CRIMINAL APPEAL No.672 OF 2004 Against the judgement of conviction and order of sentence dated 4.8.2004 and 5.8.2004 passed by the 3rd Additional Sessions Judge, Bhojpur, Ara in Sessions Trial No.4 of 1999 INDRAJIT SINGH---------------------------Appellant Versus STATE OF BIHAR--------------------------Respondent ---------- For the appellant:- Sri Baxi S.R.P.Sinha, Senior Advocate Sri Rahul Nath, Advocate For the State:- Sri Ashwini Kumar Sinha, A.P.P. For the Informant:- Sri Akhileshwar Prasad Singh, Advocate. P R E S E N T THE HON’BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE SRI JUSTICE DHARNIDHAR JHA Mridula Mishra & Dharnidhar Jha,JJ. The solitary appellant Indrajit Singh was put on trial by framing charge under Section 302 of the IPC by the learned 3rd Additional Sessions Judge, Bhojpur at Ara in Sessions Trial No.4 of 1999. By the judgement delivered on 4.8.2004 he was found guilty of committing that offence. While hearing the appellant on sentence on 5.8.2004 the learned trial Judge directed the appellant to suffer rigorous imprisonment for life as also to pay a fine of Rs.1,000/- and in default, to suffer simple imprisonment for a period of six months. The appellant challenges his conviction and the sentence passed upon him through the present appeal. 2. While celebrating the Chhathiar of Lord Krishna an - 2 - assembly of persons was singing devotional songs in a temple situated at village-Jalpura(Tapa) within Chandi police station of the district of Bhojpur. The deceased Jitendra Singh and the present appellant were members of the same singing party. It is stated by the informant P.W.7 Dharmendra Kumar Singh that he along with his two brothers, namely, Harendra Kumar Singh(P.W.6) and Amrendra Pratap Singh(P.W.8)had also accompanied his father on that occasion up to the temple. It is stated that there was some altercations amidst the singing of the songs between the deceased and the present appellant and the temper was frayed so much so as the appellant went out of the group of singers into the precincts of the temple. A bit later the appellant called the deceased as well who went near the appellant and the informant also claimed following his father. It is alleged that as soon as the deceased went close to the appellant, the appellant dealt two blows with chhura on front of the body of deceased as a result of which he fell down whereafter two more blows with that weapon were wielded by the appellant on the back of the deceased. The informant raised hulla attracting others present there and by the time they came near the deceased Jitendra Singh, he had breathed his last. The occurrence took place on 21.8.1998 at about 10.10 P.M. 3. The dead body was brought by the informant and others to his house as may appear from Ext-4 the inquest report, where P.W.9 S.I. Basudeo Prasad held inquest upon it and - 3 - prepared the inquest report. This is also stated by the informant in the fardbeyan Ext-2 that S.I. Basudeo Prasad(P.W.9)had come to his house and had recorded Ext-2, the fardbeyan and that was the basis for drawing up of Ext-3, the FIR of the case whereafter P.W.9 took up the investigation himself. 4. During the course of investigation P.W.9 S.I. Basudeo Prasad also inspected the place of occurrence which was a place in the northern side of the Thakurbari situated in the above noted village-Jalpura. He found blood at a distance of 15 feet from the temple and also two pairs of chapal lying there. The blood was seized along with the chapals by preparing the seizure memo Ext-5. P.W.9 recorded the statements of the witnesses after having sent the dead body for postmortem examination and after having received the postmortem report Ext- 6, he closed the investigation and laid down the chargesheet sending up the appellant for trial which resulted in the impugned judgement. 5. The defence has not pleaded that deceased Jitendra Singh was not murdered, what was suggested to different witnesses was that the story which was told by them was different from the real state of facts which was that there was an assault on the appellant and in that melee the deceased might have received some injuries from some unknown hands which could have caused his death. - 4 - 6. The prosecution examined a total number of ten witnesses out of whom P.W.1 Hanuman Das Naga, the Mahanth of the temple, P.W.2 Ram Yash Singh another person who was singing Bhajans along with P.W.3 Awadh Bihari Singh and P.W.4 Keshav Narayan Singh have claimed themselves to be the eye witnesses to the occurrence. P.W.5 Ram Shekhar Singh is the father of the deceased and he is not an eye witness to the occurrence rather he appears coming to the place of occurrence after being informed by one of the sons of the deceased, namely, Amrendra Pratap Singh(P.W.8) that his father had been stabbed to death. P.W.10 Dr. Virendra Kumar Roy deposed on holding of the postmortem examination and preparing the report Ext-6. Besides, he also appears deposing as a defence witness so as to bringing on record Ext-A and A/1, the duplicate copy of the medical report and the X-ray report. The duplicate copy of injury of appellant was tendered in defence evidence, as P.W.10 stated that its original was lost. 7. Sri Baxi S.R.P.Sinha, the learned senior counsel appearing on behalf of the appellant has, firstly, submitted that the witnesses like P.Ws.1, 2, 3 and 4 might have claimed themselves to be the eye witnesses to the occurrence, but on a careful scrutiny of their evidence it might appear to the court that they had not really seen the real assault and might be that they had appeared at the scene of occurrence after the assault was over. Sri Sinha referred to different paragraphs of the - 5 - depositions of the above noted witnesses and then took us to the evidence of P.W.9 S.I. Basudeo Prasad so as to satisfying us about the credibility of his contention. The other argument of Sri Sinha was that the witnesses have denied the presence of injuries upon the appellant and as such they were making false statement intentionally on one of the most material aspects of the case and as such in the light of the Supreme Court decision reported in AIR 1976 SC 2263 Lakshmi Singh Vrs. State of Bihar the witnesses may not be relied upon for sustaining the conviction. The contention, thirdly, was that one of the sons of the informant, like, Harendra Kumar Singh has stated in his evidence that there was no ill-will between the appellant and the deceased and the relationship between the two families was cordial. It appears that it might be on account of fit of temper and loss of control that the deceased was assaulted and died on that account. As such, submitted Sri Sinha, it may not be a case under Section 302 of the IPC and the court should take a view that the conviction ought to have been recorded and sentence ought to have been passed under either parts of Section 304 especially under its second part. Sri Sinha, lastly, contended that the statement of P.W.6 Harendra Kumar Singh was recorded too belatedly after the occurrence to be considered. 8. We have heard Sri Ashwini Kumar Sinha, the learned Additional Public Prosecutor as also Sri Akhileshwar Prasad Singh who has appeared before us on behalf of the informant. Sri - 6 - Singh, the learned counsel appearing for the informant has cited before us decisions rendered by the Supreme Court in Hare Krishna Singh Vrs. State of Bihar AIR 1988 SC 863 and Bhabanand Saran Vrs. State of Assam AIR 1977 SC 2252 and has submitted that it was at all not mandatory upon the prosecution to explain injuries if the court finds that it was either too superficial to be taken note of or it could be caused under circumstances otherwise than in course of the same transaction. It was contended that the witnesses are consistent on welding blows with chhura on the deceased and they appeared to the trial court reliable persons as regards their depositions. It was further contended that the evidence of witnesses indicates that the appellant gave four blows, two on the front of the deceased and two on his back and the blows as per the evidence of the doctor appeared quite serious having been given on the most vital parts of his body and that probably indicates as to what was the real intention of the appellant in giving those blows. It was, as such, contended that it was proper conviction of the appellant under Section 302 of the Penal Code. 9. The presence of the witnesses at the scene of occurrence has neither been challenged before us nor we doubt it. They appear having made consistent statement right from the inception of the investigation that they were present at the temple and were engaged in singing some devotional songs on the occasion of celebration of Chhathiar ceremony of Lord Krishna. - 7 - P.W.1 Hanuman Das Naga is the Mahanth of the temple and he has testified about the above fact as to what was the reason for the assemblage of about 50-60 persons at the temple in that night. P.W.1 has stated that the celebrations were going on since last many days and people used to assemble in the same way as they had done in that particular night. The evidence of other witnesses, like, P.Ws.2, 3, 4, 6, 7 and 8 also corroborates the above evidence of P.W.1 and as such the reason for the presence of the deceased and the appellant at the scene of occurrence appears fully and satisfactorily brought on record. 10. Whatever is disputed, as may appear from the contention of Sri Baxi S.R.P.Sinha the learned senior counsel appearing for the appellant, is that P.Ws.1, 2, 3 and 4 may not be eye witnesses. We were referred to the evidence of P.W.1 in para-6 and that of P.W.2 in para-1 and also of P.W.3 Awadh Bihari Singh in paragraph-1. It was submitted that they have made statements that they had seen the appellant giving blows to the deceased with chhura as soon as they heard the cries of P.W.7 Dharmendra Kumar Singh, the informant. It appears that while cross-examining the above witnesses this fact was brought into their attention as per the provisions of Section 145 of the Evidence Act and the same was proved by cross-examining the I.O. of the case, P.W.9 S.I. Basudeo Prasad, under Section 157 of the Evidence Act. The investigating officer appears telling the court that they had not stated that they had seen the actual - 8 - assault being given by the appellant to the deceased. But, while going through the evidence of those witnesses what was found by us was that they had amply indicated that they had rushed to the scene of occurrence and had seen the appellant rushing away from it with a chhura and further that the deceased was lying and was wreathing and ultimately he died there. Thus, separating the grains from the chaff, what we could find out is that the witnesses could not be said to be absolutely immaterial witnesses. They appear material witnesses to us, may be not on the main part of the manner of assault but on subsequent part of the offence and their evidence could be trustworthy. 11. P.W.5 Ram Shekher Singh, the father of the deceased, on his own showing was not an eye witnesses to the occurrence. He told by P.W.8, his grand-son, the son of the informant that his father had been stabbed by the appellant. This statement appears made very proximately to the occurrence to P.W.5 by P.W.8 and he appears reproducing the same statement before the court. As such his evidence appears to us relevant for the particular purpose that the natural reaction of informing the senior most family member of the deceased was acceptable as was deposed to by one of the sons of the deceased. That evidence thus, to us, appears important when we consider the whole scenario of the occurrence and its aftermath. 12. The three brothers, i.e., P.W.6, 7 and 8 are the sons of the informant and two of them Harendra Kumar - 9 - Singh(P.W.6)and Amrendra Pratap Singh(P.W.8)have fully corroborated the evidence of P.W.7 Dharmendra Kumar, the informant of the case on all material parts of the occurrence. P.W.7 has named his two brothers in the F.I.R. P.W.6 and P.W.8 are also said to have accompanied his father when he had gone to the temple for singing the devotional songs. On perusal of the evidence of the three witnesses as also while we were being addressed by Sri Singh, the learned counsel appearing for the informant, we could not find anything nor we were shown any slightest aberration which could be afflicting the evidence of the three witnesses, except that P.W.6 had admitted in paragraph-6 of his evidence that he had given his statement to the I.O. at 5 P.M. on the second day of the occurrence which date has been stated by the investigating officer P.W.9 Basudeo Prasad as 23rd of August, 1998. The argument appears weighty because P.W.6, the son of the deceased, we could simply infer, had been throughout by the side of the dead body of his father and the I.O. could have confronted him when he had come at his door either for recording the fardbeyan or for performing other formalities in respect of investigation. In that view, the belated statement of P.W.6 Harendra Kumar Singh may appear to be material and meaningful as regards the criticism made by Sri Sinha. But, if we reject the evidence of P.W.6 on the ground which could be cited before us, then that would tantamount to shutting our eyes to some of the realities of human behaviour. - 10 - Amrendra Pratap Singh was the son of the deceased. His father had been murdered. His dead body was brought from the temple to his house. The police had not reached for about ten hours and when it reached the family members must have been busy with assisting the investigating officer P.W.9 in performance of his statutory duties, besides for facilitating the holding of the postmortem examination upon the dead body, the same would have been transported to the mortuary. Besides, after the postmortem examination had been completed, they had been busy in receiving the dead body and then could have acted fast so as to cremating it. These are the circumstances which could explain as to why P.W.6 could not have been prompt, in spite of the fact that the I.O. was present, in giving his statement to him. These circumstances, to us, appear fully explaining the belated statement of P.W.6. 13. Jitendra Singh was killed, that is established by the evidence of P.W.10 who found the following injuries on his dead body:- (i)Incised wound 1 ¼”x ¼”into chest cavity deep over right side upper chest just lateral to sternum 4th right costal cartilage was found cut and blood and blood clot was found present. (ii)Incised wound 1-1/4”x1/4” x chest cavity deep over left side upper chest. Supermedial to left nipple. 4th left costal cartilage was found cut. Blood and blood clot was found - 11 - present. (iii)Incised would 1”x1/4”x muscle deep over back of left side chest just medial to medial margin of left scapula with a linear extension skin deep upwards above 2”. Blood & blood clot was found present. (iv)Incised wound ¾”x1/4” x muscle deep over medial side of medial margin of right scapula over the back of chest. Blood & blood clot was found present. 14. On dissection of the dead body, P.W.10 found that the right and left lungs were cut under injuries no.1 and 2 and the heart was perforated anteriorly. This could indicate as to what was the magnitude of the force by which the two blows were given on the front of Jitendra Singh. Besides, injuries no.(iii) and (iv) were found on the scapular part of back as may appear from their description, given by P.W.10 which have just extracted above. The doctor has opined that the injuries could be caused by a sharp penetrating substance may be, like, chhura. 15. It was at this stage that it was convassed upon us that the witnesses who testified in the court did not, firstly, admit of presence of any injury on the person of the appellant and further refused that any one had assaulted him. It was, as such, submitted that the witnesses were making false statement intentionally on the most material part of the occurrence. It was contended that it was incumbent upon the prosecution to explain the injuries found by D.W.1 who had also held postmortem - 12 - examination and had prepared Ext-6 the report in that behalf to explain those injuries. We have some reservations in acceding to the submissions that the appellant had any injury. The witnesses have not admitted that they had seen any injury in that particular night on the person of the appellant. It was suggested while cross-examining the witnesses that the appellant had some injuries. D.W.1 Dr. Virendra Kumar Rai came to depose in court and stated in his evidence that he had prepared the duplicate injury report because the original was not available and as per the duplicate injury report he deposed to having found two incised wounds measuring 1 ¼”x1/4” x scalp deep over left parietal and 2 ½” on right side over forehead. The injury report which was claimed to be duplicate has been marked Ext-A as secondary evidence as may appear from paragraph-2 of his deposition. 16. We have already expressed our reservations about the admissibility of the document. The reason according to us was that it was admitted that the original of which Ext-A was the duplicate, had been lost. D.W.1 did not state that there was any basic document which contained the record of the injuries found on the person of the appellant and he had copied Ext-A from that particular document so as to preparing the duplicate copy, Ext-A. The evidence of P.W.9 Basudeo Prasad in paragraph- 12 points out that he had found the appellant admitted in hospital and there was bed-head ticket hanging from bed no.11 at - 13 - Sadar Hospital, Ara. We could safely suppose that the bed-head ticket must bear the record as to what were the injuries which were recorded by the doctor while admitting the appellant for treatment in Sadar Hospital, Ara. It was the primary evidence which could have been very much brought on record and could have made available to the court. P.W.9 was cross-examined by the appellant himself and during that course he had admitted that he did not note down any injury from the bed-head ticket. We may suppose that there was no such record as to indicate that there were injuries found on the appellant. 17. However, every injury which could be found on the person of the accused need not be explained. The learned counsel appearing for the informant has placed before us a substantial number of decisions of the Supreme Court which we have noted down in the argument part of the present judgement. However, we are not inclined to go to those decisions those decisions were passed and the principle was laid down by the Supreme Court in the special facts of those cases. We want simply to point out that this court had the occasion of considering the similar questions in the case of State of Bihar Vrs Ishwarchandra Rai and while considering that contention some of the important decisions of the Supreme Court right from Lakshmi Singh Vrs. State of Bihar AIR 1976(SC)2263 up to Kashi Ram Vrs. State of Madhya Pradesh 2002(1) 71 were noticed and the principles enunciated in those decisions were discussed and thereafter this - 14 - court finally concluded in paragraph-31 as to when it could be necessary for explaining the injuries and what could be the fall out of such non-explanation of the injuries found on the accused. While passing the above decision this court held that if there is ample probability indicating that the injuries were caused in the course of the same transaction or in the same course and further that the injuries were admitted to be caused by the witnesses and besides the nature was such which could not be ordinarily be manufactured by the accused, then it was incumbent on the prosecution to explain injuries on accused 18. In the above case of Ishwar Chandra Rai, the accused had a grievous injury and he was also hospitalized in the same hospital where the dead body was taken for postmortem examination and this court held that the prosecution was not obliged to explain the injuries on the accused persons. 19. In the present set of facts and the evidence available on record, we have not been able in finding out that there was any evidence which could indicate to us that the appellant had been assaulted or had received any injuries in the course of the same transaction. It is true that questions were put to almost all witnesses as to whether they had seen any injury on the person of the appellant but no question was directly put to any witness suggesting that any particular person, may be the deceased or any of his sons or the P.Ws, had assaulted him by any weapon which may cause an injury of the - 15 - nature as was attempted to be brought on record by the appellant. Thus, we find a complete lack of evidence which may indicate that the injuries which were attempted to be brought on record by the appellant had really been caused to him or the appellant had been assaulted during the same transaction. Having said the above, we simply reject the contention that the non- explanations to the injuries which were suggested by D.W.1 was fatal to the prosecution case. In fact we are of the opinion that D.W.1 could not establish that he could have found any injury on appellant and the defence also could not succeed in bringing any fact through cross-examination of witnesses indicating the presence of any injuries of any sort on the person of the appellant. 20. Having said the above after discussing the evidence on record and the points raised as regards the prosecution and defence arguments, we proceed to consider the most important of contentions of Sri Sinha that the appellant ought to have been convicted under Section 304 part-2 of the IPC, because the relationship between the deceased and the appellant was good and the act could be the result of a fit of temper and loss of control. The heated exchange during the course of singing of Bhajans appears the reason under which the appellant appears walking out of the congregation. He went away and reappeared. The evidence does not show that while he was singing Bhajans as one of the members of the congregation, he was bearing any arm - 16 - or weapon. It could be safely supposed that he went away and reappeared at the scene of occurrence after he had duly armed himself. Thus, it could not be said that it could be on account of the spur of moment. In fact the appellant appears having made preparation as to what he was likely to do subsequently. His acts appears premeditated one. The other facts indicate that the deceased on being called, when reached near him, was firstly given two blows in the front parts of his body. The FIR says that he had fallen down after having received the two blows whereafter he was given another two blows by the appellant. We have not been able to find out any evidence in support of the above statement