by the Ballistic Expert. The Ballistic Expert''s report contained in the document (Ex D. 9) discloses that the gun on being tested for nitrate sulphate, lead and iron gave negative results without any combustion products of gun powder being present in the swab.

From the foregoing evaluation of evidence, it is doubtful that either the appellant Narsingh was armed with a gun or the appellant Sakharam with an axe at the time of the alleged offence of committing rioting. Neither of them has, therefore, committed the offence punishable u/s 148 Indian Penal Code.

As regards the question of the appellants being guilty of offences punishable u/s 147 or section 307/140 Indian Penal Code, it has already been seen that the offence of rioting made punishable u/s 147 and section 149 Indian Penal Code laying down a principle of constructive criminal responsibility have four common elements. To distinguish the principle of joint criminal responsibility contained in section 34 Indian Penal Code from the one laid down in section 149 Indian Penal Code, the feature of "common intention" in section 34 and the ''common object'' in section 149 Indian Penal Code, participation of two or more in section 34 and at least of five in section 149, and the enlarged scope of criminal responsibility u/s 149 Indian Penal Code because of the words ''or such as the members of that assembly knew to be likely to be committed in prosecution of that object'' are easily comprehensible. But it has been sometimes held that section 149 creates a specific offence. If it is a specific offence in the sense of having a special determining quality as is the ordinary meaning of the word ''specific''. So has the section 34 Indian Penal Code. Section 149 Indian Penal Code does not in itself define and make punishable any specific offence See Nilmony Poddar and others v. Queen Empress ILR 16 Cal. 442 at page 448 per Tottenham, J. The punishment depends on the offence actually committed. It therefore, follows that provided that other conditions exists section 149 takes the color of the offence actually committed so as to make the other constituent members of the unlawful assembly responsible for that offence. It does not matter that the offence is committed by any one of them or some of them or all of them.

Turning to the evidence: Govind (PW 1), Sitaram (PW 3), Shambhu (PW 4) and Bhagwan (PW 5) corroborating each other establish that it was all the appellants who had assembled near the newly dug well of one Gangaram. All of them, barring the appellant Narsingh and Sakharam, who were armed with a gun and an axe were armed with sticks. They started abusing Govind (PW 1) They pelted stones on him which struck Sitaram (PW3) There is corroboration of this fact of Sitaram being injured in the independent evidence of Dr. S.C. Jaini (PW2) who, as already noted, had found three injuries on his person capable of being caused by a hard and a blunt object(sic)is evidence later on is specific that all injuries to Sitaram could have been caused by pelting of stones (Par. 2 of Dr. Jaini (PW 2''s deposition). Their further evidence is regarding the firing of gun which, as already seen, is not believable. But then their evidence is that the assembled people had beaten Govind with sticks. There is corroboration of this fact by the independent evidence of Dr. A. K. Siddique (PW 17), which has already been referred to in detail while narrating facts. There is further corroboration in the evidence of Dr. A. K. Datta (PW 16) who as already seen, had found Govind''s parietal middle ulna shaft, head of metacarpals, proximal phalanx of fourth finger and middle fibula fractured with a communited fracture of the right tibia and fibula bones. There is nothing in the cross-examination of these witnesses to indicate that they are not trustworthy so far as the participation of the appellants in the assembly is concerned. Even the appellant Narsingh by his conduct in lodging the report (Ex. D-8) and in his explanation has admitted his having come across all these witnesses, when he happened to snatch the axe from Govind (PW 1).

There is, therefore, no doubt in coming to the conclusion that as related by these witnesses Sitaram had come to sustained injuries as a result of pieces on stones being thrown at him by some of the appellants and Govind (PW 1) came to sustain several grievous injuries including the fracture of him parietal bone as a result of beating given to him by, at any rate, most of the appellants. The injuries sustained by Govind (PW 1) in the opinion of Dr. A. K. Siddique (PW 17) (referring to particularly injury No. 1 lacerated wound on the occipito-parital region) were sufficient to cause death in ordinary course of nature. (See paragraph 9 of his deposition). His evidence regarding injury No. 5 entailing the fractures of tibia and fibula bones being sufficient to cause Govind''s death in the ordinary course of nature is not convincing even though he did not agree that the facture of tibia and fibula on both the sides could not cause death He however, later on agreed that he mentioned injury No. 5 to be sufficient to cause death in the ordinary course of nature because of his suspecting fractures in that injury.

The argument for the appellants is that independent witnesses though available were not examined. A particular reference has been made in that regard to the disclosures made by Shambhu (PW 4) and Bhagwan (PW 5) in the documents (Ex. D-12 and D. 13). Both these witnesses no doubt during investigation had told about the presence of one Sukhlal but according to Shambhu he was merely proceeding towards the village Sonkhedi. No particular number of witnesses is required to prove a fact, at any rate, the type of fact in question here. The prosecution is not bound to examine each and every witness so as to make a trial unnecessarily protracted. Before a presumption u/s 114(g) of the Indian Evidence Act to the effect that the evidence which could be and is not produced would if produced be unfavorable to the person who with held it, could arise, it has to be first shown that the evidence withheld was to the unfolding of the narrative on which the prosecution is based. The duty of the prosecutor is to assist the Court in reaching a proper conclusion. He has of course not to adopt the device of keeping back an eye-witness only because it is likely to go against the prosecution. But when there is a large number of witnesses to an incident, he need not examine them all and certainly not those who had after the event happened to pass that way, as appears to be the case with the non-examined Sukhlal.

It is true as contended by the learned counsel for the appellants that the concerned witnesses are related to each other, Relationship in itself is not a criterion for discarding evidence, which otherwise is reliable and comes from one who normally could have been expected to have witnessed the event. In this case the evidence of all the concerned witnesses is that they in the morning had gone to the field and were engaging themselves in their respective fields near about each other. Even the appellant Narsingh from his conduct and his explanation has shown that these witnesses were there though, according to him, it was these witnesses, who had taken the initiative and injured him.

That takes us to the defense of the appellants particularly of Narsingh Clearly noted Dr. S. C. Jaini (PW 2) had found that the appellant Narsingh had two abrasions with contusions on the right forearm 1/2"x1/2" and on right iliac fossa 3"x 2" and a contusion on left leg at calf region, even though there is some difference regarding the description of these injuries sustained by the appellant himself. For example, in his report contained in Ex D-8 he had stated about only two injuries one by means of an iron rod on his right wrist at the instance of Bhagwan (PW 5) and the other on his right side of the waist by the blunt part of an axe by Govind (PW 1) (without making any referred to the third injury on left leg at calf region as stated by Dr Jaini) and in his explanation u/s 313 an injury by means of an iron rod at the instance of Bhagwan on his head and another injury by means of an axe (without specifying that it was with its blunt part) inflicted by Govind (PW 1). The fact, however, remains that in all probability he had sustained three injuries during the same transaction. Neither of the witnesses for the prosecution has given any explanation regarding these injuries

Non-explanation of the injuries sustained by the accused ordinarily gives rise to the inference that (i) the prosecution has suppressed a true version; (ii) the witnesses are lying on a most material point thereby making their evidence suspect, and (iii) in case there is defense version explaining the injuries on the accused that explanation is rendered probable. Whereas the prosecution has to prove its case beyond reasonable doubt, a mere preponderance of evidence or balance of probabilities would be sufficient to establish the innocence of an accused.

The question is whether the explanation given by the appellant Narsingh is plausible. His explanation, to repeat, is that that morning he had alone gone to his field. There were Gopal (P.W. 12), Govind (P.W. 1), Shambhu (P. W. 4) Bhagwan (P.W. 5) and Sitaram (P. W. 3) there. They came towards his field. They started abusing and pelting stones. He ran towards his field. They came running and surrounded him. Bhagwan (P.W. 5) dealt his iron rod on his head and Govind an axe blow. When Govind attempted to deal another blow with his axe he snatched that axe from him. The others were pelting stones. He thereafter came back running home.

Part of his explanation that he alone had gone to his field in the face of rather overwhelming evidence, particularly in the context of numerous injuries sustained by Sitaram (P.W. 3) and Govind (P. W. 1) is not believable. Similarly the part of the explanation that the prosecution witnesses--Govind (P.W. I), Sitaram (P.W. 3), Shambhu (P W. 4), Bhagwan (P.W. 5) and Gopal (PW. 12) had come towards his field is not believable. The site-plan (Ex.P. 23) prepared by Chhaganlal (P.W. 10) describes survey No, 80 as the field of the injured Govind (P.W. 1) and in survey No. 108 is the well. The place of the incident has been described to be in survey No. 80. Chhaganlal (P.W. 10) of course did not furnish substantive evidence, in the sense of being an eye witness, but on reading the site-plan along with the evidence of eye-witnesses there remains no doubt that the place of incident is situated in the field of Govind (P. W. 1). The evidence of Mayaram (P.W. 13) contained in paragraph 5 further corroborates the fact that Govind (P.W. 1) was lying 15 to 20 feet away from the path in his field. The fact is yet further corroborated by Laxman (P.W. 14), who was a witness to the site-plan (Ex. P. 26) prepared by the Police. It describes the place of incident at No, 1 situated in the field of Govind (P.W. 1). Thus there is no doubt that instead of witnesses (Govind (P.W. 1), Shambhu (P. W. 4), Bhagwan (P. W. 5), Sitaram (P. W. 3) and Gopal (PW. 1.2) going to the appellant Narsing''s field, it was Narsingh and his companions, who abusing and pelting stones had gone to Govind (P. W. 1) while he was in his field. In the same context the part of the explanation of the appellant Narsingh that these witnesses had come running and surrounded him is not believable. It was the other way round.

On evaluation of the entire evidence for the prosecution on the one hand and the explanation of the appellant Narsingh together with the entire evidence for the defense, in my judgment it was the appellants, who being armed mainly with lathis abusing Govind (P.W., 1) had rushed towards him unitedly while Govind (P.W. 1) was working in his field having his axe as ordinarily farmers carry. In the process of approaching Govind, some of them had pelted stones injuring Sitaram (P.W. 3) and after surrounding Govind started thoroughly beating him during the course of which Govind (P.W. 1), with his axe had tried to defend himself but to no great avail as his axe had been snatched by the appellant Narsingh. The other eye-witnesses, apprehending danger that awaited them had they continued to be with Govind (P. W. 1) took to heels and while running away pelted stones (sic)injuring the appellant Narsingh though only mildly. The appellants after seeing that their intended victim Govind (P. W. 1) had been severely injured and lay helpless on the ground, abandoning him, went away. The appellant Narsingh to impart the color that he instead was the victim hurried on his motor-cycle to lodge the report (Ex. D. 8) at Balakwada Police Station. It is in my judgment a case where the circumstances themselves explain the minor injuries sustained by the accused Narsingh. The law is not that every non-explanation even of a minor injury becomes fatal to the case for the prosecution. It is only those injuries which in fact had been voluntarily or knowingly inflicted by the complainant party on the accused that their non-explanation gives rise to the three inferences already noted.

From the number of injuries sustained by Govind (P. W. 1) they being ten, their nature, entailing eight fractures, particularly the one of the parietal bone--a vital part of human body, lodging brain underneath as a result of inflicting three injuries (See injury No. 1 noted by Dr. Siddiqui (P. W. 17) on that part and the long period which Govind (P. W. 1) had to spend in the hospital, leave me in no doubt that had Govind died of the injuries, each constituent member of the unlawful assembly would have been guilty of his murder. The appellants have rightly been convicted of offence punishable u/s 307/149 Indian Penal Code. Each of them including the appellant Narsingh and Sakharam as already seen has also committed the offence punishable u/s 147 Indian Penal Code.

Since the common object of the unlawful assembly happening to commit rioting was to murder particularly Govind (P. W. 1) because of section 71 Indian Penal Code, it would not be desirable to sentence any of the appellants separately for the offence punishable u/s 147 Indian Penal Code. (See Empress v. Ram Partap--ILR VI) All. 121, the basis among others of decision in AIR 1940 120 (Nagpur) .

"The question of sentence is always a difficult question, requiting as it does, proper adjustment and balancing of various considerations which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realize that he has committed an act which is not only harmful to the society of which he forms an integral pact but is also harmful to his own future, both as individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law-abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal" [ Per I D. Dua, J. in B.G. Goswami Vs. Delhi Administration, ].

The ages of appellants range between 22 and 35 years. Only one of them Sakharam is aged 35 years Others are below 30 years this is the first offence of the kind committed by them. These are the extenuating circumstances and I feel that the punishment of rigorous imprisonment for seven years for the offence punishable u/s 307 read with auction 149, Indian Penal Code is a bit harsh. That sentence is reduced to rigorous imprisonment for five years.

In the result, the appeal is partly allowed. The conviction of the appellants Narsingh and Sakharam for offence punishable u/s 148 Indian Penal Code is set aside, instead they are found guilty of offence punishable u/s 147 Indian Penal Code. The conviction of the other appellants (Ghisia, Sitaram, Chinder, Surjya and Babu) for offence punishable u/s 147 Indian Penal Code is maintained The conviction of each of the appellants for the offence punishable u/s 307 read with section 149 Indian Penal Code is also maintained. Consider-that the common object of unlawful assembly which happened to commit rioting was mainly the murder of Govind (P.W. 1) because of section 71 of the Indian Penal Code, it is not desirable to pass any separate sentence for the offence punishable u/s 147 Indian Penal Code. For offence punishable u/s 307 read with section 149 Indian Penal Code taking into account the extenuating circumstances, each of the appellants shall undergo rigorous imprisonment for five years. The gun and license seized in the case being unconnected with the offence, shall revert to the appellant Naasingh after his imprisonment.