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Judgment
B.N.P. Singh, J.—Though process of reconciliation, for resolving disputes do yield salutary results but sometimes results are reverse and even those involved in reconciliation incur wrath of the parties and sustain injuries on their persons, as it is alleged that preceding the day of incident, i.e. 6th November, 1985, while Nand Kishore Singh was going to his house in the company of Saral Singh, he was abused by Umesh Sah for restraining Prabhunath Singh in working with him. It was alleged that when Nand Kishore Singh retorted, he was threatened to be taught a lesson. The villagers assembled and pacified both of them and the matter ended there. No one expected that the chapter will be reopened again on the following day, as it is alleged that on the 7th of November, 1985 at about 7.30 a.m./ 8 a.m., when a panchayati was to be convened for resolution of said dispute, Mishri Prasad, who was one of the parties to attend the panchayati, did not attend and it is alleged that when Ramnath Rai was deputed to call said Mishri Prasad, instead of expressing his intention to participate in the panchayati, he took Ramnath Singh to task, pursuant to which it is alleged that the panches including Harihar Singh, the Informant and other witnesses visited bathan of Mishri where on exhortation made by him, Umesh Sah dealt blows with dagger on Nand Kishore Singh and when Harihar Singh, father of Nand Kishore Singh came for rescue of his son, Mishri Prasad dealt blows with spear on his back which was followed by successive blows with dagger, inflicted by Umesh Sah.
It was alleged that when Ramadhar Singh (deceased) came for rescue, on exhortation made by Sakaldhari Raut, he along with Prabhu Nath Singh and Bhupendra Singh, chased him and when he made abortive bid to escape, Bhupendra Sah and Sakaldhari Raut caught hold of him near bathan of Jagan Bhagat, pursuant to which, Prabhu Nath Singh gave a dagger blow on his back for which he eventually succumbed to the injuries. There was turmoil and every one began to flee here and there and it is further alleged that while fleeing, Santosh Sah dealt blows with farsa on Ramjit Thakur causing, injuries on his head. It was also alleged that Ram Kant Thakur sustained injuries at the hands of Umesh Sah who dealt blows with dagger on him causing injuries in his abdomen and also on back and scalp. Harendra Choudhary too was not spared, as it is alleged that Santosh Singh dealt blows with farsa on him also. Nand Kishore Singh, who had suffered injuries on his person was again given blows by Gauri Shankar Singh and Sachidanand Singh by dagger and Sakaldeo Raut too dealt blows with spear on his back, waist, right arm and chest. The injured were carried to Hathwa Hospital on a tyre cart where they were treated of their injuries by the doctor who attended them. Fardbeyan of Harihar Singh was recorded at 12.00 hrs on 7.11.1985 at Hathwa Hospital by Sri Sagar Das, a Police Officer of Uchakagaon Police Station and after the prosecution was launched with these accusations on behest of Harihar Singh, investigation commenced in course of which the Police Officer visited the place of occurrence, recorded statement of witnesses, sent the dead body to mortuary for post mortem examination and on conclusion of investigation, laid charge sheet before the Court.
In the eventual trial that commenced, the State examined altogether ten witnesses including four injured persons, who are P.Ws. 1, 2, 4 and 5. Though Harihar Choudhary too suffered injuries on his person, he was not examined at trial. The State examined Or. Jagannath Sah (P.W. 9) who eventually carried out autopsy over the dead body of Ramadhar Singh and also examined some of the accused persons who allegedly suffered injuries on their persons and they happened to be Mishri Prasad and Umesh Prasad Sah. Dr. Ugra Pratap Narain Singh (P.W. 10) was another doctor who examined Nand Kishore Singh (P.W. 1), Harihar Singh (P.W. 4), Ramaji Thakur (P.W. 2), Ramakant Thakur (P.W. 5) and also Harendra Choudhary. Dr. Ugra Pratap Narain Singh stated to have examined also Sakaldeo Thakur, father of Mishri Prasad. Shri Sagar Das, who happened to be Investigating Officer of the case was examined as P.W. 8. Some witnesses examined by the State were, however, tendered and there was nothing material in their evidences to merit consideration.
The defence of the Appellants before the Court below and also this Court had been plain denial of entire allegations and they ascribed their false implication due to persisting enmity between the parties. The explicit defence of Prabhunath Singh, who was the assailant of the deceased, was that he inherited landed property in the village of Harihar Singh, for which the latter wanted to evict him from possession of the land which was gifted to him by his grand mother. The other defence of the Appellants, contrary to the assertions made by the prosecution was that it was the prosecution party who resorted to murderous attack on the Appellants and when Mishri Prasad and Umesh Prasad Sah came for rescue, they too were subjected to assault by them and as for injuries suffered by the prosecution party, explicit defence of the Appellants was that it was at the hands of the villagers that they suffered injuries, when they came for rescue. The case instituted by Bibi Rahimani against some of the members of the prosecution party in which Prabhunath Singh and Mishri Prasad were the witnesses was also taken to be a ground for their false implication. The trial court, however, on meticulous appreciation of the testimony of the ocular witnesses and also others, who lent assurance to the prosecution allegation, while negativing contentions raised on behalf of the Appellants about their innocence, recorded finding of guilt against Prabhu Nath Singh under Sections 302 and 148 of the Indian Penal Code (IPC) for which he was sentenced to undergo rigorous imprisonment for life, and two years respectively on these counts. As for the rest Appellants, the trial court recorded finding of guilt u/s 302/34 IPC and sentenced them to undergo rigorous imprisonment for life. All the Appellants except Prabhu Nath Singh were convicted also under Sections 307 IPC and 148 IPC for which they were sentenced to suffer rigorous imprisonment for seven years and two years on these counts, respectively. All the sentences, however, were directed to run concurrently.
To begin with the genesis of the alleged incident, the prosecution had a case that on 6.11.1985, while Nand Kishore Singh (P.W. 1) was returning to his home with Saral Singh, Appellants Bhupendra Sah and Umesh Sah took him to task for restraining Prabhunath Singh in working with them and after Nand Kishore Singh retorted, unfounded allegations were attributed to him by Umesh Prasad Sah and Santosh Sah threatening him to teach a good lesson. However, the matter was riot pursued further due to investigation of the villagers. The chapter was, however, not closed, as it is alleged that at about 7.30/ 8 a.m. on the following day, when a Panchayati was to be convened for resolution of the dispute, on behalf of the Harihar Singh (P.W. 4), Mishri Prasad, who was one of the participants, blatantly refused to attend the Panchayati, pursuant to which Harihar Singh along with punches witnesses and also Nand Kishore Singh, went to Bathan of Mishri Prasad questioned his discretion for not attending the Panchayati. It was Mishri Prasad, who set the ball in motion exhorting his men to make assault on them. True it is that Nand Kishore Singh was the solitary witness about the incident that happened on the day preceding the incident, the factum of Mishri Prasad refusing to participate in the Panchayati was very much explicit even in the statement of Bhupendra Sah, which he rendered before the Court u/s 313 of the Code of Criminal Procedure (Code of Criminal Procedure). There has been evidence of Nand Kishore Singh and Harihar Singh, P.Ws. 1 and 4, respectively, about a Panchayati to be held at the door of Raja Ram Singh and deputation of Ram Nath Rai (P.W. 6) to call Mishri Prasad in the said Panchayati. About the punches who were mentioned to participate in the Panchayati, Harihar Singh (P.W. 4) would name Bhalai Raut (P.W. 3), Sudama Rawat (P.W. 7) and others. It is not in dispute that of all those persons, who were nominated punches, while Sudama Raut was examined at trial Bhalai Raut (P.W. 3) was tendered by the State. That apart, the factum of holding Panchayati is also writ large in the counter version of the Appellants appearing in the First Information Report registered on behest of Mishri Prasad in Uchakagaon P.S. Case No. 136 of 1985, which was Exhibit D on the record and that probabilises the prosecution version on the factum of holding of Panchayati which was the genesis of the incident.
Now, adverting to the manner of occurrence, we have noticed Harihar Singh (P.W. 4) reiterating his early version that after Mishri Prasad blatantly refused to participate in the Panchayati, that was to be convened for resolution of the dispute that happened on the preceding day of the incident, they visited Bathan of said Mishri Prasad and on being questioned for his refusal to participate in the Panchayati, Mishri Prasad took initiative exhorting his associates to make assault, in pursuance of which Umesh Sah dealt blows with dagger on the back of Nand Kishore Singh which was followed by assault by Sakaldhari Raut with spear on his chest making Nand Kishore Singh dropped to the ground. The witness would state that after Nand Kishore Singh dropped to the ground, successive assaults were followed by Gauri Shankar Singh and Sachchidanand Singh by dagger, and when he came for rescue of his son, Mishri Prasad dealt blows with spear in his abdominal region and he too dropped to the ground which was followed by successive assault by chhura by Umesh Sah. When Ramadhar Singh came for rescue, he was chased by Sakaldhari Raut, Bhupendra Sah and Prabhu Nath Singh and in his abortive bid to escape, he was caught by Prabhu Nath Singh and Sakaldhari Raut in the open land of Bathan of Jagan Bhagat, where Prabhu Nath Singh dealt a savage blow with chhura on his back, and it is how that Ramadhar Singh eventually succumbed to the injuries. The witness reiterated that when Harendra Choudhary, Ramaji Thakur (P.W. 2) and Rama Kant Thakur (P.W. 5) resisted action of the assailants, Umesh Sah dealt successive blows on Rama Kant Thakur causing injuries on his chest and back. Harendra Choudhary too suffered injuries on his right arm with farsa at the hands of Santosh Sah. Ramaji Thakur suffered injuries with farsa on his scalp at the hands of Santosh Sah. Almost similar narrations with that of P.W. 4, with sustained consistency were made also by Nand Kishore Singh (P.W. 1), Ramaji Thakur (P.W. 2) and Ramakant Thakur (P.W. 5) about they having suffered injuries in the manner and upon persons as stated by Harihar Singh (P.W. 4) and also Ramadhar Singh having died instantaneously on receipt of injuries at the hands of Prabhu Nath Singh. Coherent and consistent narrations made by the witnesses, who are none else but the injured, do receive ample corroboration also from the positive findings of the doctor who clincally examined them.
Dr. Jagannath Sahay (P.W. 9), who held post mortem examination on the dead body of Ramadhar Singh, noticed following ante mortem injuries on his head body:
One incised wound 3/4" x 1/2" x 6" over right side of back in upper posterior medial to scalp.
The doctor also noticed bleeding (haemorrhagic fluid) coming out of wound orifice.
On dissection, the doctor noticed whole thoracic cavity full of blood and wound was traced inside the thoracic cavity on right side cutting the right lung over its surface 1" x 1/4" x 1/2". Death in the opinion of the doctor was due to injury No. (1): resulting in haemorrhage and shock within 12 hours of the examination. Injury No. (1) in his estimation was possible by chhura.
Learned Counsel for the Appellants while commenting on the positive findings recorded by the doctor would state that injury No. 1 cannot be considered to be fatal as there has been no finding by the doctor that the said injury was sufficient to cause death in the (ordinary course of nature. However, regard being had to the description of the injury, which shows that it was 6" deep on the back of the deceased cutting his right lung over its surface 1" x 1/4" x 1/2", that itself is a pointer to the fact that the, said injury must have been sufficient to cause death in the ordinary course of nature. Consistent narrations made by ocular witnesses and also the positive findings of the doctor are quite eloquent to suggest that death of Ramadhar Singh was homicidal.
Dr. Ugra Pratap Narain Singh (P.W. 10) stated to have examined injuries of the witnesses, namely, Nand Kishore Singh (P.W. 1), Ramaji Thakur (P.W. 2), Harihar Singh (P.W. 4) and Ramakant Thakur (P.W. 5) as well as Harendra Choudhary. Though the injuries noticed on their persons have been fairly spelt out in the judgment of the court below, a brief narration of them would be apt for their appreciation. The doctor notified on the persons of Nand Kishore Singh, incised wounds and also one penetrating wound 1-1/2" x 1/2" chest deep on the right side and upper part of the chest from which air was coming with each respiratory movement. While other injuries were simple in nature, injury No. (1), which was penetrating wound on the chest, was considered to be grievous and dangerous to life caused by sharp and pointed weapon, might be bhala, and on appreciation of the ocular testimony of the witnesses, one may not fail to notice that while injury Nos. (2) and (3) were attributable to Gauri Shankar Singh and Sachchidanand Singh, injury No. (4) was attributable to Umesh Sah, and as for injury No. (1) which was grievous in nature, that was attributable to Sakaldhari Raut. The doctor stated to have noticed on the person of Harihar Singh one penetrating wound 1-1/4" x 1/10" x chest deep on the right side of the chest in the mid axilliary line from which a large amount of blood clot was extracted and no air possibly was coming on respiration. Besides other incised injuries on his person, all these injuries, in the opinion of the doctor were simple in nature caused by sharp pointed weapon might be bhala or chhura. Injury No. (1) was, however, considered to be grievous and dangerous to life. Regard being had to the ocular testimony of witnesses, while injury Nos. (2), (3) and (4) were attributable to Umesh Sah, injury No. (1) which was penetrating wound on the chest, was attributable to Mishri Prasad, he having been suggested to be the author of the said injury. The doctor would state to have noticed only one incised wound on the head of Ramaji Thakur (P.W. 2) which was simple in nature caused by sharp cutting weapon, may be farsa and his injury was attributable to Santosh Sah. On the same day, the doctor stated to have examined Rama Kant Thakur (P.W. 5) and noticed lacerated wound and also incised wound which was simple in nature. While injury No. (1) was caused by hard and blunt substance, rest by sharp cutting weapon, may be chhura. The injury which was incised in nature were attributable to Umesh Sah. The doctor stated to have examined also Harendra Choudhary who has not been examined by the State and the doctor stated to have noticed one incised wound on his left arm caused by some sharp cutting weapon, might be farsa, and his injury too was attributable to Santosh Sah. In response to a pointed question by the Appellants, the doctor would state that even a pointed weapon may cause incised wound and a knife used as a weapon of stabbing, may also cause penetrating wound.
The findings recorded by court below relying principally on the testimony of ocular witnesses, and positive findings of the doctor were sought to be assailed by the learned Counsel for the Appellants on various grounds and it was urged that lapses, omissions and contradictions in the prosecution case were either condoned or lightly brushed aside or were supported without any justification against improbabilities appearing in the prosecution case. Contentions were raised that the court below had failed to objectively assess and analyse the evidences and also circumstances. Our attention has also been drawn to some contradictions/ omissions appearing in the testimony of prosecution witnesses to which their attentions have been drawn by the defence obviously to impeach their credibility, and we have given due consideration to these aspects of the matter that evidences of some of the witnesses were not in conformity with their early version which they rendered before the Police and we have come to a conclusion that even on exc usion of those evidences which appear to be improvement over the early version, which the witnesses rendered before the Police, there had been good evidence of P.Ws. 1, 4 and 7 suggesting Umesh Sah to be assailant of Nand Kishore Singh. Similarly, there had been evidence of P.Ws. 4 and 7 suggesting said Umesh Sah to be the assailant to Harihar Singh. The evidences of P.Ws. 1, 2, 3 and 7 do suggest the said Umesh Sah to be the assailant of Ramakant Thakur also. As for Sakaldeo Raut, the prosecution led good evidence of P.Ws. 4 and 7 suggesting him to be the assailant of Nand Kishore Singh. As for Gauri Shankar Singh and Sachchidanand Singh, there was good and clinching evidence of P.Ws. 2, 4 and 7 suggesting him to be the assailant of Nand Kishore Singh. As against Mishri Prasad, we have noticed the evidence of P.Ws. 2, 4 and 7, suggesting him to be the assailant of Harihar Singh, and as for Santosh Sah, who was suggested to be the assailant of Ramaji Thakur and Harendra Choudhary, we have considered the evidence of P.Ws. 1, 2 and 4 and 7 trustworthy. True it is that Sudama Raut (P.W. 7) stated to have not been examined by the Police but since we have noticed no infirmity in his evidence and he was also suggested to be one of the punches nominated by Harihar Singh, we find no good and valid reason to keep his evidence out of consideration notwithstanding that the Investigating Officer had not stated in explicit terms about his examination by him during investigation.
While commenting on the positive findings recorded by Dr. Jagannath Sahay (P.W. 9), who held autopsy over the dead body of Ramadhar Singh, it was sought to be urged on behalf of the Appellants that since the doctor had not recorded a categorical finding that injury No. (1) noticed on the dead body of the deceased was sufficient in ordinary course of nature to cause death, Prabhu Nath Singh, who was suggested to be the author of the said injury, cannot be made answerable for the killing of the deceased. Though this argument appears to be attractive, but is bereft of merit, as regard being had to the nature of the injuries, which; the deceased suffered at the hands of the assailant, which was-6" deep over right side of back in upper posterior medial to scapula, the inference drawn was that the injury must be fatal though it was a solitary blow and on this score we find omission on part of the doctor to state in so many words about this injury to be sufficient in ordinary course of nature to cause death, was inconsequential as it did not introduce any legal infirmity in the finding of the doctor, and reliance on this score can be placed on a decision of the Apex Court reported in 2000 SCC 1516 State of West Bengal v. Mir Mohammad and Ors. and yet it is urged on behalf of the Appellants that though P.Ws. 1, 2, 4 and 5 had received injuries on their persons simultaneously, it was not expected of them to give graphic account of the incident, and on this score it is sought to be urged that the evidence of the injured witnesses were either tutored or tainted being unworthy of acceptance, and reliance on this score was sought to be placed on a decision of the Supreme Court reported in Sevi and Another Vs. State of Tamil Nadu and Another, in which graphic account of the incident given by the injured witnesses was not considered to be credible by the Court. However, we have noticed that facts of the case cited at Bar were not identical to that of the instant case. The injured witnesses had no where stated that they had sustained injuries on their persons simultaneously. Contrary to that, their evidence were that in quick succession they received injuries on their person when one witness came for rescue of the other who was being assaulted within his nose, and that apart, in the case cited at Bar, on consideration of strange conduct of the Investigating Officer, the Apex Court had occasion to make observation that the original First Information Report had been suppressed and even though there may be injured witnesses, the Court did not accept their evidences in peculiar circumstances of the case. Though narrations made by the injured witnesses before the Police, differs at some places in some cases with their evidences in Court about sequence of assault but such inconsistencies in sequence of assault may be due to failure of the witnesses to recapitulate the incident in proper order. We have noticed earlier, some improvements made by the witnesses in their evidences in court in contrast to their statements before the Police and we have also screened and also made exclusion of such evidence, and yet we hold the view that simply because some improvement were made by witnesses in Court over their earlier version rendered before the Police, that was not sufficient to reject their otherwise reliable testimony, and reliance on this score can be placed on a decision of the Apex Court reported in 1983 SCC 176 Maqsoodan and Ors. v. State of Uttar Pradesh.
The other contention raised at Bar was that the prosecution was also guilty of introducing distorted version about the place of occurrence, as two places, suggested to be the places of occurrence where the injured sustained injury on their persons and also the place where Ramadhar Singh suffered fatal injuries at the hands of Prabhu Nath Singh, as stated by the witnesses were not in tune with the objective finding recorded by the Police Officer.
While appreciating the contentions raised at Bar on behalf of the Appellants on this score, we have noticed that the place of occurrence as suggested by the prosecution witnesses was the road to the north of bathan of Mishri Prasad where witnesses suffered injuries oh their persons. The place where Ramadhar Singh suffered fatal injuries was suggested by the witnesses, to be the sahan of bathan of Jagan Bhagat. The Investigating Officer stated to have noticed dead body of Ramadhar Singh in the courtyard of Bathan of Raghunath, to the contiguous north of which was the bathan of Jagan Bhagat and to its contiguous south was the pitched road. The Investigating Officer would state in his evidence that to the contiguous south of the pitched road, lies the bathan of Mishri Prasad at a distance of about 20 yards where the dead body had been kept. The Police Officer stated to have noticed copius blood near the dead body, though he did notice blood on the road. He stated to have seized blood from the place of occurrence, though it was not sent to Forensic Science Laboratory for examination. The road being a thoroughfare, the possibility of presence of blood due to passage of passersby, appears to be extremely remote. Since the bathan of Raghunath and that of Mishri Prasad and the road are contiguous to each other, and there being no demarcation, the prosecution cannot be saddled with the allegation of introducing distorted version about the place of occurrence, and that apart either absence of blood on the pitched road or there being no finding of chemical examiner about the origin of blood," which are matters of petty details, did not befog real issue. The counter version of the defence also cannot be lost sight of, as in their terms also, the place of occurrence of the counter case was bathan of Mishri Prasad. The Police officer noticed sahan of Mishri Prasad trampled, which seems to be quite usual as the Appellants were suggested to have assembled in the bathan of Mishri Prasad, pursuant to which the occurrence took place.
Two fold contentions were raised at Bar for the alleged false implication of the Appellants. The defence had a case which was also admitted by P.W. 1 that Prabhu Nath Singh had inherited landed property of his grandmother in the village by virtue of execution of registered deed in favour of his mother. There had been admission of P.W. 4 also on this score that the grandmother of Prabhu Nath Singh gifted her 1/4th share in the property of mother of Prabhu Nath Singh, and he was in possession thereof. The defence of Prabhu Nath Singh was that as Harihar Singh wanted to evict Prabhu Nath Singh from possession of his inherited landed property to which he did not succumb, he was sought to be falsely implicated in the instant case. The trial Court rightly came to a conclusion that by naming Prabhu Nath Singh as assailant of the deceased, the informant cannot be put to any advantageous position regarding the gifted property, as it appears from Exhibit B itself that accused Prabhu Nath Singh had also a brother namely, Maya Shankar. One of the twin grounds taken by the Appellants for their alleged false implication was that as Harihar Singh, Nand Kishore Singh, Ramaji Thakur, Ramakant Thakur and Sudama Raut were arrayed as accused in Complaint Case No. 886 of 1984 by Bibi Rahiman, in which Prabhu Nath Singh and Mishri Prasad were witnesses, they were sought to be falsely implicated in the instant case. However, there was nothing on the record that Prabhu Nath Singh or Mishri Prasad ever deposed against them and equally there was nothing on the record to suggest that any of the prosecution witnesses had any axe to grind or any animus against any of the accused persons, and simply because Mishri Prasad and Prabhunath Singh were stated as witnesses in a case filed against them, it cannot be a motive for the injured witnesses to falsely implicate the accused persons, rather it looks quite unlikely that the injured would spare the real assailant and would implicate the Appellants.
One of the Appellants, namely, Sakaldeo Raut has a distinct defence, as he took the plea of alibi alleging, inter alia, that on the relevant date he was on deputation in Bangra School within Mairwa Circle, District Siwan, which rules out his presence at the place of occurrence. The defence examined D.W. 2 Paras Nath Sahi, who brought on record certain documents and also stated about the alibi of Sakaldeo Raut. This fact cannot be lost sight of that at the relevant time of incident Sakaldeo Raut was the Head teacher at Hathuaji Government Primary School and at present he was headmaster of that school. D.W. 2 Paras Nath Sahi is also a teacher of the said school who had come to depose that from 3rd November, 1985 to 7th November, 1985, Sakaldeo Raut was deputed in Bangra School by order of the Block Education Officer. The carbon copy of the order Exhibit E and also Exhibits E/1 and F were brought on the record. The witness would state that he was given charge by Sakaldeo Raut while proceeding on deputation. However, regard being had to the fact that D.W. 2 being a teacher in the said school and Sakaldeo Raut being a Headmaster, who was in custody of the attendence register of the teachers the oral and documentary evidence brought on the record to lend assurance to the plea of alibi of Sakaldeo Raut did not inspire confidence and that apart, there was no good evidence that in fact Sakaldeo Raut worked on deputation during the relevant period. As admitted by D.W. 2, Bangra was only at a distance of 30-40 kms from the place of occurrence, which can be negotiated without loss of good time and it was not difficult for the accused even to go to Bangra from the place of occurrence after committing the offence at about 8 a.m. and attend the school at Bangra at 10.30 a.m. That apart, the distance of the two places is not such which can militate against the presence of Sakaldeo Raut at the place of occurrence and would improbabilise his presence at both the places. Onus lies heavily on the Appellant to place good evidence on the record to the satisfaction of the court to persuade the Court to believe his plea of alibi and he having failed in his mission, has failed to persuade the Court to consider the plea of alibi propounded by him.
Yet it is urged on behalf of the Appellants that had Prabhu Nath Singh been actuated to execute killing of Ramadhar Singh, it was unlikely for him to deal blows with chhura on his back a non-vital part of human body. This argument too was meritless in view of the narration made by P.W. 7 that Bhupendra Sah and Sakaldeo Raut had caught hold of the deceased from the front side and faced with the situation, it was not unlikely that the deceased suffered injuries on back at the hands of the assailant. The other limb of the argument pressed into service on behalf of the Appellants was that though it would appear from the certified copy of the first information report of Uchakagaon Rs. Case No. 136 of 1985, registered at behest of Mishri Prasad on 17th November, 1985 that Mishri Prasad, Umesh Sah and Sukhdeo Kalwar too sustained injuries on their persons in the same transaction, those injuries have not been explained by the prosecution and hence, on this score alone the entire prosecution case had to be thrown overboard. Though F.I.R. of the instant case of the prosecution and also the F.I.R. registered on behest of Mishri Prasad were instituted on the same day i.e. on 7th November, 1985, the latter case appears to have been registered after 45 minutes of the earlier case. But even taking the F.I.R. of Uchakagaon P.S. Case No. 136 of 1985 to be the counter version of the same incident, there are some disturbing features in the defence version which cannot remain unnoticed. If Exhibit D, the F.I.R. of the counter version was to be given any credence, recitals made therein show that when Harihar Singh along with others came to bathan of Mishri; Prasad with complain about Mishri Prasad not participating in the Panchayati, Harihar Singh set the ball in motion exhorting others to make assault, whereupon allegedly Harihar Singh and Nand Kishore Singh assaulted him with knife and butt of the pistol. It was alleged that Harihar Singh and Nand Kishore Singh assaulted Mishri Prasad whereas Ramaji Thakur (P.W. 2), Ram Nath Roy (P.W. 6) assaulted Umesh Prasad and also his father Sukhdeo was assaulted by Ramaji Thakur (P.W. 2), Bhuili Raut (P.W. 3), Ramakant Thakur (P.W. 5) and Sudama Thakur (P.W. 7). Interestingly, in the F.I.R. that was registered after eight hours of the alleged occurrence, it was no where mentioned as to with which weapon Umesh Prasad and Sukhdeo Prasad were as saulted nor was it mentioned as to how and with which weapon Mishri Prasad himself was assaulted. Though Ramadhar Singh died in the same transaction, Exhibit D did not bear narration of this fact, which was so eloquent and notorious that it could not have remained unnoticed and this shows that while vital parts were suppressed, those of lesser significance were highlighted therein.
Dr. Jagannath Sahay (P.W. 9) who stated to have examined Mishri Prasad noticed incised wounds, swelling, abrasion, and ecchymosis on his person, of which injury No. 6, which was swelling 4" x 2" over left side of chest was found to be grievous due to fracture of 8th rib. Similarly on the person of Umesh Prasad, the doctor noticed swellings and abrasions and in his case too injury No. 4 which was swelling on the left forearm was found to be grievous in nature. The finding about grievous injury on the person of Mishri Prasad and Umesh Sah were recorded by the doctor not on the day of their examination but on a latter date i.e. on 13th November, 1985 and 9th November, 1985, respectively. The doctor stated to have noticed bruises and swelling on the person of Sukhdeo also and one of these injuries was considered to be grievous. Date of recording of the injury to be grievous in his case was nowhere mentioned in the injury report. These narrations would make it eloquent that while other injuries were found to be simple in nature on all the three injured, one injury in case of all the three was considered to be grievous. Regard being had to the dimension of the injuries suffered by these three persons, and also the weapons which the assailants were suggested to have carried with them, it was most unlikely that such superficial injuries would be caused on the person of the injured. Though Umesh Sah was suggested to have sustained injuries by Ramaji Thakur (P.W. 2) and Ram Nath Roy (P.W. 6), the said Umesh Sah himself in his statement rendered u/s 313 Code of Criminal Procedure would make these injuries attributable also to Adalat Rai, Brij Raj Singh and Saral Singh. The omission in Exhibit D about the weapons used by the assailants and also part of the body affected thereby are not innocuous but vital and once the counter version is found to be incredible, the right of exercise of private defence would not be available to the Appellants. As for failure of the prosecution witnesses to explain injuries on person of the some of the Appellants and Sukhdeo Kalwar, there are plethora of decisions and it is no longer res integra that notwithstanding good and clinching evidence on the record, prosecution cannot be casualty on this score alone, and reliance on this score can be placed on a decision of the case of Mohar Rai and Bharath Rai Vs. The State of Bihar, Even in the case of Lakshmi Singh and Others Vs. State of Bihar, observations were made by the Apex Court that though any non-explanation of the injuries on the accused by the prosecution, may affect the prosecution case .... 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. Reliance can also be placed in the cases of Takhaji Hiraji Vs. Thakore Kubersing Chamansing and Others, Vijayee Singh and others Vs. State of U.P., In case of Rajendra Singh and Others Vs. The State of Bihar, following observations made in Mohar Rai''s case were reiterated by the Apex Court-"Ordinarily the prosecution is not obliged to explain each injury on an accused even though the injuries might have been caused in the course of the occurrence, if the injuries are minor in nature, but at the same time if the prosecution fails to explain a grievous injury on one of the accused persons, which is established to have been caused in the course of the same occurrence, then certainly the court looks at the prosecution case with a little suspicion on the ground that the prosecution has suppressed the true version of the incident/However, if the evidence is clear, cogent and creditworthy, then non-explanation of the injury on the accused ipso facto cannot be a basis to discard the entire prosecution case."
Since the evidence of injured witnesses and also others have been found by us to be consistent with the FIR and medical evidence, there is hardly any valid reason to discard the credibility of the wit-nesses and reliance on this score can be placed on a decision of the Apex Court in the case of Ram Kumar Vs. State of Haryana, We have noticed vital omission in the counter version of the Appellants and such fragile and rickety evidence hardly militates against the bona fide of the prosecution version. Even assuming failure of the prosecution witnesses to explain the injuries on the person of some of the Appellants and Sukhdeo Kalwar, in view of clinching evidence of the prosecution witnesses, no discount can be given of the prosecution version.
Unable to find any meaningful criticism, it was sought to be urged on behalf of the Appellants that from the evidence of none-else but the Investigating Officer, it would appear that he got early information about the incident from the Chowkidar and Nathuni Singh, and since the early version of these two persons had not been brought on the record, fardbeyan of Harihar Singh being statement rendered by him during investigation, was hit by Section 162 Code of Criminal Procedure, and cannot be treated to be the early version of the prosecution and hence it must be considered to be a tainted document. This argument too was meritless for the simple reason that no where the Investigating Officer stated in his evidence as to what narrations were made by these two persons to him about the incident, and that apart, it is no longer res integra that cryptic version of the incident rendered by some person would not constitute the First Information Report and reliance on his score can be placed on a decision of the Apex Court reported in AIR 1970 SC 1556 . Tapinder Singh v. State of Punjab and Anr. wherein it was held by the Apex Court that cryptic and anonymous oral message which did not in terms clearly specify a cognizable offence, cannot be treated as FIR. The mere fact that such information was first in point of time did not by itself clothe it with the character of first information report. Reliance can also be placed on a decision of this Court in the case of Ramdeo Rajwar and Another Vs. State of Bihar, Though among the witnesses, Nand Kishore Singh happens to be the son of Harihar Singh, others were not suggested to be his kith and kin. Some of them also hail from different communities. Since they are stamped witnesses, that guarantees their presence at the place of occurrence and that is also a tacit evidence about there being possibility of these witnesses suffering injuries on their persons in the same transaction.
NOW coming to the allegations attributed to the individual Appellants, we find that no overt act was assigned to Appellants Buchi Singh and Parma Sinigh. There was bald accusation that they too came holding arms. They cannot, as such, be attributed to have come to the place of occurrence with an intention to commit murder and in that view of the matter, we give them benefit of doubt and they are accordingly acquitted of the charges. They are also discharged from the liabilities of their bail bonds. Now, coming to the rest Appellants, Appellant Prabhu Nath Singh was suggested to be the assailant of the deceased for having caused fatal injury on his back. There was no accusation about repetition of blow by him. Learned Counsel for the Appellants would place reliance on a decision of the Apex Court recorded in case of Ramchandra Ohdar Vs. The State of Bihar, in which the Appellant gave only one blow on the neck of the deceased and regard being had to the attending circumstances of the case, the Apex Court having considered conviction of the Appellant u/s 302/34 IPC not sustainable, recorded finding of guilt u/s 326 IPC. In this case, as stated above, Appellant Prabhu Nath Singh was suggested to have dealt solitary blow on non-vital part of person of Ramadhar Singh. Even though Bhupendra Sah and Sakaldeo Raut had conspired with him to catch hold of the deceased, they did not use their arms. The evidences placed on the record do suggest that the Appellants had not visited, house of Harihar Singh for assaulting the witnesses, rather Harihar Singh and others went to Mishri Prasad to persuade him to participate in the Panchayati, pursuant to which the occurrence took place culminating in death of Ramadhar Singh and also injuries on the persons of some of the members of the prosecution party. Mishri Prasad would not have anticipated to cause death of a person in case Harihar Singh and others would come to him to persuade to participate in Panchayati and that would show that in sudden and unpremeditated fight, death of one person was caused. The assailant had no intention to cause death of the victim. Hence, the case of Appellant Prabhu Nath Singh was well covered by Section (4) of Section 300 IPC. There was simply a motive on part of Mishri Prasad to resist propsoal of Harihar Singh to participate in the Panchayati, and there did not appear to be common object of the assembly or that the members of the assembly knew that an offence is likely to be committed in prosecution of that object and hence, the Appellants cannot be held answerable for vicarious and constructive liability u/s 149 IPC and they would be liable only for their individual acts. As such, we find that conviction of the Appellants u/s 302/149 IPC was not sustainable. Accordingly conviction and sentence awarded to the Appellants (barring Appellants Buchi Singh and Parma Singh) u/s 302/149 are set aside. So far as Appellant Prabhu Nath Singh is concerned, as noticed above, he is suggested to have inflicted lone blow on non-vital part of the deceased and as such he could not have intended to cause death. He might not have intended to cause death but had knowledge that death might result, and in the backdrop of these mitigating circumstances, case of Appellant Prabhu Nath Singh would squarely fall within the mischief of Section 304 Part II of the Indian Penal Code and while setting aside his conviction and sentence u/s 302 IPC, he is convicted u/s 304 Part II of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years. The evidence against Appellants Sakaldeo Raut and Bhupendra Sah was also that they caught hold of Ramadhar Singh pursuant to which blow was given by Prabhu Nath Singh. Since they facilitated infliction of blows on the deceased by Prabhu Nath Singh, they had shared the common intention as that of the assailant and were vicariously liable for the offence committed by Appellant Prabhu Nath Singh and in this view of the matter, Appellants Sakaldeo Raut and Bhupendra Sah are convicted u/s 304 Part II/34 IPC and are sentenced to undergo rigorous imprisonment for seven years. Appellant Sakaldeo and Mishri, who are suggested to have caused grievous injury on the person of Nand Kishore Singh and Harihar Singh, respectively, are convicted u/s 326 IPC and are sentenced to undergo rigorous imprisonment for a term of five years each. Appellants Umesh Prasad, Gauri Shankar Singh, Santosh Sah and Sachchidanand Singh, who were suggested to be the authors of simple injury caused by lethal weapon, are convicted u/s 324 IPC and are sentenced to suffer rigorous imprisonment for a term of two years each. All the aforesaid convicted Appellants are also convicted u/s 148 IPC and are sentenced to suffer rigorous imprisonment for a term of two years. In case of those who suffer conviction and have been sentenced on more than one count, sentences shall run concurrently.
In the result, as stated above, while appeal of Appellants Buchi Singh and Parma Singh is allowed, of the rest, it is dismissed with modification as indicated above. Since the convicted Appellants are on bail, their bail bonds are cancelled and the trial court is directed to take all coercive steps for their apprehension and to take them into custody to serve out the sentence.
P.K. Sinha, J.
I agree.