S. Haider Shaukat Abidi, J.
1. In Criminal Appeal No. 300 of 1989 all the seven appellants have been convicted under Section 148 of the Indian Penal Code and sentenced to two years rigorous imprisonment. Appellant No. 2 --Mokhtar Rai has further been convicted under Section 307 and 323 of the Indian Penal Code (for short I.P.C.) and sentenced to six years and six months rigorous imprisonment under the respective counts. Appellant No. 4 Sheoji Rai has also been convicted under Section 324, I.P.C. and sentenced to one year rigorous imprisonment. Criminal Appeal No. 306 of 1989 has been preferred by appellant Thakur Rai against his conviction under Section 302 and 148, I.P.C. and sentence of rigorous imprisonment for life and two years under respective counts. Both the appeals arise out of the same judgment and they have been heard together and they are being disposed of by this common judgment.
2. According to the fard-beyan (Ext. 4) given by Hari Charan Yadav (P.W. 9) on 27-1-1977 at 8.15 at the Bathan of Phulena Choudhary in village Derarai ke Bangara, police-station Siswan district Siwan to the Sub-Inspector of Police. Md. Nasiruddin (P.W. 14) it appears that on 25-1-1977 at 4 p.m. he had gone to bring fodder for his cattle and his father Phulena Choudhary (P.W. 10) and Lal Mohan Choudhary (not examined) were cutting fodder; younger brother Dwarika Yadav (P.W. 4), Ram Rekha Yadav (P.W. 3) and Mundrika Yadav (P.W. 2) were uprooting fodder from the field, then from the North they heard sound of Jai Bajrang Bali. Phulena Yadav and Lal Mohan Choudhary came out from Bathan and began to see as to why there was noise. Informant-Had Charan Yadav further stated that Sampat Rai, Radha Rai, Thakur Rai, Sheoji Rai, Mahatam Rai, Mokhtar Rai, Naresh Rai, Moti Rai and Ram Pravesh Rai came armed with bhala at the bathan and they were abusing Appellants Radha Rai and Sampat Rai said abusing to kill all and the needed money would be spent. Upon this Thakur Rai gave a bhala blow on the left side of the chest of Ramchandra when the victim took out the bhala from his chest he fell down dead. The informant Hari Charan Yadav was assaulted by Naresh Rai by Bhala on the left side of the stomach and his banian (ganji) was torn and the stomach was out. Mokhtar Rai gave bhala blows upon Dwarika Rai and Phulena Rai (P. Ws. 4 and 10). Appellant Sheoji gave two bhala blows to Mohan Rai (P.W. 1). The motive for the occurrence was said to be that one day earlier i.e. on 26-1-1977 at 8 a.m. Sampat's field was grazed by the she-buffalow of Phulena Rai (father of the informant) for which the father of the informant had apologised and assured that the occurrence would not be repeated but in the evening the accused, forming an unlawful assembly, came and assaulted the injured and killed Ram Chandra. On the basis of this fard-beyan (Ext. 4) the first information report (Ext. 3) was registered at Siwan P.S. on 27-1-1977 at 4.20 p.m.
3. Investigation of the case was taken up by P.W. 14 Md. Nasiruddin, S. I., who went to the spot, recorded the statements of the informant and the witnesses, prepared the inquest report and sent the dead body for post-mortem examination to Siwan Sadar Hospital, besides sending three injured also namely, Mohan Rai, Dwarika Yadav and Phulena Rai (P.Ws. 1, 4 and 10) whose medical examination was done by Dr. Shyam Balak Sinha and so the injury reports of Phulena Yadav and Mohan Rai are Exts. 7 and 7/1. Since the condition of P.W. 4 Dwarika Yadav was serious, his dying declaration was recorded by Sri R.K. Mishra Judicial Magistrate, Siwan, upon which he put his left thumb impression. Ext. 12 is said to be the statement of P.W. 4 which is said to have been recorded by A.S.I. Ramekbal Singh (not examined) which was brought to Sisawan police station on 27-1-1977 at 2 p.m. a constable Md. Din for which an entry No .21 was made in the case diary (but already the fard beyan (P.W. 4) was recorded at 8 a.m. on 27-1-1977 on the basis of which first information report was already registered. After completing investigation chargesheet was submitted against the appellants.
4. The accused, in defence, denied the prosecution case and alleged that they have been falsely implicated in this case. Appellant Mahatam Rai gave fard-beyan to A.S.I. Ramekbal Singh on 26-1-1977 at 10 p.m. at Sadar Hospital, Siwan for which a counter first information report (Ext. C) had been registered on 27-1-1977. Two witnesses in defence have been examined being Lallan Prasad and Krishna Singh who said about fard-beyan of counter-first information report (Ext. B) respectively.
5. The prosecution, in support of its case, examined sixteen witnesses. Mohan Yadav, Mundrika Yadav, Ram Rekha Yadav and Dwarika Yadav (P.Ws. 1, 2, 3 and 4) are eyewitnesses. Out of them Mohan Yadav and Dwarika Yadav are injured. P.W. 5 is Sri R.K. Mishra, Judicial Magistrate who recorded the dying declaration of Dwarika Yadav. P.W. 6 -- Dr. Lakhichand Prasad had conducted post mortem examination of Ramchandra on 27-1-1977 at 4 p.m. and submitted post mortem report (Ext. 2). P.W. 7 Rameshwar Singh has proved the fard-beyan recorded by S. I. Md. Nasiruddin (P.W. 14). P.W. 8-Bhagwan Prasad has proved the signature of P.W. 14 on the fard-beyan. P.W. 9 is Haricharan Yadav and injured (informant). P.W. 10 Phulena Yadav being injured has been tendered. P.W. 11 Bhagwan Prasad has proved the inquest report. P.W. 12 Achhey Lal Yadav has proved the fard-beyan, inquest report and the seizure list. P.W. 13, Dr. Shyam Balak Singh had medically examined three injured, namely, Mohan Yadav, Dwarika Yadav and Phulena Yadav as well as Srimatia Devi not examined as witness and also the three accused, namely, Mahatam Rai, Sheoji Rai and Radha Rai. P.W. 14 Md. Nasiruddin, S.I. had recorded the fard-beyan and after completing investigation submitted charge-sheet. P.W. 15 Majibula Khan has proved the Sanaha No. 428 dated 27-1-1977. P.W. 16 Jagdish Pathak, Taid had said that A.P.P. had given requisition to Malkhana for the protection of material exhibits.
6. Learned trial court after considering the entire material on the record has convicted and sentenced the appellants as said above.
7. Learned counsel for the appellants has urged that the order of conviction of the appellants is bad in law. The occurrence has been admitted by both the parties and the time of occurrence is at 4 p.m. but only the difference is about the earlier occurence. The prosecution says that in the morning at 8 p.m. the cattle had grazed whereas the defence contention is that the grazing as well as mar-pit had taken place, at 4 p.m. as is made out from the earlier statement (Ext. 4) given by Dwarika Rai (P.W. 4) to A.S.I. Ramekbal Singh at Sadar hospital, Siwan, and therefore the prosecution has not given out the true version about the genesis of the occurrence which creates doubt about the version of the prosecution. Next, it was submitted that three persons from the side of the accused had been injured in the same transaction and at the same time but they have neither been mentioned in the fard-beyan (Ext. 4) by Haricharan Yadav (P.W. 9) nor the witnesses say about the same in the evidence. Rather the same has been denied by them and also it is a fact that the same doctor had examined the injuries of both the sides and had given injury reports (Exts. 7 and 7/1) and for the accused side (Exts. 7/3 and 7/4) and some of the injuries on the side of the accused are grievous for which there is no explanation.
Further it was argued that the case of the prosecution is falsified by the fard-beyan given by P.W. 4 at the Sadar Hospital and so the doubt is created about the occurrence itself as given by the prosecution, it was also said that all the P.Ws. are interested and no independent witnesses had been examined including a chaukidar and other people who had collected there and so independent witnesses had been withheld and only partisan and interested witnesses had been examined whose evidence in these circumstances does not inspire confidence, it was also said that the I.O. of this case at the time of giving evidence was not able to read the case diary and on account of its failre to refer the case diary has caused miscarriage of justice and prejudice to the accused, specially, when the reference of the counter-case was put to the I.O. that is about grazing of the she buffaloes in the field of Sampat. It was also said that blood stained clothes, which were seized, not sent for forensic laboratory for its report, but if sent and would have been there, it would have made out that the mar-pit had taken place in the manner said by the defence. To appreciate these contentions raised by the learned Counsel for the appellants the evidence will have to be scrutinised with care and caution.
8. The prosecution has examined P.Ws. 1, 2, 3, 4 and 9 as eye-witnesses. Out of them P.Ws. 1, 4 and 9 are injured. P.W. 10 an injured witness has been tendered for cross-examination and accordingly cross-examined. P.W. 9-Haricharan Yadav has lodged the first information report. He has corroborated in evidence the version given by him in the first information report. He has said that in the evening on the day of occurrence he had gone for bringing fodder from Bathan which is at the south-eastern corner of the village. His father Phulena Choudhary and uncle Lal Mohan Choudhary (not examined) were cutting the fodder. Ramrekha, Mundrikaand Dwarika (Pws. 2, 3 and 4) were weeding out grass at the eastern side from the bathan. Then there was a sound of Bajran Bali. On hearing the same his father and uncle left cutting the fodder and came out to see. In the mean time the appellants came armed with bhalas. First abusing Radha said to kill and all money will be spent or not. Upon this Thakur Rai gave a bhala blow on the left side of the chest of Ramchandra Choudhary which, on warding off, hit him on his (victim's) thumb. Later injury was also caused on his lip. Naresh Rai hurled two bhala blows at the informant; one hit him at the stomach by which the Banian (ganji) was torn and stomach was abraised and the other assault was given to the informant by lathi portion of the bhala on the knees. Mokhtar Rai gave bhala blow on the chest of Dwarika Rai who on receiving the same fell down and became restless. When his father Phulena Choudhary ran towards the house of Ramesh Chamar then Sampat and Raja injured him by beating him with the lathi portion of bhala. The informant's aunt Srimatia Devi was given assault by the lathi portion of bhala Sheoji Rai hurled two bhalas but only one hit and the other missed. There was alarm of mar-pit. People ran towards the place of occurrence but only Indradeo came to the spot and Ors. did not come on account of fear. Ramchandra on getting the injury of bhala fell down. Earlier in the morning a kid of the family had grazed the wheat crop of appellant Sampat Rai who had caught and brought it to the house of the informant and abused his father who apologised for the same. But appellant Sampat Rai abusing said that he would come at 4 p.m. The wheat-field was towards southeast from the house of the informant. The injured were taken from the place of occurrence to the Sadar Hospital Siwan but the dead body was left there. The next day at about 8.15 a.m. the police came to the spot and recorded his statement and the same was read over to him before Achhelal and Laldeo. The dead body was sent for postmortem. The occurrence took place at 4 p.m. on account of grazing of the wheat crop by the kid. He did not know if any statement was given by P.W. 4 or any counter case has been filed. Chaukidar was neither informed nor examined. He denied the suggestion that he was not injured. He denied to have made any assault upon the accused party. He also denied any knowledge about litigation. He said that he had not gone to the hospital.
9. P.W. 1 -- Mohan Yadav is an injured witness. He also says that at 8 a.m. the kid had grazed the wheat crop of the Sampat's filed. It was driven out and Sampat Rai went away saying that he would come again. In the evening when his brother Phulena Choudhary was cutting fodder for the cattle in the Osara of the Bathan they heard sound of 'Bajrang Bali' so they went out and saw the accused persons coming armed with Bhalas and then they started abusing. Sampat and Radha ordered to kill. Appellant Thakur Rai gave bhala blow on the chest of Ramchandra Choudhary and another blow on his neck. Naresh Rai gave bhala blow on the stomach of Haricharan which pierced through the banian (ganji). Mahatam Rai gave a lathi blow from the reverse side of the bhala upon Haricharan Rai. Mokhtar Rai gave a bhala blow on the chest of Dwarika Yadav, whereupon Dwarika fell down. Sheoji Rai gave a bhala blow to this witness on the stomach and he gone another blow to him. Srimatia Devi ran to the scene of occurrence but she was also assaulted by Sampat Rai and Radha Rai by the lathi portion of Bhala. She got injury on her head. Phulena Rai ran to save but he was also assaulted by Sampat Rai and Radha Rai by lathi portion on his head. Ge got injuries on his head and other part of his body. Ramchandra Rai died on the spot. Thereafter the accused ran away. The I.O. came on the spot. The injured were taken to the Sadar Hospital, Siwan, where his statement was recorded. In cross-examination he said that P.Ws. 1, 4, 9 and 10 and deceased Ram-chandra Rai being of the same family and all adult members of the family wee there. There was no previous enmity with the accused. The place of occurrence is near his bathan. They have 10-12 bighas of land. They did not keep lathis in the Bathan. On the day of accurrence there was a toss to the accused due to grazing by the cattle. He is also an accused in the case started by Mahatam Rai and in that Mohan Yadav (P.W. 1), Haricharan (P.W. 9), Kausilays Devi (not P.W. ), Phulena Choudhary (P.W. 10) and Dwarika Yadav (P.W. 4) were also accused and the same is pending. It is a case for grazing and mar-pit. Sheoji, Mahatam and Radha Rai were in the hospital. He did not know if they were admitted in the hospital, or they had injuries on the head or chest by Bhala or lathis. The injured from the prosecution side were in hospital for 18 or 19 days where they had been taken and the police recorded their statements. He did not know if Dwarika Yadav's statement was recorded by the police. He did not know if Dwarika Yadav's statement was recorded by the police. All the accused came and assaulted and there was mar-pit only once. Even after failing down of Ramchandra the accused had been assaulting him. The place of occurrence is at a distance 8 kilometer from the police-statement Siwan is 10-12 kilometers.
10. P.W. 2-Mundrika Yadav has said that on the day of occurrence at 4 p.m. he was in his field and heard the sound of Bajrang Bali and so he went there and found the accused armed with bhala. Mohan and Phulena Yadav (P.Ws. 1 and 10) were cutting the fodder, they came out. He has also given out the same version as given by the informant as well as P.W. 1 about the assault. Inardeo Chaukidar was not examined as witness. He had come from the east and saw the occurrence. Many people had ssen the occurrence but they were not prepared to come forward to depose on account of fear of the accused. On account of grazing of wheat crop standing in the filed of the appellant by the kid of the prosecution, apology had been tendered to the accused persons, yet they came abusing. He admitted that Haricharan (P.W. 9) is his cousin and P.W. 10 Phulena is uncle and that there was no previous enmity with the accused. He did not know that Mokhtar Rai has filed any case. He is neither an injured nor an accused nor had gone to the police-station nor did he say to anyone about the occurrence. He denied to have seen any mark of assault on appellants Mokhtar Rai, Sheoji Rai and Radha Rai. They use to stay in the Bathan on account of thieves. The police after coming on the next day, recorded his statement.
11. P. W. 3 Ramrekha Yadav son of Phulena Yadav (P.W. 10) has said that he was uprooting grass at the place of occurrence. He also said about cutting of the fodder and the alarm of Bajrang Bali and P.Ws. 1 and 10 coming out and seeing and then accused assaulting the victims as given out in the first information report. He denied to have any knowledge about counter-case or any of the three accused having received any injury. He is the real brother of Haricharan Yadav. P.W. 4 is alsohis real brother and he did not know if the statement of P.W. 4 had been recorded at the Hospital. After the mar-pit many people had come including chaukidar. He was also examined by the police. No statement was recorded before him.
12. P.W. 4 -- Dwarika Yadav is an injured witness. He has also corroborated the version given in the evidence of P.Ws. 1, 2, 3 and 9 about assault and it details. He has said that the grazing occurrence had taken place in the morning at 8 a.m. and the assault on the same day .4 p.m.. He admitted that he was taken to the Hospital in injured condition and he was examined by a Magistrate Sri R.K. Mishra (P.W. 5) to whom he had given his statement (Ext.1). He could not say anything as he was not well. He was not examined by the police. He denied to have put any 'signature or L.T.I, on the statement before the Magistrate as his condition was bad.
13. Besides these oral witnesses, P.W. 5 -- Sri R.K. Mishra, Judicial Magistrate, Siwan, has said that he recorded the dying declaration (Ext, 1) of P.W. 4 Dwarika Yadav as his condition was bad. He had taken the L.T.I, of P.W. 4.
14. P.W. 6 is Dr. Lakhichand Prasad who conducted postmortem examination on the dead body of Ramchandra on 27-1-1977 at 4 p.m. and submitted the postmortem report (Ext. 2). He has found the following ante mortem injuries:--
I. Penetrating wound 11/4'x 14' x deep into chest cavity of left side of chest near axilla.
II. Incised wound 1/2' x 1/4' x muscle deep on the base of left thumb.
III. Incised wound 2' x 14' x scalp deep on the back part of vault of scalp near the hair tail.
In his opinion death was due to injury No. 1 to vital organs, left lung and heart leading to haemorrhage and death. This injury was caused by sharp cutting penetrating substance like bhala. Injury Nos. 2 and 3 were also caused by sharp cutting substance may be by sharp edge of bhala and that injury No. 1 was sufficient in ordinary course of nature to cause death, and the time elapsed since death was within 24 hourse of holding of the post mortem examination on 27-1-1977 at 4 p.m.
15. Dr. Shyam Balak Sinha (P.W. 13) had examined the injuries or the persons of Dwarika Yadar, Mohan Yadav and Phulena Yadav (P.Ws. 4, 1 and 10 respectively) and one Srimitia Devi (not produced as witness) on 26-1-1977 between 7.5 p.m. to 7.15 p.m. and had submitted injury reports Exts. 7 to 7/3. On the person of Phulena Yadav following injuries were found : ---
1. Lacerated wound 1 1/2' x 14' x skin deep on the left side of the head.
2. Lacerated wound 1/2' x 14' skin deep on middle finger of left hand.
3. Abrasion 1/2' x 14' on right forearn.
4. Abrasion 2' x 1/2' on the right shoulder joint.
5. Abrasion 3' x 1/6' on the upper part of back in mid line.
6. Abrasion 5' x 1/6' in the linear part of back right side.
The following injury was found on the person of Mohan Yadav:--
Incised wound 14' x 14' x skin deep on the linear part of his back on the left side.
The following injury was found on the person of Dwarika Yadav:--
Punctured wound 1' x 3/4' x communicating with the plural cavity in the linear part of his chest right side, au was coming out of the wound. Injury was caused by sharp pointed and cutting weapon such as bhala. Nature grievous. Age within 6 hours.
Srimatia Devi was also examined and the following injury was found : --
Lacerated wound 1' x 11/4' x skin deep on the left side of the scalp. Injury was caused by hard and blunt substance such as woody portion of bhala. Age within 6 hours. Nature simple in nature.
This P.W. 13 had also examined on the same day between 8.5 to 9 p.m. the appellants Mahatam Rai Sheoji Singh and Radha Rai. The following injuries were found on Radha Radhd Rai:
I. One incised wound 3/4' x 1/4' x skin deep on the rt. side of chest above nipple.
II. Lacerated wound 1' x 1/4' x Skine deep on the posterior surface of left forearm on its upper part.
III. Bruise with swelling 11/2' x 1/2' on the back of the left wrist.
IV. Lacerated wound 1/2' x 1/4' x skin deep on the little finger of left hand on its palmar surface.
V. Lacerated wound 1/4' x 1/4' skin deep on the index finger of left hand on its dorsam surface.
VI. Bruise with swelling 11/2' x 1/2' on the lower part of back.
The following injuries were found on the person of Sheoji Singh : --
Incised would 2' x 1/2' x bone deep on the dorsam surface of rt. hand.
II. Lacerated wound 1' x 1/2' x skin deep on the lower part of left hand.
III. Contusion 11/2'x 1' on the right side of the head.
The following injuries were found on the person of Mahatam Rai:--
I. Incised wound 3' x 3/4 with fracture of the upper plate of right parietal bone of the head.
II. Incised wound 1/2' x 1/2' x scalp deep on the right side of skull.
III. Bruise with swelling 31/2' x 1' on the posterior surface of right shoulder.
The Doctor has said that all the injured persons were referred to him by the police. Copies of the injuries reports have not been brought on the record and it is only the statement of P.W. 13 that he had examined and so the injuries have been given out.
16. Thus considering the entire material on the record it is well made out by the prosecution that in the morning on 26-1-1977 the kid of the family of the informant had grazed the wheat crop of appellant Sampat, who brought the kid to Phulena Rai father of the informant and complained for which Phulena Rai apologised and assured that the same would not be repeated, yet Sampat Rai did not feel satisfied and went away threatening that he would be coming in the evening again. It was at about 4 p.m. the same day, that when the informant was grazing cattle and his father and uncle were cutting fodder, the appellants came raising hulla 'Jai Bajrang Bali' which was heard by the father and uncle of the informant who came out. The appellants came to the Bathan of the informant and began abusing. Radha Rai and Sampat Rai asked to kill and also said that whatever amount is needed, would be spent. Upon this, Thakur Rai gave a bhala blow on the left side of the chest of Ramchandra Rai who took out the bhala from his chest and fell down dead. The informant (P.W. 9) was given bhala blow by Naresh Rai on the left side of the stomach, piercing the banian and cutting the stomach. Mokhtar Rai also gave bhala blows on Dwarika and Phulena Rai and appellant Sheoji Rai gave two blows to Mohan Rai. Thereafter the accused ran away. The occurrence was seen by the witnesses. Further the prosecution has examined the witnesses, including the injured, being P.Ws. 1,4,9 and 10. Phulena Rai has been tendered. The presence of the injured on the spot could not be doubted because of the injuries sustained by them. Mundrika and Ramrekha the other eye-witnesses have established their presence on the spot. The evidence of the witnesses has been scrutinised and it has been found that there is no contradiction on infirmity. The manner of assault has been given out by them uniformly without any contradiction. Further the version given by them is corroborated by the medical evidence of the two doctors who had examined them without loss of time. The first information report has also been lodged which does not give out any interpolation for falsely roping the accused persons. The witnesses had admitted that there was no previous enmity between his party and the accused and nothing has come out in their evidence to show that these witnesses have got any motive or animosity to falsely rope in the accused persons. The accused are well known to the witnesses and the occurrence is of day time so there is no question of mistaken identity.
17. Learned counsel for the appellan . has urged that the prosecution has not come with clean hands as the fard-been (Ext. B about the occurrence has been given by appellant No. 3 Mahatam Rai on 26-1-1977 at 10.00 p.m. in Sadar Hospital, Siwan, to A.S.I. Ramekbal Singh and on the basis of that counter -- first information report (Ext. C) had been registered and further the same night (26-1-77 at 8 p.m.) Ramekbal Singh, A.S.I, had recorded the fard-beyan (Ext. 12) of Dwarika Yadav (P.W. 4) and the dying declaration of P. W. 4 was recorded by P.W. 5 Sri R. K, Mishra, Judicial Magistrate, Siwan, at the State Dispensary, Siwan, and lastly the fard-beyan (Ext, 4) of this case was given by P.W. 9 -- Hari Charan Yadav (informant) to S.I. Md. Nasiruddin (P.W. 14) at the Bathan of Phulena Choudary (P.W. 10) on the basis of which first information report (Ext. 3) was registered on 21-1-77 at 8.15 a.m. at Siwan police-station and looking to all these documents it appears that the case of the prosecution is not made out. The evidence of P.Ws. 1,2,3,4, 9 and 14 is consistent that the occurrence had taken place at 4 p.m. at the bathan of Phulena Choudhary. Thereafter the injured were sent to the hospital. Where Dr. Shyam Balak Singh (P. W. 13) had examined Mohan Yadav, Dwarika Yadav, Phulena Yadav (P.Ws. 1, 4 and 10) and Srimatia Devi on 26-1-77 between 7.5 p.m. to 7.15 p.m. for which he submitted injury reports (Ext. 7 series). P.W. 14 is the l.O. of this case. He has said in the para 22 of his statement that he did not remember if on 27-1-77 at 2 p.m. the fard-beyan of P.W. 4 had been brought to him by Constable No, 122-Din Mohammad of Siwan Town police-station and he had made in entry in the case diary about the fard-beyan. He denied the suggestion that he had suppressed it. He rather said that since the case had already-been earlier registered so he did not think to register the fard-beyan as first information report. He denied the suggestion that he suppressed the fard-beyan of Dwarika Yadav as the case of the accused was made out by the same. When the condition of P.W. 4 deteriorated, his dying declaration (Ext. 1) was recorded by P.W. 5 Sri R.K. Mishra at the State Dispensary, Siwan. This, fact has been admitted by Sri Mishra in his statement. He has proved the dying declaration which is said to have been written by him. Further the fard-beyan (Ext. 2) is said to have been given on 26-1-1977 at 10 p.m. at Sadar Hospital, Siwan, to A.S.I. Ramekbal Singh by appellant No. 3 Mahatam which formed the basis of the counter-first information report (Ext. E) registered on 27-1-1977. In these circumstances it may appear that the first version about the occurrence appears to have been given by Dwarika Yadav (P.W. 4) being Ext. 12 - fard-beyan to A.S.I. Ramekbal Singh.
18. P.W. 4 in his statement has categorically stated that he had not given any statement to A.I.S. Ramekbal Singh. A.S.I. Ramekbal Singh has not been examined to say that he had recorded the statement of P.W. 4. A petition is said to have been filed by the prosecution that whereabouts of the A.S.I. Ramekbal Singh were not known and so the prosecution did not examine him. The defence has also not examined Ramekbal Singh as defence witness. This statement has been brought, on record as Ext. 12 and an entry in respect of its receipt appears to have been made by P.W. 14 in the case diary and so its formal proof has been waived. But still the. question remains as to how far it can, be read in evidence when its genuineness is disputed. Neither P.W, 4 -- Dwarika Yadav accepted to have given any statement to A.S.I. Ramekbal Singh nor Ramekbal Singh has been examined to say that he had written this statement. There is no witness to say that such a statement had been recorded before him by Ramekbal Singh. P.W. 4 has said that rfeis a matriculate and so he appears to be a literate persons, he has singed the deposition in the court. On Ext. 12 there appears to be left thumb impression of (P.W. 4). There is nothing to show that till Ext, 12 was recorded the condition of P.W. 4 had deteriorated so much so that he was unable to put his signature. Except bringing Ext. 12 on record there is no other evidence to show that this fard-beyan (Ext. 12) had been given by P.W. 4 and recorded by Ramekbal Singh. The very genuineness of this document has been disputed and the same has not been proved, specially when the maker of the document himself denies to have given such statement. If this document has been admitted as a genuine one then it could have been read as a substantive evidence and there was no necessity to examine Ramekbal Singh to prove the same. In the case of Saddiq v. State, 1981 Cri LJ 379 : (AIR 1981 NOC 74) a Full Bench of the Allahabad High Court has observed at page 381 in para 9:--
Section 294, Cr.P.C. is a new section as it has no equivalent in the Code of Criminal Procedure, 1898. It is based on the rule of evidence that facts admitted need not be proved contained in Section 58, Evidence Act. The object of enacting the section appears to be avoid the time of the Court being wasted by examining the signatory of the document filed by the prosecution or the accused under Sub-section (1) of Section 294. Cr.P.C. to prove his signature and the correctness of its contents if its genuineness not disputed by the opposite party. If the signature and correctness of the contents of a document filed by the prosecution or the accused under Sub-section (1) of Section 294, Cr.P.C. whose genuiness is not disputed by the opposite party are still required to be proved by examining the signatory of the document, the very object of enacting Section 294, Cr.P.C. will be defeated. We are, therefore, of the opinion that all document. filed by the prosecution or the accused under Sub-section (1) of Section 294, Cr.P.C. whost genuineness is not disputed by the opposite party may be read as substantive evident--under Sub-section (3) of Section 294, Cr.P.C.
Thus this Ext. 12 whose genuineness has been challenged by P.W. 4 himself by categorically denying to have given any statement at ail to Ramekbal Singh and further there being his left thumb impression instead of signature. When P.W. 4 is a person who has signed his statement in the court, then this document (Ext. 12) cannot be relied upon. It could have been relied upon if Ramekbal Singh had been examined to say that it was this very document was written by him at the dictation given by P.W. 4 and who had put his left thump impression instead of signature. When Ramekbal Singh has not been examined, then there should have been some witness to vouch the genuineness and correctness of the document. In that absence of any such evidence this document cannot be relied on. Neither fard-beyan nor first information is substantive piece of evidence and has got no value evidence. Hence they are liable to be discarded.
19. As regards the dying declaration of Dwarika Yadav (P.W.4) it cannot be called a called a dying declaration as the Victim has survived. The dying declaration is said to have been recorded on 26-1-1977 at 8.15 by Shri R.K. Mishra, Judicial Magistrate. Siwan, who has said that the condition of P.W. 4 was bad and so he had taken his (P.W. 4) left thumb impression. This P.W. 4 -- Dwarika Yadav says that he did not remember if on that date he had given statement. He further says that he heard that he was examined on the day of occurrence in the night. He did not know as 10 how the Magistrate had come. The police of Siswan police-station had not recorded his statement. His condition was bad. On the statement was bad. On the statement before the Magistrate he did not put his signature but put his left thumb impression. Since P.W. 4 has survived this statement cannot be called dying declaration but only a formal statement under Section 157 of the Evidence Act can be used only to corroborate or contradict the witnesses in the court. In the case of Moti Singh v. State of Uttar Pradesh, AIR 1964 SC 900 : (1964 (1) Cri LJ 727) the Supreme Court has observed at page 901 (of AIR) : (at p. 728 of Cri LJ) in para 5 : --
...Ram Shankar and Jogeshwar, have been disbelieved by the Sessions Judge an it appears that the High Court did not take more favourable view of their deposition in court. It, however seems to have relied on their statement. Exts. Kha 5, Kha 8 respectively, recorded by a Magistrate at the hospital. In this it was in error. Those statements could have been used only in either corroborating or contradicting the statements of these witnesses in Court. If those witnesses were not to be believed, their previous statements could not be used as independent evidence in support of the other prosecution evidence.
In the case of Maqsoodan v. State of U.P., AIR 1983 SC 126; (1983 Cri LJ 218) the Supreme Court has observed at page 129 (of AIR) : (at p. 220 of Cri LJ) in para 7:---
When a person who has made a statement, may be in expectation of death, is not dead, it is not a dying declaration and is not admissible under Section 32 of the Evidence Act. In the instant case, the makers of the statement Exts. Ka-22 and Ka-23, are not only alive but they deposed in the case. Their statements, therefore, are not admissible under Section 32; but their statements however are admissible under Section 157 of the Evidence Act as former statements made by them in order to corroborate their testimony in Court. In the instant case, Exs. Ka-22 and Ka-23 respectively corroborate the testimony in Court of P.W. 3 and C.VV. 1 respectively.
Looking to this Ext. 1, it does not appear that there is any contradiction between it and the statement in the court.
20. As regards the fard-beyan (Ext. B) of appellant Mahatam Rai, it is said to have been recorded by A.S.I. Ramekbal Singh on 26-1-1977 at 10 p.m. in the Sadar Hospital Siwan and on that basis counter-first information report (Ext. C) was registered on 27-1-1977 at Siswan police-station. In this fard-beyan (Ext. B) it has been said by Mahatam Singh that on 26-1-1977 the buffalo of Phulena Choudhary was grazing the wheat crop sown by him (Mahatam Rai) in the field towards west of the village and so he went their and seeing it grazing they were bringing the cattle to the house. Upon this Haricharan (P.W. 9) said abusing as to why he was taking his cattle. This ensued into altercation and many people collected on the spot. Phulena Yadav (P.W. 10) ordered to kill upon which Haricharan Yadav gave a pharsa blow on his head which began bleeding very much. Then by the reverse side of Bhala he gave a blow on the right shoulder of appellant No. 3 causing sufficient injuries. Mohan Yadav (P.W. 1) assaulted Sheoji Singh (appellant No. 4) by pharsa on his right hand and wrist. Matia Devi also threw brickbats hitting on his left arm, wrist and head. Appellant Radha Rai was assaulted by Phulena Rai by bhala on the right side of his chest which too began bleeding very much. P.W. 4 Dwarika Yadav gave lathi blow on the arm. Upon this many people came to the spot including Ramnaresh Dubey, Gautam Singh and Briksha Rai. The assault was made by lathi and pharsa with intention to kill. The injured were taken to Sadar Hospital Siwan where they were being treated. On the basis of this fard-beyan the first information report (Ext. C) was registered at Siswan police-station being Case No. 4 dated 21-1-1977 under Sections 147, 148, 323, 324, 347 of I.P.C. and 24 Cattle Trespass Act. Chargesheet was submitted and ultimately the case ended in conviction of Dwarika Yadav and Sushila Devi alias Motia Devi under Sections 147 and 323 I.P.C. and three other accused Haricharan Yadav, Phulena Yadav and Mohan Yadav were convicted under Sections 148 and 324 I.P.C. The court took a lenient view in favour of Phulena Yadav and Sushila as they were 70 years old and had weak health and so they were directed to execute a bond of Rs. 2000/-with two sureties of like amount for a period of one year under Section 4(1) of the Mobation of Offenders Act. As regards three other accused Dwarika Yadav was sentenced to one year rigorous imprisonment under Sections 147 and 323 I.P.C. and Haricharan and Mohan were sentenced to two years rigorous imprisonment under Sections 148 and 324 I.P.C. and sentences were ordered to run concurrently. This judgment of the learned Judicial Magistrate 1st class Siwan dated 25-1-1988 has been filed as Ext. D.
21. Looking to both the versions given by the prosecution as well as defence in this case, no one has said about the injuries having been given to each other. The fard-beyan and the first information reports of both the cases being Exts. 4, 3 and B.C. respectively are also silent about this aspect as persons of both sides having been injured. It is only Dr. Shyam Balak Sinha(P.W. 13) who says about the medical examination of P.Ws. 1,4,10 and Srimatia Devi on 26-1 -1977 at 7.5 to 7.15 p.m. and giving injury reports (Ext. 7 series). He also says about the medical examination of the appellant Mahatam, Sheoji and Radha on 26-1-1977 between 8.15 to 9 p.m. Though injury reports have not been brought on the record but the Doctor has said in his statement about the injuries received by the said three appellants. He says that the had examined the three appellants on the police report but no police report has been brought on record. About the injuries of the three P.Ws., namely, P.Ws. 1, 4, 10 and Srimatia Devi there is a requisition dated 26-1-1977 on a prescribed form while about P.W. 4 Dwarika and Srimati Devi is on plain paper. Only this much is made out that this Doctor had examined four persons from the side of the prosecution and three from the side of the appellants on 26-8-1977 in the evening between 7.5 p.m. to 9 p.m.
22. The contention of the learned Counsel for the appellants is that the prosecution has suppressed the injuries of the accused which are said to have been received in the same transaction and so the prosecution has suppressed the genesis of the occurrence and that creates doubt. Whereas learned Counsel for the State has said that the occurrence had not taken place in this same transaction and so the prosecution case cannot be doubted on that score. In the case of Mohar Rai v. State of Bihar, AIR 1968 SC 1281 : (1968 CriLJ 1479) it has been observed at page 1284 (of AIR) : (at p. 1482 of Cri LJ) in para 6 : --
The evidence of Dr. Bishun Prasad Sinha (P.W. 18) clearly shows that those injuries could not have been self-inflicted and further, according to him it was most unlikely that they would have been caused at the instance of the appellants themselves. Under these circumstances we are unable to agree with the High Court that the prosecution had no duty to offer any explanation as regards those injuries. On our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants.
In the case of Bankey Lal v. State of U.P., AIR 1971 SC 2233 : (1971 Cri LJ 1540) where the learned Counsel contended that the prosecution has not explained the injury found on the person of Bankey Lal. the entire prosecution case has to be discarded and in support of his contention he relied upon the case of Mohar Rai v. State of Bihar (1968 Cri LJ 1479) (SC) (supra) and Ugar Ahir v. State of Bihar, AIR 1965 SC 277 : (1965 (1) Cri LJ 256) in which their Lordships of the Supreme Court have observed about the case of Mohar Rai that failure on the part of the prosecution witnesses to explain the injuries on the persons of the accused went to show that the prosecution witnesses were not truthful witnesses and further on the material on record the possibility of self-defence could not be ruled out. For the second case their Lordships said that the maxim falsus in uno, falsus in omnibus is neither a sound rule of law nor rule of practice. Then their Lordships observed at page 2235 (of AIR) : (at p. 1542 of Cri LJ) in para 10:--
... We fail to see how these decisions are of any assistance to the appellants. It is true that if prosecution witnesses are proved to have not deposed truly in all respects their evidence is required to be scrutinised with care....
In the case of Ram Narain v. State of Uttar Pradesh, AIR 1972 SC 2545 : 1973 SCC (Cri) 241 : (1973 Cri LJ 29) it has been observed in para 8:--
the absence of any explanation with the regard to the injuries on Ram Narain is certainly an infirmity in the case of prosecution which cannot be lost sight of, but it must be remembered that generally the witnesses are anxious to suppress any injury which might have been inflicted by any one from the complainant's party..In view of the medical and circumstantial evidence which corroborates the eye-witnesses the case of the prosecution with regard to Ram Narain, Jagmohan Hari Pd. and Ghasitay cannot be rejected.
In the case of Bhagwan Tana Patil v. State of Maharashtra, AIR 1974 SC 21 : (1974 Cri L.J 145 it has been held at page 25 (of AIR) : (at Pp. I48 & 149 of Cri LJ) (para 15):.True that the explanation given was not found impeachable but there is no hard and fast rule that simply because the prosecution witnesses did not explain the injuries on the person of the accused, their entire evidence should be discarded. The observation of this Court in Baneky Lal v. State of Uttar Pradesh Cr. Appeal No. 199 of 1968, D/-4-2-1971 : (reported in AIR 1971 SC 2233 : 1971 Cri I..I 1540) are in point. The evidence of Bhai v. an Parashram could not be brushed aside merely he had not given a flawless explanation of the injuries of the appellant which according to Dr. Guna P.W. 8 were very superficial and could be suffered by consent with a razor blade.
In the ease of Onkarnath Singh v. State of U.P., AIR 1974 SC 1550 : (1974 Cri LJ 2015) their Lordships have been pleased to observe at page 1557 (of AIR) : (at p. 1023 of Cri LJ ), paras 34 and 35 : --
34. The question is, what is the effect of the injuires of Parasnath. This is a question of fact and not one of law. Answer to such a question depends upon the circumstances of each case. This court has repeatedly pointed out that the entire prosecution case cannot be thrown over board simply because the prosecution witnesses do not explain the injuries on the person of the accused see AIR 1971 SC 2233 : (1971 Cri LJ 1540) (supra) and Bhagwan Tana Patil v. State of Maharashtra, Cri. Appeal No. 78/70, D/-9-10-I973 : (reported in AIR 1974 SC 21 : 1974 Cr LJ 145).
35 ... In some cases, the failure of the prosecution to account for the injuries of the accused may undermine its evidence to the core and falsify the substratum of its story, while in others it may have little or no adverse effect on the prosecution case. It may also, in a given case, strengthen the plea of private defence set up by the accused. But it cannot be laid down as an invariable proposition of law of universal application that as soon as it is found that the accused had received injuries in the same transaction in which the complainant party was assaulted, the plea of private defence would stand prima facie established and the burden would shift on to the prosecution 10 prove that those injuries were caused to the accused in self-defence by the complainant party. For instance where two parties come armed with a determination to measure Their strength and to settle a dispute by force of arms and in the ensuing fight both sides receive injuries, no question of private defence arises.
In the ease of State of Gujarat v. Bai Fatima, AIR 1975 SC 1478 : (1975 Cri I.J 1079) again their Lordships observed at 1482 (of AIR) : (at p. 1084 of Cr LJ) in para 17:
In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow : --
(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self-defence.
(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to-have been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all. Question is in which category the present case falls?
In the case of Lakshmi Singh v. State of Bihar. AIR 1976 SC 2263 : (1976 Cri LJ 1736) the Supreme Court considered this aspect of the matter at page 2269 (of AIR) : (at p. 1742 of Cri LJ) in para 11:--.It seems to us that in a murder case the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance the from which the Court can draw the following inferences:
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version:
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability, with that of the prosecution one....
In the case of Bhaba Nanda Sarma v. State of Assam, AIR 1977 SC 2252 : (1977 Cri L.I 1930) the Supreme Court has observed, in para 2 at page 2253 (of AIR) : (at p. 1931 of Cri LJ) : .In a case of this nature before an adverse inference is drawn against the prose caution for its alleged suppression of failute to explain the injuries on the person of an accused, it must be reasonable shown that, in all probability, the injuries were caused to him in the same occurrence or as a part of the same transaction in which the victims on the side of the prosecution Were injured. The prosecution is not obliged to explain the injuries on the person of an accused in all cases and in all circumstances. This is not the law. It all depends upon the facts and circumstances of each case whether the prosecution case becomes reasonably doubtful for its failure to. explain the injuries on the accused. In the instant case the Sessions Judge was not justified in doubting the truth of the version given by the eye-witnesses -- three of whom were wholly independent witnesses. Gopi Nath was surely present on the scene of the occurrence as he himself had received the injuries in the same transaction. The High Court has rightly believed the testimony of the eye-witnesses.
In the case of Jagdish v. State of Rajasthan, AIR 1979 SC 1010 : (1979 Cri LJ 888) the Supreme Court observed at page 1011, para 1 : 'It is true that the accused had some injuries on their persons. The injuries on their persons were extremely superficial and could be easily explained. As regards Nanda, it is true that he had five injuries out of which two are confused wounds. It was the evidence of D. W. I that he examined the injuries on 25-6-67 i.e. two to four days after the occurrence. It has not been proved that all the injuries sustained by him were sustained in the course of altercation which resulted in the death of the deceased, so as to lay the burden on the prosecution to explain the presence of these injuries. Even the contusions are not of serious nature. It is true that where serious injuries are found on the person of the accused, as a principle of appreciation of evidence, it becomes obligatory on, the prosecution to explain the injuries, so as to satisfy the court as to the circusmtances under which the occurrence originated. But before this obligation is placed on the prosecution, two conditions must be satisfied :
1. that the injuries on the person of the accused must be very serious and severe and not superficial;
2. that it must be shown that these injuries must have been, caused at the time of the occurrence in question.
In the case of Ahdul Waheed v. The State of Maharashtra, AIR 1979 SC 1828 : (1979 Cri L.J 1196) their Lordships observed in para 2:. The genesis of the defence case was that there was a grazing dispute in the field of the appellant which led the deceased to assault the appellant and in the course of the mutual scuffle, the deceased was given a knife blow which resulted in his death. Although F.I.R. was lodged by the defence, there was nothing to show that the investigating officer was taken to the field to find out whether any grazing incident had taken place or not. Furthermore, P. Ws. 1,3,4 and 5 have proved the case against the accused as eyewitnesses and out of them P.W. 1, Shekh Chand, is an absolutely independent witness, hence there is no reason to distrust his evidence. It may be, as the Sessions Judge has pointed out, that after the appellant caused the murder of the deceased, there may have been mutual scuffle by way of reprisal and some of the accused were assaulted in that incident. That is why the appellant lodged his F.I.R. more than an hour after the F.I.R. lodged by the complainant. Having gone through the medical evidence and the defence evidence, we are not satisfied that the defence came out in this case with the true version.
In the case of Hare Krishna Singh v. State of Bihar, AIR 1988 SC 863 : (1988 Cri LJ 925) their Lordships after referring to many of the above mentioned decisions observed at page 868 (of AIR) : (at : p. 930 of Cri LJ) in paras 18, 20 and 21 :
We have referred to the above decisions in extensor in order to consider whether it is an invariable proposition of law that the prosecution is obliged to explain the injuries sustained by the accused in the same occurrence and whether failure of the prosecution to so explain the injuries on the person of the accused would mean that the prosecution has suppressed the truth and also the genesis or origin of the occurrence. Upon a conspectus of the decisions mentioned above, we are of the view that the question as to the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. The burden of proving the guilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything indefence. The prosecution has to prove the guilt of the accused beyond all reasonable doubts. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of the guilt of the accused beyond any reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused.
20. All the decisions of this Court which have been referred to and discussed above, show that when the Court has believed the prosecution witnesses as convincing and trustworthy, the Court overruled the contention of the accused that as the prosecution had failed to explain the injuries sustained by the accused in the same occurrence, the prosecution case should be disbelieved and the accused should be acquitted. Thus, it is not the law or invariable rule that whenever the accused sustains an injury in the same occurrence, the prosecution has to explain the injuries failure of which will mean that the prosecution has suppressed the truth and also the origin and genesis of the occurrence.
21. ... But, even then, in the fact and circumstances of the case the prosecution, in our opinion, is not obliged to account for the injury and that the failure of the prosecution to give a reasonable explanation of the injury would not go against or throw any doubt on the prosecution case....
In the case of Vijayee Singh v. State of U. P., 1990 Cri LJ 1510 : 1990 SCC (Cri) 378 : (AIR 1990 SC 1459) their Lordships have observed at page 388 (SCC (Cri) (at p. 1516 of Cri LJ)) in para 9 : --.We are not prepared to agree with the learned Counsel for the defence that in each and every case where prosecution fails to explain the injuries found on some of the accused, the prosecution case should automatically be rejected without any further probe. He placed considerable reliance on some of the judgments of this Court. After referring to certain passages in the discussions in Mohan Rai and Bharat Rai (1968 Cri LJ 1479) (SC) (supra) and Lakshmi Singh (1976 Cri LJ 1736) (SC) (supra) their Lordships of the Supreme Court observed at pages 389 and 409 SCC(Cri) : (at pp. 1517-18 and 1530-31 of Cri LJ) Paras 10 and 34) as follows:--
Relying on these two cases the learned Counsel for the defence contended that in the instant case the prosecution has failed to explain the injuries on the two accused and the genesis and the origin of the occurrence have been suppressed and a true version has not been presented before the Court and consequently the truth from falsehood cannot be separated and consequently the entire prosecution case must be rejected. We are unable to agree. In Mohar Rai's case, 1968 Cri LJ 1479 : (AIR 1968 SCI 281), it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true or at any rate not wholly true. Likewise in Lakshmi Singh's case, 1976 Cri LJ 1736 : (AIR 1976 SC 2263), also it is observed that any non-explanation of the injuries on the accused by the prosecution may affect the prosecution case. But such a non-explanation may assume greater importance where the evidence consists of intersted or inimical witnesess or where the defence gives a version which competes in probability with that of the prosecution. But where the evidence is clear, cogent ad creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently the whole case. Much depends on the facts and circumstances of each case.
10. As discusssed above we are satisfied in this case that non-explanation of injuries on these two accused persons does not affect the prosecution case as a whole but in a case of this nature what all that the defence can contend on the basis of non-examination of injuries found on these two accused is that the accused could have had a right of private defence or at any rate a reasonable doubt arises in this regard....
34. The plea that the non-explanation of these injuries by the prosecution warrants rejection of the prosecution case, is rejected as the evidence of the material witnesses even otherwise found to be cogent, convincing and acceptable but from the circumstances these two accused particularly one of them had received gun-shot injuries during the course of the same occurrence is established. The accused have also adduced defence evidence namely, that of a Doctor in support of their plea. This material though by itself is not sufficient to establish the General Exception under Section 96 of the speical exception No. 2 to Section 300, I.P.C. but creates a reasonable doubt the existence of such a right. The accused have proved the infliction of injuries on them by the complainant party in the course of the occurrence. Therefore, the obligatory initial , presumption against them is removed and their plea appears to be reasonably true and consequently they are entitled to the right of self-defence.
In the case of State of Rajasthan v. Madho, AIR 1991 SC 1065 : 1991 Suppl (2) SCC 396 : 1991 SCC (Cri) 1048 : (1991 Cri LJ 1343), it has been observed in para 2 : --
If the prosecution witnesses shy away from the reality and do not explain the injuries caused to the respondents herein it casts a doubt on the genesis of the prosecution, case against since the evidence shows that these injuries were sustained in the course of the same incident. It gives impression that the witnesses are suppressing some part of the incident. The High Court was, therefore, of the opinion that having regard to the fact that they have failed to explain the injuries sustained by the two respondents in the course of the same transaction, the respondents were entitled to the benefit of the doubt as it was hazardous to place implicit reliance on the testimony of the injured P.W. 2.
In the case of Patori Devi v. Amar Nath, AIR 1988 SC 560 : (1988 Cri LJ 836) where the judgment of the High Court was that the version given by the defence that they were attacked first and were given various injuries indiscriminately appears to be reasonably true and at any rate the prosecution has suppressed the true version of the story, their Lordships of the Supreme Court, after giving anxious consideration to the rival contentions in the appeal by the State, and the informant, particularly, the contention that the accused had exceeded the right of private defence, have observed at page 562 (of AIR) : (at p. 839 of Cri LJ) in paragraph 9 as under:--
... Indeed, that appears to be the only contention that required to be considered, but unfortunately, in view of the intrinsic evidence on record and the number of injuries suffered by the accused, we do not think we can accede to the contention of Mr. Kohli. We are of the view that there was a soft pedaling in the investigation, if not suppression of a part of the incident. If the prosecution had revealed the entire story, we would have been able to find the nugget of truth. On the material on record, however, we are unable to find fault with the facts recorded by the High Court.
The number and nature of injuries sustained by the accused and the deceased in any case, may furnish good evidence to consider whether the accused had exceeded the right of private defence. But in the instant case, we do not want to rest our conclusion solely on the injuries sustained by the accused and the deceased.
In the case of Pattad Amarappa v. The State of Karnataka, 1990 SCC (Cri) 179 : 1989 Suppl (2) SCC 389 : (1989 Cri LJ 2167) their Lordships observed at page 194 (of SCC Cri) : (at pp. 2178-79 of Cri LJ) (para 34) as under:--
An attempt was made to draw comparison with the decision in Patori Devi v. Amar Nath, AIR 1988 SC 560 : 1988 SCC (Cri) 206 : (1988 Cri LJ 836) to contain that when the version of eye-witness was not fully acceptable on account of the prosecution suppressing the fact of the injury being caused to the accused, the acquittal of the accused was called for. We find the fact in Patori Devi's case to be entirely different. That was a case where the High Court set aside the conviction awarded by the Sessions Judge and acquitted the accused because High Court found that the prosecution had advanced a false story that the appellants had assaulted the deceased and that the version given by the defence that they were attacked first and grievous injuries given indiscriminately to be reasonably true and High Court acquitted as prosecution failed to give true story.
23. Thus from these observations of the Supreme Court it appears that failure of the prosecution to offer any explanation in regard to the grievous and serious injuries of the accused may show that the evidence of the proseuction witnesses as to the incident is not true or at any rate not wholly true and the prosecution witnesses are not truthful and the version of the occurrence becomes doubtful and if the witnesses deny the injuries on the person of the accused then they are telling a lie on a most matreial point and thus the prosecution has suppressed the genesis and origin of the occurrence and the true picture has not been given out and this aspect assumes greater importance when evidence consists of interested or inimical witnesses or when the defence gives out a version completely improbable with the prosecution case. This standard is not so, in cases of superficial and simple injuries to the accused side where non-explanation of such injuries does not affect the prosecution version at all. In cross cases the witnesses are reluctant to say about the injuries which they have given to the other side, on account of fear of their conviction on their own admission. Therefore the Court has to see the intrinsic worth of evidence supported by medical evidence and other reliable circumstances of the case. The prosecution has to satisfy the Court as to the circumstances under which the occurrence originated. However, it is possible in some cases that after the accused has caused the murder of the deceased and in the scuffle by way of reprisal some accused got injuries and so first information report was lodged after delay and also the medical report obtained. At times the accused have self suffered injuries by way of self defence. The Court has I to consider all the circumstances and the I defence suggestions about their injuries. The obligation on the part of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every ease. The prosecution has only to prove the guilt of the accused beyond reasonable doubt and how the accused sustained the injuries are not to be explained by the prosecution. Every failure on the prosecution to give a reasonable explanation of the injury on the accused in the same transaction cannot be taken as to creating doubt about the prosecution case -- and the entire evidence of the prosecution should be discarded or be automatically rejected without any further probe. The Court is to consider the evidence and to find out if on account of the injuries to the accused, the right of self defence to the accused is made out and if so, to what extent and whether the accused had exceeded the right of self defence. But all this is to be seen when the accused have received grievous injuries in the course of the same transaction and not otherwise.
24. In the instant case the prosecution version is that on 26-1-1977 at about 8 a.m. the kid of the prosecution party had grazed wheat crop of Mahatam Rai for which the accused Mahatam Rai had protested and Phulena Choudhary in turn apologised and assured for non-recurrence of such incident in future. But the accused party did not feel content and went away threatening that they would come in the evening and so in the same evening they came back at about 4 p.m. shouting Jai Bajrang Bali at the Bathan of Phulena Rai father of the informant and the occurrence took place. The case of the prosecution about the place of occurrence being the Bathan of Phulena Rai is uniform, throughout as is evident from the evidence of P.Ws. 1, 2, 4 and 9. Even P.W. 14, the investigating officer Nasiruddin who has also investigated the cross case on the basis of Exts. A and B, has said that he inspected the wheat field of Mahatam Rai and did not find any mark of grazing or mark of trampling and that he found the Bathan as the place of occurrence from where he found blood and from where he seized the blood stained earth. Nothing is made out from the evidence to show that the place of occurrence is other than the Bathan of Phulena Rai. The prosecution evidence about this occurrence at 4 p.m. is the Bathan of Phulena Rai and not the wheat field of the accused. On the contrary, the defence in the fard-beyan and first information report (Exts. A and B) it has said that on 26-1-1977 at about 4 p.m. in the field which is towards west of Bathan of Phulena Yadav in village Bangara cow and seven buffaloes were grazing the wheat crop. Seeing this he went there and started driving the cattle to which Hari Charan protested and so there was altercation between them which attracted many people. Then Phulena Yadav asked his men to kill. Upon this Hari Charan gave a pharsa blow on the head of Mahatam Rai with intention to kill and as a result of that his head got cut and bleeding started. A lathi blow was also given on the right side of his shoulder and then Sheoji was assaulted by Mohan Rai on the right ankle and Srimatia Devi gave an assault on the shoulder and ankle and Radha Rai was assaulted by Phulena Yadav by abhala on his chest which too started bleeding. Thus not only the place of occurrence is different but the transaction is also different. The prosecution party alleges the place of occurrence as Bathan where the accused party had come in the evening after grazing matter was over in the morning whereas the defence has put a positive case that no occurrence took place in the morning, rather both grazing and assault were done in the evening at 4 p.m. in the field of Mahatam Rai alone and none else. Thus it is not made out that the assault had been given to the accused in the same transaction.
25. Fruther in the cross-case the accused P.Ws.,1, 4, 9 and 10 Mohan Yadav, Dwarika Yadav, Haricharan Yadav and Phulena Choudhary are the accused. Ramchandra Choudhary the deceased in that case is not an accused which was filed by Mahatam Rai (Ext. B and C) and similarly Srimatia Devi, who is said to have given brickbat on the shoulder, has not been made an accused. If the occurrence had taken place in the same transaction something ought to have been given out about Ramchandra Choudhary being done to death. It goes to show that Ramchandra Choudhary for whose murder the prosecution has filed fard-beyan and first I information report (Exts. 4 and 3) was not killed in the same transaction in which fard-beyan is first information report (Exts. B and C) are there. Thus when the transactions and occurrence are different one then the prosecution is not to explain even the grievous injuries of the accused. The prosecution is bound to explain the injury of the accused if the grievous injuries have been caused in the same transaction. Therefore, the prosecution cannot be doubted on the ground of suppressing the genesis of the occurrence or not giving out correct version.
26. It is also to be seen that the medical examination of the accused had been done by P.W. 13 Dr. Shyam Balak Sinha on 26-1-1977 between 8.45 p.m. to 9 p.m. after the examination of P.Ws. 1, 4, 10 and Srimatia Devi between 7.5 p.m. to 7.15. For the injuries suffered by the said P.Ws. 1 ,4, 10 and Srimatia Devi there is injury reports (Exts. 7 series) but the doctor has not proved any injury report but only given out about the injuries in his statement. Further he has said that he had examined the injuries on the accused side on the basis of the police report. The I.O. of this case is P.W. 14 who has not said anything about the alleged police report. A.S.I. Ramekbal Singh has not been examined nor any police personnel has come to say that the injury report had been prepared by him for the examination of appellants-Mahatam Rai, Sheoji and Radha Rai. Further it also appears strange that the fard-beyan (Ext. B) had been given at 10 p.m. on 26-1-1977 where as the medical examination of the three accused had been done between 8.45 to 9.00 p.m. The injury reports have not been brought on record. The doctor has only given out about the injuries of the three appellants. Radha Rai is said to have got six simple injuries. Sheoji Rai had three simple injuries. Out of three injuries to Mahatam Rai, only one was grievous caused by sharp cutting weapon and the two were simple in nature. The doctor has not said that the condition of the accused side was so serious or grave that he examined the three accused even without police report. He is catgorical in saying that he examined three appellants on the basis of police report. How the police report came into existence for medical examination of the accused between 8.45 to 9.00 p.m. when the fard-beyan itself is said to have been recorded in the same Hospital by A.S.I. Ram Iqbal Singh at 10 p.m. on 26-1-1977. Neither A.S.I. Ramekbal Singh nor anyone was examined to show that on account of seriousness and emergency the medical examination was got done without fard-beyan by Mahatam Rai and also without any report by the police for examination of three appellants. So all this creates doubt about the version given by the defence. Though the evidence by the accused is not to be tested on the same strict and stringent standard as that of the prosecution, yet the Court is to appreciate the evidence and contentions of the accused side to have some reasonable basis for acceptance. On scrutiny the version and defence contention are not able to create even reasonable doubt for disbelieving the prosecution version.
27. The defence has filed not only the fard-beyan and first information report (Exts. A and B) but also the certified copy of the judgment for the case they have set up. As seen earlier the fard-beyan is said to have been given by Mahatam Rai to A.S.I. Ramekbal Singh who has not been examined to prove that he had written this very fard-beyan. Even appellant-Mahatam Rai in his statement under Section 313, Cr. P.C. has said only that he has been implicated in this case, to save from the cross-case and he has not said that he had lodged the fard-beyan and the report. As such the contents of Exts. A and B cannot be relied on. No doubt Ext. D is the certified copy of the judgment on the basis of Exts. A and B but the present case has to be decided on the basis of evidence in this case and not in the cross-case. Each case has to be decided on the evidence recorded in it and the evidence recorded in the other case cannot be the basis for judgment in this case.--nor can this Court be influenced by that judgment. In the case of Mithulal v. The State of Madhya Pradesh, AIR 1975 SC 149 : (1975 Cri LJ 236) for the cross-case, the Supreme Court has said at page 151 (of AIR) : (at p. 238 of Cri LJ), para 4:
... This was clearly impermissible to the High Court. It is difficult to comprehend as to how the High Court could decide the appeal before it by taking into account evidence recorded in another case, even though it might be what is loosely called a cross-case. It is elementary that each case must be decided on the evidence recorded in it and evidence recorded in another case cannot be taken into account in arriving at the decision. Even in civil cases this cannot be done unless the parties are agreed that the evidence in one case may be treated as evidence in the other. Much more so in criminal cases would this be impermissible. It is doubtful whether the evidence in the other, even with the consent of the accused. But here there was clearly no consent of the appellants to treat the evidence recorded in the cross-case against them. The High Court was, therefore, clearly in error in. taking into consideration the evidence recorded in the cross-case against Ganpat and Rajdhar. The High Court ought to have decided the appeal before it only on the basis of the evidence recorded in the present case and ought not have allowed itself to be influenced by the evidence recorded in the cross-case against Ganpat and Rajdhar. It is regrettable that the High Court should have fallen into such an obvious error. The judgment of the High Court must, therefore, be set aside and we must proceed to consider whether, on the evidence recorded in the present case --without looking into the evidence recorded in the other cross-case --the conviction and sentence recorded against the appellants can be sustained.
In the case of Nathilal v. State of U. P., 1990 SCC (Cri) 638 : 1990 Suppl SCC 145 it was observed in para 2:--. In deciding each of the cases, he can rely only on the evidence recorded in that particular case, the evidence recorded in the cross-case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross-case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross-case.
28. Learned counsel for the appellants has argued that the defence has been prejudiced because the investigating officer has said that his vision has become dim and he could not read the case diary and that he had given out his statement by memory. As to this contention the I.O. (P.W. 14) himself has said that he is a retired person and that vision in his eyes has become dim and he was not able to read the case diary but the case diary was read over to him and so he had given the statement by memory. If the statement of P.W. 14 was contrary to the matter in the case diary it ought to have been pointed out to the Court below which was the best forum to look into the matter. Matters in the statement of the witnesses and the case diary should have been pointed out to the court and the court would have compared the same because if a witness for reasons beyond his control and also natural reasons is not able to see' the writing which are before the court then court would have been in a better position to see the same on the pointing out by the parties and the matter could have been decided. This argument is based on supposed prejudice and no demonstrable prejudice and no demonstrable prejudice appears to have been made out, nor any prejudice was pointed out in the court below when the witness was in dock and was able to give the answers. As such this contention has got no force.
29. After careful scrutiny and consideration of the entire material on the record and also the contentions raised by the learned Counsel for the parties at length, the conviction recorded by the court below on the basis thereof appears to be made out in accordance with law and fact. So the convictions of appellant of Thakur Rai under Sections. 302 and 148, I.P.C. and sentences of the rigorous imprisonment for life and two years thereunder are upheld and his Criminal Appeal No. 306 of 1980 is dismissed. In Cr. Appeal No. 300 of 1989, the conviction of Mukhtar Rai under Sections. 307 and 323 and 148 I.P.C. and sentences of six years R. I., two years R. I. and six months R. I. under the respective courts are maintained. His appeal is dismissed. Since the appellants have been in jail and the matter is of the year 1977, so the conviction of appellant Nos. 1, 3 to 7 of the Cr. Appeal No. 300/89, namely, Naresh Rai, Mahatam Rai, Sheoji Rai, Radha Rai, Sampat Rai and Ram Prakash under Section 148, I.P.C. and that of Sheoji Rai also under Section 324, I.P.C. though are upheld, but their sentences of 2 years R. I. under Section 148 and Sheoji's sentence of one year R. I. under Section 324, I.P.C. are recorded to the periods already undergone by them plus a fine of Rs. 2,000/- on each of them, to be paid by the each of them within a period of three months from today. In case the fine is deposited, then it will be paid to the wife of legal heirs of the deceased-Ramchandra, and other injured P.Ws., namely, Mohan Yadav, Dwarika Yadav, Haricharan Yadav and Phulena Yadav (P.Ws. 1, 4, 9 and 10). It is further made clear that out of the fine so realised, half of the amount will be paid to the wife of legal heirs of deceased Ramchandra and the other half amount will be paid to the aforesaid injured P.Ws. 1, 4, 9 and 10, namely, Mohan Yadav, Dwarika Yadav, Haricharan Yadav and Phulena Yadav. In case of default in payment of fine the appellant Nos. 1,3 to 7 of Cr. Appeal No. 300/ 89 or any one of them, will undergo rigorous imprisonment for the period of sentence awarded to them by the court below. With this modification in the sentence the appeal Cr. Appeal No. 300/89) is dismissed.
Loknath Prasad, J.
30. I agree.