Full Judgment Text
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PETITIONER:
RAJENDRA SINGH & ORS.
Vs.
RESPONDENT:
THE STATE OF BIHAR
DATE OF JUDGMENT: 07/04/2000
BENCH:
R.P.Sethi, S.V.Patil, G.B.Pattanaik
JUDGMENT:
PATTANAIK,J.
The two appellants, Rajendra Singh and Triloki Singh
have assailed their conviction and sentence passed by the
First Additional Sessions Judge, Saran in Sessions Trial No.
189 of 1981, which has been upheld in Appeal by the High
Court of Patna in Criminal Appeal No. 146 of 1985. Before
the learned Trial Judge in all there were nine accused
persons but six of them were acquitted and only two
appellants alongwith one Prabhunath Singh were convicted but
said Prabhunath died during the pendency of appeal in the
High Court, and as such, there are two appellants in this
Court. The prosecution case in nutshell is; that on 4th
July, 1977 an incident occurred in village Jaidpur Tola
Pilui in the district of Saran and one Kameshwar Singh was
murdered. Satyanarain PW 8 gave the First Information
Report at 6.00 p.m. at Sadar Hospital, Chapra where he was
lying injured, alleging therein that at 11.45 a.m. while
the informant was getting his field ploughed by a tractor
which he had hired from PW 5 these appellants and others
came and asked the informant party not to plough the field
but when the informant protested he was abused and then
accused no. 1 assaulted him by means of Bhala on his
abdomen whereas accused no. 2 assaulted him on his chest.
Deceased Kameshwar who was the nephew of the informant was
assaulted by accused no. 1 in his abdomen and thereafter
all the accused persons assaulted him. The prosecution also
further alleged that brother of the informant Banwari Singh
had also been assaulted by accused nos. 7, 1 and 2 and the
acquitted persons assaulted him by means of lathi. It is
also the further case of the prosecution that PW 7 who is
the nephew of the informant had also been assaulted. On the
basis of the aforesaid First Information Report Sub
Inspector of Police PW 9 registered a case and started
investigation. The Investigating Officer went to the
village and held the inquest over the dead body at 9.45 p.m.
and prepared an Inquest Report Exhibit 7. The dead body
was sent for autopsy which was conducted by doctor PW 3.
The said doctor had also examined the injuries on the person
of the informant on the requisition of the Investigating
Officer. Finally Chargesheet was submitted as against 9
accused persons, as already stated, against Rajender Singh,
Prabhunath Singh and Triloki under Section 302 for the
murder of Kameshwar and against all the nine accused persons
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including the six acquitted under Section 302/149 for being
members of an unlawful assembly in prosecution of the common
object of which assembly Rajender and others assaulted the
deceased and then murdered. Rajender Singh and Prabhunath
Singh were further charged under Section 307 and there were
charges under Section 148 and 147 and also under Sections
324 and 323 of Indian Penal Code. From the evidence of
doctor- PW 3 who conducted the postmortem on the dead body
of Kameshwar it is crystal clear that the death was
homicidal and the said conclusion of the learned Sessions
Judge has been affirmed by the High Court in appeal and had
not been assailed before us. To bring home the charges
against the accused persons the prosecution relied upon four
eye witnesses, namely, PWs 2, 4, 7 and 8. The defence also
examined the Magistrate as DW 1 who is alleged to have
recorded the statement of informant PW 8 at the hospital on
the date of occurrence while he was lying in injured
condition. The said statement has been marked as Exhibit
B. From the cross-examination of the prosecution
witnesses, the defence case appears to be that the
occurrence in fact took place on Plot No. 4514 belonging to
the accused lying contiguous south of plot no. 4513 while
the accused persons were on their field and, therefore, it
is the prosecution party who are the aggressors and the
accused persons are entitled to right of private defence of
property as well as person. On a thorough analysis of the
entire evidence on record the learned Sessions Judge came to
the conclusion that the occurrence took place on plot no.
4513 which admittedly belongs to the informant and,
therefore, the plea of the accused that they were exercising
their right of private defence of property as well as person
on their land is not acceptable. This conclusion of the
learned Sessions Judge has been re- affirmed in appeal by
the High Court and Mr. P.S.Mishra, learned senior counsel
appearing for the appellants also fairly did not assail the
same. The learned Sessions Judge convicted the appellants
on the basis of the ocular evidence of four eye witnesses,
namely, PWs. 2, 4, 7 and 8 of whom PWs 7 and 8 had been
injured. He had also relied upon the evidence of the
doctor-PW3 who was posted at Sadar Hospital, Chapra and who
had conducted the autopsy on the dead body of deceased
Kameshwar and had submitted the postmortem report Exhibit 2
and who had also examined the injured persons. The Sessions
Judge convicted the appellants under Section 302/34 IPC and
sentenced them to imprisonment for life. They were also
convicted by the Sessions Judge under Section 307 and
sentenced to imprisonment for 7 years and for their
conviction under Section 324 they were sentenced to undergo
RI for one year. The High Court in appeal has affirmed the
conviction and sentence of the appellants on all three
counts. It may be stated at this stage that since 9 accused
persons stood their trial facing a charge under Section
302/149 IPC the Sessions Judge disicussed the evidence of
the prosecution witness, more particularly, PWs 2 and 7 and
came to the conclusion that at no point of time five accused
persons had come together and, therefore, the necessary
ingredients for formation of unlawful assembly having the
common object to cause murder of Kameshwar is not satisfied.
Consequently the question of constructive liability of all
the accused persons does not arise. It also positively
found that it is only Rajendernath, Prabhunath and Triloki
who had made overt act by assaulting the deceased.
According to the doctor PW3 the deceased had the following
three antimortem injuries:
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(i) Penstrating injury 1 x ½ x 1-1/2 in the chest
cavity arising first above, left nipple and one inch 1
lateral to the nipple pieroring in 4th intercostal space.
On further examination, the left alura was found punctured
at the said site and thereby punctured the left lung to its
upper portions 1/3 x ½. The left side of chest cavity was
having about 8 ones of altered blood.
On further disection, both lungs were found pale,
right side of chest was having blood in its chambers. Left
side was found empty. On desoretion of abdomen liver was
sound pale. The stomach contained about 10 ones of rice
mixed food materials. The bladder was empty.
(ii) There was penetrating injury in the posterior
aspect of upper part of right leg ½ x ¾ x 1-1/4 and
ruptuned the popliteal blood vessels. On further
examination about ¾ once of altered blood came out.
(iii) Incised wound on the back in fourth theorasic
vertabral column 1/3 x ¼ x 1/5.
In the opinion of the doctor death was due to shock
and hemorrhage and injury no. 1 was sufficient to cause
death in the ordinary course of nature.
Mr. Mishra, learned senior counsel appearing for the
appellants raised the following contentions:-
(i) The serious injury on accused Rajender not having
been explained the prosecution case must be held to be
untrue and, therefore, the conviction and sentence cannot be
sustained.
(ii) In view of the statement of Satyanarain recorded
by the Magistrate on 4th July, 1977 which has been exhibited
as Exhibit- B clearly giving out a different prosecution
story than the one which was presented in the Court during
trial the entire prosecution case must fail.
(iii) In any view of the matter and taking into
consideration the narration of events as unfolded through
the prosecution witnesses there being no pre-meditation and
on account of a sudden quarrel in course of sudden fight,
the accused persons having assaulted the deceased in heat of
passion exception 4 to Section 300 Indian Penal Code can
apply and, therefore, the offence will be not under Section
302 but under Section 304 Part I Indian Penal Code.
(iv) Even taking the prosecution case in toto accused
Triloki cannot be held liable by attracting Section 34 in
view of the fact that there is no material to indicate that
Rajender assaulted the deceased in furtherance of common
intention shared by him and Triloki.
Mr. B.B. Singh, learned counsel appearing for the
State on the other hand contended, that in the facts and
circumstances of the case non-explanation of injury on
Rajender cannot be held to be fatal, more so, when the oral
testimony of the four eye witnesses has been found to be
trustworthy. He further contended that the former statement
of Satyanarain has not been confronted to him while he was
examined as PW 8, and therefore, the provisions of Section
145 of the Evidence Act has not been complied with, and in
this view of the matter the said document cannot be relied
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upon. He has also contended that even in the said statement
Rajender assaulted deceased Kameshwar with Bhala had been
stated, and therefore, the entire prosecution case cannot be
said to be a concocted one. According to Mr. Singh the
very fact that accused persons went to their adjacent land
brought out the weapon of offence and assaulted the
deceased, would negate the contention of the defence that
there was no pre-meditation. That apart, common intention
developed at the spur of the moment when both Rajender and
Triloki came armed and assaulted deceased and, therefore,
the question of applicability of exception 4 to Section 300
does not arise.
He has lastly contended that in the facts and
circumstances of the case Triloki also must be held liable
by applicability of Section 34 and no error has been
committed in convicting both the appellants in Section 34 of
Indian Penal Code.
So far as the question whether non-explanation of the
injuries on accused Rajender ipso facto can be held to be
fatal to the prosecution case, it is too well settled that
ordinarily the prosecution is not obliged to explain each
injury on an accused even though the injuries might have
been caused in 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
person which is established to have been caused in course of
the same occurrence then certainly the Court looks at the
prosecution case with little suspicion on the ground that
the prosecution has suppressed the true version of the
incident. In the case in hand accused appellant Rajender
had one penetrating wound, three incised wound and one
lacerated wound and of these injuries the penetrating wound
on the left axillary area in the 5th inter costal space ½ x
1/3 x ¾ was grevious in nature as per the evidence of
doctor PW-3 who had examined him. On the basis of the
evidence of PW-3 as well as PW-11 the Courts have come to
the conclusion that there is no room for doubt that the
appellants and their men had injuries on their person on the
date of occurrence. The question, therefore, remains to be
considered is whether non-explanation of said injuries on
accused appellant Rajender can form the basis of a
conclusion that the prosecution version is untrue. In Mohar
Rai and Bharath Rai vs. State of Bihar (1968) 3 SUPREME
COURT REPORTS - 525, this Court had held that the failure of
the prosecution to offer any explanation regarding the
injuries found on the accused shows that the evidence of the
prosecution witness relating to the incident is not true or
at any rate not wholly true and further those injuries
probabilise plea taken by the accused persons. But in
Lakshmi Singh vs. State of Bihar (1976) 4 Supreme Court
Cases (Crl.) 671, this Court considered Mohar Rai (Supra)
and came to hold that non-explanation of the injuries on the
accused by the prosecution may affect the prosecution case
and such non-explanation may assume 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. The question was
considered by a three Judge Bench of this Court in the case
of Vijayee Singh vs. State of U.P. (1990) 3 Supreme
Court Cases 190, and this Court held that if the prosecution
evidence is clear, cogent and creditworthy and the Court can
distinguish the truth from the falsehood the mere fact that
the injuries are not explained by the prosecution cannot by
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itself be a sole basis to reject such evidence and
consequently the whole case and much depends on the facts
and circumstances of each case. In Vijayee Singhs case
(supra) the Court held that non-explanation of injury on the
accused person does not affect the prosecution case as a
whole. This question again came up before a three Judge
Bench recently in case of Ram Sunder Yadav and Others vs.
State of Bihar (1998) 7 Supreme Court Case 365, where this
Court re-affirmed the statement of law made by the earlier
three Judge Bench in Vijayee Singhs case(supra) and also
relied upon another three Judge Bench decision of the Court
in Bhaba Nanda Sarma and Others vs. State of Assam (1977)
4 Supreme Court Cases 396, and as such accepted the
principle that 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. The High Court in the impugned judgment
has relied upon the aforesaid principle and examined the
evidence of the four eye witnesses and agreeing with the
learned Sessions Judge came to the conclusion that the
prosecution witnesses are trustworthy and, therefore, non-
explanation of injury in question cannot be held to be
fatal, and we see no infirmity with the said conclusion in
view of the law laid down by this Court, as held earlier.
We, therefore, are not persuaded to accept the first
submission of Mr. Mishra, learned senior counsel appearing
for the accused appellants.
So far the second contention of Mr. Mishra is
concerned, it is no doubt true that on 4th July, 1977
Satyanarain who has been examined as PW-8 in course of trial
had been examined by a Magistrate as he had been seriously
injured and that statement has been exhibited as Exhibit-B
and in fact the Magistrate who had recorded the statement
has been examined by the defence as DW-1. This statement of
Satyanarain recorded by the Magistrate may be a former
statement by Satyanarain relating to the same fact at about
a time when the fight took place and when said Satyanarain
was examined as PW-8 during trial it would be open for a
party to make use of the former statement for such purpose
as the law provides. But if the witness during trial is
intended to be contradicted by his former statement then his
attention has to be drawn to those parts of the statement
which are required to be used for the purpose of
contradicting him before the said statement in question can
be proved as provided under Section 145 of the Evidence Act.
Mr. Mishra learned senior counsel appearing for the
appellant relying upon the decision of this Court in Bhagwan
Singh vs. The State of Punjab - (1952) Supreme Court
Reports 812, contended before us that if there has been
substantial compliance of Section 145 of the Evidence Act
and if the necessary particulars of the former statement has
been put to the witness in cross- examination then
notwithstanding the fact that the provisions of Section 145
of the Evidence Act is not complied with in letter i.e. by
not drawing the attention of the witness to that part of the
former statement yet the statement could be utilised and the
verasity of the witness could be impeached. According to
Mr. Mishra the former statement of PW-8 which has been
exhibited as Exhibit B was to the effect that Kameshwar was
assaulted with Bhala by Rajender and Surender and he did not
see whether any other person had been assaulted or not,
whereas in course of trial the substantive evidence of the
witness is that it is Rajender and Triloki who assaulted the
deceased and, therefore, it belies the entire prosecution
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case. The question of contradicting evidence and the
requirements of compliance of Section 145 of the Evidence
Act has been considered by this Court in the Constitution
Bench decision in the case of Tahsildar Singh and another
vs. The State of Uttar Pradesh 1959 Supp. 2 Supreme
Court Reports 875. The Court in the aforesaid case was
examining the question as to when an omission in the former
statement can be held to be a contradiction and it has also
been indicated as to how a witness can be contradicted in
respect of his former statement by drawing particular
attention to that portion of the former statement. This
question has been recently considered in the case of Binay
Kumar Singh & Ors. Etc. etc. vs. State of Bihar - (1997)
1 Supreme Court Cases 283, and the Court has taken note of
the earlier decision in Bhagwan Singh (Supra) and explained
away the same with the observation that on the facts of that
case there cannot be dispute with the proposition laid down
therein. But in elaborating the second limb of Section 145
of the Evidence Act it was held that if it is intended to
contradict him by the writing his attention must be called
to those parts of it which are to be used for the purpose
for contradicting him. It has been further held that if the
witness disowns to have made any statement which is
inconsistent with his present stand, his testimony in Court
on that score would not be vitiated until the cross-examiner
proceeds to comply with the procedure prescribed in the
second limb of Section 145 of the Evidence Act. Bearing in
mind the aforesaid proposition and on scrutinising the
evidence of DW-1, we find that the Magistrate who is
supposed to have exhibited the document in his cross-
examination categorically admitted that neither any
signature nor seal of either of the Chief Judicial
Magistrate or of his office on the statement Exhibit B. If
according to the Magistrate on recording the statement of
Satyanarain he had sent the same to the Chief Judicial
Magistrate, it is inconceivable as to how the document would
not bear the signature nor seal of either of the Chief
Judicial Magistrate or of his office. The Magistrate in his
examination-in-chief also does not state as to who
identified Satyanarain in the hospital before recording his
statement. It is under these circumstances it is difficult
to hold that Exhibit-B has been legally proved to be the
former statement of Satyanarain who has been examined as
PW-8. Then again on scrutiny of the evidence PW-8 it is
crystal clear that the witness has not been confronted with
that part of his alleged former statement which the defence
want him to be contradicted. The witness has merely been
asked as to whether he stated before the Magistrate that
accused Surendra has assaulted Kameshwar to which he had
replied he does not recall as to what he stated before the
Magistrate. In this state of affairs it is difficult for us
to hold that the provisions of Section 145 of the Evidence
Act has been complied with in the case in hand. Then again,
so far as accused Rajender is concerned, there has been no
variance in his so-called former statement Exhibit B and his
statement in the Court when he was examined as PW- 8 clearly
asserting that Rajender assaulted the deceased Kameshwar by
means of Bhala. In the aforesaid premises, we are unable to
accept the second submission of Mr. Mishra and the same
accordingly stands rejected.
So far as the third contention of Mr. Mishra is
concerned, the question for consideration would be as to
whether the ingredients of Exception 4 to Section 300 of the
Indian Penal Code can be said to have been satisfied? The
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necessary ingredients of Exception 4 to Section 300 are :
(a) a sudden fight; (b) absence of pre-meditation (c)
no undue advantage or cruelty, but the occasion must be
sudden and not as a cloak for pre existing malice. It is
only an un-premeditated assault committed in the heat of
passion upon a sudden quarrel which would come within
Exception 4 and it is necessary that all the three
ingredients must be found. From the evidence on record it
is established that while the prosecution party was on their
land it is accused who protested and prevented them from
continuing with ploughing but when they did not stop accused
persons rushed to the nearby plot which is their land and
got weapons in their hands and assaulted the prosecution
party ultimately injuring several members of the prosecution
party and causing the death of one of them while they were
fully unarmed. In this view of the matter on scrutinising
the evidence of four eye witnesses PWs 2, 4, 7 and 8 who
have depicted the entire scenario it is not possible for us
to agree with the submission of Mr. Mishra, learned senior
counsel appearing for the appellants that the case is one
where exception 4 to Section 300 would be applicable. We,
therefore, reject the said submission of the learned
counsel.
The only contention that survives for our
consideration is whether Triloki could be held liable by
application of Section 34. From the injuries on the
deceased as found by the doctor PW-3 it is crystal clear
that the injury no. 1 was found to be sufficient to cause
death in the ordinary course of nature and said injury is
attributable to the assault given by accused Rajender on the
chest of the deceased. So far as Triloki is concerned, as
per the evidence of PW-2 he has given a blow on Satyanarain
PW-8 and Banwari, the other injured who has not been
examined and he had not inflicted any injury on the
deceased. According to PW- 4 Triloki had given a blow on
the leg of Kameshwar. According to PW-7 Kameshwar was
assaulted by Rajender, Triloki and Prabhunath but he has not
ascribed as to which accused assaulted which part of the
body of the deceased and narration is one of general nature.
So far as the evidence of injured PW-8 is concerned Triloki
Singh hit Kameshwar on his leg. Leaving aside the
contradiction amongst each other with regard to the assault
by Triloki and taking into account the entire scenario it is
difficult for us to hold that Triloki also shared the common
intention with Rajender when Rajender gave a fatal blow on
the deceased. It may be noticed at this stage that though
the prosecution had made out the case that nine accused in
all formed an unlawful assembly the common object of which
assembly was to murder deceased Kameshwar but the learned
Sessions Judge on appreciation of the evidence came to the
conclusion that there had been no unlawful assembly nor
there was any common object to cause assault or murder of
deceased Kameshwar. From the evidence of PW-8 it is
apparent that while he was on Plot No. 4513 Rajender Singh,
Prabhu Nath and Ramdev reached near PW-8 and told him not to
plough the field at that point of time the accused persons
had no arms with them. It is further apparent that there
was altercations between the prosecution party, more
particularly PW-8 and the accused persons and that the
accused persons picked up some weapon and assaulted
Kameshwar as well as other persons injured. It is further
established that in course of the occurrence accused
Rajender sustained a grievous injury. The said evidence of
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PW-8 also indicates that Kameshwar himself was armed with a
Farsa while Ramdeo Singh, Surender, Kishun Pandit and Rudal
Singh were armed with lathis and when Rajender Singh gave a
lalkara Prabhunath Jagnarain and Kishun Pandit assaulted
PW-8. It is under these circumstances when Triloki Singh
has been ascribed to given a blow on the leg of the
deceased. It is difficult to hold that he also shared the
common intention with Rajender for causing murder of the
deceased which developed at the spur of the moment. In the
case of Dukhmochan Pandey and others etc. vs. State of
Bihar (1997) 8 Supreme Court Cases 405 , this Court has
held that there lies a distinction between the common
intention and similar intention and question whether there
exists common intention in all the persons who made some
overt act resulting in the death of some of the persons of
other party is a question of fact and can be inferred only
from the circumstances. This Court had held that the
distinction between a common intention and the similar
intention may be fine, but is nonetheless a real one and if
overlooked, may lead to miscarriage of justice. Following
the ratio in the aforesaid case and applying to the facts
and circumstances of the present case, as unfolded through
the eye witnesses, it is not possible for us to hold that
Triloki also shared the common intention with accused
Rajender and his conviction under Section 302/34 cannot be
sustained. We accordingly set aside the same and instead
convict him under Section 324 Indian Penal Code and sentence
him to imprisonment for a period of two years.
Conviction of appellant Rajender is altered to one
under Section 302 Indian Penal Code instead of 302/34 Indian
Penal Code and sentence of imprisonment for life is
affirmed. All other conviction and sentence of the two
appellants remain unaltered. Appeal is thus partly
allowed.