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CASE NO.: Writ Petition (crl.)  1621 of 2005

PETITIONER: Ramjee Rai & Ors

RESPONDENT: State of Bihar

DATE OF JUDGMENT: 24/08/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T S.B. SINHA, J.

                The Appellants herein with Bharat Rai and Ganeshi Rai (since  deceased) were prosecuted for commission of the offence of causing  intentional death to one Baijnath Singh and disappearance of his dead  body.

       A First Information Report was lodged by Rajnath Singh (PW-3),  brother of Baijnath Singh (deceased) alleging that on 21.8.1980 at about 4  in the afternoon he along with him was at their plot of land situated by the  side of a Dhab in the north of village Dudhiyan where they had gone for  cutting Masuria Crops.  The Appellants together with Bharat Rai and  Ganeshi Rai, variously armed, took them forcibly on a boat to the Dhab  letting the boat moving freely.  After the boat had proceeded some  distance, they started assaulting the deceased.  He, however, finding an  opportunity in this behalf jumped from the boat and started swimming  towards the higher ground, shouting and crying for help.  Baijnath Singh  died as a result of the assault and his dead body was carried away in their  boat.  It was stated that the occurrence had been seen by Satyanand Singh  (PW-1), Kameshwar Singh (PW-2) and Pancham Singh (PW-5).  It was  alleged that in view of the flood conditions as also due to night fall, the  report could not be lodged in the night.  As regards motive for  commission of the said offence, the informant alleged that the deceased  had a piece of land near the house of the accused and they repeatedly  used to pluck the maize and cut away the Masuria crop grown on that  land as a result whereof the parties had been quarreling with each other.   Allegedly, Baijnath Singh had also apprehended the accused cutting away  his Masuria crop wherefor he had abused them in retaliation.  The  accused persons are said to be belonging to one family and they had been  indulging in commission of theft and dacoity.  The murder of Baijnath  Singh was said to have committed in retaliation of the said incident.  In  the First Information Report, two accused were said to be carrying  country made pistols while the rest were armed with gandasas, lathies and  spears.  The dead body was recovered after five days, i.e., 26.8.1980.   The dead body was first seen by the Chowkidar (PW-4) of the village.   He reported to the informant thereabout.  He came and also identified the  dead body.  All the accused persons were convicted for commission of an  offence under Section 302/34 read with Section 201 of the Indian Penal  Code and sentenced to undergo imprisonment for life under Section  302/34 and five years rigorous imprisonment under Section 201 of the  Indian Penal Code by a judgment and order dated 31.7.1987.  An appeal  preferred thereagainst by the accused has been dismissed by the High  Court by the impugned judgment.

       Mr. P.S. Mishra, learned senior counsel appearing on behalf of the  Appellants, submitted that the learned Sessions Judge as also the High

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Court committed a serious error in holding that the dead body had been  identified to be that of the deceased.  According to the learned counsel,  keeping in view the post mortem report which clearly showed that only  bones were visible, it could not have been identified and in that view of  the matter the prosecution case cannot be said to have been proved.   

       It was further submitted that some of the independent witnesses  who could throw light on the prosecution case had deliberately been  withheld by the prosecution as a result whereof the Appellants suffered  grave prejudice.  Non-examination of independent and uninterested  witnesses by the prosecution, having regard to the fact of the case, Mr.  Mishra would submit, was imperative.  Reliance in this behalf has been  placed on Sahaj Ram and Others v. The State of U.P. [(1973) 1 SCC 490]  and Habeeb Mohammad v. The State of Hyderabad 1954 SCR 475].

       The High Court, it was urged, committed a serious error in passing  the impugned judgment insofar as it failed to take into consideration the  fact that the deceased was having criminal background and, thus, could  have been done to death by others.  The Appellants, it was contended,  have been implicated because of the enmity.  Inconsistency in depositions  of PWs, it was submitted, had also not been taken into consideration by  the courts below.  It also argued that the Trial Court as also the High  Court ought to have considered individual overt acts on the part of each  of the Appellants.

       Ms. Kirti Sinha, learned counsel appearing on behalf of the State,  on the other hand, submitted that the learned Sessions Judge and the High  Court rightly convicted the Appellants herein in view of the evidence of  the eye witnesses to the occurrence, viz., PWs. 1, 2, 3 and 5.

       The learned Trial Judge in his judgment inter alia held:

(i)     The injuries inflicted on the body of the deceased were  homicidal in nature. (ii)    The prosecution has been able to show that the dead body of  Baijnath Singh had been identified. (iii)   Although PW-3 was inimically disposed of towards the  accused, it cannot be said that he had falsely implicated the  Appellants. (iv)    The prosecution has assigned sufficient reasons for non- examination of the witnesses named in the chargesheet. (v)     Evidences adduced on behalf of the prosecution witnesses being  consistent, the prosecution case has been proved.

       The High Court in its judgment opined:

(i)     The prosecution has brought on records sufficient evidences to  prove that the assailants had arrived on a boat, assaulted the  deceased and carried away his dead body.   (ii)    The prosecution witnesses being closely associated with the  deceased, it was not difficult for them to identify the corpse. (iii)   Ocular evidences being consistent in nature, the prosecution has  been able to prove the charges as against the Appellants.

       PW-3 is the informant.  The First Information Report was lodged at  the earliest possible opportunity.  The informant categorically stated that  he not only saw the deceased being assaulted, he at the first opportunity  jumped from the boat, swam across the Dhab and somehow escaped from  the clutches of the Appellants.  He categorically stated that he had gone to  Akilpur, which was an out-post but the Officer-Incharge was not present  there thence.  He thereafter returned to his house and in the next morning  came to the Danapur Police Station on a boat.

       It is not in dispute that the dead body of Baijnath Singh was first  seen by Ganga Paswan, who was a chowkidar.  He was also resident of

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same village.  He knew the deceased from his childhood.  He  categorically stated that the deceased, on his right hand side of the  forehead had patch of grey hair.  A one paisa coin was also tied against  his waist.  He had thick mustache and same resembled with that of  Baijnath Singh.  He identified the dead body seeing his face and other  features.  The dead body was found in a field of maize situate in Mauza  Banwarichak.  It was at a distance of about 1.5 kms. from the place of  occurrence.  According to him, river Ganges flows at a distance of 3 kms.  South from that field and about 20 kms. from the West of the said field.   From the place where the dead body was found, river Ganges flows at a  distance of 1.5 miles East.  The place has been completely surrounded by   the said river.  According to him, crops had also been sown in the field.

       The dead body was also noticed by Ram Swarup Singh.  The  informant (PW-3) was informed thereabout.  He also went to the spot and  identified the dead body as that of his brother.  The police authorities  were also informed in regard thereto.

       Another witness who was examined by the prosecution was  Satyanand Singh (PW-1).  He was also an eye-witness.  He was sitting on  a Machan.  He not only named the accused persons having assaulted  Baijnath Singh, but also stated that he had seen the informant escaping  from the clutches of the accused.   

       PW-2 another eye-witness is Kameshwar Singh.  He was also in  his maize field at the time of occurrence.  He corroborated the statements  of PWs 1 and 3.  He is again an eye-witness.  He also identified the dead  body.  In his deposition, he stated:

"I told the police that I was in my field on the  date of incident.  I saw Baijnath Singh, Rajnath  Singh in their field before the coming of the  accused.  There was sickle in their hand at that  time.  At the time when Rajnath Singh jumped  from the boat there was nothing in his hand.   The field of Rajnath Singh in Dhudhiya village  is at a distance of 2-4-10 Laggi from the Basti."

       He also stated that despite cries nobody from the village came in  view of the water.  They have gone to their respective fields by wading  through risen water.   

       One Pancham Singh was examined as PW-5.  He also was an eye- witness.  He testified having seen Baijnath Singh was being assaulted.   According to him, as the deceased stopped shouting, he realized that he  was no more.   

       The learned Sessions Judge had placed implicit reliance on the  testimonies of these witnesses opining:

"Therefore, in view of the discussions made  above, I find that all the eye-witnesses are quite  competent and reliable and their evidence  coupled with the evidence of Doctor (PW.6)  and I.O. (PW.7) fully establishes that on the  alleged date all the accused persons armed with  lathi, Bhala, Gandasa, pistol came on boat, in  the field of the informant and forcibly picked up  the informant and Baijnath Singh on boat, and  then went towards Dhab and assaulted Baijnath  Singh with their respective weapons, causing  his death."

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       The High Court also in its impugned judgment discussed the  evidence of the eye-witnesses and held:

"We are unable to accept the submission and on  a careful examination of the written report and  the depositions of all the witnesses, including  the informant, P.W.3, we find no inconsistency  in those statements.  In the written report, it is  stated that while the informant and his brother  Baijnath Singh were cutting Masuriya crop on  their plot of land, the accused arrived with  variously armed and threatening them with their  arms, they forcibly took him and his brother to  the Dhab on a boat.  We are unable to read to  statement in the written report to mean that the  accused had come to the land, where the  informant was there with his brother, on foot  and they took them along on foot upto Dhab  where they boarded the boat that was waiting  there.  The statement in the written report on a  careful reading plainly means that the accused  arrived there on a boat and forcibly picked up  the informant and his brother on it and took  them in the direction of the Dhab.  We, thus,  find no inconsistency, much less, any  contradiction in the prosecution story as stated  in the written report and as deposed before the  court by the witnesses."

       In regard to the identification of the dead body, the learned  Sessions Judge held that the dead body was that of Baijnath Singh which  had duly been proved by PWs 3 and 4.   

       We may at this juncture notice the medical evidence.

       Dr. Sheonandan Barunwal, who examined himself as PW-6,  proved the post mortem report.  The dead body before him had been  identified as that of Baijnath Singh by the constable, Rajnath Singh and  the Chowkidar.  The age of the deceased was said to be 35 years.  The  clothes were having a ganji, dhoti and a small chadar.  The body was in a  decomposed condition.  Rigor mortis was absent.  The body had three cut  wounds.  It was categorically stated that the hairs of scalp were intact.   The post mortem report does not suggest that there was no mark on face  or identification marks were totally absent.  In his opinion, the death  might have been due to amputation of hands.  He categorically stated that  the dead body was thrown in water and the soft parts were eaten away by  the fish.  According to him, it was difficult to assess the period past since  death.  But, according to him, it may be approximately 10 days.   

       The Appellants did not even suggest that the deceased did not have  the special features whereabout PW-4 made categorical statement.  His  age at the time of death had also not been disputed.  The Investigating  Officer Ram Naresh Shukla (PW-7) also stated in categorical terms that  the entire flesh below the stomach had been eaten away by the animals  and the dead body had been identified by Chowkidar Ram Swarup Singh  and Raghunandan Paswan, Ganga Paswan and Kameshwar Singh of  Banwarichak stating that the same was that of Baijnath Singh.  Even the  age of the deceased was not disputed.

       It is now a trite law that corpus delicti need not be proved.   Discovery of the dead body is a rule of caution and not of law.  In the  event, there exists strong circumstantial evidence, a judgment of  conviction can be recorded even in absence of the dead body.  [See Rama

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Nand and Others v. State of Himachal Pradesh, (1981) 1 SCC 511].

       In Ram Gulam Chaudhary and Others v. State of Bihar [(2001) 8  SCC 311], this Court noticed the decision in Rama Nand (supra) and  opined:

"There can be no dispute with the proposition of  law set out above. As is set out in the various  authorities (referred to above), it is not at all  necessary for a conviction for murder that the  corpus delicti be found. Undoubtedly, in the  absence of the corpus delicti there must be direct  or circumstantial evidence leading to the  inescapable conclusion that the person has died  and that the accused are the persons who had  committed the murder\005"

       What was, therefore, necessary for the courts below to arrive at a  finding of guilt as against the Appellants in regard to their involvement in  the crime.    It is not a case where the dead body could not be identified.   There had been sufficient materials placed by the prosecution to bring  home the said fact.

       So far as submission of Mr. Mishra that some independent  witnesses have not been examined is concerned, from the records it may  be noticed that it would appear that the public prosecutor categorically  stated before the learned Sessions Judge that some of the witnesses were  inimically disposed of towards the informant.  The Appellants have not  brought on record any material to show that the aforementioned stand  taken by the prosecution was not correct.  It is true that ordinarily the  prosecution should examine all witnesses whose names have been  disclosed in the chargesheet; but, then the same cannot be said to be a  rule having universal application.  Each case has to be considered on its  own facts.

       It is now well-settled that what is necessary for proving the  prosecution case is not the quantity but quality of the evidence.  The court  cannot overlook the changes in the value system in the society.  When an  offence is committed in a village owing to land dispute, the independent  witnesses may not come forward.   

       In Sheelam Ramesh and Another v. State of A.P. [(1999) 8 SCC  369], this Court opined:

"\005Courts are concerned with quality and not with  quantity of evidence and in a criminal trial,  conviction can be based on the sole evidence of a  witness if it inspires confidence."

       Yet again in Pohlu v. State of Haryana [(2005) 10 SCC 196], this  Court opined:

"\005It is true that it is not necessary for the  prosecution to multiply witnesses, if it prefers to  rely upon the evidence of the eyewitnesses  examined by it, which it considers sufficient to  prove the case of the prosecution. However, the  intrinsic worth of the testimony of the witnesses  examined by the prosecution has to be assessed by  the court. If their evidence appears to be truthful,  reliable and acceptable, the mere fact that some  other witnesses have not been examined, will not

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adversely affect the case of the prosecution\005"

        In Balram Singh v. State of Punjab, [(2003) 11 SCC 286], this  Court opined:

 "The appellants’ contention that the prosecution  has relied only on interested evidence of PWs 1  and 2 and has not examined the other independent  witnesses who were present or for that matter the  non-examination of another son of the deceased by  the name of Jasbir Singh should give rise to an  adverse inference, cannot also be accepted because  so far as Jasbir Singh is concerned, though there is  some material on record to show that he was  examined by a doctor on the night of the incident,  there is no material to show that he was actually  involved in this fight. His name is not mentioned  in the FIR also, therefore if the prosecution has  thought it not necessary to examine this witness,  we do not think an adverse inference could be  drawn on the basis of this non-examination of the  said Jasbir Singh. This view of ours also holds  good in regard to the so-called other independent  witnesses who were present at the time of the  incident since in a family feud like this it is rare  that an independent witness would come forward  to give evidence."

       Yet again in State of U.P. v. Anil Singh [1988 Supp SCC 686], it  was observed: "Of late this Court has been receiving a large  number of appeals against acquittals and in the  great majority of cases, the prosecution version is  rejected either for want of corroboration by  independent witnesses, or for some falsehood  stated or embroidery added by witnesses. In some  cases, the entire prosecution case is doubted for  not examining all witnesses to the occurrence. We  have recently pointed out the indifferent attitude of  the public in the investigation of crimes. The  public are generally reluctant to come forward to  depose before the court. It is, therefore, not correct  to reject the prosecution version only on the  ground that all witnesses to the occurrence have  not been examined. Nor it is proper to reject the  case for want of corroboration by independent  witnesses if the case made out is otherwise true  and acceptable."

       In Habeeb Mohammad (supra), whereupon Mr. Mishra has placed  strong reliance, this Court stated that prosecution was not bound to call  all available witnesses irrespective of consideration of number of  reliability, witnesses essential to the unfolding of the narrative on which  the prosecution was based must be called by the prosecution, whether in  the result the effect of their testimony is against the case of the  prosecution.   

       However, in that case the Appellant there was a Subedar.  The  allegation against him was that he ordered the police to fire.  The Deputy  Commissioner of Police who had accompanied the Appellant and had  witnessed the occurrence had not been examined by the prosecution.  It

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was in that fact situation held that the prosecution should have examined  the said witness.  It was held that the Appellant was considerably  prejudiced by the omission on the part of the prosecution to examine the  said officer and other officers in the circumstances of the said case and  the conviction of the Appellant merely based on the testimony of the  police jamedar cannot be said to have been arrived at after a fair trial,  particularly, when no satisfactory explanation has been given or even  attempted for this omission.   

       In Sahaj Ram (supra) again, relied by Mr. Mishra, there was a  group rivalry.  In that case, the Court found serious mistakes committed  by the Sessions Judge as also the High Court in appreciating evidence.   Keeping in view the peculiar nature of the case and having regard to the  fact that there had been group rivalry, it was opined:

"\005As pointed out by this Court in Habeeb  Mohammed v. State of Hyderabad though the  prosecution is not bound to call all available  witnesses irrespective of considerations of number  or reliability, witnesses essential to the unfolding  of the narrative on which the prosecution is based  must be called by the prosecution, whether in the  result the effect of their testimony is for or against  the case of the prosecution. This Court approved  the decision of the Judicial Committee in Stephen  Seneviratne v. King laying down a similar  proposition. In this case the first information report  clearly states that Shitabi, CW 1, was an employee  of the deceased and he was with his master at the  time of the incident. He has also given information  about the incident to PW 1 and others. Whatever  justification there may have been for not  examining Ram Prasad, the prosecution, in our  opinion, was not justified in keeping back  Shitabi\005"

        In Lakshmi and Others v. State of U.P. [(2002) 7 SCC 198], this  Court opined:

"Undoubtedly, the identification of the body, cause  of death and recovery of weapon with which the  injury may have been inflicted on the deceased are  some of the important factors to be established by  the prosecution in an ordinary given case to bring  home the charge of offence under Section 302 IPC.  This, however, is not an inflexible rule. It cannot  be held as a general and broad proposition of law  that where these aspects are not established, it  would be fatal to the case of the prosecution and in  all cases and eventualities, it ought to result in the  acquittal of those who may be charged with the  offence of murder. It would depend on the facts  and circumstances of each case. A charge of  murder may stand established against an accused  even in the absence of identification of the body  and cause of the death."

       In the instant case, however, some of the witnesses examined by  the prosecution are independent.  The evidence of all the witnesses are  more or less consistent.  Nothing has been pointed out to discredit their  testimonies.  The learned Sessions Judge as also the High Court,  therefore, cannot be said to have committed any mistake in relying upon  the testimonies of the said witnesses.

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       A contention was raised that autopsy surgeon opined that the death  must have taken place 10 days prior to the post mortem examination and  in that view of the matter the prosecution case should be disbelieved.  The  murder allegedly took place on a boat.  The dead body was thrown in the  water.  It remained under water for more than five days.  Rigor mortis  was absent and the body was fully decomposed.  The soft tissues of some  of the parts of the body had been eaten away by fish.   

       Medical science has not achieved such perfection so as to enable a  medical practitioner to categorically state in regard to the exact time of  death.  In a case of this nature, it was difficult to pinpoint the exact time  of death.  The autopsy surgeon told about the approximate time lag  between the date of post mortem examination and the likely date of death.   He did not explain the basis for arriving at his opinion.   

       This Court on a number of occasions noticed that it may not be  possible for a doctor to pinpoint the exact time of death.

       In Ramreddy Rajeshkhanna Reddy and Anr. v. State of Andhra  Pradesh [(2006) 3 SCALE 452], this Court observed:

"In this case, the time of actual offence having regard to the  different statements made by different witnesses may assume  some importance as one of the grounds whereupon the High  Court has based its judgment of conviction is the time of death  of the deceased on the basis of the opinion rendered by Dr. P.  Venkateshvarlu (P.W.13).

       In Modi’s Medical Jurisprudence, 22nd edition, as regard  duration of rigor mortis, it is stated:

"Average Minimum Maximum

Hours Minutes Hours Minutes Hours Minutes Duration  of rigor  mortis

19 12 3 0 40 0"

       It was, therefore, extremely difficult to purport the exact  time of death of the deceased, more so when no sufficient  reason was assigned in the post-mortem report."

       Submission of Mr. Mishra is also to the effect that the learned  Sessions Judge had not discussed about the individual overt acts of the  Appellants.  The prosecution witnesses categorically stated about the  whole incident.  The occurrence took place on a boat.  Out of two persons  forcibly taken on the boat, PW-3 could escape.  There were fourteen  accused persons.  They had inflicted injuries upon him.  Post mortem  suggests that sharp cutting weapons had been used.  Two accused

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persons, as noticed hereinbefore, were held to be possessed of some  cutting weapons.  The Appellants came in a group.  Some of them started  assaulting the deceased with weapons in their hands.  In a case of this  nature, it was well nigh impossible for the first informant to pinpoint the  exact overt acts committed by each of the accused persons individually.

       Section 34 of the Indian Penal Code, therefore, is clearly attracted  in a case of this nature.

       In a recent judgment in Bishna Alias Bhiswadeb Mahato and  Others v. State of W.B. [(2005) 12 SCC 657], the law has been stated in  the following terms:

"For the purpose of attracting Section 149 and/or  34 IPC, a specific overt act on the part of the  accused is not necessary. He may wait and watch  and the inaction on the part of an accused may  some time go a long way to hold that he shared a  common object with others."

       For the reasons aforementioned, we are of the opinion that no case  has been made out for interference with the impugned judgment.  The  appeal is dismissed.