JUDGMENT
Ram Pal Singh, J.
1. The appellants, aggrieved by their conviction recorded by Sessions Judge, Datia, in Session Trial No. 25 of 1981, judgment dated 27-2-1982, have preferred this appeal. They have been convicted Under Section 307 read with Section 34, Penal Code, and sentenced to undergo rigorous imprisonment for three years each.
2. The appellants during the trial were charged for having committed an offence punishable Under Section 307 read with Section 34, I.P.C., for having attempted to commit the murder of Raghuvir Singh on 22-3-1981 at or about 1.30 p.m. in village Kotra in front of the house of Ramsewak, Patel. During the trial, the prosecution examined Hemraj (P. W. 1), Bhairon Singh (P. W. 2), Ramsewak (P. W. 3), Ajab Singh (P. W. 4), Nirbhai Singh (P. W. 5) and Jagdish (P. W. 8) as eye-witnesses of this crime. All these witnesses have stated that on 22-3-1981 at about 1.30 p.m. Raghuvir Singh, Hemraj, Bhairon Singh, Ramsewak, Ajab Singh, Nirbhai Singh and Jagdish were sitting in front of the house of Ramsewak, Patel, and were singing ‘Fag’. At this very time, the appellants Man Singh, Kamal Singh, Ajab Singh and Dhaniram came there, armed with country-made pistol, farsa, sword and other dangerous weapons. Appellants Man Singh and Kamal Singh were armed with country-made pistols, appellant Ajab Singh was armed with a farsa and appellant Dhaniram was armed with a sword. As soon as the appellants reached the spot, appellant Man Singh fired the country-made pistol in the direction of Raghuvir Singh; appellant Ajab Singh thereupon attacked Raghuvir Singh with the farsa and gave blows on the left side and behind the head near the left eye. When Raghuvir Singh tried to escape from the spot, appellant Dhaniram caught hold of him. At this very time, when the prosecution witnesses Hemraj and Bhairon Singh tried to intervene, appellant Kamal Singh fired at them with the country-made pistol, as a result of which both Hemraj and Bhairon Singh sustained gun-shot injuries. According to these witnesses, the appellants were involved in a case of dacoity in which these witnesses appeared as prosecution witnesses and on account of that, they were attacked by the appellants. The report was lodged by Raghuvir Singh (P. W. 6) in the police station at 2.45 p.m. the same day. During the course of investigation all the injured were medically examined and recoveries were made. On 27-3-1981 the appellants were arrested. Dr. Vijay Kumar Choudhary (P. W. 7) has proved the injuries of Raghuvir Singh, Hemraj, Bhairon Singh, and Ramsewak. On X-ray examination, nasal bone of Ramsewak (P. W. 3) was found to be fractured. Raghuvir Singh (P. W. 6) and Hemraj (P. W. I) were also X-rayed.
3. The appellants pleaded not guilty to the charge and took the plea that when their uncle Nawal Singh (D. W. 1) was going to take a bath, these prosecution witnesses along with 25 persons attacked Nawal Singh and appellant Man Singh with guns and hard and blunt instruments, as a result of which appellant Man Singh and Nawal Singh (D.W. 1) sustained injuries. Their defence was that they reported the incident to the police station, but they were not sent for medical examination. They have examined Dr. R. S. Gupta (D. W. 4) to prove the injuries upon the person of appellant Man Singh and Nawal Singh (D. W. 1).
4. The trial Court has examined the evidence of all the prosecution witnesses and found the appellants to be guilty for the offence with which they were charged.
5. Sftri Artm Mishra, teamed counsel for the appellants, has contended that the injuries upon the person of Man Singh and Nawal Singh (D. W. 1) have not been explained by the prosecution. Hence, an adversaittference be drawn against the prosecution. He further contended that keeping in view the testimony of the investigating officer Gyanendra Singh (P. W. 12) in para 6 of this deposition, it is apparent that a counter-case of the same incident has been started in the criminal Court against these prosecution witnesses. These contentions were also advanced before the learned trial Judge, who has rejected them after giving reasons in paras 17,18,19 and 20 of the impugned judgment. The trial Court has concluded that, no doubt, Nawal Singh (D. W. 1) and appellant Man Singh sustained simple injuries, but the strange phenomenon is that when the prosecution witnesses had also guns with them, none of them fired towards the appellants of Nawal Singh (D. W. 1). The learned trial Judge further reasoned that appellant Man Singh sustained an ordinary lacerated wound, but in para 18 the trial Court has come to the conclusion that the appellants were the aggressors and it was they who first attacked Raghuvir Singh, Hemraj, Bhairon Singh and others. The conclusion of the trial Court cannot be said to be against the evidence on record. The trial Court has also come to the conclusion that the incident has taken place only at one spot, i.e., in front of the house of Ramsewak (P. W. 3).
The trial Court, on finding that the appellants were the aggressors and that simple injuries upon their person during the course of the incident may be possible, concluded that in such a situation it was not the duty of the prosecution to explain away the injuries, which were very minor in nature, upon the person of appellant Man Singh. In para 21 of the impugned judgment, the trial Court has concluded that a reasonable explanation for the simple injuries on the person of appellant Man Singh has been given by the prosecution. The trial Court refused to place reliance upon the testimony of Gyanendra Singh (P. W. 12), tfie investigating officer, that two incidents had taken ptace at different places. After coming to the conclusion that the appellants were the aggressors and simple injuries were likely to be caused during this attack, it would be futile to apply the principles of Lakshmi Singh . The nature of the injury upon Mansingh which was a simple lacerated wound, does not require an explanation from the side of the prosecution in face of the ratio laid down by the Hon’ble Supreme Court in the case of Bai Fatima . Such simple and inconsequent injuries are likely to occur even to the aggressors, who were armed with deadly weapons, and where there were a lot of persons involved in the incident. It would be relevant to observe that in Bankelal , Hon’ble the Supreme Court has laid down the ratio that if the prosecution witnesses are proved to have not deposed truly in all respects, their evidence is required to be scrutinised with great care. It was further observed that simply because the prosecution did not explain the injuries on the person of the accused, the Court cannot discard the entire prosecution evidence. To me, it seems proper that even if the prosecution witnesses failed to explain the minor injuries found upon the person of the accused, no adverse inference can be drawn against the prosecution.
6. In the end, Shri Mishra, learned Counsel for the appellants, contended that appellants. Dhaniram, though armed with a sword, had not inflicted any injury upon Raghuvir Singh. No doubt, this contention is true. But the trial Court has dealt with this argument in para 22 of the impugned judgment and held that Dhaniram, though armed with a sword, did not use it; instead, he caught hold of Raghuvir Singh when he was trying to escape the assault, and it was only due to the act of Dhaniram, that Raghuvir Singh was fatally assaulted. According to the trial Court, had appellant Dhaniram not caught hold of Raghuvir Singh he would have escaped. Consequently, the trial Court has chosen to convict appellant Dhaniram also for sharing the common intention along with other appellants.
7. Shri Arun Mishra has further contended that keeping in view that the complainant party is being prosecuted in the criminal Court regarding this very incident, the sentence imposed upon the appellants, being too severe, should be reduced or they should be released on probation. This contention deserves outright rejection, because in para 26 of the impugned judgment, the trial Court chose to award only three years’ rigorous imprisonment to each of the appellants, because the complainant-party was being prosecuted in the criminal Court on the appellants’ report. This contention is also, therefore, rejected.
8. The upshot of the above discussion is that this appeal is bereft of any merit and deserves to be rejected. Accordingly, the appeal is dismissed and the conviction and the sentences imposed upon the appellants by the trial Court are maintained. Their bail bonds stand cancelled. They are directed to appear before the Chief Judicial Magistrate, Datia, on 20-1-1986 to hear the result of the appeal.