PATNA HIGH COURT
Birendra Prasad Sinha & S. Haider Shaukat Abidi, JJ.
Nagina Sharma & Ors.- Appellants
versus
The State of Bihar.
Crl. Appeal Nos. 462,499,521,527,531,532,544,545,546 & 548 of 1987 (D.B.)
All decided on 10.7.1990
Counsel for the parties:
For the Appellants: M/s. Rajendra Singh, Prakash Narayan Pandey, Ram Pravesh Sarma, Akheleshwar, Pd. Singh, Anil Singh & Gyanoo Singh
For the Respondent: Ganesh Prasad Jaiswal

IMPORTANT POINTS
1. In a case where accused has been charged with several offences and acquitted of some of them and convicted of some of them and thereafter he files appeal against the conviction, then the court while judging the legality or other wise of the conviction for the remaining offence can look into the findings arrived at by the trial court about his acquittal or of some of the accused specially when it is to deal with the same evidence in respect of conviction of the remaining accused, and when no appeal having been filed by the State.
2. In a case of offence of election booth capturing, conviction can be based on the evidence of partisan and relation witnesses even when independent and other witnesses present on the spot have not been examined.

Headnote:(i) CRIMINAL TRIAL - Evidence – Prosecution case that the assault had been done by - Respondent the accused persons who had come armed to capture the polling booth - They fired from the guns causing deaths of eight persons and injuries to about 30 persons - Witnesses examined were partisan and relation witnesses - Nonexamination of the Presiding Officer, patrolling Magistrate, the police-party and members of other castes who had assembled at the polling booth - Whether fatal to the prosecution? (No, the court has to search for the intrinsic truth in the narration)

       Held: In the villages, faction and party politics for various reasons have become so much rampant that even independent witnesses do not dare risk their life or interest or safety by giving out truth and they avoid giving evidence in court for one or the other and so the witnesses, who are of the same party or those witness, who want their own interest to save from jeopardy, come forward in the Court As to the contention that the other witnesses, namely, the presiding officer, the partrolling officer and the police party have not been examined by the prosecution, it appears from the evidence of the witnesses as referred to above that the occurrence had taken place outside the polling booth though inside the campus of the polling station. The presiding officer was inside the booth. Further the patrolling party had also come after the occurrence. Some constables were also at the polling booth and when the patrolling party came, as said by the informant, the constables of the patrolling party had chased the persons who had done the firing P.W. 1 has said that at the time of the incident the polling officer, the presiding officer and other officers were present at the booth P.W. 5- Ramnarain had said that after 15-20 minutes of firing the patrolling party came to the spot. He also said to the presiding officer to save the persons from firing with the help of the force armed with rifles, but the presiding officer said that whether he should save his service or his life or to stop the firing of the persons. How far nonexamination of such witnesses can affect the prosecution case is to be considered.

       This becomes the duty of the Court to find out after scrutiny of the evidence as whether there is truth in the evidence and whether it inspires confidence. If after scrutiny the Court finds, the evidence trustworthy then Court will have to accept the same. The court is to have regard to the broad probabilities of the case and evidence as a whole is to be considered. There should be no hypertechnical approach. The minor discrepancy and deficiency are bound to occur in truthful and natural witnesses. The main thing to be considered is as to whether the inconsistencies and improbabilities, if at all, go to the root of the matter. If the evidence gives glaring inconsistencies or the evidence does not inspire confidence of the court then definitely such evidence is to be ignored, otherwise reliable trustworthy evidence cannot be brushed aside. (Paras 13, 14, 15)

       Further held: It has also been argued that the witnesses have deposed parrot like, although they, have not been able to see the occurrence. As to this contention, the witnesses have said that they have gone to cast their votes as it was a polling day. So they had reason to be there which has not been challenged or disproved. They also said that the accused were known to them and whatever they had seen, they have given out The place of occurrence was definitely within the range of their sight and the occurrence had taken place in broad day light Further, these witnesses had been there from the beginning till the finale, that is, the running of the accused after killing the deceased and injuring the witnesses. As they were natural witnesses, their evidence has been unifirm as seen above and little variations which have been noted above, are bound to be in the natural arid truthful witnesses. Perceptiveness and noticing of the details of the same occurrence by a number of persons is bound to be a bit similar and also a bit at variance which may lead to the conclusion after appreciation of that evidence that that evidence is natural, truthful and without tutoring.

       (ii) CRIMINAL TRIAL - Evidence Act, 1872 - Section 134 - Indian Penal Code, 1860 Section 3021149 - Where a criminal trial has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims - numerical strength of the evidence has no value in face of a qualitative evidence - It is not a rule of law that in such cases there should be more than one truthful, reliable and trustworthy witness to believe.

       Held: The Supreme Court has laid down that quality and not quantity matters. Numerical strength of the evidence has no value in face of a qualitative evidence. A court is not to count, but to weigh the evidence. The counting of witnesses is a mechanical method. But if such method is adopted it is not irrational or unreasonable and no grudge can be made by an accused. Though their Lordships have not laid down a rule of law that there should be more than one truthful, reliable, and trustworthy witness to believe, but if there is more than one trustworthy and reliable evidence, then it would give further strength to already reliable and strong evidence. Such method was adopted by the High Court which Supreme Court appreciated as useful and not as necessary. There may be cases that there may be only one reliable and trustworthy evidence and to disbelieve him in such a situation may be denial of justice. If more evidence is found, then it is no doubt welcome as useful and the method of accepting the same is wise, natural and reliable. So the learned counsel cannot contend that in this case as a rule of law, there should be at least four witnesses. If more than one witness are coming forward, they should be well appreciated and considered. Appellant Nagina Sharma and Bhukump Singh @ Bhudeo have not been named in the First Information Report, but they have been identifie4. For Nagina Sharma are the identifications of P.Ws. 18 and 19, while for Bhukump are those of P.Ws. is,17and 20. As regards other appellants, except Brijnandart Sharma who had two identifications, they have been identified by three or more persons. The rest of the appellants have been named in the First Information Report As seen earlier in the instant case also more than two witnesses have deposed about the occurrence and given consistent account which shows the participation of the accused in offences of this occurrence. Their evidence has been subjected to severe cross-examination and they have not been shaken and so their evidence has to be relied on. (para 19)

       (iii) Indian Penal Code, 1860 - Section 302/ -149 - Conviction under - Appeal - Nou-examination of the officer registering the First Information Report - Whether fatal to the prosecution? - (No)

       Held: As to this point, as seen earlier, P.W. 22 Rampeyare Singh, A.S.I. has proved the carbon copy of the First Information Report as well as carbon copy ofthe fard beyan, He has said that he had seen Nagendra Singh's writing. Further the informant himself had admitted the contents of the First Information Report in all its entirety and particulars. He also admits to have put his signatures on the fardbeyan on the basis of which the First Infonnation Report had been registered. Further P.W. 22 Ram Peyare identified the signatures of the police officer who has signed on the report The handwriting and signature of the police officer who had registered the First Information Report have been formally proved by this witness. The prosecution has thus discharged its duty to produce it and finally proved it like any other document to be tested and considered by the Court. Further there does not appear to be any rcason to the prosecution for changing the first information report or fabricating the same when all the witnesses have deposed accordingly and the circumstances of the case speak in support thereof. In these circumstances, the Court cannot presume that the fard-beyan and the fIrst information report are spurious or fabricated documents and the non-examination of the officerregistering the fIrst information report has any effect fatal to the prosecution. (Para 23)

       (iv) CRIMINAL TRIAL - Non-examination of the Investigating Officer and the Doctor - Consequences

       Held: That the investigating officer is a material witness as he investigates the case, maintains the case diary, goes to the place of occurrence, sends the dead body, after preparing inquest report, for postmortem examination and also sends the injured for medical examination and then gets the postmortem report and the injury report as the case may be, he collects the materials and evidence for the prosecution so that on the basis thereof the prosecution may stand on its own legs. It is he who to explain each and every action at every stage of the investigation. His objective findings become relevant for the prosecution as well as the defence. He collects blood from the spot He examines witnesses under Section 161 Cr.P.C. and then appears in court himself in support of what he has done during investigation. Thus the investigating officer is a material witness whose non-examination cannot be ignored and the court cannot collect material for conviction of an accused from the investigation report or case diary unless he has not been examined as a witness. In case, investigating officer does not appear for valid and legal reasons, i.e. being dead, i.e. or not being available easily, then investigation done by him has to be proved otherwise in accordance with law and it has to be put in evidence to enable the court to consider the admissible part of the record to analyse and appreciate and test the credibility of the oral evidence. If the examination of the investigating officer is very essential, and he is not appearing, then the court under law has power to adopt coercive measures for the appearence of the investigating officer and when needed. But every non-production and non-appearance of investigating officer is not fatal to the interest of prosecution. When the statements of the eye-witnesses and the evidence produced by the prosecution are trustworthy and reliable, then this lacuna cannot have any fatal effect. The non-examination of the investigating officer will not make place of occurrence vague and doubtful if the evidence of the witnesses is such which fixes the place of occurrence. Similarly, if no contradiction is winted out in the statement of the witnesses in the light of the statement given to the I.O., then non-examination of the I.O. has no effect. If some matters are depose4 before the court which have not been earlier said under section 161 Cr.P.C. then it becomes improvement or embellishment and the Court can ignore the same. The non-examination of the I.O. becomes relevant matter when the place of occurrence, site plan and other material and other objective findings are concerned. On account of non-examination of the I.O. if prejudice is caused to the accused in respect of such matters, then the court will give benefit of the same to the accused. Otherwise every non-examination is not fatal. (Para 26)

       Further held: A doctor, who conducts a post mortem examination or one who examines the injuries of an injured has to depose in court about the report he has prepared, post mortem or injury report and the basis there of. His objective findings of injuries are subjected to cross-examination by the accused. In case the doctor appears and gives out the reasons for his opinion in the post mortem or injury reports, the nature of the injuries, the manner of receiving injuries, the weapons through which the injuries have been received and such other allied matters then the same becomes a very corroborative piece of evidence to the testimonies of the witnesses of facts. It has been found that not only the I.Os/but the doctors also do not appear to depose in court for various reasons causing prejudice to the prosecution as well as defence. The reasons for their non appearance may be genuine or otherwise, but the fact remains that the cases suffer on account of their non-appearance. But when these witnesses have got justification under law for non-appearance then their objective findings are taken into consideration as provided under the Evidence Act.

       In cases where the failure on the part of the I.O. or the doctor or such other officials witnesses is there, it has to be seen as to why failure has occasioned and who is responsible for that. If it is laches on the part of the prosecution or inspite of the several oportunities having been given, or there is no laches on the part of the prosecution and inspite of their best efforts, the officials concerned do not appear so as to defeat cases of justice, then the court is to exercise its powers as provided under the law. Courts are to exercise their powers in the ends of justice and should not allow anyone to thwart the even course of justice. The court is to take resort to the provisions of law in this regard. (Para 28)

       Consequently held: It appears that these days t it has become a fashion for the Government witnesses, be it I.O. or doctor or other such persons, not to appear in court and be not available to court for dispensation of justice, for various reasons best known to them. This situation and conduct is deplorable and is not to be allowed to survive, rather this tendency is to be curbed with firm hand by the courts in accordance with law as and when needed. (Para 32)

       (v) Criminal Procedure Code, 1973 - Section - Indian Penal Code, 1860 - Sections 302 &- 302/149 - Seven appellants have been charged u/s. 302 - They have also been charged along with other appellants u/s 302/149 of the Code Trial court convicted the seven appellants u/s 302 of the Code though other appellants have been convicted, and sentenced u/s. 302/149 of the Code - State Govt. has not preferred any appeal against the order of acquittal of seven appellants u/s. 3021149 of the Code - Appeal against conviction U/S 302 (by seven appellants) and 3021149 by the other appellants - Can the appellate court while judging the legality or these convictions can look into the finding arrived at by the trial court about the acquittal of some of the accused, specially, when it is to deal with the same evidence in respect of conviction of the remaining accused, and when no appeal against acquittal has been filed? - (Yes). Whether in so doing, can the finding of acquittal be reversed in the absence of any appeal having been filed by the State? - High Court has got a revisional jurisdiction which can be resorted to, if necessary in the interest of justice.

       Held: While appraising the evidence in an appeal against conviction glaring illegality, miscarriage of justice, open and shut method are found to have been adopted in the appreciation of evidence, then the appellate court may exercise the suo motu power inspite of the fact that no appeal or revision has been preferred by the State or the complaint against the acquittal or implied acquittal, the Court cannot shut eyes and cannot refuse to exercise suo motu power when the matter has come to it in the appreciation of the evidence. In the instant case the evidence shows that the seven appellants who were impliedly acquitted under sections 302/149, from the very beginning till the finale had been there armed with weapons and had actually used the weapons killing eight persons and also injuring others as members of unlawful assembly and fully sharing the common object of the unlawful. Their active participation from the beginning till the end is well proved by the evidence scrutinised above and after achieving their object they retreated. The conduct of these seven appellants along with other convicted appellants in coming together, going together and being animated by the common object of the unlawful assembly is well proved. It is strange that the court below inspite of such findings has refrained from giving a finding of conviction under sections 302/149 I.P.C. against the said appellants.

       All the appellants have been charged under sections 302/149 I.P.C. Section 149 is declaratory of vicarious liability of the members of the unlawful assembly for the prosecution of the common object of the unlawful assembly or for such offence as the members of the unlawfull assembly knew before likely to be committed in prosecution of the common object. Offence under section 149 I.P.C. is not per se a substantive offence although punishment thereunder is under the section to which it is tagged and that under which the principal offender has committed the offence. It creates a specific offence and is not enabling section for imposing vicarious liability. For the imposition of sentence under this section there must be an assembly of five or more. That assembly should have a common object and that object should be to commit an offence or an unlawful act by an unlawful means. The offence committed must have nexus with the common object and the act should be in direct prosecution of the common object. The members of the assembly must share the common object though not actually participating in it. It does not require a prior concert or meeting of the mind. It may develop instantly at the spur of the moment. But they must know that an offence was likely to be committed in prosecution of the common object. So besides other awareness and knowledge, the sharing of the common object is also essential. Till the members of the assembly share common object they are within the clutches of section 149 of vicarious liability, even if there is no particular overtact. Unlawful assembly can be gathered from the nature of the assembly, the arms used by them and the conduct of the members of the assembly from the beginning till the finale: (Paras 39 & 40)

       In the result, the conviction of the seven appellants under section 302 I.P.C. is maintained and so their sentence of life imprisonment. *(Sic) appellants are further convicted under Section 302/149 I.P.C. and they are sentenced to life imprisonment. Both the sentences are ordered to run concurrently. Their conviction and sentence under Section 27 Arms Act is also maintained. The conviction of the rest of the appellants under Section 302/149 I.P.C. and sentence of life imprisonment is also upheld. (Para 42)

       (vi) Criminal Procedure Code, 1973 - Section 313 - Purpose & manner of recording statement under - Only material facts and circumstances which bring the accused under - the clutch of law and for which they have to - face trial must be put to the accused. (Para 41)

       Result: Appeal dismissed.