1. By judgment and order, dated 30th November, 2006, passed, in Sessions Trial No. 89 of 1997, by the learned Additional Sessions Judge, Fast Track Court No. IV, Buxar, all the accused-appellants stand convicted under Sections 304(Part-II) and 341 read with Section 149 of the Indian Penal Code. By the impugned judgment and order, all the accused-appellants, except accused-appellant, Ram Bihari Yadav, also stand convicted under Sections 147 and 323 of the Indian Penal Code; whereas accused-appellant, Ram Bihari Yadav, has been convicted under Sections 148 and 324 of the Indian Penal Code. Following their conviction, as mentioned hereinbefore, under Section 304 (Part-II) read with Section 149 of the Indian Penal Code, all the accused-appellants have been sentenced to undergo rigorous imprisonment for a period of ten years each and to also undergo, for their conviction under Section 341 of the Indian Penal Code, simple imprisonment for a period of one month each. Following their conviction under Section 147 of the Indian Penal Code, all accused-appellants, except accused-appellant, Ram Bihari Yadav, have been further sentenced to suffer rigorous imprisonment for a period of two years each and to also suffer for, their conviction under Section 323 of the Indian Penal Code, rigorous imprisonment for one year each; whereas accused-appellant, Ram Bihari Yadav, has been sentenced, for his conviction under Section 148 of the Indian Penal Code and also under Section 324 of the Indian Penal Code, to suffer rigorous imprisonment for a period of three years on each count.
2. The case of the prosecution, as unfolded at the trial, may, in brief, be described as follows: (i) The houses of the accused persons, accused Awadh Bihari Singh (since deceased) and of their relatives are situated close to each other. Water from the outlet of the drain of the house of the said deceased used to flow over the land of the accused persons and fall into a ditch. The said outlet had been closed by the accused persons. Aggrieved by the fact that the blockade, created by the accused persons, had stopped the flow of the water from the house of Awadh Bihari Singh (since deceased), a petition had been filed by the said deceased before the Executive Magistracy seeking necessary directions to be issued to the accused persons to remove the blockade and allow the water to flow. The blockade of water, as described hereinbefore, had led to a serious dispute between the parties concerned. (ii) Consequent to the dispute, which had arisen between the parties concerned, all the accused persons, having formed an unlawful assembly, assaulted, on 14.05.1997, at about 10.30 A.M., Awadh Bihar Singh (since deceased). The members of the said assembly were armed by lathies and bhala (spear). Having seen the assault taking place on Awadh Bihari Singh, his sons, namely, Manoj Singh, Saroj Singh (P.W. 4) and his nephew, Lalan Singh (P.W. 3), went forward to save Awadh Bihari Singh. On the resistance, which was so offered, the members of the unlawful assembly assaulted Manoj Singh, Saroj Singh (P.W. 4) and Lalan Singh (P.W. 3), too, on different parts of their persons causing various injuries including an injury by bhala (spear) on the knee of Lalan Singh. Not only injured Awadh Bihari Singh, but all those, who had sustained injuries, were taken to Primary Health Centre, Brahmpur, where Dr. Raj Kishore Singh examined all the injured including injured Awadh Bihari Singh. (iii) On 14.05.1997, at about 3.00 P.M., a fardbeyan, with regard to the occurrence, was lodged, at Brahmpur Police Station, by Lalan Singh (P.W.3) alleging involvement of, amongst others, Jagdish Yadav and Ram Bihari Yadav, in the causing of assault on, and injury to, not only Awadh Bihari Singh, but also Manoj Singh, Saroj Singh and Lalan Singh himself. (iv) Based on the fardbeyan so alleged and treating the same as First Information Report (in short F.I.R.), Brahmpur P.S. Case No. 68 of 1997, under Sections 147/148/149/323/341/307 of the Indian Penal Code, was registered against the accused-appellants. (v) On being referred to Patna Medical College and Hospital (P.M.C.H.), Awadh Bihari Singh, who had been unconscious since after the assault on him had taken place, was carried to Patna Medical College and Hospital, Patna, where injured Awadh Bihari Singh was treated; but he succumbed to the injuries, on 15.05.1997, itself at about 5.00 P.M, while he was under treatment there. (vi) As injured Awadh Bihari Singh succumbed to his injuries on 15.05.1997, at about 5.00 P.M., Section 302 of the Indian Penal Code was added to the case, which had already been registered. During investigation, police visited the place of occurrence, held inquest over the dead-body of Awadh Bihari Singh, which was also subjected to post mortem examination, and, on completion of investigation, a charge sheet was laid under Sections 147/148/149/341/323 and 302 of the Indian Penal Code, against the present accused-appellants.
3. At the trial, charges were framed against all the accused under Sections 341 and 302 read with Section 149 of the Indian Penal Code. A separate charge was also framed against all the accused-appellants, except Ram Bihari Yadav, under Sections 147 and 323 of the Indian Penal Code. Yet another charge was framed against the accused-appellant, Ram Bihari Yadav under Sections 147 and 324 of the Indian Penal Code. All the accused-appellants pleaded not guilty to the respective charges so framed against them.
4. In support of their case, prosecution examined altogether 7 (seven) witnesses. The accused were, then, examined under Section 313(1) (b) of the Code of Criminal Procedure , their case being that of denial. The accused-appellants also alleged that they had been assaulted by the informant, the said deceased and others by forming an unlawful assembly and, in the process, several accused persons had sustained injuries and accused-appellant, Awadh Bihari Yadav, had, in particular, been seriously injured, because of one incised wound, which had been caused on his abdominal cavity, and that with regard to the occurrence, which had so taken place, a fardbeyan had been lodged at Brahmpur Police Station and, based thereon, Brahmpur P.S. Case No. 67 of 1997, under Sections 147/148/341/ 323/ 307 read with Section 149 of the Indian Penal Code, was registered against the informant, Lalan Singh (PW 3), the said deceased and others and that the case, so lodged against the informant, the said deceased and others, gave rise to Sessions Trial No. 36 of 1998, wherein some of the witnesses, such as, Lalan Singh (P.W.3) and Saroj Singh (P.W.4) stand convicted. No evidence was, however, adduced by the defence.
5. Having come to the conclusion that the present accused-appellants had been proved guilty of the offences as have been indicated above, learned trial Court has convicted them accordingly and passed sentences against them as have been mentioned above. Aggrieved by their conviction and the sentences, which have been passed against them, all the convicted persons have preferred this appeal.
6. At the same time, aggrieved by the fact that the accused-appellants herein have not been convicted under Section 302 of the Indian Penal Code and had not been adequately punished, the informant, Lalan Singh (P.W.3), has come to this Court with criminal revision, which has given rise to Criminal Revision No. 269 of 2007.
7. We have heard the appeal and the revision together inasmuch as the appeal as well as the revision are inextricably linked with each other.
8. While Mr. Akhileshwar Prasad Singh, learned Senior Counsel, has addressed this Court, on behalf of the appellants, in the appeal and also on behalf of the appellant-respondents in criminal revision, Mr. Surendra Kumar Singh, learned counsel, has addressed us on behalf of the revision petitioner. We have also heard Mr. Ashwini Kumar Sinha, learned Additional Public Prosecutor, on behalf of the State.
9. Before we come to the ocular evidence on record and determine the veracity of the evidence given by the witnesses, whom prosecution have examined as eyewitnesses, some of them being injured, we deem it appropriate to take notice of the medical evidence on record.
10. According to the evidence of Dr. Raj Kishore Singh (P.W.7), he had examined, on 14.05.1997, at Primary Health Centre, Brahmpur, Lalan Singh, Manoj Singh, Saroj Singh and Awadh Bihari Singh (since deceased) and found that Lalan Singh (P.W. 3), informant of the present case, had sustained following injury on his person:
œ(i)Penetrating wound 1/2? long left knee?.
11. In the opinion of the doctor (PW 7), the injury was simple in nature and caused by a sharp weapon. The injury report of Lalan Saingh (PW 3) stands proved as Exhibit-5.
12. The injuries, found on the person of Manoj Singh, were, according to the doctor (P.W.7), as follows:
œ(i) Abrasion 1/2?x1/2? on upper lip. (ii) Tenderness on left shoulder?
13. The above injuries, according to the doctor (P.W.7), were caused by hard and blunt weapon. The injury report of Manoj Singh, not examined as a witness at the trial, has been proved as Ext. 5/A.
14. So far as injured Saroj Kumar Singh was concerned, the injuries found, on his person, by the doctor (P.W.7)were as follows:
œ(i) Lacerated cut 2? x 1/5? x 1/3? on scalp.
(ii) Abrasion 3? x 1/2? on back below left scapula. (iii) Tenderness on right shoulder.?
15. The doctor (P.W.7) has deposed that the injuries, found on the person of Saroj Kumar Singh (P.W.4), were simple in nature and caused by hard blunt substance. The injury report of injured Suraj Kumar Singh stands proved as Ext. 5/C.
16. It is the further evidence of the doctor (P.W.7) that injury on the person of Lalan Singh might have been caused by a bhala (spear), but injuries on the remaining persons were caused by lathi.
17. Coming to the injuries, which had been found on the person of injured Awadh Bihari Singh (since deceased), we notice that the doctor (P.W.7) found as follows:
œ(i) Patient was unconscious.
(ii) Injury was apparent at scalp abrasion 2? x 1/4".
(iii) Swelling 2? x 2? on the back of neck. (iv) Swelling 2? x 1/2" on right thigh.?
18. The doctor (P.W.7) has deposed that the patient (injured Awadh Bihari Singh) had been referred to P.M.C.H., Patna, and his injury report has been proved as Ext-5/B.
19. The findings of the doctor with regard to the injuries, which had been found on the persons of Manoj, Saroj, Lalan and Awadh (since deceased), state of their health and the nature of the injuries sustained by them, have not been disputed at the trial. This apart, we, too, do not notice nothing inherently incorrect, improbable or untrue in the evidence of the doctor (P.W.7).
20. We have, therefore, no hesitation in holding that on examination by the doctor (P.W. 7) on 14.5.1997, Manoj, Saroj, Lalan and Awadh (since deceased) were found to have sustained injuries as have been described by P.W. 7.
21. Turning to the evidence of P.W. 5 (Dr. Arun Kumar Singh), who had, admittedly, conducted post mortem examination, on 16.5.1997, on the dead body of Awadh Bihari Singh, we notice that according to his evidence, he found, while conducting post mortem examination, following ante mortem injuries on the person of the said deceased:
œ(i). One bruise measuring 4½? x 3? size on the left side of the face below left ear. (ii). One lacerated wound of 1/2? x 1/4? one left side and 5? above left ear and 5½? behind left eye brow. (iii). One bruise of 2? x 1½? on anterior aspect of right thigh 8? above right knee?.
22. Further evidence of P.W.4 Dr. Arun Kumar Singh, as regards his finding of the post mortem examination conducted on the dead body of Awadh Bihari Singh, read as follows: œOn dissection: Massive haematoma was found under scalp in frontal, left temporal both parietal and occipital region. One comminuted fracture of 8.1/2? x 8? involving left side of frontal bone both parietal, both temporal and left side of occipital bone. Extradureal haematoma was found in the left side of brain. Subdural Haematoma was found in all the regions of brain. In general all viscera were found congested. Stomach contains about 200 m.l. straw colour fluid. Right side of heart was full of blood. Gas and ficol matters were present in small and large gal balder was full. Rigour mortise was present all over. Advantage built. Bleeding from nose and mouth?.
23. In the opinion of the doctor, cause of death was head injury sustained by the said deceased, time since death being 12 to 24 hours and the injury had been caused by means of blunt object. The post mortem report has been proved as Ext. 2.
24. Considering the fact that though examined, the evidence of P.W. 5 remained unshaken and considering also the fact that we do not find anything inherently incorrect, improbable or untrue in the evidence of P.W. 5, we have no hesitation in holding, and we do hold, that Awadh Bihari Saingh had sustained three injuries, two injuries having been sustained by him on his head near left ear and another injury on his thigh and while one of the injuries, on the head, was bruise, the other one was lacerated.
25. The above injuries give clear indication, as has been rightly opined by the doctor (P.W. 5), that the injuries had been caused by blunt object. We also notice from the nature of injury, on the right thigh sustained by the said deceased, that this injury was also caused by a blunt object.
26. Not difficult it is, therefore, to conclude, and we do conclude, that the said deceased had sustained injuries as have been described by the doctor (P.W. 7), the injuries having been caused by blunt object. However, the injury, which the said deceased had sustained near his left ear, proved fatal.
27. Bearing in mind the medical evidence on record, we now come to, and deal with, the evidence of those witnesses, who have claimed to be eye witnesses to the occurrence including those, who claim to have been injured at the hands of the accused-appellants.
28. The evidence of P.W. 1 and P.W. 2, who were not injured, but who have supported the case of the prosecution by claiming to be eye witnesses, may, now, be scrutinized.
29. According to the evidence of P.W.1, while he was in his house, he, on hearing hulla, went out and saw that accused Hareram Yadav, having surrounded Awadh Bihar Yadav (since deceased), had assaulted Awadh Bihari Singh @ Guduki Singh making the latter fall on the ground and with him (accused Hareram Yadav), accused Ram Bihari Yadav was present holding a bhala (spear) in his hand. Having so deposed, this witness (P.W.1) corrects himself by deposing that accused Jay Ram Yadav was the one, who had assaulted Guduki Singh by means of a lathi making thereby Guduki Singh fall down.
30. It is the clear evidence of P.W.1 that besides accused Jai Ram Yadav, others also assaulted Guduki Singh and those, who had so assaulted Guduki Singh, were accused Motak Yadav, Dadan Yadav, Bishwanath Yadav and Ram Bihari Yadav and, in order to save Guduki Singh, when Guduki Singhs sons, Manoj Singh (not examined), Saroj Singh and his nephew, Lalan Singh (P.W.3), went forward, accused Ram Bihari Yadav assaulted Lalan Singh by means of a bhala (spear), on leg and so far as Manoj Singh and Saroj Singh were concerned, they were assaulted by the remaining accused by means of lathies. It is in the evidence of P.W.1 that having sustained injuries, Guduki Singh fell on the ground and became unconscious, whereupon injured Gutuki Singh was taken to Brahmpur Hospital and, thereafter, he was carried to P.M.C.H., Patna, where he succumbed to his injuries.
31. What is glaringly noticeable in the evidence of P.W.1 is that according to him, Gutuki Singh was assaulted by lathies not merely by accused Jai Ram Yadav, but also by accused Jagdish Yadav, Motak Yadav, Dadan Yadav, Bishwanath Yadav and Ram Bihari Yadav. If what P.W.1 has so deposed were true, there would have been multiple injuries caused by lathies on the said deceased; but the evidence of the doctor (P.W.5), who had conducted post mortem examination, clearly shows that Guduki Singh had sustained only two injuries on his head and one on his right thigh, all the injuries having been caused by blunt object. This apart, though P.W.1 has claimed assault having taken place on Manoj Singh (not examined), Saroj Singh (P.W.4) and Lalan Singh (P.W.3) by a large number of accused persons, the medical evidence on record, which we have discussed above, clearly shows that the injuries found are not consistent with the description of the occurrence as given by P.W.1 except injury to Lalan Singh, which was alleged to have been caused by accused-appellant, Ram Bihari Yadav.
32. The evidence of P.W.1 cannot, therefore, be implicitly relied upon. This apart, the Investigating Officer (P.W.6) has confirmed that P.W.1 had not stated, in his previous statement given to the police, that accused Jai Ram Yadav had assaulted Guduki Singh by means of lathi nor did he (P.W.1) state, in his said previous statement, that Ram Bihari Yadav had given blow by means of his bhala (spear) on Lalan Singhs leg. In fact, the Investigating Officer (P.W.6) has further confirmed that P.W.1 had not stated before him that Manoj Singh and Saroj Singh had been assaulted by accused persons.
33. In fact, the Investigating Officer (P.W.6) has confirmed that P.W.1 had stated before him that he was not aware as who had assaulted whom and who received injuries from whom.
34. In the face of the vital omissions in the previous statement of P.W.1, as had been confirmed by the Investigating Officer (P.W.6), coupled with the fact that the evidence of P.W.1 is not supported by the medical evidence on record, we are of the considered view that no reliance could have been placed on the evidence of P.W.1 and even if one does not reject his evidence as wholly unreliable, his evidence would, at best, fall in the category of those witnesses, who can be described as neither wholly reliable nor wholly unreliable.
35. Coming to the evidence of P.W.2 (Rameshwar Singh), we notice that this witnesss evidence is that when Guduki Singh (since deceased) was returning from his khalihan (granary), present appellants had surrounded him and while accused Ram Bihari Yadav had a spear in his hand, others had lathies in their hands and, having surrounded Guduki Singh, accused persons, namely, Motak Yadav, Jagdish Yadav, Dadan Yadav and Jai Ram Yadav started assaulting Guduki Singh by lathies and, on having been assaulted by accused Jai Ram Yadav on his head by lathi, Guduki fell down and when his nephew, Lalan Singh (P.W.3), and his two sons, namely, Saroj Singh (P.W.4) and Manoj Singh (not examined) went forward to save Guduki Singh, accused Ram Bihari Yadav gave a blow by bhala (spear) on Lalan Singhs knee, whereas other accused assaulted Manoj Singh (not examined) and Saroj Singh (P.W.4) by lathies causing injuries on both of them. Though P.W.2 had gone to the extent of saying that Saroj Singhs head has fractured, the evidence given by P.W.7 (doctor) clearly shows that Saroj Singh (P.W.4) merely sustained a lacerated cut on his scalp.
36. We, now, turn to the evidence of the informant, Lalan Singh (P.W.3), who, we find, has deposed that on 15.05.1997, between 10.00 and 10.30 A.M., while he was on the door of his house, he saw his uncle, Awadh Bihari Singh @ Guduki Singh (since deceased), going to khalihan and when he (Guduki Singh) reached the road, accused Jai Ram Yadav, Jagdish Yadav, Motak Yadav, Ram Bihari Yadav and Dadan Yadav surrounded Guduki Singh. P.W.3 has also deposed that accused Motak Yadav @ Awadh Bihari Yadav had a bhala (spear) in his hand, while the remaining accused were armed with lathies and that accused Jai Ram Yadav, Jagdish Yadav, Bishwanath Yadav, Ram Bihari Yadav and Dadan Yadav assaulted the said deceased by means of lathies and when he (P.W.3) went forward to save the said deceased, accused Ram Bihari Yadav gave a blow by bhala (spear) on his left knee and when Ganga Singh (P.W.1), Rameshwar Singh (P.W.2), Sudarshan Singh (not examined), Manoj Singh (not examined) and Saroj Singh (P.W.4) went to save the said deceased, Manoj Singh and Saroj Singh were also assaulted.
37. Close on the heels of the evidence of informant, Lalan Singh (P.W.3), Saroj Singh (P.W.4), who is son of the said deceased, has deposed that when the said deceased was going towards khalihan, accused Motak @ Awadh Bihari Yadav, Jagdish Yadav, Ram Bihari Yadav, Bishwanath Yadav, Jai Ram Yadav and Dadan Yadav started assaulting the said deceased by surrounding him and while accused Ram Bihari Yadav had a bhala (spear) in his hands, remaining accused were armed with lathies.
38. P.W.4 repeats in his evidence that accused Motak Yadav, Jagdish Yadav, Jai Ram Yadav, Bishwanath Yadav and Dadan Yadav had assaulted his father, Guduki Singh, by means of lathies and when he (P.W.4), his brother, Manoj Singh (not examined) and his cousin, Lalan Singh (P.W.3), went forward to save Guduki Singh, accused Ram Bihari Yadav gave blow by his bhala (spear) on Lalans left knee and that he (P.W.4) and his brother, too, were assaulted by lathies.
39. What is worth noticing, while considering the evidence on record, is that the Investigating Officer (P.W.6) has confirmed that name of Jagdish Yadav had not been mentioned, in his previous statement, by P.W.4.
40. Same as the evidence of P.W.1, we notice that P.W.2, P.W.3 and P.W.4 have claimed that the said deceased had been assaulted by a number of accused persons and if the assertions of these witnesses were true, there would have been multiple injuries on the said deceased, but there were only two injuries on his head and one on his thigh. This apart, while P.W.3 and P.W.4 claim that the said deceased was going to his khalihan, when he was surrounded and assaulted by the accused persons, P.W.2 belies their evidence by asserting that the said deceased was assaulted, while he was returning from his khalihan. Was, therefore, the said deceased assaulted, while he was going to khalihan or while he was returning from khalihan? The evidence on record gives no consistent, reliable and, consequently, correct and truthful answer.
41. In the face of the contradictions with which suffer the evidence of P.W.1, P.W. 2, P.W. 3 and P.W. 4, we are clearly of the view that they are not such witnesses, whose evidence can be implicitly relied upon. Even if we do not reject their evidence outright as evidence of wholly unreliable witnesses, their evidence would fall, at best, in the category of those witnesses, who are neither wholly reliable nor wholly unreliable.
42. We may, at this stage, point out that witnesses, ordinarily, fall in three distinct categories, namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. If a witness is wholly reliable, his evidence can be implicitly relied upon and such a witnesss testimony can be made basis for conviction of an accused. Similarly, when a witness is found to be wholly unreliable, no reliance can at all be placed on his evidence and his evidence has to be rejected outright. When, however, a witness is found to be neither wholly reliable, nor wholly unreliable, his evidence cannot be accepted unless his evidence is found to have been corroborated by some credible evidence, direct or circumstantial.
43. What is extremely crucial to note is that according to the evidence of P.W.3, given in his cross-examination, the said deceased had given statement before police. In fact, even the Investigating Officer (P.W.6) has confirmed, in his cross-examination, that the statement of Awadh Bihari Singh (since deceased) had been recorded and, thereafter, the said deceased fell unconscious. The said statement, claimed to have been made by the said deceased, has not been brought on record, though the said statement, if true, would amount to dying declaration of the said deceased.
44. For some unknown reason, prosecution has not proved the said statement, though the said statement would have been, as indicated above, dying declaration of the said deceased. Suppression of the statement, which is claimed to have been made by the said deceased, while he was injured, forces thisCourt to draw an adverse inference against the prosecution, the inference being that bringing the dying declaration on record would not have had supported the prosecutions case and it was for this reason that the dying declaration was withheld from the Court.
45. We may pause, at this stage, to point out that the accused-appellants have taken the plea of self-defence by alleging that they had been attacked by the said deceased, his sons, nephew and others, who were armed with lethal weapons, and in support of their defence case, the accused-appellants have also brought on record a copy of judgment and order, dated 30th November, 2006, passed, in Sessions Trial No. 36 of 1998, whereby the present prosecution witnesses stand convicted under Sections 147, 148, 327, 341 and 307 read with Section 149 of the Indian Penal Code.
46. Before we proceed further, we must point out that Exhibit-B is a copy of the judgment, dated 30.11.2006, which was passed, in Sessions Trial No. 36 of 1998, by the same learned Court, which has convicted the present prosecution witnesses of the offences, which we have mentioned above, and passed the sentences, which we have already indicated. Both the cases, namely, Sessions Trial No. 89 of 1997 and the Sessions Trial No. 36 of 1998 were decided and disposed of on the same date, i.e. 30.11.2006, by treating them as cross cases.
47. In the Sessions Trial No. 36 of 1998 which has been treated as the cross case, it is noticeable that apart from Lalan Singh and Saroj Singh (who are prosecution witnesses in the present case), Horil Singh, Bachcha Singh @ Vijay Singh, Kamta Singh and Shivjee Singh have been convicted under various penal provisions including Sections 147, 148, 323 and 307 of the Indian Penal Code for having assaulted and injured the accused-appellants, Awadh Bihari Yadav and Jai Ram Yadav. The judgment, so delivered in Sessions Trial No. 36 of 1998, stands proved on record as Ext. B. In Ext. B, the findings of two doctors, namely, P.W. 7 and P.W. 11 have been noted and discussed by the learned trial Court.
48. While considering the fact that PWs 3 and 4 were accused in Sessions Trial No. 36 of 1998 and they stand convicted, it is imperative to note that though the Code of Criminal Procedure does not lay down any specific procedure regarding trial of counter cases, it is the practice adopted, in the interest of justice, by the Courts that if a case is committed to the Court of Session, the Counter Case, arising out of the same incident, should also be, ordinarily, committed to the same Court of Session even if the latter is not exclusively triable by a Court of Session. We have cautiously used the word ordinarily, for, in an appropriate case, the Magistrate, instead of committing the case to a Court of Session, may have to discharge an accused in terms of Section 245 of the Code of Criminal Procedure, particularly, when the case is not exclusively triable by the Court of Session. Undoubtedly, however, the case and the counter case should be tried by the same Presiding Officer in quick succession. The first case should be tried to a conclusion, but the judgment should be reserved till the second case is concluded and, thereafter, the judgment of the two cases should be pronounced separately. (See Girijananda Bhattacharyya v. State of Assam, reported in MANU/GH/ 0022/1977 (Gauhati).
49. In Kewal Krishan v. Suraj Bhan, [MANU/SC/ 0143/1980], the Supreme Court has held that simultaneous trials of both the cases, which are exclusively triable by Court of Session, before two different Courts over one and the same occurrence, are undesirable and both the cases should be tried by one Presiding Officer one after the other, for, there is a risk of two different Courts coming to conflicting findings.
50. While pronouncing the judgment on the guilt or otherwise of the accused facing the two trials, the judgment of each case shall be kept confined to the discussion of the evidence adduced in that particular case and a Court shall not make use of the evidence of one case for the purpose of enabling it to pronounce the judgment in the other case or allow its findings in one case to be influenced in any manner whatsoever to the prejudice of the accused by the views, which it may have formed in the other case.
51. In other words, while considering the guilt or otherwise of an accused in a case, the evidence from the counter or cross case, as it is commonly called, cannot be imported into the case and based on the evidence adduced in a cross case, the guilt or otherwise of the accused cannot be determined. This, however, does not mean that a person, who is an accused in the cross case, cannot give evidence in the case launched against him even if the evidence, which he seeks to give, has some bearing or may have some bearing in the cross case.
52. We need to point out, now, that the said judgment (Exhibit-B) has taken note of the doctors findings, which indicate that two of the accused-appellants, namely, Awadh Bihari Yadav and Jai Ram Yadav, had sustained injuries and that accused Awadh Bihari Yadav had sustained, among other, an incised wound, measuring 2? x 1/2?, which penetrated the abdominal cavity making omental protruding from wound.
53. It is contended, on behalf of the accused-appellants, that since the prosecution has not explained the injuries found on the persons of accused Awadh Bihari Yadav and Jai Ram Yadav, the prosecutions case must be held to have been suffering from suppression of truth.
54. It is important to note that evidence of one case cannot be imported into the other case. The judgment (Exhibit-B) is, undoubtedly, relevant; but in absence of the fact that those, who are claimed to have suffered injuries, have not given evidence in the present trial nor has the doctor, who had examined them, was examined as a defence witness and when the prosecution, in the present case, has not been allowed to cross-examine the alleged injured accused and/or the doctor, who had examined them, nothing adverse can be inferred against the prosecution witnesses.
55. Notwithstanding the weakness with which suffers the case of the accused-appellants, what is unavoidable to note is that due to inherent contradictions with which are woven the evidence of the prosecution witnesses and when we find that their evidence is not only contradictory to each other, but also not completely supported by the medical evidence on record coupled with the fact that the dying declaration was not brought on record cannot but make us hold, and we do hold, that the prosecution has suppressed the truth and has not brought on the record the facts of the case truthfully in their entirety.
56. It is trite that prosecution has to succeed on the strength of its own evidence and not by deriving support, or strength, from the weaknesses of the case, which the defence might have set up.
57. The journey of a Court, especially, exercising criminal jurisdiction, is a journey to discover the truth. When we have the truth and falsehood so inextricably mingled with each other that the truth could not have been, and cannot, now, be, extricated from falsehood, it was wholly unsafe to have convicted the accused-appellants by relying on the evidence of those witnesses, who have contradicted each other and are not supported by the medical evidence on record.
58. Though the informant has filed the criminal revision, which we have already referred to, it may be pointed out that nothing could be submitted, on his behalf, to show that there was consistent, coherent and wholly reliable evidence on record warranting conclusion of guilt of the accused-appellants; more so, when we notice that though one of the appellants is alleged to have been armed with bhala (spear), no blow by bhala (spear) was given on the said deceased and not more than two injuries were found on his head and one on his thigh.
59. It is, therefore, wholly impossible to confidently hold, nor could have been confidently held, that the assault on the said deceased was with the intention to cause death of the said deceased or with the intention to cause such bodily injury, which the assailants knew would cause such injury as was likely to lead to the death of the injured.
60. Situated thus, we are clearly of the view that evidence on record, being an admixture of half-truth and untruth, ought not to have been made basis of conviction of the accused-appellants. Their conviction cannot, therefore, be sustained. Consequently, the sentences passed against them must also fail.
61. In the result and for the reasons discussed above, revision application is hereby dismissed, but the appeal stands allowed. The impugned conviction of the accused-appellants and the sentences passed against them by the judgment and order, under appeal, are hereby set aside and all the six accused-appellants herein are held not guilty of the offences, which they stand convicted of, and we acquit them of the same.
62. As the accused-appellant, Jai Ram Yadav, is in jail custody, he is directed to be set at liberty forthwith unless he is required to be detained in connection with any other case. As far as the remaining accused-appellants are concerned, they are already on bail. Their bail bonds are, therefore, cancelled and their sureties shall stand discharged.
63. Send back the Lower Court Records along with a copy of this judgment and order.