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2000(4) Supreme 435
SUPREME COURT OF INDIA
(From Patna High Court)
G.B. Pattanaik, R.P. Sethi and Shivaraj V. Patil, JJ.
Rajendra Singh & Ors. -Appellants
versus
The State of Bihar -Respondent
Criminal Appeal No.1183 of 1997
Decided on 7-4-2000
Counsel for the Parties :
For the Appearing Parties : R.K. Jain, P.S. Mishra, Sr. Advocates, Akhilesh Kumar Pandey, S.K. Sinha, Chandra Shekhar, Vishnu Sharma Upendra Mishra, Ramjee Prasad and B.B. Singh, Advocates.
It is too well settled that ordinarily the prosecution is not obliged to explain each injury on an accused even though the injuries might have been caused in course of the occurrence, if the injuries are minor in nature, but at the same time if the prosecution fails to explain a grievous injury on one of the accused person which is established to have been caused in course of the same occurrence then certainly the Court looks at the prosecution case with little suspicion on the ground that the prosecution has suppressed the true version of the incident. If the evidence is clear, cogent and creditworthy then non-explanation of the injury on the accused ipso facto cannot be a basis to discard the entire prosecution case. (Para 4)
In the case in hand accused appellant Rajender had one penetrating wound, three incised wound and one lacerated wound and of these injuries the penetrating wound on the left axillary area in the 5th inter costal space 1/2" x 1/3" x 3/4" was grevious in nature as per the evidence of doctor-PW-3 who had examined him. On the basis of the evidence of PW-3 as well as PW-11 the Courts have come to the conclusion that there is no room for doubt that the appellants and their men had injuries on their person on the date of occurrence. The question, therefore, remains to be considered is whether non-explanation of said injuries on accused appellant Rajender can form the basis of a conclusion that the prosecution version is untrue. The High Court in the impugned judgment has relied upon the aforesaid principle and examined the evidence of the four eye witnesses and agreeing with the learned Sessions Judge came to the conclusion that the prosecution witnesses are trustworthy and, therefore, non-explanation of injury in question cannot be held to be fatal, and we see no infirmity with the said conclusion in view of the law laid down by this Court, as held earlier. (Para 4)
(ii) Indian Evidence Act, 1872-Section 154-Contradicting witness by his former statement-Condition precedent-His attention must be drawn to those parts of statement which are required to be used for purpose of contradicting him before said statement in question can be proved under Section 145.
Held : It is no doubt true that on 4th July 1977 Satyanarain who has been examined as PW-8 in course of trial had been examined by a Magistrate as he had been seriously injured and that statement has been exhibited as Exhibit-B and in fact the Magistrate who had recorded the statement has been examined by the defence as DW-1. This statement of Satyanarain recorded by the Magistrate may be a former statement by Satyanarain relating to the same fact at about a time when the fight took place and when said Satyanarain was examined as PW-8 during trial it would be open for a party to make use of the former statement for such purpose as the law provides. But if the witness during trial is intended to be contradicted by his former statement then his attention has to be drawn to those parts of the statement which are required to be used for the purpose of contradicting him before the said statement in question can be proved as provided under Section 145 of the Evidence Act. On scrutinising the evidence of DW-1, we find that the Magistrate who is supposed to have exhibited the document in his cross-examination categorically admitted that neither any signature nor seal of either of the Chief Judicial Magistrate or of his office on the statement Exhibit B. If according to the Magistrate on recording the statement of Satyanarain he had sent the same to the Chief Judicial Magistrate, it is inconceivable as to how the document would not bear the signature nor seal of either of the Chief Judicial Magistrate or of his office. The Magistrate in his examination-in-chief also does not state as to who identified Satyanarain in the hospital before recording his statement. It is under these circumstances it is difficult to hold that Exhibit-B has been legally proved to be the former statement of Satyanarain who has been examined as PW-8. Then again on scrutiny of the evidence PW-8 it is crystal clear that the witness has not been confronted with that part of his alleged former statement which the defence want him to be contradicted. The witness has merely been asked as to whether he stated before the Magistrate that accused Surendra has assaulted Kameshwar to which he had replied he does not recall as to what he stated before the Magistrate. In this state of affairs it is difficult for us to hold that the provisions of Section 145 of the Evidence Act has been complied with in the case in hand. Then again, so far as accused Rajender is concerned, there has been no variance in his so-called former statement Exhibit B and his statement in the Court when he was examined as PW-8 clearly asserting that Rajender assaulted the deceased Kameshwar by means of Bhala. In the aforesaid premises, we are unable to accept the second submission of Mr. Mishra and the same accordingly stands rejected. (Para 5)
(iii) Indian Penal Code, 1860- Section 300, Exception 4-Necessary ingredient to attract exception-Sudden fight, absence of pre-meditation and no undue advantage or cruelty are essential-All three ingredients must be found.
The necessary ingredients of Exception 4 to Section 300 are : (a) a sudden fight; (b) absence of pre-meditation; (c) no undue advantage or cruelty; but the occasion must be sudden and not as a cloak for pre existing malice. It is only an un-premeditated assault committed in the heat of passion upon a sudden quarrel which would come within Exception 4 and it is necessary that all the three ingredients must be found. (Para 6)
In the instant case from the evidence on record it is established that while the prosecution party was on their land it is accused who protested and prevented them from continuing with ploughing but when they did not stop accused persons rushed to the nearby plot which is their land and got weapons in their hands and assaulted the prosecution party ultimately injuring several members of the prosecution party and causing the death of one of them while they were fully unarmed. In this view of the matter on scrutinising the evidence of four eye witnesses PWs 2, 4, 7 and 8 who have depicted the entire scenario it is not possible for us to agree with the submission of Mr. Mishra, learned senior counsel appearing for the appellants that the case is one where exception 4 to Section 300 would be applicable. (Para 6)
(iv) Indian Penal Code, 1860-Section 34/302-Common intention-Accused in question had been ascribed to have given a blow on leg of deceased-Co-accused inflicted fatal injury-Accused in question could not have shared common intention with co-accused-Conviction under Section 302/34 set aside-Conviction altered into one under Section 324. (Para 7)
Key Points: - Non-explanation of injury on an accused cannot ipso facto discard the prosecution case if evidence is clear, cogent, and creditworthy (!) - Non-explanation may affect probability of the prosecution where grievous injuries are involved and the witness testimony is hostile or the incident version is contested (!) - The requirements and procedures of Section 145 Evidence Act for contradicting a witness with a former statement (Exhibit B) were not satisfied in the noted case, impacting admissibility (!) - The court held that there was no common intention shared by Triloki with Rajender to murder, reducing liability from 302/34 to 324 IPC for Triloki; Rajender’s conviction was altered to 302 IPC (without 34) and sentence upheld (!) (!) - The judgment clarifies the distinction between common intention and similar intention under Dukhmochan Pandey v. State of Bihar and related precedents (!) - The jury of eyewitnesses PW-2, PW-4, PW-7, PW-8 formed the basis of the conviction; medical evidence supported homicidal death (!) (!) - The arguments on Exception 4 to Section 300 IPC were rejected as not satisfying the three ingredients for sudden fight and lack of pre-meditation (!)
JUDGMENT
Pattanaik J.-The two appellants, Rajendra Singh and Triloki Singh have assailed their conviction and sentence passed by the First Additional Sessions Judge, Saran in Sessions Trial No. 189 of 1981, which has been upheld in Appeal by the High Court of Patna in Criminal Appeal No. 146 of 1985. Before the learned Trial Judge in all there were nine accused persons but six of them were acquitted and only two appellants alongwith one Prabhunath Singh were convicted but said Prabhunath died during the pendency of appeal in the High Court, and as such, there are two appellants in this Court. The prosecution case in nutshell is: that on 4th July, 1977 an incident occurred in village Jaidpur Tola Pilui in the district of Saran and one Kameshwar Singh was murdered. Satyanarain PW 8 gave the First Information Report at 6.00 P.M. at Sadar Hospital, Chapra where he was lying injured, alleging therein that at 11.45 a.m. while the informant was getting his field ploughed by a tractor which he had hired from PW 5 these appellants and others came and asked the informant party not to plough the field but when the informant protested he was abused and then accused No. 1 assaulted him by means of Bhala on his abdomen whereas accused No. 2 assaulted him on his chest. Deceased Kameshwar who was the nephew of the informant was assaulted by accused No.1 in his abdomen and thereafter all the accused persons assaulted him. The prosecution also further alleged that brother of the informant Banwari Singh had also been assaulted by accused Nos. 7, 1 and 2 and the acquitted persons assaulted him by means of lathi. It is also the further case of the prosecution that PW 7 who is the nephew of the informant had also been assaulted. On the basis of the aforesaid First Information Report Sub Inspector of Police PW 9 registered a case and started investigation. The Investigating Officer went to the village and held the inquest over the dead body at 9.45 p.m. and prepared an Inquest Report Exhibit-7. The dead body was sent for autopsy which was conducted by doctor PW 3. The said doctor had also examined the injuries on the person of the informant on the requisition of the Investigating Officer. Finally Chargesheet was submitted as against 9 accused persons, as already stated, against Rajender Singh, Prabhunath Singh and Triloki under Section 302 for the murder of Kameshwar and against all the nine accused persons including the six acquitted under Section 302/149 for being members of an unlawful assembly in prosecution of the common object of which assembly Rajender and others assaulted the deceased and then murdered. Rajender Singh and Prabhunath Singh were further charged under Section 307 and there were charges under Sections 148 and 147 and also under Sections 324 and 323 of Indian Penal Code. From the evidence of doctor-PW 3 who conducted the postmortem on the dead body of Kameshwar it is crystal clear that the death was homicidal and the said conclusion of the learned Sessions Judge has been affirmed by the High Court in appeal and had not been assailed before us. To bring home the charges against the accused persons the prosecution relied upon four eye witnesses, namely, PWs 2, 4, 7 and 8. The defence also examined the Magistrate as DW 1 who is alleged to have recorded the statement of informant PW 8 at the hospital on the date of occurrence while he was lying in injured condition. The said statement has been marked as Exhibit B . From the cross-examination of the prosecution witnesses, the defence case appears to be that the occurrence in fact took place on Plot No. 4514 belonging to the accused lying contiguous south of plot No. 4513 while the accused persons were on their field and, therefore, it is the prosecution party who are the aggressors and the accused persons are entitled to right of private defence of property as well as person. On a thorough analysis of the entire evidence on record the learned Sessions Judge came to the conclusion that
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