JUDGMENT 1. - This appeal arises out of the judgement of the learned Sessions Judge, Bikaner, dated 29th April, 1972 by which the appellants Megha Ram and Koja Ram were convicted under section 325 Indian Penal Code and each one of them was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.100/- and in default whereof to rigorous imprisonment for three months. I heard arguments and examined the record. 2. The brief facts of the case are that Ram Pratap PW.5 sent a telegram to the S.H.O. Jamser Tehsil Bikaner on 19.7.71 that Megha Ram, Rajuram, Nandram, Deraj Ram of Norangdesar have beaten Rugha Ram and broken his legs. The same witness then appeared before the police station at 3 p.m. and lodged a report Ex. P2 that on 18.7.71 at 6 p.m., the afore said five persons attached his brother Rugha Ram on account of previous litigation and animosity. The witness was in his field and heard the cries of Rugha Ram. He ran towards him and saw that the accused had attacked Rugha Ram Nand Ram was armed with a gun and rest of them were armed with lathis. Nand Ram was standing at a distance and asking the accused not to allow Rugha Ram to escape but to do him to death. Simultaneously, there arrived Shri Ram son of Rugha Ram but by then Rugha Ram had fallen. When both Ram Pratap and Shri Ram shouted and came near the scene of occurrence, the accused ran away. At that time one Ram Kishan and one Kheta Ram were also going towards the fields. When Ram Pratap and Shri Ram approached Rugha Ram, they found him injured in hand, feet and head. They carried him to the3 bus stand from there he was taken to Bikaner Hospital. It appears that he died on 19.7.71. The post mortem examination took place on 20.7.71 at 10 a.m. The medical officer Dr. Mohan Lal Paniya PW.7 found the following injuries on his person: 1. Lacerated wound 'V' shaped middle of left leg anteriorly 1" x 1/4" x skin deep; 2. Lacerated wound 1/2" x 1/4" x bone deep on the front of right leg anteriorly; 3. Lacerated wound 1/2" x 1/4" x bone deep 1/4" lateral injury No. 2; 4. Mohan Lal Paniya PW.7 found the following injuries on his person: 1. Lacerated wound 'V' shaped middle of left leg anteriorly 1" x 1/4" x skin deep; 2. Lacerated wound 1/2" x 1/4" x bone deep on the front of right leg anteriorly; 3. Lacerated wound 1/2" x 1/4" x bone deep 1/4" lateral injury No. 2; 4. Lacerated wound 1/2" x 1/4" x muscle deep on the right leg lower third with deformity; 5. Contusion 4" x 1" on the left thigh middle third; 6. Lacerated wound 1" x 1/10" x scalp deep on the left parietal region; 7. Contusion 4" x 1" on left side chest; 8. Contusion 3" x 1" on left side chest 2" below injury No.7; 9. Contusion 3" x 1" on right fore arm, lower one third; 10. Swelling with deformity and central abrasion 1/2" x 1/4" on the back of left elbow; 11. Bruise 2" x 1" on left arm lower half; 12. Abrasion 1/2" x 1/4" on the left foot; 13. Swelling 1/2" x 1/2" on the right foot distal half' 14. Contusion 4" x 1" on right thigh middle third. 3. Upon opening the body, the Medical Officer found two fractures; one in the leg bones and another in the 4th and 5th toes of the right foot. He also found laceration of the right ventricle of the heart in anterior surface. His opinion was that Ragha Ram died on account of shock and haemorrhage caused by laceration of heart and haemo-pericardium. The fractures of the leg bones had also added to the shock. The post-mortem report is Ex.P2. The police after investigation found that only two persons namely the present appellants were the assailants. They challaned them under section 302 Indian Penal Code. The learned Additional Munsiff Magistrate Bikaner after inquiry committed the accused persons for trial in the court of sessions where they were convicted and sentenced as aforesaid. 4. It will be noticed that at the time of the trial, the prosecution produced Kana Ram PW.1 who was not mentioned in the F.I.R. Shri Ram PW.4 is the son of the deceased, Ram Pratap PW.5 is a brother of the deceased and the first informant, while Meh Ram PW6 is a boy of 14 years. They were alleged to be the eye witnesses of the occurrence. They were alleged to be the eye witnesses of the occurrence. The two persons whose names were mentioned in the F.I.R., namely, Ram Krishan and Kheta Ram were not produced in the witness box. PW.6 Meh Ram's statement Ex. P13 which he made before the committing Magis rate was taken on record of the court of sessions under section 288 Criminal Procedure Code because the boy turned hostile at the time of the trial. 5. The learned counsel for the accused appellants did not seriously contest that Raghu Ram died on account of the injuries which were inflicted upon him. His contention is that Dr. Mohan Lal Pania had stated that he had examined the decreased on the requisition of the police on 18.7.71 when he was brought to the hospital by some employee of the police station, Jammar and he prepared the injury report E#x. P.1. Investigation Officer's statement is that the report of the occurrence was lodged on 19.7.71. It was pointed out that the statement of the medical officer shows that the report was lodged on 18.7.71 but it was reduced to writing on 19.7.71. Thus, the very first information report has become a doubtful piece of evidence. No report of 18.7.71 has been produced. This point was also raised before the learned Session Judge but the judge observed that in this respect the statement of Dr. Mohan Lal Paniya cannot be relied upon because in Ex.P1 there is no mention that the injured was examined upon the requisition of the police. It also appears to me that the injuries were recorded in injury report Ex. P1 on 8.30 p.m. on 18.7.71 but the report to the police was made only on 19.7.71. Therefore, it cannot be said that there was any earlier report with the police which has not been produced or that the report Ex. P1 is of a doubtful veracity. 6. The next objection in this connection is that the F.I.R. was a delayed one because the occurrence took place on 18.7.71 at 6 p.m., while the report was lodged on 19.7.71 at 3 p.m. There is no doubt that some delay in lodging of the report is obvious, and it is also fact that Ram Pratap introduced three innocent persons in the sense that the interval was used for the purposes of concoction. But it does not render the prosecution case false because Ram Pratap has chosen to lodge a report with embellishment. That argument only guess to show that Ram Pratap is not a reliable person. The learned counsel for the appellant in this connection also submitted that according to the site plan Ex. P6 Ram Pratap watched the occurrence from a distance of 200 pavandas i.e. about 1000, and he should not have been able to see the occurrence and identify the assailants clearly. It was Ram Pratap who gave a wire Ex.P18 from Bikaner. In that also, he mentioned 5 persons. He has not mentioned Kana Ram in the F.I.R. though at the trial be had stated that he had seen Kana Ram PW.1 at a distance of 150 pawandas from the place of occurrence when he was running away towards the village. He also saw Megha Ram but both these names he had omitted in the F.I.R. When he was confronted with his F.I.R. Ex.P2, he explained that what he told the police was that the actual assailants were Koja Ram and Megha Ram and that the remaining three persons were instigating them. In the second breath, he stated that those three persons were not at the scene of occurrence. The explanation of the witness was also a very mischievous one in face of the telegram Ex. D18 the contents of which he admitted at the time of the trial. Thus, I agree, with the criticism that the learned trial Judge was clearly in the error by putting reliance upon the statement of Ram Pratap. But the question that still remains is whether the evidence of Kana Ram, Shri Ram and Meh Ram should also not be believed. 7. Before I proceed to examine the3 reliability of these three witnesses, I would like to dispose of the argument that it is a case in which it is not the court which has acquitted three persons and convicted two but it is a case in which the complainant has chosen in the beginning to involve five persons and thereafter to rescue three of them. The entire case was upon the mercy of a witness like Ram Pratap. The entire case was upon the mercy of a witness like Ram Pratap. The learned counsel for the appellants cited Ugar Ahir v. The State of Bihar, AIR 1965 SC 271 wherein it was observed that it is the duty of the court to scrutinise the evidence carefully and separate the grain from the chaff. It cannot disbelieve the substratum of the prosecution case or the material parts of the evidence, and reconstruct a story of its own and out of the rest. The learnt counsel pointed out that the learned trial judge has exactly done what was disfavoured in the aforesaid Supreme Court case i.e. he has reconstructed a story of his own. I do not find that the court has done anything of the kind. It has not reconstructed a story of its own. What it observed is that the prosecution witnesses Shri Ram, Ram Pratap, Meh Ram and Kana Ram have stated the true facts and their statements cannot be discarded. I differ from the learned trial Judge in as much as he has placed reliance upon Ram Pratap. For the reason afore-mentioned, Ram Pratap is a witness wholly unreliable. 8. The learned counsel for the appellant then drew my attention to Balak Singh v. State of Punjab, 1975 CrLR (SC) 369 wherein the Supreme Court observed that where four accused persons were acquitted on evidence of some of the witnesses and it is not possible to separate the chaff from the grain, the other accused cannot be convicted on the same evidence. It may be mentioned that it is not a case in which the two of the accused persons have been convicted and three acquitted on the basis of the self same evidence. As a matter of fact, the case put up before the learned trial Judge was that the appellants alone were responsible for the crime. Yet I agree that in the circumstances of this case the court should separate the grain from the chaff and I find that it is possible to do so in this case. 9. The learned counsel then referred to Karuna karan v. State of Rajasthan, 1976 CrLR (SC) 14 . That was a case of a sole eye witness who too was unreliable. The Court was in doubt as to his testimony with regard to his seeing the accused running away from the scene of occurrence. 9. The learned counsel then referred to Karuna karan v. State of Rajasthan, 1976 CrLR (SC) 14 . That was a case of a sole eye witness who too was unreliable. The Court was in doubt as to his testimony with regard to his seeing the accused running away from the scene of occurrence. When the accused is going to lose his life in a serious charge, it is only necessary that the court should be circumspect and closely scrutinise the evidence of such a witness to come to an unhesitating conclusion that he is absolutely reliable. In this case as will be shown presently that the occurrence was not watched by a sole eye witness. There were other three persons watching the accused attacking the deceased. What the court then, has to see is whether in spite of discarding the evidence of Ram Pratap, the evidence of the remaining witnesses can be believed or not. 10. Let us now examine the evidence of the remaining witnesses. Meh Ram PW6 turned hostile to the prosecution but the learned lower court took into consideration the statement of Meh Ram Ex.P13. In this statement, he had deposed before the Committing Magistrate that he had seen Meghla and Kojia beating Rugha Ram with 'Dang'. He has also stated that at the time he was coming riding his camel, towards, the village from his field. He also saw Shri Ram PW.4 and Ram Pratap PW.5 coming behind him. On seeing them coming, the assailants ran away. He also deposed that Shri Ram asked Rugha Ram about the attack on him, and he said that he was returning with Kana Ram to the village when he was then besieged by the accused. Rugha Ram then asked for water and Shri Ram sent Ram Pratap to bring water from the cart. It was a statement made by the witness long before the came under he influence of the accused. 11. Shri Ram PW.4 son of the deceased Rugha Ram deposed that Koja Ram accused is the brother of one Hukma Ram. Hukma Ram was married to the daughter of the sister of his mother. Hukma Ram maltreated his wife and therefore, her father refused to sen her. That was the cause of the quarrel between Rugha Ram on the one hand and Koja Ram on the other. Hukma Ram was married to the daughter of the sister of his mother. Hukma Ram maltreated his wife and therefore, her father refused to sen her. That was the cause of the quarrel between Rugha Ram on the one hand and Koja Ram on the other. There was also some quarrel regarding the boundaries of their fields. He stated that at the time of the occurrence Meh Ram PW6 was going ahead of him on the camel. He heard the cries of "MARE MARE' and immediately he saw that the appellants were showering lathis on his father Rugha Ram. At that time Ram Pratap also arrived there. He asked his father about the occurrence. Then Rugha Ram said that he had come to leave his cows to graze. When he left it near the 'Johad' and returned Kana Ram also came along with them. Then Megha Ram and Koja Ram, who were hiding on the side of 'Johad' came from behind and began to attack. The witness proceeded to say that his father was brought to the bus-stand and sent to Bikaner with Ram Pratap. He met the police in Bikaner hospital next day. In cross examination, he deposed that there were two parties in Norangdesar, one consisting of all Jats let by deceased Rugha Ram and the other by Shri Ram Kumbar who was the sarpanch of the village. Megha Ram and Koja Ram belonged to the party of Shri Ram Kumbar. He went to the hospital by the 10 O' clock bus. The witness was also examined under section 164 Criminal Procedure Code, vide Ex. D15. The learned counsel for the appellants submitted that Shri Ram was also not a reliable witness because he was not an eye witness at all. He had seen the occurrence from a distance. It is not without significance that the police found it necessary to have him examined under section 164 Criminal Procedure Code though he was the son of the deceased. If he were a reliable person, then there should have been no occasion to have his statement recorded under section 164 Criminal Procedure Code. His conduct is abnormal too in the sense that he does not accompany his father to the hospital who was seriously injured. Shri Ram is the son of the deceased and therefore, an interested person. If he were a reliable person, then there should have been no occasion to have his statement recorded under section 164 Criminal Procedure Code. His conduct is abnormal too in the sense that he does not accompany his father to the hospital who was seriously injured. Shri Ram is the son of the deceased and therefore, an interested person. He was also examined under section 164 Criminal Procedure Code which only shows that the police wanted to bind him to a particular position. But at the same time there does not appear any reason to hold he is not a witness of truth. His statement is corroborated by that of Meh Ram which he made before the committing Magistrate. He has not at any time introduced three more persons which Ram Pratap did I am therefore, not inclined to discard his testimony on the grounds stated by the learned counsel for the appellants. 12. The next witness is Kana Ram PW.1. He has given a version of the occurrence as is given by Shri Ram. His testimony was assailed on the ground that his name is not mentioned in the F.I.R. He has not talked to any body about this occurrence in the village. He has also given employment to his brother and issued pattas of the lands to both of them. I have gone through the statements of Kana Ram. His version is that he was coming towards the village along with Rugha Ram. When Rugha Ram was attacked by the accused he entreated them not to do so but they did not listen to him. They rather asked him to run away When Rugha Ram, fell he walked towards the village. He may not have been able to see Ram Pratap and Shri Ram because they were coming towards Rugha Ram and he was running towards the village with his back towards them. It is true that Kana Ram might have been under some kind of obligation of Rugha Ram deceased and his testimony also deserve to be scrutinised with care. But his testimony also receives corroboration from Shri Ram and the previous statement of Meh Ram. 13. I am therefore, not impressed by any of the arguments put for ward by the appellants. But his testimony also receives corroboration from Shri Ram and the previous statement of Meh Ram. 13. I am therefore, not impressed by any of the arguments put for ward by the appellants. I agree with the learned trial court that the witnesses Kana Ram PW1 and Shri Ram PW4 were witnesses of truth, while Meh Ram had made a true statement in the committing court. 14. The learned counsel for the appellant then submitted that the lathis which are recovered at the instance of the accused persons were found negative for blood. The weapons of offence,therefore, do not corroborate the story of the prosecution case. The deceased was found to have sustained four lacerations on the leg and one of the scalp. If he were beaten by the lathis recovered by the police, then, blood should have been found on the lathis. It is not an inexorable rule that the lathis when recovered should have been found stained with human blood. If there were blood, then the weapons of offence would have provided corroboration. I accept this argument to the extent that the weapons of offence do not corroborate the prosecution case. But all the same the core of the prosecution story as stated by Shri Ram and kan Ram remains to be true. It is not possible to disbelieve the sub-stratum of the prosecution case in material parts thereof. 15. The learned counsel then submitted that there is no strong motive established prompted by which the accused should have attacked the deceased. It is in evidence of Shri Ram and Ram Pratap that there has been animosity and litigation between the deceased and the other three persons but they have been given up by them. The motive which Srhi Ram has now alleged, does not find mention in the F.I.R. In the absence of a motive it was not possible to hold that the assailants should have attacked Rugha Ram. On the other hand, the trhee accused persons which were found innocent, had animosity and quarrel with the complainant party. At the same time, it has not been proved that the accused appellants had some ill will against the deceased relating to Hukam Ram's wife. Shri Ram in cross examination admitted that Hukam Ram's wife was living with him and he never had any talk with Rugha Ram about his wife. At the same time, it has not been proved that the accused appellants had some ill will against the deceased relating to Hukam Ram's wife. Shri Ram in cross examination admitted that Hukam Ram's wife was living with him and he never had any talk with Rugha Ram about his wife. But if the prosecution wanted to implicate persons without their having been involved in the crime, the, they would have stuck to the original version and would have not given up those who were innocent. It only proves that the son of the deceased has implicated only those who were the real assailants. It is not necessary for recording a finding of guilt that the motive must necessarily be present and that too in strong measure. 16. Lastly, the learned counsel submitted that the accused were found guilty under section 325 Indian Penal Code. But since it cannot be said which of the accused is responsible for the grievous hurt, none of them can be convicted for it and the only offence for which they can be held liable is of simple hurts. This arguments was also made before the trial Judge but he was of the view that the prosecution had proved that the common intention of the accused was to give severe beating to Rugha Ram. Out of the 14 injuries two were grievous. The prosecution had also proved that the injuries were not inflicted by one weapon. He held that it was proved beyond reasonable doubt that the accused persons inflicted simple and grievous injuries to Rugha Ram. I agree with this finding and both of the accused are guilty under section 325 Indian Penal Code because there was a common intention on their part to beat Rugha Ram. 17. I, therefore, find no force in this appeal and dismiss the same. The convictions and sentences of the accused appellants are maintained. They are on bail and shall surrender to their bail bonds to serve the sentence awarded to them. *******