Patna High Court
Qaiyum Mian And Ors. vs State Of Bihar on 2 April, 1992
Equivalent citations: 1993CRILJ1756
JUDGMENT Syed Haider Shoukat Abidi, J.
1. Criminal Appeal No. 363 of 1990 has been preferred by Qaiyum Mian, Md. Raza and Manzoor Mian and Criminal Appeal No. 383 of 1990 by Tuzar Mian alias Md. Tuzar Mian both against the judgment and order by which all the appellants have been convicted under Section 302/ 34 of the Indian Penal Code (for short 'IPC') and sentenced to undrego rigorous imprisonment for life. Appellants Tuzar Mian, Qaiyum Mian and Manzoor have also been convicted under Section 148, IPC and sentenced to undergo rigorous imprisonment for two years and so Md. Raza has been convicted under Section 147, IPC and sentenced to undergo rigorous imprisonment for one year. All the sentences have been ordered to run concurrently. One of the accused Nurul Haque is reported to have died.
2. A fard beyan was given by Jalaluddin, (PW 7) on 7-5-1984 at 10 p.m. at the door of his house to Kauleshwar Mishra, A.S.I. (PW 8) to the effect that on the same date he was going to the mosque to offer prayers at the time of sun set and hulls was there in front of the palani of Azmul Haque of his village. When he came out after offering prayers, he found his younger brother Hadisul Haque fallen towards west of the palani of Azmul Haque. His head was towards north and he was bleeding. Towards his south, at a distance, the informant's nephew Kausar, son of Md. Hadis was also found fallen and blood ; was coming out from his body. His brother ; told him that he was assaulted by Tuzar Mian, Manzoor Mian sons of Nurul Haque Mian, Nurul Haque Mian, son of S. K. Nazir, Qaiyum Mian son of Md. Raza Mian and Raza Mian son of Hamiduddin Mian by bhala, chhura and lathi and fell him down. Tuzar had chhura, Manzoor had bhala, Qaiyum had chura, Nurul and Raza had lathis. The informant saw towards west of Kausar that Qaiyum was running away with chhura. Tuzar had also a chhura. Manzoor with bhala and Md. Raza and Nurul with lathis, were also fleeing away towards west. The villagers rushed there and the informant asked them to apprehend the accused persons but they remained attending the injured persons and in the meantime, the accused persons ran away. The occurrence which had taken place at 6.30 p.m. was seen by Iqbal Hussain, Sirajuddin, Alamgir and the middle son of Saheb Hussain besides other villagers. The motive for the occurrence was said to be that about four days back, the she-goat of : Hadis Mian had grazed the maize and kapas crops standing in the field of Nurul Haque which resulted into altercation between his brother and the said persons and when his brother and nephew went to enquire about that, the occurrence took place. On the alarm, several villagers gathered at the spot. His brother and nephew were taken to the hospital on the cots and in course of which, his nephew was saying about the aforesaid five persons who had assaulted them. The injured Were taken to the road of Sarsar which passes through Siwan to Mirganj and the persons present there were in search of a vehicle so as to take the injured persons to the hospital but in the meanwhile both the injured died. After that, both the dead bodies were taken back to the village from where some one sent the village Choukidar to give information at the police station. On the basis of this fard beyan, First Information Report (Ext. 1) was registered, being Siwan Mufassil P. S. Case No. 68/84. The investigation of the case was taken up by A.S.I. Kauleshwar Mishra, P.W. 8. The dead bodies were sent for post mortem examination. It appears that on an application given by the informant against the Investigating Officer, the investigation of the said case was given over to the second Investigating Officer, Gabrial Anthony, P.W. 9. This Investigating Officer, after taking charge of investigation, again went to the place of occurrence, prepared sketch map and took steps for constitution of a Medical Board on the application of the informant to get the injured examined again and after completion of the investigation, submitted the charge sheet against the above named appellants.
3. The accused, in their defence, denied the prosecution case, alleging that such occurrence never took place, rather the prosecution party were aggressors and they had attacked on deceased Nurul Haque, Tuzar and other members of their family for which Siwan Mufassil P.S. Case No. 69/84 was instituted. In the fard beyan of the said case, it has been said that between the children of accused informant Manzoorul Haque son of Nurul Haque and the Nati (grand-son) of Jalaluddin, there was a quarrel on 7-5-84 at 11.30 a.m. and then on the same day at 5 p.m. Hadis Mian, Jalaluddin (informant), Israil, son of Jalaluddin, Kamrul son of Hadis came to their bathan and began to abuse very much but he kept quiet and in the meantime, the villagers intervened. After that, all the four accused persons came again at the bathan. Jalaluddin and Hadis had lathis, Israil and Kausar had chhura and on coming they began to abuse, upon which his father Nurul protested. Hadis Mian and Jalaluddin assaulted him by fists whereupon he fell down and seeing this, he (Manzoorul Haque) said to his brother Tuzar to save the father. Then all the four persons attacked him and Hadis. Kausar assaulted him by fist of the left chest and near the eye. They gave four fists to him upon which he and others fell down upon Laheri and by then, his brother Tuzar ran away, Israil gave blow on the left side of abdomen; Kausar gave a chhura blow on the left shoulder. Others assaulted him by lathis. Seeing this, to save the lives, he and other rushed to the door of Jagdish Choudary and Rambali who asked them to go away, otherwise they also will be invovled in this quarrel, so, he and others ran to the door of Kaidahri Singh and in the way, he met his brother Tuzar in injured condition and then both the brothers went to the Siwan Hospital. This occurrence was seen by Md. Raza, Qaiyum, Sk. Rasool, Sk. Mukhtar and Raja Choudhary. On the basis of this fard beyan, counter FIR was registered. Nurul Haque is reported to have died. It is said that charge sheet has been submitted in this case also. The defence in support of its case, brought on record the copy of the fard beyan and charge sheet as Exts. C and B, but did not examine any of the witnesses mentioned, in the fard beyan given by Manzoorul Haque son of Nurul Haque. They, however, examined three other defence witnesses, namely. Sharfuddin (D.W. 1) a tayeed who has said about the doctor (Subhash Chandra Rai, D.W. 2) examining the injured persons and submitting injury reports under his signatures marked Exts. A, A/b and A/c. He claimed to know also the hand-writing of Dr. Masleuddin, who was posted in the Sadar Hospital on 13-5-1984. D.W. 2, Dr. Subhash Chandra Rai has said tha the had examined Tuzar Mian and found the injuries, like, penetrating wound 1" x cavity deep over left upper abdomen lateral surface just below the coastal margin, incised wound 1" x 4" muscles deep over left arm of posterior surface, 2" above left elbow joint, pain and tenderness right lower back. In his opinion, for injury No. 1, he said that it was reserved for surgical opinion and after completion of which, such injury was found to be grievous in nature. He has said that injury Nos. 2, 3 and 4 were simple in nature. His injury report is Ext. A. He also examined Nurul Haque and found injury on his person like, incised wound 2" x 1/4" X 1/4' over thigh lateral surface and the same was simple in nature. His injury report about this injured is Ext. A/ b. The third defence witness is Haresh Rai, a clerk of Shri Babu advocate who has said that Dr. M. Ahmad was posted at Sadar Hospital with whose writing he is acquainted.
4. The prosecution, in support of its case, examined nine witnesses, Kanhaiya Prasad Srivastava, a tayeed, (P. W. 1) has said that he identified the writings of K. Mishra, A.S.I. and that the formal FIR (Ext. 1) is in his writing. Abdul Haque, Iqbal Hussain, Md. Alamgir, P.Ws. 2, 3 and 4 are the eyewitnesses. Dr. Kalika Sharan Singh, P.W. 5 conducted the post mortem examination of the dead bodies of Md. Kausar and Md. Hadis on 8-5-1984 and submitted post mortem reports, (Exts. 2 and 2/1). P.W. 6, Manzoor Alam turned hostile as he did not remember the date and day of murder of Hadis and Kausar because at that time, he was not at his house and had gone to Chhayagaon. He has said that the Investigating Officer had not examined him nor had he himself given any statement. P.W. 7 Jalaluddin is the informant himself who has deposed on facts. P.Ws. 8 and 9 are two Investigating Officers namely, Kauleshwar Mishra and Gabrial Anthony respectively.
5. The learned trial court, after considering the entire facts and material on record, has convicted and sentenced the appellants as said above.
6. Learned counsel for the appellants has argued that the order of conviction is bad, that the occurrence had taken place in a different manner and place as is made out by the fard beyan given by Nurul Haque, that the injuries of the accused-appellants have not been explained although the counter FIR and medical reports are there and after completion of investigation, charge sheet has been submitted and so, the prosecution has suppressed the genesis and origin of the occurrence and has not presented a true version, which throws doubt upon the version given by the prosecution, that no case under Section 302, IPC is made out against the appellants as there was no intention to kill and further no case is made out against Raza and Manzoor who are said to have been only catching hold and so, they are liable to be acquitted. To appreciate these contentions, the evidence brought on record will have to be scrutinized with care and caution.
7. P.W. 7, Jalaluddin has given the fard beyan. In his evidence, he has said that the occurrence was of 7-5-1984 at the time of sun set when he was coming out after offering prayers. The mosque is towards south of his house and there is chhaur (vacant land) in between his house and the mosque. When he came out about 10 steps away from the mosque, he found some quarrel in the west due to which he went there running and saw Manzoor and Raza with bhalas, Nurul with lathi, Manzoor with lathi and Qaiyum and Tuzar with chhuras in their hands. His brother Hadis was lying towards east-south in the palani of Azmul Haque. Hadis had got chhura injury on the right side of his stomach. Kausar was lying a little south of him and in his chest, there was injury which was bleeding. He went to had is who said to him that Manzoor had caught hold of his waist and Tuzar had assaulted him. Kausar was caught hold by Md. Raza, Nurul had caught hold of both of his hands and Qaiyum had given chhura blow on his chest. The accused persons moved about two steps. The informant asked Iqbal Hussain, Abdul Haque, Sirajuddin, and Alamgir, who were also present there, to apprehend the accused persons but they did not do, as they were looking after the injured. The injuries of Hadis and Kausar were tied by cloth. Then Iqbal Hussain brought the cots and the injured were taken to Sarsa road for going to Siwan. The arrangement for jeep took about half an hour, but by the time, the jeep could came, the injured died and so the dead bodies were brought to their house and kept in the outer verandah, situated in the south. Then two police officers came from the police station. He gave his statement to the police who after recording the same, did not read over the statement to him but he signed on the same, being Ext. 3. He was made to sit with the police there. He was not taken to the place of occurrence. He remained sitting near the dead bodies and he showed the place of occurrence from there to the police officer. The Investigating Officer went to the spot with the help of a lantern kept there and took the blood stained earth from two places and after that, he (the police officer) took him to Siwan along with Nurul Haque (since deceased). Nurul Haque had got no injury on his person. About four days before the occurrence, there was dispute as the she-goat of Hadis had grazed the maize and kapas crops. There was altercation between Nurul Haque. Manzoor, Tuzar, Md. Raza, Qaiyum, Hadis and Kausar. The Investigating Officer left him at the police station, but he did not know what happened with Nurul Haque who was not kept in Hajat. The informant gave an application against the I.O. to the Superintendent of Police whereupon, the investigation was given to another Sub-Inspector. He gave application against the doctor also. He (informant) had not seen any injury on the person of the accused but later on, he came to know that the doctor had prepared their injury reports. The police officer was working against him; that is why, he gave the application. He had colluded with the accused persons. Sirajuddin is also called Reyazuddin. The witnesses, Sirajuddin Jagdish, Amiruddin and Mukhiya Kashinath have also colluded with the accused persons and they did not want to come. In cross-examination, he said that the deceased Hadis was married to the cousin of Tuzar. The dispute was about the she-goat. The altercation about the she-goat had taken place at about 2 p.m. and Tuzar and Manzoor had given out threat to kill within 2-4 days. Kausar had also arrived at that time. He filed application against the police officer after four days of the occurrence and he had not given application to the Chief Judicial Magistrate nor any application was filed against any doctor to anyone. But when he returned home, he came to know that who had not been injured, had been shown as injured and so, he applied to the Superintendent of police. After 7 days, he applied for the constitution of a Medical Board to the Chief Judicial Magistrate. On the first day, the police had arrested him and kept him in Hajat of the police station, that is why, he came to know that police was working against him. The villagers had said that the injury reports of Manzoor, Tuzar, Nurul and his wife were prepared. They were seen in the hospital after 3/4 days but they had not been admitted there. He had said before the Investigating Officer that Hadis had said that Kausar's waist had been caught and Qaiyum had given chhura injury on the chest.
He had not tied the injuries of Hadis and Kausar. He had said to the police that Manzoor had bhala and Nurul and Md. Raza had lathis. The witnesses came running and did not say anything to Kausar and Hadis. Many people had come after the occurrence out of whom he remembered the names of Noorul Hoda and Jasdin. But Kausar and Hadis did not say anything to them as they took the injured away. He (witness) did not write nor got written the statement of Hadis and Kausar. When he went to the place of occurrence, he was empty handed. Besides the aggressors and also aggressed, the persons present there had nothing in their hands. What the sub-Inspector had written, he did not know. On the basis of occurrence of that day, a case under Sections 326, 307, 324 and 323, IPC is against him and others in which charge sheet has been submitted. The Sub-Inspector had remained up to 10 p.m. then said up to 1.30 p.m. and then took him to police station. When the sub-Inspector came, he (witness) did not see Mustafa Choukidar with him. It was not correct that the Investigating Officer has found blood on the door of the accused. While going to the mosque from the house, he had heard some talk near the jhopri of Azmul but he did not care. On the night of occurrence he had gone to the police station at 1.30 in the night. He had not said in his Fard Beyan that in the meantime some one has sent the choukidar to the police station. He did not know till that day that choukidar informed at the police station and on that basis the Sub-Inspector came. He had not sent choukidar to the police station for information. At the time of occurrence, he had neither good nor bad relations with the choukidar. The Second Investigating Officer had not made any investigation but the third Investigating Officer had made correct investigation. The third Sub-Inspector had not recorded statement before him. He had come to know that he (S.I.) had taken the statement of witnesses. Statements of Abdul Haque, Iqbal Hussain, Sirajuddin, Manzoor Alam, Amiruddin, Alamgir Were taken. The third sub-Inspector had seen the place of occurrence and the witness had said as to where occurrence had taken place. The third Investigating Officer or the Deputy Superintendent of Police was not shown the field about which there was she-goat dispute. An application had been given against the doctor before the Chief Judicial Magistrate in the year 1984 about the injuries of Tuzar on the basis of which, medical board was held after five to six months. He did not know about the result of the Medical Board. He denied to have seen any bleeding injury on the person of the injured in the night of the occurrence. He denied the suggestions given about the evidence in respect of the case set up in defence. Hadis had got injuries on the right side of his stomach and Kausar had chhura injuries on the left side of his chest as he had stated so before the police.
8. P.W. 2, Abdul Haque, an eye-witness, has said that Kausar and Hadis had been killed on 7-5-1984, being Monday and at that time, sun was setting. He was at the tea-shop of Raja Choudhary with Iqbal Hussain. They heard alarm and ran towards east from where the alarm was coming. He saw there that Nurul Haque and Md. Raza were catching hold of Kausar. Qaiyum ran with chhura from his bungalow and hit Kausar on the right side of his chest. At that time, Manzoor was catching hold of Hadis and Tuzar came with a chhura from his bungalow and gave the blow on the stomach of Hadis. On assault, Hadis fell down with face down and Kausar fell flat. Their injuries were bleeding. Besides them, others had also come. Jalaluddin came from east and saw both the injured calling 'Pakro-pakro' and the accused persons began to run Bungalow mean bathan. Where they had fallen is the palani of Abdul Haque. Kausar had fallen south of palani and Hadis had fallen 1' or 2' east-south of Kausar. The injured were taken on cots to Sarsar near pucca road where the arrangement for jeep was being made but in the meantime the two injured breathed their last and their dead bodies were taken back to the village. The place of occurrence is on the road adjacent south of the palani. In the cross-examination, he has said that he was putting on eye-glasses as he had been operated upon for cataract on 23-12-1985. He has said that between the house and bathan of Jalaluddin, there is a rasta running west to east. Adjacent south of the house of the informant, is the house of the witness. In the southern front of the house, there was no jhopri of Azmul Haque at the time of the occurrence and the jhopri of Azmul Haque is at a distance of about 30-35 yards towards west-south. The so-called jhopri is covered from all sides. The bathan of Nurul Haque was at a distance of 15 hands from the jhopri of Azmul Haque and the mosque was about 20 yards from the mosque. There are two Iqbal Hussain in the village and the concerned Iqbal Hussain's father's name is Kismat. When he reached near the field of Abdul Hakim, he saw the occurrence from the way, that Kausar had been caught. He is lame and from this place he moved on. When he saw Nurul Haque and Md. Raza catching hold of Kausar, there was none else. There were accused persons and no villagers. Md. Raza was catching the waist of Kausar from behind and Nurul had been catching his hand from the right side and there was scuffle, altercation and exchange of abuses. Then, they were on the road towards south of the jhopri of Azmul Haque. At the time of the scuffle, Qaiyum came and gave chhura blow to Kausar. He had seen the chhura blade being about one hand long. Qaiyum had given chhura blow hitting in the centre of chest. The blade of the chhura had pierced fully and Kausar had fallen down on getting chhura blow. Qaiyum had withdrawn the chhura. The place where he had fallen was rasta towards south of jhopri of Azmul. From the chest injury of Kausar, blood had fallen on the ground and the same had spread. On getting two injuries, Kausar was wriggling. He had no talk with Kausar after he received injuries. He remained till the injured were taken to the hospital. Many people had collected there, out of whom he remembered the name of Jalaluddin. During his stay there, there was talk between Jalaluddin and the injured and many people were there at the time of talk whose names he did not know. He had no talk with Jalaluddin at the place of occurrence. From before the occurrence there were good relations between the informant and the accused Md. Raza. Nurul Haque and Md. Raza are pattidars. Raza has only one son Qaiyum who is an accused. He has said that the 'Maghrib' prayer is offered for five minutes. He had not come to the road with the injured. The tea shop of Raja Choudhary is just infront of the place of occurrence. It was not correct that he had not said to the police that the informant came from south and raised alarm 'pakro-pakro'. At the time of occurrence Raza was empty handed. He . admitted to be the nephew of the informant as well as of the accused. He gave detailed descriptions about the relationship between the accused and the prosecution witnesses and also between them inter se. He further said that he had not seen any injury on the day of the occurrence on the body of Nurul Haque, wife of Nurul Haque and his sons Tuzar and Manzoor. He did not know if any cross-case was pending, but in connection with this case, Jalaluddin had gone to jail and not Israil and there was no case against him. Jalaluddin had been arrested after four hours of the occurrence from the house. On the night of the occurrence, the police had come in the village at about 10 p.m. and then Jalaluddin was arrested and he was examined by the police. Jalaluddin was sitting at his house before the arrival of the police and the dead bodies of Hadis and Kausar were lying there. Whatever he had seen at the time of the occurrence, he had given out to Sirajuddin, Mansoor, Iqbal Hussain and Amiruddin and at that time, the informant was also there. But they did not say anything. Hadis had fallen with face down but he had not received any injury on his face. He could not say if Hadis had received any injury on the face, nose etc. on account of falling, but he was not assaulted after falling and so, Kausar was also not assaulted after falling. Where Hadis and Kausar had fallen, some blood had fallen. He could not say whether the Investigating Officer had taken blood or not. After the occurrence, ladies of the house of Hadis and Kausar had come at the place of occurrence and only wife of Hadis had come. She had stayed there for about one minute and then gone away. There was no lantern. When the police came only informant was there with a lantern near the dead bodies. He could not say if the Investigating Officer on coming, had made enquiries from Nurul Haque. He was sleeping at his door out side the house and when the Investigating Officer came, he was called. Then he said that he was sitting and not sleeping and then he went to see the dead bodies where the Investigating Officer had come. Nobody informed him about the coming of the police officer.
9. P.W. 3, Iqbal Hussain is the next eyewitness of the occurrence who has said that he was at the tea shop of Raja Choudhary from where he saw altercation between Nurul Haque, Md. Raza and Hadis. He went there and saw lathi in the hands of Md. Raza and Nurul Haque while Manzoor had bhala. Nurul and Raza catch hold of Kausar and Qaiyum came with chhura and assaulted Kausar with chhura. Hadis was caught by Manzoor and Tuzar gave him chhura blow. On getting chhura blows, both the injured fell down and blood began to come out. The said assault took place near the palani of Azmul Haque. When others came, the accused ran away with their lathis and bhalas. In his lengthy cross-examination, he has said that Gaffar is the brother of Jalaluddin by village relationship and that he is cousin of Gaffar. The informant is not related to Gaffar. He (the witness) is resident of a distant place and so, he could not say as to who lives where. It was not correct that he was living in the house of Gaffar as they were related. He could not say if witness Alamgir is related to Abdul Haque. The occurrence had taken place near, the palani of Nurul Haque. The place of occurrence was visible from the tea-shop. Only the daugther of Raja Choudhary was in the tea-shop. When he went to the place of occurrence, Hadis was being caught near the palani of Ainul Haque and then Kausar was also caught and then none from the house of Kausar and Hadis was there. Then Abdul Haque, Sirajuddin, Manzoor, Alamgir and Amiruddin had come there. When the police came, the witness went there. He did not go there at about 10 p.m. He went to the palani of Azmul Haque where the occurrence had taken place. There were 5-6 persons, namely, Sirajuddin, Manzoor, Alamgir, Amiruddin Abdul Haque, Ziyauddin, Hadis and his wife. There were 2-4 persons also whose names he could not remember. There were dead bodies of Hadis and Kausar and then he said that the dead bodies were at the door of Hadis. There was no lantern at the place of the occurrence. He stayed there for 1/2 hour and he and others took away the dead bodies. He did not see village Choukidar Mustafa at the time of occurrence or thereafter nor did he meet the Choukidar that night. The place of occurrence was about 1 km. from the pucca road. Bus, tractor, taxi used to run on this road but they are not available after 6 p.m. He had no talk with Mustafa, choukidar on the night of the occurrence. He did not know if on alarm, choukidar Mustafa came to the place of occurrence and mar-pit was over by that time. He did not say to Mustafa choukidar that two persons have died and others were injured. Some-one might have said. The dead bodies were taken at 2 p.m. on the tyre-cart. Little blood had fallen where Kausar and Hadis had fallen. He could not say if the place of occurrence, where blood had fallen, was shown to the police. His hands were stained by blood by lifting the injured. In reply to the court's question, he said that before the police Hadis's wife and Jalaluddin had gone. He denied to have seen any injury or sign of marpit on the bodies of Tuzar, Mansoor, Nurul Haque and wife of Nurul Haque on the day of occurrence. He admitted that he offers prayer (Namaz) only on Fridays. He could not say if Nurul Haque was arrested on that the police had recorded his statement on getting injuries on his person. He could not say if the police had taken blood stained earth from the place of occurrence. He could not say if Hadis and Kausar had said anything to the villagers. Only the wife of Hadis had come and he could not say if Hadis and Kausar had said anything to the wife of Hadis. He had said to the police that he was at the tea shop and also said about the altercation and that Raza and Nurul Haque had got lathis and Manzoor had bhala and also that mar-pit had taken place near the palani of Azmul Haque who is also called Ainul. Before the occurrence, there was no scuffle but only altercation. He said that his son Nathu was not doing Thekedari with the son of the informant, and that he lives in Delhi. The mar-pit which took place after Hulla took place for about five minutes and after that the accused persons ran away towards west. He started making arrangement for cots and other things. Whatever his brother was saying to the informant, he did not hear as he had gone to bring the cot. His statement was recorded at the door of Hadis by the police. There was none else in between 10-15 minutes. He did not know if at the time of the occurrence, Tuzar had also reached the Sadar Hospital.
10. The last eye-witness is Md. Alamgir, P.W. 4 who has said that at the time of the occurrence at about 6.30 p.m. while he was teaching some children in the verandah of Jalaluddin, he heard some hot altercation between Hadis Mian and Manzoor Mian and also saw the occurrence from that place. Manzoor was catching hold of Hadis from behind and after some scuffle, Kausar came there and he too was caught hold of by Md. Raza and Amirul Haque. Qaiyum ran with chhura from his bathan and gave blow on the chest of Kausar towards right side whereupon Kausar fell down. Tuzar ran from his bathan with a chhura and gave bhala blow on the right side of the stomach of Hadis, on account of which his intestines came out and after that he fell down there. The occurrence was clearly visible from the place where he was teaching and then he went to the place of occurrence. The injuries of both the injured were tied and then they were taken on cots to Sarsar road where vehicle was being searched for but both the injured died in the meanwhile and so, their dead bodies were brought back to the house of Hadis. He could not say as to why the occurrence had taken place but a few days before the occurrence, she-goat of Hadis had entered the field of Nurul Haque, on account of which there was quarrel between Hadis and Nurul and Manzoor. The police came in the night of the occurrence and also recorded his statement. He gave out about the relationship between the parties inter se and also about the houses of different persons. He said that he had got no wife and children. He feels difficulty in standing. He had not given any field to the informant though he had sold some lands to Hadis and the rest was with him. He used to teach privately the children of Jalaluddin from before the occurrence and still teaches 4-5 children in the evening. Children bring their own lanterns. First he saw Manzoor and Hadis exchanging hot words and thereafter mar-pit took place. The Investigating Officer took blood stained earth. When Kausar was assaulted there was exchange of hot words between Hadis and Manzoor. Kausar fell down on getting the chhura blow and Hadis was assaulted by Tuzar by chhura and he too fell down. When Kauzar fell, Nurul and Raza were standing near him. Nurul and Raza were catching hold of Kausar. When Hadis fell, Manzoor was catching hold of him from behind. Nobody assaulted Kausar after they fell down. After running away of the accused persons, Jalaluddin and Iqbal Hussain came and this witness also reached the place of occurrence leaving teaching of the children. When he reached there, Kausar and Hadis were in senses but he had no talk with them. Iqbal Hussain and Abdul Haque had also no talk with them. Hadis and Kausar were in senses till their death and were talking. Kausar's mother had come to the place of the occurrence. After the occurrence, crowd had collected. He could not notice if Mustafa choukidar was there. But there were many people, Hindus and Muslims. Jalaluddin had no enmity with any Hindu or Muslim of the village Mustafa choukidar's house is about 15 laggies from the place of occurrence but in between there is a pond. The police came at about 11-12 in the night and went away after 3-4 hours. At the time of occurrence, he did not see any injury on the persons of Nurul Hazue, Manzoor, Tuzar and wife of Nurul Haque. He did not know if the police had found injuries on the persons of the accused or any other persons or that the accused persons were arrested and were sent for treatment. Next day at about 7-8 a.m. the dead bodies of Kausar and Hadis were sent for post mortem examination. On the night of occurrence, Jalaluddin was arrested but there was no injury on the person of Nurul Haque. He did not see any weapon in the hands of Hadis and Kausar and other relations. He had said to the police that Manzoor had caught hold of Hadis from behind and that the injuries of both the injured were tied. He did not see choukidar Mustafa from the place of the occurrence up to Sarsar Road. Choukidar had gone to inform the police. After him, Manzoor son of Md. Musa came to the place of occurrence. He did not know if Md. Raza and Qaiyum are witnesses in the case in which Jalaluddin had been arrested on that night. There was no dispute between his family and Raza's family before the occurrence.
11. P.W. 5, Dr. Kalika Sharan Singh conducted the post-mortem examination of both the deceased, Kausar and Hadis on 8-5-1984. He held post-mortem of the dead body of Hadis Mian at 1 p.m. and found one incised peneterating wound 3" x 2" abdominal cavity deep on right eliac forsa just above right eliac crest. On dissection of abdominal muscle, peritonium and coiles of intestine were found cut. Common eliac vessel on right side was found cut. Abdominal cavity was full of blood. Coils of intestine was found congested. The death was due to haemorrhage and shock due to abovementioned injuries deceased Kausar's postmortem was also held at 12.15 in which he found one incised peneterating wound 1 1/2" x 1/2" x thorasic cavity deep on left second intero costal space. On dissection, intero costal muscle was found cut. Parietal and viceral plura was found cut. One incised would was found on left lung. 1" x 1/2" left thorasic cavity was full of blood. The death was due to haemorrhage and shock due to the above injuries. On cross-examination, it was said by him that his report did not mention the direction of the wounds. He was said that one and same sharp cutting instrument may have caused the injuries on both the persons. In case of Hadis, if he would have been caught hold of by persons on both sides, so that covering that area then such injury was not possible. If a sharp penetrating weapon is pulled out with force after causing injuries it will cause injury on boty ways.
12. Besides this medical evidence is the evidence of two Investigating Officers, namely, Kauleshwar Mishra, (P. W. 8) and Gabriel Anthony (P. W. 9) P. W. 8 has said that on 7-5-1984 at 8 p.m., he got information through Mustafa, choukidar that there was mar-pit between Jalaluddin and Manzoor and that two persons had died and another was about to die and, also many persons had been injured. So arrangement for stopping the same had to be made. On the basis of that, Sanaha Entry No. 144 dated 7-5-1984 was written and then he left with the S.I. and choukidar for investigation. He reached the place of the occurrence and found Hadis and Kausar dead. On enquiry from Jalaluddin, he recorded his fard beyan. He found Hadis and Kausar on a cot in the verandah. He read over the fard beyan and took his left hand's thumb impression. He found that the place of occurrence was the door of the informant. In the north there is pucca house. Between the palani of Azmul and house of the informant, is a road which is the place of occurrence where, according to the informant, mar-pit had taken place. There he found flowing blood. He seized the blood stained earth and prepared the inquest reports (Exts. 4 and 4/1). He examined the witnesses and on the orders of the Superintendent of Police, he handed over the charge of investigation to another Investigating Officer. He did not know if on the complaint of the informant, he was asked to hand over the charge of investigation. On the day of the occurrence, on the spot, he was waiting for the light as it was dark. In cross-examination, he said that he did not find blood on the place of the occurrence as pointed out by the informant but found blood infront of the bathan of Nurul Haque on the road. He took search of the house of Nural Haque for the blood stained weapons but did not find any blood stained weapon or any sign. There he met Nurul Haque who was sufficiently old and his leg was bleeding with pus. Nurul Haque told him that Kausar and Hadis had assaulted his sons Tuzar and Manzoor at his door and in that mar-pit, Kausar and Hadis had died and Tuzar and Manzoor were sufficiently injured and had gone to Civil Hospital. Nurul also informed that he was also assaulted by Jalaluddin by bhala that is why he was lying on account of injuries. He again said about his wife being assaulted. He also told about the cause of death as enmity. He arrested Nurul Haque and handed him over to the constable and searched for accused Raza who was not found in the house. The case was also supervised by the Deputy Superintendent of Police. He inspected the place of occurrence of 8-5-1984. The Deputy Superintendent of Police reached while fard beyan was being recorded and after that he supervised the case. He recorded the statement of Mustafa, choukidar. After the statement of the accused, he arrested the informant. He went to Civil Hospital, Siwan and made enquiries from Tuzar who was found admitted in the said hospital. He found Tuzar injured. He issued injury report of Tuzar who was sufficiently injured. After that he sent Tuzar before the Magistrate for statement. He reached the police station and on the basis of the statement of Tuzar, lodged case No. 69/ 84 under Sections 323, 324, 307/34 of the I.P.C. He seized blood stained ganji of Manzoor. On 10-5-1984, he examined Sirajuddin and on 12-5-1984, accused Nurul Haque was discharged from the hospital and he gave charge to the Officer-in-charge of the police station on 20-5-1984. He did not examine Alamgir Khan as he did not appear before him. He found blood infront of the bathan of Nurul Haque. He also said that when he reached the hospital, he found Manzoor, Tuzar and Nural Haque in injured condition. From his statement, the defence has tried to take out as to whether P.Ws. Abdul Haque, Iqbal Hussain, Alamgir and Jalaluddin had said the same to him as they had deposed in Court.
13. P. W. 9, Gabrial Anthony is the second Investigating Officer who has said that he took over the investigation from S. I. Kauleshwar Mishra on 8-6-1984 and then went through the case diary of the case. He went to the place of occurrence and prepared sketch map (Ext. 5). He examined the witnesses. He took steps for formation of a Medical Board on the application of the informant which was constituted. After taking statements, he completed the investigation and submitted charge-sheet. In cross-examination, he said that he inspected the place of occurrence on 15-6-1984 and recorded the statements of the witnesses, Md. Alamgir, Amiruddin, Manzoor Alam, Mustafa choukidar and Jagdish Choudhary. Alamgir did not tell them that Manzoor had caught Hadis from back. He had said that Manzoor had caught him. He had not said that he had tied the injuries of Kausar and Hadis. He had not taken the previous Investigating Officer at the place of occurrence. He sent the seized blood stained earth for chemical examination. He also investigated the cross case and submitted the charge-sheet. On 25-6-1984, the Medical Board had examined the injuries of Tuzar and none else. He could not say if the injury of Tuzar was cured and he had not examined the injuries on the person of Tuzar.
14. In defence, D.W. 2, Dr. Subhash Chandra Rai said that he examined Tuzar, Manzoor and Nurul Haque on 7-5-1984 whose injuries have been referred to earlier. Injury Nos. 2, 3 and 4 were found to be simple while injury No. 1 was kept for surgical opinion. On 8-4-1984 at about 6.30 p.m., he confirmed the findings on injuries of Tuzar and injury No. 1 was opined as grievous. The injury reports are Exts. A and B. Manzoor had two injuries of which No. 2 was simple. Opinion was reserved for injury No. 1 after X-ray of chest. His injury report is Ext. A. Nurul is said to have received simple injury of sharp cutting weapon and his injury report is Ext.A/b. About the injury of Tuzar he said that he examined him on 7-5-1984 and gave his opinion on the basis of the Surgeons opinion and that Surgeon has been transferred and report given by him was on record which was not before him. The report of the Medical Board which had examined the injury of Tuzar, had been brought on record. Besides this defence evidence is the dying declaration which is said to have been given by Mr. Tuzar on 8-5-1984 at 2.15 p.m. before the then Judicial Magistrate, Sri Anirudh Prasad Singh in which he has said that the name of his brother was Manzoor, his son is dumb and there was quarrel is dumb. Israrul Haque and Kausar had given chhura injuries in which first was on his shoulder and the second one on the left side of his stomach. Family members of Israrul Haque had assaulted his family members but he could not say as to who were injured. He had gone to Sadar hospital, Siwan by rickshaw.
15. From the scruplous scrutiny and careful consideration of the evidence lead by the prosecution, it is made out that on 7-5-1984 at 6.30 p.m. the occurrence took place in which Kausar and Hadis were killed. The Investigating Officer reached the spot, for which there is Sanaha Entry on the basis of information said to have been given to the Investigating Officer by Mustafa choukidar who has not been examined. The Investigating Officer found two dead bodies in the verandah of the deceased. The statement of the informant was recorded who is said to have been arrested in connection with counter case on the basis of statement of Manzoorul Haque, the son of Nurul Haque (since deceased) an accused in this case. The Investigating Officer went to the hospital where he is said to have found injuries on the accused side. In this case, against the Investigating Officer, Kauleshwar Mishra, an application was given and on his own admission, he had given the investigation to the officer-in-charge who gave it to the second Investigating Officer (P.W. 9) on 20-5-1984. The injuries said to have been received on the accused side were challenged and on the application of the informant, a Medical Board was constituted which has given its opinion, which is on the record.
16. The learned counsel for the appellants has challenged the evidence of informant Jalaluddin (P.W. 7) and other eye-witnesses. Abdul Haque, Iqbal Hussain and Alamgir (P.Ws. 2, 3 and 4) on various grounds. As regards Jalaluddin (P.W. 7) it has been argued that this witness has said that the police had not read over the statement to him and that he did not ask the Investigating Officer as to what was written in his statement and so the Fard Beyan given by him cannot be accepted. As to this contention, Jalaluddin in Court, has corroborated the version given by him in the Fard Beyan and also the FIR prepared on the basis thereof. Non-reading over the Fard Beyan to the informant is only an irregularity committed by the Investigating Officer. The Fard Beyan can be used only for contradicting the witness but when there is nothing contradictory, the same can be accepted. It has also been contended for Jalaluddin (P.W. 7) that he has tried to make out that a dying declaration was given to him by Hadis to the effect that Manzoor caught hold of him by waist and Tuzar assaulted him by chhura and Kausar's waist was caught hold by Md. Raza. Nurul caught hold the shoulders and Qaiyum gave chhura blow in the chest though from the evidence of P.Ws. 2, 3 and 4 shows that Hadis had not made any statement to P. W. 7, as P. Ws. 2 and 4 had said that they had all along been with them when such statement had been made and if such statement had been made, they must had heard so. For this contention, the evidence of P. W. 7 is clear that Hadis had told him that he (Hadis) was assaulted down by Tuzar, Manzoor, Nurul, Qaiyum and Raza who had bhala, chhura and lathis and Tuzar and Manzoor had chhura and Nurul had lathi. P. W. 7 gave this very version in the Fard Beyan at the earliest. P. W. 2 Abdul Haque (para 18) has said that during his stay there, there was talk between Jalaluddin and the injured. P. W. 3 Iqbal Hussain said that to the informant his brother was saying something and he was not there. P. W. 4 (Para 17) said that Hadis and Kausar were talking till their death. On the basis of this statement, it is made out that Hadis had given out statement to Jalaluddin about the assault, by whom and by which weapon. Not only this statement, but the evidence of P. Ws. 2, 3, 4 and 7 is consistent throughout giving out the version given in the Fard Beyan and also what Hadis is said to have told the informant. The evidence of the eye-witnesses is uniform and similar and in spite of searching cross-examination, nothing has come out to show that their evidence suffers from any infirmity. The contention of the learned counsel about their evidence is that the witnesses have given out statements parrot like and the statements are full of contradictions. Although the contention has been raised, but no contradiction has been pointed out nor any contradiction appears to be (sic) Minor variations within reasonable limits are found to be in the evidence of natural and probable witness. Even if there are some so-called discrepancies and inconsistencies, they are of no relevance, and they do not go to the root of the matter. They are bound to be in the evidence of the natural and probable witnesses. Those inconsistencies which shake the very basis of the prosecution and those which make the story wholly improbable are material. Over emphasis should not be on natural and minor discrepancies. The Supreme Court, in the case of Krishna Pillai Sree Kumar v. State of Kerala, AIR 1981 SC 1237 : (1981 Cri LJ 743), has been pleased to observe at page 1239 (of AIR) : (at p. 745 of Cri LJ) (para 11) : "It is no doubt true that the prosecution evidence does suffer from inconsistencies here and discrepancies there but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies, go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it." Again in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753 : (1983 Cri LJ 1096), their Lordships of the Supreme Court, at pp. 755 and 756 (of AIR) : (at pp. 1098 and 1099 of Cri LJ) (paras 5 and 6) have held P(5) "Over much importance cannot be attached to minor discrepancies" (6) "Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. More so, when the all important "probabilities factor" echoes in favour of the version narrated by the witnesses." In the case of State of U.P. v. M. K. Anthony, AIR 1985 SC 48, at page 54 : (1985 Cri LJ 493 at pp. 489 and 498) (para 10), it has been observed as follows :
While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, draw backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the Investigating Officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the Court below whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal duel between a rustic and refined lawyer.
In the case of State (Delhi Administration) v. Laxman Kumar, AIR 1986 SC 250, at page 264 : (1986 Cri LJ 155 at p. 169) (para 43), it has been given out: "It is common human experience that different persons admittedly seeing an event give varying accounts of the same. That is because the perceptiveness varies and a recount of the same incident is usually at variance to a considerable extent. Ordinarily, if several persons give the same account of an event, even with reference to minor details, the evidence is branded as parrot like and is considered to be the outcome of tutoring. Having read the evidence of these witnesses with great care, we are of the view that the same has the touch of intrinsic truth and the variations are within reasonable limits and the variations instead of providing the ground for rejection, add to the quality of being near to truth.
In the case of Appabhai v. State of Gujarat, AIR 1988 SC 696 : (1988 Cri LJ 848), their Lordships at page 700 (of AIR) : (at p. 852 of Cri LJ) (para 13) have held as follows:
The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution may be discarded. The discrepancies which are due to normal error of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses now-a-days go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.
17. As to the contention that the statement of Hadis to Jalaluddin has been made as a dying declaration by informant, it appears that this statement of Hadis to Jalaluddin finds place at the earliest in the Fard Beyan given by Jalaluddin at the place where the two bodies were lying. The manner of assault, weapon and persons giving assault given in this statement is also the same as given by other witnesses. It is also corroborated by medical evidence. So, the version given by Hadis about the assault by the appellant, may amount to a dying declaration of Hadis to Jalaluddin which has the position of a corroborative evidence to other evidence. A dying declaration has got sanctity and a person giving the dying declaration will be the last to give untruth as he stands before his Creator. There is the legal maxim "Nemo Moviturous Procoumitus Mentire" meaning, that a man will not meet his Maker with lie in his mouth. In Woodroffe and Amir Ali, "Law of Evidence" 14th Edition, Vol. II at page 970 it appears: 'when a man is dying, the grave position in which he is placed is held by law to be a sufficient ground for his veracity, and therefore the tests of oath and cross-examination are dispensed with." In the case of Kusa v. State of Orissa, AIR 1980 SC 559 : (1980 Cri LJ 408), Supreme Court has observed at page 563 (of AIR) : (at p. 412 of Cri LJ) (para 12) as follows:
It is manifest that if a person on the verge of death is most likely to make an untrue statement unless prompted or tutored by his friends or relatives. In fact the shadow of immediate death is the best guarantee of the truth of the statement made by a dying person regarding the causes and circumstances leading to his death which are absolutely fresh in his mind and is untainted or discoloured by any other consideration except speaking the truth. It is for these reasons that the statute (The Evidence Act) attaches a special sanctity to a dying declaration. Thus, if the statement passes the test of careful scrutiny applied by the Courts, it becomes a most reliable piece of evidence which does not require any corroboration.
In the case of State (Delhi) v. Laxman Kumar (1986 Cri LJ 155) (supra), the Supreme Court has said at page 256 (of AIR): (at p. 161 of Cri LJ) (para 21) : "A dying declaration enjoys almost a sacrosanct status, a piece of evidence as it comes from the mouth of a person who is about to die and at that stage he is not likely to make a false statement.
A dying declaration is to be recorded in Ipsissuinaverba i.e. exact words of the person giving the declaration. That is why the practice of questions and answers has been adopted. But when it is an oral dying declaration, then difficulty arises as to what exact words had been spoken. There have been divergent opinions on this aspect. In the case of Emperor v. Sikandar, AIR 1930 All 532, at page 533 : (1930 (31) Cri LJ 862 at p. 863), it has been said that the statement was not given in the woman's own words, but it was merely a note of substance of what she told the police and so it would not be safe to convict the accused merely on the statement. In the case of Surender Singh v. State, 1990 Cri LJ NOC 170 (Delhi) the statement was not in the exact language used by the declarant, and certificate of doctor was not produced, the dying declaration was not relied on. In the case of Mahmood Illahi v. State of U.P., 1990 Cri LJ 850 (All) the First Information Report was not treated as a dying declaration as the very words uttered by the deceased had not been recorded in the report. In the case of Gajender Kar v. State of Orissa, 1973 Cri LJ 1058 (Oriss) a Division Bench has referred to the signs and gestures which a person makes at a time when he is unable to speak or is a dumb. It has been said at page 1061 (para 4): "It is significant that in Section 32 the word used is 'verbal' and not 'oral'. Such a dying declaration may therefore be in writing or oral or may be made by signs and gestures in answer to questions when the declarant is unable to speak. In Alexander Perera Chandarasekera v. King, AIR 1937 PC 24 : (1937) 36 Cri LJ 281, the victim whose throat was cut by the accused was alive for sometime and being questioned regarding the offence and the person who committed it, she answered the question by signs and nods, being unable to speak. She described the accused by signs and when she was asked whether that person was the accused she showed assent by a nod. The question having arisen as to whether her statement was relevant and admissible against the accused, it was held by their Lordships of the Privy Council that the statement made by the deceased constituted a verbal statement resembling the case of a dumb person and was relevant and admissible in evidence under Section 32 of the Ceylon Evidence Ordinance (Act 14 of 1985) which corresponds to Section 32 of the Indian Evidence Act (1 of 1872). Earlier a Division Bench of Nagpur in Sudama Sheoba v. King, AIR 1949 Nag 405 : (1950 (51) Cri LJ 224) considered this aspect and after referring to the Primary Council decision in Alexandera Perera Chandarasekera (supra) observed that the dying declaration would therefore be admissible in evidence whatever value might attach. In the case of Narpat Singh v. State of Rajasthan, 1990 Cri LJ 2720 (Raj), considering the contentions of the learned counsel that none of the witnesses have stated the exact words of the deceased in which the dying declaration was made and different witnesses give different version about the same, the Division Bench observed at page 2729 (para 21) "The contention cannot be accepted for the simple reason that it is almost even probable, if not possible, for the witnesses to remember the exact words of the deceased after lapse of almost a year. However, they have remembered the essential part of the version given by the deceased at the time when he was in the agony of death." A Division Bench in Dulu Gogoi v. State of Assam, 1991 Cri LJ 199, at page 202 (Gauhati) (Para 11) has said as follows:
On perusal of the record, we are convinced that the F.I.R. which was filed within reasonable time after the death of the deceased, which disclosed the names of the appellants as the assailants were given by the deceased immediately after the occurrence. Evidence of the doctor cannot be held conclusive regarding the ability of the deceased as he was a 'stout' man and could live one hour after receiving such injuries. In Somappa v. State of Mysore, 1979 Cri LJ 1358 : AIR 1979 SC 1831 where the Apex Court held that the opinion of the doctor cannot be conclusive on question of ability of deceased to talk immediately after occurrence. We find that the eye-witnesses unanimously stated that they saw the accused appellants hacking Haren with daos in hand and being chased by the appellants they retreated and after returning they were told by the deceased that he was hacked by the accused persons. Moreover, the accused persons dragged the deceased and threw him inside the Nala after murderous assault.
Therefore, the Court has to consider each case in the circumstances of the case. What value should be attached to the statement should be left to the Court who will, on assessment of the circumstances and the evidence and materials on the record, will come to a conclusion about the truth or otherwise of the version, be it written, oral, verbal or by signs or gestures. The Supreme Court has consistently been giving out as to how a dying declaration is to be considered in any particular case. In the case of Harbans Singh v. State of Punjab, AIR 1962 SC 439 : (1962 (1) Cri LJ 479), refusing to the observations made by their Lordships in Khushal Rao v. State of Bombay, AIR 1958 SC 22 : (1958 Cri LJ 106), it has been observed (para 18) as follows:
The evidence furnished by the dying declaration must be considered by the Judge just as the evidence of any witness, though undoubtedly some special considerations arise in the assessment of dying declaration which do not arise in the case of assessing the value of a statement made in Court by a person claiming to be a witness of the occurrence. In the first place, the Court has to make sure as to what the statement of the dead man actually was. This itself is often a difficult task specially where the statement had not been put into writing. In the second place, the Court has to be certain about the identity of the persons named in the dying declaration a difficulty which does not arise where a person gives his deposition in Court and identifies the person who is present in Court as the person whom he has named. Other special consideration which arises in assessing the value of dying declarations have been mentioned by this Court in 1958 SCR 552 : AIR 1958 SC 22 : (1958 Cri LJ 106) and need not be repeated here.
In the case of Ramavati Devi v. State of Bihar, AIR 1983 SC 164 : (1983 Cri LJ 221), the Supreme Court at page 166 (of AIR): (at p. 223 of Cri LJ) (para 7) has said: "What evidentiary value or weight has to be attached to such statement must necessarily depend on the facts and circumstances of each particular case." In a proper case, it may be permissible to convict a person only on the basis of a dying declaration in the light of the facts and circumstances of the case. Their Lordships have also after referring to catena of decisions reported in AIR 1953 SC 420 : (1953 Cri LJ 1772) (Ramnath Madho Prasad v. State of M.P.), AIR 1958 SC 22 (Khushahal Rao v. State of Bombay), AIR 1962 SC 130 : (1962 (1) Cri LJ 196) (Tarachand Damu v. State of Maharashtra), AIR 1962 SC 1252 : (1962 (2) Cri LJ 404) (Maniappan v. State of Madras) and AIR 1972 SC 1776 : (1972 Cri LJ 828), (Lallubhai Devchand Sah v. State of Gujarat) has observed at page 276 (para 10) of AIR 1983 SC 274 : (1983 Cri LJ 426 at p. 428) (State of Assam v. Mafizuddin Ahmad) : "The law is now well settled that there can be conviction on the basis of dying declaration and it is not, at all necessary to have a corroboration provided the Court is satisfied that the dying declaration is a truthful dying declaration and not vitiated in any other manner.
In a recent decision in Padmaben Shamalbhai Patel v. State of Gujarat (1991) 1 SCC 744 at page 750 : (1991 AIR SCW 464 at p. 469) (para 8), their Lordships observed: "If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the Court on strict scrutiny finds it reliable there is no rule of law or even of prudence that such a reliable piece of evidence cannot be accepted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence neither extra strong nor weak and can be acted upon without corroboration if it is found to be otherwise true and reliable.
18. From the place of occurrence, when the Investigating Officer went to the police station, he left Jalaluddin in the lock-up and then proceeded to Sadar Hospital where he also found Nurul Haque injured along with Tuzar and Manzoor. He, therefore, sent Tazar for recording statement as according to him, his condition was serious. It appears from Ext. C that before going of the first investigating officer to Sadar Hospital, the Fard Beyan of Tuzar (through "Ex. C" is by Manzoorul Haque s/o Nurul Haque) had been recorded and he had already been examined by the Doctor. But the Investigating Officer (P.W. 8) on reaching hospital prepared the injury report also which should have been done by the Assistant Sub-Inspector who is said to have recorded his fard beyan and when he had already been admitted in the hospital, P.W. 8 reaching the Sadar Hospital, prepared the injury report and the dying declaration of Tuzar was got recorded. But this dying declaration of Tazar has got no value. It has been observed in the case of Moti Singh v. State of Uttar Pradesh, AIR 1964 SC 900 : (1964 (1) Cri LJ 727) at para 16, as follows:
Clause (1) of Section 32 of the Evidence Act makes a statement of a person who has died relevant only when that statement is made by a person as to the cause of his death or to any of the circumstances of the transaction which resulted in his death. In cases in which the cause of that person's death comes into question. When Gaya Charan is not proved to have died as a result of the injuries received in the incident his statement cannot be said to be the statement of the transaction which resulted in his death.
In the case of Maqsoodan v. State of U.P., AIR 1983 SC 126 : (1983 Cri LJ 218) (para 7) it has been observed as follows:
When a person who has made a statement, may be in expectation of death, is not dead, it is not a dying declaration and is not admissible under Section 32 of the Evidence Act. In the instant case, the makers of the statements Exts. Ka-22 and Ka-23, are not only alive but they deposed in the case. Their statements, therefore, are not admissible under Section 157 of the Evidence Act as former statements made by them in order to corroborate their testimony in Court.
But here in this case, Tuzar is alive and is an appellant. In his statement under Section 313, Cr. P.C., he has denied to have given chhura blow to Hadis. Nothing has been said by him about his dying declaration. As such, the dying declaration (Ext. C) has got no value or relevance in this case.
19. The presence of P. Ws. 2, 3 and 4 on the spot is alleged to be ruled out. But P.W. 3 has said that he was at the tea shop of Raja Choudhary from where he had heard the sound of altercation between Nurul Haque and Hadis and so, he went to the spot and saw lathis and bhalas in the hands of the accused persons and saw the occurrence. But P.W. 4, (in para 16) has stated that after the running ' away of the accused persons, Jalaluddin and Iqbal Hussain of the tola, came, where he had also reached leaving teaching of the children. He has said that Kausar and Hadis were in senses with whom he had no talk and also he had no talk with Abdul Haque or Iqbal. He has also said (P. 44) that when he started towards the place of occurrence, Jalaluddin came from behind him and moved towards the place of occurrence faster than him. Nobody went to the place of occurrence along with him. P.W. 7 has said that the accused persons were 1-2 steps away when he asked to catch, upon which the accused persons ran away, Iqbal Hussain, Abdul Haque, Sirajuddin had also reached there but they did not apprehend the accused and began to attend the injured. In spite of all these statements, P.W. 3 has said (in para 2) that he heard altercation from the tea shop and on his reaching, Kausar was caught hold by Nurul Haque and Md. Raza by waist and then Qaiyum gave chhura blow and so Kausar fell down and Manzoor caught hold of Hadis and Nurul Haque caught hold of both the shoulders and Tuzar gave chhura blow due to which both of them fell down. P.W. 4 has said that the place of occurrence was clearly visible from where he was teaching the children. P.W. 4 does not say that P.W. 3 was not there or had not seen the occurrence and so is the position about P.W 7. There is nothing to show that these witnesses did not reach or that there was any obstruction for them to see the occurrence while reaching the deceased on the spot. In this way, the presence of P.Ws. 2, 3 and 4 on the spot is not ruled out. The witnesses have given cogent and convincing reasons to be present on the spot. They are residents of the same place and 'the possibility of their reaching there and seeing the occurrence, cannot be ruled out. They were subjected to searching cross-examination and nothing has come out to show that reasons for their presence and the manner of occurrence which they are giving out, are wholly improbable and cannot be accepted. When the court is in search of truth then the account given by a witness cannot be brushed aside on supposed or whimsical approach or on surmises or conjectures. The positive assertions of the witnesses in respect of a particular fact are to be considered and relied upon unless wholly improbabilised or physically impossible. If the presence has been alleged by witnesses when unless something convincing and cogent is there to nullify the version, the account given by them for their presence or seeing the occurrence, should be accepted.
20. It has also been argued that the witnesses belong to one family and so, their evidence should be discarded. It has come in the evidence of witnesses that they are related and of the same family. Lengthy cross-examination have been made to take out relationship between the parties. When the occurrence takes place in an area or house, then the persons in the area or house are the most natural and probable witnesses. Simply because they are relations, their evidence cannot be discarded. The evidence of relation or interested is to be scrutinised with care and caution and if there is ring of truth in the evidence, then such evidence is to be relied on. Simply because they are relations, their evidence cannot be brushed aside. They should not appear to be interested in getting the accused falsely pushed in the case. A close relation is a natural witness. He will not be interested in falsely implicating a person unless he has enmity and motive to do so. He will be the last to screen away the real offender. In the case of State of Rajasthan v. Smt. Kalki, AIR 1981 SC 1390 : (1981 Cri LJ 1012) the Supreme Court has made a relation witness and interested witness, at page 1013 (of Cri LJ) (Para 5A) thus:
For in the circumstances of the case, she was the only person present in the hut with the deceased at the time of the occurrence and the only person who saw the occurrence. True it is, she is the wife of the deceased but she cannot be called an 'interested witness'. She is related to the deceased. Related is not equivalent to 'interesed'. A witnesses may be called 'interested' only when he or she derives some benefit from the result of the litigation, is a decree in a criminal case or in seeing an accused person punished." It has also been said by the Supreme Court in the case of State of Gujarat v. Naginbhai Dhulebhai Patel, AIR 1983 SC 839, at page 840 : (1983 Cri LJ 1112 at p. 1114) "The mere fact that the witnesses are near relations or interested would not be sufficient to discard their evidence straightway unless, it is proved that evidence suffers from serious infirmities which raises considerable doubt in the mind of the court." The Supreme Court in a recent decision in Brathi alias Sukhdeo Singh v. State of Punjab, AIR 1991 SC 318 : 1991 Cri LJ 402, has observed thus (in para 7) : "There is no doubt that when a criminal court has to appreciate evidence given by witnesses who are closely related to the deceased it has to be very careful in evaluating such evidence but the mechanical rejection of the evidence on the sole ground that it is interested would invariably lead to failure of justice." On scrutiny the evidence of P.Ws. 2, 3 and 4 has not been found to be suffering from any infirmity or improbability. No enmity has been established on account of which these witnesses have falsely implicated and got the appellants punished in this case. P.W. 2 Abdul Haque has said in para 24 of his evidence that he is the nephew of the informant and also of the accused. In such circumstances, a person related equally to both the parties, will be the most natural and independent witnesses specially when his version is corroborated by the other evidence and material on record. P. W. 7 has admitted that deceased Hadis was married to the cousin sister of appellant Tuzar. In these circumstances the contention that only relations have been examined, has no relevance and effect. It was a matter between members of the family and one should not expect outsiders to get themselves involved in their matter by appearing for one or the other. They also think that if a powerful party to dispute is there, then for their own safety, they may collude with that powerful party P.W. 7 (in para 7) has said clearly that witnesses Sirajuddin, Jagdish, Amiruddin and Mukhia Kashinath have colluded with the accused and do not want to come. In this background, reference may be made to what the Supreme Court has said in the case of Kameshwar Sahai v. State of U.P. that there is no hard and fast rule that the evidence of partisan witnesses cannot be acted upon without corroboration. If his presence at the scene of occurrence cannot be doubted and his evidence is consistent with surrounding circumstances or the probabilities of the case and strikes the court as true it can be a good foundation, more so if of course, some assurance for it is available from the medical evidence. In another case of State of U.P. v. Baboo, AIR 1978 SC 1084 : (1978 Cri LJ 997), their Lordships observed that caste and neighbourhood cannot be grounds for disbelieving those who claim to be eye-witness of the incident. Again in the case of State of U.P. v. M.K. Anthony, AIR 1985 SC 48 : (1985 Cri LJ 493), the Supreme Court has said at page 56 (of AIR) : (at pp. 499-500 of Cri LJ) (para 12) as follows:
The common course of human conduct would show that where the calamity has befallen a neighbour, persons who would be visiting the victim of the calamity are neighbours and friends not strangers, outsiders or enemies. And the omission is on a point which has hardly any significance. The witnesses is a colleague and a neighbour and so suggestion is made that he is inimical to the respondent. Therefore, in our opinion, the High Court was in error in rejecting the evidence of this witness.
In the case of Appabhai v. State of Gujarat, AIR 1988 SC 696 : (1988 Cri LJ 848) (supra) the Supreme Court has observed in para 15 as follows:
It is no doubt true that prosecution has not been able to produce any independent witness in the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds that Civilised people are generally insensitive when a crime is committed in their presence. They withdraw from both the victim and the vigilants. They keep themselves away from the court unless it is inevitable. They think that crime like Civil dispute is between two individuals of parties and they should not involve themselves. This kind of apathy of the general public is indeed important, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for nugget of truth, with due regard to probability, if any, suggested by the accused.
It has also been said by the Supreme Court in the case of State of U.P. v. Anil Singh, AIR 1988 SC 1998 : (1989 Cri LJ 88) (para 13) 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 the witnesses of the occurrence have not been examined.
21. As to the place of occurrence, the first Investigating Officer has said that the place of occurrence is the door of the informant, and in the north of it, is his pucca house and adjacent to it, is the tiled verandah opening towards west and adjacent to the verandah, towards south, on the gate, the two dead bodies of Kausar and Hadis were found and between the houses of Kausar and Hadis and palani of Azmul Haque, is a road which is the place of occurrence where, according to the informant, marpit, had taken place and there he found blood. From there, towards west is the bathan of Nurul Haque on the road. He found fallen blood at a distance of 5 ft. from the wall of bathan in the centre and in the centre, at 3 ft. P.W. 7 the informant, has said that his brother Hadis Mian had fallen towards east-south of the palani of Azmul Haque. Kausar had fallen a little south and from their injuries, blood had fallen. He again said in para 67 that his bathan is at a distance of 20 steps towards west of the mosque, towards north, is the rasta coming from east and adjacent to this rasta, is the palani of Azmul Haque and his house is a little away from the palani of Azmul Haque towards north-east at a distance of 25.26 steps. His bathan and the bathan of Azmul Haque are adjacent and in between is the road. P.W. 2 has said that where the two victims were lying fallen, is the palani of Azmul Haque. Kausar had fallen towards the palani and Hadis had fallen 1 -2 ft. towards east-south of Kausar. He further (in para 6) has said that the place of occurrence is adjacent to the palani and road. P.W. 3 (para 2) has said that the marpit had taken place near the palani of Azmul Haque. Further (in para 11) it has been said that the occurrence had taken place near the palani of Nurul Haque. As per para 14, he went to the palani of Azmul Haque where occurrence had taken place. P.W. 4 (para 3) has said that the occurrence had taken place 6.7 laggies towards west of the palani where he was teaching and the place of the occurrence was clearly visible from there. Further, P.W. 3 said that marpit took place at the place where there was altercation. The Investigating Officer had taken blood from that place and not from other place. In view of these statements of the witnesses including the Investigating Officer, the place of occurrence has been fixed being on the road which is in between the palani of Azmul Haque and the house of the informant. But the investigating officer, in para 10, has said that he did not find blood as pointed out by the informant and he found blood in front of the bathan of Nurul Haque on the road and that is why he went to Nurul Haque in search of the weapon which was not found there. Learned counsel for the appellants has tried to say that for this reason, the place of occurrence is different and it fits in the version of defence that the occurrence had taken place at their place. But this very Investigating Officer has said (para 10) that in between the palani of Azmul Haque and the house of the informant is a road and that is the place of occurrence where, according to the informant, marpit had taken place and there he found blood flowing. The site plan (Ext. 5) has been prepared by the second Investigating Officer (P.W. 9) in which the place of occurrence has been shown as encircled in red colour and that is on the road between the palani of Azmul Haque and the house of Abdul Haque, marked as plot Nos. 530 and 520 respectively. Bathan and house of Nurul Haque have been shown ahead, marked as plot Nos. 529 and 518. Thus the place of occurrence has been well established by the prosecution evidence, as being infront of the plani of Azmul Haque and not infront of the house of Nurul Haque and so, by introducing another place the Investigating Officer has tried to change the place of occurrence to give support to the case of the defence.
22. It has been said that the prosecution has not given the genesis of the occurrence and has given a distorted version as the injuries suffered by the accused in the same transaction have not been explained, which clearly establishes that the manner of the occurrence as given, is quite different, specially in the light of the fard beyan given by accused Nurul Haque (since deceased). As to this contention, the prosecution witnesses have denied the existence of the injuries on the persons on the accused side, although there is a fard beyan and so FIR by Manzoorul Haque in which charge sheet has been submitted by the same Investigating Officer. Besides the fard beyan some medical evidence also has been brought on record to show that injuries were suffered by the appellants side in the course of the same transaction. But before appreciating those contention in the light of the facts on record, reference may be made to the observation of the Supreme Court in the case of Chandra Kant Luxman v. State of Maharashtra, AIR 1974 SC 220, at page 221 : (1974 Cri LJ 309 at p. 310) (para 10): "In coming to this the learned Judge overlooked that the officer in charge of the police station adopted an unduly light hearted attitude to the complainant which Arjun wanted to make and in fact in a departmental proceeding, taken against the officer, a fine was imposed on him for his remissness in the discharge of his official functions. Counsel for the appellant is right that the benefit of what High Court terms a "highly defective investigation cannot go to the prosecution. If it were to appear that the story narrated by Arjun immediately after the incident was in material particulars different from the evidence of the eye-witnesses, the benefit of such an infirmity will have gone to the accused. But if on a proper evaluation of various facts and circumstances, it transpires that the apparent inconsistencies in the case of the prosecution are solely the result of remissness on the part of the Investigating Officer and not of any improvement or prevarication on the part of the prosecution witnesses, there would be no justification for discarding the accusation." Again Supreme Court referring to this very decision, observed in the case of Ashok Kumar v. State of Rajasthan, AIR 1990 SC 2134 at page 2138 : (1990 Cri LJ 2276 at p. 2280) (para 9): "Argument as a matter of law that defective investigation should go to discredit prosecution cannot be disputed but on facts it is available. The High Court was aware of it and in our opinion rightly did not discard prosecution evidence due to remissness of the Investigating Officer on ratio laid down in Chandrakanta v. State of Maharashtra, AIR 1974 SC 220 : (1974 Cri LJ 309). We are further of the opinion that the finding of the High Court that the Investigating Officer due to remissness failed to preserve the site is correct but it does not in any manner weaken the prosecution case. Nor any adverse inference could be drawn due to non-production of nurse or compounder when investigating report was written on the dictation of Dr. Themani.
In this case, the first Investigating Officer, Kauleshwar Mishra (P.W. 8) who has done the major part of the investigation at the initial stage and against whom an application was given by the informant upon the investigation was given over to P.W. 9 Gabriel Anthony, has said that when he went to the spot on the basis of Saneha of Chaukidar Mustafa, he found the dead bodies along with the informant Jalaluddin in the verandah of the deceased and so, he recorded the fard beyan of informant Jalaluddin. Then he went to the house of Nurul Haque who was sufficiently old and whose leg he found bleeding with pus, who told him that Hadis and Kausar had assaulted his son at his door and on account of which, Kausar and Hadis died, that his son on getting injuries had gone to the Hospital, that Jalaluddin had assaulted him (Nurul Haque) with bhala. P.W. 8 further said that he arrested Noorul Haque and handed him over to constable Sidhan Singh. Jalaluddin has said (in paras 12 and 16) that the Sub-Inspector was there up to 10 p.m. and took him and Noorul Haque to police station and Jalaluddin was kept in Hajat and he could not say what he did with Noorul Haque, but he was not kept in Hajat. P.W. 8 (I.O.) has said that when he went to the hospital he found Manzoor, Tuzar and Noorul Haque. Manzoorul Haque is said to have given his fard beyan in hospital at 11.10 p.m. to an Assistant Sub-Inspector of Police. It appears-strange that in spite of statement given by Noorul Haque to the Investigating Officer in the village (as said by him in para 10 of his evidence). P.W. 8 did not record his fard beyan then and there in the village, just as he had recorded the fard beyan of the informant in the verandah where two dead bodies were lying. Further, the Investigating Officer does not say that after taking Noorul Haque in custody, he sent him to Sadar Hospital. Yet when the Investigating Officer reached the hospital he found Manzoor, Tuzar and Noorul Haque injured. Further, (para 15), the P.W. 8 said that when he reached the hospital he made enquiries from Tuzar who was found admitted in the hospital. He found Tuzar injured who was sufficiently injured and so he issued injury report and sent him to a Magistrate for recording of his dying declaration. But from perusal of Ext. C, the fard beyan given by Manzoorul Haque, son of Noorul Haque, it appears that it was recorded by an A.S.I. at 11.30 p.m. Although Tuzar and Manzoor are said to be in the hospital and the A.S.I. recorded the fard beyan of Manzoorul Haque, the injury report of Tuzar was not prepared and he was not referred by that A.S.I. to a Magistrate for recording the dying declaration. It is only when the P.W. 8 reached the Sadar hospital, he prepared the injury report and referred Tuzar to a Magistrate for recording his dying declaration. The certified copy of the fard beyan (Ext. C) does not show the name of A.S.I. who had recorded it. Furthermore, if P.W. 8 on reaching the Hospital found Manzoor, Tuzar and Noorul Haque injured, then why the-medical examination of Noorul Haque had not been done when Tuzar and Manzoor were already examined at 10.20 and why Noorul Haque was examined at 3.15 on 8-5-1984 by D.W. 3. All this shows that the Investigating Officer got interested for the accused, in spite of the fact that they were accused for murder of two persons. That is why the informant has stated that when he came to know that the injuries of the accused were got prepared, he gave application against the first Investigating Officer (P.W. 8) after fourth day of the occurrence and also applied against the doctor. The investigation was taken away from P.W. 8 and given over to another Investigating Officer (P.W. 9) and thereafter Medical Board was also set up. The Investigating Officer (P.W. 8) has stated (in para 7) that he did not know if on the complaint of the informant, the investigation of the case was ordered by the Superintendent of Police to be given by him to another Investigating Officer although in para 18 he has said that the charge of the investigation was given by him on 20-5-1984 to the officer-in-charge. The second Investigating Officer, Gabriel Anthony (P.W. 9) in para 1 has said that he got investigation from the officer-in-charge. When the investigating agency plays such a role and allows a case to come by way of cross-case to cover up the offences by the accused, then the version of the accused in the cross-case and the injuries of the accused are bound to be looked upon with suspicion and doubt while scrutinising it carefully. About the Investigating Officer, in the case of Kishore Chand v. State of Himachal Pradesh, (1991) 1 SCC 286 : (1990 Cri LJ 2289) (para 12). The Supreme Court has at page 296 (of SCC) : (at p. 2295 of Cri LJ) observed: 'Undoubtedly, heinous crimes are committed under great secrecy and that investigation of a crime is a difficult and tidious test.... Before accusing an innocent person of the commission of a grave crim like the one punishable under Section 302, I.P.C. an honest, sincere and dispassionate investigation has to be made and to feel sure that the person suspected of the crime alone was responsible to commit the offence.... Including in free fabrication of the record is a deplorable conduct on the part of an Investigating Officer which undermines the public confidence reposed in investigating agency. Therefore, greater care and circumspection are needed by the investigating agency in this regard. "These observations about the investigating agency apply equally for the prosecution as well as the defence case. A police officer is regarded as one for the protection of citizens. He is expected to be impartial, unbiased and unmoved for any consideration, though he is to be considerate, sympathetic and human. The more the area of crime is increasing, the more citizens are needing the protection and care of the police, which is a machinery of law rather a long hand of law. This hand is needed not only by the accused but also by the person who has been wronged. The duty of a police officer, specially when he is investigating a crime, is to find out truth in the collection of materials, without fear or favour, bias or ill-will or any tilt and he is to see that the guilty is punished and the innocent is protected. The moment investigating agency goes astray, the machinery of law and courts may be misguided, though the courts are themselves capable of understanding from the evidence on the record the trend and tilt and do justice in the circumstances of each on the basis of the evidence and material on the record.
23. The prosecution witnesses have said that the deceased and the persons from their side had no weapons at all when the occurrence took place. P.W. 4 (para 27) in cross-examination has said that he had not seen any weapon with Hadis and Kausar or any one from their side. P.W. 7 has also said that when he went to the place of occurrence, he was empty handed. Besides the persons assaulting and also assaulted, those who were present on the spot, had nothing in their hands. From the witnesses examined by the prosecution, it could not be taken out that anyone of the deceased or anyone on their side or behalf had gone with any weapon or anyone except the appellants used any weapon in defence and caused any injury to any of the accused.
24. The defence has tried to show that the accused have also received injuries which are said to have been during the course of the same transaction, rather the prosecution party were aggressors and accused have done nothing to cause the deaths of two persons. P.W. 7 has said (in para 85) that in night of the occurrence, he had not seen blood coming from the person of any of the accused. P.W. 3 (in para 28) and P.W. 4 (in para 22) of their evidence have categorically stated that on the day of the occurrence, on the persons of Nurul, his wife, his sons Tuzar and Manzoor, he had not seen any sign of marpit or injury. But P.W. 8 (in para 10) has said that when he went to the house of Nurul in search of the weapon, he met Nurul, who was sufficiently old and he found that pus was coming out from his leg. He also said that he went to Sadar Hospital where he met Manzoor, Nurul and Tuzar injured and as Tuzar was sufficiently injured so got him examined in the hospital and after preparing his injury report sent him for examination by a Magistrate. D.W. 2 Dr. Subhash Chandra Rai is said to have examined Tuzar and Manzoor on 7-5-1984 at 3.15 p.m. Three injuries of Tuzar were found to be simple and injury No. 1 was opined as grievous after being kept for surgical opinion. Similarly, injury No. 2 of Manzoor was found to be simple but injury No. 1 was kept for X-ray. Injury of Nurul was found to be simple and of sharp cutting weapon. The opinion about the injury No. 1 of Tuzar, had been given on the basis of the surgical opinion. P.W. 7 (para 32) has said that when he came to know from the people that those persons had got no injury and the doctor has given their injury reports, so he informed the S.P. and after 7-8 days, he applied to the Chief Judicial Magistrate for formation of a medical Board. The informant had also applied for deputation of another Investigating Officer as he (P.W. 8) was suspected to be in collusion with the accused. P.W. 9 has said (para 3) that he had taken steps for formation of the Medical Board on the application of the informant. The report of the Medical Board has been brought on record according to which it was found that Tuzar was examined on 25-6-1984 in Siwan Jail and following scars were found on his body : (1) Scar 1/4" long on left flank, and (2) scar 1" long on left armer the posterior surface above left elbow. The scars found on the body of Md. Tuzar tally with the injury Nos. 1 and 2 mentioned in the injury report dated 7-5-1984 and so, the Board was of the opinion that the injuries were not false and fabricated. This opinion of the Board is based on the report of the Doctor (D.W. 2) who had found (1) penetrating wound 1 1/4" x cavity deep over left upper abdomen just below the costal margin, still bleeding, (2) Incised wound 1" x 1/4" x muscle deep over left arm posterior surface 2" above left elbow, (3) pain and tenderness right low back, and (4) pain and tenderness left scapular region. The Medical Board has also opined about injuries 2, 3 and 4 but has nothing said about injury No. 1.
25. As to the contention that on account of suppression of the injuries of the accused side, the genesis of the occurrence has been suppressed and so the prosecution is not coming out with clean hands, and the same has become doubtful. It is the settled law that when the genesis of the occurrence is not put fully and is in doubt, then the prosecution should be deemed to have not come with clean hands, the benefit of which will have to go to the accused. In the State of Bihar v. Mohd. Khursheed, AIR 1971 SC 2268 : (1971 Cri LJ 1555), the Supreme Court has said at page 2270 (of AIR) : (at p. 1556 of Cri LJ) (para 7) has observed : "It seems to us, however, that the finding of the High Court that there was a clash between the respondent on the one side and the deceased on the other about the time and place of occurrence, is not vitiated as there is some material to support this finding. Once this finding is accepted, then it must follow that prosecution has not put forth the genesis and the manner of occurrence fully.
The prosecution has not been able to explain why the respondent should suddenly take, in his head to attack the deceased while he was in the company of three persons mentioned above and there must have been some immediate version why the incident took place. If there is a doubt as to the origin of the fight, the benefit must go to the respondent." Again in the case of Puran Singh v. State of Bihar, AIR 1975 SC 1674 at page 1685 : (1975 Cri LJ 1479 at. p. 1490) (para 19), their Lordships observed : "In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased' the entire prosecution case is shrouded in deep mystry, which is sufficient to demolish the entire prosecution." In the case of State of Gujarat v. Bai Fatima, AIR 1975 SC 1478 : (1975 Cri LJ 1079), it has been said at page 1782 (of AIR) : (at p. 1084 of Cri LJ) (para 17) that : "In a case like this, when prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow :
(i)The accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self-defence,
(ii) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt, and
(iii) It does not affect the prosecution case at all.
This very judgment has been referred to and relied upon in the case of Gajendra Singh v. State of U.P., AIR 1975 SC 1703 at page 1705 : (1975 Cri LJ 1494 at p. 1497) (para 6). The Supreme Court, in the case of Lakshmi Singh v. State of Bihar, AIR 1976 SC 2263 at page 2269 : (1976 Cri LJ 1736 at p. 1742) (para 11) has been observed as follows :
xx xx xx It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences :
(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes improbability with that of the prosecution one.
Their Lordships have also referred to the observations of the Supreme Court in the earlier case of State of Gujarat v. Bai Fatima, AIR 1975 C 1478 : (1975 Cri LJ 1079) (para 11) (supra) : "there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. "Further, in the case of Jagdish v. State of Rajasthan, AIR 1979 SC 1010 : (1979 Cri LJ 888), their Lordships have observed (page 1011, para 1): "it is true that where serious injuries are found on the person of the accused, as a principle of appreciation of evidence, it becomes obligatory on the prosecution to explain the injuries, so as to satisfy the Court as to the circumstances under which the occurrence originated. "But before this obligation is placed on the prosecution two conditions must be satisfied :
(i) that the injuries on the person of the accused must be very serious and severe and not superficial;
(ii) that it must be shown that these injuries must have been caused at the time of the occurrence in question.
The Supreme Court, in the case of Hare Krishna Singh v. State of Bihar, AIR 1988 SC 863 : (1988 Cri LJ 925) has dealt with this aspect of the matter (at page 868 of AIR) : (at p. 930 of Cri LJ, paragraphs 18 and 20) as follows:
18 : "We have referred to the above decisions in extenso in order to consider, whether it is an invariable proposition of law that the prosecution is obliged to explain the injuries sustained by the accused in the same occurrence and whether failure of the prosecution to so explain the injuries on the person of the accused would mean that the prosecution has suppressed the truth and also the genesis or origin of the occurrence. Upon a conspectus of the decisions mentioned above, we are of the view that the question as to the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. The burden of proving the guilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything in defence. The prosecution has to prove the guilt of the accused beyond all reasonable doubts. If the witnesses examined on behalf of the prosecution is believed by the Court in proof of the guilt of the accused beyond any reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused.
20. Thus, it is not the law or invariable rule that whenever the accused sustained an injury in the same occurrence, the prosecution has to explain the injuries, failure of which will mean that the prosecution has suppressed the truth and also the origin and genesis of the occurrence.
Again, in the case of Vijayee Singh v. State of U. P., 1990 SCC (Cri) 378 at page 389, para 10 : (1990 Cri LJ 1510 at p. 1517) (para 9), it has been observed, "in Mohar Rai case, (AIR 1968 SC 1281 : 1968 Cri LJ 1479), it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true or at any rate not wholly true. Likewise in Lakshmi Singh's case, (1976 Cri LJ 1736) (SC), also it is observed that any non-explanation of the injuries on the accused by the prosecution may affect the prosecution case. But 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. But where the evidence is clear, cogent and trustworthy and where the Court can justify the truth from falsehood, the mere fact that the injuries are not explained by the prosecution, cannot by itself be a sole basis to reject such evidence, and consequently, the whole case. Much depends on the facts and circumstances of the case.
26. Keeping in view all the circumstances of the case, it appears that P. W. 8, on reaching the place of occurrence, had tried to make out a case for the defence as he did not record the Fard Beyan of Nurul Haque though he says that he found him injured at his house. He had arrested him and had brought him to the police station and did not keep him in Hajat. When he went to the Sadar Hospital, he found Nurul Haque injured. The injuries of Nurul were examined at 3.10 on 8-5-1984. The injuries on the persons of the other accused were found to be not grievous except Tuzar and Nurul as Tuzar's injury No. 1 was sent before the Medical Board and in respect of which, nothing has been said by the Board, The conduct of the Investigating Officer created suspicion to the informant and so, he complained to the Superintendent of Police upon which the investigation was given to another Investigating Officer. The Second Investigating Officer went to the place of occurrence. He has prepared a site plan in which he showed the place of occurrence. The first Investigating Officer (P.W. 8) in spite of saying in court that the place of occurrence is the same as said by the informant, tried to recover blood from the house of Nurul Haque which was away from there. This conduct of the first Investigating Officer appears to be to help the accused. The circumstances, create doubt about the injuries on the accused side. Expect two injuries of Tuzar and Nurul, all are simple. None of the witnesses mentioned in the case set up by the defence has been examined to falsify the version of the prosecution and support the defence case, although some defence witnesses have been examined. The prosecution is to stand on its own legs and is not to take benefit of the weakness of the defence, but has to make out its own case, which in this case, appears to have been done by the prosecution on the basis of its own evidence. The witnesses examined by the prosecution, do not appear to be inimical, interested or unreliable. Nothing has come out to show that they have any motive to falsely implicate the appellants. They are residents of the locality. Their presence on the spot was most natural and probable and has been well established and also not even challenged. The witnesses for the prosecution have been thoroughly cross-examined by different sets of lawyers for their respective clients, but nothing has come out on scrutiny and close examination to show that their evidence suffers from any infirmity. P.W. 2, Abdul Haque is a nephew of the informant as well as the accused and such witness will definitely speak what he had seen and will not like to falsely implicate his own uncle and other relations. No motive or enmity for falsely roping the appellants has come in his evidence. Similarly the evidence of P.Ws. 3 and 4 Iqbal Hussain and Alamgir does not suffer from any infirmity. As such, in view of the evidence led by the prosecution, the non-explanation of the injuries of the accused whose existence has been denied by the prosecution witnesses, will not make the case of the prosecution doubtful. It cannot be said that the genesis of the case has been suppressed rather it appears that efforts had been made by the Investigating Officer to spoil the evidence of the prosecution. As such, the injuries on the side of the appellant appear to have been cooked up and non-explanation of them by the prosecution does not affect the prosecution case at all.
27. It has also been contended that Section 34 of the I.P.C. does not apply in the circumstances of the case, specially against those who had been holding the deceased, when other accused had been inflicting injuries. Section 34, I.P.C. requires that there should be a common intention before the participation of the accused in the crime. It requires a pre-arranged plan before a person could be vicariously convicted for the criminal act of another. It can also develop at the spur of the moment. This common intention is a question of fact which is to be established. Common intention is subjective but it can also be inferred from the acts and other relevant circumstances. The Supreme Court, in the case of (Willie) Slaney v. State of M.P., AIR 1956 SC 116 : (1956 Cri LJ 291), has been pleased to observe that "Section 34 does not by itself create any offence and in Section 34 active participation in the commission of criminal act is essential. In Mohan Singh v. State of Punjab, AIR 1963 SC 174 : (1963 (1) Cri LJ 100), their Lordships referring to the Privy Council decision of Mahbub Shah v. Emperor, AIR 1945 PC 118 : (1945 (46) Cri LJ 689) have said that common intention within the meaning of Section 34 implies a pre-arranged plan and to convict for an offence applying Section 34 it should be proved that the criminal act was done in concert pursuant to the pre-arranged plan and the inference of common intention should never be reached unless its necessary inference is deducible from the circumstances of the case. Again in the case of Rishideo Pande v. State of U.P., AIR 1955 SC 331 : (1955 Cri LJ 373), it has been said that 'direct evidence on common intention is difficult to get as such intention is to be inferred from the circumstances including the acts of parties and that common intention may develop at the spur of the moment. In the case of State of U.P. v. Iftikhar Ali Khan, AIR 1973 SC 863 : (1973 Cri LJ 636) (Para 35), the Supreme Court said that it is true that for invoking Section 34 against an accused prior concert or pre-arranged plan has to be established. But it is difficult to prove the intention of an individual, it has to be referred from his acts and other relevant circumstances. In the case of Maqsoodan v. State of U.P., AIR 1983 SC 126 : (1983 Cri LJ 218) it has been observed that common intention is a question of fact. It is subjective. But it can be inferred from the facts and circumstances. In this case the appellants are related. All of them were armed with deadly weapons and they were together. There was an order by someone to kill, when all of them simultaneously attacked the deceased and they were later arrested from the same place. The High Court, therefore, rightly held that the appellants caused the injuries with the common intention and was justified in convicting the appellant under Section 302 read with Section 34, IPC. In the case of Jagroop Singh v. State of Haryana, AIR 1981 SC 1552 : (1981 Cri LJ 1136), Randhir Singh v. State of Punjab, AIR 1982 SC 55 : (1982 Cri LJ 195) and Kulwant Rai v. State of Punjab, AIR 1982 SC 126, their Lordships have been pleased to observe that the nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force implied and the circumstances attended, upon the death. In the case of Gupteshwarnath Ojha v. State of Bihar, AIR 1986 SC 1649 : (1986 Cri LJ 1242), it has been said that in the absence of any overt act or even a shout or oral statement, he cannot be convicted with the aid of Section 34. In the case of Rambilas Singh v. State of Bihar, AIR 1989 SC 1593 : (1989 Cri LJ 1782) (Para 7) it has been said : "It it true that in order to convict the persons vicariously under Section 34 or 149, it is not necessary to prove that each and everyone of them had indulged in overt acts. Even so, there must be material to show that overt act or acts of one or more of the accused, was or were done in furtherance of common intention of all the accused or in the prosecution of the common object of the members of the unlawful assembly. "In the case of Brathi v. State of Punjab, AIR 1991 SC 318, at page 325 : (1991 Cri LJ 402 at p. 409) (Para 15), their Lordships have been pleased to observe: "Like Section 149, Section 34 also deals with the case of constructive criminal liability. It provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. The essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention. If the common intention in question animates the accused persons and if the said common intention leads to the commission of criminal offence charged, each of the persons sharing in the commission of common intention, is constructively liable for the criminal act done by one of them. Just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so, the existence of a combination of persons sharing the same common intention, is one of the features of Section 34. "In the case of Ramlal Singh v. State of Haryana, AIR 1992 SC 59 : (1992 Cri LJ 1) it has been observed at page 60 (of AIR) : (at p. 3 of Cri LJ) (Para 5) as follows:
xxx xxx xxx xxx All these three appellants (appellants 1, 3 and 4) shared the common intention on account of any prior concert and prearranged plan, each of the appellants would have carried some weapon and attacked her or at least fisted or kicked her. But in the present case, there is absolutely no evidence; that except the appellant No. 2, none of the other appellants assaulted the deceased nor any of these three appellants exhorted the second appellant to attack the deceased. The evidence let in by the prosecution and the circumstances attending the case do not unfold any prior concert or meeting of minds of the appellants in sharing the intention of the second appellant, the perpetrator of the murderous assault on the victim.
Again, their Lordships, in the case of Harbans Nonia v. State of Bihar, AIR 1992 SC 125 : (1992 Cri LJ 105), at Para 3, have observed as follows:
At the same time it is, however, absolutely impossible to relieve them of any liability whatsoever in connection with the stab injury which was facilitated by their catching hold of the deceased when Syambali Nonia was inflicting the stab wound. Hence, there is no escape for the conclusion on the evidence available that these two appellants shared at least the common intention with Shyambali Nonia to cause grievous hurt punishable under Section 326 read with Section 34, I.P.C. vide State of Uttar Pradesh v. Ram Kishun, (1976) 3 SCC 449 : AIR 1976 SC 2016 : (1976 Cri LJ 1559). For all the reasons stated above, we set aside the conviction of these two appellants under Section 302 read with Section 34, I.P.C. and the sentence of imprisonment for life, instead convict them under Section 326 read with Section 34, I.P.C.
28. In the instant case, appellants Raza and Manzoor were armed with lathi and bhala. They had come on the spot with weapons. They were not empty handed. Definite case of the prosecution is that Manzoor caught hold of Hadis by waist and then Tuzar gave him Chhura blow. Similarly, Raza caught hold of Kausar's waist and Nurul Haque caught hold of his both hands and then Qaiyum gave him chhura blow on his chest. All this happened because there was some altercation between the accused and the deceased. It was not only a case of mere catching hold but accused Raza and Manzoor had gone armed with weapons. The assault was with intention of causing death, and both of them facilitated the cause of the death and kept catching hold of the victims till they died. If there had been no meeting of minds prior, they would not have come with weapons. They came with lathis and bhala, participated actively in the crime from the beginning to the final. In order to achieve their object of killing, they kept catching hold of both the deceased, till chhura blows were being given to the victims on the vital parts of the bodies and thereby their death was caused. As such, they are liable for conviction under Section 302 read with 34 of the I.P.C.
29. In the result, both the appeals have got no force as in both appeals of the appellants, the prosecution has been able to make out its case to the hilt against them. As such, the judgment and order of conviction and sentence passed against all the appellants by the trial court, are hereby confirmed and both the appeals are dismissed. As all the appellants are on bail, their bail bonds are hereby cancelled and they are ordered to be taken into custody to serve out the remaining period of their sentence.
Nunumani Prasad Singh, J.
30. I agree.