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PATTANAIK,J.

The two appellants, Rajendra Singh and Triloki Singh have assailed their conviction and sentence passed by the First Additional Sessions Judge, Saran in Sessions Trial No. 189 of 1981, which has been upheld in Appeal by the High Court of Patna in Criminal Appeal No. 146 of 1985. Before the learned Trial Judge in all there were nine accused persons but six of them were acquitted and only two appellants alongwith one Prabhunath Singh were convicted but said Prabhunath died during the pendency of appeal in the High Court, and as such, there are two appellants in this Court. The prosecution case in nutshell is; that on 4th July, 1977 an incident occurred in village Jaidpur Tola Pilui in the district of Saran and one Kameshwar Singh was murdered. Satyanarain PW 8 gave the First Information Report at 6.00 p.m. at Sadar Hospital, Chapra where he was lying injured, alleging therein that at 11.45 a.m. while the informant was getting his field ploughed by a tractor which he had hired from PW 5 these appellants and others came and asked the informant party not to plough the field but when the informant protested he was abused and then accused no. 1 assaulted him by means of Bhala on his abdomen whereas accused no. 2 assaulted him on his chest. Deceased Kameshwar who was the nephew of the informant was assaulted by accused no. 1 in his abdomen and thereafter all the accused persons assaulted him. The prosecution also further alleged that brother of the informant Banwari Singh had also been assaulted by accused nos. 7, 1 and 2 and the acquitted persons assaulted him by means of lathi. It is also the further case of the prosecution that PW 7 who is the nephew of the informant had also been assaulted. On the basis of the aforesaid First Information Report Sub Inspector of Police PW 9 registered a case and started investigation. The Investigating Officer went to the village and held the inquest over the dead body at 9.45 p.m. and prepared an Inquest Report Exhibit 7. The dead body was sent for autopsy which was conducted by doctor PW 3. The said doctor had also examined the injuries on the person of the informant on the requisition of the Investigating Officer. Finally Chargesheet was submitted as against 9 accused persons, as already stated, against Rajender Singh, Prabhunath Singh and Triloki under Section 302 for the murder of Kameshwar and against all the nine accused persons including the six acquitted under Section 302/149 for being members of an unlawful assembly in prosecution of the common object of which assembly Rajender and others assaulted the deceased and then murdered. Rajender Singh and Prabhunath Singh were further charged under Section 307 and there were charges under Section 148 and 147 and also under Sections 324 and 323 of Indian Penal Code. From the evidence of doctor- PW 3 who conducted the postmortem on the dead body of Kameshwar it is crystal clear that the death was homicidal and the said conclusion of the learned Sessions Judge has been affirmed by the High Court in appeal and had not been assailed before us. To bring home the charges against the accused persons the prosecution relied upon four eye witnesses, namely, PWs 2, 4, 7 and 8. The defence also examined the Magistrate as DW 1 who is alleged to have recorded the statement of informant PW 8 at the hospital on the date of occurrence while he was lying in injured condition. The said statement has been marked as Exhibit B. From the cross-examination of the prosecution witnesses, the defence case appears to be that the occurrence in fact took place on Plot No. 4514 belonging to the accused lying contiguous south of plot no. 4513 while the accused persons were on their field and, therefore, it is the prosecution party who are the aggressors and the accused persons are entitled to right of private defence of property as well as person. On a thorough analysis of the entire evidence on record the learned Sessions Judge came to the conclusion that the occurrence took place on plot no. 4513 which admittedly belongs to the informant and, therefore, the plea of the accused that they were exercising their right of private defence of property as well as person on their land is not acceptable. This conclusion of the learned Sessions Judge has been re- affirmed in appeal by the High Court and Mr. P.S.Mishra, learned senior counsel appearing for the appellants also fairly did not assail the same. The learned Sessions Judge convicted the appellants on the basis of the ocular evidence of four eye witnesses, namely, PWs. 2, 4, 7 and 8 of whom PWs 7 and 8 had been injured. He had also relied upon the evidence of the doctor-PW3 who was posted at Sadar Hospital, Chapra and who had conducted the autopsy on the dead body of deceased Kameshwar and had submitted the postmortem report Exhibit 2 and who had also examined the injured persons. The Sessions Judge convicted the appellants under Section 302/34 IPC and sentenced them to imprisonment for life. They were also convicted by the Sessions Judge under Section 307 and sentenced to imprisonment for 7 years and for their conviction under Section 324 they were sentenced to undergo RI for one year. The High Court in appeal has affirmed the conviction and sentence of the appellants on all three counts. It may be stated at this stage that since 9 accused persons stood their trial facing a charge under Section 302/149 IPC the Sessions Judge disicussed the evidence of the prosecution witness, more particularly, PWs 2 and 7 and came to the conclusion that at no point of time five accused persons had come together and, therefore, the necessary ingredients for formation of unlawful assembly having the common object to cause murder of Kameshwar is not satisfied. Consequently the question of constructive liability of all the accused persons does not arise. It also positively found that it is only Rajendernath, Prabhunath and Triloki who had made overt act by assaulting the deceased. According to the doctor PW3 the deceased had the following three antimortem injuries:

(iv) Even taking the prosecution case in toto accused Triloki cannot be held liable by attracting Section 34 in view of the fact that there is no material to indicate that Rajender assaulted the deceased in furtherance of common intention shared by him and Triloki.

Mr. B.B. Singh, learned counsel appearing for the State on the other hand contended, that in the facts and circumstances of the case non-explanation of injury on Rajender cannot be held to be fatal, more so, when the oral testimony of the four eye witnesses has been found to be trustworthy. He further contended that the former statement of Satyanarain has not been confronted to him while he was examined as PW 8, and therefore, the provisions of Section 145 of the Evidence Act has not been complied with, and in this view of the matter the said document cannot be relied upon. He has also contended that even in the said statement Rajender assaulted deceased Kameshwar with Bhala had been stated, and therefore, the entire prosecution case cannot be said to be a concocted one. According to Mr. Singh the very fact that accused persons went to their adjacent land brought out the weapon of offence and assaulted the deceased, would negate the contention of the defence that there was no pre-meditation. That apart, common intention developed at the spur of the moment when both Rajender and Triloki came armed and assaulted deceased and, therefore, the question of applicability of exception 4 to Section 300 does not arise.

So far the second contention of Mr. Mishra is concerned, it is no doubt true that on 4th July, 1977 Satyanarain who has been examined as PW-8 in course of trial had been examined by a Magistrate as he had been seriously injured and that statement has been exhibited as Exhibit-B and in fact the Magistrate who had recorded the statement has been examined by the defence as DW-1. This statement of Satyanarain recorded by the Magistrate may be a former statement by Satyanarain relating to the same fact at about a time when the fight took place and when said Satyanarain was examined as PW-8 during trial it would be open for a party to make use of the former statement for such purpose as the law provides. But if the witness during trial is intended to be contradicted by his former statement then his attention has to be drawn to those parts of the statement which are required to be used for the purpose of contradicting him before the said statement in question can be proved as provided under Section 145 of the Evidence Act. Mr. Mishra learned senior counsel appearing for the appellant relying upon the decision of this Court in Bhagwan Singh vs. The State of Punjab - (1952) Supreme Court Reports 812, contended before us that if there has been substantial compliance of Section 145 of the Evidence Act and if the necessary particulars of the former statement has been put to the witness in cross- examination then notwithstanding the fact that the provisions of Section 145 of the Evidence Act is not complied with in letter i.e. by not drawing the attention of the witness to that part of the former statement yet the statement could be utilised and the verasity of the witness could be impeached. According to Mr. Mishra the former statement of PW-8 which has been exhibited as Exhibit B was to the effect that Kameshwar was assaulted with Bhala by Rajender and Surender and he did not see whether any other person had been assaulted or not, whereas in course of trial the substantive evidence of the witness is that it is Rajender and Triloki who assaulted the deceased and, therefore, it belies the entire prosecution case. The question of contradicting evidence and the requirements of compliance of Section 145 of the Evidence Act has been considered by this Court in the Constitution Bench decision in the case of Tahsildar Singh and another vs. The State of Uttar Pradesh 1959 Supp. 2 Supreme Court Reports 875. The Court in the aforesaid case was examining the question as to when an omission in the former statement can be held to be a contradiction and it has also been indicated as to how a witness can be contradicted in respect of his former statement by drawing particular attention to that portion of the former statement. This question has been recently considered in the case of Binay Kumar Singh & Ors. Etc. etc. vs. State of Bihar - (1997) 1 Supreme Court Cases 283, and the Court has taken note of the earlier decision in Bhagwan Singh (Supra) and explained away the same with the observation that on the facts of that case there cannot be dispute with the proposition laid down therein. But in elaborating the second limb of Section 145 of the Evidence Act it was held that if it is intended to contradict him by the writing his attention must be called to those parts of it which are to be used for the purpose for contradicting him. It has been further held that if the witness disowns to have made any statement which is inconsistent with his present stand, his testimony in Court on that score would not be vitiated until the cross-examiner proceeds to comply with the procedure prescribed in the second limb of Section 145 of the Evidence Act. Bearing in mind the aforesaid proposition and on scrutinising the evidence of DW-1, we find that the Magistrate who is supposed to have exhibited the document in his cross- examination categorically admitted that neither any signature nor seal of either of the Chief Judicial Magistrate or of his office on the statement Exhibit B. If according to the Magistrate on recording the statement of Satyanarain he had sent the same to the Chief Judicial Magistrate, it is inconceivable as to how the document would not bear the signature nor seal of either of the Chief Judicial Magistrate or of his office. The Magistrate in his examination-in-chief also does not state as to who identified Satyanarain in the hospital before recording his statement. It is under these circumstances it is difficult to hold that Exhibit-B has been legally proved to be the former statement of Satyanarain who has been examined as PW-8. Then again on scrutiny of the evidence PW-8 it is crystal clear that the witness has not been confronted with that part of his alleged former statement which the defence want him to be contradicted. The witness has merely been asked as to whether he stated before the Magistrate that accused Surendra has assaulted Kameshwar to which he had replied he does not recall as to what he stated before the Magistrate. In this state of affairs it is difficult for us to hold that the provisions of Section 145 of the Evidence Act has been complied with in the case in hand. Then again, so far as accused Rajender is concerned, there has been no variance in his so-called former statement Exhibit B and his statement in the Court when he was examined as PW- 8 clearly asserting that Rajender assaulted the deceased Kameshwar by means of Bhala. In the aforesaid premises, we are unable to accept the second submission of Mr. Mishra and the same accordingly stands rejected.

The only contention that survives for our consideration is whether Triloki could be held liable by application of Section 34. From the injuries on the deceased as found by the doctor PW-3 it is crystal clear that the injury no. 1 was found to be sufficient to cause death in the ordinary course of nature and said injury is attributable to the assault given by accused Rajender on the chest of the deceased. So far as Triloki is concerned, as per the evidence of PW-2 he has given a blow on Satyanarain PW-8 and Banwari, the other injured who has not been examined and he had not inflicted any injury on the deceased. According to PW- 4 Triloki had given a blow on the leg of Kameshwar. According to PW-7 Kameshwar was assaulted by Rajender, Triloki and Prabhunath but he has not ascribed as to which accused assaulted which part of the body of the deceased and narration is one of general nature. So far as the evidence of injured PW-8 is concerned Triloki Singh hit Kameshwar on his leg. Leaving aside the contradiction amongst each other with regard to the assault by Triloki and taking into account the entire scenario it is difficult for us to hold that Triloki also shared the common intention with Rajender when Rajender gave a fatal blow on the deceased. It may be noticed at this stage that though the prosecution had made out the case that nine accused in all formed an unlawful assembly the common object of which assembly was to murder deceased Kameshwar but the learned Sessions Judge on appreciation of the evidence came to the conclusion that there had been no unlawful assembly nor there was any common object to cause assault or murder of deceased Kameshwar. From the evidence of PW-8 it is apparent that while he was on Plot No. 4513 Rajender Singh, Prabhu Nath and Ramdev reached near PW-8 and told him not to plough the field at that point of time the accused persons had no arms with them. It is further apparent that there was altercations between the prosecution party, more particularly PW-8 and the accused persons and that the accused persons picked up some weapon and assaulted Kameshwar as well as other persons injured. It is further established that in course of the occurrence accused Rajender sustained a grievous injury. The said evidence of PW-8 also indicates that Kameshwar himself was armed with a Farsa while Ramdeo Singh, Surender, Kishun Pandit and Rudal Singh were armed with lathis and when Rajender Singh gave a lalkara Prabhunath Jagnarain and Kishun Pandit assaulted PW-8. It is under these circumstances when Triloki Singh has been ascribed to given a blow on the leg of the deceased. It is difficult to hold that he also shared the common intention with Rajender for causing murder of the deceased which developed at the spur of the moment. In the case of Dukhmochan Pandey and others etc. vs. State of Bihar (1997) 8 Supreme Court Cases 405 , this Court has held that there lies a distinction between the common intention and similar intention and question whether there exists common intention in all the persons who made some overt act resulting in the death of some of the persons of other party is a question of fact and can be inferred only from the circumstances. This Court had held that the distinction between a common intention and the similar intention may be fine, but is nonetheless a real one and if overlooked, may lead to miscarriage of justice. Following the ratio in the aforesaid case and applying to the facts and circumstances of the present case, as unfolded through the eye witnesses, it is not possible for us to hold that Triloki also shared the common intention with accused Rajender and his conviction under Section 302/34 cannot be sustained. We accordingly set aside the same and instead convict him under Section 324 Indian Penal Code and sentence him to imprisonment for a period of two years.