Jharkhand High Court
Jageshwar Rai & Ors vs State Of Bihar on 26 July, 2010
Author: J.C.S.Rawat
Bench: J.C.S.Rawat
Criminal Appeal No. 271 of 1991P Against the judgment and order of conviction and sentence dated 31.5.1991 passed by Shri Sushil Kumar Dwivedi, Sessions Judge, Santhal Pargana, Dumka, in Sessions Trial No. 274 of 1989. 1.
Jageshwar Rai
2. Raso Rai
3. Shankar Rai
4. Kartik Rai .... Appellants Versus State of Jharkhand .... Respondents For the appellant(s) : M/s Jeetendra S.Singh, Arun Kumar Pandey & Nisa Murmu, Advocates.
For the respondents :Addl. P.P.
Coram : HON'BLE MR. JUSTICE J.C.S.RAWAT
HON'BLE MR. JUSTICE D.K.SINHA
(HON'BLE MR. JUSTICE J.C.S.RAWAT: Oral )
CAV on 28.05.2010 Pronounced on 26/7/2010
This appeals is directed against the judgment and order of conviction and sentence dated 31.5.1991 passed by the Sessions Judge, Santhal Pargana, Dumka, in Sessions Trial No. 274 of 1989 whereby the appellants 1 to 3 viz. Jageshwar Rai, Raso Rai and Shankar Rai have been convicted under section 323, 147 and 302 of the Indian Penal Code and sentenced to undergo imprisonment for life; further by the said impugned judgment and order the trial court directed conviction of the appellant no. 4 Kartik Rai by releasing him on executing a bond of Rs. 2000/- (rupees two thousand ) with two sureties of the like amount each with further direction to keep him under the supervision of the Probationary Officer, Dumka for two years under section 302/147 of the Indian Penal Code . 2 Facts of the case, in brief, are that on 2.5.1986 PW3 Ganesh Rai, informant proceeded all alone to village Dhawatand, where his brother in law Amirlal resides. When the informant reached village Roop Sagar, his brother in law Amirlal met him on the way. Thereafter, both of them proceeded to the house of Amirlal situated in Dhowatand village. When they reached the village Rangabandh, the appellants Jageshwar Rai and Shankar Rai pointed out that it was Amirlal who got his brother Udai Rai implicated in a criminal case by informing the Police 2 about some incident. Thereupon, some quarrel took place between Amirlal Rai (deceased) and Jageshwar Rai appellant. Thereafter, accused Lutan Rai, Kartik Rai, Raso Rai came out from their house armed with lathis. Lutan, who died during the course of trial, exhorted his sons Kartik Rai and Raso Rai, to kill the deceased Amirlal Rai. Thereupon, all the co-accused persons started assaulting the deceased with the weapons which they were holding in their hands. The informant PW3 tried to intervene in the melee to save his brother in law Amirlal Rai the deceased. The appellant Jageshwar assaulted him with two lathi blows on his person and he was further threatened with dire consequences. Thereupon, the deceased tried to escape from the place of occurrence and ran away towards the house of Gram Pradhan. All the appellants and co- accused chased him and again the deceased Amirlal Rai was caught hold by them and they again started blowing lathis on his person. The appellants and the co accused gave lathi blows on his legs when he again tried to run away towards the fields of village Pradhan. Thereupon, the deceased fell down on the ground. The appellants crushed the testicles of the deceased by jumping over his testicles. The testicles of the deceased started oozing out blood. The appellants ran away from the place of the occurrence. The villagers reached at the spot on alarms. By that time, the deceased had died at the spot. The chaukidar of the village was asked to go to the police station to inform about the incident. The Police reached at the place of the occurrence 3.5.1986 along with the chaukidar and the fard beyan of the informant was recorded at the spot by the police. Thereafter, the investigation was started and inquest report was prepared. The dead body was sent for post mortem examination. Statements of witnesses were recorded. Seizure memos were prepared after taking material Ext. at the spot. The investigating officer after completing the investigation submitted charge sheet before the court. The case was committed to the court of sessions and the learned Sessions Judge framed charges against the appellants and the co-accused. The appellants pleaded that they have been falsely implicated in the case due to enmity. They denied the charges and claimed trial.
3 The prosecution, in support of its case, examined PW3 Ganesh Rai informant, and the brother in law of the deceased who was 3 accompanying him from village Roopsagar to the place of occurrence. PW7 Radhia Ghatwarin, who is the wife of the deceased, claims to be an eye witness of the incident. PW1 Anantlal Rai is the Gram Pradhan who reached at the spot immediately after the incident. PW2 Sohan Rai and PW5 Jhaksu Rai have been tendered before the court. PW4 is the Dr. Chandra Shekhar Jha, who conducted autopsy on the dead body of the deceased Amirlal Rai on 3.5.1986 at about 2.00.p.m. PW6 is Baha Murmu who did not support the prosecution version and she was declared hostile. PW8 Singheshwar Rai is the son of the deceased. He was not present at the spot. He reached his house from Beldaha at about 7 p.m. Then his mother narrated him the entire incident. PW9 Rabindra Kumar is the Investigating Officer of the case.
4 After recording evidence of prosecution, appellants were examined under section 313 Cr.P.C and they denied all the averments made in the evidence against them and further stated that they have been falsely implicated in the case and they claimed trial. 5 No evidence, oral or documentary, was produced before the trial court on behalf of the appellants. After hearing the parties, learned trial court convicted the appellants as indicated above. 6 It needs to be mentioned that there is no dispute about the time, place and date of occurrence and the death of the deceased. The death of the deceased is not disputed by the appellants. Apart from that, the prosecution has also examined PW4 Dr. C.S. Jha. He conducted autopsy on the dead body of the deceased at Sadar Hospital Dumka at
2.p.m. on 3.5.1986 and found the following ante mortem injuries on the person of the deceased.
i) rigor mortis was present. Blood was oozing from his mouth and nose. He found the following ante mortem injuries on his person. One lacerated wound 1 ½ "x ½ " bone deep over the right parietal region. On dissection of this injury he found laceration of the connecting fossa. There was fracture of the left parietal bone. Membranes underneath the brain were lacerated. Blood clots were present in the cranium.
PW4 further found swelling over the whole of the chest of the deceased. On dissection of these injuries he found fracture of 3rd to 6th ribs of the left side of the chest and the 4th to 7th ribs of the right side of the chest. Connecting pleura and both the lungs were lacerated. Blood clots were present in the chest cavity. On 4 dissection of the abdomen it was found that the liver was ruptured. Blood clots were present in the cavity of the abdomen. PW4 further found lacerated wound 1½" x ½ " x bone deep over the left in the middle with fracture of the libia and fibula of the deceased. He further found lacerated wound 1"x ½" bone deep over the right left in the lower part with fracture of libia and fibula.
The doctor opined that the death of the deceased was due to shock and haemorrhage as a result of injury no.21 over the right parietal region and injury no.2 over the chest, or either of them. Either of these injuries was sufficient to cause death of the deceased. PW4 has further stated that the injuries were caused by hard blunt substance as such lathi time elapse since death at the time of post mortem examination of the deceased was within 48 hours.
He proved the post mortem report ( Ext. 1) He further opined that the death of the deceased was caused due to shock and haemorrhage as a result of ante mortem injuries. The injuries were caused by hard and blunt objects such as lathi. It was further opined that duration of death was assessed with 48 hour from the time of post mortem. The prosecution has also produced eye account of the incident and examined PW3, and PW7 Radhia Ghatwarin. It is stated that the deceased died due to injuries caused by the appellants. It is also established from the evidence of PW1 Anant Lal Rai, that he reached at the spot immediately after the incident and found that the deceased was lying dead on the ground and blood was oozing out. PW6 Baha Murmu though hostile, has stated that she saw the dead body of the deceased lying in the field immediately after the incident. PW8 Singheshwar Rai also saw that after the incident his father had died at the spot. The defence has further suggested to the informant PW3 Ganesh Rai, during cross examination that in the morning on 3.5.1986, there was some hue and cry from the place of occurrence. Then PW3 reached at the spot and found the deceased was dead at the spot. A similar suggestion was also put to PW7 Radhia Ghatwarin, the wife of the deceased, during the course of her cross examination. It was also suggested that the death of the deceased was homicidal. It is established that the deceased died homicidal death. Thus, from the evidence also, it is amply established that homicidal death of the deceased was caused at the place, time and date of occurrence as stated by the prosecution.
57 Now, it is to be decided who is the author of the injuries on the person of the deceased? The prosecution case rests entirely on the direct evidence of the eye witnesses. Prosecution has adduced evidence of PW3 Ganesh Rai (informant) and PW7 Radhika Ghatwarin who is the wife of the deceased. PW 3 Ganesh Rai has made statement corroborating the contents of the FIR. He has stated in his deposition that on 2.5.1986 he proceeded to village Dhawatand. When he reached village Roopsagar, his brother-in-law Amirlal met him there. Thereafter, he proceeded with Amirlal to his house situated at Dhawatand. When they reached the village Rangabadh, appellants Jageshwar and Shankar Rai told the deceased that the latter (the deceased) had informed the police and got their brother implicated in the case. An altercation took place between the parties. Thereafter, the co-accused Lotan Rai ( he died during trial ) exhorted his sons Kartik Rai and Raso Rai appellants and pursuant to that, they reached at the spot having lathis in their hands. Thereafter, all the appellants and co-accused indiscriminately assaulted on the Amirlal (deceased). When he wanted to save his brother in law, Jageshwar Rai also assaulted him with two lathi blows. When the deceased wanted to flee away towards the house of the Village Pradhan, they chased him, caught hold of him and indiscriminately assaulted by lathis. Consequently, the legs of the deceased were fractured and appellants crushed his testicles which started bleeding at the spot. Thereafter, the appellants and the co- accused ran away from the spot. The deceased Amirlal died at the spot. Chaukidar was informed about the incident. The police came and he delivered fard beyan to the police. He has also proved the said fard beyan.
8. The prosecution has also adduced the evidence of PW7 Radhia Ghatwarin who is the wife of the deceased. She also claims to be an eye witness to the occurrence. She has stated in her evidence that she was grazing her cows. She heard noise from the side of Rangabandh. She reached at the place of occurrence, where she found that the appellants and the co-accused were assaulting her husband Amirlal. She named all the appellants and the co-accused and further stated that the appellants were holding lathis. Apart from that, appellant Kartik had a knife, whereas Raso Rai and Shankar Rai appellants had farsa in their hands. The house of the village Pradhan is situated near the place of occurrence.
6The deceased, the husband of the PW7 Radhia Ghatwarin, had died at the spot. When she wanted to intervene in the melee, she was threatened and then she left the place of the melee. After committing assault upon the deceased, the appellants fled away from the place of occurrence. She has further deposed that the appellants had also been quarrelling with her husband with regard to a land dispute. Both these witnesses (PW3 & 7) are said to be eye witnesses of the incident.
9 PW1 Anantlal Rai is the Gram Pradhan who has stated that on the date of occurrence, he went at the place of incident immediately after the incident and saw that the wife of the deceased was weeping at the spot and she told him the names of the appellants and co- accused who had killed her husband. PW8 Singheshwar Rai is the son of the deceased. He has deposed that on the date of the incident, he was not present at his house. He had gone to Beldaha. He reached his home at about 7 p.m. in the evening from Beldaha. Her mother told him that the appellants and the co-accused Lutan had killed his father and narrated the entire incident. Thereafter, he called the chaukidar and he was asked to go to report the matter to the Police Station.
10 After perusal of the evidence and the materials available on the record, the trial court held that the evidence of PW7 Radhia Ghatwarin the wife of the deceased is not cogent and credible. The trial court in paragraph 15 of its judgment has observed as under:
"Radhia Ghatwarin (PW7), the wife of the deceased, has tried to figure as an eye witness in her evidence. She says that when she reached at the place of occurrence accused Jageshwar Rai, Raso Rai and Kartik Rai were standing at the place of occurrence. All of them were armed with lathi. She then says that accused Kartik Rai had dagger in his hand, Raso Rai and Shankar Rai were armed with pharsa. At that time, her husband had already died. However, informant Ganesh Rai (PW3) has stated, and it has also come in the evidence of PW7, that she learnt about the occurrence from the informant (PW3). When she reached at the place of occurrence she found that her husband had died. Nobody else of the village except the informant was there at the place of occurrence. Therefore, inconsistency has occurred in her evidence that her husband was killed by Pharsa and dagger and blows also which was hurled on the deceased. This inconsistency has cropped up in her evidence because she tried to be an eye witness of the occurrence although she did not see the occurrence herself.7
Therefore, her evidence on this point has to be ignored."
11 From perusal of para 6 of the cross examination of PW7 Radhia Ghatwarin, it is apparent that she was informed by her brother Ganesh Rai PW3 about the killing of her husband. PW3 has stated at the end of para 9 of his cross examination that he had told his sister about the incident and then she started weeping. Thereafter PW3 Ganesh Rai and her sister again went to the place of occurrence. This evidence clearly reveals that she was not present at the spot at the time of the occurrence. We are completely in agreement with the findings recorded by the trial court that PW7 Radhia Ghatwarin was not an eye witness to the occurrence.
12 Learned counsel for the appellants further contended that there are contradictions and inconsistencies in the evidence of the eye witnesses about the manner of injuries caused and the weapons used in the incident. As we have already pointed out, the evidence of PW7 Radhia Ghatwarin is not cogent and credible. As such, we have to appreciate the evidence of the informant, PW3 Ganesh Rai about the manner of incident. PW3 has narrated the incident meticulously in his evidence. He further pointed out that the presence of PW3 Ganesh Rai at the spot is also doubtful because PW1 Anantlal Rai, the Gram Pradhan visited the spot immediately after the incident and he did not find him present at the spot. He has categorically stated in his evidence that he is the brother in law of the deceased; on the date of the occurrence, PW3 Ganesh Rai proceeded from his village to Dhawatand the village of his brother in law Amirlal. When he was on the way in village Roopsagar, he met his brother in law (deceased) and both of them proceeded to village Dhawatand. When they reached village Rangabandh the accused appellants emerged there and the deceased was mercilessly assaulted by the appellants which resulted in his death. Thus, this witness has categorically stated how he was with the deceased. The defence has also put a suggestion to the informant (PW3) that he heard the cries of his brother in law on 3.5.1986 in the morning and he reached at the spot. Thus, the presence of the appellants on the next morning is admitted. During the cross examination, the above evidence is consistent, credible and cogent. The evidence of prosecution witness ( PW3) is cogent and credible. The 8 witness has been cross examined at length, but nothing has been elicited from his cross-examination to discredit and discard his evidence. Thus, the presence of the witness Ganesh Rai (PW3) along with the deceased is well established and it cannot be doubted. So far as the evidence of PW1 Anantlal Rai as to whether he had seen PW3 at the spot or not, is concerned, his cross examination is itself explanatory. PW1 has stated that when he heard the cries, he and his son also went there at the place of the occurrence and no other person went there. When he reached at the spot, no villager was found present at the spot. PW3 Ganesh Rai is not a villager; he is an outsider to that village. Thus, no further clarification has been sought in the cross examination. Learned counsel for the appellants further pointed out the other minor contradictions in the testimony of the witness regarding the fact as to who called the chaukidar and who sent him to the Police Station to report the matter. This inconsistency or omission is not of any avail to the defence. When such incident occurred, every body would like to call the village chaukidar to send him to the Police Station. This omission in evidence is normal discrepancy which occurs due to normal error of observation, normal error of the memory due to lapse of time and due to mental disposition on account of shock and horror at the time of the occurrence and those discrepancies would always be there however honest and truthful a witness may be. We have gone through the entire evidence and the contradictions pointed out by the learned counsel for the appellants. When witnesses appears before the court, some time he may not stand the test of cross examination meticulously which may be some times because he is a bucolic person and is not able to understand the questions put by a skillful cross examiner and at times, under stress of cross examination, certain answers are snatched from him. When a rustic or an illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored. (See Krishna Mochi Vs. State of Bihar reported in 2002 (6) SCC 81). Thus, we do not find any force in the contention that there are major contradictions in the testimony of the witness to discredit his testimony. Thus, the testimony of the informant (PW3) is totally consistent during the cross examination. He has meticulously given the details of the incident and the defence has made cross examination to the witness at 9 length but nothing could be elicited from his cross examination to discredit his testimony. We have gone through the entire evidence available on the record. After perusal of the evidence, we are in complete agreement with the findings recorded by the trial court that the evidence of PW 3 is undoubtedly cogent, credible and reliable and the credibility and trustworthiness of the evidence of the PW3 Ganesh Rai, cannot be discarded or brushed aside. We also subscribe the same view which the trial court has held. We do not find any fault in the appreciation of the evidence of PW 3 by the trial court.
13 Learned counsel further contended that PW3 Ganesh Rai being related to the deceased is an interested and partisan witness and his testimony cannot be relied upon; due to enmity the accused appellants have been falsely implicated in the case. Learned counsel for the State refuted the contention raised on behalf of the appellants. There is no rule of prudence which requires that the evidence of close relations must be discarded or discredited for the reasons that they are related to each other. By now, it is well settled that animosity is a double edged sword which cuts both sides. It could be a ground for false implication and it also could be a ground for assault. Just because the witnesses are related to the deceased would be no ground to discredit their testimony if other wise the testimony of the related witnesses inspires confidence. In the case in hand, PW3 Ganesh Rai, the informant, who was accompanying the deceased is a natural witness. It also transpires from the evidence that there are no residential houses near the place of the occurrence.PW3 being a natural witness we have no reason to disbelieve his testimony. Similarly, he being the brother in law of the deceased, it would be his endeavour to see that the real culprits are punished and normally they would not implicate an innocent person in the crime so as to allow the real culprit to go scot free.
14. In the case of Kulesh Mondal Vs. State of West Bengal ( 2007 (8) SCC 578 ), the apex court has held as under :
Para 11 : "10 We may also observe that the ground that the [witnesses being close relatives and consequently being partisan witnesses] should not be relied upon, has no substance. This theory was repelled 10 by this Court as early as in Dalip Singh V State of Punjab in which surprise was expressed over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J, it was observed: ( AIR p. 366, para 25).
"25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eye witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar Vs. State of Rajasthan (AIR at p. 59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."
In the case of Masalti Vs State of Uttar Pradesh ( AIR 1965 SC 202), the Apex Court held as under :
14. Mr. Sawhney has argued that where witnesses giving evidence in a murder trial like the present are shown to belong to the faction of victims, their evidence should not be accepted, because they are prone to involve falsely members of the rival faction out of enmity and partisan feeling. There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence.
Whether or not there are discrepancies in the evidence; whether or not evidence strikes the Court as genuine whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type.
The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated.
Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
1115. Learned counsel further contended that there is delay of more than 16 hours in lodging the FIR by the informant PW3. He further stated that the delay in lodging the FIR results embellishment or improvement by way of an afterthought and the accused appellants have been falsely implicated in this case. From perusal of the materials available on the record, it is revealed that the incident occurred on 2.5.1986 at about 4.00 p.m. The FIR was recorded on 3.5.1986 at about 10.00 a.m. The distance between the Police Station and the place of occurrence is about 26 kilometres. The prosecution case is that the brother in law of the informant PW3 Ganesh Rai was at the place of occurrence along with the deceased; there was only one female member i.e. the wife of the deceased (PW7 Radhia Ghatwarin) who was also present near the place of the occurrence. The son of PW7 Radhia Ghatwarin reached home at about 7.00 p.m. in the evening. He called the chaikidar of the village and then he sent the chaukidar to the Police Station. Those facts remain consistent during cross examination that the information was sent to the Police Station through the chaukidar; thereafter the police came in the morning on the next date. The distance between the Police station and the place of occurrence is about 26 Kms. It was evening when the occurrence took place and obviously, in the night, nobody would be able to go to the Police Station. It is also a settled principle of law that explanation for delay should be given by the prosecution by evidence or should explain the delay by the circumstances transpired from the record. The record reveals that the delay has been sufficiently explained by the prosecution witnesses. The contention raised by the learned counsel for the appellants has no force. 16 Learned counsel for the appellants further submitted that the approach of the trial court was erroneous; the accused appellants could not have been convicted for the offences punishable under section 302 IPC. simpliciter. The Sessions Judge had not framed charge under sections 302/149 IPC as no specific role has been proved by the prosecution. Learned counsel for the State refuted the contention. 17 Before appreciating the above contentions of the learned counsel for the parties, we would like to reproduce the charges which are as under :
12I, S.K. Dwivedi, Sessions Judge, Dumka, hereby charge you (1) Lutan Rai, (2) Jageshwar Rai , (3) Shankar Rai, (4) Kartik Rai and Raso Rai @ Rasnandan Rai, as follows :
Charge (1) : That you, on or about the 2nd day of May, 1986 at village Ramgabandh, P.S.Jarmundi, were members of an unlawful assembly and in prosecution of the common object of such assembly, viz. in committing the murder of Amirlal Rai, committed the offence of rioting and thereby committed an offence punishable under section 147 of the Indian Penal Code within my cognizance;
Charge (2) : That you on or about the same day of same place committed the murder of Amirlal Rai by intentionally and knowingly causing his death and thereby committed an offence punishable under section 302 of the Indian Penal Code and within my cognizance.
Appellant Jageshwar Rai was also charged of causing hurt to Ganesh Rai (PW3) and thereby committed an offence punishable under section 323 of the Indian Penal Code .
18 A conjoint reading of the charge (1) and charge (2) makes it clear that while framing the charge the trial court specified that the accused appellants were members of the unlawful assembly and they had assembled with a common object that is to commit the murder of the deceased. The second charge which has been framed is under section 302 IPC simpliciter. Thus, we have to adjudicate upon as to whether the error pointed out by the learned counsel for the appellants is an irregularity curable under the provisions of the Code of Criminal Procedure.
19. Section 464 of the Code of Criminal Procedure provides as under :
464. Effect of omission to frame, or absence of, or error in, charge . -
"(1) No finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may -13
(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial court recommenced from the point immediately after the framing of the charge.
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction."
20. Mere omission or defect in framing charge does not disable the criminal court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal Procedure has ample provisions to meet a situation like the one before us. From the statement of charge framed under section 302 and Section 148 IPC it is clear that all facts and ingredients for framing charge for offence under section 302/149 IPC existed in the case. The mere omission on the part of the trial Judge to mention section 302/149 IPC does not preclude the court from convicting the accused for the said offence when found proved. In the charge framed under section 147 IPC it has been clearly mentioned that the accused was a member of an unlawful assembly and in prosecution of the common object of such assembly viz. in committing the murder of Amirlal Rai committed an offence of rioting. The provisions of Section 221 Cr.P.C. take care of such a situation and safeguard the powers of the criminal court to convict an accused for an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence. Learned counsel contended that all the accused were charged for the offence punishable under section 302 IPC for causing injuries to the deceased. As against this, the learned counsel for the State vehemently submitted that even though it is an error on the part of the Additional Sessions Judge in not framing the charge under section 302 read with section 149 IPC, no prejudice is caused to the accused as relevant facts were placed before the court and the attention of the accused also was drawn to the charge no. 1. Therefore, the order passed by the Sessions Judge is justified and legal.
21. The main question which requires consideration is whether it is possible to convict the accused appellants under Sections 14 302/149 IPC if a charge for the said offence has not been framed against them. In Lakhjit Singh Vs. State of Punjab [ 1994 (Suppl) (1) SCC 173 ] the accused were charged under section 302 IPC and were convicted and sentenced for the said offence both by the trial court and also by the High Court. This Court in appeal came to the conclusion that the charge under section 302 IPC was not established. The Court then examined the question whether the accused could be convicted under section 306 IPC and in that connection considered the effect of non framing of charge for the said offence. It was held that having regard to the evidence adduced by the prosecution, the cross examination of the witnesses, it was established that the accused had enough notice of the allegations which could form the basis for conviction under section 306 IPC. In this view of the matter, the misjoinder of charges is not an illegality but an irregularity curable under section 464 or Section 465 Cr.P.C. provided no failure of justice is occasioned thereby. Whether or not the failure of justice occasions thereby it is the duty of the Court to see whether an accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself.
22. In the case of Dumpala Chandra Reddy Vs. Nimakayala Balireddy 2008(8) SCC 339 ), the apex court held as under :
"18. This court in the oft repeated case of Willie (William) Slaney Vs. State ( AIR 1956 SC 116) had highlighted the aspect of prejudice. This decision has been referred to in a large number of subsequent cases dealing with the question of prejudice in the background of Section 464 of the Code of Criminal Procedure 1973 ( in short "the Code"). In Ramkishan V State of Rajasthan [ 1997(7) SCC 518 : 1997 SCC (Cri) 1106), it was noted as follows ( SCC pp 512- 22, para 8)."
"8. In view of the findings recorded by the learned Sessions Judge and the material on record, we are unable to ascribe to the finding that the appellants' intention was to cause death of Bhura deceased. The finding betrays the observation of the trial court as noticed above. The medical evidence also does not support the ultimate finding recorded by the trial court and upheld by the High Court. The offence in the established facts and circumstances of the case in the case of the appellants would only fall under section 304 Part II IPC read with section 149 IPC and not under Section 302 IPC. Indeed no specific charge indicating the applicability of 15 section 149 IPC was framed, but all the ingredients of Section 149 IPC were clearly indicated in the charge framed against the appellants and as held by the Constitution Bench of this Court in Willie (William) Slaney V. State of M.P. the omission to mention Section 149 IPC specifically in the charge is only an irregularity and since no prejudice is shown to have been caused to the appellants by that omission it cannot affect their conviction."
19. Similar view was also taken in B.N. Srikantiah Vs. State of Mysore ( AIR 1958 SC. 672) in the background of Section 34, vis-a-vis Section 149 IPC. In Dalbir Singh Vs. State of U.P. (2004 (5) SCC 334 ), it was noted as follows :
In Willie ( William) Slaney Vs. State of M.P. ( AIR 1956 SC 116 : a Constitution Bench examined the question of absence of charge in considerable detail. The observations made in paras 6 and 7, which are of general application, are being reproduced below :
"6. Before we proceed to set out our answer and examine the provisions of the Code, we will pause to observe that the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well established and well-understood lines that accord with our notions of natural justice.
If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is 'substantial' compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based.
7. Now here, as in all procedural laws, certain things are regarded as vital. Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction. Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice. Some of these matters are dealt with by the Code and wherever that is the case full effect must be given to its provisions."
15.1. After analyzing the provisions of sections 225,232, 535 and 537 of the Code of Criminal Procedure, 1898 which corresponds to Sections 215, 464(2), 464 and 465 of the 1973 Code, the Court held as under in para 44 of the Report : ( AIR p. 128).
"44. Now, as we have said, Sections 225, 232, 535 and 537(a) between them, cover every conceivable type of error and irregularity referable to a charge that can possibly arise, ranging from cases in which there is a conviction with no charge at all from start to finish down to cases in which there is a charge but with errors, irregularities and omissions in it. The Code is emphatic that 'whatever' the irregularity it is not to be regarded as fatal unless there is prejudice.
It is the substance that we must seek. Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence. Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is 16 required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction.
Every reasonable presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt. The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. But when all is said and done what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself.
If all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one."
16. This question was again examined by a 3- Judge Bench in Gurbachan Singh vs. State of Punjab (AIR 1957 SC 623) in which it was held as under: (AIR p 626 para 7).
"7......In judging a question of prejudice, as of guilt, courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself."
17. There are a catena of decisions of this Court on the same lines and it is not necessary to burden this judgment by making reference to each one of them. Therefore, in view of Section 464 Cr.P.C. it is possible for the appellate or revisional court to convict an accused for an offence for which no charge was framed unless the court is of the opinion that a failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself."
20. The High Court, as has been rightly pointed out by learned counsel for the appellant, lost sight of the fact that if its view is accepted in the absence of charge under section 149 IPC, conviction in terms of Section 326 IPC could not have been done. "
21. The High Court appears to have misconstrued the decision of this Court in Rewa Ram Vs. Teja [ 2008(8)SCC 346]. In that case, the High Court held that the accused persons could be held guilty only under Section 326 IPC, particularly when it was stated in the charge that their common object was to assault the deceased and commit rioting with deadly weapons. The position is entirely different here. In fact, while framing charge and combined reading of Charge 1 and Charge 3 makes it clear, that the court specified that the accused persons were members of unlawful assembly and in prosecution of the common object of such assembly i.e. in order to commit murder of the deceased, committed the offence and at that time they were armed with daggers, etc. to bring in the application of Section 148 IPC. In charge 3, there is a specific reference to the transactions, as mentioned in the first charge, and the object to commit murder by hacking on the body of the deceased with daggers and causing his intentional death and thereby committing offence punishable under section 302 IPC. Therefore, the charge in relation to the offence punishable under section 149 IPC is not only implicit but also patent in the charges."
1723. No specific charge indicating the applicability of section 149 IPC was framed. But the ingredients of section 149 of the Indian Penal Code were already indicated in the charge framed against the appellants. Thus, the charge which has been reproduced above clearly indicates that the appellants constituted unlawful assembly and in prosecution of their common object, committed murder of the deceased. Thus, the charge itself clearly indicates ingredients of Section 149 of the Indian Penal Code and the appellants are not prejudiced by non framing of the charge indicating section 149 of the Indian Penal Code.
24. A conjoint reading of the charge (1) and charge (2) makes it clear that the learned trial court specified that the accused appellants were members of the unlawful assembly and in prosecution of common object of such assembly to commit murder of the deceased, committed the offence. In the second charge, there is specific reference to the transaction as in the first charge and object to commit murder of the deceased. This case is squarely covered by the case of Dumpala Chandra Reddy Vs. Nimakayala Balireddy and others ( 2008(8) SCC 339] (supra). 25 As we have already discussed the evidence in the preceding paragraphs, it is proved from the evidence that a scuffle took place in between the accused appellants. Thereafter, the co-accused Lutan Rai, the father of the appellants 2 and 4, exhorted them to kill the deceased. All the appellants holding lathis in their hands inflicted lathi blows indiscriminately and killed him at the spot. Thus, the trial court has framed the charge under section 148 and 302 IPC. It is quite obvious that the dominant intention of the appellants was not only to cause injuries to the deceased, but to kill him by the lathi blows. The appellants assaulted the deceased with lathi blows by chasing him with the intention to kill him. The medical evidence also supports the prosecution version. Thus for the offences in the established fact and circumstances of the case, the appellants would certainly be liable to be punished under section 302 read with section 149 IPC and not under section 302 IPC simpliciter.
In view of the above, we do not find any force in the contention of the learned counsel for the appellants.
26. Learned counsel for the appellants further contended that the prosecution has admitted that immediately after the incident, the other villagers reached at the spot. None of the villagers has been 18 produced by the prosecution and therefore an adverse inference should be drawn against the prosecution. Learned counsel for the State refuted the contention. It is true that if material witnesses who would unfold the genesis of the incident or essential part of the prosecution case were not convincibly brought to the court otherwise or where there is a gap or infirmity in the prosecution which could have been supplied or made by examining the witnesses who though available, is not examined, the prosecution case can be termed as suffering from deficiency and withholding of such material witnesses would oblige the court to draw an adverse inference against the prosecution by holding that if the witnesses would have been examined, it would not have supported the prosecution case. If already overwhelming evidence is available and examination of other witnesses would also be a repetition or duplication of evidence already adduced, non-examination of such other witnesses may not be material. In determining as to whether any witness is necessary or not, the court should ask itself as to whether in the facts and circumstances of the case, it was necessary to examine such other witness. If so, whether such witness was available to be examined and it was withheld from the court. If the answer is positive, only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable, trustworthy and the testimony coming from their mouth is unimpeachable, the court can safely act upon it uninfluenced by the factum of non examination of other witnesses.
27. In the case in hand, we find that there is an ocular evidence of the incident by the witnesses whose presence cannot be doubted at all. The genesis of the incident is brought out by the said witnesses. The prosecution produced PW3 Ganesh Rai informant who is the eye witness of the incident and the prosecution has also produced the evidence of Anantlal Rai PW1 who, immediately after the incident, reached at the spot and saw the dead body of the deceased lying on the ground and the wife of the deceased was weeping at the spot and she narrated the incident to him. The genesis of the incident is brought out by these witnesses. Learned trial court, on appreciation of the evidence, held that the deceased Amirlal was killed by the appellants and the trial court has minutely scrutinized the evidence of all the witnesses and found them 19 to be consistent and reliable. We have also gone through the entire evidence of the eye witnesses as well as the other prosecution witnesses. We do not find any infirmity in the findings recorded by the trial court. After going through the entire evidence adduced by the prosecution and on an independent appreciation of the evidences, we find that informant PW3, who is the eye witness, is consistent and reliable in his narration of the incident. Moreover, it is a well settled position of law that it is not always necessary to multiply the evidence on the same point. It has to be seen what is the quality of the witness; it is the quality and not the quantity which is required. If evidence available on record is otherwise satisfactory in nature and can be said to be trustworthy, then proof of the same factum by the other witnesses in the case cannot be required. Now, it has become almost a fashion that the public at large is quite reluctant to depose before the court especially in criminal cases because of varied reasons. In view of the above we find that the other villagers who are stated to have reached at the spot after incident are not material witnesses who could unfold the genesis of the incident or the essential part of the prosecution case. Thus, we do not find any force in the contention raised by the learned counsel for the appellants.
28. Learned counsel further submitted that the trial court has erred in convicting the appellants because in the FIR, one Jagdish Prasad Yadav alias Sardar in whose presence the fard beyan was recorded by the police and has put his signature had not been produced before the trial court and it belies the total prosecution story. Learned counsel for the State refuted the contention. He contended that the signature of Jagdish Prasad Yadav alias Sardar has been recorded in the Fard beyan. He further submitted that he is not an eye witness to the incident. PW3 Ganesh Lal has stated that he was one of the persons who had came at the spot after the incident. Learned counsel for the State further submitted that the law is settled that if the scribe of the FIR is not an eye witness, his production is not necessary before the Court ( See Anil Vs. Administration of Daman and Diu 2006(13) SCC 36 ).It is true that Jagdish Prasad Yadav alias Sardar is not an eye witness to the occurrence. He only signed the fard beyan which was recorded on the next date by the investigating officer at the behest of PW3 Ganesh Rai. Jagdish Prasad Yadav alias Sardar was not 20 an eye witness to the incident and therefore there was no necessity to examine him, nor he could have thrown light on the details of the incident, nor he could have stated whether the appellants were present or not at the time of the occurrence. Therefore, no prejudice has been caused to the appellants. We do not find any force in the contention of the learned counsel for the appellants.
29 Learned counsel for the appellants further contended that the blood stained soil which was recovered from the spot by the investigating officer was not sent for chemical examination. If the blood stained soil was not sent to FSL , an adverse inference would be drawn against the prosecution. Learned counsel for the State refuted the contention and contended that merely not sending the blood stained soil to the Forensic Science Laboratory by the investigating officer would not affect or cause any dent to the prosecution case. It is only a remission on the part of the investigating officer . The defect as pointed out during investigation would not make the credible ocular testimony untrustworthy. Merely not sending the blood stained soil for chemical examination would not, in any way, impair the prosecution case. Though, failure to send the blood stained soil to the Forensic Science Laboratory for examination can be attributed to be a remission on the part of the investigating officer, but the evidence of the prosecution is not impaired in any way if ocular testimony is cogent, credible and clinching. As held in the case of Dhanaj Singh Vs. State of Punjab reported in 2004(3) SCC 654, even if the investigation is defective, that pales into insignificance when ocular testimony is found credible and cogent. In the case of defective investigation, the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if investigation is designedly defective. No other points were urged during the course of the arguments on behalf of the appellants.
30 Learned Sessions Judge has found that the appellants are guilty for offences under sections 147 and 302 IPC. He has also held that the charges indicated above have been proved beyond all reasonable doubts. He has also stated that the charge under section 323 IPC is also 21 proved against the accused appellant Jageshwar Rai. While awarding sentence the learned trial court has sentenced all the appellants for life imprisonment under section 302 IPC for intentionally or knowingly causing the death of the deceased Amirlal Rai. The trial court has not awarded sentence under section 147 IPC also. He has further held that there is no need to pass a separate sentence against the appellant Jageshwar Rai under section 323 IPC for voluntarily causing hurt to Ganesh Rai PW3. Learned sessions Judge has not assigned any reason why he convicted the appellant Jageshwar Rai under section 323 for causing voluntary hurt to the informant PW3.
31. As a matter of fact, the learned Sessions Judge could have passed sentences in respect of separate offences charged against the accused appellants and he could have directed that the sentences would run concurrently. The learned Sessions Judge has committed a manifest error by not awarding separate sentence under sections 147 and 323 IPC and passing a consolidated sentence of life imprisonment under section 302 of the Indian Penal Code. Learned Sessions Judge has further convicted the appellant no.4 Kartik Rai under section 302 and 147 of the Indian Penal Code. While awarding the sentence, he has held that the accused appellant Kartik Rai was about 15 years of age at the time of the occurrence. Now he has attained the age of 20 years and under clause (h) of Section 2 of the Juvenile Justice Act, 1986, which came into force with effect from the year 1987, the definition of juvenile" has been given in which it is provided that a person who has not attained the age of 16 years at the time of commission of the offence, his case shall be considered by the Juvenile Court. He has further held that no Juvenile Court has been constituted by the Government in the said Judgeship and by the impugned order he directed conviction of the appellant Kartik Rai on executing a bond of Rs. 2000/- ( (rupees two thousand ) with two sureties of the like amount each and he was kept under the supervision of the Probationary Officer, Dumka for two years. The State has not preferred any appeal against the above findings recorded by the trial court and as such, the findings have attained the finality. Therefore, we are not entering into the legality and validity of the order of sentence passed by the learned Sessions Judge in this matter. As we are of the view that the appellants are 22 guilty under section 302 read with Section 149 of the Indian Penal Code, the punishment for the same which has been inflicted by the Sessions Judge is life imprisonment.
32. In view of the facts foresaid, we are of the view that the accused appellants no. 1 to 3 namely Jageshwar Rai, Raso Rai and Shankar Rai respectively are liable to be convicted under section 302 read with Section 149 of the Indian Penal Code instead of Section 302 IPC. The conviction and sentence of appellant no. 4 Kartik Rai is also sustained as awarded by the trial court.
For the reasons aforesaid, the appeal preferred by the appellants 1 to 4 ( Shankar Rai, Raso Rai and Jageshwar Rai and Kartik Rai) is hereby dismissed. They are sentenced as indicated above accordingly.
(J.C.S.Rawat,J.) D.K.Sinha, J.
( D.K. Sinha, J.) Jharkhand High Court, Ranchi, dated : 26/07/2010.
Ambastha/ AFR