JUDGMENT 1. - The appellants Bhagirath, Mishria and Prabhu along with 5 others were tried by the leaned Additional Sessions Judge, Gangapur City for the offences under Section 302, 147, 149, 447, 324, 325 and 323 etc. After trial the learned Additional Sessions Judge acquitted the accused Nanga Kishnia, Ghoodia and Kajodia of all the offences charged with. The accused Ramjilal was convicted for the offence under Section 324, 447 IPC but instead of sentencing him immediately he was given the benefit of Section 4 of the Probation of Offenders Act as he was found to be about 17 years of age. Out of the remaining three accused who are the appellants before this Court Bhagirath and Mishria have been convicted under Section 302 IPC and each of them was sentenced to life imprisonment. Each of them has also been convicted under Section 447 and sentenced to two months' rigorous imprisonment. Prabhu appellant was convicted under Section 324 IPC, and was sentenced to six months' rigorous imprisonment and a fine of Rs. 100/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one month. He was also convicted under Section 447 IPC and was sentenced to two months' rigorous imprisonment. Both the sentences were made to run concurrently. Aggrieved by their conviction, and sentence the appellants have preferred this appeal. 2. We have heard the arguments of the learned counsel appearing for the appellants and the Public Prosecutor and have gone through the record of the case. 3. The prosecution case, in brief, is that there is a field in village Habibpur bearing Khasra No. 56. Bhagirath accused was the Khatedar tenant of this field but about 56 years ago he mortgaged this field with possession to Ram Sukh (since deceased) and Moolia. Since then this field was being cultivated by Ram Sukh deceased and Moolia. About 11/2 months prior to the occurrence Bhagirath accused asked Ram Sukh to hand over the possession back to him but Ram Sukh demanded the amount of mortgage money in order to hand over the possession back to the accused Bhagirath. It is further alleged that on 23-9-1972 Ram Sukh, Moolia, Chhanga and Panna had gone to look after their Bajra crop but they found accused Prabhu, Ramjilal and Kajodia cutting the Bajra crop. They asked these persons to resist from cutting the Bajra crop. It is further alleged that on 23-9-1972 Ram Sukh, Moolia, Chhanga and Panna had gone to look after their Bajra crop but they found accused Prabhu, Ramjilal and Kajodia cutting the Bajra crop. They asked these persons to resist from cutting the Bajra crop. All the accused thereupon called other remaining accused persons who were hiding just nearby. All the accused persons inflicted injuries on Ramsukh on account of which he fell down on the ground. The other members of the complainant party present were also injured. Soon after the occurrence the accused went away. After some time Ramsukh succumbed to his injuries on the spot. The other injured persons i.e. Parma, Chhanga and Moolia remained lying in the field. On the next morning Mohan s/o Moolia came there and found these injured persons lying there and Ramsukh lying dead. He went to the Police Station, Gangapur City and lodged a report. The S.H O. came on the place of occurrence. The site-plan was prepared. The dead-body of the deceased Ramsukh was taken into custody and was got post-mortemed by the Medical Officer of the Government Dispensary, Gangapur City and the other injured persons were also medically examined. The 'lathis' were recovered at the instance of the accused Kamjilal. They were sent for chemical examination. The lathis were found positive for human blood whereas Dantli was found negative. After investigation the 8 accused were challaned to the court of Munsif Magistrate, Gangapur City, who committed them to stand their trial to the court of the Additional Sessions Judge, Gangapur City. 4. The learned Additional Sessions Judge formulated four points which arose for determination in this case. They are as follows : 1. Whether the disputed land Khasra No. 56 was mortgaged with possession by accused Bhagirath to deceased Ramsukh and Moolia. 2. Whether the disputed land was in possession of the complainant party on the date of occurrence and they had cultivated the land. 3. Whether the deceased Ramsukh died of homicidal death and if so whether all or any of the accused are responsible for the murder of Ramsukh. 4. Whether all or any of the accused are also guilty of inflicting grievous or simple injuries to Moolia, Chhanga & Panna after trespassing into the disputed land. As regards the decision on the points Nos. 4. Whether all or any of the accused are also guilty of inflicting grievous or simple injuries to Moolia, Chhanga & Panna after trespassing into the disputed land. As regards the decision on the points Nos. 1 and 2 the learned Additional Sessions Judge after scrutinising the evidence led from both the sides came to the conclusion that the disputed land bearing Khasra No. 56 was mortgaged by accused Bhagirath to Ramsukh deceased and his brother Moolia in Smvt. year 2023 and since then it was being cultivated by Ramsukh and Moola and on the date of occurrence they were in possession of this field. 5. We have ourselves scrutinised the evidence on record on these points. The prosecution has produced mortgage deed Ex. P/7 which mentioned that the accused Bhagirath mortgaged with possession the disputed land to Ramsukh and Moolia for Rs. 2500/-, though this document is not a registered one yet it can be used for the purpose of finding out the possession of the land in question. The learned Judge has relied upon it and to our mind rightly so. Another document which supports this fact is an application filed by the accused Bhagirath in the Debt Relief Court which is Ex. P/11. It has shown Ramsukh and Moolia as his creditors for Rs. 2500/- and it also further mentions that since Smvt. year 2023 Ramsukh and Moolia were reaping the fruits from the land that benefit drawn by them should also be deducted from the loan amount. Another document is the complaint dated 26-6-72 filed by Bhagirath in the court of the S.D M. which is Ex P/12. In this connection Bhagirath was examined on 8-8-72 and his statement is Ex. P/11 in which he has admitted that Ramsukh and Moola cultivated the field last year and fur the last 5-6 years they have been cultivating it. 6. On behalf of the accused defence was led to show that on 3-8-72 Bhagirath got this land ploughed by a tractor whose driver was Laxminarain, DW2. The remuneration of Rs. 70/- for the same was paid and the receipt Ex D/5 was obtained therefor. It was also shown that some days earlier to the occurrence Bhagirath put manure on this field The defence version was however not believed by the learned Additional Sessions Judge and in our opinion he has tightly done so. The remuneration of Rs. 70/- for the same was paid and the receipt Ex D/5 was obtained therefor. It was also shown that some days earlier to the occurrence Bhagirath put manure on this field The defence version was however not believed by the learned Additional Sessions Judge and in our opinion he has tightly done so. It is clear firm the evidence of the prosecution that Ramsukh and Moolia were in possession of the land in dispute and when they had cultivated it they were in possession on the date of occurrence. It appears that Bhagirath accused wanted to take forcible possession on the land without repaying the mortgage money. Even if, for the sake of arguments, it be taken that the tractor ploughed this land on 3-8-72 or some manure was put by the accused Bhagirath on this land the single act of trespass cannot disturb the settled possession of the accused. We therefore do not find any reason to differ with the findings of the learned Additional Sessions Judge on these points and we accordingly uphold those findings. 7. Next we come to the other remaining two points. Deceased Ram Sukh was found to have received the following 5 injuries:- 1. Vertical lacerated wound 1" x 1/2" x depth upto bone on middle and front of right leg below knee. 2. Lacerated wound 1/4" x 1/4" x ⅛" on front and middle of left leg below knee. 3. Vertical lacerated wound 3" x 1'' depth upto bone on right side and upper surface of the head in front starting from hair line. 4. Transverse lacerated wound 1" x 1/2" x 1/4" on back of head. 5. Verticle lacerated wound 11/2" x 1/2 x depth upto bone of left side of forehead hair line. These injuries were ante mortem and caused by blunt object. After opening the body, the following injuries were noticed:- 1. Ecchymosis on upper surface on back and sides of sculp. 2. Communited fracture 4" long of right parietal and temporal bone corresponding to injury No. 3. Two pieces of fracture of bones were found, 1" x 1/2" and 11/2". 3. Fracture of right occipital bone 1/2" x 1/4" corresponding to injury No. 4. 8. There was extra dural haemorrhage on right side and bock of head corresponding to injuries Nos. 3 and 4. There was haemorrhage in the substance of the brain. Two pieces of fracture of bones were found, 1" x 1/2" and 11/2". 3. Fracture of right occipital bone 1/2" x 1/4" corresponding to injury No. 4. 8. There was extra dural haemorrhage on right side and bock of head corresponding to injuries Nos. 3 and 4. There was haemorrhage in the substance of the brain. The fractures were ante-mortem. In the opinion of the doctor the cause of death was compression of the brain due to intercereminal hemorrhage and fracture skull of caused by external injuries Nos. 3 and 4. Thus from the evidence of the Medical Officer Dr. Soorajlal, PW11 it is clear that the death of Ramsukh was not an accidental but homicidal one. 9. After taking into consideration the surrounding circumstances and after scrutinising the prosecution evidence in the light of those circumstances, the learned Additional Sessions Judge came to the conclusion that Bhagirath and Mishria were persons who caused fatal injuries to Ramsukh as a result of which he died. He, therefore, convicted Bhagirath and Mishria for the offence punishable under Section 302 IPC. 10. Chhanga PW1 as also present on the scene of occurrence and he, too, was injured and received as many as 10 injuries. He was also medically examined for his injuries by PW 11 Dr. Soorajlal. Out of these 10 injuries, two injuries were caused by sharp object and the rest were caused by blunt object. In x-ray examination out of these injuries, two were detected to be grievous. One was oblique fracture of lower ⅓rd left homerus and the other was crack fracture of lower ⅓rd of left ulna. The learned Sessions Judge after discussing the evidence in detail and after scrutinising it has came to the conclusion that the head injuries on Chhngga were caused by Ramjilal. He has, therefore, held Ramjilal guilty' of voluntarily causing head injury to Chhanga, by sharp weapon and therefore, he was found guilty under Section 324 IPC. The learned Additional Sessions Judge has also held that the accused Prabhu also caused simple injury by sharp object. He is of the opinion that the author of other injuries received by Chhanga has not been proved by the prosecution beyond doubt. 11. Panna is another injured person. His injuries were also examined by the Medical Officer Dr. Soorajlal PW11. Six injuries were found on his person. He is of the opinion that the author of other injuries received by Chhanga has not been proved by the prosecution beyond doubt. 11. Panna is another injured person. His injuries were also examined by the Medical Officer Dr. Soorajlal PW11. Six injuries were found on his person. All these injuries were simple out of which two were caused by sharp object and the rest by blunt object. After scrutinising the evidence and finding corroboration from the medical evidence, learned Additional Sessions Judge has come to the conclusion that Ramjilal was guilty of inflicting voluntarily simply injuries (injuries Nos. 2 and 3 mentioned in Ex. P/5) by sharp object to Panna. For the remaining injuries he has held that in the absence of medical corroboration. the prosecution has not proved as to who was the author of those injuries. Moolia PW3 was also another eye-witness who is also alleged to have been injured. He, too, was medically examined by PW 11 Dr. Soorajlal. Moolia had multiple small linear contusions marks about 1" x ⅛" in front of left side of chest near breast. This injury as simple and caused by blunt object. Moolia in his statement deposed that he was given injuries on his back but this did not find corroboration from medical evidence Moreover in his cross-examination he stated that he cannot say as to who inflicted injuries to him and at what places. The learned Addl. Sessions Judge, therefore, held that there was no evidence to give a definite finding about the authors of the injuries suffered by this witness or stated in his injury report Ex. P/6. Thus the learned Addl Sessions Judge held the accused Bhagirath and Mishria guilty for the offence under Section 302 I.P.C. and accused Ramjilal and Prabhu under Section 324 I.P.C. He has further held that there was neither common intention nor common object on the part of the accused and, therefore, all cannot be held to be liable with the aid of Section 149 or Section 34 IPC but are liable for their individual acts. As the presence of only four accused, namely, Bhagirath, Mishra, Ramjilal and Prabhu was held to be established at the scene of occurrence the learned Addl. Sessions Judge held that they were not of guilty of forming an unlawful assembly. 12. The learned Addl. As the presence of only four accused, namely, Bhagirath, Mishra, Ramjilal and Prabhu was held to be established at the scene of occurrence the learned Addl. Sessions Judge held that they were not of guilty of forming an unlawful assembly. 12. The learned Addl. Sessions Judge has, however, held all these four accused guilty of criminal trespass under Section 447 IPC as they trespassed into the field which was in possession of the complainant party. 13. Mr. Chatterjee on behalf of the appellants has argued that the finding of the learned trial court in respect of disputed land is not correct. According to him it was in the possession of Bhagirath. It may be mentioned that we have already discussed this point above and we accordingly upheld the finding of the learned Addl. Sessions Judge on this score. There is thus no force in the argument of Mr. Chatterjee on this point 14. Another contention of the learned counsel for the appellants is that no reliance should have been placed on the evidence of' Chhanga PW1, Panna and PW2 and Moolia PW3 who falsely implicated a number of innocent persons, and there are material contradictions and inconsistencies in their statements and further their evidence is not corroborated by the medical evidence. The prosecution is further guilty of withholding the written first information report. From the prosecution evidence it was clearly established that a report was written which was handed over at the police station. No such report has been produced by the prosecution but it has been alleged that the first information report was lodged orally. Thus the Police has suppressed a very material document and, therefore, the possibility of over implication and contradictions cannot be ruled out. 15. It may be said that this point was also raised before the learned trial Judge and it also weighed heavily with him. He has further considered that the accused Nanga, Kishnia, Ghoodia & Kajodia have no interest in the disputed land, therefore, there could not have been any motive attributed to them and that Nanga has appeared as a witness in favour of Bhagirath in some other case, keeping this aspect of the matter also in view, the learned Addl. He has further considered that the accused Nanga, Kishnia, Ghoodia & Kajodia have no interest in the disputed land, therefore, there could not have been any motive attributed to them and that Nanga has appeared as a witness in favour of Bhagirath in some other case, keeping this aspect of the matter also in view, the learned Addl. Sessions Judge has been cautious enough to scrutinise the prosecution evidence and he has tried to separate the grain from the chaff and in doing so he has acquitted Nanga, Kishania, Ghoodia and Kajodia as a result thereof. 16. When the prosecution evidence cannot be disbelieved in toto as to the substratum of the prosecution case, the mere suppression of the written first information report cannot be a ground to throw away the prosecution case in its entirety. The contention of the learned counsel for the appellants that the witnesses are highly entrustworthy and unnatural and there are material contradictions and inconsistencies in their statements has no much force. It is proved beyond doubt that Ramsukh received injuries and died on the spot. Chhanga P.W. 1, Panna PW 2 and Moolia PW3 also received injuries and their presence at the spot can in no way be doubted. Simply because these witnesses have happened to be related, their evidence cannot be brushed aside on that ground as their presence is fully established. However, as a matter of prudence their evidence may be read with caution and the learned Addl. Sessions Judge has applied that caution with the result some of the accused persons have been acquitted by him. 17. Mr. Chatterjee has further contended that the learned Additional Sessions Judge has seriously erred in basing the conviction of the appellants on the same set of evidence which has been disbelieved qua the co-accused who have been acquitted specially when the prosecution eye-witnesses of the occurrence equally held responsible for the injuries sustained by the deceased the acquitted persons and as such the case of the accused appellants is in no way different from those who have been acquitted. It may be said that the learned Addl. Sessions Judge, as pointed out above, has taken into consideration the non-production of the written first information report holding that in the oral first information report the possibility of an improvement of the prosecution version cannot be ruled out. It may be said that the learned Addl. Sessions Judge, as pointed out above, has taken into consideration the non-production of the written first information report holding that in the oral first information report the possibility of an improvement of the prosecution version cannot be ruled out. He has also taken into consideration that family members of Nanga had no interest in the disputed land and that Nanga has appeared as a witness against the complainant in favour of Bhagirath. In this background he has scrutinised the prosecution evidence and has given his detailed reasons to make the case of the appellant distinguishable from those who have been acquitted. He has also discussed the medical evidence as to how far it finds corroboration with the injuries alleged to have been inflicted by the different accused persons. After careful scrutiny of the prosecution evidence, he has held Bhagirath and Mishtia guilty for causing fatal injuries to Ramsukh. 18. It may be mentioned that the mere fact that the evidence of eye-witnesses has not been believed by the lower court as regards some accused, does not mean that their evidence as regards other accused must be rejected. Maxim, falsus in uno falsus in omnibus is not of general application in India. It has been so held in Jagdip Singh and another v. State of Haryana (1974 Cr. L.J. 1378) . Therefore, we are unable to agree with the contention of the learned counsel for the appellants that the evidence of the witnesses as regards the participation of the appellants also must be rejected. 19. Mr. Chatterjee has further contended that there are no injuries on the person of the deceased by a sharp object while some prosecution witnesses have deposed so. Thus the prosecution witnesses are not wholly reliable. They are partly reliable and partly unreliable. Corroboration by some reliable witnesses is necessary, and there cannot be any corroboration of an infirm witness by another infirm witness. Learned counsel for the appellants has argued that four accused persons out of eight accused persons challenged by the police have been acquitted. Thus the testimony of the prosecution witnesses was held to be false regarding to the four accused who have but acquitted and it would not be proper to convict the appellants on such evidence. Learned counsel for the appellants has argued that four accused persons out of eight accused persons challenged by the police have been acquitted. Thus the testimony of the prosecution witnesses was held to be false regarding to the four accused who have but acquitted and it would not be proper to convict the appellants on such evidence. It is the fact that the learned trial court acquitted four accused persons but convicted the appellants holding the testimony of the prosecution witnesses to be reliable with regard to them. In our opinion the acquittal of the four accused does not detract the value of the statements of three eye-witnesses who were themselves injured. As pointed out above the maxim falsus in one falsus in omnibus is not a sound rule to apply looking to the conditions in this country and so it is the duty of the court in cases where the witness has been found to have given unreliable evidence in regard to certain particulars to scrutinsie the rest of his evidence with care and caution. If the remaining evidence is trust worthy and the substratum of the prosecution case remains unimpaired on the whole, the court should uphold the prosecution case to the extent it is considered safe and trustworthy. 20. The next contention of the learned counsel for the appellants is that there was mutual fight and, therefore, the applicability of Section 34 I.P.C. is not available. In the alternative he has argued that even if the prosecution case is taken to be true at its face value it does not go beyond and the ambit of Section 325 read with Section 34 I.P.C. The contention is that the intention to murder has to be gathered from the circumstances or other direct evidence. There is no direct evidence that there was any pre-meditated plan to murder Ramsukh. The occurrence took place at the spur of the moment. From this nature of enterprise it cannot be said that the intention was to murder Ramsukh. Moreover, the weapons used are mere lathis which the villagers generally keep with them, and that the accused remained satisfied with inflicting one blow each. Ali these and other circumstances go to show that there was no intention on the part of the accused to murder Rains Ramsukh Briefly their intention was to give beating so Ramsukh. Moreover, the weapons used are mere lathis which the villagers generally keep with them, and that the accused remained satisfied with inflicting one blow each. Ali these and other circumstances go to show that there was no intention on the part of the accused to murder Rains Ramsukh Briefly their intention was to give beating so Ramsukh. He has placed his reliance on Ram Lal v. Delhi Administration, (A.I.R. 1972 SC 2462) . In that case the appellant was convicted under Section 302 I.P.C. The evidence clearly disclosed that two lathi blows had been given on the head and there was no evidence which of those two was given by the accused, and therefore, his conviction under Section 302 I.P.C. was set aside and he was convicted under Sec 325 read with Section 34 I.P.C. and was sentenced to five years' rigorous imprisonment. 21. The learned Public Prosecutor has tried to support the judgment of the learnd Additional Sessions Judge and the reasons given therein by the learned trial Judge. 22. This brings us to the question as to whether the acts committed by Bhagirath and Mishria fall under Section 302 IPC or under any other lesser offence. The prosecution case is that the accused party wanted to take forcible possession of the land in dispute. Some of the members of the accused party were found cutting the crop in the field. The complainant party happened to go there and the incident took place at the spur of the moment when the complainant party asked the accused party not to cut the crop and there was use of lathis only. Some of the accused had sharp objects i.e `dantli' which were with them because they were using them for cutting the crop and if the accused had any intention to murder Ramsukh they would have used the sharp objects in inflicting injuries to him. It is also clear that there were three injuries on the head of the deceased and each injury was assigned to each individual accused. Therefore, looking to the facts and circumstances of the case, it cannot be said that the accused wanted to murder Ramsukh. For the application of clause three of Section 300 IPC it must first be established that an injury is caused, next it must be established objectively what the nature of that injury in the ordinary course of nature is. Therefore, looking to the facts and circumstances of the case, it cannot be said that the accused wanted to murder Ramsukh. For the application of clause three of Section 300 IPC it must first be established that an injury is caused, next it must be established objectively what the nature of that injury in the ordinary course of nature is. If the injury is found to be sufficient to cause death one test is satisfied. Then it must be proved that there was an intention to inflict that very injury and not some other injury and that it was not accidental or unintentional. If this is also held against the offender the offence of murder is established. If the act is in furtherance of the common intention Section 34 is clearly applicable. In the present case it was proved that the death was caused during scuffle which developed on the spot, and the accused had no intention to cause murder of Ramsukh. Accused Prabhu and Mishria also received some injuries. In these circumstances we think that the acts of the accused Bhagirath and Mishria fall under Sec 304 Part II. IPC. Both of them are liable to be convicted under Section 304 Part II, read with Sec 34 IPC as in such circumstances the aid of Section 34 IPC can be pressed into service. Knowledge of death being likely consequence of criminal act of beating can be attributed to both the appellants and, therefore it attracts Section 34 IPC. The case of Abrahim Seikh & ors. v. State of West Bengal, ( AIR 1964 SC 1263 ) can be cited on this points. 23. As regards the appeal preferred by the accused Prabhu who has been convicted under Sec 321 IPC and sentenced to six months' R I and a fine of Rs. 100/- no serious argument has been advanced. From the evidence as discussed by the learned Addl. Sessions Judge it is clear that Prabhu inflicted simple injury with sharp object to Chhanga PW 1. He has, therefore, rightly been convicted under Section 324 and we do not find any reason to interfere with the finding of the learned trial Judge on this score. 24. From the evidence as discussed by the learned Addl. Sessions Judge it is clear that Prabhu inflicted simple injury with sharp object to Chhanga PW 1. He has, therefore, rightly been convicted under Section 324 and we do not find any reason to interfere with the finding of the learned trial Judge on this score. 24. The appellants have also been convicted under Section 447 IPC as the occurrence took place in the field which undoubted was in the possession of the complainant party and the accused had committed criminal trespass therein. 25. The result is that the appeal of Prabhu appellant is disallowed. His conviction and sentence under Section 324 and 447 IPC are maintained. As regards the appeal of Bhagirath and Mishria their conviction and sentence under Sec 447 IPC are maintained. But their conviction under Sec 302 IPC and sentence of life imprisonment are set aside. Instead each of them is convicted under Section 304 Part II read with Section 34 IPC and sentenced to rigorous imprisonment for six years. Their sentences on both the count shall run concurrently. The period of their detention in jail during inquiry, investigation or trials shall be set off against the term of their imprisonments in view of the provisions of Section 428 Cr.P.C., 1973.Order accordingly. *******