Prakash Thakur and vs The State of Bihar

N. Pandey, J.—These four Appellants, have been convicted by the 2nd Additional Sessions Judge, Muzaffarpur, in Sessions Trial No. 123 of 1982, for the offence under Sections 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life for having committed murder of Birendar Thakur. They have also been found guilty for the offence u/s 307/34 I.P.C. but no separate sentence was awarded. However, all the Appellants have been acquitted of the charges under Sections 147/1481 I.PC. Appellant Prakash Thakur has also been found guilty of the offence u/s 323 I.P.C. but there is no separate sentence.

The case of the prosecution, as per the statement of Amarnath Thakur (P.W.11), before the A.S.I., at Sadar Hospital, Muzaffarpur, on 25.5.1981, was that on the same day, his elder brother Birendra Thakur (deceased) was washing mouth and hand at a tubewell near his darwaza. The informant and his father Ragho Thakur were also sitting there. In the meantime, the accused persons, armed with Bhala, lathi and farsa and basula, attacked Birendra Thakur. It is alleged that Appellant Prabhat Kumar Thakur attacked on the neck on account of which Birendra Thakur fell down. Thereafter, Appellant Madho Thakur assaulted him with basula on the neck. When Ragho Thakur (P.W.9) tried to save, on the order of accused Suresh Thakur, Appellant Madho Thakur gave basuli blow on his back and Appellant Prabhat Kumar Thakur gave a farsa blow on his shoulder and Suresh Thakur also assaulted with farsa. The informant, thereafter, raised alarm. When the informant started crying, Appellant Prakash Thakur also assaulted with lathi. It was also claimed that Mahendra Thakur, Banshidhar Thakur and Umesh Thakur and many of Ors. had seen the occurrence. Thereafter, all the persons assembled there, carried the deceased Birendra Thakur and injured Ragho Thakur to hospital. In the fardbeyan it is also stated that about 12 months ago, the accused persons had assaulted the deceased Birendra and Ragho Thakur on account of which a criminal case was pending investigation. Therefore, on account of that enmity, such offence was committed by the accused persons.

The defence of the accused persons, as would appear from the statement of the Appellants u/s 313 of the Code of Criminal Procedure and the trend of cross examination, is denial about the manner of occurrence. According to them, in fact accused Madho Thakur was taking bath on the well which was just near the tubewell. In the mantime, Ragho Thakur and his son Birendra Thakur (deceased) armed with farsa, Amar Nath Thakur with bhala and Sunil with lathi came there and started assaulting Madho Thakur, who on receiving several injuries, cried for help on which Suresh Thakur and Prakash Thakur arrived there. But they were also assaulted with bhala and farsa. All the three injured Appellants were also admitted in the Sadar Hospital, Muzaffarpur and their statement was recorded by the Police on 27.6.1981.

The prosecution has examined altogether 16 witnesses in support of its case including the injured persons. P.Ws. 2,3,5,6,8,9 and 11 namely, Umesh Thakur, Banshidhar Thakur, Suraj Mahto, Binod Thakur, Ramgati Devi, Ragho Thakur and Amar Nath Thakur, respectively, claimed to have seen the occurrence. P.W.1 Kedar Nath Thakur is a formal witness. P.W.7 Vindyachal Thakur was tendered. P.W.10 Rishi Thakur a witness for inquest, P.Ws.12 and 13, namely Uma Shankar Prasad Srivastava and Yogendra Kumar are doctors. P.W.14 Vidyanath Choudhary is Assistant Sub Inspector of the Police Station who recorded the Fardbeyan. P.W.15 Yogendra Rai Rakesh is a formal witness and P.W.16 Md. Sarif is the Investigating Officer.

Before considering the evidence of the eye witnesses, and the case of the patties on merit, it would be significant to note that in the first information report, cause of incident was disclosed as previous enmity on account of filing of a criminal case for the offence which had taken place 1 1/2 months prior to the present case. But at the time of trial, all the eye witnesses including the injured persons have stated that occurrence took place because the accused persons wanted the informant and Birendra Thakur to remove the brick stack which was kept on the common land.

It would also be useful to notice that in the first information report or during investigation, the prosecution had completely suppressed to disclose that at least three of the Appellants, namely, Prabhat Thakur, Madho Thakur and Suresh Thakur had sustained several injuries, grievous in nature, in course of the occurrence. During trial, almost all the witnesses had accepted that these Appellants having received injuries were also hospitalised in the same hospital at Muzaffarpur which would also be evident from the statement of P.W.12 Dr. Uma Shankar Prasad Shrivastva, who had examined their injuries on 26.5.1981 in the hospital. Thus, from the facts noticed above, it is almost admitted by the parties that on 26.5.1981, during occurrence in question, Birendra Thakur after being assaulted, succumbed to the injuries. P.W.9 Ragho Thakur and three of the Appellants, namely, Prabhat Thakur, Madho Thakur and Suresh Thakur received grievous injuries by weapons like farsa, bhala and basuli. According to P.W.4 Dr. Manoranjan Kumar Shrivastva, who had conducted the autopsy of Birendra Thakur, injuries Nos. (ii) and (iii) were jointly or individually sufficient to cause death. These injuries were incise wound on the neck and lung. Similarly, P.W.12 Dr. Uma Shankar Prasad Shrivastva had stated that P.W.9 Ragho Thakur and three of the Appellants, namely, Prabhat Thakur, Madho Thakur and Suresh Thakur, received injuries by sharp and penetrating weapon as also lathi.

There is no doubt that the prosecution witnesses like P.W.2 Umesh Thakur, P.W.3 Banshidhar Thakur, P.W.6 Binod Thakur, P.W.8 Ramgati Devi, widow of the deceased and P.W.9 Ragho Thakur (injured) and P.W.11 Amar Nath Thakur (Informant) have supported the prosecution version that the accused persons having assaulted Birendra Thakur committed his murder and during that transaction also assaulted Ragho Thakur. But from the evidence of the witnesses, it does not appear that such occurrence took place because of any pre-plan and meditation. As per the statement of these witnesses, since the prosecution party did not accede to the request of the accused persons to remove the brick stack, a marpeet took place. Though as per the defence, such occurrence took place while accused Madho was taking bath, but from the facts noticed above, there appears no doubt that the occurrence took place on the spur of moment acid there was no pre-plan nor any intention of the accused persons to commit murder of the deceased Birendra Thakur.

True it is that Mr. Singh during his argument was able to point out certain contradictions in the statement of the eye witnesses with regard to the place of occurrence and weapons used by the Appellants, but if entire evidence of such witnesses are taken into consideration, it would not be safe to discard their testimony. Because undisputedly, barring few contradictions and variations in the statements, the witnesses are consistent with regard to the role played by the accused persons during the occurrence in question.

Mr. Singh then contended that in view of settled norms, non-explanation of the injuries sustained by the accused at the time of occurrence or in course of altercation, is one of the most important circumstances on which a Court should draw adverse inference against the case of the prosecution. In support of such submission while placing reliance on a decision of the apex Court, in the case of Lakshmi Singh and Others Vs. State of Bihar, , Mr. Singh contended that the trial Court was in complete errors in brushing aside such serious infirmity in the prosecution case regarding non-explanation of injuries sustained by the accused persons at the time of occurrence.

Mr. Singh further submitted that even some of the prosecution witnesses at the time of trial disclosed that accused persons also sustained injuries at the time of occurrence it cannot meet the well settled requirement for a prosecution to disclose the injuries of the accused persons, in their first information report. Therefore, evidence of such prosecution witnesses cannot be accepted on its face value. In support of such submission, Mr. Singh also placed reliance on a decision of the apex Court in the case of Mitter Sen and Ors. v. The State of U.P. (AIR 1976 SC 1956).

Yet reliance was also placed to Anr. decision of the apex Court in the case of State of Rajasthan Vs. Madho and another, . In that case also, the prosecution witness had failed to explain the injuries sustained on the accused persons. It was held that the testimony of such prosecution witnesses gives such an impression that they were certainly suppressing some part of the incident and, therefore, the accused persons were entitled for benefit of doubt.

In my view, having regard to the aforesaid pronouncements of the apex Court, as noticed above, there cannot be any doubt that in case the prosecution and its witnesses failed to explain the injuries sustained by the accused persons in course of the same incident, it gives an impression that witnesses are suppressing at least part of the truth. Therefore, if credibility of prosecution witness is doubted, naturally the accused persons would be entitled to benefit of doubt.

But in the case before us, though in the first information report, the prosecution had failed to explain the injuries sustained by the accused persons, but undisputedly, during trial, P.W.s 2,3,6,9,11 and 12, namely, Umesh Thakur, Banshidhar Thakur, Binod Thakur, Ragho Thakur, Amar Nath Thakur and Dr. Uma Shankar Srivastva, respectively, have accepted in their evidence that at least three of the Appellants had sustained injuries at the time of occurrence. Out of the abovementioned witnesses, P.W.9 is injured and P.W.12 is the doctor. These witnesses have also accepted that after the occurrence, the Appellants were admitted in the hospital, therefore, it would not be proper to submit that facts of this case are identical to that of the cases before the apex Court which I have just noticed.

In support of the views expressed by me, it would be useful to notice the judgment of the apex Court in the case of Hare Krishna Singh and Others Vs. State of Bihar, , as relied upon by the learned Counsel for the State. In that case, it was held if the witnesses examined on behalf of the prosecution are believed by the Court in proof of the guilt of the accused beyond reasonable doubt, the question of obligation of the prosecution to explain the injuries sustained by the prosecution may not arise. In other words, merely because the prosecution had failed to explain the injuries on the accused, credibility of the eye witnesses cannot be disbelieved if they are able to disclose the injuries on the person of the accused persons.

Learned Counsel appearing for the State further contended that similar view as taken by the apex Court in the case of Hare Krishna Singh and Ors. (supra) was also taken in the case of Bhagwan Tana Patil Vs. The State of Maharashtra, that the entire prosecution case cannot be thrown over board simply because the prosecution witnesses did not explain the injuries on the person of the accused. Because such non-explanation is a factor which is to be taken into account in judging the credibility of the prosecution witnesses. Therefore, it is apt to scrutinise whether the prosecution witnesses have disclosed the injuries found on the person of the accused. No invariable proposition of law for universal application can be taken. Therefore, having regard to the facts noticed above, it would not be safe to discredit the testimony of the eye witnesses and disbelieve the case of the prosecution.

But I have already noticed that having regard to the facts of the case, particularly, manner of occurrence and role played by the accused persons, it would appear that the Appellants had no intention to cause death of Birendra Thakur. Therefore, their conviction u/s 302/34 of the Indian Penal Code appears to be not justified. But in the manner, the accused persons used their respective weapons to assault Birendra Thakur, they can certainly be attributed with the knowledge that injuries caused to Birendra Thakur was likely to "cause" death. In such a situation, the Appellants may not be convicted u/s 302/34 I.P.C. but they would certainly be held guilty for committing the offence u/s 304 Part II I.P.C. In support of such a finding, a reference can usefully be made to a decision of the apex Court in the case of Tholan Vs. State of Tamil Nadu, .

Accordingly, conviction of the Appellants for offence u/s 302/34 I.P.C. and sentence of life are set aside. The Appellants are, however, convicted for having committed offence u/s 304 Parta II/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years. Conviction of these Appellants under all other counts is confirmed.

With the aforesaid modification in the judgment of the trial Court, both these appeals are party allowed to the extent indicated above.