Ramdeo Rajwar and Another vs State of Bihar

S.B. Sinha, J.—This criminal appeal is directed against judgment dated 5th December, 1986 year passed by Sri Bhikhari Ram, 1st Addl. Sessions Judge, Palamau, in S. Tr. No. 134 of 1981 whereby and whereunder, the said learned Court found the Appellants guilty u/s 302/34 of the Indian Penal Code and sentenced them to life imprisonment. Appellant No. 1 Ramdeo Rajwar was further convicted u/s 323 IPC and sentenced to undergo rigorous imprisonment for one year.

On 30.4.1981 at about 9 a.m. a, fardbeyan was made by Somru Rajwar (P.W. 1) before the Officer in charge of Maithon police station relating to incident which took place at 8 a.m. on that date at village Aghaura situated at about 3 kms. away from the police station. In the said Fardbeyan aforementioned Somru Rajwar alleged that he and his brothers went to the field situated in the aforementioned village where khanapuri operation was going on being done by one Chandrama Baitha (P.W. 13) when the accuesd persons accompanied by several Ors. reached there armed with barchi. In respect of a particular plot, the aforementioned P.W. 13 asked about the possession and ownership, whereupon the Appellant No. 1 gave out that it belonged to his son Ram-chandra Rajwar; whereas the informant stated that it belonged to Kaili Devi wife of Arjun Rajwar on the ground that she purchased it from one Dukhi Rajwarin.

Allegedly thereupon, a dispute arose as a result whereof the accused persons gave barcha blows causing injuries in the head of Arjun Rajwar who fell down dead in the field of Prit Sao. The accused persons Appellants further caused injury to the informant by barcha and lathi. He also fell down and was carried to his house. The police was informed who reached the place of occurrence immediately and the aforementioned fardbayan was recorded.

The defence of the Appellants was that the informant and his men assaulted the accused and they had been falsely implicated for the purpose of grabing the land.

Before the learned trial Court, 14 witnesses were examined on behalf of the prosecution.

P.W. 1 is the informant. P.W. 2 and 7 are other brothers of the deceased and informant. P.W. 3, P.W. 5. P.W. 6, P.W. 8 were declared hostile. P.W. 13 was also declared hostile. P.W. 13 was also declared hostile. P.W. 9, P.W. 12 and P.W. 14 are formal witnesses.

In this case neither the Investigating Officer nor the doctor who held the post mortem examination on the dead body of the deceased Arjun Rajwar was examined.

It appears that the learned court below sent summonses etc. on various occasions to the Investigating Officer and the Doctor, but despite the same, their attendance could not be secured.

The learned Court below, as indicated hereinbefore, upon analysis of the evidence on record found that the prosecution has been able to prove its case as against accused persons.

Mr. P.P.N. Koy, learned Counsel for the Appellants firstly submitted that in the instant case, no judgment of convictioa could have been recorded inasmuch as the Investigating Officer, the doctor and the chaukidar who accompanied P.W. 7 to the police were not examined. According, to the learned Counsel, non examination of the I.O. in this case is fatal to the prosecution case inasmuch as thereby the accused persons were gravely prejudiced.

Learned Counsel in this connection has referred to two Division Bench decisions of this Court in Sk. Rashid and Anr. v. State of Bihar 1937 B.B.C.J. 151 : 1987 PLJR (NOC) 28) and in Rrahmdeo Hazra and Ors. v. State of Bihar (1987 B.B.C.J. 340 : 1987 PLJR 826).

Learned Counsel further submitted that in the instant case, evidently the police arrived on the basis of the information lodged by the chaukidar and a station diary entry must have been entered and non-production thereof must lead to drawing of an adverse inference against the prosecution.

Learned Counsel further submitted that P.W. 4. Lakshman Sao admitted that the Appellants were in possesion of the disputed land which was supported by P.Ws. 3 and 5 who have been declared as hostile. Learned Counsel, therefore, submitted that it must be held that the informant-party were the aggressors.

It was further submitted by the learned Counsel that as P.W. 2 was not examined before the police, his testimony before the Court-should not be relied upon.

Learned Counsel has further taken us through the evidence of various witness for the purpose of showing that they contradicted themselves in material particulars.

Learned Counsel further drew our attention to the fact that the informant in P.W. 1 alleged that both the accused persons assaulted both Arjun and himself by barchhi whereas in his evidence he alleged that Arjun was assaulted by barchhi and he was assaulted by lathi.

Learned Counsel further drew out attention that according to P.W. 2 (Mukhdeo Rajwar), only Ramchandra Rajwar assaulted Arjun by barchhi and both of them assaulted the informant. He further drew our attention to the fact that in parapraph 7 of his deposition, the witness stated that he had not been examined by the police.

Learned Counsel further submitted that P.W. 4 (Lakshman Sao) in paragraph 2 of his deposition stated that both the accused persons assaulted Arjun Rajwar by barchhi. He allegedly stated that two Amins were present. According to the learned Counsel as per this witness, there has been change in the place of occurrence also as allegedly Arjun fell down on a Rahar field which was at some distance. He further supported the case of possession of the accused persons on the disputed land.

P.Ws. 5 and 6 were declared hostile. They, however, stated that there had been fight amongst both the parties and they saw the injuries on the person of the accused persons. These witnesses further stated of the land in-question was in possession of the accused persons.

P.W. 8, Bhola Sao, who has also been declared hostile also admitted that both the parties fought between themselves and the land inquestion was in possession of the accused persons.

Commenting upon the evidence of P.W. 10, Ramjee Dusadh learned Counsel submitted that he has not been named in the first information report and as such he could not be relied upon. This witness further stated that Ramchandra Rajwar was using lathi only and as such according to the learned Counsel, the question of his assaulting by barchhi does not arise. This witness further stated that the informant and Arjun both were having lathi and they came in association with 6-7 persons. Accoring to the learned Counsel, this witness has further alleged that the informant party also assaulted the accused persons.

It was also submitted by the learned Counsel that P.W. 11 (Dhanush Dhari Ram) should not be believed as he is a hearsay witness.

It has further been submited that as P.W. 13 (Chandrama Baitha) has been declared hostile, no part of his evidence could have been relied upon by the Court below.

Mr. V. Shivnath, learned Additional Public Prosecutor appearing on behalf of the State on the other hand submitted that the Appellants have not been prejudiced by non-examination of the Investigating Officer and/or the doctor. Learned Counsel further submited that it was not necessary for the Chaukider to be examined as P.W. 7 who accompanied him has been examined.

Learned Counsel further submitted that this Court must also take into consideration the fact that the Appellant No. 1 has also been found guilty u/s 323 of the Indian Penal Code and as this part of the evidence cannot be disbelieved which is supported by the Injury Report (Ext. 5), the participation by the accused persons cannot also be disbelieved.

So far as non-examination of the Investigating Officer is concerned, the same in my opinion, is not fatal to the prosecution case unless prejudice is shown by the accused persons.

In Sk. Rasbid''s case (supra) upon which strong reliance has been placed by Mr. Roy, this Court stated the law thus:

True, non-examination of investigating officer is not necessarily fatal to the prosecution. A court has to see whether the Evidence of the Investigating Officer is essential for the case of the prosecution to succeed or not. The Court has to see at the same time that the accused is not unnecessarily harassed and unless it sees that for inevitable reasons the prosecution fails to produce the Investigating officer, it may pronounce the judgment without the evidence of the investigating officer.

In Brahmdeo Hazra''s case (supra), this Court again reiterated he same principles. In that case, it was found that several witnesses contradicted themselves in material particulars from their statements made before the police u/s 161 of the Code of Criminal Procedure and in absence of the Investigating Officer, those contradictions could not be brought on record.

In that situation, this Court held as follows:

Non-examination of the investigating officer is a serious lapse on the part of the prosecuting agency which we find in this case. The obscurity appearing in the case remained unexplained. We could not get what were the objective findings noted by the police officer which would have been helpful in appreciating the correctness or otherwise of the prosecution version. We have seen some important contradictions elucidated in the statements of the witnesses made earlier before the police u/s 161 of the Code of Criminal Procedure and remained on the record of the deposition of those witnesses without clarification to the great prejudice to the accused. Not only that the investigating officer was not examined, even the police diary was not put in evidence or proved to enable the court to consider the admissible part of the record to analyse and appreciate and to test the credibility of oral testimony of the witness.

From the decision aforementioned, it is absolutely clear that non-examination of the Investigating Officer by itself is not fatal to the prosecution case unless it is shown that accused person have been prejudiced and interest of justice has suffered thereby.

Mr. P.P.N. Roy, when questioned, however, conceded that there is nothing on record to show that the eye witnesses who have not been declared hostile have contradicted themselves in material particulars in their deposition in Court from their statements made before the police and those made u/s 161 Code of Criminal Procedure. According to the learned Counsel, there is discrepancy in the place of occurrence.

However, it may be observed that there is no discrepancy in the place of occurrence. In the first information report, P.W. 1 categorically stated that the deceased''fell down dead in the field of one Rama Sao.

P.W. 4 Lakshman Sao, merely states that Arjun Rajwar fell down on Rahar field which was at some distance from the place where originally the assault took place. Three witnesses have also corroborated that the deceased fell down in the field of Ramprit Sao.

From the Inquest report which has been marked as Ext. 1/1, the genuinence whereof has not been challenged before as it appears that the dead body was found is the field of Ramprit Sao. In the Inquest report, it has further been mentioned that the said land is in mouza Andhaurs and has further been stated that the dead body was found in a parti Rahar field.

Even in the seizure list (Ext. 2/2) it appears that the blood stained earth was recovered from the field of Ramprit Sao.

So far as the submission that the prosecution case must fail for non-examination of the doctor is concerned it may be pointed out that although the nature of injuries received by the deceased Arjun Rajwar could not be established, in the event if it be held that the testimonies of the witnesses are reliable, in my opinion the prosecution cannot fail only because the injury report was not proved.

It is now well settled that the medical report is corroborative in nature and thus it will not be proper to throw away the prosecution case only for non-examination of the doctor although the case might have been proved satisfactorily by direct evidence.

Learned Court below has not applied the decision of the Supreme Court in Ajaib Singh v. State of Haryana (A.I.R. 1984 SC 1233). From the said decision, it is clear that in a given case, the direct evidence may be preferred to hypothetical medical evidence. In this view of the matter, in my opinion, it must be held that prosecution case cannot be thrown away only on the ground that the doctor has not been examined. Reference in this connection may be made to a Division Bench decision of this Court in Ashutosh Kumar Manoj v. State of Bihar (1985 B.B.C.J. 386).

However, the effect of non-production of the post mortem report shall be considered hereinafter.

So far as the purported station diary entry is concerned, it may be mentioned that the occurrence took place at 8 a.m. and immediately after the occurrence, the chaukidar along with P.W. 7 had gone to the police station, informed the police and the investigating Officer reached the place of occurrence within one hour, that is at about 9 a.m. P.W. 7 who accompanied the chaukidar and informed the police categorically stated in his evidence that his statement was not taken by the police which means at the police station. He further stated that his statement was recorded by the police at the viilage. In such situation, it must te presumed that choukidar and P.W. 7 merely went to the police station to bring the police force and not for the purpose of lodging an information of a cognizable offence.

It is now well known that for the purpose of considering as to what would constitute a first information report, not only an information of cognizable offence is required to be made, but some details in respect thereof must be stated in order to enable the police to start investigation. The decision in State of Bihar v. Harinandan Singh (1970 P.L.J.R. 172) upon which strong reliance was placed by the learned Counsel appearing on behalf of the Appellant, cannot be said to have any application whatsoever in the facts and circumstances of this case.

In that case, it was held that the information given by Girija Nand was really the first information report and for no apparent or valid reason record of the said information had been withheld. In that circumstance, adverse inference was drawn as against the prosecution for non-production of the station diary entry.

It is not the case of the defence that the police started investigation on the basis of any purported station diary entry which was made pursuant to the statements made by the chaukidar. In fact, on arrival in the village the fardbeyan of P.W. 1 was taken by the police and the same was considered to be the first information report.

Coming to the merit of the case, it may be mentioned that the accused persons have not denied the death of Arjun Rajwar.

The recovery of his body at the field of Ramprit Sao has not been and cannot be disputed. The injuries found on the dead body of Arjun Rajwar will also appear from the inquest report. Further, evidently, P.W. 1 has also received injuries which is evident from the injury report (Ext. 5).

P.W. 1, is the informant of the case. In his evidence, he gave a vivid account of the incident. He and his brother were assaulted by the accused persons. It is true that in his fardbeyan he stated that he was assaulted by both the accused persons but in course of his evidence, he stated that Ramdeo Rajwar alone had hit him by lathi. The omission of the Appellant No. 2, so far as the assault upon him is concerned, in my opinion will not lead us to a conclusion that he is not a truthful witness.

P.W. 2 had also given a vivid description of the incident. He, however, stated that both the accused persons assaulted the informant.

At this juncture it may be mentioned that the injury report on the person of the informant alongwith the forwarding report of the Investigating Officer has been marked as Ext. 5. The said exhibit has been marked without any objection.

It is, thus, clear that the accused persons did not dispute the genuineness of tho said document and thus the same should have been admitted in evidence also in terms of Section 294 of the Code of Criminal Procedure. From Ext. 1 contains the following injuries:

L. W.�2'''' xV3" x\\/a over skin� of R. Tibia. Simple

2." Swelling 3" x */�" circum. over R. leg. Reserved till x�ray. Hard and blunt.

3." Abraisied 1/2" x 1j.i" Over R. ankle. simple Hard and blunt.

4." Swelling and tenderness Over L. forearm including darsal surface and palm. R eserved till x-ray.. Hard and blunt.

Incised wound x1/."*1/." skin deep Over L. eye brow simple sharp�cutting

L. W. 2/V'' x v. x/1" Over Vertex R. Side. simple. Hard and blunt.

L W. IV x Over temporal side R. simple. Hard and blunt.

Incised wound, V''W''X skin deep. Over R. No. of nose to onicidial angle and simple. Sharp- cutting.

Swelling and pain.

eye. Entire nose. Reserved Hard and till x-ray. blunt.

Swelling

Over R. Scapula Reserved till Hard and x-ray. blunt.

The evidence of P.Ws. 1 and P.W. 2 cannot be discarded only on this ground in their entirety, particularly in view of the fact that the informant is a injured witness. In State of Gujarat v. Naginbhai Dhulabhai Patel and Ors. (AIR 1983 SC 137) it has been held that in a case where convictions of the accused for individual assault may not be proved but if there is overhelming evidence to prove the assault having been made by all the accused persons, the accused persons could be convicted u/s 302/149 I.P.C. It was further held that the approach of the Court in appreciating the evidence should not be purely wooden, artificial and based on pure speculation. In that case, the Supreme Court held that because there existed some triffling inconsistencies or contradiction, the evidence of the injured witness should not be disbelieved.

Further, it may be pointed out that P.W. 10 stated that Ramdeo who assaulted with lathi and thereafter fitted a barchi in his lathi itself and assaulted Arjun. From the said statements of P.W. 10, it is evident that barchi was fitted on a later occasion and, thus, the possibility of a confusion with regard to the nature of the weapon used in the assault of Arjun and informant by Ramdeo cannot be ruled out.

P.W. 7 Sukan Raj war is also one of brothers of the informant. He did not participate in the assault but he has also given a total account of the occurrence. He categorically stated that the accused persons caused injuries by barcha and lathi on the person of Arjun Rajwar and as a result whereof, Arjun Rajwar succumbed to his injuries and fell down in the field of Ramprit Sao. The witness further asserted that the Appellant further assaulted the informant and broke his legs and hands. These witnesses, therefore, are the witnesses of assault as also the genesis of the occurrence.

This witness further stated that the informant fell down and he had carried him to his house on his back and thereafter went to police station.

P.W. 13 is the Amin (Chandrama Baitha). Although he has been declared hostile on the ground that he did not identify the two accused persons as assailants of the iuformant nor did he say that barcha was used in the armpit. But he categorically stated the participation of both the accused persons in the assault of Arjun and the informant. He further stated that the informant had also started wielding his lathi. This witness, however, made it clear that the accused persons were aggressors. With regard to the genesis of the occurrence, he stated that both the sides had been laying their claims on the land in question whereupon he Remanded necessary papers from them and in the meantime the Appellants became violent and hurled their weapons on the persons of the deceased as also on the informant.

He also stated that Arjun fell down in the field. So far as this part of the evidence is concerned, it can be considered as corroborative of the evidence of the other witnesses. This witness is an independant witness and therefore the question of not believing him with regard to the genesis of the occurrence, the participation of the accused persons in the assault of the informant and the deceased as also the fact that the Appellants and the informant received injuries at the hands of the Appellant, does not arise. This witness is an independent witness.

It is true that P.W. 4, P.W. 5, P.W. 6, and P.W. 8 stated that the land in question had been in possession of the accused persons. But the same, in my opinion, is irrelevant inasmuch as in this case the Appellants did not claim any right of private defence.

The occurrence also did not take place relating to possession of the land inquestion, but in relation to the entry of the name of one party or the other in the khanapuri operation.

P.W. 10, Ramjee Dussadh Ram has also supported a part of the occurrence. He, however, stated that when Arjun was assaulted by barchi, he fled away. In this view of the matter, it can be presumed that as he did not witness the entire occurrence, the informant might not have seen him as a witness and, his name was not disclosed in the first information report as a witness. he did not witness the entire occurrence, the informant might not have seen him as a witness and, his name was not disclosed in the first information report as a witness.

So far as the submissions made by Sri Roy that P.W. 2 (Mukhdeo Rajwar) was not examined by the police, it appears that he made that statement out of confusion. He is a chargesheet witness. He of course, stated, at the instance of the Additional Public Prosecutor that he gave such statement, but, later on he categorically stated that he made his statement before the police in the village.

Taking thus into consideration the over all picture, there is no doubt in my opinion that an occurrence took place in which both the Appellants took part which culminated in the death of Arjun Rajwar and injuries on the person of the informant.

However, we cannot shut our eyes to the other side of the picture also.

It has come on record that as soon as a dispute arose with regard to the entry of the name of the son of Appellant No. 1 or the wife of the deceased in the Khanapuri register, accused persons started the assault but evidently the informant and his men also took part therein. Apparently enough, there had been a fight from both the sides.

In such a situation, the possibility of the accused persons receiving some injuries at the bands of the informant and/or his men as disclosed by P.W. 5, P.W. 6 and P.W. 10 cannot bo ruled out.

In such a situation and taking into consideration the over all picture, it is possible that the occurrence took place at the spur of the moment.

Exception 4 to Section 300 of the Indian Penal Code reads thus:

Culpable homicide is not murder if it is committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and without the offender''s having taken undue advantage or acted in a cruel or unusual manner.

In a case like the present one whether the accused persons might have been is possession of the land in question and as the deceased and his brothers might have been laying a claim thereover, the fight which followed must be held to be a sudden one, without any premeditation and occurred in the heat of passion upon a sudden quarrel.

It cannot be said that the accused persons had taken undue advantage or acted in a cruel or unusual manner as in view of evidence of P.Ws. 5, 6 and 10 it is evident that they had also received some injuries.

In such a situation in my opinion, both the accused persons may be held to be guilty under Part II of Section 304 of the Indian Penal Code and not u/s 302/149 of the Indian Penal Code.

The Appellant No. 1 as noticed hereinbefore, has been found guilty for commission of an offence u/s 323 of the Indian Penal Code. Learned Counsel for the Appellants has not argued that his conviction u/s 323 of the Indian Penal Code was not justified and/or unwarranted in the facts and circumstances of the case. However, regard being had to the facts and circumstances of the case, the judgment of conviction and sentence is modified to the extent that the Appellants are held guilty for commission of an offence u/s 304 part II of the Indian Penal Code and not u/s 302/149 of the Indian Penal Code.

As the occurrence took place in the year 1981 and further taking into consideration the fact that the Appellants had been in jail for some time, I sentence them to undergo rigorous imprisonment for a period of (five) years each. So far as Appellant No. 1 (Ramdeo Rajwar) is concerned he is also found guilty u/s 323 of the Indian Penal Code, but no separate sentence is being passed under that section.

In the result, this appeal is dismissed with modification in the conviction and sentence as aforementioned.

Dkampal Sinha, J.

I agree.