CRIMINAL APPEAL No.65 OF 1988 ***** Against the judgment of conviction and order of sentence dated 23.12.1987 passed by Shri Narsingh Narayan Sinha, Sessions Judge, Saharsa in Sessions Trial Case No. 41 of 1986. 1. DHIRENDRA YADAV, 2. RAM CHANDRA YADAV @ RAMA CHANDRA YADAV, BOTH SONS OF LATE SINGHESHWAR YADAV, RESIDENT OF VILLAGE MAHESHPUR, P.S. SOUR BAZAR, DISTRICT-SAHARSA. --------------------(Appellants) Versus THE STATE OF BIHAR ---------------------(Respondent) For the Appellants : Mr. Shiva Shankar Sharma (Adv.) Mr. Arun Kumar Sinha (Adv.) For the Respondent : Ms. Shashi Bala Verma (APP) ----- P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH S. K. Sharma & D. K. Singh, JJ. Both the appellants have challenged the judgment and order of conviction dated 23rd December, 1987 passed by learned Sessions Judge, Saharsa in Sessions Trial Case No. 41 of 1986 whereby and whereunder both the appellants were convicted under Section 302, 307 and 326 of the Indian Penal Code and sentenced to undergo imprisonment for a period of seven years and rigorous imprisonment for five years, respectively. The sentences were directed to run concurrently and further the period undergone in custody was directed to be set off under Section 2 428 of the Code of Criminal Procedure. 2. The prosecution case is necessary to be discussed for considering the grounds of appeal of the appellants. The prosecution story starts with the fardbeyan of the informant Chandra Kishore Yadav (P.W.7) recorded by Officer-in- Charge S.J. Murmu of Sourbajar Police Station on 30.03.1985 at 7 a.m., to the effect that in the night of 29.03.1985, the informant along with his brother, Birendra Yadav (P.W.4) was sleeping on the Machan (bamboo bed) in bungalow (outer house). Younger brother of the informant Ram Bilash Yadav (P.W.5) was sleeping in bungalow (outer house) on a Chouki. Youngest brother of the informant Shivjee Yadav (P.W.6) was sleeping with his mother in the courtyard (Aangan). The informant got up when someone hit with a sharp cutting weapon on his head and saw Dhirendra Yadav (Appellant No.1) armed with Farsa and Ram Chandra Yadav (Appellant No.2) armed with a spade (Kudal), standing. Whereas 2 to 5 unknown persons were standing when Dhirendra Yadav and Ram Chandra Yadav started assaulting the informant (P.W.7) and Birendra Yadav (P.W.4) with spade and garasa (sharp cutting weapon), repeatedly. The elder brother of the informant Birendra Yadav 3 (P.W.4) after getting down from Machan (bamboo bed) ran towards south. In the meantime, Dhirendra Yadav (Appellant No.1) and Ram Chandra Yadav (Appellant No.2) followed him and started assaulting Birendra Yadav (P.W.4) with spade and farsa towards south of the Baithka. As a result of which Birendra Yadav (P.W.4) fell down, on which appellant no.1, Dhirendra Yadav, stated that Birendra Yadav (P.W.4) has died. Thereafter, both the appellants came and assaulted on the neck of Ram Bilash Yadav (P.W.5), the elder brother of the informant who was sleeping on the Chouki. After repeating the blows for sometime the appellant, Ram Chandra Yadav stated that “here all have been killed” and all decided to go inside to finish others and then they all went inside the house where the mother and the younger brother of the informant were sleeping. It is asserted by the informant that he kept quiet, as he was scared and after sometime all the four accused persons came out from the house and fled away towards south while making noise. Thereafter, people from the village came to find Shivjee Yadav (P.W.6) injured and the mother of the informant dead, inside the house. Then the villagers brought the informant and the other 4 injured, to hospital. It was disclosed by the informant that accused Dhirendra Yadav and Ram Chandra Yadav were the step brothers of the informant and there was dispute for the sake of partition. The informant claimed to identify two unknown accused persons. On the basis of the aforesaid allegation Sourbajar P.S. Case No. 33 of 1985 dated 30.03.1985 was registered under Sections 324, 326, 307 and 302/34 of the Indian Penal Code. Maheshwari Yadav (P.W.2) and Rajeshwar Yadav (not examined) were made attesting witnesses to the fardbeyan (Ext.5). The First Information Report was registered on 30.03.1985 at 7 a.m. and Column-3 of the formal part of the First Information Report suggests that it was transmitted through Special Messenger, whereas formal part also reflects that the First Information Report was received in the court of learned Chief Judicial Magistrate on 01.04.1985. The police after investigation, submitted charge sheet which led to taking of cognizance and commitment of the case to the Court of Sessions, when charges were framed under Sections 302, 307 and 326 of the Indian Penal Code. 3. The prosecution in order to substantiate 5 the charges examined eleven witnesses, of which Narayan Pd. Yadav (P.W.1), Birendra Yadav (P.W.4), Ram Bilash Yadav (P.W.5) and Chandra Kishore Yadav (P.W.7) claimed themselves to be eye witness to the assault upon three injured, i.e. P.Ws.4, 5 and 7. Maheshwari Yadav (P.W.2) is a hearsay witness who came to know about the manner of assault through P.W.7, though, he witnessed both the appellants fleeing away from the place of occurrence. P.W.3 is the witness to the seizure of blood stained earth, blood stained Farsa, blood stained quilt and blood stained towel from the southern room of the Baithka. Though, the other seizure list witness Kapildeo Yadav has not been examined. P.W.6 Shivjee Yadav is another injured who was sleeping with the deceased in Angan and he is the only witness to the assault made to the deceased as well as to the assault made to this witness. Chandra Kishore Yadav (P.W.7) is the informant of this case. Dr. Suresh Pd. Singh (P.W.8) examined the injuries of four injured i.e. P.Ws. 4, 5, 6 and 7. Dr. Jang Bahadur Singh (P.W.9), conducted the post-mortem examination on the dead body of the deceased Guljharia Devi. Rajendra Yadav (P.W.10) is the Chowkidar who was given the dead body challan for 6 taking the dead body to the hospital for post- mortem examination. Samuel John Murmu (P.W.11) is the Investigating Officer of the case. 4. Learned Trial Court considered P.Ws. 1, 5 and 7 as witnesses to the assault on P.Ws. 4, 5 and 7 and has relied upon the evidence of P.W.6, a child witness, so far as the assault on P.W.6 and the deceased is concerned, and thereby passed the order of conviction accordingly. 5. Now, this Court has to see whether P.W.6‟s evidence is credit worthy enough to prove the charge of murder against the appellants and the evidences of P.Ws. 1, 2, 5 and 7 have been able to prove the charges under Sections 326 and 307 beyond shadow of reasonable doubt or the evidence on record needs reappraisal for deciding the appeal of the appellants. 6. The death of Guljharia Devi and injuries to P.Ws. 4, 5, 6 and 7 are admitted. So far as the place of occurrence is concerned, there is hardly any dispute with regard to the same, as P.Ws. 5 and 7 received injuries at the Baithka (out house), P.W.5 while sleeping on a Chouki, whereas P.W.7 while sleeping on Machan. So far as P.W.7 is concerned, he received some injuries while sleeping on Machan at Baithka and some 7 injuries, little south to the Baithka. So far as P.W.6 and deceased are concerned, they received injuries while sleeping in the courtyard (Aangan). 7. The main dispute in the case is with regard to the manner of occurrence. So far as manner of occurrence is concerned, P.Ws. 1, 4, 5 and 7, have claimed to have seen the manner of occurrence. So far as manner of occurrence with regard to the injuries to P.W.6 and to the deceased are concerned, to that extent the only evidence available on record is the evidence of the minor witness P.W.6. 8. With regard to the injuries to P.Ws. 4, 5 and 7, P.W.1 claims himself to have reached to the place of occurrence on alarm being raised by P.W.4, as this witness was sleeping at his bungalow and he saw four persons fleeing away, but he could identify only the two appellants. Subsequently, in Paragraph-2 of his evidence, P.W.1 has claimed to have seen the assault made by Dhirendra Yadav (Appellant No.1) by Farsa and Ram Chandra Yadav (Appellant No. 2) by spade on P.Ws.4, 5 and 7. Though, he has not specified the particular part of the body where the injuries were caused but in a sweeping statement, he has 8 alleged the assault. The evidence of this witness has to be scrutinized in view of the statement of P.W.4 who has not stated about raising any alarm. Moreover, as per the evidence of P.W.4, the accused persons first assaulted P.W.7 and, thereafter, P.W.4 by sharp cutting weapon on head. Then he got up and ran away when the accused persons chased and assaulted. Hence, in view of the evidence of P.W.4, the claim of P.W.1 to have seen the assault of P.W.7 and the first part of assault to P.W.4, becomes doubtful. The inconsistency appearing in the evidence of P.W.1 makes his evidence doubtful in view of the fact that, in Paragraph-2 he has stated that on hearing the alarm he reached to the place of occurrence and saw the accused persons and then in Paragraph-3 he claims to have seen the entire manner of occurrence. P.W.1‟s claim of having seen the occurrence further gets contradicted, when we peruse paragraph no. 10 of evidence of P.W.2 where he admits that he along with P.W.1 enquired from P.W.7 about the name of the assailants. Hence, we do not find any substance in the claim of P.W.1 to have seen the manner of occurrence and he cannot be relied upon to have seen the first part of the occurrence, so far as 9 injury to P.Ws.4, 5 and 7 are concerned. So far as injuries to P.W.6 and the deceased are concerned, P.W.1 admits that he has not seen the assault made upon them. So far as P.W.4 is concerned, he claims to have witnessed the occurrence after someone assaulted him with sharp cutting weapon on his head on which he woke up while he was sleeping with P.W.7. Though, he claims to have seen the assault so far as assault made to P.W.7 is concerned, as this witness was chased by the accused persons when he was assaulted near the cattle feeding area of Jadunandan and after that he got unconscious. Hence, it could be said that this witness must have seen the accused who assaulted him but this witness in Paragraph-6 of his evidence has stated that he cannot say as to which accused has assaulted at which part of the body. P.W.4 in Paragraph-6 has admitted that the first assault was made on his head and the cheek, on which he got up. P.W.8, who examined injuries of P.W.4 has found one incised wound 4”x½”x scalp deep oblique over the left parietal region on the head whereas the size of the injury of cheek is one incised wound 4”x2½”x1” transversely over the face, cutting the bones forming nasal bridge and 10 destroying completely the left eye-ball. If, as per the claim of P.W.4 in Paragraph-6, the said injury was received by him at the first instance then there was no occasion for him to see rest part of the occurrence because the aforesaid two injuries were enough to make him unconscious. Though, this witness claims to have only seen the assault made to him and to P.W.7, but as per his own evidence, he received the injuries on cheek and head first and then he got up, which makes his claim, of seeing the occurrence, absolutely improbable. 9. So far as P.W.5 is concerned, he has admitted in Paragraph-1 of his evidence that he woke up on alarm being raised by P.W.7 when he recognized Dhirendra Yadav (Appellant No.1) armed with garasa and Ram Chandra Yadav (Appellant No.2) with spade. His claim is inconsistent with that of the evidence of P.W.4 because P.W.4 has claimed that Dhirendra Yadav (Appellant No.1) was armed with farsa. In Paragraph-2 of his evidence, he has admitted that he was sleeping in the „baithak‟ when the assault was made to him which resulted into his unconsciousness. The doctor, in Paragraph-3 of his evidence, has admitted one incised wound 4”x1½”x scalp deep oblique over the 11 right occipital region of the head. Whereas the other injury is incised wound 3”x ½” x scalp deep oblique over the left occipital region of the head, whereas the third injury is incised wound 2”x ¼”x scalp deep oblique over the right parietal region of the head. Though, this witness received altogether six injuries but the injuries on the head were enough to make him unconscious. The conduct of this witness of remaining mute spectator to the assault being made on P.Ws.4 and 7 and not making any effort to save them, creates doubt about his claim of seeing the occurrence. Moreover, in the initial evidence, his claim of having got up from sleep on the alarm being raised by P.Ws.4 and 7, on their being assaulted, creates doubt on the claim of P.W.5 being an eye witness. The injury report suggests no injury on his hands, from which it appears that P.W.5 received the injuries while sleeping because, a person who is awake, in reflex action on being assaulted will try to protect himself by raising his hands, when repeated assaults were made on him. 10. P.W.7, the informant, got up after receiving injury on head by a sharp cutting weapon, and he has stated in Paragraph-1 of his 12 evidence, that he identified both the appellants, of which Dhirendra Yadav (Appellant No.1) was armed with farsa and Ram Chandra Yadav (Appellant No.2) with spade. He claims to have seen the assault made to P.W.4 and 5. P.W.8 has found altogether three injuries on P.W.7, of which injury no.1 is incised wound 5”x2”x cutting whole scalp and left parietal bone over the left parietal region of the head and the injury was found to be grievous by the Doctor in Paragraph- 5. The doctor has suggested that the injury might have caused delirium or semi-unconsciousness to P.W.7 since the head injury was the first injury which was received by P.W.7 while sleeping. Hence, it appears that after receiving such grievous injury he could not have been in a position to watch the manner of occurrence. P.W.7 being in an unconscious stage after receiving the assault, further gets corroborated with the evidence of P.W.2, who, in Paragraph-1, has admitted that P.W.7 was semi-unconscious. The defence has doubted the recording of the fardbeyan of P.W.7 on the alleged date of occurrence. Though, the same will be discussed in the subsequent paragraphs but it is not necessary to mention that the „Left Thumb Impression‟ of 13 P.W.7 was taken on the fardbeyan, whereas when he came to depose in court on all the four dates, he made his signature which creates doubt with regard to P.W.7 getting his fardbeyan recorded on the date of occurrence which creates suspicion and gets confounded with the reaching of the First Information Report after 48 hours of recording of the fardbeyan and the statement of P.W.11 in Paragraph-12 that the subsequent statement of the informant was recorded by the Investigating Officer after 15 days of the occurrence on 15.04.1985. Hence, the claim of P.W.7, appears doubtful that P.W.7 was not unconscious even after receiving injury on the head. Moreover, the conduct of P.W.7 of not making any effort to save his two brothers P.Ws.4 and 5, also creates doubt on his claim of seeing the manner of occurrence. P.W.2 claims to be only a hearsay witness, as he saw both the appellants and two unknown accused persons fleeing away from the place of occurrence when he reached the place of occurrence, on alarm being raised, as he was sleeping at the door of Jadunandan Yadav. This witness claims to be the resident of „Maheshpur Tola-Bahelwa‟ and he was present at the door of Jadunandan Yadav, who happens to be the agnate of 14 the accused and the informant side, for getting his wheat crops thrashed by machine. This witness in Paragraph-8 has admitted that his wheat bundle crop were being thrashed in the night of the alleged date of occurrence, whereas P.W.11 in Paragraph-15 of his cross-examination has admitted that he did not find any wheat crop bundles near the thrasher or the door of the Jadunandan Yadav. Hence, the claim of this witness of being present in the village of the informant becomes doubtful. P.W.2 cannot be relied upon, on the basis of the inconsistencies appearing in his own evidence and in the descriptive part of his evidence. He got his residential address recorded as Maheshpur Tola Bahelwa whereas in Paragraph-8 of his evidence he stated that he is not resident of Bahelwa Tola rather he is resident of Goth Tola. Though, this witness does not claim to be an eye witness but it has come during the investigation, that a sale deed was executed in his favour by P.W.4 on 24.06.1986 which was ultimately registered on 02.09.1986 whereas this witness deposed before the court, as P.W.2 on 22.08.1986 and the sale deed has been brought on record as Ext.1. Hence, on this score, P.W.2 cannot be relied upon even 15 as a post-occurrence witness. 11. So far as the injuries of P.W.6 and the deceased are concerned none of the prosecution witnesses except P.W.6, has seen the occurrence. Only P.W.7 claims to have seen both the appellants along with two unknown accused persons entering the Aangan. Whereas, P.W.6 claims himself to have seen the assault made upon the deceased with whom he was sleeping in the Aangan, when P.W.6 was assaulted and then he woke up on receiving assault on the head. P.W.8 in Paragraph-4 has deposed that P.W.6 has received only one incised wound 4”x 2”x scalp deep and also cutting the outer level of the left parietal bone over the left side of the occipital region and the parietal region of the head. The injury was found to be grievous. P.W.6 in Paragraph-3 of his cross-examination has admitted that as soon as he tried to get up to run away, he received injury by spade made by Ram Chandra Yadav (Appellant No.2). In Paragraph-1, he admits that after receiving the injury he became unconscious and as he has received only one injury, hence any question of his seeing the rest of the occurrence, does not arise. Moreover, the doctor in Paragraph-4 of his evidence has stated that 16 the injury has been received by P.W.6 while sleeping in side-ways position. Though, this witness claims to have seen the assault made to the deceased and has stated in Paragraph-1 of his evidence that Dhirendra Yadav (Appellant No.1) armed with farsa and Ram Chandra Yadav (Appellant No.2) armed with spade were assaulting the deceased. P.W.9 while conducting the post-mortem examination has found altogether seven injuries on the dead body of the deceased, of which, injury no.3 is incised penetrating wound 1”x 1/2”x cutting muscles and vessels and trachea at the upper thyroid bone on the left side of the neck directing medially with wound of exit ¼”x ¼” x skin deep on right side of the neck at the same level. The doctor has opined that the aforesaid injury no.3 was sufficient to cause death. Injury of deceased suggests that this injury would have been caused by sharp cutting weapon because the wound of entry is in the left side of the neck whereas wound of the exit is in the right side and the difference of size between wound of entry and exit is only ½” to ¾” which could not have been caused by Farsa or Spade. Though the prosecution tried to prove its case by suggesting to the doctor that with the pointed portion of 17 Farsa, the injury could have been caused. But since this injury is through and through, hence it cannot be inferred that this injury could have been caused by Farsa. None of the prosecution witnesses have suggested use of any pointed weapon or even P.W.6 has not explained how the injury no.3 was caused in the neck of the deceased. 12. So far as injury to P.W.6 and deceased is concerned, P.W.6 is the only witness, but P.W.6 at the time of being examined as a witness during trial, got his age recorded as nine years. Whereas from the judgment it appears that the learned trial court assessed the age of the victim at the time of occurrence as six years. 13. Section 118 of the Evidence Act specifies, who may testify which reads as follows: “All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind”. 14. It is well settled law that a child witness‟ ocular account can be relied upon 18 provided the court feels that the child is able to understand the question and is capable on answering the situations. The opening paragraphs of the deposition of P.W.6 reflects that the court tried to test the capabilities of P.W.6 of deposing but the inconsistencies appearing in the evidence of P.W.6 creates doubt of P.W.6 being a reliable witness. It is well settled law that a child is usually treated to be innocent and he tries to depose innocently and correctly but when the child is not mature enough to manage the affairs of his own and is under the guidance/control of someone, there is no likelihood of his being innocent and this aspect has to be gathered from the evidence of the child witness being corroborated by other circumstances but the evidence of P.W.6 does not unfold the manner of injury no.3 and as per the post-mortem report the injury no.3 was sufficient to cause death of the victim. 15. The claim of P.W.6 is that he received injuries when he tried to get up, but he has received only one injury on the head on which he become unconscious, then in such circumstance the evidence of P.W.6 particularly with regard to the manner of occurrence becomes doubtful. 19 16. It is well settled law that the medical evidence is opinionative in nature and it cannot over-ride the ocular versions but in the circumstance when the eye witness account gets completely negated by the medical evidence or the medical evidence creates serious doubt about the eye witness account, then in that circumstance the eye witness account cannot be relied upon. The post-mortem report reflects that injury no.3 to the victim was caused by penetrating weapon, whereas neither P.W.6 nor any prosecution witness has suggested that the accused were armed with any penetrating weapon nor any penetrating weapon has been recovered by the Investigating Officer. In such circumstance, it appears that the medical evidence completely negates the ocular version of P.W.6, hence, we find it difficult to rely on the ocular evidence. Hence, the prosecution has failed to prove the injury of P.W.6 as well as the injury to the deceased. 17. It is contended by the learned Counsel for the appellant Mr. Shiv Shankar Sharma that the fardbeyan is actually not the fardbeyan of P.W.7, as it was recorded by P.W.11 on 30.03.1985 at 7 a.m. in Sour Bajar Hospital whereas the First Information Report was registered at 9 20 a.m., on the same day and column-3 of the formal part of the First Information Report reflects that it was transmitted to the court by special messenger but it reached to the court of the learned Chief Judicial Magistrate on 01.04.1985, obviously after