1 CRIMINAL APPEAL No.161 OF 2003 - - - - Against the judgment of conviction and order of sentence dated 21.2.2003 passed by the 7th Additional Sessions Judge, Saran, Chapra, in Sessions Trial No. 109 of 1997. - - - - 1. BALESHWAR SAH 2. Raghubar Sah 3. Bhikhari Sah 4. Kanchan Sah … … Appellants Versus THE STATE OF BIHAR … … Respondent For the appellants: S/Shri Kaushal Kumar Jha, ASmish Kumar Anjani Kumar Jha, Advocates For the State: Smt. Sashi Bala Verma, A.P.P. P R E S E N T THE HON'BLE Shri JUSTICE DHARNIDHAR JHA THE HON'BLE Shri JUSTICE BIRENDRA PRASAD VERMA - - - - Dharnidhar Jha & Birendra Prasad Verma,JJ.- Four appellants were charged by Additional Sessions Judge 3rd court, Chapra, under Sections 302/34 and 324/34 of the Penal Code. The trial proceeded and the judgment was rendered by the 7th Additional Sessions Judge, Chapra in Sessions trial No. 109 of 1997 on 21.2.2003. Appellant Baleshwar Sah was found guilty of committing the offence under Section 302 of the Penal Code and was directed to suffer rigorous imprisonment for life as also to pay a fine of Rs. 200/- only, none-payment of the same was to result in simple imprisonment for seven days against the said appellant Baleshwar Sah. The remaining three 2 appellants, namely, Raghubar Sah, Bhikhari Sah and Kanchan Sah were acquitted of all the charges but were found guilty of committing offence under Section 323 of the Penal Code and each of them was directed by the learned trial Judge to suffer rigorous imprisonment for one year. The judgment of conviction and sentence has been challenged by the appellants through the present appeal. 2. The fardbeyan of P.W. 3, the informant, was the basis for prosecution of the appellants. It was stated in it that there was some dispute in respect of measurement of a particular land between the informant and appellant Baleshwar Sah and that measurement had taken place on 27.9.1996. The informant alleged that he along with his family members were sitting at the verandah of his house and was discussing the outcome of the measurement which was favourable to him as the land belonging to the informant was found extending beyond the ridge and in to the land which was in possession of appellant Baleshwar Sah. At that time the informant was at the verandah of his house with his son P.W. 2 Rajesh Sah and his mother ( the deceased). 3. While the discussion was going on, the four accused persons armed with weapons as indicated in the fardbeyan came there and surrounded the informant. It was alleged that appellant Bhikhari Sah was armed with 3 bhala whereas appellants Kanchan Sah and Raghubar Sah were armed with lathi and they started assaulting the informant with their respective weapons. Informant’s, son P.W.2 Rajesh Sah and his mother Kalhi Devi protested by saying as to why the appellants were assaulting the informant upon which appellant Bhikhari Sah gave a bhala blow into the leg of Rajesh Sah. P.W. 2. Baleshwar Sah brought a Dav and cut the throat of the mother of the informant who tumbled down the chauki on the ground and bled profusely. The mother of the informant died there. 4. The reason for the occurrence as stated in the fardbeyan was the dispute for measurement in respect of homestead land and it was coming for a very long time. It was stated by the informant that the occurrence had been seen by Harendra Prasad Singh( P.W. 6), Ram Dutta Singh P.W. 5 and many others of the neighbourhood. 5. We do not know as to ho and by whom the investigation was taken up but this much is clear that the F.I.R. was drawn up and an inquest report was prepared on the dead body, a copy of which appears at page 29 of the Paper Book and the same was sent for post mortem examination which was held by Dr. Arbind Kumar Gupta( P.W. 4) and after completion of the investigation the appellants were put on trial. 4 6. The defence of the appellants was that they had falsely been implicated on account of admitted land dispute. It was suggested that in fact it were the informant and others who had assaulted the appellant Baleshwar Sah and others for which a counter case, Ext.A, was lodged and, probably, the informant himself killed his mother and implicated the appellants falsely. 7. The prosecution examined six witnesses in support of the charges out of whom P.W.5 Ram Dutta Singh and P.W. 6 Harendra Prasad Singh who were named in the F.I.R. as witnesses, did not support the prosecution story and were declared hostile. On perusal of their evidence we find that no tangible material was brought on record by the prosecution after cross examining each of them. Out of the remaining witnesses, P.W. 1 Lilawati Devi is the wife of the informant and she has given an eye witness account of the occurrence. P.W. 2 Rajesh Sah was said to be injured on account of having been given a bhala blow by appellant Bhikhari Sah and he has also supported the prosecution charges. P.W. 3 Sri Bhagwan Sah also lends support to his case. On perusal of the evidence of P.W. 4 Dr.Arbind Kumar Gupta, we find that there could not be any doubt about the mother of the informant being hacked. P.W. 4 found one incised wound about 6” X 3 ½” X 4“ on left and back 5 part of neck cutting cervical spine and all blood vessels. On dissection of thoracic and abdominal cavities the Doctor found all organs pale and heart empty. In the opinion of P.W. 4 the death was on account of shock and haemorrhage due to injury caused by sharp cutting object, like, dabia and further that death had been caused within 12 to 24 hours of holding of the post-mortem examination. This may be noted that the learned trial Judge rendered the judgment as observed in paragraph 11 that P.W.4 was discharged on account of non-appearance of counsel for the appellants after being recalled for cross examination. So, this remains a debatable point whether the evidence or P.W.4 could be admissible in evidence. But, considering that the Rules of Police Manual required a book in form of post mortem report being maintained in the hospitals which are authorized to conduct autopsies and further considering that the Doctor who is definitely a public servant and who during discharge of his official duty makes the entries in the book of post mortem reports which is required officially to be maintained or kept, we are of the opinion that the entries in the post mortem examination report even in absence of the examination of the Doctor could be admitted under Section 35 of the Evidence Act as relevant facts. Moreover, during the whole of the cross-examination of 6 the witness it was not denied that Kalhi Devi was killed. What was suggested to P.W.2 was that there was rumour in the village that he had himself killed her. This is an issue which is a point for determination in the present judgment which was also a point for determination in the court below. 8. For determining the point the evidence of three witnesses appears relevant to us. We must notice one of the most important arguments of learned counsel for the appellants that in spite of claiming being injured during the course of incident there was no evidence on record to establish the fact that P.Ws. 2 and 3 were really injured. Learned counsel was buttressing the submission by bringing into our notice the non- production and non-examination of the Doctor who could have examined P.Ws. 2 and 3 for their injuries and who could have issued the injury certificates in respect of finding of any injuries on the person of either of them. It could be a very vital argument but we find that the two witnesses, i.e., P.Ws. 2 and 3 have categorically stated that each of the appellants assaulted each of them. P.W. 2 has stated in paragraph 2 that when his father, i.e., P.W. 3 was being assaulted by Bhikhari Sah with bhala and appellants Raghubar Sah and Kanchan Sah with lathi, he intervened to save him whereupon appellant Bhikhari Sah gave two 7 blows with bhala- one on his leg and other on his thigh. Appellant Kanchan Sah also assaulted him with lathi on his back. His evidence has been supported by P.W. 3, the informant of the case in paragraph 2 of his evidence as regards assault by appellant Bhikhari Sah on P.W. 2. P.W. 3, the informant has stated about the assault on him by appellant Bhikhari Sah with bhala and appellants Raghubar Sah and Kanchan Sah with lathi. P.W. 1 Lilawati Devi, the wife of the informant and mother of P.W. 2, has also supported the evidence of the above two witnesses. The oral evidence of two witnesses appears convincing to us and we do not find any good grounds to reject their claim that they had been assaulted in the manner as stated to by each of them. Not only that, a suggestion given to P.W. 3 in paragraph 18 clinches the issue when the witness was suggested that he had obtained forged, fabricated and baseless injury certificates from a Doctor on account of having served him as a household help. we could not be shown any material on record to hold that any of the two witnesses, like, P.Ws. 2 and 3, was serving as a household help to any Doctor much less the doctor who could have issued the injury certificates. This suggestion, to us, appears sufficiently erasing the probability that there was not an injury certificate issued by any Doctor in respect of any injury which 8 could have been found by him on either of them, i.e., P.Ws. 2 and 3. Thus, we hold that the two witnesses, P.Ws. 2 and 3 were injured witnesses and it could be very difficult for us to rule out the possibility that they may be present at the scene of occurrence. 9. The witness being injured probabilises their presence at the place of occurrence but that does not make them competent witnesses. The trustworthiness of a witness and his credibility remains to be tested on facts which have been stated by him or in comparison to the facts which could be produced by the defence through cross examination of the witness or introduced on record by cross examination of other witnesses. 10. After having gone through the evidence of P.Ws. 2 and 3, we find that they appear trustworthy persons otherwise also. They have given correct and consistent story about the incident. Both of them have admitted that the accused persons were not alien to them rather they were their distant pattidars. There does not appear any history of ill-will and acrimony between the two parties except the dispute regarding fixing of a ridge of a particular land and we could not be shown any strong motive which could be occupying the mind of the witnesses to leave out the real culprits for implicating persons like the appellants. 9 11. After having considered the evidence of the three witnesses, we find that the story told by them inspires confidence and they had proved the incident and the manner thereof. 12. Shri Amish Kumar learned counsel for the appellants, however, contended that the charge was defective and worst was when the court was examining the appellants, specially, appellant Baleshwar Sah under Section 313 of the Cr. P.C. Shri Kumar has cited before us the decisions of the Apex Court reported in A.I.R. 1963 S.C. 612 Jai Dev Vs. State of Punjab in which a similar argument was considered by the Apex Court and the same was answered in paragraph 21 of the report. We are tempted to quote the whole of the paragraph which reads as under:- “In support of his contention that the failure to put the relevant point against the appellant Hari Singh would affect the final conclusion of the High Court, Mr. Aanthony has relied on a decision of this Court in Hate Singh Bhagat Singh v. State of Madhya Bharat AIR 1953 SC 468. In that case, this Court has no doubt referred to the fact that it was important to put to the accused each material fact which is intended to be used against him and to afford him a chance of explaining it if he can. But these observations must be read in the light of the other conclusions reached by this Court in that case. It would, we think, be incorrect to suggest that these observations are intended to lay down a general and inexorable rule that wherever it is found that one of the points used against the accused person has not been put to him, either the trial is vitiated or his conviction is rendered bad. The examination of the accused person under S. 342 is undoubtedly intended to give him an opportunity to explain any circumstances appearing in the evidence against him. In exercising its powers 10 under S. 342, the Court must take care to put all relevant circumstances appearing in the evidence to the accused person. It would not be enough to put a few general and broad questions to the accused, for by adopting such a course the accused may not get opportunity of explaining all the relevant circumstances. On the other hand, it would not be fair or right that the Court should put to the accused person detailed questions which may amount to his cross-examination. The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him that would no doubt be a serious infirmity. It is obvious that no general rule can be laid down in regard to the manner in which the accused person should be examined under S. 342. Broadly stated, however, the true position appears to be that passion for brevity which may be content with asking a few omnibus general questions is as much inconsistent with the requirements of section 342 as anxiety for thoroughness which may dictate an unduly detailed and large number of questions which may amount to the cross-examination of the accused person. Besides, in the present case, as we have already shown, failure to put the specific point of distance is really not very material.” On consideration of the above proposition laid down by the Apex Court, what one could find is that it is very difficult to lay down a strict guideline as to how the trial court has to proceed while examining the accused under Section 313 of the Cr.P.C. But, this much was clearly stated that while examining an accused Under section 342( as the provision was numbered in the Cr.P.C. of 1898) it could put the question in such a way to clearly convey to the accused as to what the court wanted to say in respect of the prosecution case. 11 13. The other decision which Shri Kumar cited in supported of his contention is reported in (2009) 6 SCC 595 Ranvir Yadav Vs. State of Bihar in which the Apex Court placed reliance upon the earlier decision of the Supreme Court in the case of Hate Singh Bhagat Singh reported in AIR 1963 SC 468, specially paragraph 14 of the report in which it has been held that “ whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points of the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desired to give.” Shri Kumar drew our attention towards the first charge which is under Section 302/34 of the Pehnal Code and it reads as under :- “That you on or about the 27th day of September,1996 at Vill. Chandpura, P.S. Parsa Dist. Saran, in furtherance of common intention of you all, committed murder of Kalhi Devi, mother of the informant, by inflicting cut injury of her neck by means of Dabia and intentionally and knowingly to cause her death.” A perusal of the above charge indicates that all the accused persons were informed that they were facing the charge on use of Dabia intentionally and knowingly to cause the death of Kalhi Devi. It did not convey to any of the four accused who had been charged under Section 302/34 of the Penal Code that he was alleged to have 12 used any other weapon than a Dabia and had intentionally and knowingly thereby caused the death of Kalhi Devi. This is one aspect of the case. Shri Kumar drew our attention towards the statement of Baleshwar Sah recorded under Section 313 Cr. P.C., a copy of which appears at page 32 of the Paper Book. The relevant question is question no. 2 and that reads thus: “aiz’u%& vkids fo#n~/k ;g lk{; gS fd fnukad 27&9&96 dks xzke& pkUniqjk, Fkkuk& ijlk, ftyk& lkj.k esa tehu ukih dh ckr dks ysdj vius&vius lkFkh vfHk;qDrksa ds lkFk tku ekjus dh fu;r ls ,d jk; gksdj, jkts’k lkg, Hkxoku lkg dks ykBh, Hkkyk ls ekj dj pksV igWqpkbZ rFkk mUgh gfFk;kjksa ls ekj dj dygh nsoh dh gR;k dj nh@ D;k dguk gS?” It was contented that this question completely omits the description of the weapon( i.e.,Dabia) and indicates as if appellant Baleshwar Sah had used lathi and bhala in committing the murder of deceased Kalhi Devi. Shri Kumar contended that whole of the examination of appellant Baleshwar Sah under Section 313 Cr. P.C. vitiates the trial and the judgment and is completely in defiance of the law laid down by the Supreme Court. 16. We have already extracted the description of charge no.1 and whole of question no. 2 put to appellant Baleshwar Sah during his examination under Section 313 Cr. P.C. We could, in one line, say that 13 the two did not go hand in hand as was required by the Supreme Court in the case of Hate Singh Bhagat Singh(Supra). The charge, firstly, does not specify that appellant Baleshwart Sah had intentionally and knowingly committed the murder of Kalhi Devi by assaulting her with Dabia. The charge rather reads as if Dabia had been used by all the four appellants and thereby Kalhi Devi had been murdered. As against the above, when appellant Baleshwar Sah or other appellants were being examined under Section 313 Cr. P.C. question no.2 was intentionally put to each of them and as may appear from the extracted question already quoted above, that the weapon Dabia did not appear in that question rather it was lathi and bhala which were the weapons said to have caused the murder of Kalhi Devi which was put to appellant Baleshwar Sah as being used in causing her death. The question was completely in infraction of the charge framed against the accused generally and appellant Baleshwar Sah particularly. We do not have any hesitation in upholding the contention of Shri Kumar that the whole exercise was not only misconceived but completely in arrogance of the decision of the Supreme Court. It could never be said that it was sufficient for the appellants to know clearly as to what they were required to explain as to the circumstances which could have appeared against 14 each of them or any of them on evidence adduced by the prosecution. The result of the faulty examination under Section 313 Cr. P.C. could be that the accused could be acquitted. The Court may also record that the trail has been vitiated because the examination of the accused at the end of the trial really prejudiced the accused in conveying to him or to them as to what was required by them to be explained. The above defect, in our opinion, entitles the appellants to acquittal in spite of the fact that the evidence on record appears complete and acceptable. 17. In the result, we allow the appeal and set aside the conviction of the appellants and sentence passed against each of them. All the appellants, except, appellant Baleshwar Sah are on bail. They are discharged from the liabilities of their respective bonds. As regards appellant Baleshwar Sah, he is in custody. He is directed to be released forthwith, if not wanted in any other case. ( Dharnidhar Jha, J.) ( Birendra Prasad Verma, J.) Patna High Court The 12th March, 2010 Kanth/A.F.R.