JUDGMENT M.C. Jain, J.
1. The State has filed this appeal against the judgment of acquittal dated 14.2.2001 passed by Sri S.B. Singh, the then II Additional Sessions Judge, Mainpuri in S.T. No. 297 of 1996. The accused-respondent are five real brothers, namely, Asha Ram, Raghunandan, Ram Autar, Phool Singh and Siya Ram. The incident allegedly occurred on 11.9.1995 at about 8.00 P.M. near the shop of Kishori in village Sultanganj, Police Station Bichhawan, District Mainpuri and the F.I.R. was lodged on 12.9.1995 at 3.15 A.M. by Pitam Lal PW 1 (eyewitness). In the incident, one Ganga Ram lost his life.
2. In broad essentials, the prosecution case was that Pitam Lal's son Ram Singh was sitting at the shop of Kishori. Radhey Lal, Satendra and Udaiveer were also sitting there. The accused Asha Ram came there and spoke about some quarrel having taken place at the bus stand. Radhey Lal advised him to go home. Asha Ram got annoyed of it. Ram Singh got up to go to his home. Satendra also advised Asha Ram go to his home. Asha Ram slapped Satendra and started abusing him. On shouts, remaining accused-respondents Ram Autar, Raghunandan, Phool Singh and Siya Ram also appeared there with lathis and started quarrelling with Satendra. Other villagers also collected there. Pitam Lal's maternal uncle Ganga Ram also happened to come there and tried to intervene with folded hand to pacify both the quarrelling parties. Asha Ram struck a lathi blow on the head of Ganga Ram who fell down receiving the blow. He was removed to District Hospital Mainpuri by Anil Gupta, Anar Singh and Ramesh, but he succumbed to his injuries by the time he could be reached District Hospital Mainpuri. On the lodging of the F.I.R., a case was registered. Investigation followed as usual culminating in the submission of charge-sheet and the trial.
3. It should be related here that the post mortem over the dead body of deceased was conducted by Dr. Sudhir Kumar PW 7 on 12.9.1995 at 2.00 P.M. The deceased was aged about 60 years and about three-fourth day had passed since he died. The following ante-mortem injuries were found on his person:-
1. Contusion 4 cm x 2 cm over back of right shoulder, 3 cm below from top.
2. Contusion 5 cm x 2 cm over top of left shoulder.
3. Contusion 3 cm x 2 cm over middle of back, over backbone.
4. Abraded contusion 8 cm x 6 cm on right side of back of chest, 10 cm below inferior angel of right scapula.
5. Contusion 8 cm x 2 cm on left side of head, 6 cm above left ear.
The cause of death was coma due to ante-mortem injuries.
6. It should be related here that accused Asha Ram was also injured whose injuries were examined on 11.9.1995 at 11.00 P.M. by Dr. Sudhir Kumar. Following injury was found on his person:
Lacerated wound 2 cm x 0.5 cm x bone deep on left side of head, 7 cm above left ear. Fresh bleeding present. Injury kept under observation and advised X-Ray.
7. The defence was a denial and false implication owing to party factions.
8. At the trial, the prosecution examined Pitam Lal PW 1 Satendra Singh PW 2 and Ram Singh PW 3 as eyewitnesses, apart from doctor of autopsy and witnesses related to the investigation of the case. Dr. Sudhir Kumar was examined as DW 1 also by the accused to prove the injury report of Asha Ram.
9.The prosecution case did not find favour with the trial judge who recorded the judgment of acquittal which is under challenge from the side of the State.
10. We have heard Sri K.P. Shukla, learned A.G.A. for the appellant-State and Sri P.N. Misra, learned senior Advocate for the accused-respondents. We have carefully examined the evidence.
11. The State counsel submitted that the trial judge recorded acquittal on flimsy grounds. On the other, the learned counsel for the accused-respondents attempted to support the acquittal recorded in their favour. He urged that true genesis of the incident had been concealed; that there were material contradictions in the testimony of eyewitnesses and that the prosecution had not explained the injury of the accused-respondent Asha Ram. We have, on the our part, carefully scrutinized the evidence, cross-checking the findings of the trial court therewith and the submissions made at the bar.
12. We should point out before proceeding further that it is the duty of the court to sift the evidence with care in each case on full consideration of all material circumstances to come to a decision, which part of the testimony of the witnesses is to be accepted and which is to be rejected. In other words, the witnesses cannot be branded as lairs in toto and their testimony rejected outright even if parts of their statement are demmstrably incorrect or doubtful. The court has to separate the grain of acceptable truth from the chaff of exaggeration and improbabilities which cannot be safely or prudently accepted and acted upon. Natural variations are always to be there in the testimony of truthful witnesses. When many person look/witness an incident, they have their power or vision to reckon with. Variations are natural. Every individual has his own experience and recounts the incident in his own way. A witness should not be disbelieved unless his presence and veracity can be genuinely doubted.
13. Looking to the facts, circumstances and evidence of the presence case, it is to be noted that according to the F.I.R. which is the first version of the incident, only the accused-respondent Asha Ram allegedly assaulted Ganga Ram with lathi. Though the presence of his brothers-accused-respondents was mentioned in the F.I.R., but the role of assaulting Ganga Ram was not assigned to them. The F.I.R. was lodged by Pitam Lal PW 1 who claimed himself to be an eyewitness of the assault. The incident had taken place at the shop of Satendra Singh PW 2 (son of Kishori Lal) when he was present at his shop. Ram Singh PW 3 son of Pitam Lal was also sitting there along with a few others. It is noted from the cross-examination of Pitam Lal PW 1 that he did not witness the assault himself because he admitted in paragraph 4 of his cross-examination that when he reached the spot, Ganga Ram was lying injured. All the same, the F.I.R., in all probabilities would have been lodged by him after inquiring of the details of the incident from Satendra Singh PW 2 and his own son Ram Singh PW 3. Had accused-respondents other than Asha Ram also participated in the assault of Ganga Ram, ordinarily it would have been so stated in the F.I.R. which was the first version of the incident.
14. All the accused-respondents are real brothers. The possibility cannot be ruled out of the accused-respondents other than Asha Ram having been necked in through improvement in the prosecution story. Needless to say, there is tendency on the part of the witnesses to exaggerate the guilt of the opposite party and innocent family members and close relatives of the real culprit are often roped in. We gather the impression that Pitam Lal did not witness the incident. But the presence of Satendra Singh PW 2 and Ram Singh PW 3 at the time of the incident cannot at all be doubted, because it was at the shop of Satendra Singh son of Kishori Lal that the incident had taken place and Ram Singh PW 3 son of Pitam Lal was also there. The gist of the testimony of these two witnesses is that the incident started when Ram Singh, Radhey Lal and Udai Veer were sitting at the shop of Satendra Singh. Asha Ram accused-respondent then came over there and started hurling abuses on Satendra Singh and Ram Singh. He quarreled with them slapping. Ram Singh raised shouts, attracting Ganga Ram who intervened and tried to pacify the quarrel. Asha Ram accused took offence of it that he (Ganga Ram) was unsolicitedly assuming the role of mediator and he gave few lathi blows to him.
15. As to the participation of other accused-respondents in the incident in assaulting Ganga Ram, there are contradictions in the testimony of Satendra Singh PW 2 and Ram Singh PW 3 entitling them to benefit of doubt. Satendra Singh PW 2 stated that Ganga Ram was given five lathis blows in standing posture one by each accused. Then he fell down whereafter Asha Ram gave him other two lathi blows and the other accused-respondents did not hit him after he fell down. On the other, Ram Singh PW 3 stated that Ganga Ram received three lathi blows in standing posture at the hands of Asha Ram, Ram Autar and Raghunandan. After he fell down, the other accused-respondents Siya Ram and Phool Singh assaulted him, each giving one blow.
16. The trial court was not justified in adopting the shortcut approach of discarding the entire prosecution evidence without making an attempt to separate the chaff from the grain. Such an approach, in our opinion, results in failure of justice as has happened in this case. The fluid state of evidence in respect of accused-respondents other than Asha Ram rendered their presence and participation in the incident to be doubtful. The injuries found on the person of the deceased at the time of post mortem could well be caused by a single accused-respondent (Asha Ram) striking a few lathi blows to him. Reversely, had five accused-respondents wielded lathis giving blows to the victim, he would have received much more injuries. It is also worthy of notice that in his statement under Section 313 Cr.P.C., the accused Asha Ram claimed to have been assaulted in the incident. Thus, his presence at the spot was beyond pale of doubt. Judged from all possible angles, it was proved on judicial scrutiny of the testimony of Satendra Singh PW 2 and Ram Singh PW 3 that Asha Ram had struck a few lathi blows on the victim. It was with him that the incident had started. He had abused Satnedra Singh PW 2 and Ram Singh PW 3 with giving slaps to them. The participation of the other four accused-respondents (real brothers of Asha Ram) was rendered doubtful. It is not possible to subscribe to the view of the trial judge that the genesis of the prosecution case had been concealed by the prosecution. Further, the contradictions in the testimony of eyewitnesses could only afford benefit of doubt to the accused-respondents other than Asha Ram.
17. Now, we come to the alleged injury sustained by Asha Ram accused-respondent which, as per the trial judge, the prosecution failed to explain. It is settled position of law that the prosecution is supposed to explain only significant injury/injuries, if any, of the accused sustained in the same incident. In the present case, Dr. Sudhir Kumar DW 1 of District Hospital Mainpuri was examined by the defence to prove the injury report Ext. Kha-1 of Asha Ram examined on 11.9.1995 at 11.00 P.M. It is to be noted that he was not medically examined at the behest of the police. No cross F.I.R. was lodged from the side of the accused giving their version of the incident. Nor was any witness examined by the defence in the court as to their version of the incident and as to how, according to the defence. Asha Ram sustained injury, in what manner and at whose hands. He was taken for medical examination by his brother Munna Lal. The injury shown on his person was lacerated wound 2 cm x .5 cm x bone deep on left side of head, 7 cm above left ear. Injury was kept under observation and X-ray was advised. It was caused by hard blunt object. The Doctor stated before the court that the injury could be sustained by Asha Ram on 11.9.1995 at 8.00 A.M. by blunt object. He also proved the X-ray report Ext. Kha-2 prepared by Dr. Bal Krishna Prabhakar. Minor crack fracture of left frontal bone was shown. We have carefully gone through the cross-examination to which the witnesses were subjected. No suggestion was made to any of them as to the alleged defence version regarding the incident and the alleged injury sustained by Asha Ram. As a matter of fact, the defence has miserably failed to establish that Asha Ram accused respondent had sustained alleged injury in the same incident. No adverse inference could be drawn against the prosecution case on this premise so far as he (Asha Ram) was concerned.
18. So, to come to the point, the prosecution had been able to prove by clinching and satisfactory evidence that the assailant of Ganga Ram was Asha Ram accused respondent who had given him some lathi blows. Naturally, the question arises as to what offence he has committed within the ambit of law. The evidence and circumstances indicated that it was a sudden quarrel without any pre-calculation or pre-mediation. Asha Ram did not intend to kill Ganga Ram. It was simply because he (Ganga Ram) intervened in a quarrel between him (Asha Ram) on the one hand and Satendra Singh and Ram Singh on the other. Intervention of Ganga Ram offended Asha Ram and he turned hot under the collar, giving a few lathi blows to Ganga Ram. However, there was absence of intention on his part of cause the death of Ganga Ram. The death of Ganga Ram occurred due to coma as a result of lathi blows given to him by Asha Ram. In doing so, he shall be imputed the knowledge that it was likely to cause the death of the victim, though without any intention to cause death, or to cause such bodily injury as was likely to cause his death. This being so, we are of the view that the accused-respondent Asha Ram committed the offence falling under Part II of Section 304 I.P.C.
19. To come to close, though the acquittal of accused-respondents Raghu Nandan, Ram Autar, Phool Singh and Siya Ram is not to be interfered for the discussion made hereinabove, but that of the accused-respondent Asha Ram is wholly unjustified and is not at all sustainable on careful assessment of the evidence adduced on record. Justice, based on judicious scrutiny of the evidence on record, must always triumph. Letting the guilty escape is not doing justice according to law.
20. Resultantly, we partly allow this appeal. The acquittal of accused-respondents Raghu Nandan, Ram Autar, Phool Singh and Siya Ram is upheld. We, however, set aside the acquittal recorded in respect of accused-respondent Asha Ram. He is held guilty of the offence punishable under part II of Section 304 I.P.C. and we convict him accordingly. He is sentenced to undergo seven years rigorous imprisonment for the offence punishable under Part II of Section 304 I.P.C.
21. The accused-respondent Asha Ram is on bail. The Chief Judicial Magistrate, Mainpuri shall cause him to be arrested and lodged in jail to serve out the sentence of seven years rigorous imprisonment passed against him.
22. Judgment be certified to the lower court immediately for reporting compliance to this Court within two months from the date of its receipt.