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1993 Supreme(Pat) 515
PATNA HIGH COURT
S.N.Jha and Dharampal Sinha JJ.
State Of Bihar
Versus
Jai Kant Tewary
Criminal Appeal No. 449 of 1992 ;
Decided On : DECEMBER 21, 1993
The court's reservations about the extent to which the contents of a post-mortem report admitted under Section 294 CrPC can be used as substantive evidence.
Headnote:
CRIMINAL APPEAL - Murder - Conviction and Death Sentence - Challenge - Admissibility of Post-Mortem Report - Interpretation of Section 294 CrPC - Sufficiency of Evidence - Consideration of Circumstances and Evidence.
Fact of the Case:
The appellant, Jai Kant Tewary, was convicted and sentenced to death for the murder of his wife, Manju Devi. The prosecution's case rested on the evidence of three eyewitnesses: the son of the deceased, the mother of the appellant, and the sister-in-law of the appellant. The appellant challenged the conviction on several grounds, including the non-examination of the informant, the Investigating Officer, and the doctor who conducted the post-mortem examination, as well as the admissibility of the post-mortem report under Section 294 of the Code of Criminal Procedure (CrPC).
Finding of the Court:
The court found that the non-examination of the informant and the Investigating Officer did not prejudice the appellant's case, as there were no contradictions in the evidence of the prosecution witnesses that could have been brought out by their testimony. The court also held that the post-mortem report was admissible under Section 294 CrPC, as the appellant had not disputed its genuineness. However, the court expressed reservations about the extent to which the contents of the post-mortem report could be used as substantive evidence, as it was not prepared by the doctor who conducted the examination.
Issues: 1. Whether the non-examination of the informant and the Investigating Officer prejudiced the appellant's case. 2. Whether the post-mortem report was admissible under Section 294 CrPC. 3. Whether the contents of the post-mortem report could be used as substantive evidence.
Ratio Decidendi: 1. The court held that the non-examination of the informant and the Investigating Officer did not prejudice the appellant's case, as there were no contradictions in the evidence of the prosecution witnesses that could have been brought out by their testimony. 2. The court held that the post-mortem report was admissible under Section 294 CrPC, as the appellant had not disputed its genuineness. However, the court expressed reservations about the extent to which the contents of the post-mortem report could be used as substantive evidence, as it was not prepared by the doctor who conducted the examination.
Final Decision: The court upheld the conviction of the appellant under Section 302 of the Indian Penal Code (IPC) but commuted the death sentence to life imprisonment, finding that the circumstances of the case did not warrant the extreme penalty.
S.N.Jha, J.
1. This judgment will govern both the reference and the appeal which arise out of the same judgment and order of the trial Court and, as such, have been heard together.
2. The sole appellant Jai Kant Tewary was put on trial and has been convicted and sentenced to death for having committed the murder of his wife, Manju Devi, in the wee hours of 24th April, 1988. The Fardbeyan was lodged by the Chaukidar, Ayodhya Paswan, at the place of occurrence which is the house of the appellant in village Mahuli within Khaira Police Station of Hunger district at 1 p.m. on the same day. Curiously, the Fardbeyan has not been brought on record. However, as would appear from the evidence of the prosecution witnesses, the appellant is said to have given three tengari blows on the neck of the deceased resulting in her death on the spot. The occurence is said to have been witnessed by the son, Ranjit Kumar Tewary, who has been examined as P. W. 3 in the case. According to him, he was sleeping near his mother at the time of occurrence, when his father i.e., the appellant gave two tengari blows and another after he woke up. PW 2 Sundara Devi, who is none else than own mother of the appellant, stated that in the early hours of the day of occurence while it was still dark, she was sleeping in the backyard of the angan. When she reached the actual place of occurrence, she found the deceased lying dead in the angan. With cut injuries on her neck. The appellant at that time asked her to take away the dead body. According to PW 1 Sita Devi, brothers wife i.e., bhabhi of the appellant on hearing the cries of Ranjit (PW 1) she awoks her mother-in-law i.e. PW 2 and asked her to go to the place of occurrence. She also went there and found the deceased lying dead on the darwaza. Her neck had been cut. She stated that Ranjit (PW 3) who was present there told her at that very point of time that Papa had cut the neck. One more witness namely Bibu Mandal was produced but he was merely tendered for cross-examination and, therefore, I need not refer to him. The whole prosecution case thus rests on the evidence of these three witnesses.
3. In the instant case the prosecution neither examined the informant nor the Investigating Officer or even the doctor who had held the post-mortem nor came out with explanation for their non-examination. Naturally, their non-examination was the main plank of the submission of Mr. Chitranjan Sinha, learned Counsel for the appellant. So far as the informant is concerned, no doubt, as per his fardbeyan, he claimed to have reached the place when the deceased was still alive and to have seen the appellant holding a tengari be smeared with blood and to have further stated that upon seeing him the appellant threw off the tengari and wanted to flee but he (appellant) was caught hold of and with the help of the villagers confined till the police on information came to the place. As stated above, fardbeyan has not been brought on record. Even if it had been it could not have been used as substantive evidence except for the purpose of corroboration or contradiction. If the informant had been examined as witness in the case that would have certainly added strength to the prosecution case. However, mere non-examination of the informant cannot discredit the prosecution case. What is to be seen is whether the evidence on record is sufficient to hold the accused guilty beyond all reasonable doubts.
4. As regards the non-examination of the Investigating Officer, the law is now well settled. The accused can make a grievance as to non-examination of the I. O. only if prejudice is shown to have been caused to him. It appears, from the cross-examination of the prosecution witnesses that no contradiction whatsoever was pointed out to any of them, which means that their statement in Court was the same as before the police. If any contradiction had been pointed out between the two statements certainly the appellant could legitimately ma
