Judgment:
M.L. Visa, J.
1. This appeal is directed against the judgment arid order dated 15-12-1986 passed by the 3rd Additional Sessions Judge, Siwan in Sessions Trial No. 52 of 1986 convicting and sentencing all the appellants to undergo imprisonment for life for the offence under Sections 302/34, I.P.C. and R.I. for 7 years each for the offence under Section 307, I.P.C. Appellants Chhabila Choudhary and Jawahar Choudhary have been further convicted and sentenced to undergo R.I. for one month each under Section 323, I.P.C. All the sentences have, however, been ordered to run concurrently.
2. The facts of the case, in short, are that Subedar Choudhary (P.W. 1), the informant, got his fardbeyan recorded by S.I. Sachchidanand Bajpayee (P.W. 4) on 31-5-85 at Sadar Hospital Siwan stating therein that on the same day i.e. on 31-5-85 in the morning he had gone to see bullock in village market along with his 'Samdhi' Mahabir Choudhary who had come to him for purchasing bullock and they both at 11.30 a.m. returned to the informant's house situated at Village Kharati, P.S. Hussainganj, District Siwan and they both were sitting at the 'Darwaja' when all of a sudden, the appellants along with Chandrawati Devi wife of appellant Chhabila Choudhary and Bartni, wife of Lal Babu Choudhary armed with lathis came there and surrounded the informant and thereafter started abusing him and assaulting all the inmates of the house. When Mahabir Choudhary, the Samdhi of the informant came to help the informant and his family members, the appellants and their companions started assaulting him also as the result of which he became unconscious and fell down on the ground. When Suresh Choudhary, grandson of the informant, who was inside the house came running outside for the help of the informant, he was also assaulted by appellants and their companions with lathis. On hulla Mahendra Choudhary (not examined), Jagarnath Choudhary (P.W. 3) and others came there and they saved the informant and his family members. It is further alleged that the appellants while leaving the house of informant said that they wanted to kill the informant but because of intervention of other persons they were going back but they would kill someone from the family. After this assault, the informant, his 'Samdhi' and his grandson Suresh Choudhary went to Siwan Sadar Hospital for treatment where on 2-6-85 Mahabir Choudhary succumbed to injuries. About the motive of the occurrence, the informant stated in his fardbeyan that about 20-25 days prior to the date of occurrence a quarrel had taken place between females of his family and family of appellant Chhabila Choudhary.
3. On the basis of fardbeyan Police drew an F.I.R. under Sections 307/323/447/34, I.P.C. in which subsequently Section 302, I.P.C. was also added. The police after investigation submitted charge-sheet against the appellants as well as against Chandrawati Devi and Bartni and the C. J.M., Siwan took cognizance of the offences and committed the case to the Court of Sessions on 11-2-86 where charges under Section 302 read with Section 34 of the Indian Penal Code for intentionally causing the death of Mahabir Choudhary in furtherance of common intention, under Section 307, I.P.C. for attempting to commit murder of informant and Section 147 for being the members of unlawful assembly and Section 323 for voluntarily causing hurt to Suresh Choudhary were framed. The Court below after trial did not find Chandrawati Devi and Bartani guilty of any charge and accordingly acquitted them. So far as the case of appellants is concerned, the trial Court found them guilty under Sections 302 and 307, I.P.C. and besides this, found the appellants Chhabilal Choudhary and Jawahar Choudhary further guilty under Section 323, I.P.C. and accordingly, conflicted and sentenced them as stated above.
4. The case of the appellants is total denial of their participation in the offence.
5. In order to prove its case, the prosecution has examined 11 witnesses. Subedar Choudhary (P.W. 1) is the informant. Suresh Yadav (P.W. 2) is the grandson of the informant, who is also said to have received injuries besides the informant. Jagarnath Choudhary (P.W. 3) has not fully supported the case of the prosecution and has simply stated that at the time of occurrence, on hearing hulla when he went to the place of occurrence, he saw that Mahabir Choudhary was lying injured at the 'Darwaja' of the house of the informant and he also saw the appellants armed with lathis standing at the 'Darwaja' of their house. He has further stated that he had seen injuries on the informant and Suresh Yadav. He has been declared hostile by the prosecution. Lalmuni Devi (P.W. 5) is the witness to the occurrence. Dr. Lakhi Chandra Prasad (P.W. 8) is the doctor who has held post-mortem examination on the dead body of Mahabir Choudhary. Dr. R.K. Choubey (P.W. 10) was posted as Civil Assistant Surgeon at Siwan Sadar Hospital at the relevant time, in whose presence the deceased was admitted in the hospital, Dr. Anil Kumar Verma (P.W. 11) is also a doctor who was posted at the relevant time as Civil Assistant Surgeon at Siwan Sadar Hospital and had admitted the deceased in the hospital. Shyam Narayan Prasad (P.W. 9) is a Peon in Siwan Sadar Hospital, who has brought Indoor Admission Register, Emergency Outdoor Patient Register and Bed-Head Tickets from the hospital. Keshaw Prasad Dubey (P.W. 7) is the I.O. of the case who after completing the investigation to certain stage handed over the charge to Ram Sharan Choudhary (P.W, 6), who had submitted the charge-sheet. Sachchidanand Bajpayee (P.W. 4), who was posted at the relevant time as Officer-in-charge of Siwan (Town) Police Station and, he had recorded the statements of informant at Siwan Sadar Hospital and had prepared inquest report after the death of the deceased.
6. Subedar Choudhary (P.W. 1), the informant in his evidence has stated that at the time of occurrence he and his 'Samdhi' Mahabir Choudhary were sitting at the 'darwaja' of his house when all the appellants along with Chandrawati Devi and Bartani came there and started abusing him saying that they would kill him and thereafter, they started assaulting him. According to him, all the appellants were armed with lathis whereas the two ladies were carrying bricks and they all started assaulting him with lathis and bricks and when his 'Samdhi' Mahabir Choudhary came to his rescue, the appellants and their companions assaulted Mahabir Choudhary also, who after receiving injuries became unconscious and subsequently died. He has further stated that when his grandson Suresh carne there, he was also assaulted. He has added that he took his 'Samdhi', who was then unconscious, to Hussainganj Hospital where the doctor advised him to take his injured 'Samdhi' to Siwan Sadar Hospital and he then went there where his statements were recorded on which his grand son signed as witness and his 'Samdhi' subsequently died in the hospital on the third day of the occurrence because of injuries sustained by him. About the motive of the occurrence, he has stated that 10-15 days prior to the occurrence a domestic quarrel had taken place. Suresh Yadav (P.W. 2), the grandson of the informant, supporting the case of the prosecution has stated that at the time of occurrence he was in his house and after hearing 'hulla' when he came out, he saw all the appellants along with Chandrawati and Bartani assaulting the informant and when his maternal grandfather went to rescue, the appellants assaulted him also. He has further stated that he was also assaulted by appellants Chhabila Choudhary and Jawahar Choudhary and by Chandrawati Devi. Lalmuni Devi (P.W. 5) has stated that at the time of occurrence she was in her house and when she heard 'hulla' from the house of informant, she went there and saw the appellants assaulting the deceased. She has not stated about the assault to the informant and Suresh Yadav by the appellants.
7. Dr. Lakhi Chand Prasad (P.W. 8) has stated that on 3-6-85 he was posted as Deputy Superintendent at Siwan Sadar Hospital and on that day at about 7.30 p.m. he held the post-mortem Examination on the dead body of Mahabir Choudhary and found the following injuries:
(i) A stitched wound 2 1/2' x 1' on the front skull and on opening wound it was found to be lacerated and the scalp tissues contained blood and the blood clot and there was fracture of frontal bone and left parietal bone and blood and blood clots were found inside the brain.
(ii) Bruise 2' x 1' on left side of chest with blood and blood clots in the soft tissues.
(iii) Abrasion 3' x 2' on right side of the buttock.
According to him, all the aforesaid injuries were caused by hard and blunt substance which may be the lathi and the death was caused due to head injury which led the fracture of skull bone and haemorrhage inside the brain. About the time of death, he has stated that it was 5.30 p.m. on 2-6-85 as per hospital report. Dr. R.K. Chaubey (P.W. 10) has stated that on 31-5-85 he was posted at Siwan Sadar Hospital as Assistant Civil Surgeon and on that day deceased Mahabir Choudhary was admitted as injured with injuries. He has proved Entry No. 2581 dated 31-5-85 (Ext. 7) relating to the admission of the deceased. He has further stated that he had prepared the bed-head ticket (Ext. 8) and he has also proved Entry No. 1103 dated 31-5-85 in the Indoor Register relating to the deceased (Ext. 9). He has further stated that on 31-5-85, he examined Subedar Choudhary and Suresh Yadav and found injuries on their persons which were caused by hard an blunt substance and he has proved injury reports (Exts. 10 and 10/1).
8. Sachchidanand Bajpayee (P.W. 4), A.S.I., has stated that on 31-5-85 he was posted at Siwan (Town) Police Station and on that day after receiving O.D. Slip, he went to Siwan Sadar Hospital where he recorded the fardbeyan of Subedar Chaudhary. He has proved the fardbeyan (Ext. 2) and has also proved the signature of Suresh Yadav (P.W. 2) on this fardbeyan marked as Ext. 1. He has also proved the endorsement and signature of T.N. Mukherjee (Ext. 3), the then Officer-in-charge of Siwan (Town) Police Station on the fardbeyan. He has also stated that on 2-6-85 he had prepared the inquest report (Ext. 4) of the dead body of the deceased on which the witness Suresh Choudhary put his signatures (Ext. 1/1). Keshaw Prasad Dubey (P.W. 7), S.I. has stated that he had investigated the case and after visiting the place of occurrence and recording the statements of witnesses he handed over the charge of investigation on 6-6-85 to Officer-in-charge of Hussainganj Police Station. Ram Sharan Choudhary (P.W. 6) has stated that on 6-6-85 he took over the charge of investigation from Keshaw Prasad Dubey (P.W. 7) and he also received post-mortem examination report of the deceased and injury reports of informant and Suresh Yadav and on 7-6-85 he along with D.S.P. Lakshman Prasad singh visited the place of occurrence and recorded the statements of witnesses and after completing investigation submitted charge-sheet.
9. Learned Counsel appearing on behalf of the appellants has argued that the informant Subedar Choudhary (P.W. 1) in his evidence has admitted that first of all, he took the deceased, who was at that time in unconscious condition, to Hussainganj Police Station where he remained for about five minutes and had talked with Officer I/C and the doctor who, both, saw his injuries as well as the injuries of the deceased and the informant has admitted that about the occurrence he got his statements recorded at Hussainganj Police Station but the prosecution has not produced that statement which, according to the informant was first statement recorded for the occurrence. From the evidence of the informant, we find that in paragraph 20 of his evidence he has simply stated that he got his statements recorded at Hussainganj Police Station as well as at his 'darwaja' but at Hussainganj Police Station his LTI was not taken. In the next paragraph of the statement, he has simply stated that at police station where he had gone first taking the body of the deceased, who at that time was injured, the doctor and the Officer I/C of Hussainpur Police Station had seen his injures as well as injuries of the deceased. His statement that no LTI was taken on any document at Hussainpur Police Station completely negatives that any F.I.R. was lodged at Hussainpur Police Station. Besides this, none of the three police witnesses who have been examined in this case including the I.O. has stated that any F.I.R. was recorded at Hussainpur Police Station. We, therefore, find that the Court below has rightly held that 'for a valid F.I.R. under Section 154, Cr. P.C. It is necessary that the statement relating to the cognizance offence must be made to the Officer I/C of the Police Station and signature or thumb impression of maker of the statement must be obtained on the statement which is required to be reduced to writing'. In absence of any proof that any FIR was first recorded at Hussainganj Police Station, the question of its production or drawing adverse inference for its non-production does not arise.
10. The next point urged on behalf of the appellants is that according to the prosecution, all the three injured persons including the deceased had gone to Siwan Sadar Hospital where they were examined by the doctor but injury reports in respect of only the informant, Subedar Choudhary (P.W. 1) and Suresh Yadav (P.W. 2) have been brought on record which are exhibits 10 and 10/1 and no injury report in respect of deceased has been produced which goes to suggest that when the deceased was taken to Siwan Sadar Hospital he had no injury. I am unable to accept this argument for a number of reasons. Apart from the evidence of informant Subedar Choudhary (P.W. 1) and Suresh Yadav (P.W. 2) that after occurrence they along with the deceased went to Siwan Sadar Hospital, there is evidence of Dr. R.K. Choubey (P.W. 10), who at the relevant, time was posted there as Civil Assistant Surgeon, that deceased was admitted in the Hospital on 31-5-85 with injuries. The bed head ticket of the deceased (Ext. 8) which is in the writing of Dr, R.K. Choubey also shows that the deceased was admitted in Siwan Sadar Hospital on 31-5-85 for the treatment of his injuries. The inquest report (Ext. 4) shows that deceased had injuries and the post-mortem examination report (Ext. 6) shows that deceased died of injuries. The fact that cause of death of the deceased was result of injuries which he had received has not been challenged by the appellants. Under such circumstances, it will be quite absurd to hold that when the deceased was taken to Siwan Sadar Hospital, he had no injury and after his admission in the Hospital, he received injuries which resulted into his death. Besides this, A.S.I. Sachchidanand Bajpayee (P.W. 4) has proved the requisition addressed to the Medical Officer, Siwan Sadar Hospital, which he had prepared in respect of injuries of deceased. It has been marked as Ext. 11 (although in the deposition of this witness it has wrongly been marked in Ext. 5 series). This requisition which after examining or the body of the deceased was prepared on 31-5-85 by Sachchidanand Bajpayee (P.W. 4), the then S.I,, Siwan Town Police Station, shows that deceased had injuries on his person. The deceased was admitted in the Hospital for the treatment of injury which is amply proved by entry in the admission register (Ext. 7) and bed-head ticket (Ext. 8) and deceased died in the same hospital on 2-6-85 which has also been proved by evidence of Dr. Anil Kumar Verma who was posted on that day in Siwan Sadar Hospital and who made endorsement (Ext. 8/1) to this effect. Under such circumstances, the absence of a separate report prepared by a doctor at the time of admission of deceased in the hospital certifying the nature of injuries found by him on the person of deceased will not be a ground for throwing away the entire case of the prosecution. The prosecution was required to prove that deceased had received injuries, in the manner as alleged which ultimately were the cause of death of the deceased and in the present case, the prosecution has proved it by sufficient evidence,
11. Learned Counsel appearing on behalf of the appellants has further contended that Suresh Yadav (P.W. 2) in his cross-examination, has stated that when he first saw the occurrence, he found the appellants and their companions assaulting the deceased which is against the statements of informant made in the fardbeyan where it is stated that first of all informant was assaulted and thereafter deceased and lastly when Suresh Yadav (P.W. 2) came to save the informant and deceased, he was also assaulted. It has been urged that the sequence in which the informant, deceased and Suresh Yadav are said to have been assaulted by the appellants as given in the fardbeyan and in the evidence by the informant has not been corroborated by the aforesaid evidence of Suresh Yadav (P.W. 2). The prosecution has brought on record that the occurrence had taken place at the 'darwaja' of the house of informant and at the time of occurrence Suresh Yadav (P.W. 2) was in his house and on hearing 'hulla' he came out and saw the occurrence. In his examination-in-chief he has clearly stated that when he came out, he found that informant was being assaulted by the appellants and their companions and when the deceased went to the help of informant, the deceased was also assaulted and he himself thereafter was assaulted by the appellants Jawahar Choudhary and Chhabila Choudhary and by Chandravati Devi. This sequence of assault on the injured persons finds support from the fardbeyan and evidence of informant. In view of this fact a slight difference appearing in cross examination of P.W. 2 in the sequence regarding the assault on the deceased, informant and himself is not very much material and does not make the evidence of this witness unreliable. About Lalmuni Devi (P.W. 5), learned Counsel appearing on behalf of the appellants has submitted that she in paragraph 4 of her cross-examination has first stated that her previous husband Rama Choudhary is dead but in the same breath she corrected this statement by saying that he is alive but he is almost like a dead person and such conduct of this witness shows that she is not speaking truth and she is not trustworthy. I am unable to accept this argument because admittedly this witness has married somebody else after deserting her previous husband Rama Choudhary and her answer to the question which was in respect of her previous husband that he is dead simply shows her hatred towards her husband because she has left him and married another man but immediately she corrected this statement by replying that her previous husband is alive but he is almost like a dead person. Her evidence that at the time of occurrence, she was in her house and on hearing hulla from the darwaja of the house of the informant went there and she saw all the appellants assaulting the deceased supports the case of the prosecution.
12. So considering the evidence on record in respect of charge under Sections 302/34, I.P.C. against the appellants for intentionally causing the death of deceased Mahabir Choudhary, I find that the prosecution has fully proved the charge against the appellants and the trial Court has rightly held them guilty in this head.
13. All the appellants were charged under Section 323 for causing hurt to Suresh Yadav (P.W. 2) but the trial Court considering the evidence of Suresh Yadav that he was assaulted by two appellants only, namely Jawahar Choudhary and Chhabila Choudhary found them guilty under Section 323 and remaining two appellants namely, Lal Babu Choudhary and Hira Lal Choudhary have not been found guilty under the same. To me it appears that the trial Court has rightly held Lal Babu Choudhary and Hira Lal Choudhary not guilty under Section 323, I.P.C.
14. So far as charge under Section 307, I.P.C. against all the appellants for making attempt of murder of the informant Subedar Choudhary is concerned, the trial Court has rightly observed that although all the injuries inflicted on the informant were simple in nature caused by hard and blunt substance and none of the injuries was on any vital part on the body of informant but then the conduct of appellants while assaulting informant saying that they would kill him and when his 'saradhi' i.e., Mahabir Choudhary went to rescue him he was so badly assaulted by the appellants that he subsequently succumbed to injuries clearly proves the intention of the appellants for committing murder of informant Subedar Choudhary. The trial Court has rightly held that had the deceased not intervened the appellants might have committed the murder of informant. So that conviction of appellants under Section 307, I.P.C. for making an attempt to commit murder of the informant is rightly based on evidence adduced on behalf of prosecution.
15. In the result, this appeal is dismissed and the judgment and order of the Court below convicting and sentencing the appellants are hereby confirmed. As the appellants are on bail, their bail-bonds are cancelled and they are directed to surrender before the Court, below to serve the sentences passed against them.
R.N. Prasad, J.
16. I agree.