CRIMINAL APPEAL No.533 OF 1988 (Against the judgment and order of conviction dated 18th of August, 1988 passed by 1st Additional District & Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 404/31 of 1986) Vijay Kumar Singh @ Vijai Bahadur Singh, son of Late Badri Singh, resident of village-Jigani, Police Station-Bhabhua, District- Rohtas. ------------(Appellant) Versus The State of Bihar -------------(Respondent) For the Appellant : Mr. Mahesh Prasad-II, Adv. : Mr. Rewti Kant Raman, Adv. : Mr. Gopal Sharan, Adv. For the State : Miss Shashi Bala Verma, A.P.P. 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. The sole appellant has questioned through this present appeal his conviction under Section 302 I.P.C. and the order of sentence whereby the appellant has been sentenced to undergo imprisonment for life passed by learned 1st Additional District & Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 2 404/31 of 1986 on 18th of August, 1988. The prosecution case is based upon the fardbeyan of Sheo Lochan Singh(P.W. 2) recorded by Bhagwan Prasad, S.I. of Bhabua P.S. on 16.03.1986 at 11:A.M. at Sadar Hospital, Bhabua to the effect that on 16.03.1986 the informant’s brother Badri Singh was cutting Khesari crop in Bajaraha area and in the nearby field the informant was also cutting the Khesari crop. At about 7:00 A.M. appellant Vijay Kumar Singh @ Vijay Bahadur Singh came armed with lathi and started abusing Badri Singh(deceased) upon which he forbid the appellant to abuse when Vijay Kumar Singh(appellant) indiscriminately assaulted the deceased. After hearing the alarm informant went to save Badri Singh(deceased) in the meantime, Badri Singh(deceased) after receiving the assault fell down on the ground and became unconscious when the accused fled away from the place of occurrence. It is claimed by the informant that the occurrence was seen by the co-villagers Kasi Singh, Sheo Dahal Singh, Rama Shankar Kahar and others who were cutting their crops in nearby field. The motive for the alleged occurrence has been alleged to be the dispute with regard to the share of property. 3 Two persons were made attesting witnesses to the fardbeyan namely Sheo Murat Singh and Kalika Singh (both not examined). With aforesaid allegation Bhabua P.S. Case No. 44 of 1986 was registered on 16.03.1986 at 11:45 A.M. under Sections 323, 307 of the I.P.C. subsequently Section 302 I.P.C. was also added. During investigation the police found the accusation true and consequently submitted charge- sheet which resulted into taking cognizance of the offence against the appellant by learned Court below. Consequently the case was committed to the Court of Sessions and charges were framed under Section 302 of the I.P.C. The prosecution examined altogether six witnesses of which Kashi Singh is P.W. 1, nephew of the deceased and son of P.W. 3. P.W. 2 Sheo Lochan Singh, and P.W. 3 Sheo Tahal Singh are own brothers of the deceased. P.W. 4 is Dr. Shyam Sunder Singh, the doctor who first examined injuries of the victim and found altogether four injuries. P.W. 5 is Dr. C.B. Tripathy who conducted the post-mortem and found altogether seven injuries on the person of the deceased. P.W. 6 is Bhagwan Prasad the Investigating Officer who has conducted the investigation. 4 The prosecution exhibited four documents of which Ext-1 is the injury report, Ext-2 is the Post- mortem report, Ext-3 is the fardbeyan and Ext-4 is the formal F.I.R. Though the defence has not examined any witness but exhibited four documents. They are, certified copy of the order of case No. 9 of 1980-81(Ext- A), Election voter list(Ext-B), certified copy of the order of case No. 410 of 1983-84(Ext-A/C) and certified copy of partition deed(Ext-C). All these documents have been exhibited on behalf of the defence to prove that the appellant is actually the biological son of the deceased as a result he could not get any share in the properties of natural father Bairagi Singh as this fact has been recorded by the consolidation and other authorities which further gets reflected through the voter List. Learned Trial Court after examining the evidence on record came to the conclusion that the prosecution has proved the case beyond the shadow of reasonable doubt, accordingly the judgment of conviction was passed. Now this Court has to see whether the evidence on record proves the prosecution case beyond 5 the shadow of reasonable doubt or the impugned judgment of conviction needs interference on reappraisal of evidences on record. It is an unfortunate case in which nephew has been convicted for killing his own uncle whom the appellant claimed to be his biological father. So far as the manner of occurrence is concerned, P.Ws. 1 to 3 claim themselves to be the eye witnesses. P.W. 1 in para I has stated that the accused Vijay Kumar Singh came from the west armed with lathi and started abusing the victim thereafter assaulted the deceased with lathi and when the victim fell down even then the assault was being made. In para 20 this witness has further stated that the victim received injuries in sitting posture while cutting the crop. P.W. 2 in para 10 has stated that the appellant assaulted the victim indiscriminately and when the victim fell down facing the earth, even then the assault was being made. P.W. 3 in para 1 of his evidence has stated that firstly the appellant talked with the victim and thereafter first assault was made by lathi on the head of the victim when P.W. 3 ran to save the deceased 6 even then the appellant continued assaulting the victim till he got unconscious. P.W. 3 in para 7 has also stated that the victim received eight to nine blows though all the blows were not received by the victim in sitting posture. Learned counsel for the appellant submits that the manner of occurrence has not been proved as P.W. 1 has stated that the victim received injuries in sitting posture while cutting the crops whereas P.W. 2 has stated that the victim after receiving the first blow fell down facing the earth but the injury report(Ext-1) and post-mortem report(Ext-2) do not reflect any injuries on the back of the deceased. It is further contended that P.W. 3 has stated that the victim received eight to nine injuries though it has been qualified by P.W. 3 that all the injuries were not received in the sitting posture but even as per the evidence of P.W. 3 the victim ought to have received injuries on his back but no such injury has been found by the doctor which not only creates doubt about the credibility of the three eye witnesses but also creates doubt about the manner of occurrence as alleged by the eye witnesses. So far as the manner of the occurrence is 7 concerned, there is a consistency with regard to the assault by the appellant to the deceased. All the three eye witnesses have consistently deposed that the appellant first came abused the deceased and then made the repeated blows. So far as inconstancy with regard to the posture of the deceased while receiving the assault is concerned, it may have certain inconstancies but these inconstancies have to be appreciated in view of consistency of evidence with regard to the manner of occurrence taken place on 16.03.1986 when P.Ws. came to depose after about two years in 1988. Moreover the inconstancy is not as such which in any way clouds the actual occurrence since the appellant is the sole assailant and no other manner of the occurrence has been suggested by the defence. It is admitted fact that the victim succumbed to the injuries at the admitted place of occurrence which has not been disputed by the defence. Learned counsel for the appellant further contends that the manner of the occurrence further gets clouded in view of the evidences of P.W. 4 and 5 as P.W. 4 examined the victim in an injured condition and found altogether four injuries which are as follows:- 8 (i) Bleeding from nose, mouth and ear. (ii) Lacerated injury near both the ears on the temporal region of size 1” x ½” x fracture of skull by naked eye and 1½” x ¼” x tissue deep. Bleeding from both wounds. (iii) Swelling on the right knee joint 4”x2”. (iv) Swelling on the right cheek 4”x2”. Whereas P.W. 5 who conducted the post- mortem found altogether seven injuries which are as follows:- (i) Contused swelling 16 C.M. x 13 C.M. over right side of the occipital region of head and adjoining part of neck. (ii) Contusion 12 C.M. x 6 C.M. over left mastoid region and adjoining part of neck with abraded contusion 3 C.M. x 4 C.M. over left mastoid region with scab dried. (iii) Multiple abraded contusions 18 C.M. x 5 C.M. over outer and back aspect of left leg 6 C.M below knee joint. (iv) Contusion of chest wall 15 C.M. x 14 C.M. over front and outer aspect of lower part of right side of chest, 8 C.M. 9 below right axilla. (v) Fracture of the right 4th to 9th ribs on outer aspect. (vi) Contusion of right side of neck on its lower part with deeper tissues including muscles contused. (vii) Fracture of right temporal and adjoining occipital and frontal bones. It is contended that the difference of number of injuries between injury report (Ext-1) and post- mortem report (Ext-2) creates doubt about prosecution version. It appears that two injuries have been described by P.W. 4 under item no. 2. Injury report only reflects the injuries found on the external examination of the injured where as post-mortem report reflects both external and internal examinations (injuries) on dissection of the dead body, hence in most of the cases the post-mortem report reflects more number of injuries than the injury report. Hence this contention of appellant no way creates doubt about the manner of occurrence. It is further contended that as per P.Ws. 1 and 2 the victim received injuries while either sitting or after fall facing the earth but the injury report suggests injuries on the front part of the body particularly on 10 the knee and the chest and there is no injuries on the back. From the evidence of P.Ws. 4 and 5, it appears that the victim received injuries on the head and neck and there were fractures on the temporal and occipital regions and these injuries particularly on knee and chest can be caused to a person in sitting or fall posture without causing any injury on the back, hence the nature of injury creates no doubt about the manner of occurrence. So far as place of occurrence is concerned, P.W. 6 in para 5 has deposed that the place of the occurrence is Bajaraha Siwana, one K.M. east from the village Jigani. This is the place which has been described in the fardbeyan and suggested in the evidences of P.Ws. 1 to 3. It is contended by learned counsel for the appellant that P.W. 1 in para 27 has clearly stated that he could not show the place of occurrence to the I.O. since he took the victim to the hospital whereas P.W. 6, the I.O. has stated in para 7 of his evidence that the place of occurrence was shown to him by P.W. 1. Such contradiction no way creates doubt with regard to the place and manner of the occurrence though it may create some doubt about the credibility of P.W. 1 but 11 due to time gap and P.W. 1 being a rustic person drawing of such inference will not be in the interest of justice. The other contention of the learned counsel for the appellant is that the independent witnesses have been withheld and only interested witnesses have come forward to prove the case. It is the admitted position that one Sadanand Singh has five sons, Badri Singh(deceased), Sheo Lochan Singh(P.W. 2), Sheo Tahal Singh(P.W. 3), Kedar Singh(not examined) and Bairagi Singh(dead). It is contended that there was a dispute with regard to the share of the property and hence witnesses have falsely deposed against the appellant due to the property dispute. In the fardbeyan, it has been claimed by the informant P.W. 2 that the assault was being witnessed by Kashi Singh(P.W. 1) and one Rama Shankar Kahar and his father but Rama Shankar Kahar has not been examined whereas two attesting witnesses to the fardbeyan Sheo Murat Singh and Kalika Singh have also been withheld. Similarly P.W. 2, in para 1 of his evidence has stated that Rama Shankar Kahar and his father were also cutting the crop near the P.O. but they have 12 not been examined. Similarly P.W. 2 in para 12 has stated that the son of the deceased Banarasi Singh also took the victim to the hospital but he has also not been examined. P.W. 6 in para 10 has stated that during investigation he took the statement of Sheo Tahal Singh, Mukhdeo Singh, Manohar Ram, Sheorat Singh and Mohan Singh but they have also been withheld by the prosecution. It is true that the prosecution has withheld the independent witnesses as only three eye witnesses have been examined of which P.W. 1 is nephew of the deceased and son of P.W. 3 whereas P.Ws. 2 and 3 are the own brothers of the deceased. Considering the nature of the offence and the relationship between the deceased and the sole appellant, it appears that the independent witnesses might be hesitant in deposing since the appellant is the own nephew of the deceased. It is well settled principle of law that it is the quality and not the quantity which matters in the criminal trial as we see no reason for three family members of appellant to depose falsely. It is contended by learned counsel for the appellant that appellant’s natural father was Bairagai 13 Singh but his biological father was the deceased, since after the death of his natural father the mother of the appellant started residing with the deceased. Though no evidence has been brought on record to prove this contention but the suggestions have been given to the P.W. 1, 2 and 3 to the effect that Badri Singh(deceased) was the father of the appellant. Though the Banarasi Singh being the son of the deceased has not been examined but there was no bar for defence to examine him who could had thrown light on the unnatural relationship the appellant was claiming with the deceased. The defence has exhibited Exhibit-A to C to show that the appellant could not get any share in the property of Bairagi Singh which has also been recorded by learned Trial Court in para 13 of the judgment as Exhibit-C shows that the properties alleged to be of Bairagi Singh was divided into his two sons namely Ramji Singh and Lalji Singh but no share was given to the appellant. Exhibit-A which is the certified copy of the order of the consolidation court reflects that in the branch of Bairagi Singh the name of the appellant does not find place whereas the assistant consolidation officer appears to have observed that accused is one of the sons of Badri Singh(deceased). Exhibit-B is the 14 certified copy of the voter list in which Birja Singh is described as the son of Badri singh. P.W. 3 in his evidence admits that appellant is also known as Birja Singh. From the evidence of P.W. 5, it appears that there was dispute with regard to parentage of the appellant particularly between the deceased and the appellant and there was dispute with regard to the share among the branches of Jadunandan Singh, on that ground suspicion has been raised with regard to false implication of the appellant but suspicion can not take the place of proof and the same can not wipe out the evidences of the eye witnesses, P.W. 1 to 3. It is contended on behalf of the appellant that fardbeyan does not reflect the presence of P.W. 3 at the place of the occurrence. It is not possible for the informant to introduce every minute detail in the F.I.R. The evidences of P.W. 1 and 2 whose presence is admitted even as per the fardbeyan itself prove the manner of the occurrence. It is contended by Mr. Mahesh Prasad No. 2 that the appellant had no intention to kill as there was no substantial motive for committing the offence. The consistent case of the prosecution is that the victim was assaulted indiscriminately by the sole appellant 15 and it was the appellant who armed with lathi reached to the place of the occurrence and assaulted the victim when no resistance was made by the deceased or the informant side. The nature of injuries particularly the fracture of the temporal and the occipital bone suggest that the appellant has both intention and knowledge to kill the deceased. So far as the motive part is concerned, from the evidence of prosecution witnesses as well as the suggestions given by the defence side to the prosecution witnesses and the documents exhibited by the defence side prove this fact that there was dispute with regard to the share of the properties due to dispute of the actual parentage of the appellant, hence the motive of the occurrence in the present case can not be ruled out. Admittedly the occurrence took place on 16.03.1986 at about 7: A.M moreover the fardbeyan was recorded at 11: A.M. the same day of the occurrence, but the formal part of the F.I.R.(Ext-4) reflects that it was transmitted to the learned Court below on 20.03.1986. Though this point was not raised before the learned Court below but it appears that this contravention on behalf of the police officer is contrary to the provisions of the Cr.P.C. but in our view it has 16 not prejudiced the case of the accused. It was also contended before the learned Trial Court that the appellant was not present at the place of the occurrence. It is well settled principle of law that if the accused fails to prove alibi then it lends credence to the prosecution version as from perusal of the paragraph 13 of the impugned judgment, it appears that the defence in order to prove the alibi has not brought any evidence on record hence has failed to prove its alibi. From scanning the evidence on record, we come to the conclusion that the prosecution has proved its case beyond shadow of reasonable doubt, hence the impugned judgment and order of conviction dated 18the of August, 1988 passed by the 1st Additional District & Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 404/31 of 1986 needs no interference. The appeal stands dismissed. Patna High Court Dated 15th of September, 2010 Shageer/AFR (Shyam Kishore Sharma, J) ( Dinesh Kumar Singh, J.) 17