N. S. GUPTA, J. ( 1 ) THIS criminal appeal arises out of the judgment and order dated 11-4-1980 passed by Sri B. N. Mohiley the then Additional District Sessions Judge, Moradabad, convicting the accused appellants under Secs. 147, 452, 304/149, 323/149 IPC and sentencing them to undergo R. I. for a period one year, 3 years, 5 years and one month each under the said counts. ( 2 ) THE prosecution story briefly stated is as follows : Accused appellants Ganga Singh, Toti Singh Sipattar Singh are real brothers. Similarly Babu and Yusuf are real brothers. Accused Ganga Singh is Thakur by caste. Accused appellants Babu, Yusuf and Wazahad Hussain are said to be the close associates of Ganga Singh. Complainant Nanhey P. W. 1 is barber by caste. Accused appellants and complainant Nanhey are all resident of village Majhawali P. S. Chandausi, District Moradabad. ( 3 ) ON 18-9-1978 in the early morning at about 6 a. m. the accused appellant Ganga Singh came to the house of complainant Nanhey and asked him to come to his house for cutting hairs. The complainant said that he had some work of his own and that he would come after two hours. The accused appellant Ganga Singh felt annoyed. He along with his brothers and associates, namely, Toti Singh, Sipattar, Babu, Yusuf and Wazahat Hussain formed an unlawful assembly and raided the house of the complainant. The accused appellants entered into the house of the complainant. There they assaulted the complainant and his mother by means of brick-bats. The complainant received injuries. His mother succumbed to her injuries caused by the accused appellants. The first information report Ex. Ka-3 of this occurrence was lodged by the complainant Nanhey at P. S. Chandausi on 18-9-1978 at 1. 20 P. M. , that is after about 6 1/2 hours of the occurrence, the police station being situate at a distance of 3 miles from the scene of occurrence. ( 4 ) THE complainant was medically examined by Dr. Jagjeet Singh P. W. 6 at Civil Hospital Chandausi on 1 8-9-1978 at about 1. 45 P. M. The following injuries were found on his person; 1. Abreaded contusion 1. 5 cm x cm on the lower part of the right leg. 4 cm above the ankle joint. 2. ( 4 ) THE complainant was medically examined by Dr. Jagjeet Singh P. W. 6 at Civil Hospital Chandausi on 1 8-9-1978 at about 1. 45 P. M. The following injuries were found on his person; 1. Abreaded contusion 1. 5 cm x cm on the lower part of the right leg. 4 cm above the ankle joint. 2. Complaint of pain in right calf and left side back of chest but no mark of violence detected externally. In the opinion of the doctor, all the injuries were simple and caused by blunt object. The duration was about 1/2 day. ( 5 ) AUTOPSY on the dead body of the deceased Smt. Champa was conducted by Dr. D. V. Batra (not examined in the Court below) at District Hospital Moradabadon 20-9-1978. He found the following ante-mortem injuries; 1. Lacerated wound 2 cm x 1/2 scalp deep on the right side head 8 cm from the right ear. 2. Lacerated wound 2 cm x 1/2 cm x bone deep on the left side of head 6 cm from the left ear and parietal area. 3. Abrasions (multiple) in an area of 6 cm x 6 cm on the left side chest-cardiac region. 4. Contusion 1 cm x 1 cm on the front of the chin. 5. Contusion 2 cm x 1 cm on right side neck and in front. ( 6 ) THE internal examination of the body of the deceased revealed fracture of skull and III, IV and Vth ribs of the left side of the chest. The cause of death was common due to head injuries. ( 7 ) THE investigation of the case was taken up by S. I. Kartar Singh P. W. 7, who received the information about the death of the deceased at 7. 05 p. m. at police station. After converting the case under S. 304 IPC, S. I. Kartar Singh recorded the statement of the complainant Nanhey. He rushed to the scene of occurrence and recovered blood stained and simple earth from in front of the Kotha of the complainant, situate in village Majhwali. He prepared inquest report in respect of the dead body of the deceased on 19-9-78 and sent the dead body for post mortem examination, through Constable Surendra Singh. He recorded the statement of Dhoom Singh and Tika Singh. He searched out for the accused persons but they were not traceable. He prepared inquest report in respect of the dead body of the deceased on 19-9-78 and sent the dead body for post mortem examination, through Constable Surendra Singh. He recorded the statement of Dhoom Singh and Tika Singh. He searched out for the accused persons but they were not traceable. The accused persons surrendered before the Court of Chief Judicial Magistrate on 28-9-78. Subsequent investigation into the matter was conducted by S. I. Narayan Singh P. W. 4 who submitted the chargesheet against the accused appellants. ( 8 ) CHARGES under Secs. 147/452/302/149 (alternatively under Ss. 304/149) and 393/149 IPC were framed against the appellants. The accused appellants pleaded non guilty. They denied to have participated in the occurrence and pleaded that they have been falsely implicated in the case. ( 9 ) AFTER needful trial into the matter, the accused appellants were convicted and sentenced as aforesaid; hence this appeal. ( 10 ) I have heard Sri Krishna Kapoor, learned counsel for the appellants, A. G. C. for the State, considered their submissions and gone through the facts and circumstances of the case. ( 11 ) IT was vehemently argued by the learned counsel for the appellants that the entire case of the prosecution was a cooked up one. It was argued that Dr. D. V. Vatra who conducted the post mortem examination of the dead body of the deceased was not produced before the court below. The evidence of Dr. Jagjeet Singh P. W. 8 in proof of the post mortem examination report prepared by Dr. Vatra was only secondary evidence, which was inadmissible in law and the Court below, therefore, erred in convicting and sentencing the accused appellants. ( 12 ) THREE witnesses of fact, namely, Nanhey P. W. 1 Dhoom Singh P. W. 2 and Tika P. W. 3 were examined by the prosecution before the Court below. Nanhey P. W. 1 is the complainant and injured. He is son of the deceased. He stated that on the date of the occurrence of this case at about 6 a. m. the accused appellants Ganga Singh came to his house and asked him to go with him to his house for cutting his hair when he said to come after two hours, Ganga Singh threatened him with dire consequences went away. He stated that on the date of the occurrence of this case at about 6 a. m. the accused appellants Ganga Singh came to his house and asked him to go with him to his house for cutting his hair when he said to come after two hours, Ganga Singh threatened him with dire consequences went away. After 4 or 5 minutes, he along with rest of the accused appellants came to his house. All of them had brick-bats in their hands. They entered into the house of the complainant and assaulted the complainant and his mother. The complainant raised alarm, which attracted Dhoom Singh P. W. 2 Tika Giri P. W. 3 who had witnessed the occurrence. As a result of the assault made by the accused appellants, the complainant and his mother sustained injuries. The condition of his mother became precarious. She became unconscience and had died. Nanhey P. W. 1 further stated that because the appellants blocked his way, therefore, he could not go to lodge the report. He thereafter, went to Gram Pradhan and after taking Chaukidar with him, he lodged the report Ex. Ka-6. P. W. 2 Dhoom Singh and P. W. 3 Tika Giri have both supported the contention of the prosecution on the point that the accused appellant had assaulted the complainant and his mother by brick-bats, inside the laters house. ( 13 ) IT is clearly established by the medical evidence of Dr. Jagjeet Singh P. W. 8 that on medical examination of the complainant Nanhey at about 1. 46 P. M. on 18-9-78, he found an abraded contusion on the lower part of the right leg of the complainant Nanhey which could have been caused by some blunt object the complainant also complained of pain in right calf muscle and left, side back of chest. ( 14 ) THE complainant in this case is admittedly a barber by caste. It is probable to believe that when in the morning of the occurrence accused appellant Ganga Singh went to call the complainant for cutting his hair and when the complainant said to come after two hours, the accused appellant Ganga Singh felt annoyed and enraged. He, therefore, should have gone to the extent of throwing brick-bats upon the complainant causing injuries to the complainant and his mother. He, therefore, should have gone to the extent of throwing brick-bats upon the complainant causing injuries to the complainant and his mother. The accused appellant Ganga Singh being Thakur by caste, it is difficult for me to believe that if he would have gone to his house and would have again come to the house of the complainant after forming an unlawful assembly of his brothers and associates for the common object of causing hurt to the complainants, he would have come to the house of the complainant only with brick-bats. It appears to me that since the complainant and his mother had sustained injuries at the hands of the accused appellant Ganga Singh by means of brickbats, the complainant has arranged falsely the brothers and close associates of Ganga Singh in the occurrence of this case. ( 15 ) I should state here that the complainant Nanhey (P. W. 1) admitted during the course of his cross-examination before the Court below that the post mortem examination of the dead body of his mother was conducted on 3rd day of the occurrence. In between, after lodging the report of the occurrence and his medical examination, the police did not arrive in his village. He stated that he did not straight away went to the police station with Pradhan and Chaukidar. He rather went to Ram Dass who was resident of Chandausi and who was working in the Court of Munsif Chandausi. After going to Ram Dass, the complainant went to police Station. The complainant admitted that he did not understand the meaning of vadi. He also did not understand the meaning of anya. He also did not understand the meaning of prarthi. He was unable to state as to how these words were used in his report. The circumstances that the complainant did not straight away go to police station but he rather went to Ram Dass, who was working in the Court of Munsif Chandausi, fully go to show that the complainant had exaggerated the number of the assailants and version of the occurrence in his first information report, may it be with the blessings of his friend Ram Dass. ( 16 ) IT is important to note here that the accused appellant Ganga Singh or any of his brother or associates had no grievance against the mother of the complainant. ( 16 ) IT is important to note here that the accused appellant Ganga Singh or any of his brother or associates had no grievance against the mother of the complainant. Therefore, there was no occasion for the accused appellants to have assaulted the complainants mother to this extent that the complainants mother died. The complainants mother was an old lady aged 80 years: It was suggested on behalf of the accused appellants that because the house of the complainant was an old one and because of the fall of bricks, his mother sustained injuries. The circumstance that the accused appellants had no grievance against the mother of the complainant, it cannot be believed that the accused appellants were responsible for causing injuries which were found in the post mortem examination report by Dr. Vatra. It appears that the prosecution rather cleverly avoided to examine Dr. Vatra. Dr. Jagjeet Singh only stated that he did not know as to whether Dr. Vatra was alive or not. There is nothing on record to suggest that Dr. Vatra was dead or Dr. Vatra was untraceable. After all, Dr. Vatra was a Government servant. The Court below could have traced out his whereabouts through the Director, Medical and Health Services. No such efforts were made by the Court below. In the absence of examination of Dr. Vatra, who conducted the post-mortem examination on the dead body of the deceased the fact that the ante-mortem injuries found on the person of the deceased were sustained at the time of the occurrence of this case and the fact that the deceased had died as a consequence of those injuries and not otherwise was not fully proved. The injuries Nos. 1 and 2 were lacerated wounds on right side of head and left side of head of the deceased on parietal region. According to the contention of the prosecution, these injuries were caused by brick-bats. If these injuries could be caused by throwing away the brick-bats of the accused persons, they could have well been caused by the fall of the bricks from the house of the complainant. The statement of Dr. According to the contention of the prosecution, these injuries were caused by brick-bats. If these injuries could be caused by throwing away the brick-bats of the accused persons, they could have well been caused by the fall of the bricks from the house of the complainant. The statement of Dr. Jagjeet Singh P. W. 8 who stated that these injuries could not have been caused because of the fall of bricks of the house does not, therefore, appear to be correct one and reflects perverse approach of the prosecution in proving the post mortem examination report of the deceased by the evidence of Dr. Jagjeet Singh and withholding the real doctor who had conducted the post mortem examination of the deceased. Thus from the fact that Dr. Vatra who had conducted the autopsy on the dead body of the deceased was not examined by the prosecution before the Court below and from the fact that even the Presiding Officer of the Court did not make any effort to summon and examine the said witness in accordance with the provisions of Sec. 311 Cr. P. C. , I conclude that the version of the prosecution about the occurrence was a tainted and exaggerated one. ( 17 ) IT is the duty of the Court to sift chaff from the grain and truth from the falsehood. ( 18 ) FROM the circumstances that the complainant was barber by caste; that the accused appellant Ganga Singh as Thakur by caste; that the later came to the house of the complainant and asked him to come and cut hair; that the complainant said that he had some work and would be coming after two hours, I conclude that the accused Ganga. Singh felt annoyed and he, therefore, threw away the brick-bats upon the complainant causing injuries to the complainant and his mother. ( 19 ) HONble Supreme Court in the case of Rattan Singh v. State of Punjab reported in 1988 All Cri 225 : ( AIR 1988 SC 2147 ) found on the basis of the facts and circumstances of that case that injuries shows guilt under Secs. ( 19 ) HONble Supreme Court in the case of Rattan Singh v. State of Punjab reported in 1988 All Cri 225 : ( AIR 1988 SC 2147 ) found on the basis of the facts and circumstances of that case that injuries shows guilt under Secs. 324 and 326 I. P. C. as against the charge under Sec. 302 I. P. C. Similarly in Moti v. State reported in AIR 1967 All 437 the High Court convicted the appellant under Sec. 326 I. P. C. as against the charges under Sec. 302 I. P. C. In the case of Baul v. State of U. P. , reported in AIR 1968 SC 728 , the accused was convicted under Sec. 325 as against the charge under Sec. 302 I. P. C, It would thus follow that in a criminal trial, the intention of the accused in inflicting the inquiries for establishing the charge brought against the accused is very significant. Judging the present case before me, in the light of facts and circumstances of the case, the nature of the injuries caused and the fact that the injuries were caused by means of brick-bats, it cannot be said that the intention of the accused appellant Ganga Singh for causing the said injuries to the mother of the complainant was to cause death of the deceased. The circumstance that the accused appellant Ganga Singh being Thakur by caste felt annoyed on the behaviour of the complainant and, therefore, he threw away the brick bats upon the complainant and his mother causing injuries to both of them fully prove that the intention of the accused appellant Ganga Singh in causing injuries to complainant and his mother was to cause simple hurt and nothing further. I am, therefore, of the opinion that the accused appellant Ganga Singh would be deemed to have committed house trespass in order to commit the offence of causing hurt to the complainant and further that he would be deemed to have voluntarily caused hurt Shri Nanhey, P. W. 1 and his mother Smt. Champa Devi by brick-bats on the date, time and place of occurrence as suggested by the prosecution. ( 20 ) AS stated above, the implication of accused-appellants Toti Singh and Sipattar Singh who were the real brothers of accused-appellant Ganga Singh and Babu, Yusuf and Wazahan Husain who were said to be the close associates of the accused-appellant Ganga Singh appears to me to be false for the reason that the complainant Nanhey, P. W. I in his examination-in-chief before the Court below stated that 4-5 minutes after, Ganga Singh etc. came to his house duly armed with brick bats and assaulted him and his mother. The circumstances that the complainant Nanhey, P. W. 1 felt shy in specifically stating that besides the accused-appellant Ganga Singh such and such accused-appellant had also entered into his house and assaulted him and his mother proves that he had exaggerated the version of occurrence. The statement of P. W. 2, Dhoom Singh and P. W. 3 Tikagiri, with regard to the complicity of all other accused persons is believed by the fact that if all the accused persons would have formed an unlawful assembly and would have entered into the house of the complainant with a common object of causing hurt to the complainant and his mother, they should have been armed with some weapons like lathi etc. They should have not relied upon only the brick bats for causing hurt upon the complainant and his mother. P. W. 2 Dhoom Singh also did not specifically state the names of the accused-appellants besides Ganga Singh for assaulting the complainant and his mother. He appears to be a partisan witness inasmuch as that he had faught a case u/s. 107, Cr. P. C. with Toti Singh, accused-appellant, the brother of the Ganga Singh. He further stated that Toti Singh set fire to his Bonga. P. W. 3 Sri Tikagiri has his house at a distance of about 100 paces. He stated to have been going to plough his fields at the time of the occurrence, but he did not state before the Investigating Officer that he was having his plough and bullock with him at that time. If it was a fact that Tikagiri was going to plough his field, it is not probable for me to believe that after leaving his bullock and plough he would have gone inside the house of the complainant for watching the incident in question. Thus this witness was a chance witness. If it was a fact that Tikagiri was going to plough his field, it is not probable for me to believe that after leaving his bullock and plough he would have gone inside the house of the complainant for watching the incident in question. Thus this witness was a chance witness. The natural witness of the occurrence who had their house near the house of the complainant as shown in the site plan Exh. Ka. 6 viz. Mahipal, Hori, Yadram, Harish, Ramchandra and Chokhey did not come forward to support the case of the prosecution. Thus the statement of both those witnesses viz. Dhoom Singha and Tikagiri with regard to the complicity of the accused appellant Toti Singh, Sipattar Singh, Babu, Yusuf and Wazahan Husain falls short of credence. ( 21 ) THUS after carefully scrutinizing the facts and circumstances of the case, I reach to an irresistible conclusion that only the accused-appellant Ganga Singh was responsible for causing hurt to the complainant and his mother Smt. Champa Devi by entering into the house of the complainant Nanhey. I accordingly find that the accused-appellant Ganga Singh was guilty for committing offences punishable u/ss. 323 and 451, I. P. C. and is liable to be convicted and sentenced under the said Sections. He is accordingly sentenced to one months R. I. u/s. 323, I. P. C. for causing hurt to Nanhey and his mother Smt. Champa Devi. He is further sentenced to undergo R. I. for a period of one year and to pay a fine of Rs. 5,000. 00 and in default of the payment of the same to further undergo R. I. for a period of six months u/s. 451, I. P. C. He is directed to deposit the amount of fine within a period of three months and if he so deposits the same, one-half of the said fine shall be paid to the complainant Nanhey as compensation. The sentence of imprisonment shall run concurrently. Thus the appeal of accused-appellant Ganga Singh is allowed in part. The order of conviction and sentence passed by the trial Judge as against the accused-appellant shall stand modified to the aforesaid extent and his conviction under the remaining Sections shall stand set aside. It is directed that accused-appellant Ganga Singh, if on bail, shall be taken into custody forthwith and sent to jail to serve out his sentence. The order of conviction and sentence passed by the trial Judge as against the accused-appellant shall stand modified to the aforesaid extent and his conviction under the remaining Sections shall stand set aside. It is directed that accused-appellant Ganga Singh, if on bail, shall be taken into custody forthwith and sent to jail to serve out his sentence. ( 22 ) AS regards other accused-appellants viz. Toti Singh, Sipattar Singh Babu, Yusuf and Wazahan Hussain, their appeal is hereby allowed and the order of conviction and sentence passed by the trial Court against them is hereby set aside. ( 23 ) LET a copy of this judgment along with the record of this case be sent to the Court below for needful compliance. Order accordingly. .