C. Jagannadhacharyulu, J.C.
1. Criminal Appeal No. 5 of 1966 is an appeal filed by one Wahengban Nimai Singh of Chinga Makha Yanglem Leikai against his conviction under Section 304, Part II, Penal Code in Sessions Trial No. 6/7 of 1965 on the file of the Additional Sessions Judge, Munipur and sentance that he should undergo R.I. for 5 years. Criminal Appeal No. 10 of 1966 is an appeal filed by the Government; of Manipur against the judgment of acquittal of the remaining five accused is the same Sessions Case. Criminal Appeal No. 11 of 1966 is an appeal filed by the Government of Manipur under Section 417, Criminal P.C. to enhance the punishment of the accused Wahengbam Nimai Singh by convicting him under Section 302 read with Section 34, Penal Code or under Section 304, Part I, Penal Code.
2. Six persons, by name, Khumbongmayum Babusaheb Singh, Laipokpam Naran Singh, Sougrakpam Biramangol Singh, Wangkhem Ibohal, Singh, Yanglem Biramangol Singh and Wahengbam Nimai Singh (herein after referred to by their number as A 1 to A 6 were committed to sessions to stand their trial for an offence punishable under Section 302 read with Section 34, Penal Code for having beaten one Khetrimayum Manimukta Singh of Singjamei Kshetri Leikai at about 11 P.M. on 26.10.1964 in Singjamei Makha, Mayengbam Leikai, who succumbed to the injuries in the Civil Hospital in Imphal at about 2 A.M. on 29.10.1964.
3. The case of the prosecution, briefly stated according to the charge-sheet and as brought out in evidence, is that in the night of 26.10.1964, Ras Lila was being performed in the Mandop of Section Nandakishore Sharma of Singjamei Makha, Mayengbam Leikai, But on account of previous enmity, the six accused, armed with deadly weapons, such as 'daos', small axes and sticks, assaulted Khetrimayum Manimukta Singh of Singjamei Kshetri Leikai at about 11.00 P.M. when he was witnessing the Ras Lila performance, P. Ws. 2 to 6 (Bheigya Singh, Kh. Shyam kishore Singh, N. Ibobi Singh, Bihari Singh and Ramananda Singh) witnessed the occurrence. When P. Ws. 5 and 6 (Bihari Singh and Ramananda Singh) interfered, they too were beaters. P.W. 2 (Bheigya Singh) ran to P.W. 1 (Muhori Singh), the eldest brother of the deceased and informed him about the occurrence. Followed by P.W. 7 (Kh. Raghu Singh) one of the brothers of the deceased, P.Ws. 1 (Muhori Singh) and 2 (Bheigya Singh) proceeded to the scene of offence. But, P.W. 7 (Raghu Singh) went in advance and there was a souffle between him and the accused, in which he, A/1 (Babusaheb Singh) and A/2 (Naran Singh) received injuries. On the way, P. Ws. 1 (Muhori Singh) and 2 (Bheigya Singh) found the injured Manimukta Singh lying in a ditch, which was about a furlong away from the scene of occurrence. He made a dying declaration before them that he waa beaten by A/6 (Nimai Singh) on his head with a hockey stick. They picked him up from the ditch and took him to the pharmacy of P.W. 13 (A. Birahari Singh) in Singjamei in the same night P. Ws. 1 (Muhori Singh and 2 (Bheigya Singh) took the injured in a jeep to the civil hospital in Imphal, after picking up P. Ws. 5 and 6 (Bihari Singh and Ramananda Singh) on the way. P.W. 15 (Dr. L. Ibetombi Devi) examined the 8 injured persons, treated them and admitted them in the hospital, Exta A/9 to A/11 are the wound certificates issued by her.
4. P.W. 1 (Muhori Singh) lodged a written report Ex. A/1 drafted by P.W. 14 (R.K. Dorendra Singh) Advocate, in Imphal Police Station at about 10.00 a. m. on 27.10.1964. P.W. 16 (N. Kujeswari Singh) registered the report as F.I.R. case No. 1274(10) 64 under Sections 148/149/326, Penal Code. P.W. 17 (Sub-Inspector of Police) took up the investigation on the same date of 27.10.1964. On 23.10.1964, he arrested all the accused persons and go5 them remanded. As he found injuries on the bodies of A. 1 (Babusaheb Singh) and A. 2 (Naran Singh), he got them examined by D.W. 1 (Dr. Y. Gunamani Singh) in the Civil Hospital, Imphal. He issued Exts. B/1 and B/2 and certifies Sea. The injured Khetrimayum Manimukta Singh succumbed to the injuries on 29.10.1964 at about 2 A.M. On 29.10.1964 P.W. 17 (Sub-Inspector of Police) held inquest over the dead body of Manimukta Singh as per Ext. A/2, P.W. 8 (Dr. Gulapchand Singh conducted postmortem examination of the dead body and issued Est. A/3 postmortem certificate. P.W. 17 (Sub-Inspector of Police) continued the investigation.
5. On 5.11.1964, P.W. 17 (Sub-Inspector of Police) seized one hockey stick (Ext. M/1) from under a pond by the side of Indra Burma road near the Mandop on the basis of Ext. A/4 statement of A/6 (Wahengbam Nimai Singh) in the presence of P.W. 9 (A. Kondam singh). Subsequently, P.W. 16 (Kunjeswar Singh) took over the investigation from P.W. 17 (Sub-Inspector of Police) and submitted the charge sheet (Ext. A/13 under Section 302, read with Section 34, Penal Code against all the accused.
6. After trial, the Additional Sessions Judge held that there was no motive for the accused to murder the deceased, that they had no common intention even to commit his murder, but that there was a fight between the 2 groups of P. Ws. 3, to 7 (Bheigya Singh. Kh. Shyamkishore Singh, M. Ibobi Singh, Bihari Singh, Ramananda Singh and Kh. Raghu Singh) on one hand and A/1 to A/6 (Babusaheb Singh, Naran Singh, Biramangol Singh Ibohal Singh, Yanglem Biramangol Singh and Nimai Singh) on the other, that in the fight P.W. 5 (Bihari Singh) and P.W. 6 (Ramananda Singh) on one hand and A/1 (Babusaheb Singh) and A/2 (Naran Singh) on the other received injuries and that A/6 (Nimai Singh) beat the deceased on his head with Ext. M/1 (hookey stick) and caused a fatal injury. So, he acquitted all the accused except A/6 (Nimai Singh) and convicted the latter under Section 304 Part II, I.P.C. and sentenced him to undergo R.I. for 5 years. A/6 (Nimai Singh) filed Criminal Appeal No. 5 of 1966 against his conviction, while the Government filed Criminal Appeal No. 10 of 1969 against the judgment of a judicial of A/l to A/5 and Criminal Appeal No. 11 of 1966 to enhance the punishment of A/6 (Nimai Singh).
7. Though Criminal Appeal No. 10 of 1966 relates to an appeal against acquittal, the entire evidence has to be reviewed, as in Criminal Appeal No. 5 of 1966. The powers of the High Court in an appeal against acquittal are in no way different from those in an appeal against conviction. It can accept the evidence rejected by the lower Court and reject evidence accepted by it, unless that lower Court relied upon its observation of the demeanour of a particular witness. In departing from the conclusions of the lower Court, the High Court must, however, pay due attention to the grounds on which the acquittal is based and repel these grounds satisfactorily, bearing in mind always that an accused starts with a presumption of innocence, in his favour. This presumption cannot certainly be strong after the acquittal. Vide the latest decision of the Supreme Court in Sher Singh v. State of U.P. : 1967CriLJ1213 .
8-10. After discussion of prosecution evidence His Lordship proceeded: Apart from the fact that none of the witnesses P. Ws. 2 to 6 (Bheigya Singh, Shyamkishore Singh, Ibobi Singh. Bhyamkishore Singh, Ibobi Singh, Bihari Singh and Ramananda Singh) was able to mention who played whose roll in the Ras Lila performance, there are several material circumstances and improbabilities which go to show that their evidence, as narrated by them in the lower Court, is not believable.
(a) Firstly, they are all interested witnesses. The deceased was no other than the brother of P. Ws. 1 (Muhori Singh), 6 (Ramananda Singh) and 7 (Raghu Sinah). P.W. 5 (Bihari Singh is their cousin brother, P. Ws. 2 to 4 (Bheigya Shyamkishore Bingh, and Ibobi Singh) are the residents of their locality. Though the evidence show that there were at least about 500 persons present in the audience witnessing the performance, none of them was examined. The owner of the Mandop was not examined. His neighbours were not examined. P.W. 17 (S.I.) stated that none of them was willing to come forward to speak to the incident. It appears that two witnesses were given up by the prosecution in the lower Court on the ground that they were won over by the accused and the learned A.P.P. stated that the counsel for the accused did not raise any objection to the statement of the Prosecution in the lower Court that they were won over. Also, the learned A.P.P. relied on the following decisions to show that the prosecution is not bound to call all the available witnesses irrespective of the consideration of their number or their unreliability, which would only cause confusion. Vide Stephen Seneviratne v. The King AIR 1986 P.C. 289. Abdul Gani v. State of Madhya Pradesh : AIR1954SC31 . Serdul Singh Caveesher v. State of Bombay : 1957CriLJ1325 and Narain v. State of Punjab : 1959CriLJ537 . But, the prosecution is bound to examine the material witnesses, who would be essential to the unfolding of the prosecution story. No doubt, interestedness is not a circumstance for disbelieving a witness But, it has to be taken into consideration in judging the truth and reliability of the witnesses. The prosecution would have examined some independent witnesses of the occurrence, who were present in the performance.
(b) Secondly, Ras Lila performance in Manipur is a sort of a religious function, wherein Lord Krishna and Srimati Radha are worshipped by the Gopies. It was admitted by P.W. 5 (Behari Singh) that A/1's (Babusaheb's wife took the leading part as a songstress in the performance. It is impossible to believe that A/1 to A/6 would have gone to the performance armed with deadly weapons with a premeditated plan to murder the deceased in the performance.
(c) Thirdly, if really A/1 (Babusaheb Singh) shouted and threatened the deceased and the occurrence took place near the Mandop as alleged by P.W. 2 to 6 (Bheigya Singh, Shyamkishore Singh Ibobi Singh, Bihari Singh and Ramananda Singh) some of the audience would have risen to their feet intervened and separated the deceased from the accused. But, the evidence of P. Ws. 2 to 6 is that none of the spectators interfered. Even. P. Ws. 2 to 4 (Bheigya Singh. Shyamkishore Singh and Ibobi Singh) themselves did not interfere, on the usual plea that they were afraid that they too would be beaten by the accused, in spite of their numerical strength.
(d) Fourthly, if the deceased left the performance, after he was threatened by A/1 there was no need for A/1 to A/6 to surround him and attack him. Their conduct would be quite unnatural.
(e) Fifthly, according to P. Ws. 5 and & (Bihari Singh and Ramananda Singh) they rushed to the spot on being informed by some persona that the deceased was being beaten. But, they did not disclose the names of their informants. Nor were they examined.
(f) Last, but not least, Ext. A/1 (F.I.R.) lodged by P.W. 1 (Muhori Singh) at about 10.00 a.m. on 27.10.1964 in the police station in Imphal completely belies the case of the prosecution. It was said to have been prepared by P.W. 14 (Sri R.K. Dorendra Singh) an advocate at the instance of P.W. 1 (Muhori Singh). P.W. 1 (Muhori Singh) states in Ext. A/1 that the deceased and P. Ws. 5 and 6 (Bihari Singh, and Ramananda Singh) were severely assaulted from behind by all the six accused armed with deadly weapons such as 'daos'. small axes and sticks, when P. Ws. 5 and 6 (Bihari Singh and (Ramananda Singh) and the deceased were witnessing the Ras Lila performance, and that all the accused were actuated with the common intention of killing the injured persons. According Co P.W. 1 (Muhori Singh), he was told in the night of 26.10.1964 itself by the deceased (who was said to have made a dying declaration) and by P. Ws. 2, 5 and 6 (Bheigya Singh, Bihari Singh and Ramananda Singh) in the same night that the deceased was beaten by A/6 (Nimai Singh) on his head with Ext. M/1 (hockey stick). If this case of the prosecution is true, P.W. 1 (Muhori Singh) would have mentioned in Ext. A/1 that the deceased was beaten on his head by A/6 (Nimai Singh) with Ext. M/1 (hockey stick). But, this is not at all the case in Ext. A/1. On the other hand, P.W. 1 (Muhori Singh) alleged in Ext. A/1 that all the accused beat the deceased with daos, small axes and sticks. No-mention of even the hockey stick was made in Ext. A/1. So, Ext. A/1 belies the entire ease-of the prosecution. To get over this difficulty, the learned A.P.P. relied on the evidence of P.W. 11 (Nityai Singh), the then A.S.I. of Imphal Police Station, who deposed that after getting information of the occurrence in the same night of 26.10.1964, he proceeded to the civil hospital and sot the deceased as well as P. Ws. 5 and 6 (Bihari Singh and Ramananda Singh) examined by P.W. 15 (Ibetombi Devi) and contended that, thus P.W. 11 (Nityai Singh) had already taken up the investigation, that no formal report to the police was necessary and that Ext. A/1 is hit by Section 162, Criminal P.C. He relied on H.N. Risbud v. State of Delhi : 1955CriLJ526 and State of Uttar Pradesh v. Bhagwant Kishore Joshi : 1964CriLJ140 . In the former case the Supreme Court laid down that the investigation under the Criminal Procedure Code consists of several steps, namely, proceeding to the spot, ascertainment of the facts and circumstances of the case, discovery and arrest Of the suspected person, collection of evidence and formation of opinion as to whether the material collected warrants placing the accused before the Magistrate for trial. In the latter decision, the Supreme Court held that ordinarily investigation is undertaken on information received by a police officer, but that the receipt of information is not a condition precedent for investigation and that from Section 157, Criminal P.C. it is clear that an officer in charge of a Police station can start investigation either on information or otherwise. Though P.W. 11 (Nityai Singh) might have taken up the investigation without any written complaint, his evidence does not show that he at least made a full note of the information received by him in the general diary. The prosecution did not produce the general diary into the Court. P.W. 11 (Nityai Singh) admitted that he did not mention the name of his informant in the supple, mentary diary, which, he alleged, he had opened at about 9/10.00 a.m. on 27.10.1964. So, there is nothing on the record to show what information P.W. 11 (Nityai Singh) had received in the night. No doubt, the evidence of P.W. 11 (Nityai Singh), if believed, shows that Ext. A/1 is not the F.I.R. and that it is admissible in evidence. But, the prosecution itself Sled it and exhibited it and the whole story of the prosecution is based on Ext. A/1, the contents of which are now found to be contrary to the oral evidence and the circumstance of the case.
11. It has to be noted that even the medical evidence does not support the case of the prosecution. According to P.W. 15 (Ibetomi Devi), who examined the deceased in the night of 23.10.1964, she found only one lacerated wound on the left parietal region which was 3' in length and 1/4' in breadth and skin deep. P.W. 8 (Gulapahao Singh), who conducted the postmortem examination and issued Ext. A/3 postmortem certificate, found the following injuries:
(1) One scretch 1' ' on the upper part of the right upper arm.
(2) One scretch 2' 4' on the inner side of the upper part of the skin on the right leg.
(3) One contused wound 2' 1/8' in stitched condition on the left side of the top of the head with haematoma extending to an area of 5' 3' around the wound.
(4) One contusion 2' 2' on the right side of the head above the ear.
The evidence of P. Ws. 8 and 15 (Gulapchao Singh and Ibetombi Devi) is that the injuries noted by them on the head of the deceased could be caused by a blunt object like a stick. But, P.W. 8 (Gulapchao Singh) stated that both the injuries on the head of the deceased could be caused if he was beaten with the beat portion of Ext. M/1 (hockey stick). The lower Coart went wrong in relying on the evidence of P.W. 15 (Ibetombi Devi) alone and in thinking that there was only one injury on the head of the deceased., As P.W. 15 (Ibetombi Devi) examined him in the night, she might not have noticed the other injury on the head of the deceased. There is no reason for disbelieving the evidence of P.W. 8 (Gulapchao Singh) and his report Ext. A/8 that there were two injuries on the head of the deceased. As held by the Supreme Court in Surjan v. State of Rajasthan : 1956CriLJ815 , that inquest report is not evidence by itself and it cannot be pitted against the evidence of the medical witness given in the Court. But, the opinion of P. W. 8 (Gulapchao Singh) that both-the injuries could be caused with one stroke with, Ext. M/1 (hockey stick) is open to doubt. The injuries were so situated on the head that they could not have been caused by a single stroke. The evidence of P. Ws. 2 to 6 Bheigya Singh, Shyamkishore Singh, Ibobi Singh, Bihari Singh and Ramananda Singh) is to the effect that A/6 (Nimai Singh) beat the deceased on his head with Ext. M/1 (hockey stick) (once). So, the prosecution has not explained who caused the other injury on his head.
12-13. After discussion of further evidence his Lordship proceeded: So, in view of the general background and the circumstance of the case, the Additional Sessions Judge is correct in holding that there was a (free) fight between the two parties and that P. WS. 1 to 7 (Muhori Singh, Bheigya Singh Shyamkishore Singh, Ibobi Singh Bihari Singh, Bamananda Singh and Raghu Singh) came to fight for a certain object. Vide para 26 of his judgment. His finding that there was no satisfactory evidence to show that A/1 to A/5 (Babushaheb Singh, Naran Singh, Biramangol Singh, Ibohal Singh and Yanglem Biramangol Singh) surrounded the deceased and gave him blows is also correct.
13-A. But, the learned Additional Sessions Judge relied on two circumstances to show that, A/6 (Nimai Singh must have dealt one blow on the head of the deceased with Ext. M/1. Firstly, he relied on the evidence of P. Ws. 1 and 2 (Muhori Singh and Bheigya Singh) who stated that the deceased made a dying declaration before them that he was beaten on his head by A/6 (Nimai Singh) with a hockey stick. The evidence of P. Ws. 1 and 2 (Muhori Singh and Bheigya Singh) is that as soon as they traced the deceased lying in a ditch, the deceased made the said dying declaration. P.W. 2 (Bheigya Singh) told P.W. 17 (S.I.) that immediately after seeing P. Ws. 1 and 2 (Muhori Singh and Bheiga Singh the deceased told them that he was first assaulted by A/6 (Nimai Singh) on his head and that the other accused also participated in the assault on him subsequently. But, the evidence of P. Ws. 2 to 6 in the lower Court is that the deceased was beaten by A/6 (Nimai Singh) on his head with Ext. M/1. The evidence of P. Ws. 1, 2, 13 and 15 (Muhori Singh, Bheigya Singh, Birahari Singh and Dr. Ibetombi Devi) is that the deceased was unconscious until his death. No doubt, cerebral irritation may not make a patient unconscious. Vide passages at pages 251 and 252 of Modi's Medical Jurisprudence and Toxicology 1952 edition). According to P.W. 1 (Muhori Singh) the deceased did not regain his consciousness after he made the dying declaration. Thus the dying declaration is wholly the is older from Ext. A/1 report filed by P.W. 1 (Muhori Singh), wherein ha did not mention that the deceased was beaten by A/6 (Nimai Singh) on his head with a hockey stick. No mention of the alleged dying declaration was made by P.W. 1 (Muhori Singh) in Ext. A/1. As case be seen from Bhagwan Das v. State of Rajasthan : [1957]1SCR854 , and Harbans Singh v. State of Punjab AIR 1962 S.C 489, it is neither a rule Of law nor of prudence that a dying declaration must be corroborated by other evidence before a conviction can be based thereon. But, the evidence furnished by the dying declaration must be considered by the Court just as the evidence of any other witness, though undoubtedly some special considerations arise in the assessment of dying declaration, which do not arise in the case of assessment of the value of a statement made in a Court by a person claiming to be a witness of the occurrence. The necessity for corroboration arises not from any inherent weakness of a dying declaration but from the fact that the. Court comes to the conclusion that a particular I dying declaration is not free from the infirmities as may be disclosed in the evidence. But, the evidence of P. Ws. 1 and 2 (Muhori Singh and Bhigya Singh) about the alleged dying declaration, said to have been made by the deceased before them, is not trustworthy and reliable. It is more probable that the deceased fell down into the ditch unconscious and that he lay in a state of unconsciousness until he died.
14. The second circumstance relied on by the lower Court for finding A/6 (Nimai Singh) guilty is that the evidence o P. Ws. 9 (Kondum Singh) and 17 (S.I.) shows that, on his statement Ext. A/4 and at the instance of A/6 (Nimai Singh), Ext. M/1 (hockey stick) was seized under Ext. A/5 from a pond near the Mandop. According to P.M. 9 (Kondum Singh) he was asked by a Police constable by same, Jugeswar Singh to go to the Police Station to take Rs. 100 from Jugeswar Singh, to be handed over to his mother-in-law. So, according to him, when he went to the Police Station he was asked to be a witness. Thus, he happened to be a chance witness. There are however some strong circumstances, which throw doubt over the case of the prosecution that A/6 (Nimai Singh) pointed out Ext. M/1. Firstly, A/6 (Nimai Singh) was arrested on 28.10.1964. He was in the jail ever since. It is stated that on 5.11.1964, A/6 (Nimai Singh) made Ext. A/4 statement leading to the discovery Of Ext. M/1 in a ditch by the side of the Indra Barma road. As A/8 (Nimai Singh) was in the jail continuously from 28.10.1964 upto 5.11.1964. the contention of his counsel that he was subjected to third degree methods and that Ext. M 1 was planted on him appears to be probable. No doubt, no suggestion was made to P.W. 17 (S.I.) that the latter subjected A/6 (Nimai Singh) to third degree methods. There is no reason why the alleged statement wag not made by A/6 immediately after he was arrested and why the statement should have been made after he was in the jail for about 6 days. Secondly, it has to be noted that the ditch, from which Ext. M/1 was said to have been seized, is an open one accessible to the public, lying by the side of the Indo-Burma road. So, Ext. M/1 could be placed by anyone in the ditch. Thirdly, the actual words, said to have been used by A/6 (Nimai Singh), were also not deposed to by P.W. 9 (Kondum Singh) and P.W. 17 (S.I.). Nor were they mentioned in Ext. A/4. So, no reliance can be placed upon Exts. A/4 and A/5 and the alleged seizure of Ext. M/1. Vide also in this connection Bhagirath Param v. State of Madhya Pradesh : AIR1959MP17 and Dhoom Singh v. The State : AIR1957All197 .
15. Then, once the lower Court found that there was a fight between the two groups, there was no justification for singling out A/6 (Nimai Singh) from out of the group of the party of the accused and make him liable for the death of the deceased, 'dao' or axes or sticks, said to have been used by the accused, were seized. A free fight ensued near the Mandop, and as rightly stated by the lower Court, P. Ws. 1 to 7 (Mubori Singh, Bheiaya Singh, Shyamkishore Singh, Ibobi Singh, Bihari Singh, Ramanand Singh and Raghu Singh) must have been aggressors. P. Ws. 5 to 7 (Bihari Singh, Ramananda Singh and Raghu Singh) and the deceased in the party of the P Ws. and A/1 (Babusaheb Singh) and A/2 (Naran Singh) in the party of the accused received injuries. It was, for the prosecution to explain how (A/1 (Babusaheb) and A/2 (Naran Singh) also received injuries on their heads. For this purpose, P.W. 7 (Raghu Singh) deposed that he came in advance of P. Ws. 1 and 2 (Muhori Singh and Bheigya Singh) and that -he had fight with A/l (Babusaheb Singh) and A/2 (Naran Singh). If P. Ws. 1, 2 and 7 (Mahori Singh, Bheigya Singh and Raghu Singh) started after learning that the deceased was beaten by the party of the accused, then the probability is that P. Ws. 1, 2 and 7 (Muhori Singh, Bheigya Singh and Raghu Singh) would have all come in a body. There is no reason why P. Ws. 1 and 2 (Muhori Singh and Bheigya Singh) should have gone in search of the deceased, while P.W. 7 Raghu Singh should have gone to attack the accused. The explanation given by the prosecution for the injuries caused to A/1 (Babusaheb Singh and A/2 (Naran Singh) is too artificial to be believed. The learned A.P.P. relied on a number of decisions as to which the other accused can be held liable by invoking Section 34, I.P.C. into aid. Vide, Barendra Kumar Ghosh v. Emperor AIR 1525 P.C 1. In re Basappa AIR 1951 Mys 1. State v. Hira Dubey : AIR1952Pat185 , Bihar v. State : AIR1953All668 , Kripal v. State of U.P. : AIR1954SC706 , Pandurang v. State of Hyderabad : 1955CriLJ572 , Shreekant Ramayya Munipalli v. State of Bombay : 1955CriLJ857 , Rishidao Pande v. State of UP. AIR 1955 SC 381, Om Prakash v. State : AIR1956All241 and Ranchhod v. State AIR 1956 Madh B 262. There is no need to invoke Section 34, I.P.C. in this case as there was a free clash between the two groups and some of the members of each group received injuries.
16. Thus, the Additional Sessions Judge went wrong is finding A/6 (Nimai Singh) guilty, while holding that there was a (free) fight between the two groups. No doubt, the Court can act upon the testimony of the P. Ws. in so far as some of the accused are concerned and discard their evidence with regard to other accused, as the maxim 'falsus in uno falsus in omnibus' has not received general acceptance in different jurisdictions in India. Vide Nisar Ali v. State of U.P. : 1957CriLJ550 . But, the evidence of the P. Ws. is untrustworthy and does not reflect the I true state of affairs. The prosecution came to 1 the Court with a distorted version giving up the true state of affairs. It is, therefore, highly hazardous to rely on it and hold the accused guilty of any offence.
17. The learned A.P.P. stated that the Additional Sessions Judge passed strictures on P.W. 17 (S.I.) in Para. 30 of his judgment and requested that they might be expunged. As P.W. 17 was in Calcutta undergoing training, he could not attend the Court in time. So, the strictures are not warranted and the same are expunged.
18. In the result, Criminal Appeal No. 5 of 1966 is allowed and A/6 (Nimai Singh) is acquitted of the charge. Cancel his bail bond. Criminal Appeals Nos. 10 of 1966 and 11 of 1966 are dismissed.