Bodh Manjhi and Others vs The State of Bihar (Now Jharkhand)

D.N. Patel, J.—The present appeal has been preferred against the judgment of conviction and order of sentence both dated 28th September, 1993 passed by learned 4th Additional Sessions Judge, Palamau in Sessions Trial No. 286 of 1988. The appellants have been convicted for the offence punishable u/s 302, to be read with Section 149 of the Indian Penal Code and sentenced to undergo Life Imprisonment and further they have been convicted for the offence punishable u/s 323 to be read with Section 149 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for six months. Appellant no. 1, namely, Bodh Manjhi, who is original accused no. 3, has been convicted for the offence punishable u/s 148 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for one year. Appellants, namely, Prabhu Manjhi, Charkhu Manjhi, Jageshwar Manjhi @ Rajeshwar Manjhi @ Rameshwar Manjhi, Hardu Manjhi, Indal Manjhi and Patuka Devi have been further convicted for the offence u/s 147 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for six months. All the sentences have been directed to run concurrently. It is a case of the prosecution that on 3rd June, 1985 at about 01:00 a.m., the informant (P.W.4-injured eye witness) gave his fardbeyan to the police that his brother, namely, Nandu Manjhi, was in need of money and, as such, he had sold his wrist watch to Indal Manjhi (appellant no. 6) two days ago and in the afternoon of 2nd June, 1985, appellant no. 6 came to Nandu Manjhi and wanted to return the wrist watch on the plea that it was not working properly. Nandu Manjhi was not prepared to take back the wrist watch and to refund the money. Altercation took place and Indal Manjhi (appellant no. 6) went away after giving threat to Nandu Manjhi. On the same night, when the informant and his family members were sleeping, all the accused persons came with the weapon like Bhujali a sharp cutting instrument, stone and lathi at the house of the informant during night hours at about 11:00 p.m. on 2nd June, 1985 and they assaulted Sukhlal Manjhi (father of the informant), who later on expired on the next day''s morning at about 06:00 a.m. They also caused injury to Santu Manjhi (P.W.4-informant) as well as to Kusumbari Devi (P.W.5-mother of the informant). Asha Devi (P.W. 6-wife of the informant) was also present in the house, who has also seen the incident. Sukhlal Manjhi became unconscious and immediately he was taken to Panki Hospital for treatment, where, he died on the next day''s morning i.e. on 3rd June, 1985 at about 06:00 a.m. P.W. 7- Dr. Akhauri Singeshwari Prasad had attended the injured Sukhlal Manjhi at Panki Hospital. The injury report was also prepared by the said doctor, which is marked as Ext.-3/1. P. W. 7 had also examined Santu Manjhi (P.W. 4) and his injury certificate is also proved by P.W. 7, which is marked as Ext.-3. P.W. 7 has also proved the injury certificate of P.W.-5, who had also sustained injury. Postmortem of Sukhlal Manjhi was carried out by P.W. 1- Dr. Arun Kumar Sinha. Postmortem report has been marked as Ext.-1.

On the basis of the First Information Report, investigation was carried out, chargesheet was submitted and the case was committed to the court of session for trial. In course of trial, the prosecution has examined altogether nine witnesses and on the basis of their evidence on record and material exhibits, the learned trial court has convicted the appellants-accused mainly for the offence punishable u/s 302 to be read with Section 149 of the Indian Penal Code and sentenced them to undergo Life Imprisonment. Against this judgment of conviction and order of sentence, present appeal has been preferred.

We have heard learned counsel for the appellants, who has submitted that there are major omissions and contradictions in the depositions of the Prosecution Witnesses. There is+ also material improvement in the case of the prosecution by these witnesses. This aspect of the matter has not been properly appreciated by the learned trial court and, hence, the impugned judgment of conviction and order of sentence passed by the trial court deserves to be quashed and set aside.

It is vehemently submitted by learned counsel for the appellants that the so called eye witnesses of the incident, who are P.W. 4, P.W. 5 and P.W. 6, have actually not seen the incident, at all. None of these witnesses has categorically stated that Bodh Manjhi (appellant no. 1-original accused no. 3) has caused injury to the deceased, namely, Sukhlal Manjhi. There is general narration of the incident, given by these three witnesses. Moreover, the injuries sustained by the deceased, as narrated by the medical evidence, are not tallying with the weapon, alleged to have been used by appellant no. 1-original accused no. 3. There is discrepancy between ocular evidence and medical evidence. It is also submitted by learned counsel for the appellants that no independent witness has been examined by the prosecution, though there are independent witnesses. As per the evidence of Investigating Officer, who is P.W. 9, there is no recovery of the weapon by the prosecution. It is also submitted by the learned counsel for the appellants that though the appellants have also sustained injuries, but, they have not been explained by the prosecution. It is further submitted by the learned counsel for the appellants that there was no light at the place of occurrence and, therefore, there is no proper identification of the appellants. All the witnesses, especially P.W. 4, P.W.5 and P.W.6 are interested witnesses as they are close relatives of the deceased. These aspects of the matter have not been properly appreciated by the learned trial court. It is also submitted by the learned counsel for the appellants that the charges framed by the trial court has also been altered by the trial court on 13th July, 1993 i.e. after examination of all the witnesses and no opportunity was given to the appellants to cross examine the witnesses. This aspect of the matter has also not been properly appreciated by the trial court and, hence, the judgment of conviction and order of sentence passed by the trial court deserves to be quashed and set aside.

We have heard learned A.P.P. appearing on behalf of the State, who has vehemently submitted that the whole incident has taken place in between night of 2nd and 3rd June, 1985 and immediately the First Information Report has been lodged, where, all the appellants-accused have been named. Thus, there is no chance of concoction of story, whatsoever arises. The whole case of the prosecution is based upon the evidence of three eye witnesses, out of whom, two eye witnesses are injured, who are P.W.4 and P.W.5. Another eye witness is P.W.

The incident has taken place at the house of the victims. Initially, hot altercation took place at about 11:00 a.m. on 2nd June, 1985 and, thereafter, one of the appellants, who is appellant no. 6-original accused no. 2, gave threat and on the same day at night hours, all the appellants came at the house of the victims, with weapons in their hands. This shows that the appellants were aggressive in nature. Mens-rea also revealed on the part of the appellants. The appellants came together at about 11:00 p.m. on 2nd June, 1985 at the house of the victims and they caused injuries to Sukhlal Manjhi, who is father of the informant. They have also caused injuries to P.W.4- Santu Manjhi as well as P.W. 5-Kusumbari Devi. Sukhlal Manjhi became unconscious upon getting injuries at the hands of the appellants. He was brought at the Panki Hospital, where, he was given treatment by P.W.7- Dr. Akhauri Singeshwari Prasad, who has also given treatment to the injured eye witnesses i.e. P.W.4 and P.W.5. These certificates have also been proved by P.W.7. On 3rd June, 1985 at about 06:00 a.m., in morning hours, Sukhlal Manjhi expired, whose postmortem was carried out by P.W. 1 - Dr. Arun Kumar Sinha. There are six injuries on the body of the deceased. It is vehemently submitted by the learned A.P.P. that looking to the depositions, given by P.W.4, P.W.5 and P.W.6, though they are rustic witnesses, they have clearly narrated the incident without any exaggeration and without any major omissions and contradictions. The whole incident has taken place during night hours at the house of the victims and, therefore, naturally the eye witnesses will be the relatives of the deceased. Merely because P.W.4, P.W.5 and P.W.6 are the relatives of the deceased, their evidence may not be discarded. Learned A.P.P. heavily relied upon a decision rendered by the Hon''ble Supreme Court in the case of State of Punjab Vs. Wassan Singh and Others, and submitted that if the evidence is given by interested witnesses, the same may be viewed by the Court with all circumspection and their deposition cannot be discarded, because they are interested witnesses. It is also submitted by learned A.P.P. that the injuries sustained by the appellants-accused, as stated by the Investigating Officer, is not helpful to the appellants because there is no suggestion in the cross examination of the prosecution witnesses about getting injuries at the hands of the victims nor there is any suggestion of free fight between the appellants and the victims nor any defence is taken by the appellants in their statements, recorded u/s 313 of the Code of Criminal Procedure.

To substantiate this argument, learned A.P.P. has vehemently submitted that if there is no suggestion in the cross examination about the injuries sustained by the appellants at the hands of the victims, the injuries will not be presumed to have been caused by the victims. Learned counsel for the State is also relying upon a decision rendered by the Hon''ble Supreme Court in the case of Thoti Manohar v. State of Andhra Pradesh reported in (2012) 7 SCC 723, especially paragraphs 28, 29 and 30. It is further submitted by learned A.P.P. that so far as amendment in charge is concerned, looking to the records and proceedings of S.T. No. 286 of 1988, the date on which the charge is amended i.e. 13th July, 1993, it has been recorded by the learned trial court that the appellants were given adequate opportunity to cross examine the prosecution witnesses, but, they have refused to cross examine them further. Thus, the argument canvassed by the learned counsel for the appellants that alteration in the charge has caused serious prejudice to the appellants, is not tenable at law. It is also submitted by the learned A.P.P. that there is no discrepancy between the ocular evidence, given by P.W. 4 and P.W.5 and the medical evidence given by P.W.1 and P.W. 7. When the injuries sustained at head, where the bone is much nearer to skin, the injury should have been noted in the medical evidence, being capable as lacerated wound which is capable of being caused by sharp cutting instrument and also caused by hard and blunt substance, because the skin is much nearer to bone. Both these type of weapons have been used by the appellants and thus, there is no discrepancy in the medical evidence and the ocular evidence and this aspect of the matter has been rightly appreciated by the learned trial court while holding that all the appellants-accused formed unlawful assembly and assaulted the deceased with weapons during night hours. The incident has taken place at the house of the victims and, therefore, they have been rightly punished for the offence punishable u/s 302, to be read with Section 149 of the Indian Penal Code and, therefore, no error has been committed by the learned trial court, while passing the judgment of conviction and order of sentence in Sessions Trial No. 286 of 1988 and, therefore, the appeal preferred by the appellants may not be entertained by this Court.

Having heard learned counsel for both the sides and looking to the facts and circumstances of the case, it appears that:

(i) The whole incident has taken place during night hours i.e. at about 11:00 p.m. on 2nd June, 1985. The case of the prosecution is mainly based upon the evidence of three eye witnesses P.W. 4, P.W. 5 and P.W. 6, out of which, P.W. 4 and P.W.5 are injured eye witnesses. They were examined by Dr. Akhauri Singeshwari Prasad (P.W. 7) at Panki Hospital and their injury certificates are marked at Ext.-3 and Ext. 3/2. The deceased also sustained serious injuries and in unconscious position, he was taken to the same hospital and was treated by the same doctor P.W.7, whose injury certificate is marked at Ext.-3/1.

(ii) Looking to the First Information Report, lodged by P.W.4, Santu Manjhi, it appears that he had also sustained injuries and he was also hospitalized at Panki Hospital and on 3rd June, 1985 at about 01:00 a.m., where he gave his fardbeyan to the police on 2nd June, 1985 that Indal Manjhi (appellant no. 6-original accused no. 2) came to Nandu Manjhi and wanted to return the wrist watch because it was sold for Rs. 70/- to Indal Manjhi by the brother of the informant, who was in need of money. As the wrist watch was not properly working, Indal Manjhi wanted to return the same and wanted back his money. Nandu Manjhi was not prepared to take back the wrist watch nor he wanted to return the money and, thus, there was hot altercation between them, during the noon hours on 2nd June, 1985. Indal Manjhi gave threat to him and went away. On the same day at night hours i.e. on 2nd June, 1985 at about 11:00 p.m., all the appellants came at the house of the victims with weapons like Bhujali- a sharp cutting instrument, stone and lathi. It is further stated by the informant that they assaulted Sukhlal Manjhi, who was seriously injured and became unconscious. The appellants also caused injuries to Santu Manjhi (P.W. 4-informant-son of the deceased Sukhlal Manjhi) and Kusumbari Devi (P.W. 5-wife of the deceased-mother of the informant). All the three victims were taken to Panki Hospital, during night hours and, thereafter, F.I.R. was lodged by P.W.4. Looking to the deposition given by P.W. 4, Santu Manjhi, who is injured eye witness, it appears that he had also sustained injuries. He was treated by P.W.7-Dr. Akhauri Singeshwari Prasad, who gave injury certificate, which is at Ext. 3. Santu Manjhi (P.W. 4) had sustained following injuries:

(a) Sharp cut on the scalp measuring 1"x1/2"x1/3".

(b) Swelling on left shoulder joint measuring 4"x2"x1".

(c) Bruise on left hand 3"x1/2"x1/3".

P.W.4 has categorically stated about the place of incident. He has also identified the accused, because they were known to this witness. Injuries were sustained by this witness Santu Manjhi-informant as well as P.W.5- Kusumbari Devi and P.W.6. Looking to the cross examination of these witnesses, it appears that nothing is coming out in favour of the present appellants. There is no cross examination or suggestion by the appellants about the free fight between the appellants and the victims. There is no suggestion about the injuries, sustained by the appellants-accused in the cross examination. On the contrary, though this witness is rustic, the whole deposition has been given by him in its natural way, without any major omissions, contradictions or improvement. We find this witness (P.W. 4) trustworthy and reliable witness.

(iii) We have also perused the deposition given by Kusumbari Devi-P.W.5-wife of the deceased and mother of the informant, who is also an injured eye witness. Looking to her deposition, it appears that she had also narrated the whole incident, in detail. She has also stated the weapons like Bhujali- a sharp cutting instrument, stone and lathi in the hands of the appellants-accused, without any exaggeration. She has narrated the incident by saying that the appellants came during night hours on 2nd June, 1985 at her house. She has stated that the appellants have caused injuries to Sukhlal Manjhi, Santu Manjhi as well as to her. The incident has also been seen by P.W.6-wife of the informant-daughter-in-law of the deceased. Looking to her cross examination, it appears that nothing is coming out in favour of the appellants. There is no suggestion about any free fight between the appellants and the victims, nor there is any suggestion about the injuries sustained by the appellants, whatsoever. Looking to her deposition, it appears that she has also narrated the injuries sustained by the eye witnesses, which is getting corroboration by the deposition of P.W.7. This witness (P.W. 5) is also a trustworthy and reliable witness. She has sustained following injuries:

(a) Bruise on left elbow joint measuring 1"x1/2"x1/3".

(b) Swelling on the left wrist joint measuring 2"x1"x1/2".

(c) Bruise on left thigh measuring 3"x2"x1".

Injuries were caused by hard or blunt substance within 24 hours of the examination. Her injury report has been marked as Ext. 3/2. This witness is also an injured witness. Thus, we have no reason to disbelieve the evidence, given by P.W. 5. Her presence in her own house is natural. Thus, she has given her deposition without any major omission, contradiction or improvement.

(iv) We have also perused the deposition given by Asha Devi (P.W. 6-wife of the informant and daughter-in-law of the deceased). She is also an eye witness of the incident. She has also stated that the appellants came together at her house at night hours on 2nd June, 1985 with weapons like Bhujali- a sharp cutting instrument, stone and lathi in theirs hands. They assaulted Sukhlal Manjhi, so severely that he became unconscious immediately and they also caused injuries to P.W. 4 and P.W.5. All the three victims were taken to the Panki Hospital, immediately during the night hours, who were examined by P.W. 7. Looking to the cross examination of this eye witness, it appears that her examination-in-chief has remained intact. There is no suggestion to this witness also about the free fight nor there is any suggestion of the injury sustained by the appellants. Looking to the overall deposition given by P.W.6, it appears to us that she has narrated the incident as per her memory and though she is a rustic witness, without any exaggeration, major omission or contradiction, she has stated that the appellants have caused injuries to Sukhlal Manjhi, Santu Manjhi and Kusumbari Devi. Sukhlal Manjhi became unconscious on the spot. Thus, this witness (P.W. 6) is also a reliable and trustworthy witness.

(v) Thus, looking to the depositions of P.W.4, P.W. 5 and P.W.6, it appears that all have stated that the appellants-accused came during night hours at the house of victims with weapons in their hands with common object. The depositions given by these eye witnesses are getting enough corroboration by the report given by P.W.7, who provided immediate treatment to these three victims. The injuries certificates are marked at Ext.-3/1 for Sukhlal Manjhi, Ext.--3 for Santu Manjhi and Ext.-3/2 for Kusumbari Devi. The deposition given by P.W.7 narrates the injuries sustained by the victims, in detail. Sukhlal Manjhi sustained injuries at occipital bone and also other injuries, who expired on 3rd June, 1985 at about 06:00 a.m. Postmortem examination was carried out by P.W.1- Dr. Arun Kumar Sinha. Postmortem report is marked as Ext.-1. Looking to the postmortem report, it appears that there is also fracture at occipital bone. Thus, both these medical evidences given by P.W.1 and P.W. 7 are getting enough corroboration to the depositions of P.W.4, P.W.5 and P.W.6. (vi) Learned counsel for the appellants has argued that there is major omission and contradiction in the depositions of the ocular evidence and the medical evidence. This contention is not accepted by this Court mainly for the reason that the medical evidence given by P.W.1 and P.W.7 is nothing but an opinion of the expert. They are not the eye witnesses of the incident. The whole case of the prosecution is based upon the evidence of three witnesses P.W. 4, P.W.5 and P.W.6, out of which two i.e. P.W.4 and P.W.5 are injured eye witnesses. The medical evidence clearly states about the injuries sustained by the deceased-Sukhlal Manjhi, as per postmortem report. The following are the injuries sustained by the deceased-Sukhlal Manjhi, as per P.W.7:

(a) Bruise on right arm 1"x1/2"x1/3".

(b) Swelling on right arm near elbow joint measuring 2"x1"x1".

(c) Bruise on left arm measuring 1"x1/2"x1/3".

(d) Sharp cut on the scalp with profuse bleeding and fracture of occipital bone.

(e) Swelling right thigh measuring 3"x2"x1".

As per P.W.1, who has carried out the postmortem examination on 3rd June, 1985, the injuries sustained by the deceased are as under:

(a) Bruise 2"x4" over front of left elbow joint.

(b) Abrasion 2"x2" over outer side of right arm in the middle.

(c) Bruise 1"x1" over right arm.

(d)Bruise 1"x1/2" over front of middle right thigh.

(e) Lacerated wound 1"x1/2"x1/2" over scalp.

(f) Bruise with swelling 2"x2" over right temporal scalp. On discussion there was a big haematoma in the sub-cutaneous tissue. Underlying peristem torn and underlying bone (temporal bone) was found fracture. Meninges underlying fracture bone was found torn and brain tissue lacerated with haematoma 2"x2" in the brain matter.

Slight confusion has been tried to be created by the learned counsel for the appellants about the nature of injuries, recorded by these two witnesses. It is rightly submitted by the learned A.P.P. that in fact, there is no discrepancy between the ocular evidence and medical evidence. When injuries have been sustained by the deceased on head, where the skin is much nearer to bone, it happens that the wound appears to be alike lacerated wound though it might have been caused by sharp cutting weapon. In the facts of the present case, the injuries sustained by the deceased is on parietal region, where, bone is nearer to skin and, therefore, both the medical evidence and ocular evidence are in fact, corroborating each other, because the Court will like to rely upon the evidence of injured eye witnesses, they having sustained injuries and having seen the incident by their own eyes, as stated hereinabove and, therefore, they are trustworthy and reliable witnesses. The medical evidence is nothing, but, an opinion given by the medical expert. They are not the eye witnesses of the incident. All the eye witnesses have categorically stated that the accused caused assault with the weapons like Bhujali, stone and lathi. The injuries have been sustained by Sukhlal Manjhi, who became unconscious on the spot and expired on next morning on 3rd June, 1985. Two eye witnesses have also sustained injuries, as stated hereinabove. These two eye witnesses have categorically stated that Sukhlal Manjhi sustained injuries at the hands of the appellants. It also ought to be kept in mind that too much accurate and mathematical account of each and every injury is not required to be given by the eye witnesses, especially when, two of them have also sustained injuries from the appellants-accused during night hours. Looking to over all evidences of P.W. 4, P.W.5 and P.W.6, it appears that the prosecution has proved the offence, beyond reasonable doubt, which has been committed by the appellants by causing murder of the deceased Sukhlal Manjhi and also causing injuries to the injured eye witnesses. Thus, no error has been committed by the learned trial court in appreciating the evidence on record and passing the impugned judgment and order of conviction and sentence.

(vii) Looking to the deposition given by P.W.4, P.W.5 and P.W. 6, it appears that the appellants-accused came during night hours at about 11:00 p.m. on 2nd June, 1985 after the first incidence, which had taken place during day hours on 2nd June, 1985 itself with weapons together at the house of the victims with object to cause murder of deceased. This constitutes an unlawful assembly. They have fulfilled their common object by causing injury to Sukhlal Manjhi and other victims. Thus, the assembly in the eye of law is an unlawful assembly.

(viii) It has been held by the Hon''ble Supreme Court in the case of State of Punjab Vs. Wassan Singh and Others, in paragraphs 9, 17 and 27, which read as under:

Examined u/s 342, Cr.P.C., Wassan Singh accused admitted that he along with others was tried for the murder of Ajit Singh of village Dhual and Hazara Singh deceased had appeared against him as eye-witness of that murder; and that he (Wassan Singh) was convicted by the Court of Session, but had been released on bail pending his appeal in the High Court. He denied the rest of the prosecution case and stated that he had been falsely implicated by the relations of Ajit Singh deceased on suspicion; and that on the day of occurrence, he was working as a Conductor on a truck at Muzzafarnagar.

The occurrence took place on August 4, 1973, while Resham Singh (P.W.2) and Bachan Singh (P.W. 3) were examined at the trial on December 27, 1974, that is to say, 17 months after the incident. Such discrepancies in regard to collateral or subsidiary facts or matters of detail occur even in the statements of truthful witnesses, particularly when they are examined to depose to events which happened long before their examination. Such discrepancies are hardly a ground to reject the evidence of the witnesses when there is general agreement and consistency in regard to the substratum of the prosecution case. As rightly observed by the trial Court, Resham Singh (P.W.2) was never cross-examined by the defence regarding his whereabouts and that of Hazara Singh deceased on the previous night. The mere fact that P.W.2 did not make any purchases at Amarkot could hardly be a reason to hold that his being in the company of Hazara Singh deceased at the material time, was improbable.

It is true that both these witnesses are related to the deceased, and, as such, are interested witnesses. Their antecedents, also, are of a questionable nature. But their antecedents or mere interestedness was not a valid ground to reject their evidence. Persons with such antecedents are not necessarily untruthful witness. Nor mere relationship with the deceased was a good ground for discarding their testimony, when, as we have already held, their presence at the scene of occurrence was probable. All that was necessary was to scrutinise their evidence with more than ordinary care and circumspection with reference to the part or role assigned to each of the accused. An effort should have been made to sift the grain from the chaff; to accept what appeared to be true and to reject the rest. The High Court did not adopt this methodology in appreciating their evidence. Instead, it took a short-cut to disposal, and rejected their evidence wholesale against all the accused, for reasons which, as already discussed, are manifestly untenable.

(Emphasis supplied)

In view of the aforesaid decision, it has been held by the Hon''ble Supreme Court that there may be evidence given by the interested witnesses, but, that does not mean that their evidence should be brushed aside by the Court. The only thing to be kept in mind by the Court is that when the deposition is given by the interested witnesses or by the relatives of the deceased, their evidence should be appreciated by the Court with more circumspections. We have perused the evidence of P.W.4, P.W. 5 and P.W.6 and also looking to their cross examinations, it appears that nothing is coming out in favour of the appellants, on the contrary, though they are rustic witnesses, they have narrated the whole incident without any exaggeration or major omission or contradiction. Injury certificates of P.W.4, P.W. 5 and P.W.6 have also been proved by the prosecution. Nothing is coming out from the cross examination about the free fight or about the injuries sustained by the appellants. From perusal of the evidences of P.W. 4, P.W. 5 and P.W. 6, it appears that though they are interested witnesses, being relatives of the deceased, their presence in the house, which is the place of occurrence, is natural one, specially during night hours at about 11:00 p.m. on 2nd June, 1985 and, therefore, we will not brush aside the evidences merely because they are interested witnesses or relatives of the deceased.

(ix) It has been held by the Hon''ble Supreme Court in the case of Thoti Manohar v. State of Andhra Pradesh, as reported in (2012) 7 SCC 723 in paragraphs 28 and 29, which read as under:

Now, we shall proceed to dwell with the criticism on the base of which the case of the prosecution is sought to be demolished. The learned counsel for the appellant would submit that the injuries sustained by the accused have not been explained. On a perusal of the evidence of PW 20, the investigating officer, it appears that when he arrested A-1 and A-2, there were certain injuries on their person and they stated that they had received the injuries at the hands of the deceased. It is worth noting that the injuries are superficial in nature, the accused were not sent for medical examination and further there is no suggestion whatsoever as regards the injuries sustained by them to any of the witnesses. The story built up as regards the fight between the two groups does not remotely appeal to common sense and, more so, in the absence of any evidence, it is like building a castle in Spain.

Quite apart from the above, non-explaining of injuries of the accused persons is always not fatal to the case of the prosecution. In this context, we may usefully refer to Shriram v. State of M.P. wherein it has been held that mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases and the said principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested and so probable, consistent and creditworthy that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. Hence, we repel the said submission of the learned counsel for the appellants.

(Emphasis supplied)

In view of the aforesaid decision, there may be injuries sustained by the appellants, as stated by the Investigating Officer (P.W. 9) in his deposition, but, merely because some injuries were sustained by the appellants, the depositions of the eye witnesses cannot be discarded, specially when there is no suggestion in the cross examination of any of the prosecution witnesses, much less of P.W.4, P.W.5 and P.W.6 about the free fight between the parties nor there is any suggestion of any injuries sustained by any of the appellants at the hands of the victims nor the appellants were treated by any doctor. There is no injury certificate of the appellants, on record. In these set of circumstances, we are not inclined to believe that the appellants were injured, arising out of the same incidence. (x) It is also contended by learned counsel for the appellants that there is some alteration in the charge on 13th July, 1993. We have perused the charge wherein Section 148 has been further added. From perusal of the records and proceedings of the Sessions Trial No. 286 of 1986, it appears that the learned trial court has given opportunity to the appellants to cross examine the witnesses, which they have not availed and, therefore, it cannot be said that the trial conducted by the trial court is not fair. (xi) It is also contended by learned counsel for the appellants that there was no source of light at the place of occurrence and, therefore, there is mis-identity of the appellants. This contention is not accepted by this Court mainly for the reason that looking to the deposition of the prosecution witnesses, it appears that the appellants were known to them and the night of 2nd June, 1985 was moonlit night. Thus, the appellants were known to the victims and, therefore, there may not be mis-identification, especially when the eye witnesses have also sustained injuries at the hands of the appellants. Thus, there was no much distance between the appellants and the victims. They may be even identified, easily by the eye witnesses. Similarly, there is also an argument canvassed by learned counsel for the appellants that there is no recovery of the weapons. This contention is not accepted by this Court mainly for the reason that it all depends upon the accused to show the weapons to the investigating agency. There may not be any recovery of the weapons, but, it does not mean that it will prove fatal to the prosecution case.

(xii) Thus, looking to the evidences of the prosecution witnesses especially P.W.4, P.W.5 and P.W.6, it appears that their depositions are getting enough corroboration by the depositions given by P.W. 1 and P. W.7, who are doctors and also getting enough corroboration by the deposition given by P.W.9, Investigation Officer. Thus, no error has been committed by the learned trial court in appreciating the evidences on record and rightly the trial court has convicted the appellants for the offence punishable u/s 302 to be read with Section 149 of the Indian Penal Code.

No error has been committed by the trial court, in appreciating these evidences on record, while convicting and sentencing the appellant-accused. In view of the aforesaid facts, reasons and judicial pronouncements, the judgment of conviction and order of sentence passed by the trial court in Sessions Trial No. 286 of 1988 is, hereby, upheld. The appeal is, hereby, dismissed. The appellants will surrender forthwith. The court below is directed to take all coercive steps for securing appearance of the appellants before the trial court so that the appellants may serve out the sentence.