Medni Singh and Raghubir Singh vs State of Bihar

Sadanand Mukherjee, J.—Criminal Appeal No. 440 of 2001 preferred by appellant Medni Singh and Raghubir Singh is directed against the judgment and order dated 30th August, 2001 of the learned 3rd Additional Judge, Jamui passed in Sessions Case No. 130 of 1986, whereby and whereunder, both the appellants have been convicted u/s 323 of the Indian Penal Code only and sentenced to undergo R.l. for six months. Criminal Appeal No. 474 of 2001 is directed against the same judgment and order, whereby and whereunder, the appellant Shailendra Singh has been convicted u/s 302 of the Indian Penal Code and sentenced to undergo R.l. for life.

The prosecution case, in brief, is that Jai Ram Singh (PW. 5) lodged Fardbeyan (Ext. 2) on 27.7.1985 at about 10 A.M. stating that in the morning at about 7 A.M. he and his younger brother Jatan Singh (deceased) were ploughing their field situated at Sahsarama Mirja Pariwand, his son Shiv Kumar Singh (PW. 2) and Ram Kumar Singh (PW. 3) were digging the field with spade. At about 8.45 A.M. accused Moti Singh (since dead), Medni Singh, appellant, Baiju Singh @ Baijnath Singh (acquitted), Subodh Kumar Singh (acquitted) came to his field. Shailendra Singh was armed with pistol and others were armed with Lathi. Accused Moti Singh asked the informant party to stop ploughing the field. When the informant protested, Moti Singh ordered other accused persons to kill them. Thereafter, Medni Singh assaulted the informant by Lathi on his head, causing injury on his head due to which he fell down and when his son Ram Kumar Singh came for rescue Moti Singh assaulted him by lathi. Thereafter, other accused persons also tried to assault them. In the meantime, accused Shailendra Singh fired at the brother of the informant, namely, Jatan Singh which hit him and Jatan Singh fell down and succumbed to injuries. Thereafter, all the accused persons fled away. It is stated that thereafter son of the informant, namely, Shiv Kumar Singh came. Prosecution case further is that the younger uncle, Doman Singh has executed Dan-Patra (deed of gift) in the name of his son on 22.3.1982 for 4 acres 58 1/2 decimals of land as aforesaid Doman Singh had no issue and since then, they are in possession over the aforesaid land. The accused persons wanted to dispossess them from the aforesaid land and hence the occurrence.

On the basis of the aforesaid fardbeyan Sikandara P.S. Case No. 107 of 1985 was lodged against all the accused persons. Charge sheet was submitted under sections 147, 148, 149, 302, 323, 447 of the Indian Penal Code as well as Section 27 of the Arms Act.

Accused Shailendra Kumar Singh was charged with the offence u/s 302 of the I.P.C. for committing murder of Jatan Singh.

Accused Oroti Singh (dead), Medni Singh, Raghubir Singh, Oriju @ Baijnath Singh and Subodh Kumar Singh were charged with the offences under sections 302/149 of the I.P.C, for being members of an unlawful assembly in prosecution of the common object, in assaulting Jai Ram Singh and Ram Kumar Singh and in dispossessing them from their lands, one of the members, Shailendra Singh caused the death of Jatan Singh. Aforesaid accused persons were also charged with offence u/s 147 of the I.P.C, for being members of unlawful assembly in assaulting Jai Ram Singh and Raj Kumar Singh. During pendency of the case, accused Moti Singh died and as such, proceeding against him was dropped by the trial court.

The case of the defence is that no such occurrence in the manner as alleged by the prosecution has taken place, rather the accused persons were assaulted by the prosecution party, for which Sikandara P.S. Case Nu. 108 of 1985 has been lodged and further case of the defence is that the prosecution has lodged a false and concocted case against the accused persons.

After trial of the case, the trial Judge did not find the charge u/s 148 of the I.P.C, against accused Shailendra Kumar Singh to have been proved, the trial Judge further found that the charge u/s 147 of the I.P.C, against rest of the accused persons have not been proved. So far as accused Baiju @ Baijnath Singh and Subodh Kumar Singh are concerned, the trial court acquitted both Baijnath Singh and Subodh Kumar Singh from all charges levelled against them. The trial court found Shailendra Kumar Singh guilty of the offence u/s 302 of the I.P.C, and further convicted and sentenced him to undergo R.l. for life under the aforesaid section. So far as accused Medni Singh and Raghubir Singh are concerned, they have been convicted u/s 323 of the I.P.C, and sentenced to undergo R.l. for six months.

Two separate appeals have been filed as stated earlier, one for conviction and sentence against accused Shailendra Kumar Singh having been held guilty u/s 302 of the I.P.C, and the rest for their conviction and sentence u/s 323 of the I.P.C.

It is to be considered whether the prosecution has been able to prove their case beyond reasonable doubts.

In this case on behalf of the prosecution as many as six witnesses have been examined. PW. 1 is Sheo Kumar Singh, PW. 2 is Doman Singh, PW. 3 is Ram Kumar Singh, PW. 4 is Sukhdeo Singh, PW. 5 is Jai Ram Singh and PW. 6 is S. I. Uday Kant Pathak. It appears that the trial court made repeated strenuous efforts to secure attendance of the doctors by summoning them through the Health Commissioner & Civil Surgeon. The summons issued against Dr. CR Sinha was returned with endorsement that he is dead. Dr. CR Sinha was the doctoi who performed post mortem examination on the deceased. Dr. Nand Kishore Singh and Dr. P. Jain were also summoned through the Health Commissioner and Dasti summons were also issued for the aforesaid doctors through Public Prosecutor but the aforesaid doctors who examined the injured persons did not appear to depose in this case.

It may be mentioned that Dr. Nand Kishore Singh and Dr. P. Jain were the doctors on the injury reports, but they have not appeared to depose in this case.

PW. 1 Sheo Kumar Singh is the son of the informant. PW. 2 is Doman Singh. It is said that Dan Patra (Deed of Gift) was executed in favour of son of the informant Sheo Kumar Singh (PW. 1). PW. 3 Ram Kumar Singh, is also the son of the informant. He also received injuries in course of incident. PW. 4 Sukhdeo Singh who saw the incident on the way while proceeding to Sahsarama to purchase buffalo. PW. 5 is the informant himself. PW. 6 is I.O. of the case.

PW. 1 Sheo Kumar Singh is the eye-witness to the incident. His evidence is that on 27.7.1985 at 8.30 to 9 A.M. while he was in his field alongwith his father Jai Ram Singh (PW. 5), his brother Ram Kumar Singh (PW. 3) and uncle Jatan Singh, (deceased) while Jatan Singh was ploughing the field and others were spading the field, accused Moti Singh, Medni Singh, Raghubir Singh, Baiju @ Baijnath Singh, Shailendra Kumar Singh and Subodh Kumar Singh came variously armed. His evidence further is that accused Shailendra Kumar Singh was armed with pistol, whereas, other accused persons were armed with Lathi. The accused persons started removing the plough, whereupon, father of this witness (PW. 5) protested. On the orders of accused Moti Singh (dead) accused Medni Singh assaulted his father Jai Ram Singh (PW. 5) on head by Lathi. Baiju @ Baijnath Singh and Subodh Kumar Singh also assaulted his father. In the meantime, his younger brother (PW. 3) reached there. Ram Kumar Singh (PW. 3), younger brother of this witness was assaulted by Raghubir Singh on his head with Lathi causing injury to Ram Kumar Singh (PW. 3). Accused Shailendra Kumar Singh fired at Jatan Singh who fell down. Accused persons chased this witness for assaulting him. His evidence further is that thereafter other persons came to the place of occurrence and saw that his uncle Jatan Singh was profusely bleeding. It is stated by him that the aforesaid field was in their possession by virtue of Dan Patra (Deed of Gift) by Doman Singh (PW. 2). It appears from perusal of the evidence of this witness in cross-examination that there is a college in the village but he denies that he had informed the police on phone from the college regarding the incident after the occurrence. He has denied having stated before the police that he had ever told the police about giving information regarding the incident on phone from the College. In this connection it may be stated that the I.O. (PW. 6) has stated in his evidence that this witness had stated before him that he had rushed to Pirhanda College for giving information to the police on telephone. In his cross-examination this witness has consistently stated about the fact that on the order of accused Moti Singh assault was started. His evidence further indicates that the prosecution party had not assaulted any one in course of incident. Although he had not seen accused Medni Singh in the Sikandara Hospital, but he came to know that accused Medni Singh was also hospitalised in the aforesaid hospital. He expressed his ignorance about 145 Cr.P.C. proceeding, pending in course of incident. There was, however, a proceeding u/s 107 of the Cr.P.C. His evidence in the cross-examination also reveals that there was a deed of gift by Doman Singh (PW. 2) in respect of the aforesaid land. The evidence of this witness on the point of assault and killing have not been discredited, although in respect of information given to the police there is contradiction in the evidence of this witness vis-a-vis statement before the police, the same does not in any way affect the veracity of the prosecution case on the factum and manner of the incident.

It may be mentioned here that a cryptic information to the police is not sufficient for the purpose of F.I.R.

It has been consistently held by the Apex Court that telephonic message too cryptic, cannot constitute F.I.R. [ Soma Bhai Vs. State of Gujarat, ]. Even the mere fact that information was first in point of time does not by itself clothe with the character of F.I.R. ( Tapinder Singh Vs. State of Punjab and Another, ).

The F.I.R, was instituted on the fardbeyan of Jai Ram Singh, the informant (PW. 5) at 11 A.M. on the fardbeyan recorded at 10.15 A.M. on the facts and particulars of the incident described by the informant, Jai Ram Singh constituting the offences. The F.I.R, which is based upon the detailed facts does not in any way stand in contrast with any cryptic information as such cryptic information cannot be treated as F.I.R, nor the same is hit by the provisions u/s 162 of the Cr.P.C. The presence of PW. 1 at the place of occurrence is contested by the defence on the ground that he had fled the place of occurrence to Pirhanda College to inform the police on phone and he cannot be said to be an eyewitness. But his presence appears to be an admitted fact in view of the fact that in the counter case of assault being Sikandra P.S. Case No. 108 of 1985, PW. 1 also has been made an accused, which confirms the presence of PW. 1 on the place of occurrence.

PW. 2 Doman Singh has adduced evidence to the effect that on the date of occurrence, the deceased was ploughing his field. Jai Ram Singh, Sheo Kumar Singh and Ram Kumar Singh were preparing the field with spades. In respect of the aforesaid P.O. land, it has been stated by PW. 2 that he had executed a Dan Patra (deed of gift) (Ext. 1) in favour of Sheo Kumar Singh (PW. 1) in 1982. Thereafter Sheo Kumar Singh and Jai Ram Singh came in possession of the aforesaid la*d. As regards manner of occurrence his evidence is that the accused persons, namely, Moti Singh, Medni Singh, Raghubir Singh, Baiju @ Baijnath Singh, Shailendra Kumar Singh and Subodh Kumar Singh came to the field and they started obstructing the cultivation work, whereupon, Jai Ram Singh (Informant) and his brother protested. On the orders of Moti Singh, Medni Singh assaulted Jai Ram Singh by Lathi on his head. Jai Ram Singh was also assaulted by Baiju @ Baijnath Singh and Subodh Kumar Singh by Lathi. His further evidence is that Ram Kumar Singh came to save him. His further evidence is that accused Shailendra Singh fired fatal shot at Jatan Singh (deceased). The evidence of PW. 2 further is that Raghubir Singh assaulted him on his forehead causing injury which is further corroborated in the evidence of the I.O. His evidence is that the accused persons are from the branch of one Peru Singh. This witness (Doman Singh) and Peru Singh were step brothers. Moti Singh, Medni Singh and Raghubir Singh are the sons of Peru Singh. Accused Shailendra Singh, Baiju @ Baijnath Singh and Subodh Singh are the sons of accused Moti Singh. This witness has categorically stated about partition of the ancestral lands. He also expressed ignorance about 144 and 145 Cr. P.C. proceedings over the land given on gift in favour of Sheo Kumar Singh (PW. 2). The defence has attempted to bring home the case of jointness over the land in question as also bonafide land dispute. PW. 6, the I.O. recorded the statement of Doman Singh, three days after the occurrence and issued injury slips. The doctor also examined him. His injuries have been found to be superficial in nature (Ext. 5/5). Whatever his worth as witness may be, his evidence on the point of execution of Dan Patra (Deed of gift) is an admitted piece of evidence and the claim of the informant party over the aforesaid land is the genesis of the occurrence.

PW. 3 Ram Kumar Singh is the son of Jai Ram Singh (PW. 5). This witness has stated that he alongwith his father Jai Ram Singh, brother Sheo Kumar Singh and uncle Jatan Singh were working in the field on the date of occurrence. At about 8 to 9 A.M. accused persons came. Shailendra Singh was armed with pistol and rest of the accused persons were armed with lathi. Accused Moti Singh ordered for removal of the plough, whereupon, his father (informant) protested. Accused Moti Singh ordered and exhorted other accused persons to kill him. Thereafter accused Medni Singh and Raghubir Singh assaulted his father with lathi and when he went to save him, Raghubir Singh assaulted him also by lathi on his head. Accused Shailendra Singh made firing at his uncle Jatan Singh. Jatan Singh fell down. This witness has further stated about deed of gift executed by Doman Singh in favour of his brother Sheo Kumar Singh. He has stated in his evidence that the land in question was in their possession. In his cross-examination he has denied that on the date of occurrence there was 144 proceeding in respect of the land in question. He has admitted that Medni Singh has filed a counter case. He is consistent about the sequence of the occurrence. His evidence further shows that his father also fell down after assault. As regards killing of the deceased, his evidence is that Jatan Singh was killed from a distance of 1-1/2 Hath Jatan Singh fell down soon after the shot was fired. He denies that Medni Singh was brutally assaulted by the prosecution party before taking possession of the land and in course of that, his father fired shots by his licensee gun for taking possession of the land. So far as this witness is concerned, although the factum of land dispute has been elicited from his version, there is no material contradiction in the evidence of this witness regarding the manner of occurrence, assault on the prosecution party and killing of the deceased Jatan Singh by Shailendra Singh.

PW. 4 is Shukhdeo Singh. His evidence is that he was going to Sahsarama for purchase of buffalo at about 8 to 9 A.M. This witness found Moti Singh, Baiju @ Baijnath Singh, Raghubir Singh, Medni Singh, Shailendra Singh and Subodh Singh with lathi on the field of Ram Jatan Singh who was ploughing his field. His further evidence is that Jai Ram Singh, Ram Kumar Singh and Sheo Kumar Singh were spading the field. Doman Singh was also at the field. His further evidence is that Moti Singh started removing the plough and hot exchange ensued between the parties abusing each other. Accused Medni Singh and Raghubir Singh assaulted Jai Ram Singh (Informant) (PW. 5) and Ram Kumar Singh (PW. 3) on their head. His evidence is that accused Sarangdhar Singh (distorted pronunciation of Shailendra Singh") fired shot at Ram Jatan Singh who fell down. This witness himself had admitted that for the last five to six months he had been suffering from cataract, hence on the dock he was unable to identify two accused persons, namely, Shailendra Kumar Singh and Baiju @ Baijnath Singh. His evidence in cross-examination speaks about details regarding relationship among Raghubir Singh, Moti Singh and Medni Singh who are own brothers. He has stated that before police he had taken the name of Sarangdhar Singh (''Shailendra Singh''). It appears from perusal of the evidence of the I.O. (PW. 6) that no contradiction has been taken on this point and it appears that this witness has taken the name of Sarangdhar Singh, which might be a mistaken pronunciation of the name of accused "Shailendra Singh." His evidence in cross-examination regarding manner of occurrence and the genesis of the occurrence does not deviate from the main prosecution case. His evidence regarding absence of injury on the person of Medni Singh is not in consonance with the evidence of the I.O. on the point of injury on accused Medni Singh.

On behalf of the defence it has been categorically stated that the evidence of two witnesses, namely, PW. 2 and PW. 4 has not been relied upon by the trial court while basing the conviction and sentence. However, these witnesses are charge sheeted witnesses and no vital contradiction has been taken from the evidence of the I.O. regarding the version of PW. 2 and PW. 4. PW. 4 has not been abie to identify two accused persons on the dock because of cataract in the eye. In F.I.R., the presence of Doman Singh (PW. 2) on the P.O. land does not find place. But from the evidence of I.O. (PW. 6) it is manifest that this witness had injury and his statement apart from other also has been recorded. The trial court also found that after three days of the occurrence, his injuries were got examined by the doctor subsequent to an injury slip issued by the I.O. Whatever worth is attributed to the evidence of P.W. 2 and PW. 4, it has to be seen whether prosecution case is weakened by their evidence. However, analysis of evidence of this witness shall be made in subsequent paragraphs.

PW. 5 Jai Ram Singh is the informant of this case. He has adduced evidence to the effect that this witness alongwith his sons Sheo Kumar and Ram Kumar Singh and younger brother Jatan Singh were working in the field. In the meantime, accused Moti Singh, Medni Singh, Raghubir Singh, Baiju @ Baijnath Singh, Shailendra Kumar Singh and Subodh Kumar Singh came to their field. Accused Shailendra Singh was armed with country made pistol and other accused persons were armed with Lathi. The evidence of the informant further is that accused Moti Singh ordered for removal of plough. The informant protested, whereupon, accused Medni Singh assaulted the informant with lathi, whereupon this witness fell down. Accused Baiju @ Baijnath Singh and Subodh Singh also assaulted the informant with lathi. His son Ram Kumar Singh (PW. 3) came to his rescue. Raghubir Singh assaulted him with lathi on his head. Accused Shailendra Singh fired shot at his younger brother Jatan Singh causing injury on his chest. Firing was made from a short distance. Jatan Singh died at the spot. The informant has stated about the cause of occurrence stating that Doman Singh (PW. 2) who is the informant''s uncle by agnatic relation executed a Dan Patra (deed of gift) in favour of his son Sheo Kumar Singh, in respect of the land where the occurrence took place as the aforesaid Doman Singh lives with the informant and the accused persons wanted to dispossess them, hence the occurrence. His evidence further is that this witness alongwith injured Ram Kumar and his son were sent to Sikandara hospital where they were treated. His evidence is that on the P.O. land itself the police came on information sent to the police by the villagers and his fardbeyan (Ext. 2) was recorded by the police. His further evidence is that the inquest report was prepared by the S.I. of police (PW. 6). The inquest report has been proved as Ext. 3 on which Ramasharay Singh and Sudhir Singh affixed their signatures. This witness and Ram Kumar Singh were treated at Sikandara hospital. His evidence in cross-examination regarding genealogy is that Doman Singh who had executed the deed of gift is the step brother of Peru Singh, father of the accused persons, seems to be an admitted fact. In his cross-examination he has stated about partition between Peru Singh and Doman Singh. It is not disputed that Jhari Singh the father of the informant and Peru Singh are own brothers while Doman Singh is step brother. There was dispute over the land and there was 144 Cr.P.C. proceeding in the year 1983. This is admitted by this witness. There was a proceeding u/s 145 of the Cr. P.C. at the time of occurrence. This is also an admitted fact that there was also a proceeding u/s 107 of the Cr. P.C. initiated through the accused persons which has also been admitted by this witness. He has denied having been armed with any licensee gun and lathi at the time of occurrence. He has also denied that Medni Singh sustained injury at the time of occurrence, although he has stated that Medni Singh had filed a counter case. He has admitted that his son Sheo Kumar and Ram Kumar and others are accused in that case. His evidence that he was conscious even after the assault also inspires credence. He denied that after the accused Medni Singh sustained injuries at the hand of the informant and others, they got unconscious. He has not stated before the police regarding assault by Baiju @ Baijnath Singh and Subodh Singh. The evidence of this witness does not discredit manner of occurrence and killing of the deceased by Shailendra Singh. However, so far as Baiju @ Baijnath Singh and Subodh Singh are concerned this witness has not given any evidence before the police. It may be mentioned that both Baiju @ Baijnath Singh as well as Subodh Kumar Singh have been acquitted by the trial court and their acquittal during the trial on the basis of the merit of the evidence does not affect the rest of the prosecution case.

PW. 6 Udai Kant Pathak is the investigating Officer of this case. His evidence is that on 27.7.1985, he was posted at Sikandara. He received information on telephone at about 9.45 A.M. that a person was killed at village Pirhanda. He made station diary entry and proceeded towards the place of occurrence. He reached at the place of occurrence at about 10.15 A.M. and recorded the fardbeyan (Ext. 2). Formal F.I.R, was drawn by A.S.I. Ram Nagina Rai (Ext. 4). This witness investigated the case. He prepared inquest report of Jatan Singh (Ext. 3). This witness has given detailed description of place of occurrence stating that the place of occurrence is in village Sahasarama. He has given the boundary of the place of occurrence and stated that on the eastern ridge of the field lay the head portion of the dead body and the torso was in the field. He found injury on the person of the informant also. His evidence is that the P.O. land is in the village Sahasrama, Sahasrama Mirjaparibandh, Khata No. 14, Khesra No. 412 measuring 8.39 decimals, which was field of the informant. The field of Kameshwari Singh was to the south and field of Jai Ram Singh was to the east and west. He has stated that Pirhanda village is at a distance of 1 K.M. from the place of occurrence and Sahasrama is 400 yards south. This witness has issued injury slip to Jai Ram Singh, Ram Kumar Singh and Doman Singh and thereafter they were sent for treatment. The injury slips have been proved as Exts. 5 to 5/2. The injury report given by Dr. Nand Kishore Singh, the Medical Officer, Sikandara Hospital is marked as Exts. 5/3 to 5/5 which include injury reports of injured Doman Singh which was prepared by Dr. P. Jain. The dead body of the deceased was sent for postmortem examination. P.M. report was prepared by Dr. CR Sinha (Ext. 6). In his cross-examination this witness was-asked about his departure for Sikandara and reaching at Sikandara. He found charring injury at the place of wound on the person of the deceased. He had not found any sign of blood near the place of occurrence. It appears from perusal of evidence of this witness in cross-examination that this witness has also found injuries on the person of Medni Singh and report has been proved as Ext. A, having been prepared by Dr. Nand Kishore Singh. A case was instituted against the prosecution party under sections 307, 324, 147, 149, 323 and 447 of the I.P.C. The injury slip of accused Medni Singh has been proved as Ext. A/1 sent by the police station to the Medical Officer. His evidence further shows that the informant has also produced witnesses, namely, Sukhdeo Singh (PW. 4) and Uchit Narain Singh (not examined). His evidence clearly indicates that accused Medni Singh was at Sikandara hospital under the police custody for his treatment from 27.7.84. He was sent to jail custody on 9.8.1984. His evidence regarding initial information received from Sheo Kumar Singh (PW. 3) although denied by Sheo Kumar Singh, is suggestive and indicative of the fact that information had been received by telephone call given by Sheo Kumar Singh (PW. 3). So far as this witness is concerned, there appears to be no infirmity in supporting the prosecution case. Charge sheet has been filed after investigation was completed.

It appears from perusal of the evidence of this witness that the F.I.R, has been lodged at a reasonable time considering that the time of occurrence was at 8.45 A.M, fardbeyan has been recorded at 10.15 A.M. and the F.I.R, was lodged at 10.15 A.M. on the same day. Hence, there is no delay in lodging the F.I.R.

In this case Dr. CR Sinha who had conducted the post mortem examination on the dead body of the deceased Jatan Singh could not be examined. The Investigating Officer (PW. 6) has proved the post mortem report (Ext. 6). The trial court even after formal proof of postmortem report sent summons to Dr. CR Sinha for appearance as witness, which was returned with endorsement that, Dr. CR Sinha was dead. The trial court in the judgment has indicated that service report of summons was on record and the same would also appears from the order dated 20.6.2001. It appears that the aforesaid service report has not been formally proved.

It has been contended on behalf of the defence that the post mortem report cannot be taken into consideration as the doctor has not been examined in this case. In this connection State of Himachal Pradesh Vs. Jai Lal and Others, has been cited to show that the expert''s evidence becomes a factor often an important factor for consideration alongwith other evidence of the case.

However, the worth and the requirement of post mortem examination has been enunciated in the decision of the Supreme Court as enumerated in the case of Kehar Singh and Others Vs. State (Delhi Administration), it was held as follows:--

"42. Learned counsel for Appellant No. 1 Satwant Singh also made a reference to some of the questions which were raised before the High Court in respect of the post-mortem, although learned counsel appearing for the other two appellants did not seriously raise those questions. It is apparent that in the facts of the case as the evidence stands the question of post-mortem or a fuller post-mortem was necessary or not, loses all its significance. There is no dispute that she died as a result of the gun shot injuries which was inflicted by Beant Singh and Satwant Singh, one who shot from his service revolver and other from the carbine. In view of such clear evidence about the cause of the death, the post-mortem examination loses all its significance. It becomes important only in cases where the cause of death is to be established and is a matter of controversy."

.........................

"320. It is, however, argued for the accused that the finger prints found on the sten-gun were not tested for comparison and the two bullets recovered from the body of Mrs. Gandhi were not examined for the traces of blood or tissues. It is further said that the postmortem examination conducted by Dr. Dogra ought to have been full and complete to clinch the issues. There is no substance in these contentions. It is not necessary to confirm the finger prints on the sten-gun, as that of the accused when it is proved that sten-gun was delivered to him. The examination of the bullets recovered from the body of Mrs. Gandhi for the traces of blood or tissues is also unnecessary, since one of the bullets taken by the Doctor tallied with the sten-gun. Equally, limited postmortem examination conducted by Dr. Dogra would not affect the merits of the case. It is not always necessary to have a completed post-mortem in every case. Section 174 of the Code confers discretion to the Police Officer not to send the body for post-mortem examination if there is no doubt as to the cause of death. If the cause of death is absolutely certain and beyond the pale of doubt or controversy, it is unnecessary to have the post-mortem done by Medical Officer. In the instant case, there was no controversy about the cause of death of Mrs. Gandhi. A complete post-mortem of the body was therefore uncalled for."

(Emphasis is added)

In the instant case it is relevant to point out that in para 15 of the cross-examination of PW. 5 (informant) the defence has put a suggestion to the informant for the purpose of defence case that the informant resorted to firing 2-3 times and when the informant came with his gun aimed at accused Medni Singh, Jatan Singh (deceased) caught hold of barrel of gun which went off as a result of which Jatan Singh (deceased) was killed. Thus, death of Jatan Singh by gun shot injury had been admitted by the defence and only manner of occurrence has been challenged.

The post-mortem report (Ext. 6) shows that the same was conducted on 27.7.1985 at 5 P.M. on the dead body of Jatan Singh son of Ramfal Singh of Village Pirhanda, P.S. Sikandara. The body was of Hindu male aged about 25 years with rigot mortis on the following findings:--

(i) There were lacerated wound in front of abdomen in left side just out side the middle line 1"x1/2" deep to peritoneal cavity with black margin of skin. On dissection there was lacerated wound of middle of left loba of liver and peritoneum was ruptured and there was about five hundred cc of blood in peritoneal cavity and the pericardium and heart was ruptured and there was about 300 cc of blood in chest cavity. The diaphragm was lacerated in left side. 6 pillets were collected from liver and 4 from left side of chest cavity and one cartridge cover was also recovered from lower part of left chest cavity."

Post mortem report further shows that injuries were ante mortem in nature by gun shot, fired from distance of 6 yards and duration approximately about 12 hours and cause of death is due to shock and haemorrhage and very serious injuries to liver and heart.

In this connection it may be pointed out that the I.O. (PW. 6) has already proved the inquest report (Ext. 3) which confirms the fatal injuries on the person of the deceased. Ext. B is the defence document, being the charge sheet in the counter case of Sikandara P.S. Case No. 108/85. This case is under sections 147, 148, 149, 307, 341, 323 of the I.P.C. Although, the defence has put a suggestion that the informant himself was armed with licensee gun the facts narrated in the charge sheet relied on by the defence (Ext. B) does not show that the informant has any gun in his hand. Ext. B which has been relied upon by the defence as an important document shows that the lathi injuries were inflicted on Medni Singh by the accused persons. No case has been lodged under the Arms Act by the defence against the accused persons. The case of the defence regarding the informant having a gun in hand which went-off killing the deceased therefore does not stand close scrutiny. The defence thus admits that there was gun shot injury on the deceased which is an established fact.

Although the defence has assailed the prosecution case stating that in absence of the legal proof of the post mortem report cause of death of the deceased is not proved, the trial court relied upon Section 32(2) of the Indian Evidence Act wherein it is provided that the statement in writing on the relevant facts, inter alia, made by the person who is dead or who cannot be found or who has become incapable of giving evidence or whose evidence cannot be procured without any amount of delay or expense which under the circumstances of the case appears to the court to be unreasonable are themselves relevant facts in the cases when statement was made by such person in ordinary course of business or in particular when it consists of any entry or memorandum made by him in books kept in ordinary course of business or in discharge of his professional duties. As such, the trial court found that the post mortem report (Ext. 6) is relevant u/s 32(2) of the Indian Evidence Act. Postmortem report (Ext. 6) is admissible as such in the facts and circumstances of the case. Although the trial court''s finding aforesaid is regarding application of section 32(2) of the Evidence Act in absence of legal proof of postmortem report (Ext. 6) by the competent person and also in absence of the evidence of the reliable and the admissible evidence of the death of the doctor, the death of the deceased by gun shot injury being established and admitted fact as stated above, the evidence led by the prosecution regarding cause of death is so cogent and reliable that even in absence of the application of the provisions of Section 32(2) of the Evidence Act, the defence is incapacitated in challenging the cause of death as also the established fact of death of the deceased Jatan Singh by gun shot injury.

In this connection a Division Bench of this Court in the case of Udho Mahto vs. State of Bihar" reported in 1993(2) P.L.J.R. 133 laid down as follows:--

"14. The post mortem report by itself is not a substantive evidence. It is the evidence of the Doctor in Court which is substantive evidence. The postmortem report can be used only for the purpose of corroborating the evidence of the Doctor or for the purpose of contradiction or for the purpose of refreshing his memories under the provisions of the Evidence Act. There are only two circumstances in which the post mortem report can be used as a substantive evidence. Firstly when the case is covered by Section 32(2) of the Evidence Act and secondly when the post mortem report is brought on the record in accordance with the provisions of Section 294 of the Code of Criminal Procedure."

From the aforesaid discussion regarding evidence adduced on behalf of the prosecution it appears that there is consistent evidence of the prosecution that Doman Singh (PW. 2) had executed a Dan Patra in favour of Sheo Kumar Singh, son of informant in respect of 4 Acres 88 decimals of land which fact also appears from perusal of the Dan patra (Ext. 1). The defence has only denied story of partition and separate possession of Doman Singh over any land and further the defence claims right to the share of Doman Singh and since there is no partition, the defence pointed out that Doman Singh has no right to execute Dan Patra to Sheo Kumar Singh son of the informant. Ext. C is the document filed by the defence showing that a proceeding u/s 144 of the Cr. P.C. was initiated for the aforesaid land which has been converted into a proceeding u/s 145 of the Cr. P.C. and the crops standing there was attached by order dated 7.1.1984. The aforesaid facts clearly show that there was dispute over the aforesaid land. The defence seems to have advanced a case of joint possession over all the lands and also a case that the prosecution party are not in possession over the land gifted by Doman Singh. From the evidence led above, considering also the fact that it is never the case of the defence that they had ever acted on self-defence the defence contention that the occurrence occurred as the prosecution party forcibly wanted to dispossess the accused persons does not appear to have been established but on the other hand the prosecution has been able to establish the motive behind the occurrence.

Coming to the point of non-examination of the doctor and on the defence contention of failure on the part of the prosecution to prove the cases of death of the deceased and to prove the manner of occurrence and the cause of death of the deceased, it is worthwhile to quote the words of the Supreme Court in the case of Mohan Singh and Another Vs. State of M.P., , in which the Apex Court found that it is onerous duty of the Court, within permissible limit, to find out the truth. The Supreme Court in the aforesaid reported case held as follows:--

"Mere variance of the prosecution story with the medical evidence, in all cases, should not lead to the conclusion, inevitably to reject the prosecution story. Efforts should be made to find the truth, this is very object for which Courts are created. To search it out, the courts have been removing the chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long as chaff, cloud and dust remain, the criminals are clothed with the protective layer to receive the benefit of doubt. So it is a solemn duty of the courts not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the court, within permissible limit, to find out the truth. It means on the one hand that no innocent man should be punished but on the other hand to see that no person committing an offence should go scot-free. If in spite of such effort, suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. For this, one has to comprehend the totality of the facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of eye-witnesses including the medical evidence, of course, after excluding those parts of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of a prosecution or a defence case could be concretised. It would depend on the evidence of each case including the manner of deposition and his demeanour, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So courts have to proceed further and make genuine efforts within the judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt."

It is true that both PW. 2 (Doman Singh) and PW. (Sukhdeo Singh) are not F.I.R. named witnesses. It was held by the Supreme Court that mere absence of names of witnesses in the F.I.R. cannot be a ground for doubting their evidence. There is no requirement of mentioning all the witnesses in F.I.R. [ Raj Kishore Jha Vs. State of Bihar and Others, ].

Besides that, from the discussion made above it is abundantly clear that even if the evidence of PW. 2 (Doman Singh) and PW. 4 Sukhdeo Singh, who has been termed by the defence as chance witness is not considered, the killing of the deceased Jatan Singh by accused Shailendra Singh in Cr. Appeal No. 474 of 2001 stands proved in the evidence of P.W.1, PW. 2, PW. 3 and PW. 5 read with the evidence of I.O. (PW. 6). It is submitted that except PW. 6 the I.O. all other above witnesses are related to each other. They were working in the field when the occurrence occurred. It has therefore been submitted on behalf of the defence that since they are close relatives their evidence should not be relied upon. As discussed above, P.Ws. 1 and 3 are sons of the informant. PW. 5 is the informant himself and hence P.Ws. 1, 3 and 5 are related witnesses. It is settled principle of law that if the evidence of eye-witnesses is cogent and reliable supported by the corroborative evidence and circumstances merely because of relationship their evidence should not be discarded.

In this case so far as killing of the deceased is concerned, the same has been supported by the aforesaid witnesses and they have not been discarded during cross-examination. It is worthwhile to point out that the defence has formally proved documentary evidence (injury report Ext. A), although doctor has not been examined which shows multiple injuries on the person of accused Medni Singh allegedly inflicted by the informant. In this connection PW. 6, the I.O., at paras 10 and 12 is to the effect that the I.O. had seen Medni Singh in injured condition in the hospital which finds support from the injury report of Medni Singh (Ext. A). Ext. A shows that all the injuries were simple in nature. In this connection on behalf of the defence reliance has been placed on the case of Lakshmi Singh and Others Vs. State of Bihar, , in which a larger Bench of the Supreme Court was pleased to hold the effect of omission on the part of the prosecution to explain injuries on the person of the accused:--

"The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.

There may be cases where the non-examination of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply 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, so probable, consistent and credit worthy, that it far outweights the effect of the omission on the part of the prosecution to explain the injuries. State of Gujarat Vs. Bai Fatima and Another, . Rel. on."

However, recently in the case of ''Anil Kumar vs. State of U.P.'' reported in 2005 SC (Cri) 178, while discussing the impact of non-explanation of injuries the Apex Court held as follows:--

"10. We shall first deal with the question regarding non-explanation of injuries on the accused. Issue is if there is no such explanation, what would be its effect. We are not prepared to agree with the learned counsel for the defence that in each and every case where the prosecution fails to explain the injuries found on some of the accused, the prosecution case should automatically be rejected, without any further probe. In Mohar Rai and Bharath Rai Vs. The State of Bihar, it was observed: (SCR p. 529 F-G).

"In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants."

In another important case Lakshmi Singh and Others Vs. State of Bihar, after referring to the ratio laid down in Mohar Rai case this Court observed: (SCC p. 401 para 12);

"(W)here the prosecution fails to explain the injuries on the accused, two results follows: (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants."

It was further observed that:

In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:

(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.

The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one."

In Mohar Rai case it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true, or at any rate, not wholly true. Likewise in Lakshmi Singh case it is observed that any non-explanation of the injuries on the accused by the prosecution may affect the prosecution case. But such a non-explanation may assume greater importance where the defence gives a version which competes in probability with that of the prosecution. But where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently the whole case. Much depends on the facts and circumstances of each case. These aspects were highlighted by this Court in Vijayee Singh and others Vs. State of U.P., .

Non-explanation of injuries by the prosecution will not affect the prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so independent and disinterested, so probable, consistent and creditworthy, that is outweights the effect of the omission on the part of the prosecution to explain the injuries. As observed by this Court in Ramlagan Singh and Others Vs. State of Bihar, , the prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put question to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an accused. In Hare Krishna Singh and Others Vs. State of Bihar, , it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the court in proof of guilt of the accused beyond reasonable doubt, question of obligation of the prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person ot the accused. It is more so when the injuries are simple or superficial in nature. In the case at hand, trifling and superficial injuries on the accused are of little assistance to them to throw doubt on the veracity of the prosecution case."

It has already been pointed out that so far as injury reports (Exts. 5/3, 5/ 4 and 5/5) on the person of the informant (PW. 5), Ram Kumar Singh (PW. 1) and Doman Singh (PW. 2) are concerned, the doctors, namely, Dr. Nand Kishore Prasad and Dr. P. Jain have not been examined. The case of the prosecution is that their attendance could not be procured and therefore the contents of the injury reports have got formally proved. The injury report, as stated above, relied upon by the prosecution as also the injury report confirming the injury on accused Medni Singh have been prepared by the same doctor. The trial Court has relied upon Section 32(2) of the Evidence Act while discussing the case of assault on the informant and the other witnesses and convicted the accused Medni Singh and Raghubir Singh u/s 323 of the I.P.C.and sentenced them for a period of six months. The case of the defence that injured Medni Singh was assaulted by Jai Ram Singh is supported by the defence document i.e. charge sheet (Ext. B) in counter case which is corroborative piece of evidence, but in this case both the doctors who prepared the injury reports of the informant and witnesses as also with regard to accused Medni Singh are alive and are still in service. But they have not been produced as witnesses. In case of Dr. CR Sinha, who conducted the postmortem examination on the dead body of Jatan Singh, case of the prosecution is that he is dead, but so far as these witnesses are concerned, namely, Dr. Nand Kishore Prasad and Dr. P. Jain, who prepared the aforesaid injury reports, namely, Exts. 5/3 to 5/5 as well as Ext. A which is in support of the injury on the person of accused Medni Singh, have not been examined. The trial court found that their attendance could not be procured despite repeated efforts. Admittedly, the injuries on the person of Ram Kumar Singh (PW.1), Jai Ram Singh (PW. 5), Doman Singh (PW. 2) are simple in nature. Incapacity of aforesaid two doctors to give evidence as contemplated by Section 32 of the Evidence Act must be proved and proved strictly ( Bhim Mandal Vs. Magaram Corain and Others, ). Onus of establishing the circumstances that would prove the statement within the exception of Section 32 of the Evidence Act lies on the party wishing to avail itself of the statement. In this case this onus of establishing the circumstances has not been discharged by the prosecution despite the fact that the aforesaid doctors were alive and might be posted elsewhere. Their attendance could not be procured by the prosecution. Injuries were admittedly simple in nature. Besides, the defence has advanced the case that accused Medni Singh also suffered injury at the hand of the informant (Ext. A). In absence of examination of doctors the factum of injuries have not been proved.

It is well settled law that to search out the truth the court has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long as chaff, cloud and dust remain, the criminals are clothed with the protective layer to receive the benefit of doubt. It is onerous duty of the court to find out the truth. For this one has to comprehend the totality of the facts and circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of eye-witnesses including the medical evidence, of course, after excluding those parts of the evidence which are vague and uncertain.

In this case that part of the evidence which is cogent, consistent and reliable as on record regarding place of occurrence, time of occurrence and manner occurrence with regard to the fact that accused Shailendra Singh fired which hit the deceased resulting in his death proves the case against accused Shailendra Singh by the prosecution beyond reasonable doubts.

As stated above, prosecution case of simple injuries on the person of the informant and witnesses as stated above by accused Medni Singh, accused Raghubir Singh read with the defence case of accused Medni Singh having been assaulted by the informant Jai Ram Singh by lathi resulting in simple injuries coupled with the non-examination of doctors as discussed above is separable from the case against accused Shailendra Singh under the facts and circumstances as narrated above. In the above back-ground this court is led to the conclusion that the prosecution has not been able to prove the case against Medni Singh and Raghubir Singh u/s 323 of the I.P.C. beyond reasonable doubts.

In view of the aforesaid facts and circumstances, the conviction and sentence passed by the learned Additional Sessions Judge, Jamui against Medni Singh and Raghubir Singh is set aside. They are discharged from the liabilities of their bail bonds.

In the result, Cr. Appeal No. 440 of 2001 preferred by appellants Medni Singh and Raghubir Singh is allowed. In view of the cogent and reliable evidence of the prosecution case against accused Shailendra Singh corroborated by the facts and circumstances stated in the above discussion, the conviction and sentence of appellant Shailendra Singh are maintained.

In the result, Cr. Appeal No. 474 of 2001 is dismissed.

Manohar Lal Visa, J.

I agree.