Patna High Court
(Shri) Bhagwan Singh And Ors. vs The State Of Bihar on 13 May, 1993
Equivalent citations: 1993(2)BLJR1325
JUDGMENT S.H.S. Abidi, J.
1. Appellants Shri Bhagwan Singh and Sudershan Singh have been convicted under Sections 302/34 and Section 148, IPC and sentence to undergo for life and two years rigorous imprisonment under the respective counts. They have been further convicted under Section 27, Arms Act and sentenced to undergo rigorous imprisonment for two years. Appellant-Bansudeo Singh had died during the pendency of the appeal and so his appeal has become infructuous. Two of the accused, namely, Bikrama Singh and Krishna Nandan Singh have already been acquitted by the trial court. So remains the appeal of appellants-Shri Bhagwan Singh and Sudersan Singh only.
2. A fard-e-beyan (Ext. 1) was given by infornment-Krishnawati Kumari (PW 4) daughter of deceased Rajkeshwar Rai on U-4-1980 at 11.30 P.M. in village Ekwari, police-station Sahar, district Arrah to S. I. Ramesh Kumar Singh (PW 10) saying that on the day of occurrence at about 6 P.M. she along with her father deceased Rajekshwar Raiwas going to the flour mill of one Sri Ram Rai for grinding grain power (sattu) and when they reached the turning of a gait (lane) at the house of one Swikriti Singh of the village, the two appellants, Shri Bhagwan Singh and Sudershan Singh being armed with country made guns stopped them there. Thereafter appellant Basudeo Singh (deceased) armed with pharsa and the two acquitted accused Bikrama Singh and Krishnandan Singh armed with bhala came out from behind the heaps of straws and Basudeo abusingly said to kill and ordered to fire. Upon this appellant Shri Bhagwan Singh and Sudershan Singh fired from their guns at her father who fell down. Then Basudeo Singh and Krishnandan Singh assaulted him by pharsa and bhala. She raised alarm which attracted the; villagers and the family members and then the accused ran away. Her father's injuries by pharsa and bhala were bleeding and he died. She gave out the names of the accused and the occurrence to the villagers. Motive for the occurrence was said to be that the parties have a common-court yard (angan) and the accused wanted to forcibly occupy one more room (Kothari) out of share of her father, which he refusing for which a threat was extended by Sukhdeo Singh, father of appellants 1 and 2. They also wanted to take forcible possession over an orchard (Bagicha) belong to the informant's father and for that there was a litigation between the parties in the Court and for that reason in informant's father had been killed by fire-arms, pharsa and bhala. On the basis of this fard-e-beyan a first information report (Ext. 6) was recorded at the police station Sahar on 12-4-1980 at 8.30 A.M. which is said to have reached the Court of the learned C.J.M., Arrah, on 16-4-1980.
3. The investigation of the case was taken up by S.I. Ramesh Kumar Singh (PW 10) who had recorded the fard-e-beyan. He prepared the inquest report, examined the witnesses, namely, Ramawati Kumari, Ramdulari Devi, Sakaldip Rai, Baliram Rai, Hari Kishun Rai, Ramji Rai and Keshva Rai (PWs 1, 7, 8, 2, 3, 6 and 5) and sent the dead body for post mortem examination. After completing investigation he submitted charge-sheet against the five accused including the appellants.
4. The accused in defence denied the prosecution case and alleged that they have been falsely implicated in this case. They examined Nagendra Prasad Singh, Ramchandra Prasad, Chitranjan Prasad and Nandi Verma, Taids and they have proved documents which will be referred later On.
5. The prosecution in support of its case examined ten witness, PW 1 is Ramawati Kumari aged about 16 years daughter of the deceased who reached the spot after hearing the gun fire. PW 2 Baliram Rai, brother-in-law (sala) of the victim also arrived at the spot on hearing. PW 3 Hari Krishna Rai a co-villager has deposed as an eye-witness. PW 4 Krishnawati Kumari is informant herself and also an eye-witness. PW 5 Kesho Singh a co-villager is also an eye-witness. PW 6 Ramji Rai a co-villager has turned hostile. PW 7. Ram Dulari Devi wife of deceased has been tenderd. PW 8-Sakaldip Rai father of the deceased had reached the spot on hearing. PW 9 had conducted the post mortem examination and given his report (Ext 3) PW 10 Ramesh Kumar is I.O. who after completing the investigation submitted charge-sheet.
6. Learned trail Court after considering thee ntire material on record has convicted and sentenced the appellants as sail above.
7. Learned Counsel for the appellants has challenged the order of conviction saying that it is against the materials on record. He has contended that the first information report has been suppressed as the first report had been made to the Jamadar of the Police Camp who had rushed to the spot and examined witnesses and family members and then he had sent a report to the police-station Sahar and so the police came and recorded the fard-e-beyan which is different from the one given earlier. It was also submitted that the dead body of the victim was taken to the Police Camp and was not at the P.O. as Ramawati Kumari and other witness have said that before the arrival of the police the relation of the victim returned home from the police camp and the dead body remained there and the dead body was seized at 1.30 A.M. and then inquest report was prepared at 6 A.M. on 12-4-1980. It was also said that the first information report dated 12-4-1980, which is said to have been sent to the CJ.M. could reach there on 16-4-1980 for which the explantion was called for by the C.J.M, and it is made out that the first informant report has been manipulated and was written later on. Further the investigation defective as the I.O. has not examined the chaukidar or any independent witnesses of the police party of the camp. The accused were also not examined nor site plan has been prepared, nor the Clothes were sent for chemical examination. It was also said that the supervision note of the Deputy Superintendent of Police was not sent by the prosecution in spite of an order of the court dated 18-3-1982.
Further there is discrepancy in the statements of the witnesses and further specially in the fard-beyan and the statement of the informant Krishnawati who is the soils witness in this case. The witnesses have also contradicted themselves and so their evidence does not inspire confidence specially for the reason that they are relations. Further PWs. 1 and 3 Ramawati and Harekrishna Rai are non-FIR witnesses; Harekrishna Rai and Keshav Singh who had deposed as eye-witnesses, are non-FIR witnesses. Ramji Rai (PW 6) a co-villager, though non-FIR witness, has turned hostile. The wife of the deceased Ramdulari Devi (PW 7), though non-FIR has been tendered. It was also said that the two accused Bikrama Singh and Krishna Nandan Sings, who are said to have given bhala injury, have been acquitted by the trial court, as the injury did not appear to be by bhala and so the prosecution version appears to be doubtful as the major part of the prosecution version has been found to be not reliable against the two acquitted accused. It was also said that the motive for the occurrence is a very weak and it is not made out and it cannot be said to be the cause of murder. To appreciate all these contentions the evidence will have to be scrutinised with care and caution.
8. PW 4 Krishnawati Kumari is the informant aged about 16 years at the time of the occurrence has. said that, on 11-4-1980 at about 6 P, M. she along, with her father was going to the flour mill of Sri Ram Rai for grinding grain powder (sattu). When they reached near the khand of Swnkriti Singh at the turning of the gali, appellants Sri Bhagwan Singh, Sudersan Singh came armed with country.made guns, Basudeo Singh and the two. other accused Bikrama Singh and Krishna Nandan Singh armed, with pharsa and bhala respectively came from behind the heap of straw which was there and surrounded the informant and the deceased Basudeo abusing said to kill Rajkishore Rai and asked to fire. On his asking Shri, Bhagwan Singh and Sudersan Singh both fired from their country made guns at her father who getting the shot fell down. Then Basudeo Singh gave pharsa blows and Bikrama Singh as well as Krishnanandan Singh, also began to assault by the bhala. She was raising alarm and then the five accused assaulting, her father ran away towards north. Her father died on due to assault. At the place of occurrence Ramavati-Kumari, Harikishan Rai and her mother (PWs 1, 3 and 7) and her sister also came. Ramji. and, Keshav Singh (PWs 6 and 5) had also a arrived. She gave out the entire story of the occurence to them. Ramawati and Harikishan Rai also told her that they had seen the accused assaulting. When the I.O. came she gave her fard-beyan. The motive for murder of her father was that the. accused, wanted to occupy the .. kothari of her share and her father did not want to give the same to them (appellants). Krishnandan Singh and Sudersan Singh had sold their field which was adjacent to the field of her father and her. father had deposited money foe the purchase of the said field. The, accused bad also given out threats earlier and a proceeding under Section 107, Cr. P. C. was also pending. When she was trying, to save her father, her clothes, 5 had got blood-stained and she had given out her sari to the Sub Inspector of; Police, In cross-examination she said that the three appellants ate brothers and appellants Sri Bhagwan Singh and Basudeo Singh (deceased) son of Sukhdeo Singh, who is real brother of Krishnandan Singh. At the time. of occurence talk of her marriage was going on and even earlier than the occurrence she used to go for grinding Satu as and when needed. On the ground of fear of the accused nobody would come to say that she used to go for grinding satu to his flour mills. She might have been seen by 2, 4 or 10 people going to flour mill for grinding satu but she did not remember their name. She was taking the parched grain (bhuja hua grain) for grinding which was kept from before at the house. When her father came and asked to accompany for grinding satu, she accompanied him. She did not know if any girl of the Bhimihar family who used to go for grinding , satu. She often used to go along with her father for grinding satu and on that particular date there was no such occasion and it was wrong to say that because she was grown up she did not go with her father for this purpose. She has got a ten years old brother and also younger sister Lilavati. When she was going for grinding satu her younger sister Liawati was playing there, The younger brother was not there and Ramawati was not asked by her father to accompany him. While going through the gali she had not met other persons. The mill of Sri Ram Rai is about 15-16 houses away from the place of occurrence. The occurrence had taken place at tri junction seeing the accused she did not get afraid. The accused had attacked from behind the heap of straw. Her father was 4-5 steps ahead. First firing was done. She remained standing there and restless and crying but had not fallen on the ground and did not runaway towards her house on seeing the firing. Besides the witnesses named many other persons had come but she did not remember their names. Out of 100 people collected there none asked them to go for reporting to the police as she and others were weaping. The police arrived there on its own and she had given out about the occurrence to the police of the Camp. Two-three police personnel had come and they went away from the place of dead body. Then the police (S. I.) came. It was not said to the police personnel that it was dead body for the reason that they may stay behind. She herself said that the I. O had come with police but she could not say whether they were police of the Camp or other police-station. The I.O. had not made enquiry before her from the police. When the Sub-Inspector of police came near the dead body then her family members were also there, besides the 20-30 people. She did not know if the I.O. made enquiries from others besides the witnesses in this case. To her knowledge there is no other witness besides the witnesses going to give evidence. On account of the fear of the accused none had dared to go to give statement. She did not remember if She had said before the police or the Deputy Superintendent of Police (for short Dy. S.P.) that on account of fear of the accused, persons from the village had not come to give statement. When the I.O. was examining her, Ramji was near Harekrishna Lai and that her statement was recorded at a distance of about five step from the |dead body. In her fard-beyan she had given out that at the time of occurrence many people had come. She was examined by Dy. S. P. to whom she had given out as to when the occurrence took place and that her father was going ahead and she was following him. She bad also said to the police and the Dy. S. P. that Shri Bhagwan and Sudershan had come from behind the heap of straws and from which distance they had fired. Basudeo had exhorted and so they had fired. It was not correct that at the time of giving fard-beyan she had not given out the names of Ramawati, Harekrishna, her mother and grand-mother, Ramji and Kesho. It was not correct that when the Dy. S. P. had come she had not said to aim that other people had come and she had not said about the occurrence to them. Also it is not correct to say that she had not said to them that Hare Krishna and Ramawati had also not said to them that they bad seen the accused. She does not know as against which of the accused her father had filed case but he had deposited money so that the field which was on his Aal may become his own. She had not seen any paper about the proceedings under Section 107, Cr. P. C. but she had said to the I.O. about 107 proceedings. She has said to the I.O. that while saving her father her sari had got bloodstained and the I.O. had seen the sari and while giving fard-beyan and also mailing statement before the Dy. S. P. she had said that her sari had got bloodstained. She denied the suggestions that her father had been killed by the naxalites and none had seen the occurrence, or that she had not seen the occurrence or that her statement had not been recorded by the police in the night or her statement is said to have been got written in the night or that she had falsely implicated the accused on account of enmity.
9. Besides Krishnawati Kumari-informant, P.W. 3 Harekrishna Rai a co-villager is also an eye-witness, though his name does not appear in the first information report. He had said that he knew Rajkeshwar Rai who has been kilted It was at about 8 P. M. and the Sun had not set, that he was going to irrigate his field. He heard gun fire and hulla. He went running when he went infront of Nand of Swikriti Rai, he saw accused Krishnaadan Rai assaulting Rajkeshwar Rai with bhala and Basudeo was assulted with pharsa. Accused Shri Bhagwan Rai and Sudersan Rai were standing with country made guns. He went there and asked them as to why they were committing attrocities. The daughter of Rajkeshwar was there who was crying. On their crying the accused one after the other assaulted Rajkeshwar Rai and ran away towards north. Rajkeshwar Rai died on account of the injuries on the spot. He and the elder and younger daughters of the deceased said about the occurrence. Krishnawati had also told him that Shri Bhagwan and Sudershan had fired from the guns and injured the deceased. Blood had fallen on the ground. On the ground had also fallen two baskets of parched grain besides chappal and gamachhi. In cross-examination he has said that adjacent south to his house is a canal in which water docs not remain for the whole year and at that time there was no water and that there is road also. He had heard the sound of gun fire and hulla when ho was on the road about 50-60 steps away from the place of occurrence. First of all he saw that Basudeo Rai with pharsa and Krishnandan Rai with bhala, were assaulting the deceased He had seen that the daughter of Rajkeshwar Rai was trying to save her father and that Sudershan Rai and Krishnandan Singh were standing with country made guns, and Ramawati daughter of the deceased was reaching there. He stayed at the place of occurrence for the whole night and went to his place at about 3.30 or 4 A. M. There were also 7-9 persons there, PWs 5, 6, 2 and 8 Kesho Singh, Ramji Rai, Baliram Rai, Sakaldip Rai and two or four other persons also stayed there in the night. He remembered the names of these persons who are witnesses. He had no talk with any person of the village regarding occurrence. But himself added that he said to the villagers at to who had killed the deceased. He had thought that the police might be informed but he did not send any-body though police came Of its own within an hour of the occurrence. He did not remember any person whom he had met in the way while going to the village. While he was going to the place of occurrence he did not meet any body. The police had made enquiries from the family members of Rajkeshwar Rai and also from Ramji Singh, Kesho Singh and the witnesses one by one and not before them. At the door of the deceased police officer had taken statements. It was not correct to say that he had not given statement to the police or police officers nor it is correct that he or Ramji Singh had not given statement before any officer. He lives in the village regularly. He does not remember the name of his grand-father. Then added, the name of his grand-father was Faguui Rai who had died. He does not know if there was money in the name of Rajkeshwar Rai or that Rajkeshwar had sold some field. The I.O. came 3-4 hourse after the coming of the constables and the constables had also given information to the I.O. Some constables had stayed behind and some had gone to bring the 1.0. Women of the house of the deceased had come to the spot and when they had gone away And they again came when the police came, . When he left the place women of the house of the deceased were there.
10. PW 1 Ramawati Kumari daughter of the deceased had said that on 1l-4-80 at about 6 p. m. deceased along with her sister had gone to the Mill for grinding of Satu and immediately within two minutes the house she heard the gun fire and alto crying of her sister and so she ran towards east of her house and as soon as she reached the crossing of the gali, she found her father fallen. There she also saw Basudeo with pharsa assaulting her father and also Bikrama and Krishnandan assaulting her father and also Bikrama and Krishnandan assaulting her father with bhala. Besides the three accused Sri Bhagwan and Sudershan were also standing with country made guns. She cried and her sister was also crying. Her sister also said that Shri Bhagwan and Sudershan had fired from the guns and injured her father who died there. After assaulting her father the accused ran away towards north. While she was reaching Harekrishna, Ramji Singh, Kesho Singh had reached and others also arrived. On the alarm her mother/sister and maternal Uncle had come. Her grand-mother had also arrived. The motive for the occurrence Was that on account of loan there was litigation between her father and the accused. The accused also wanted to occupy her garden also. In cross-examination she said that adjucent to her baithaka is the baithaka of the accused toward east. In the Zanani Klta towards east she and other family members live while towards west the accused live. She herself said that after the occurrence wall had been raised in the angan. She also gave put about the location of the houses including thereof Sbeopujan Sab, Bindeshwari Singh, Najir Mian and others besides Swikriti Singh and Dudul around the place of occurrence and said that none of those persons are witness, tier family is agriculturist and prosperous family and halwahes and charwahas used to work at her place. In the name of her father 56 to 60 thousand rupees were deposited. In the Bank. In her village police was posted earlier than the occurrence. It is not so that in her village 17-18 Bhumihars had been killed by naxalites and that the police had peen posted there to control the naxalities. She did not known if her father used to go court or not. There are 5-6 flour mills in her village. From before the occurrence proceeding under Section 107, Cr P.C. was pending With the accused and there was no case of mar-pit _ with the accused before the accurrence. When there was alarm then she left the house saying to go and see that sister was crying. She had asked her mother and grand-mother to accompany. She ran first. She did not took behind as to whether her mother or grand-mother were the people to run, as her father as being killed. Harekrishan also reached there. Both of them, had reached together Harekrishna house is towards north of the village. She saw first her father had fallen she saw from her own eyes that Basudeo gave 2-3 blows of the pharsa . She also saw that Krishanand and Bikrama had given the injuries. She could not say how many injuries were given before her, as she had not ran away. She ran to the trinjuctlon and stood up about 2-3 hands away from the place of assault. She had given out about the occurrence to the people who had come thereafter and so her sister had also given out. She Was weeping and saying, as to who had killed her father, to the people who were hearing. She said on her own that these were Kesho Singh, Ramji Singh and her maternal uncle Baliram Rai and these persons are witnesses. If she would have given out there names. The dead body of her father was allowed to remain there till the arrival of the police dead body was taken in possession by the police at about 11 to 10.30 a.m. and it was taken to the police camp. Thereafter she and others went away her home. She and her grand-mother were at the place when the police had taken charge of the dead body. None from her side had said to anybody to go and inform the police. The police itself came when there was hulla that her father had been tilled. The police had come 1 half hours after the occurrence. When the police came, she and her grand-mother gave out about the occurrence. Camp 'police had not done any writing. The police constable had said information have been sent to the S. I. and when the Section 1. would come he (constable) would take in writing. She said that 2-3 police personnels came on hearing about the occurrence and then went away to call the S. I. and they came before the ''S. I. Air the members of her family remained near the dead body till the arrival of the S. I. Four or five persons of the village were there. Then her statement was recorded. The police went to her place also and searched for the accused. Her house and house of accused are at the same place but no accused was found. She could not say as to whether at the place of occurrence statement of any other person was recorded besides her statement and that of her grandmother. She also went to her place along with the S. I. Thereafter the S. I. again came in the morning. The dead body of her father was not brought to her home from the Camp. The Dy. S. P. also came for investigation and made enquiries. He made enquiry from her grand-mother. She could not say if enquiry had been made from others. She had said to the I.O. as well as to the Dy. S. P. that the occurrence had taken place in the evening and that her sister had gome with her father and on hearing the alarm from her sister she had gone running to the place of occurrence.
11. PW 2 Baliram Rai brother-in-law (Sala) of the deceased has said that on 11-4-1980 before Sunset his brother-in-law (Bahnoi) Rajkeshwar Rai was killed on that day he had come to meet him (deceased) and was sitting in the baithaka, when he heard the; gun fire and the hulla. Upon this he went to the spot where his bahnoi (brother-in-law) was killed. On reaching there he saw his bahnoi fallen down deed and his niece Krishnawati and Ramawati there, crying and saying that Shri Bhagwan and Sudershan had injured and killed their father by firing and Basudeo by pharsa and Krishnadeo by bhala and that they ran away. They had given out the name1; of the five accused, In cross-examination be had said that his village is at a distance of 7 kilometers from village Ekuari. On the day of occurrence he had come to Ekwari at about 4 p.m. in connection with consultations for the marriage of his niece. He had come in the same connection about 20-25 days earlier in the noon and then returned in the evening. While coming to Ekwari he might have seen people but he did not remember their names. On reaching the village Ekwari he had talk with the father of the deceased and could not talk to the deceased. Of and on in connection with the marriage, his sister used to come to his place. After the occurrence he stayed there in the night. He had not sent information to his village where also the news had reached. When he returned people told him that they had got information about the murder on 12-4-1980, It is wrong to say that on the day of occurrence his sister was not in village Ekwari and that she had gone to his place where he was there, and that on hearing the news of murder of the deceased on 12-4-198d he came to village EKwari with his sister. He had said to the Dy. S. P. about his coming to village Ekwari in connection with the marriage of his niece but the 1.0. had opt enquired from him in this respect. He did not remember if he had said to the I.O. in which connection he had come to Ekwari.. He had gone alone to the place of occurrence on hearing the alarm. The father of the deceased had also started for the place. He is old man. He could not walk fast. He had not asked him (witness) to accompany when he started. Then he followed, while going to the place of occurrence he saw the neighbouring persons going to the place of occurrence but he did not recognise them. Ho stayed at the place of occurrence for the whole night. He did not know as to whether Camp was there. He had no talk with any body to inform at the Camp. Police of the Camp did not make enquiry about the occurrence. The I.O. came in the night and recorded his statement in the mid night, besides recording the statements of Krishnnwati and Ramawati. He returned to his village on 12-4-1980 in the evening, He baa said to the Dy. S. P. that at the place of occurrence both the nieces were giving out the names of accused and they were saying that they (deceased) had killed the deceased. It was wrong to say that he had not gone to the place of occurrence and that he had not seen anything.
12. PW5 Kesho Singh a co-villager who has said that Rajkeshwar Rai had been killed about 6 p.m. At that time he had gone to the carpenter. He heard two gun fires and also alarm. He proceeded tea steps from the house of carpenter towards south, then he saw that accused Sudershan, Shri Bhagwan both with country made guns, Bikrarm and Krishnandan with bhala and Basudeo with pharsa, were running away towards south. He went to the spot and found the deceased lying dead and also found the deceased's daughter Krishnawati, Harekrishna and Ramji there. Krishnawati told him that her father had been Killed by the accused and he also told her that he has seen the accused running away. On the ground there were lying parched grain and two baskets. The I.O. came and prepared the inquest report (Ext. 2) which was signed by him and also by one Dinanath. He admitted that be was accused in the case of Sudarshan which had not yet started. He denied to be an accused in the case of Daroga, Shekhar Singh is his brother and so is also Gandhi Singh, Vakil. He did not know if his brother Gandhi Singh is working for the accused as lawyer. He did not know if his father Nathuni Singh and Fagu Rai grand father of Harekrishna and Basgit Rai grand father of the deceased Rajkeshwar Rai were accused in any case. He did not know if Shekhar Singh is a witness but when he reached, be did not find Shekhar Singh on she spot. He reached there next morning and remained there for the whole night. He went away after the going away of the I.O. He went when the dead body was taken away. His house is at a distance of 100 to 150 steps from the place of occurrence and not one mile. Police camp was about 2 to 4 bighas away from the place of occurrence and according to him one bigha is equal to 100 yards. Chaukidar, Dafadar and Surpanch had also come to the spot. The Mukhiya is still alive and no enquiry was made from him by the I. O before the witnesses. He gave out the name of Krishnawati in his statement to the I.O. He bad also seen Harekrishna and Ramji at the place of occurrence and that he had seen the accused running away. Ho had also given his statement to the Dy. S, P. He had not seen Ramjas Rai and Bharat Rai on the spot as their doors were closed and these two had not come to the spot till be remained there. The constables, who had come, remained there for the whole night. First 4-5 constables had come who remained till arrival of the I.O. and their statements were recorded by the I. O, He and Dinanath signed the inquest report. The house of Dinanath is at a distance of about 2 bighas of the police camp.
13. PW 6 Ramji Rai, a co-villager, has turned hostile. He had said that when the murder of Rajkeshwar Rai of his village took place at about 6 p.m. he was at his house. He heard the gun fire and hulla and so he went there. When he went for some distance, he saw Shri Bhagwan, Sudershan, Basudeo, Bikrama and Krishnandan were running away. Out of whom Sudershan and Sri Bhagwan had country made guns, Basudeo Had pharsa, Krishnandan and Bikrama had bhalas. When he reached the spot he saw Rajkeshwar lying injured bleeding and dead at the' tri-junction near the khand of Sri Swikrit Singh. He also found parched grain scattered and two baskets fallen. Many people of the village had collected. Krishnawati told him that many people had killed her father and ran away. He identified the accused in dock. In cross-examination he has said that his Village is a big one with a population or about tea thousand people. Police camp is on the south of the village with one Jamadar and 12/14 armed constables Before this occurrence 8 to 10 persons of Bhumihar family had been killed and there was no enmity between them and the naxalities about the land. He had not met any body when he was going from his mill to the place of occurrence. Many people had collected they being 30/34 in number. He had taken ten minutes time to reach from the mill the place of occurrence. After his going to the place of occurrence Jamadar and constables come. They were of the camp. There the father of the victim and others had collected. In his presence Jamadar did not record statement of any body and none said about the names of the accused to the Jamadar. In his presence Jamadar or constables did not go for arresting anybody. To court he said that he had been at the place of occurrence for about an hour. In further cross-examination he said that after staying for about an hour he went away. He volunteered that after staying at his house for about ten minutes he returned to the place of occurrence. One or two hours after his return, the police from the camp, came and they took the dead body to camp. All the people there went away to their places. He was examined by the police after two days of occurrence. He had not gone to the Dy. S. P. for statement though he was in the village when the Dy. S. P. came. The I.O. examined him after the going away of the Dy. S. P. The police took away the dead body from the place of occurrence to the camp at about 9 or 9.30 p. m. He did not Know till the giving of his statement to the police as to who was witness in the case. The deceased used to visit his Sour mill for grinding. His mill is adjacent to his house. His Nanihal (grand father's place) and that of Rajkeshwar Rai is at the same place. He and the deceased are maternal counsin as his mother and the mother of the deceased are cousin sisters. In his statement to the police he had not given time as to when he heard gun fire. It was wrong to say that he was concealing facts on account of being cousin of Rajkeshwar Rai. At this stage an application was given by the prosecution to declare him hostile, which was opposed by the defence. After hearing the parties the court declared him hostile and so he was cross-examined by the prosecution. The accused Sri Bhagwan is married to the daughter of the patidar of the Mama of the witness. The I.O. had enquired from him about the occurrence near the khand of Swikriti Singh not in the night of the occurrence: The inquest report was not prepared before him. The S. I. of Sahar had not come before him. It is not correct to say that on the night of the occurrence the S.I. had recorded his statement near the khand of Swikriti Singh. He did not know the name of the A. S. I. of the Camp. It was not correct to say that in collusion with the accused he was giving false statement, Before him the Jamadar of the Camp took away the dead body to the Camp. Krishnawati had not said to him as to how the accused had killed her father. She was weeping at the place of occurrence. She had not said that she was going with her father for grinding satu. With objection he said that he had not said to the police that Krishnawati while weeping, was saying, giving out the names of the accused that she was going with her father for grinding satu and when she reached near the khand of Swikriti Singh at the turning the accused assaulted the deceased with the weapon.
14. The father and mother of Rajkeshwar Rai have also appeared as PWs 7 and 8, PW 7 Kara Dulari Devi mother of the deceased has been tendered. In cross-examination she had said that she has three daughters and one son. PW 8 Sakaldip Rai the father of the deceased, has said that the deceased was his only son. On the day of occurrence at about Sunset he was in his dalan sitting with the Bali Rai (brother-in-law of the deceased). He heard the gun fire and hulla and ran towards that side from where the hulla was heard and reached there. He saw sri Bhagwan, Sudershan with country made gun, Basudeo with pharsa, Bikrama and Krishnandan with bhalas who were running towards north. Motive for the murder was earlier enmity. Witness Awadesh Rai has died. Witness Ramakant Rai, Bechan Rai and RamanuJ Rai have colluded with the accused. In the cross-examination he has said that except the accused there is no other male member in their family. Hit son did not keep an elephant and his son used to look after the fields He used to go Arrah when needed. He did not know that; in 1978-79 Swikrit Singh had filed a case against Munilal Kahar and others and in that his son was a witness. After the occurrence he sold 4 bighas of land and in none of the documents Hare Krishna Rai a witness. Hare Krishna Rai is also not a witness m the two documents in favour of Achhuta Rai. He is able to see well from his eyes. On hearing alarm Bali Rai went ahead and he followed : On the wav he did not say to any body that his son had been Wiled. He had gone 20-25 steps when he saw the accused running away. His son was covered by his own chadar. He did not ask any body to catch the accused. His grand daughters had reached there. He had told the police as well as the Dy.S.P that his grand daughters had said to him as to which of the accused had killed their father. Many villagers had collected there besides the witnesses and he could not give out their names. When the camp police came he gave out details of the occurrence but they did not do any writing. They had said that they would go individually. It is not correct to say that the statement was recorded on a paper and he had signed the same which has been changed. The by had come on the next day of the occurrence before whom Hare Krishna ' Ramji his grand daughters and he himself had given statement. Before the I O none else than him and his grand daughters have given statement. Police went away saying to keep watch and so he and others remained with the dead body The' I.O. came in the night and remained there and took away the dead body .By the morning he meant to say that the face was not visible, then the I did not come. On the information of the constables, the S.L. from the police station earnest about 11 p. m. in the night who recorded the statement and remained there throughout the night and in next morning sent the dead body to Arrah His door is at about 100 steps from the place where the dead body was lying.
15. Besides this ocular evidence is the evidence of Dr. K B Sahai (PW 9) who had conducted the post mortem examination on 12-4-1980 at 1, 35 p.m, and submitted, postmortem report Ext. 3) in which he found the following injuries:
Incised wound 2" x 1" x1/2"just behind right ear.
(2) Incised wound 4"x 1/2 X bone deep on the left side of the forehead. ;
(3) Incised wound 1 1/2 x 1" "x 1" on the right shoulder joint.
(4) Incised wound 2" x 1" X cavity deep oh the mid back at the therecic region.
(5) Incised wound 1/2" x 1/2" x 1/2" on left ear.
(6) Incised wound 3"x V x bone deep on the lef elbow Joint.
(7) Incised wound 1" x 1/2" X" 1/2" on the right thumb.
(8) Incised wound 1" 1/2" x 1/2" X" bone deep on the right temporal bone of the head.
(9) Lacerated wound 1/2" X 1/8" X neck cavity deep on the left side of the neck, point of entry, margins inverted no tatooing"
(10) Lacerated wound 1/2" X 1/8" X neck cavity deep point of exist. "He has said that injury Nos, 9 and 10 were communicating with each other. Their margins were overted and both were caused by fire arm, may be firing made by country made gun. Injury Nos. 1, 2, 4 and 6 might have been caused by garasa, a sharp cutting weapon, aad the rest four injuries, namely, injury Nos. 3, 5, 7 aad 8 might have been caused by bhala. In his opinion the death was due to shocks and haemorrhage, as a result of all those injuries and they were sufficient in ordinary course of nature to cause instantaneous death. In cross-examination he has said that the penetrating wounds were caused by sharp pointed weapons and incised wounds might he caused by sharp cutting weapons He also said in cross-examination that the cut injuries are generally described as incised wounds and penetrating wounds. He was not in agreement with the views given in Modi Medical Jurisprudence that penetrating wound is caused by sharp cutting pointed weapon and incised wounds are caused by sharp cutting weapon. In his opinion there is nothing to suggest that the cut injuries were caused by sharp pointed weapons. He has described that all the injuries having been caused by sharp cutting weapons due to pharsa and garasa which are two types of weapons.
16. PW l0 Ramesh Kumar is the I.O. On 11-4-1980 he was officer incharge of Sahar Police Station. At 10.30 pm. he got information through the incharge of the Ekwari police camp about the murder whereupon he reached the village Ekwari at 11.30 p. m. whore deceased Rajkeshewar's daughter Krishnawati gave her fard beyan which he later on sent for registering the FIR to the Sahar Police station. After that he inspected the place of occurrence, being village Ekwari at a distance of about 300 yards from the house of the deceased, at the trijunction and at turning of khand of Swikrit Singh. The dead body was found there and sufficient quantity of blood had fallen there. Blood spot had spread around. He seized the articles found near the place of occurrence vide seizure memo (Ext. 4). He examined witnesses Ramawati Kumari, Ram Dulari Devi, Sakaldip Rai, Baliram Rai, Hare Krishna Rai and Ramji Rai. He prepared the inquest report (Ext 5) and sent the dead body for post-mortem examination. He tried to apprehend the accused but they were not available. He got the post-mortem report on 15-4-1980. The case was supervised by the Dy. S. P. He posted a chukidar at the house of the deceased and the family was very much terrified. Proceedings under Sections 107 and 116, Cr. P. C. were started against the accused. He submitted charge sheet against the accused persons under Section 302/34, 1. P. C. He examined witness Ramji Rai on 12-4-1980 at the spot who had said that Krishnawati was weeping and giving out the names of this accused persons and she had also said that she was going with her father for grinding satu, then the two accused fired two accused gave bhala injuries and one accused gave pharsa injury. He has not written in the diary at what time he had recorded the statement of the witnesses nor written the time of inspection of the place of occurrence and also not written as to how the information was sent by Ekwari camp to him. He volunteered to say that some body had come to give information. He did not remember in writing or oral and who had brought the information and had not recorded the statement. This information was not recorded in the case diary. On reciept of the information about occurrence entry in the station diary was made, There was wireless set in the Ekwari camp ; then says he has not written in the diary as to when he had started for Ekwari village, but he reached Ekwari at about 11.15 p.m. How he went from the police station is not written in the diary. He met the camp police but did not record their statement and he met them during investigation. He came to know about the names of the accused at the time of recording the fard-beyan. Name of the witnesses is written in the fard-beyan. He did not record the statement of Mukhiya and Surpanch. From the place of occurrence he sent the dead body to Arrah for post-mortem examination. He bad prepared the seizure list at the time of inspection of the place of occurrence. It is not so that the same officer had taken the deceased before his (witness) arrival at the place of occurrence that he had not found any dead body at the place of occurrence. The Dy. S. P. inspected the place of occurrence before him on 15-4-1980. n it not correct to lay that till Dy. S. P. inspected the place of occurrence no witness had been examined. He does not remember if after five days of occurrence the fard-beyan was sent to the Court of S. D. J. M. and show-cause had been issued and he had filed show-cause. He does not remember if he had gone to the Court of S. D. J. M. and seen the record of this case. During the investigation he had not recorded the statement of the accused. It is not correct that on account of fear show-cause he had not recorded the statement of the accused in jail. Later on also he did not record] the statement. He did not record the statement of Sri Ram Singh whose mill is also in the village. The original copy of the inquest report was sent for post-mortem examination. From Arrah is Sahar of 45 kilometers. It was not correct that he had recorded the fard-beyan of the Incharge of the plice camp Sakaldip Rai which was sent to the police station and he (witness) substituted it by the statement of Krishnawati Devi. It was also not correct to say that he had not written statement of Krishnawati at the relewant time and place. He inspected the house of the accused person and nothing incriminating was recorded. He has not written as to what time fard-beyan had been sent.
17. Besides, the evidence of these witnesses for prosecution the defence had also examined four witnesses who were taids and they have proved the documents. D. W. Nagendra Prasad Singh has said that he had received summons (Exts. A to A/2 series) for Uma Shanker Rai. Sachita Rai and Kashi Nath Sah to produce documents which are said to have been executed by Sakaldip Rai (PW 8) father of the deceased. He admitted that he was pairvikar of the accused. Ramchandra Rai (DW 2) is another taid who had proved the (certified copies of the two sale-deeds (Exts. B and 3(1) produced from the accused side. He also said about the execution of these documents in his presence. DW 3 is Chitranjan Pd. who is another taid. He has provided the sale-deeds (Exts. B/2 and 3/3) dated 20-11-1981 executed by Sakaldip Rai (PW 8) in favour of Achhuta Rai of village Ekwari, DW 4-Nandji Verma is-also an Advocate's cleark who has proved the certified copy of the sale-deed (Ext. A/4) dated 18-9-1990 said to have been executed by Smt. Ram Dulari Devi (PW 7) mother of the deceased and wife of PW 8 Sakaldip Rai.
18. Thus from the appreciation and scrutiny of the evidence produced by the prosecution and the defence it appears that Krishnawati Kumari (PW 4) is the main eye-witness while PWs 1 and 3 Ramawati Kumari and Harekrishna had seen part of the incident and also the accused running away. PWs 5, 6 and 8 namely, Kesho Singh, Ramji Raja and Sakaldip Rai had also seen the accused persons making good their escape after the occurrence. Besides this there is immediate disclosure about the occurrence to PWs 1, 2, 3, 5 and 8, namely, Ramawati, Baliram Rai, Harekrishna, Kesho Singh and Shakaldip Rai. Presence of P.W. 4 has been well established by the evidence of these witnesses besides her own statements. She has said that she was going with her father for grinding satu. The parched grain with two baskets had been found by the I.O. on the spot, besides the evidence of the witnesses who had admitted the presence of the same including P.W. 6 Ramji Rai a hostile witness. Her statement has been subjected to severe cross-examination which she had withstood and has not at all been shaken. Against her statement it has been said that she had made improvement in her statements and so her statement has been contradicted. For that if reference is made to the statement of I.O. (PW 10) is found that he has said in Paragraph No. 47 that she had not said to him that on account of fear on accused none of the villagers came to depose and that on account of the selling of the fields there was quarrel and that she could not say about 107 proceeding. These are the only contradictions said to have been brought out from the statement by putting the same before the I.O. No doubt, contradictions have got vital role in discarding the evidence of a witness but it should be a major one going to the root of the matter and if they are minor, insignificant and unrelated to the occurrence and which amount to give omission, then they are not at all relevant or material and such omissions have got no adverse effect. In the case of State of Rajashthan v. Smt. Kalki and Anr. A.I.R. 1951 SC 1390, at page 1392 in Para 6 it has been said:
In the depositions of witnesses there are always normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
In the case of Krishna Pillai Sree Kumar and Anr. v. State of Kerala , it has been observed at Page 1239 in Para 11:
It is no doubt true that the prosecution evidence does suffer from inconsistencies here and discrepancies there but that is a short coming from which no criminal case is free. The main thing to be seen is whether those inconsistencies, etc., 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. That is a salutory method of appreciation of evidence in criminal oases...
In the case of Bharwada Bhoginibhal Hirjibhai v. State of Gujarat , it has been observed in Paragraphs 5 and 6: "Over much importance cannot be attached to minor discrepancies... (5) '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 , it has been said:
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 undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evalute 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 tie root of the matter would not ordinarily permit rejection of the evidence as a whole. If the Court before 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 weight and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter trivial details Even honest and truthful witnesses may differ in some details unrelated to the main incident because of power of observation, retention arid reproduction differ with individuals, cross-examination is an unequal dwel between a rustic and refined lawyer...
Therefore, the evidence of PW 4, who is the daughter of the deceased and had seen the ghastly murder of her father with her own eyes cannot be discarded for more minor omissions. She will be the last person to screen away the real offenders and falsely implicate the appellants. It was the occurrence of before the Sunset and so there was no question of mistaken identiy, specially when the appellants are the own kith and kins of the deceased and the witness. After full scrutiny of her evidence there does not appear to be any iota of untruthfulness and there is ring of truth which creates confidence in her statement and so she is to be believed.
19. As regards Ramawati Kumari (PW 1) she too is a daughter of the deceased and she on hearing the gun fins and cry of her sister rushed towards the place of occurrence. She saw the appellants running away with their weapons and found her father lying injured. Her sister had given out to her about the occurrence. Similar is the statement of PW 3 Harekrishna Rai a co-villager who too reached the place of occurrence on hearing the gun fire and hulla. He saw Krishnandan Rai assaulting the victim with bhala, Basudeo with pharsa and Shri Bhagwan and Sudershan standing with gun. He asked them as to why they were committing attrocities but after committing the offence the accused ran away towards north. The victim died on the spot on account of the injuries. PW 4 was crying when the witness reached there and the two daughters of the deceased, namely, PWs 4 and 1, were giving out about the occurrence to the witnesses. This witness is a co-villager and he had seen part of the occurrence. Nothing has come out in his evidence to show that he has got enmity or motive against appellants for falsely deposing against them and falsely implicating them in such a heinous crime, PWs. 1 and 3 have been subjected to searching and severe cross-examination but nothing has come but from their evidence to show that they are deposing falsely or they could not reach there or they were not at all on the spot. It has been said about them that they are not named in the first information as eye-witnesses. It is a fact that their names do not find place in the FIR. But PW 4 in her statement has said that when she raised alarm it attracted the villagers and family members. PW 1 is own sister of the informant (PW4) and PW 3 is a co-villager. A witness not named in the F.I.R. cannot be discarded only on account of his not being named in the F.I.R. although his evidence makes out that he was a witness to the occurrence. In the case of State of U.P. v. Lalla Singh , it has been said:
...These two witnesses are not mentioned in the first information report but from their testimony it is clear that they are natural winesses to the occurrence and there are no grounds for disbelieving their testimonies.... It is not necessary that the names of ail the eye-witnesses should be mentioned in the first information report. PW 1 while narrating the occurrence and part played by the accused also mentioned the name who accompanied the party and were prominent in his mind. The mere non-mention of the names of the eye-witnesses will not justify the rejection of the evidence of the eye-witnesses. PW 2 has already said, he is Sabha-pati of the village and there is no reason why he should testify falsely against the accused. No enmity has been proved between PW 2 and the accused. Moreover, this witness was examined by the police on the same day. Equally unconvincing is a reason given by the High Court by rejecting the testimony of PW 8 independent witness and resident of the village near the scene of the occurrence. According to PW 8 he was going to his sugarcane field when heard an alarm saw the incident....The scene of the occurrence is very close of the village and according to the witness he saw from a distance of 28-30 pacess....
Thus PW 3, who is a co-villager, has given out reasons for his presence, on the spot. He could and did reach there and has given out about the occurrence which is fully corroborated by the evidence of the eye-witness. PW 4 and he had no axe to grind against the appellants. The P W. 4 has said that the villagers had reached there. So non-mention of name of PW 3 in the F.I.R. will not have any adverse effect. Similar is the position about PW 1, the own daughter of the deceased. She too is a natural witness who rushed the spot on alarm of her sister and saw the occurrence and so said to other whatever she could see and also gave out the same in the witness box which has not been found to be improbable and unbelievable on the facts and circumstances of the case. So if her name got omitted inadvertintly it will not have any adverse effect when PW 4 says that her family members had reached the spot.
20. PW 2 Baliram Rai is the brother-in-law (sala) of the victim who is said to have reached the village on the day of occurrence in connection with talks about marriage of PW 4 Krishnawati Kumari and has given out this reason for being there. He has that while he was talking with PW 8 father of the decesed, which fact is also admitted by PW 8 himself, that he heard the gun fire and alarm and went to the spot. His name also does not find place in the FIR. Though he is not a member of the family and is resident of different village, but he has .given out reasons for his presence which could not be shaken in his cross-examination. PW 4 also said that her marriage was to be performed. Though this witness is a near relation of the deceased but nothing had come out to show that this witness had any motive to falsely implicate the applicants who are own relations of the deceased. His evidence has not been shaken in cross-examination. He had been throughout in the night on the spot. He is also a non-F.I.R. witness but resident of the same village and nothing has come out to show that he could not be on the spot or that at the relevant time he was elsewhere or that he was not able to see the occurrence. He too is not found to be inimical or ill-disposed towards the accused. A witness will not implicate a person falsely in any case specially in such a heinous case like murder and nothing has come out to show that he had motive otherwise to depose falsely against the appellants. His evidence on scrutiny is found to be trustworthy and unshaken and so it is to be believed, PW 8 lather of the deceased and an old man also reached the spot and has been given out about the occurrence. He too does not appear in the F.I.R. But that will not be a ground to discard his evidence. The motive about the occurrence may be there, because the accused wanted to take more share than the due which he was resisting and the accused also wanted to take over the garden and that was a motive for them to commit the offence. This witness had got no motive to falsely implicate them, as it has not come out that this witness or the deceased or any one of the deceased side was trying to grab the land or property of the appellants. Rather evidence led by the prosecution shows that the appellants had wanted to grab the property of the deceasd, as said above, which was being resisted and so motive was to the appellants to commit the offence of murder and no motive for the father or the deceased or to his daughters to falsely implicate the appellants who are their own relations and family members. Ramdulari Devi mother of the deceased has been tendered but she had not been cross-examined. She is also a natural witness. The prosecution did not withhold her and produced her but the defence did not want to get anything from her.
21. PWs Ramji Rai, who is a co-villager, too admits about the occurrence. He has been declared hostile. He says that he reached the spot from Ms Dhan, Flour and Kutti Mill on hearing the gun fire at about 6 p.m. While going for some distance he saw the accused running away with their weapons i.e. Sudershan bad small conuntry made gun, Basideo a pharsa and Vikrama and Krishnand Bhala. On reaching the spot he found Rajkeshwar Rai lying injured, dead and bleeding at the trijunction near the Khand of Swikriti Singh and also found the parched grain scattered with two baskets. After being declared hostile he has said that Krishnawati had not said to him as to how the accused had killed her father. She was weeping at the place of occurrence and she has not said that she was going with her father for grinding satu. With objection he has also said that he had not said to the police that Krishnawati while weeping was giving out the names of the accused and that she was going with her father for grinding satu and when she reached near the khand of Swikriti Singh and at the turning, the accused assaulted the deceased with their weapons. The evidence of a hostile witness cannot be said to be completely washed off on account of his being declared hostile. The-Court has to consider the same how far it is of use to the prosecution or defence and to arrive at the truth, but the evidence of such witness cannot be treated as a-version of the prosecution. In the case of Sat Paul v. Delhi Administration , it has been observed by the Supreme Court at page 308 in para 51:
...It emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider, in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely Shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto.
It has also been observed at page 307, para 43:
Therefore, neither the party calling him, nor the adverse party is, in law, precluded from relying on any part of the statement of such a witness.
In the case of Bhagwan Singh v. State of Haryana A.I.R. 1976 5C 2QZ, it has beep observed at page 203 in para B;
But the that fact the Court gave permission to the prosecutor to cross-examine his own witness, thus characterising him as, what is described as a hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence....
In the case of Syed Akbar v. State of Haryana A.I.R. 1978, SC 1848, it has been observed at page 1851 in para 12:
As a legal proposition, it is now settled by the decisions of this Court, that the evidence of a prosecution witness cannot be rejected wholesale, merely on the ground that the prosecution had dubbed him 'hostile' and had cross-examined him. We need say no more than reiterate what this Court said on this point in Sat Paul v. Delhi Administration (supra).
In the case of Narayan Nathu Naik v. State of Maharashtra A.I.R. 1971 SC 1656 their Lordships have been pleased to observe about the witnesses who have resiled from their earlier statement at page 1657 para 5:
...We have read the evidence of the witnesses and we have thoroughly checked it and we are satisfied that what has been stated by these witnesses is the true version of what happened on that fateful night. The story is a simple one, of an attach in the middle of the night by an assailant who was not only grappled with but was seen and identified in the light. The witnesses who have resiled have also stated that the occurrence took place at the door of the cottage. They have also stated that there was sufficient light for them to see although they changed that they did not see the assailant not heard what the victim stated to his mother about the appellant having assaulted him. This version comes from the witnesses who no doubt are interested, but they are not interested enough to let real assailant escape and charge some one else. Report of this was made almost immediately and in fact the police arrived within a couple of hours and the statements were recorded the very next morning. There was no time available to concoct a false case with such details against the appellant....
In the light of these observations of the Courts the statement she did not recognise them. She volunteered the S. I. had come with the police. She could not say if they were camp people or from the police station. The S. I. did not make any enquiry before her. In para 21 she has said that when the Sub-Inspector came to the dead body. Then all the members of her family were there and there were 20 to 30 persons. In para 23 she has said that the I.O. had recorded her statement five steps away from the dead body. PW 1 Ramawati Kumari has said (in para 27) that dead body of her father was allowed to remain till arrival of the police and dead body was taken in charge by the police the same night at 11 to 11.30. The dead body was taken to the police camp and after the dead body was taken over, she and others went away. She and her sister were on the spot throughout till the dead body was taken away by the police. In para 30 she had said that the police constable had said that information had been sent to the S. I. and the S. I. would come and would record the statement. Two-three constables had come on hearing the occurrence and they had gone to call the S. I. and they came along with the Sub-Inspector and till arrival of the S. I. her family members remained near the dead body besides 4-5 others of the village. The S. I. came and examined her sister and then her. The investigating Officer (PW 10) has said that on 11-4-1980 at 10 30 p.m. on getting information through the Incharge of the police camp he reached the spot at 11.30 and recorded the fard-beyan of Krishna wati Kumari. There he found the dead body of Rajkeshwar Rai at the turning of the gait. The body was west-east and there was sufficient quantity of blood on the ground and, the blood spots were Spread upto the north on the bricks of the Khand of Swikriti Singh. Besides also found one gamcha and chappal on the spot. Thus from this it appears that till the arrival of PW 10, no statement was recorded by any one from the Camp Police and when the Camp Police sent information, then PW 10 came and recorded the statement of PW 4 and also found the dead body at the place of occurrence and nut at the police camp. Therefore the contention the dead body was taken by Camp police and there is nothing as to how the police came to the spot are not made out.
22. It was next contended that there was no motive for the offence. As to this it has been throughout the case of the prosecution and the informant had been saying that the accused being the own brothers had been demanding more share in the property and they wanted to occupy a room and the garden of the deceased which was being resisted by the deceased. This version of the informant has not been challenged. Moreover motive becomes of academic nature when there is direct evidence about the involvement of the appellants in the occurrence In the case of Molu v. State of Haryana A.I.R. 1976 SC 2499 at page 2505 (para 11), the Supreme Court has observed:
It is settled that where direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes motive is shrouded in mystry and it is very difficult the locate the same. If however the evidence of eye-witness is credit worthy and is believed by the Court which has placed implicit reliance on them, the question whether there is a motive or not becomes wholly irrelevant.
In the case of Faquira v. State of U. P. A.I.R. 1976 SC 915, their Lordships have held at page 916 (para 4):
The fact that the apparent motive was too flimsy is no reply to the unshaken testimony of creditable and natural eye-witnesses who had no motive whatsoever to implicate the appellant falsely.
In the case of Krishna Pillai v. State of Gujarat A.I.R. 1981 SC 1237, it has been held at page 1238 (para 7):
In any case, it is not a sine qua non for the success of the prosecution that the motive must be proved. So long as the other evidence remains convincing and it is not open to reasonable doubt, a conviction may well be based on it.
In the case of State of A. P. v. Bogam Chandraih and Anr. A.I.R. 1986 SC 1899, the Supreme Court has observed at page 1901 (Para 7):
Another faulting in the judgment is that the High Court has held that the prosecution has failed to prove adequate motive for the commission of the offence without bearing in mind the well-settled rule that where there is direct evidence of an acceptable nature regarding the commission of an offence the question of motive cannot loom large in the mind of the Court.
23. It has also been said that there is only one witness of the occurrence, Krishna wati and her sole statement should not be relied on be discarded As to this contention there k not: only the statement of Krishnawati but also of PWs. 1 and 3, namely, . Ramawati and Harekishna who had reached the spot and had seen part of the occurrence. Besides, them are the co-villager Kesho Singh (PW 5) who had also seen the accused mooing away ; Bali Rain (PW 2) and also PW 8 Sakaldip Rai, father of the deceased to whom immediate disclosure had. been made PW 1 is clear in saying that on alarm of her sister she rushed to the spot and the informant (PW-4) made immediate disclosure to her that appellants 1 and 2 had given injury to the deceased by fire-arm. and also disclosure to other who had come, namely, Kesho Singh, Ramji Singh arid Baliram Rai (PWs 2, 5 and 6). PW 2 says that when he reached the spot he found his brother-in-law fallen and his nieces Ramawati Kumari and Krishnawati Kumari crying and saying, that appellants Shri Bhagwan and ' Sudershan had injured their father by firs-arms, Basudeo by pharsa and Krishnandan, PW 3-Harekrishna is a co-villager who claims to have gone to the spot on hearing gun firs in the Khand of Swikriti Singh and saw Krishnandan armed with bhala, Basudeo armed with pharsa, Sri Bhagwan and Sudershan were standing with country made gun and when he asked as to why there were committing these attrocities than they ranaway and the elder and younger daughters of the deceased said about the occurrence. PW 4 has said that she had given out about the occurrence to those who had arrived at the spot. PW 5 Kesho Singh a co-villager also reached the spot and saw the victim dead and the daughter of the deceased, told him about occurrence. So is the version of PW8, Not only that, PWs 5, 6 and 8 are clear in saying that they saw the accused running away. Purpose of immediate disclosure is that there should be no adulterated or embellished version and truth may corns out at the earliest, in the case of Panda Nana Kare v. State of Maharashtra A.I.R. 1979 SC 697, it has been held that as the solitary eye-witness had not disclosed the name of the assailant immediately after the occurrence conviction was not held proper on this ground besides other ones. Similarly in the case of Sonia Bahera v. State of Orissa A.I.R. 1983 SC 49, PW 2-Rosani wife of PW 3-Markaada had given information to the police and had said that she had seen the appellant attacking she deceased but did not disclose the incident 13 anybody ia the. villages and when her husband also came she did not tell him that such incident had take place due to fear. Thus the immediate disclosure to the witnesses or the village people who had conic on the spot on alarm or out of sympathy as to who assaulted the victim is essential, Therefore, there is no immediate disclosure then there is every possibility of concocted, embellished and motiated version which is not so in the instant case, as the informant (PW 4), her sister PW 1 and Harekrishna (PW 3) had given out to the villagers who had come to the spot immediately after the occurrence.
24. It has also been alleged that no independent witness has been examined. As to this contention the prosecution has produced P.Ws 3, 5 and 6, namely, Harekrishna, Kesho Singh and Ramji Rai who are co-villagers and not related to the accused or the prosecution. The evidence of PWs 3 and 5 does not suffer from any infirmity and they have supported the prosecution case but PW 6 did not and so declared hostile. Inspite of seeing the occurrence these days the people keep themselves away, from the crime and the persons connected with the crime for various reasons, as this apathy of the general people has become rampant and the Court has to remain confined to the witnesses examined and consider if their evidence inspires confidence. In the case of Sarwan Singh and Ors. v. State of Punjab A.I.R. 1976 SC 2306, it has been said at.
But it is not the law that the omission to examine any and every witness even on minor points would undobtedly lead to rejection of the prosecution case or drawing of an adverse inference against the prosecution. The law is settled that the prosecution is bound to produce only such witnesses as are essential for unfolding of the prosecution narrative. In other words before an adverse inference against the prosecution can be drawn, it must be proved to the satisfaction of the Court that the witnesses who had been withheld were eye-witness who had actually seen the occurrence, and were, therefore, material to prove the case. It is not necessary for the prosecution to multiply witnesses after witnesses on the same point, it is the quality rather than of evidence of that matters. In the instant case, the evidence of eye-witness does not suffer from any infirmity or any manifest defect on its intrinsic merits. Secondly, there is nothing to show that at the time when the deceased was assaulted a large crowd had gathered and some of the members of the crowd had actually seen the occurrence and were cited as witnesses for the prosecution and been withheld. We must not forget that in our country there is a general tendency amongst the witnesses in mofussil to shun giving evidence in Courts because of the cumbersome and dilatory procedure of our Courts. Therefore, nobody wants to be a witness in a murder or in any serious offence if he can avoid it.
In the case of Appabhai and Anr. v. State of Gujarat A.I.R. 1988 SC 696; 1988 Cr LJ 848, the Supreme Court has observed in Para 11:
...It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that tools 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 us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilance. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This bind of apathy of the general public ts indeed unfortunate, 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 inependent witness must consider the broad spectrum of the prosecution version then search for the nuggest of truth with due regard to probability, if any, suggested by the accused....
It is also been said in the case of State of U. P. v. Anil Singh A.I.R. 1988 SC 1998 at page 12001 in Para 13:
...In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable.
In the instant case, there is nothing to show that the PWs 5 and 6 are not independent and have got any motive to falsely implicate the appellants. It is something different that PW 6 Ramji Rai had turned hostile. As much in these circumstances, the contention about non-examination of independent witness has got no force.
25. It has also been urged by the learned Counsel for the appellants that there is delay in the despatch of F.I.R. which creates doubt about the genuineness of the F.I.R. and there is every possibility of being ante-timed on concoctions made therein, specially when the version given by the Incharge of police camp to the I.O. has not been brought on the record. As to this contention PWs 4 and 1 are dear in saying that the police from camp came and then they went away and thereafter the I.O. came in the night. PWs are clear insaying that they have not sent any information to the I.O. The I. 0. says that on getting information from the Incharge of the police camp at 10.30 p. in. he made entry in the register and then he reached the spot at 11.30 p. m. and recorded the fard-beyan. PW 4 also out gave out the fard-beyan in the same night. The I.O. has said that after recording the fard-beyan be had despatched the same for being registered as first information report at the police station and then he started investigation, which fact is also borne out by the other witnesses that he had held inquest report and sent the dead body for post-mortem examination and that the I.O. also recorded the statement of the witnesses. He also prepared the seizure memo on the spot. So after recording the fard-beyan investigation was started and that continued. There is nothing to say that the I.O. had not reached on the night of occurrence and he had not recorded the fard-beyan or not examined the witnesses, nor prepared the inquest report nor sent the dead body and nor prepared the seizure memo. The record shows that the inquest report is dated 12-4.1980 at 6 a. m. and the investigating officer says that he sent the dead body on 12-4-1980 at 6 a.m. The doctor says that he conducted the post-mortem examination on 12-4-1980 at about 11.30 am. and submitted his report (Ext. 3). The F.I.R. is said to have been registered on 12-4-1980 at 8.30 a. m. at the police-station, Sahar. It appears to have reached the Court of the learned C. J. M. on 16-4-1980 at 10.30 a. m. On 12-4-1980 was Saturday, 13-4-80 Sunday, 14-4-80 Monday, 15-4-80 Tuesday and 15-4-1980 Wednesday. On account of late reaching of the F.I.R. to the court of learned C. J. M, an explanation was called for from the I.O. Section 157, Cr. P. C. provides for sending of the F.I.R. forthwith. In the case of Pala Singh and Anr. v. State of Punjab A.I.R. 1972 SC 2679, it has been said by the Supreme Court in para 7 at page 2081:
...No doubt, the report reached the Magistrate at about 6 p. m. Section 157, Cr. P. C, requires such report to be sent forthwith by the police officer concerned to a Magistrate empowered to take cognizance of such offence. This is really designed to keep the Magistrate informed of the investigation of such cognizable offence so at to be able to control the investigation and if necessary to give appropriate direction under Section 159. But when we find in this case that the F.I.R. was actually recorded without delay and the investigation started on the besis of that F.I.R. and there is no other infirmity brought to our notice, then, however, improper or obtectionable the delayed receipt of 4the report by the Magistrate concerned it cannot by itself Justify the conclusion that the investigation was tainted and the prosecution insupportable. It is not the appellants' case that they have been prejudiced by this delay.
In the case of Sarwan Singh and Ors. v. State of Punjab A.I.R. 1976 SC 2304 (supra), the Supreme Court observed at page 2309 Apart from this, it is well-settled that mere delay in despatch of the F.I.R. is not a circumstance which can throw out the prosecution case its entirety.
Their Lordships quoted the observations made in Pala Singh's case (supra). In Court has observed at page 135 in:
As regards the last circumstance, it is true that the special report was received by the, District Magistrate on 29th March but it is not as if every delay in sending such a delayed special report to the .District Magistrate under Section 157, Cr. P, C. would necessarily lead to the inference that the F.I.R. has not been lodged at the time stated or has been ante-timed or ante-dated or that the investigation is not fair and forthright. As has been pointed out by this Court in Pala Singh v. State of Punjab (1973) SCA 964 : A.I.R. 1972.SC 2679, the relevant provision contained in Section 157, Cr. P.C, is really designed to keep the Magistrate informed of the investigation of a cognizable offence so as to able to control the investigation and if necessary to give appropriate direction under Section 159, Cr P. C, but if in a case it is found that the F.I.R. was recorded without delay and the investigation started on that F.I.R. then, however, improper or objectionable the delayed receipt of the report by the Magistrate concerned that cannot by .itself justify the conclusion that the investigation was tainted an the prosecution insupportable. In the instant case the material on record clearly shows that steps in investigation by way of drawing inquest report and other Panchanamas had been taken in the early hours of the morning of 28th March and these could only follow the handing over of F. I.R. Ex. Ka-1 by Ram Narain Singh to the Station Officer at about 2.15 a. m. In view of these facts the delayed receipt of the special report by the District Magistrate on 29th March would not enable the Court to dub the investigation as tainted one nor could Ex. Ka-1 be regarded as ante-timed or ante-dated. For the same reasons the delay in sending the necessary papers to the Medical Officer which were received by him on 29th March will be of no significance.
In the case of Subhash and Shiv Shankar v. State of U.P. A.I.R. 1987 SC 1222, it has been observed at page 1225 in Mr. Anthony argued the Exhibit Kha-i could not have been given at 1.12 p. m. because there is no evidence to show when the report was sent to the Magistrate and when it was received by him. The learned Counsel referred to Gardev Singh v. The State (1963) 65 Pun LR 409, where the dangers ensuing from a First Information Report not being lodged promptly hive been pointed out. We are unable to accept the argument of Mr. Anthony because there is no material to warrant an inference that Exhibit Kha-1 had been given later but ante-dated to cover up the delay in making the report. It is true that the First Information Report sent to Court does not contained the Magistrate's endorsement regarding the time of its receipt, but Ram Kishan, head Constable (PW 5) has deposed (hat the special report was despatched to the Magistrate at 1.20 p. m. itself through constable Cbiman al and that the General Diary contains an entry to that effect.
In the case of Dalbir Singh and Ors. v. State of Punjab A.I.R. 1987 SC 1328, it has been observed at page 1332 in para 14 ..it is appearent that if the report itself was recorded at 3.25 p.m. and the police officer was investigating the offence, next morning the report had been despatched to the Magistrate. It is also significant that initially as the report was recorded on the basis of dying declaration of Makhan Singh an offence under Section 307 read with Sections 148 and 149 only was registered. It, therefore, could not be said that there wag any delay to sending the report to the Magistrate.
In the case of Slate of U.P.v. Anil Singh A.I.R. 1998 SC 1988 (supra), the Supreme Court has said at page 2002 in ...According to counsel, the report must have been prepared after the inquest and non-mentioning of the time of despatch of F.I.R. to the Court would lend support of his submission. We carefully examined the material on record. We are unable to accept the submission of learned Counsel. In the first place, PW 1 was not specifically cross-examined on this matter. The Court cannot, therefore, presume something adverse to the witness unless his attention is specifically drawn to. Secondly, the records contain unimpeachable evidence to the contrary. Apart from the records of the Police Station, the Panchanama (Ex. Ka-7) to which Ramesh Chandra Dube (DW 1) has admittedly appended his signature shows that the reporting time of crime was 9.15 p. m.
In case of Babu Ramu Macchi v. State of Gujarat A.I.R. 1986 Cr LJ 983, a Division Bench has observed at page 986 in para 9:
It is difficult to understand how so much time was taken for the F.I.R. to reach the Judicial Magistrate in the same district. The prosecution has not made any effect to explain this delay. The Police Officer-Bharatkant, Ext. 31, when asked to explain this delay gave evasive replies. We are constrained to observe here that there is delay of five days and the delay has not been explained. The question, however, is whether simply because there was delay on the part of the Police in sending the F.I.R. to the Judicial Magistrate, First Class we should look at the evidence of Bhogilal with any suspicion. The question as to what is the effect of the delay in sending the F, I, R, to the Judicial Magistrate will depend upon the facts and circumstances of such case. In a given case, delay of some hours may assume importance, while in a case like the present one, even the delay of five days may not adversely affect the prosecution case ....
In the case of Lallan v. State of U.P. 1990 Cr LJ 463, a Division Bench has observed at page 466 in Besides, it may be noted that it is not that as if every delay in sending a delayed special report to the District Magistrate Section 157 Cr. P. C. would necessarily lead to inference that the first information had not been lodged at the time stated or has been ante-timed or ante-dated or that the investigation is not fair and forthright. If in a case it is found, that the. first information report is recorded without delay and the investigation started on that first information report, then, however, improper or objectionable the delayed receipt of the report by the Magistrate concerned that can not be itself justify the conclusion that the investigation was tainted. See State of U. P. v. Gokaran . In our view when in this case the first information report was recorded within two hours of the incident and the investigation was immediately started then the delay of a few hours, if any. in sending the special report was not significant.
Thus the contention about delay in the receipt of the FIR to the Magistrate in these circumstances that the fard beyan lodged, FIR drawn, investigation started, statement of witnesses recorded, inquest report prepared, and dead body sent for post-mortem examination has got no effect and so this contention also fails.
26. Learned Counsel for the appellants has also urged that two accused, namely, Bikrama Singh and Krishanandan were said to have been armed with bhala, have been acquitted and so the evidence of the prosecution witnesses on that score impleading the other accused appellants should be disbelieved. As to this contention, learned Sessions Judge has considered the case of the two appellants in paragraph No. 29 of the judgment and has given the following findings:
But so far the causing of injuries with bhala by accused Krishna Nandan and Bikrama is concerned, the evidence of the PWs does not get support or corroboration from the evidence of the doctor PW 9. The doctor PW 9 has deposed in his evidence in cross-examination that incised injuries' are caused by sharp cutting weapons. He had admitted that he has mentioned nothing in the post-mortem report, Ext. 3 to suggest that any of the injuries was caused by sharp pointed weapon like bhala. Though the doctor has said in his evidence that injury Nos. 3, 5, 7 and 8 may be caused by bhala but there is no mention of such thing in his post-mortem report Ext. 3. He has simply mentioned that all the incised injuries are caused by sharp cutting weapon. So in this view of the doctor's evidence, it has been vehemntly argued by the learned defence Counsel Shri Ram Bilash Singh that the charges of participating in the crime by accused Krishna Nandan and Bikrama by causing bhala injuries resulting into the death of Rajkeshwar Singh is not proved beyond all reasonable doubts. I also do feel and find that though the evidence of the eye-witnesses is that these two accused persons, namely, Bikrama and Krishna Nandan caused bhala injuries on the person of Rajkeshwar but there is not even a single punctured would so as to hold that they had their participation in this crime in furtherance of their any common intention to kill Rajkeshwar or in prosecution of the common object of any unlawful assembly formed to kill Rajkeshwar Singh. So I agree with the learned defence counsel that the charges brought against the two accused, namely, Krishna Nandan and Bikrama are not proved beyond all reasonable doubts. So they are entitled to the benefit of doubt and they deserve to be acquitted of the charges brought against them. Therefore, these two accused persons are acquitted of the charges brought against them giving them benefit of doubt.
In the case of Solanki Chimanbhai Ukabhai v. State of Gujarat , the Supreme Court has observed:
Ordinarily, the value of medical evidence is only corroborative, it proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye-witnesses, the tesimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.
No doubt in the case of Anwaruddin v. Shakoor and Ors. , the Supreme Court in para 12 has said that:
Therefore the mere absence of spear injury on the person of the two deceased cannot reject the evidence of the eye-witnesses to the actual commission of the crime doubtful. All that one can say is that as the eye-witnesses are highly interested and since the evidence regarding the part played by Alam is not corroborated for want of spear injuries they should be given benefit of doubt.
27. Though the learned Additional Sessions Judge has admitted that all the witnesses including PWs 1, 3 and 4 are clear in saying that bhala injuries had been given by the two acquitted accused and Doctor (PW 9) has said in the post-mortem report (Ext. 3) that injury Nos. 1 to 8 were incised wounds while injury Nos. 9 and 10 lacerated wounds and injury Nos. 9 and 10 were communicating each other and their margins were overted cause by fire-arm injuries like country made gun. Injury Nos. 1, 2, 4 and 6 were caused by sharp cutting weapon like garasha and the rest of the injuries, namely, 3, 5, 7 and 8 might be caused by bhala. It is also a fact that the trial Court, as seen above, has given benefit of doubt to the said two accused said to be armed with bhala and this matter about the injuries are being considered, as evidence of these eye-witnesses are being doubted. So reference can be made to the observations of the Supreme Court in the case of Brathi alias Sukhdev Singh v. State of Punjab and ...Where the evidence examined by the appellate Court unmistakenly proves that the appellant was guilty under Section 34 having shared a common intention with the other accused who were acquitted and that the acquittal was bad, there is nothing to prevent the appellate Court from expressing that, view and giving the finding and determining the guilt of the appellant before it on the basis of that finding.
We are of the opinion that the High Court was fully justified in reassessing the evidence with a view to determining if the infirmities pointed out by the trial Court while acquitting the co-accused existed on record. In doing so, the High Court was not fettered by the conclusions of the trial court. The entire evidence was before it and it was free to reach its own conclusions. It was free to examine the infirmities for the limited purpose of assessing the impact thereof on the case of the appellant.
So without interfering with the order of acquittal of the two accused this Court has got power reappraise the evidence and give its own finding about the part assigned to the acquitted accused by the prosecution witnesses, when the evidence of these witnesses is under challenge in respect of the other convicted accused. In cross-examination PW 9-doctor has said that the injuries are generally described as incised wound and penetrating wound. He is in general agreement with the views given in Modi Medical Jurisprudence. Penetrating wounds are caused by sharp pointed weapon and he had described all the injuries having been caused by sharp cutting weapon. Pharsa and garasa are two types of weapons. This statement of the doctor that he has described all the injuries caused by sharp cutting weapons in the post-mortem report, is not correct as he has clearly said that the injury Nos. 3, 5, 7 and 8 might be caused by bhala and injury Nos. 1, 2, 4 and 6 by sharp cutting weapon. H.W.V. Ox in his Medical Jurisprudence and Toxicology 5th Edition page 240 has given about incised wounds:
5. Incised wounds-Incised wounds are lacerations caused by a sharp cutting edge, where the force has been delivered over a very narrow area, corresponding with the point Or edge of the blade.
Incised wounds may be caused by a knife, cleaver, spear, razor, sharp axe or any other metal cutting instrument or by sharp material such as broken glass, bottles ate. The common feature is delivery of the force over a very narrow are.
In Modis' Medical Jurisprudence and Toxicology, 12th Edition (page 200), it has been said that "an incised or slash wound is produced by Sharp cutting instrument such as a knife, razor, scissors, sword, gandasa (chapper), axe, hachet, scytha, kookri, or any object such as broken piece of glass or metal which has a sharp cutting pointed or linear edge and are mostly intentionally inflicted. Tqe cutting edge Of a knife may be completely or partly sharp and partly blunt and the other edge may be blunt, serrated, scalped or hollow, all these varities effect the shape of the wound.
An incised or slash wound is broader than the edge of the weapon causing It owing to retraction of the divided tissues. It is somewhat, spindle shaped and gasping, its length being greater than its depth. This gasping is greater in deep wounds when the muscle fibres have been cut transverly or obliquely, Its edges are smooth, even clean cut, well defined and usually everted. The edges may be inverted, if a three lawyer of muscular fibres is closely united to the skin as in the scrotum. They may be irregular in cases where the skin is loose or the cutting edge of the weapon is blunt as skin will be puckened in front of the weapon before it is decided length of the incised wound has no relation to the length of the cutting edge of the weapon, but it may give some idea of the penetration.
The edge of the wound made by a heavy cutting weapon such as axe, hatchet or shovel, may not be as smooth as those of a wound caused by a light cutting weapon such as a koife, razor, etc and may show Tigris of contusion. Such a word is, as a rule, associated with extensive injuries to deep under lying structures or organs. A sharp weapon edge if struck obliquely will cause bevelling of one edge of the wound and also indicate the direction of the blow, while if the sharp edge is struck almost horizentally it produce a wound with a flap. ..
A curved weapon, such as a scytha, or sicklefirst produces a stab or puncture and then an incised wound, sometime the intervening skin may be left intact.
While describing an incised wound it is always necessary to note its direction. The commencement of the wound is deeper and it becomes shallower and tails off towards the end, but no direction is noticeable when the weapon has been drawn while inflicting a wound."
In the case of Sonelal.v State of U.P. , it has been field in para 20:
Normally a sharp pointed weapon would cause a punctured wound but the weapon like Banka or Ballam can cause incised wound provided instead of the pointed end the surface of the weapon is used. In the melee that followed it would have become difficult for the witnesses to say with exactitude that injuries were caused by the surface or by the pointed end. The injuries found on the deceased persons would, therefore, be sufficient evidence of the assault....
In the case of Pal Singh and Ors. v. State of U. P. , it has been observed in paragraph 2':
...Lastly, it was submitted that the injuries caused to the deceased are inconsistent with the manner in which the deceased is alleged to have been assaulted, For instance, while the accused were armed with kantas and spears, only one punctured wound was found. We might point out that this is purely artificial argument, the High Court has rightly pointed out that if the accused assault-ed with side portion of the blade of the weapons in a slanting fashion, only incised wounds be caused. Thus, the injuries sustained by the deceased are not inconsistent with the medical report which finds a number of incised wounds inflicted the deceased....
In the case of Veluswmay and Ors. v. State of Tamil Nadu , it has been said at page 837 ...Is is not necessary when a bichuva is used on a fleshy part of the body that there would be a punctured wounds. A bichuva has sharp edges on both sides, and when it is drawn out, the outer appearance it leaves is of an incised wound.
28. A medical man who examines a victim of assault, at the earliest is no doubt the best person to give his opinion about the nature of injuries, the situs of injury, the weapon of offence and the like. The Supreme Court has said in tae case of Munir Ahmed v. State of Rajasthan 1989 SCC (Cr) 455: A.I.R. 1980 SC 705 (Para 6). that the doctor who examined the injuries of the dead person while alive and also conducted the post-mortem on the dead body is competent to opine about the nature of the weapon of assault baying regard to the nature of the injuries sustained. In the case of" Mufabhai Nagarbai Ravel v. State of Gujarat 1993 (1) PUR 34, the Supreme Court observed at Page 36 (Para 3): "It is needldless to say that the doctor who had examined the deceased and conducted the post-mortem is the only competent witness to speak about the nature, of the injuries and, the case of death. Unless there is something inherent defect the Court cannot substitute its .opinion to that of the doctor." In the case of State U, P. v. Shanker , their Lordships have been pleased to observe at Page 904 Dr. Bhuneshwar Pd. (PW 3) also, who had examined the child Jai Dev testified that the injuries found on the child had been caused with some sharp edged weapon including a "pharsa". The High Court was thus clearly in error on conjectural premises of the medical experts regarding the nature of the inflicting weapon.
In the case of Mange v. State of Havana , it has been observed by the Supreme Court in ...It is diffcult for any medical expert to give the exact duration of time when the rape was committed, more particularly when have the evidence of PW 4 as to the time and date of the occurrence, the medical evidence can hardly be relied upon to falsify the evidence of the eye-witness because the medical evidence is guided by various factors based on guess and certain calculation....
In the case of State of U. P. v. Krishna Gopal and Anr. , it has been observed in There might also be some justification for the grievance of the appellant that the High Court had preferred some observations m the medical evidence which Sri Prithviral characterised as merely conjectural answers to the other other categoric answers by the very medical witnesses themselves. Sri Prithviraj also submitted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eye-witnesses account which had to be tested independently and not reated as the 'variable' keeping the medical evidence as the 'constant'.
29. About the appreciation of the evidence of eye-witness in the light of the medical opinion, the Supreme Court has been holding throughout that the value of medical evidence is only corroborative to the substantive eye-witness account and it gives out only this much that the injuries may have been caused in manner alleged. It is based only on hypothesis, theories and calculations and so opinion and not positive evidence. Medical evidence is not the sole touchstone for discarding the substantive, positive and direct eye-witness account. But when the medical opinion completely rules out the possibility of the direct evidence accounts then it can be considered effectively to rely or not the oral version of the witness. So each case has to be looked into in its own perspective. In the case of Sohanki Chimmanbhai Ukabhai v. The State of Gujarat , their Lordships of the Supreme Court observed at Page 437 Oridinarily the value of medical evidence is only corroborative. It appears that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibily have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless however the medical evidence in its turn goes so far as to completely rule out all possibilities whatsover of injuries taking place in the manner alleged by the eye-witnesses, the testimony of eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.
In the case of State of U. P. v. Krishna Gopal (supra), their Lordships held at Page 2160 It is trite that where the eye-witnesses' account is found credible and trustworthy, medical opinion pointing to the alternative possibles, is not accepted as conclusive. Witnesses, as Benthan said, are the eyes and ears of the justice. Hence importance and primacy of the quality of the trial process. Eye-witness' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility.
In the case of Gurmej Singh and Ors. v. State of Punjab 1992 Cr LJ 293, it has been contended by the learned Counsel for the appellents that when a witness deposes about the use of a particular weapon there is no warrant for supposing that a blunt side of weapon was used by the assailant and in support of this contention he referred to two decisions namely, Hallu v. State of Madhya Pradesh. (1974) 4 SCC 30) and Nachhatra Singh v. State of Punjab , their Lordships of the Supreme Court did not see merits in the contention for the simple reason that the prosecution witnesses have categorically stated that Gyan Singh had used blunt side of garasi and so there was no room for plea that the sharp side of weapon, which would be normally used, had, in fact, been used and that the observations in the said judgments do not lay down to the contrary and, in fact in the first case it has been said that when the prosecution witnesses have clarified the position, their evidence would prevail and not the normal inference. It was also urged that the prosecution had not tried to elicit the opinion of doctor on the question whether abrasion was possible by a garasi as said by the Supreme Court in the case of Kartar v. State of U. P. and Ishwar Singh v. State of U. P. , their Lordships considering the contention held:
PW 1 clearly stated in his examination-in-chief that injury Nos. 2, 3 and 4 were caused by a blunt weapon. It is true that be was not specifically/asked if the chest injury could have been caused by blunt side of garasi. It cannot be gainsaid that the prosecution must endeavour to elicit the opinion of medical man where a particular injury is possible by the weapon with which it is alleged to have been caused by showing the weapon to the witnesses. In fact presiding officer should himself have elicited the opinion. However, in this case it should not make much difference because the evidence of PWs 2 and 3 acceptable and is corroborated by the first information report as well as PW 4 if the medical witness had also so opined it would have lent further corroboration. But the omission to elicit his opinion cannot render the direct testimony of PWs 2 and 3 doubtful or weak. We do not see any merit in the submission.
Here, as seen earlier, all the witnesses are one in saying that bhala had been used. The first information report also mentions the same. In the post-mortem report the doctor has said about the use of the bhala. The injuries are cut injuries and incised wound and can also be caused knife, cleavar, spear and razor. Simply because of the opinion of the doctor the Court below extracautiously took the view that there was no use bhala although the direct evidence is clear and categorical in this behalf and medical evidence also does not rule out the use of bhala. So the order of acquittal of the accused was not proper. But this Court while judging the case of other appellants is not goting to interfere with the order of acquittal. But this much can be said that the bhala had been used by the acquitted accused and they had participated in the offence and so on account of their participation there was an unlawful assembly and the accused could have been convicted under Section 302 read with. Section 149, I.P.C. as they were members of unlawful assembly whose common object was to assault and they had taken part in the offence. Even if the finding of the acquittal is not disturbed, the conviction of the appellants under Section 302 read with Section 34, I.P.C. is maintainable, as appellants had also common intention of killing the deceased and they have participated in the offence. Shri Bhagwan and Sudarshan are said to have fired from the country made weapon. Appellant Basudeo, who is reported to be dead during the pendency of the appeal had used pharsa. This is a clear proof of their common intention to cause death. In the case of Gupteshwar Nath OJha and Anr. v. State of Bihar A.I.R. 1988 SC 1649, their Lordships have been pleased to observe ...It is no doubt true that in a case like this, if the facts are not suffcient for a conviction with the aid of Section 149, the conviction can be maintained with the aid of Section 34 and, therefore the case of the appellants can be considered in that light as welll...
30. It has been contended on behalf of the appellants that Shri Bhawan and Sudarshan Singh are said to have used countrymade guns and firing is said to have been assigned to them but injury Nos. 9 and 10 on the-deceased how being entry and exit wounds and so on account of single shot and therefore it cannot be said as to who alone was responsible for these. As to this contention, no doubt, the post-mortem report shows that injuries No. 9 and 10 being entry and exit wounds caused by one single shot. In the first information report Krishnawati Kumari is clear in saying that both the appellants Shri Bhagwn and Sudarshan fired at her father who fell down, and then pharsa blow was given by Basudeo and bhata blows by Bikrama Singh and Krishnan dan Singh. In her statement before the Court also she has said that both the appellants came armed with counry made guns and both fired from their weapons at her deceased father. PW 1 Ramawati also says that she heard gun fire and when she reached there her sister gave out to her that Shri Bhagwan and Sudershan bad fired from their guns and injured her father. PW 2 also says about the hearing of gun fire and upon reaching there disclosure to him by his niece about the firing. PW 3 Harekrishna Rai also says that When he reached the spot hearing gun fire he found the two appellants standing with country made guns and that the informants had given out about firing by both the appellants PW 5 Kesho Singh says about two gun fires and when he proceeded ten steps from the house of the carpenter towards south, he saw the accused including the two appellants with guns running away towards south and that on reaching the spot there was disclosure to him also by the informant; Thus from all this evidence it is made out that the firings by the two appellants had been deposed by ail the witnesses and the firing had been seen by the informant herself and so she gave out in the first information report and also there was immediate disclosure by the informant to the witnesses and the witnesses also had heard two gun fires so it is established that there were two gun filings. Though medical evidence establishes two injuries ; being entry and exit wounds which will he one wound caused by one fire, yet that will not make any difference because the firing had been done by both the appellants and possibility of a fire missing the target cannot be ruled out. In the case of Kumar Bahadur and Ors. v. State of Uttar Pradesh A.I.R. 1979 (SC) 1509, it has been observed ...Secondly, that this appellant was also armed with a gun and there is consistent-evidence of the eye-witnesses that all the three guns were fired though only one fire hit Natuh. The mere fact that only one person was hit by the gun cannot exclude the possibility of the other guns having because it may be that even though the other guns were also fired their bullets did-not hit anybody....
Therefore, ' on account of the two shots having been fired and one having misled and the other causing entry any exist wounds, it could not be said that the two appellants have not participated when the evidence of all the eye-witnesses is quite uniform and categorical in this behalf that both the accused had fire.
31. It Is also, borne out that in furtherance of, the common intention of all the overtact of the appellants is there, their physical presence is there. Their actual participation in the offence is there. Had there not been two firings and had there been only one firing then the overtact of one of them was doubtful Both of them by their actual firing are the co-participants in the actual commission of the crime and their conscience was to commit the murder and both of them' did their part by firing, though it was accidental that one of the shots missed and the other bit. In the case of Ramaswami Ayyangar and Ors. v. State of Tamil Nadu .it has been observed at ...Section 34 is to be read along with the preceding Section 33 which makes it clear that the 'act' spoken of in Section 34 includes a series of acts as a single act. It follows that the words 'when a criminal act is done by several persons' in Section 34, may be construed to mean 'when criminal acts are done by several persons/ The acts committed by different confederates in the criminal action may be different but all roust in one way or the other participate and engage in the criminal enterprise, for instance, one may only stand guard to prevent any person coming to the relief of the victim or to otherwise facilitate the execution of the common design. Such a person also commits an 'act' as such as his co-participants actually committing the planned crime. In the case of an offence involving physical violence, however, it is essential for the application of Section 34 that the person who instigates of aids the commission of the crime must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the excution of the common, design, is itself tantamount to actual participation in the "criminal act". The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. In the case before us A-2 obviously, was acting in concert with A-3 and A-4 in causing the murder of the deceased, when he prevented PW 1 from going to the relief of the deceased. Section 34 was therefore fully attracted and under the circumstances A-2 was equally responsible for the murder of the deceased....
In the case of Rambilas Singh and Ors. v. State of Bihar , it has been said at page 1596 ...It is true that in order to convict persons vicariously under Section 34 or Section 149, I. P..C. It is not necessary to prove that each and every, one of them had indulged in overt acts. Even so, there must be material to show that the overt act or acts of one or more of the accused was or were done furtherance of the common intention of all the accused or in prosecution of the common object of the members of the unlawful assembly....
32. Learned Counsel for the appellants has also urged that in this case Section 34 of the I.P.C will not apply, but Section 38, 1.P.C comes into play, as intention was only to harm and not to kill as Basudeo deceased has given a calf to assault and pharsa blow had been used and firing bad been done and so to these circumstances the case comes under the clutches of Section 304, I.P.C., Part II and not under Section 302, I P. C. As to this contention, the evidence Has been appreciated earlier that the accused had come on the spot armed with the weapons and on the call of Basudeo firing had been done. Basudeo also gave pharsa blow. Shri Bhagwan and Sudershan tired and acquitted accused Bikrama Singh and Krishnandan Singh gave bhala blows. Learned Counsel for the appellant has referred to some of the decisions, namely, the case of Baul and Anr. v. State of V. P. , it has been observed by their Lordships at Page 730 in para:
No doubt the original prosecution case showed that Sadhai and Ramdeo both hit the deceased on the head with their lathies. One is tempted to divide the two fatal injuries between the two assailants and to hold that one each was caused by them. If there was common intention established in the case the prosecution wou'd not have been required to prove which of the injuries was cause by which assailant. But when common intention is not prove I the prosecution must establish the exact nature of the injury caused by each accused and more so in this case when one of the accuse-has got the benefit of the doubt and has been acquitted. It cannot, therefore, be postulated that Sadhai alone caused all the injuries on the head of the deceased. Ones that position arises the doubt remains as to whether the injuries caused by Sadhai were of the character which will bring his case within Section 302. It may be that the effect of the first blow became more prominent because another blow landing immediately after it caused more fractures to the skull than the first blow had caused. These doubts prompt us to give the benefit of doubt to Sadhai. We think that his conviction can be safely rested under Section 325 of the Indian Penal Code, but it is difficult to hold in a case of this type that his guilt amounts to murder simpliciter because he must be held responsible for the injuries that were caused to the deceased. We convict him instead of Section 302 for an offence under Section 325, Indian Penal Code and set aside the sentence of imprisonment for life and instead sentence him to rigorous imprisonment for seven year.
However, later, their Lordships in the case of Shobran Singh v. State of U.P. 1570 UJ (SC) 328, have been pleased to observe at page 331 There is no evidence to show that the shot fired by the appellant hit the deceased and his shot was one of the two which had missed the target. Even ass uming that his shot hit the deceased it is impossible to say which of the three wounds of entry could be attributed to him. The o union of Dr. Mishra was not that each of the three injuries was sufficient in the ordinary course of nature to cause death. Indeed it could not be because one of them was at the thigh apart and vital. His opinion was that the injury found by him was sufficient to cause death, which clear means that they were cumulatively not individually sufficient in the ordinary course of nature to cause death. The result is that the appellant could have been convicted under Section 302 read with Section 34 and not Section 302 impliciter.
In the case of Ninal Raoji Baudha and Anr. v. State of Maharashtra , it has been held at page 1541 in ...As has been shown, ther was no reliable evidence on the record to prove whether the fatal blow on the head was caused by Ninaji or Raoji. The other blows did not fall on any vital part of the body and in the absence of evidence to establish that their common. intention was to cause doth, it appears that the appellant had the common intention of causing grievous injury with the lathi and the 'kunti' They could therefore be convicted of an offence under Section 34, I.P.C. and not Section 302 read with Section 34.
33. The Supreme Court in the case of Afrahim Sheikh and Ors. v. State of West Bengal , has dealt with the application of Sections 34 and 38 in the following words at page 1263 in (6) Section 34 is a part of a group of sections, of which some other sections may also be seen. Section 35 is as follows:
Whenever an act, which is criminal only by person of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joints in the act with such knowledge or intention is liable for the act in the same as if the act were done by him alone with that knowledge or intention'.
In this section also the responsibility is shared by each offender individually if the act which is criminal only by reason of certain criminal knowledge or intention is done by each person sharing that knowledge or intention. Indeed, this section also was applicable here. Under Section 37, 'when an offence is committed by means of several acts, whoever intentionally co-operative in the commission of that offence by doing any one of those acts, either single by jointly with any other persons, commits that offence.' By co-operating in the doing of several acts which together constituted a single criminal act, each person who co-operates in the commission of that offence by doing any one of the acts is either singly or jointly liable for that offence. Section 38 then provides : 'Where several persons are engaged or concerned in the commission of a criminal act, they may be guilty of different offences by means of that act'.
That is to say, even though several persons may do a single criminal act, the responsibility may vary according to the degree of their participation. The illustration which is given clearly brings out that point.
(7) Viewing these sections in this manner, it is obvious that two sec-tions in this group deal with individual responsibility for a single criminal act perpetrated by a large number of persons who either share a common intention or possess the criminal knowledge (Sections 34 and 35) and the third with co-operation between several accused in the completion of the criminal act (Section 37). Lastly Section 38 provides that the responsibility for the completed criminal act may be of different grades according to the share taken by the different accused in the completion of the criminal act, and this section does not mention anything about intention common or otherwise or knowledge.
(8) Section 34, when it speaks of a criminal act done by several persons in furtherance of the common intention of all, regard not to the offence as a whole but to the criminal act, that is to say, the totality of the series of acts which result in the offence. In the case of a person assaulted by many accused, the criminal act is the offence which finally results, though the achievement of that criminal act may be the result of action of several persons. No doubt, a person is only responsible ordinarily for what he does and Section 38 ensures that, but the law in Section 34 (and also Section 35) says that if the criminal act is the result of a common intention, then every person who did the criminal act with the common intention would be responsible for the total offence irrespective of the share which he had in its perpetration. In Barendra Kumar Ghos's case ILR 52 Cal 197 : A.I.R. 1925 PC 1, the Judicial Committee observed Section 34, I.P.C. deals with the doing of separate acts, similar or diverse, by several persons ; if all are done in furtherance of a common intention, each person is liable for the result of them all as if he had done them himself. That act and then again it' in the latter part of the section must include the whole of the action covered by the criminal act in the first part of the section:
(9) Provided there is common intention, the whole of the result perpertrated by several offenders, is attributable to each offender, notwithstanding that individually they may have done separate acts, diverse or similar....
Against the Supreme Court in the case of Bhaba Nanda Sarma and Ors. v. The State of Assam baa observed at, page 2254 in To attract the application of Section 34 it must be established beyond any shadow of doubt that the criminal act was done by several persons in furtherance of the common intention of all. In other words, the prosecution must prove facts to justify an inference that all the participants of the act bad shared "a common intention to commit the criminal act which was finally committed by one or more of the participants, Section ii of the Penal Code says:
Where several persons are engaged or concerned in the commission of a criminal fact, they may be guilty of different offences by means of that act'.
In Afrahim Sheikh v. State of West Bengal , Hidyatullah, J. as he then was, has pointed out that it was possible to apply the ingredients of Section 34 in relation to the commission of an offence under Section 304, Part II, even though death is caused with the knowledge of the persons participating in the occurrence that by their act death was likely to be caused. The sharing of the common intention, as pointed out in that case, is the commssion of the act by which death was occasioned. With reference to Section 38, the learned judge observed at page 178 of SCR ; at page 1267 of A.I.R.:
That is to say, even though seversal persons may do a single criminal act, the responsibility may vary according to the degree of their participation. The illustration which is given dearly brings out that point.
.. ... ...
Lastly, Section 38 provides that the responsibility for the completed criminal act may be of different grades according to the share taken by the different accused in the completion of the criminal act, and this section does not mention anything about intention common or otherwise or knowledge.
But on the evidence seen earlier it is well made out that all the appellants came together, assaulted the deceased with their weapons and the deceased received the injuries, although he was unarmed and he had not caused any provocation nor had done anything for the reward of death. The injuries given by the appellants. including the two acquitted accused are well made out and the evidence of the eyewitness is quite cogent and clear that they had used their arms and the medical evidence also corroborates the same. So it all makes out that there was common intention of the appellants and the acquitted accused to kill the deceased. in these circumstances, Section 34 is fully applicable to this, case, and there is no question of application of other sections of the group.
34. Learned Counsel for the appellants has also urged that this case has beek supervised by the higher police officers and the supervision note has been prepared and on the , basis of the supervision note when cross-examination was being done objections were raised and the Court specifically directed the Additional P. P. vide order-sheet dated 18-3-1982 to produce the supervision note of the S. P. and the Dy. S. P., yet the same was not produced and so prejudice has been caused to the appellants. As to this contention, no doubt, order-sheet dated 18-3-1982 shows that the supervision notes were with the accused and they were cross-examining the witness from the same and so the Additional P. P. was directed to get the superivision note from the S. P. and the Dy, S. P. and keep on record for the perusal of the court and 19-3-1982 was fixed as next date. Section 172, Cr.JP. C. deals with the "diary of proceedings in investigation" and it reads as follows:
172. (1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.
(2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.
(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of Section 161 or Section 145, as the case may be, of the Indian Evidence Act, 1872, shall apply.
Section 36 of the Cr, P. C. reads as follows:
Powers of superior officers of Police.-Police officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station.
Paragraph No. 48 of the Police Manual deals wit supervision notes, submission of the case diary by superior officer. Paragraph 43(d) "Supervision notes: All officers supervising a case shall prepare daily a note of their supervision in triplicate in Police Manual Form No. 2, mentioning the fact in their personal or tour diaries, as the case may be. One copy of the form shall he sent to the Superintendent through proper channel which, after necessary action being taken will be kept with the file of the case. The second copy will be Sept by the officer who writes the form and the third, copy in the police station. These forms shall not at first form part of the case diaries but shall be filed with them on the conclusion of the case.
Test notes on completed investigations shall be made on plain paper in triplicate, the fact that this has been done being mentions in the tour or personal diaries, as the case may be. They shall also be disposed of in the same way as supervision notes.
(e) Submission of case diary by superior officerss-When a superior officer undertakes the conduct of an investigation under Chapter XII, Cr. P. C, he shall submit a case diary under Section 172, Cr. P. C. instead of the note prescribed above, " Paragraph 49 also deals with the share of the Superintendent in investigation' "The duties of Superintendents are not confined to office work, inspection and general supervision, but they are expected to take a share in the actual investigation of important crime. They shall take the investigation out of the hands of their subordinates only in exceptional circumstances, but they shall by frequent local enquiry and careful scrutiny of case records, both at the time of investigation and subsequently, satisfy themselves that the proceedings are honest and energetic, that the public are properly treated and that no important line of enquiry has been shirked or overlooked. In particular they shall supervise the investigation of cases enumerated in Appendix 3, all cases presenting difficulty and all cases in which the conduct of the subordinate police is in any way unsatisfactory by going to the spot at all stages of the investigation, whenver possibly, without undo detriment to touring, inspection or other important work." From these provisions it is made out that every police officer during the invesigation shall make day-to-day entry of the proceedings of the investigation in a diary giving out the time by which the information reached him, the time at which he closed the investigation, the place he visited and the statement of the circumstances ascertained through the investigation. This case diary can be called for by the Court during inquiry or trial and the Court may use such diary to aid and such enquiry or trial to Know as an evidence in the case. Further neither the accused nor his agent shall be entitled to call for such diary nor shall he or they have any right to see other material because they are ferred (sic) to by Court and if they are used by the police officers who made them to refresh their memory or the Court uses them for the purpose of contradicting the such police officer, the provisions of Section 161 or Section 145 of the Evidence Act, as the case may be, shall apply. After completion of the investigation, as provided under Section 173, the investigating officer shall forward to a Magistrate empowered to take cognizance of the offence, though police report in the form prescribed by the State Government and in the manner of prescribed section. During the course of the investigation the police officers superior in rank to the officer incharge of the police station may exercise the same power throughout the local area as may be exercised by such officer within the limits of his station. The officers supervising the case shall prepare a daily note of the supervision in triplicate in Police Manual Form No. 2 mentioning the fact in their proceeding or tour diaries, as the case may be. One copy of the form shall be sent to the S. P. through proper channel which after necessary action being taken will be kept with the file of the case and the second copy will be kept by the officer who writes the form and the third copy in the police station. These forms shall not at first form part of the case diary but shall be filed with them on the conclusion of the case. Further when a superior officer undertakes to conduct an investigation under Chapter XII, Cr. P. C. he shall submit the case diary under Section 172, Cr. P. C. in respect of the note prescribed above. The S. Ps. are also expected to take a share in the actual investigation of important crime and they shall take the investigation out of the hands of their subordinates only in exceptional circumstances. But they shall by frequent local enquiry and careful scrutiny of the case records, both at the time of investigation and subsequently satisfying themselves that the proceedings are honest and energetic and that the public are properly treated and that another line of enquiry has been shirked or overlooked. In particular, they shall supervise the investigation of cases enumerated in Appedix 3 of the Police Manual, all cases presenting difficulty and all cases in which the conduct of the subordinate police is in any way unsatisfactory, by going to the spot at all stages of the investigation whenever possible.
35. The Courts have been holding throughout about the use of the case diary. In the case of Habeeb Mohammad v. State of Hyderabad , the Supreme Court has said in para 13 at Page 60 as follows It seems to us that the learned Judge was in error in making use of the police diaries at all in his judgment and in seeking confirmation of his opinion on the question of appreciation of evidence from statements contained in those diaries. The only proper use he could make of these diaries was the one allowed by Section 172, Cr. P. C. i. e., during the trial he could get assistance from them by suggesting means of further elucidating points which needed clearing up and which might be material for the purpose of doing justice between the State and the accused.
A Full Bench in the case of State of Karala v. Ammint and Ors. 1988 Cr LJ 107, has observed at page 122 in para 57:
...The diary mentioned in Section 172 (1) and the statements recorded under Section 161 (3) of the Code and obviously different. Statements recorded under Section 161 (3) are covered by the sweep of inhibition contained in Section 162 of the Code. The prohibition imposed in Section 162 cannot be circumvented by resort to Section 172 (2) of the Code. The two are different records, though the statements recorded under Section 161 (3) and the diary envisaged in Section 172 may together be incorporated in the same file which police call 'Case Diary File', for the sake of convenience . That apart, Section 172 (2) itself embodies an inhibition that the diary envisaged in that section is not to be used as evidence in the case. That only use of the diary is "to aid" the Court in the trial, to ascertain the time at which the investigation was begun and closed on each day, the places visited by the officer, and the circumstances ascertained through investigation, it is not a substitute for evidence in the case for the purpose of making a comparison with the testimonies of witnesses or judicial dying declarations or judicial confessions. The Sessions Judge by adopting the above method had committed an illegality.
A Division Bench of this Court in the case of Brahmdeo Hazra and Ors. v. State of Bihar 1988 Cr LJ 734, has observed at page 737 in ...The use of the police diary cannot go beyond the legitimate limits provided under Section 172 of the CrPC. The Court cannot take out facts from the police diary as material evidence to arrive at any finding. In absence of any proof, the police diary can never be taken as evidence. If a court discovers any material in the diary or any matter which may be important for a just decision of a case, then it is open for a court to call for necessary material evidence and document and to have the same legally proved in evidence. It is not open for a court to read the diary and to take out a few facts and the statements made in it as evidence and to use it to come to a finding. In any case the entries in a diary are in the shape of secondary evidence and cannot be used either as substantive or corroborative evidence in a case and even the objective findings or circumstances entered in the diary cannot be used unless they are legally admissible and proved by the witnesses recording the same. In the instant case, we find that grave error has been committed by the Court below in using the extract from the diary as substantive evidence to a great prejudice to the accused. The Court could have asked the parties concerned to bring such fact in the evidence by legal proof, if so found and elucidated in diary, and in absence thereof, it was wrong for the court to accept and use the same in evidence in support of its judgment of conviction recorded against the accused on trial.
In the case of Millet at Singh v. State of Punjab 1992 East CrC 98, their Lordships of the Supreme Court have observed at page 106 in para 11:
It is manifest from its bare reading without speaking to detail and critical analysis that the case diary is only record of day-to-day . investigation of the investigating officer to ascertain the statement of circumsances ascertained through the investigation. Under Sub-section (2) the Court is entitiled at the trial or enquiry to use the case diary not as evidence in the case but as to and it to in the enquiry or trial. Neither the accused nor his agent by operation of Sub-section (3) shall be entitled to call the case diary nor shall he be entitled to use as evidence merely because the Court refer to it. Only right given therein is that if police officer, who made the entries in the diaries uses it to refresh his memory and if the Court uses it for the purpose of contradicting such witness, by operation of Section 161 of the Code and Section 145 of the Evidence Act, it shall be used for the purpose of contradicting the witnesses that is investigating officer or to explain it in re-examination by the prosecution with the permission of the Court. It is, therefore, clear that unless the investigating officer or the Court uses it either to refresh the memory or contrading the investigating officer as his previous statement under Section 161 that too after drawitng his attention thereto as is enjoined under Section 145 of the Evidence Act. The entries cannot be used by the accused as the accused as evidence. Neither PW 6, or PW 6 nor the Court used the case diary. Therefore, the very use thereof for contradicting the prosecution evidence is absolutely illegal and it is inadmissible in evidence. Thereby the defence cannot place reliance thereon. But even if we were to consider the same as admissible that part of the evidence does not impugne upon the prosecution evidence.
In the case of Mukund Lal v. Union of India and Anr. , their Lordships have held at page 146 in ...The Legislature has reposed complete trust in the Court which is conducting the inquiry or the trial. It had empowered the Court to call for any such relevant case diary, If there is any inconsistency or contradiction arising in the context of the case diary the Court can use the entries for the purpose of contradicting the Police Officer as provided in Sub-section (3) of Section 172 of the Cr. P.C. Ultimately there can be no better custodian or guardian of the interest of justice than the court trying the case. No court will deny to itself the power to make use of the entries in the diary to the advantage of the accused by contradicting the police officer with reference to the contents of the diaries. In view of this safeguard, the charge of unreasonableness, or arbitrariness cannot stand scrutiny. The petitioners claim an unfettered right to make roving inspection of the entries in the case diary regardless of whether these entries are used by the police officer concerned to refresh his memory or regardless of the fact whether the Court has used these entries for purpose of contradicting such police officer. It cannot be said that unless such unfettered right is conferred and recognised, the embargo engrafted in Sub-section (3) of Section 172 of the Cr. P. C. would fail to meet the test of reasonableness. For instance in the case diary there might be a note as regards the identity of the informant who gave some information which resulted h investigation into a particular aspect. Public interest demands that such entry is not made available to the accused for it might endanger the safety of the informants and it might deter the informants from giving any information to assist the investigating agency, as observed in Mohinder Singh v. Emperor A.I.R. 1932 Lahore 103 (104):
The accused has no right to insist upon a police witness referring to his diary in order to elicit information which is privileged. The contents of the diary are not at the disposal of the defence and cannot be used except strictly in accordance with the provisions of Sections 162 and 172. Section 172 shows that witness may refresh his memory by reference to them but such use is at the discretion of the witness and the Judge, whose duty it is to ensure that the privilege attaching to them by statute is strictly enforced.
and also as observed in Mahabirji Birajman Mandir v. Prem Narain Shukla :
The case diary contains not only the statements of witnesses recorded under Section 161, Cr. P.G. and the site plan or other documents prepared by the Investigating Officer, , but also reports or observations of the Investigation officer or his superiors. These reports are of a confidential nature and privilege can be claimed thereof Further, the disclosure of the contents of such reports cannot help any of the parties to the litigation, as the report invariably contains the opinion of such officers and their opinion is inadmissible in evidence.
36. Thus, the supervision notes of the superior officers or the reports or observations of the investigating officer or his superior are only opinions and these opinions are not admissible in evidence. The supervision notes do form part of case diary and ate to be filed on the conclusion of the case and if at all the supervising officer undertakes investigation under Chapter XII of Cr. P.C, he will have to submit a case diary under Section 172, Cr. P, C. instead of note prescribed. There is no provision that a copy of the case diary, who to say of supervision note, should be given. Section 207 provides for police report, first information report under Section 154, Cr. P.C. and the statement recorded under Sub-section (3) of Section 161 of the persons whom the prosecution proposes to examine as its witnesses excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer, Sub-section (6) of Section 173 confines and statements, if any, recorded under Section 164 and any other document or relevant extract therefrom forwarded to the Magistrate with the police report under Section 173(5). So supervision note is neither submitted under Section 172 nor forms part of the case diary but being an opinion cannot be given to an accused. How in the present case the supervision note was received by the counsel for the accused who cross-examined the witnesses on the basis thereof is not known. But the Court directed the A. P. P. to obtain the supervision note from the S. P. and Dy. S. P. office. When the report of the S. P. or the Dy. S. P. is not forming part of the case diary and when the police officer has not sent supervision report along with his report under Section 173 then how could the supervision note could be used. There is no such provision for the use of the supervision note. As such, the non-production of the supervision note cannot be said to have caused prejudice to the appelants and the contention is not made out.
37. Thus considering the entire material on the record it is well made out that the order of conviction recorded by the trial Court against the appellants 1 and 2 (the appeal of appellant No. 3 has abated on account of his death) does not suffer from any infirmity. We do not say about appellant No. 3 whose appeal has abated. So this appeal is liable to be dismissed and is accordingly dismissed.
Lok Nath Prasad, J.
38. I agree.