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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  Â¾  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.