ORDER
M.P. Varma, J.
1. The aforementioned five petitioners have been found guilty of the charges under Sections 147 and 323 of the I.P.C. and each one of them has been sentenced to suffer simple imprisonment for eight months under each count. Petitioner No. 1 has been further found guilty of the offence punishable under Section 324 of the Indian Penal Code and sentenced thereunder to suffer further one year’s rigorous imprisonment. The sentences have, however, been ordered to run concurrently. They, having lost the appeal against the order of conviction before the Sessions Judge, have filed this application in revision challenging the order of conviction and sentence passed against them.
2. The case against the petitioners arose on information before the police lodged by Rameshwar Singh at the Police Station. Short facts of the case are as follows-
That while Rameshwar Singh was returning home after collecting some tolls at Majhauli Hat on 10.5.75 at about 8 P.M., he was suddenly surrounded by these petitioners. They asked him to enter into a compromise in the proceeding under Section 145 of the Code of Criminal Procedure to which the latter refused whereupon they all fell upon him and began assaulting with various weapons they were holding. His brother Ram Ekbal Singh rushed and intervened, but he too was assaulted. Allegation is that petitioner Nos. 1 and 2 were carrying Farsas but they used the blunt portion of the weapons in assaulting Rameshwar Singh and Ram Ekbal Singh. There is further allegation that the three others also joined and they assaulted with fists and slaps.
3. The police, on information lodged by Rameshwar Singh (P. W. 7), instituted a case, proceeded with the investigation and finally submitted chargesheet, on the basis of which, the Chief Judicial Magistrate took cognizance of the offences. Petitioner No. 1 was charged for an offence punishable under Section 325 of the Indian Penal Code for causing grievous hurt to P. W. 7, but finally, the trial court, on consideration of the evidence, convicted him of the charge under Section 324 of the Indian Penal Code and others were held guilty of the charges under Sections 147 and 323 of the Indian Penal Code under which petitioner No. 1 has also been convicted.
4. Short paint raised on behulf of the petitioners is that there was a counter-version of the case of which both the courts below failed to take notice of and made totally a wrong appraisal of the evidence. Normally, this Court, sitting in revision, would not have entered into discussion for re-appraisal of evidence in a case finally concluded by both the courts of facts, but, taking into consideration that the courts below committed serious error in not taking into consideration, the injuries found on the two petitioners, namely, petitioners, 1 and 2 said to have been caused to them in the same occurrence, it appears essential to examine the counter-version of the case brought on the record in evidence.
5. Five defence witnesses are said to have been examined, out of whom D. W. 5 is a doctor. The doctor found injuries on petitioner No. 1 as well as on petitioner No. 2. The injury No. (1) on petitioner No. 1 was an incised wound. Besides, there were four injuries on his body. Similarly, the doctor found five injuries on petitioner No. 2 as well. Their case is that they got injured in the same occurrence. Petitioner No. 1, in support of the defence plea, examined himself as one of the defence-witnesses (under Section 315 of the Code of Criminal Procedure). Other three witnesses have also testified to this fact that the members of the prosecution party, who have their residence at the spot in front of the road, were the aggressors. D. W. 4 has given an ocular-version of the entire incident. It is relevant to state that petitioner No. 1 filed a complaint before the Chief Judicial Magistrate on 12.5.1975. 11.5.1975 was a Sunday and, therefore, the complaint was filed on the day following i.e. on 12.5.1975. The trial court, while discussing the defence version, has held as follows:
D. W. 4 Kalika Singh admitted that the criminal case filed by them with regard to the alleged incident of 10.5.1975 was dismissed for which a criminal revision 145/77 lie. Thus, we cannot draw any other conclusion than what is existing at present i.e. defence case stands disbelieved.
The appellate court, too, in paragraph 10 of the impugned judgment observed as follows-
I have examined the nature of injuries and. to me it appears that they are so superficial that they may be easily concocted possibly some may have been caused by the prosecution side also in course of defending themselves…. There is no evidence to show as to what happened to the counter-case which they had brought against the informant and his men.
I have indicated above that both the courts below have taken erroneous view of the situation. It could not be denied that some of the accused were also assaulted in the same occurrence and the injuries on them eloquently speak of it coupled with the statements of the defence witnesses and also the admission of P. W. 4 that the place of occurrence as given by the accused was the place i.e. the road and the houses of the parties stand on either side of the road. If there is a riot, assault and counter-assault, it is obligatory for the prosecution to come to court with a clean hand and to explain the injuries caused to the other side. If the injuries on the accused are so superficial and small that might not be visibly seen and noticed, non-explanation thereof, may not jeopardize the trustworthiness of a prosecution witness. But if the injuries are quite perceptible and are such which might not go un-noticed, and the evidence transpires that the accused also got injuries in the same incident, a duty is cast on the prosecution to explain the same. There were as many as five injuries on each of petitioners 1 and 2. According to the doctor, one of the injuries on petitioner No. 1 was an incised wound on the forehead, besides this there were other three or four injuries on other parts and in such a situation, there was a duty for the prosecution to have explained the same. It has been rightly argued that the prosecution has not given the true version of the occurrence. Material facts have been suppressed.
6. The courts below have taken an erroneous view in not considering the counter-version on the ground that the petition of complaint filed by the accused petitioner No. 1 was dismissed.
7. It was a wrong notion for the trial court to draw a conclusion that because of the dismissal of the complaint-petition by the Chief Judicial Magistrate, the defence case stood disbelieved. The appellate court as well committed error of record in stating that there was no evidence as to what happened to the counter-case. The evidence is very much there. It was open for the accused petitioners to have pleaded facts in defence, and the dismissal of the petition of complaint did not put a bar in taking the plea and in bringing the counter-version, in proof of the fact that there was counter-assault or the men of the prosecution were aggressors. The court should have given an independent approach in appraisal of the evidence to find out if the injuries were caused in the same occurrence or the plea taken by the accused petitioners was a belated one or a concocted story for the purpose of defence. The appellate court has taken the view as referred to above that possibly the injuries were caused by the prosecution side and in view of this finding, the conviction of the petitioners should not have been upheld.
8. Both the parties are on litigating term. There is a long standing land dispute and a proceeding under Section 145 of the Code of Criminal Procedure, too, was pending. The prosecution did not choose to examine independent witnesses, some of the neighbours had arrived at the scene but no explanation has been given for their non-production in court. In the circumstances, referred to above, a reasonable doubt is cast in the prosecution story and benefit thereof must be given to the accused. From what has been, said above, it is clear that the correct version of the prosecution story is not coming before the Court. The case, therefore, must fail.
9. In the result, the application succeeds and the order of conviction and sentence passed against the petitioners by the courts below is set aside.