CRIMINAL APPEAL DB No.202 OF 2002 With CRIMINAL APPEAL DB No.303 OF 2003 --------- Against the judgment and order of conviction and sentence dated 26th day of February, 2002 passed by Shri Alok Chandra Prasad, 7th Additional Sessions Judge, Rohtas, Sasaram in Sessions Trial No. 20/140 of 2000/2001. ------------ Cr. Appeal No. 202 of 2002 (DB) 1. Bachiya Devi @ Mosmatt Bachiya Devi, 2. Santosh Sonar, son of late Parasuram Sonar, both residents of village – Subhash Nagar, P.S. – Dehari, District – Rohtas ……………. Appellants Versus The State of Bihar …………….. Respondent Cr. Appeal No.303 of 2003 Amarish Sonar, son of late Parsuram Prasad, resident of Mohalla – Subhas Nagar, P.S. – Dehri, District – Rohtas ………..Appellant Versus The State of Bihar ………………..Respondent ---------- For the appellants : Sarvshri Neeraj Kumar @ Sanidh, Ranbir Singh, Advocates (both Amicus Curiae) For the State : Sushri Shashi Bala Verma, APP --------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE DINESH KUMAR SINGH -------------- Dharnidhar Jha & Dinesh Kumar Singh, JJ. The two appeals arise out of the judgment dated 26.2.2002 passed by the learned 7th Additional Sessions 2 Judge, Rohtas at Sasaram in Sessions Trial No. 20/2000 / 140 of 2001. The learned judge held the three appellants of the two appeals guilty under sections 302/34 of the IPC and directed each of them to suffer rigorous imprisonment for life. While passing the above sentence, the learned judge did not inflict any sentence of fine upon any of the appellants. 2. We have heard the two appeals together and we are disposing them of by this common judgment. 3. The prosecution case is based on the Fardbeyan (Ext. 3) of Shakuntala Devi, P.W. 7 who happened to be the mother of deceased Santosh Gupta. She alleged that in the night of 11.5.1999 at about 10 P.M. while the deceased and the informant were in their house, they found that the electric supply line was being interrupted. They sensed some foul play and came out to verify the same. They found that appellant Amarish Sonar was putting an illegal extension wire for drawing electric power from the electric pole and that was creating disturbances. The informant alleged that the deceased told the appellant Amarish Sonar as to why he was doing such an act in such late hours of the night, as a result of which the electric supply line of the deceased was getting disturbed. The appellant Amarish Sonar was accompanied allegedly by appellant Santosh Sonar. It is alleged that both the brothers started abusing the informant and the deceased and that was protested by the mother and her son. Amarish Sonar and 3 Santosh Sonar are said to have lost their cool and abusively tilling the informant that he would instantly teach her a lesson. 4. It is alleged that the appellant Amarish Sonar went running into his house, came back with his mother with a Gupti (a sharp penetrating weapon having double sharp edges or a single sharp edge kept in a wooden sheath). It is alleged that the three appellants caught hold of the deceased and started assaulting him. Appellant Santosh is said to have given the first blow with a danda to the deceased, as a result of which he fell down at his Darwaja whereafter, appellant Bachiya Devi caught hold of the legs of the deceased. Appellant Amarish is said to have given two piercing blows to the deceased in his rib-cage. 5. The informant alleged that she raised a halla which attracted persons, like, P.W. 1 Jagdish Singh, P.W. 2 Darbari Singh Yadav, Bablu Gupta (not examined), P.W. 4 Gopal Prasad Gupta and her husband, P.W. 6 Raghunath Prasad Gupta, who all picked up the deceased to take him to Dr. H.N. Singh who declared him dead. The informant said that while she along with others coming back with the dead body from the doctor, they found P.W. 9, S.I. Jai Prakash Choudhary on the G.T. Road and gave her statement. 6. P.W. 9 has stated that he picked up a rumour about the incident and started from his police station in verification of the same and when he had come on the G.T. Road, he found the informant and others coming with the dead body and he recorded the statement of P.W. 7, the informant. He, thereafter, prepared an 4 inquest report, Ext. 9, and sent the dead body for postmortem examination under a command. He arrested the accused persons from their house in the same night and inspected the place of occurrence where he found some blood fallen which was in such a state as not to be seized. P.W. 9 also searched the house of the appellant and recovered the weapon Gupti by preparing the seizure memo (ext. 1). He sent the blood stained Gupti for chemical examination to the Forensic Science Laboratory. After finding the material sufficient, P.W. 9 sent up the appellants for trial. 5. The defence of the appellants was that they were quite innocent and had falsely been implicated. They further suggested to P.W. 7 that no occurrence in the manner, as alleged, had occurred and the informant had lodged a false and concocted case for causing irreparable damage to the appellants. 6. In support of the charges, nine witnesses were examined by the prosecution. P.W. 1, Jagdish Singh, P.W. 2 Darbari Singh Yadav and P.W. 3 Bishnu Prasad Gupta have given eye witness account of the occurrence and they supported the evidence of P.W. 7, the informant. The wife of the deceased Manju Devi has been examined as P.W. 5 and she also appears giving an eye witness account of the occurrence. P.W. 4 Gopal Prasad Gupta appears reaching the place of occurrence after hearing the cries of P.W. 7 after the incident had occurred and he has stated that he found P.W. 7 wailing and telling people that it was these appellants who had killed her son. P.W. 4 is also a witness to the inquest report as 5 also the search of the house of the appellants from where the Gupti was seized and seizure memo (ext. 1) was prepared. P.W. 6 Raghunath Prasad Gupta is the father of the deceased and he was tendered for cross examination. P.W. 8, Dr. Raghvendra Kumar held the postmortem examination on the dead body of the deceased and prepared the postmortem report (Ext. 4). 7. Sarvshri Neeraj Kumar alias Sanidh and Ranbir Singh, the two amicus curiae, appearing in the two appeals, submitted that the fact that the occurrence had generated on account of putting an illegal extension wire on the electric line for drawing electric power by the appellants might stand proved by the evidence of the witnesses, but this circumstance was never put to the appellants in their examination under section 313 of the Code of Criminal Procedure and, as such, the same must not be used against any of them for convicting them. The other submission connected with statement under section 313 of the Cr.P.C. was that the circumstance of recovering the blood stained Gupti from the house of the appellants was also not put to any of the appellants and the same cannot be used against them as a circumstance in proving all the charges. It was contended that there might be a flaw here or the other there, but the consistency appears the hallmark of the testimony of the witnesses and some important witnesses who could be there and who were named in the FIR also appears not coming forward to support the case, as a result of which, some adverse inference must be drawn against the prosecution. The 6 evidence of P.W. 9 was read out to us and it was submitted that whole of the investigation was in infraction of the provisions of Police Manual vitiating the trial and on this score, the court should hold that the appellants have wrongly been tried and convicted. 8. Similar arguments were reiterated by Sri Ranbir Singh, the other amicus curiae. He further submitted that the appellant Amarish Sonar had remained throughout in custody since after being convicted in the year 2002 and the facts of the case may indicate that it may not be a case under section 302 rather, it could be a case under section 304 Part II of the IPC. 9. Before we grapple with the contentions raised before us by the amicus curiae appearing in the two appeals, we want to have a cursory glance of the evidence of P.W. 7 who has stated that while she and her deceased son were in their house, there were some interruptions in the electric line, as a result of which, they suspected some foul play and for that P.W. 7 and her deceased son came out and found that the appellant Amarish Sonar had climbed up some wall and his mother Bachiya Devi was standing nearby. Amarish Sonar was putting an illegal extension wire on the main electric supply line upon which, the deceased stated to him that it was out and out a wrong thing to do and that ensued some hot exchange of words between the two. Amarish Sonar and Santosh Sonar went back to their house and came back with Gupti and a danda respectively. The first blow was wielded by Santosh with danda on the head of the deceased, as a result of which, he fell 7 down whereafter the mother of Amarish caught hold of the legs of the deceased and Amarish gave two piercing blows with Gupti on the rib-cage of the son of P.W. 7, as a result of which he died. 10. On perusal of the cross-examination part of the evidence of P.W. 7, what we find is that an attempt was made by the defence to put questions in such a way as to making other witnesses, like, P.W. 2 and P.W. 3 not eye witnesses to the occurrence. Repeated questions were put on two or three different dates of the cross examination in which it was attempted to be elicited that P.Ws. 2 and 3 could have reached only after the occurrence had been completed. We have considered the attempt of the defence and we find that the lady was the mother of the deceased, who had seen the occurrence taking place in her presence at the very door steps of her house and could be psychological not as strong enough as to understand the implications of a question of a witty and experienced advocate. In our opinion, the whole exercise of the defence on bringing two witnesses, P.W. 1 Darbari Singh Yadav and P.W. 3, Bishnu Prasad Gupta outside the category of being eye witnesses was a dual between an uncrafty, simple lady and an experienced crafty advocate. It was an unequal match and if P.W. 7 could tell the court in her answer to some questions as may appear from paragraphs 18 and 20, it could not be as important and incisive as to erase the effect of the evidence of P.W. 7. She appears to us a witness who inspires confidence. Her replies appeared coming naturally to questions of different kind. She was 8 also cross-examined to her giving Fardbeyan before the police and we again find that the defence was trying to confuse the lady who appears to us a simpleton. She was also cross-examined on the fact of giving fardbeyan in paragraph 24 of her evidence and the same questions appear repeated in cross examination in paragraph 33. There might be some aberasion in her answers but those aberasions could be the chaff which could be separated from the identifiable grains. The grains, to us, appear appearing clearly and as such, we have placed implicit faith upon the merits of the evidence of P.W. 7. 11. The evidence of P.W. 7 gets support from P.W. 5, the wife of the deceased. She appears to be a natural witness. She was very much present at the door step of the house because she came out after having heard the heated exchange of words between her husband and mother in law on the one side and appellant on the other. This fact has been stated by P.W. 7 also that her daughter in law was present near the place of occurrence when the exchange of words was going on. This appears from the evidence of P.W. 7 in paragraph 20. P.W. 5 has narrated the whole description of the occurrence in the same manner as has been done by P.W. 7. There does not appear any element of perversity in the evidence of P.W. 7 as we have just discussed. 12. The three other witnesses who appear further lending corroboration to the evidence of P.W. 7, are P.W. 1, Jagdish Singh, P.W. 2 Darbari Singh Yadav and P.W. 3 Bishnu Prasad 9 Gupta. P.W. 1 and P.W. 2 who were not present from the very beginning of the occurrence, have rather stated that they reached at the nick of time from different places. P.W. 1 has stated that he had gone to collect some dues from a tea vendor at some distance from the place of occurrence towards north of his house. P.W. 2 appears a bus conductor and he has stated that he was working on a bus which was plying from Ara to Ranchi and when the bus used to reach Dihri, after handing over the charge of his job to some other conductor, he always returned to his house. This is how he met P.W. 1 on his way to his house and both of them were coming together. When they had come near the scene of the occurrence, they found, as per their evidence, that appellant Amarish Sonar was up on the electric pole and was attempting to put an extension wire. They both have stated thereafter as to how there a wordly duel was going on between the deceased and the appellants and how appellants Santosh Sonar and Amarish Sonar went back to their house to come back with a danda and Gputi so as to assaulting the deceased. 11. P.W. 3 is a petty shop-keeper who runs his shop in his very residential house. He has stated that his shop was situated at a distance of about 60 ft. from the scene of occurrence and he was also attracted by the hot exchange of words between the two parties. He has supported the prosecution case verbatim as has been done by other prosecution witnesses. We have gone through the evidence of other witnesses and what we find is that there is a 10 ring of truth in their evidence and further they inspire our confidence as competent and natural witnesses. 12. After having considered the evidence of P.Ws. 1, 2, 3, 5 and 6, we find that the manner of occurrence and the place of occurrence appear clearly established by their evidence. P.W. 9, the I.O. of the case has also given evidence on the place of occurrence and his evidence at page 55 (paragraph 2) indicates that it was just outside the house of the deceased where he found some blood fallen. He has further given the description of surroundings of the place of occurrence as may appear from some evidence available to us at page 55 of the paper book and he has stated that the house of the appellant Amarish Sonar was situated just east of the house of the deceased. The same evidence appears given by P.W. 5, the wife of the deceased in paragraph 12 of her evidence. Thus, we find that the evidence of witnesses clearly indicates as to for what reason and at which place and by whom the occurrence was committed. 12. As regards the medical evidence, the same also lends credence to the prosecution story on the manner of occurrence. P.W. 8 Dr. Raghvendra Kumar held postmortem examination on the dead body on 12.5.1999 at 11 A.M. and found the following ante mortem injuries: “ 1. An abrasion over right parieto-occipital eminence measuring 1.5” x ½” with bleeding. 2. An incised wound 1” x ¼” x chest cavity deep over left side of chest (front) in fifth intercostal space 2” lateral to sternal margin. 11 3. An incised wound 1” x ¼” x chest cavity deep in rt. axillary area of chest in 4th intre costal space.” 13. On comparing the evidence of P.W. 8 with that of the witnesses, we could find that the medical evidence clearly corroborates the manner of assault. The first blow, as may appear from the oral testimony of witnesses, was given by Santosh Sonar and the corresponding injury was injury no. 1 as recorded by P.W. 8. Remaining injuries fully corroborate the piercing blows by Gupti which were given by appellant Amarish Sonar repeatedly on the rib-cage of the deceased. While considering the cross – examination part of the evidence of P.W. 8, we find that the defence attempted to raise controversy as to what could be the time of holding postmortem examination. The defence also attempted to create a controversy by putting certain questions to P.W. 9, I.O. of the case on the timings regarding the preparation of inquest report. Copy of the inquest report is available to us in the form of Ext. 9 at page 82 of the paper book. Evidence of P.W. 9 is relevant for the purpose and we find that P.W. 9 was recalled for that purpose after the court had sent for the copy of the document from the hospital, the original copy of which was sent with the dead body challan for facilitating postmortem examination. One must keep this fact in mind that the fardbeyan was the first document which was created by P.W. 9 at the statement of P.W. 7 at G.T. Road as per his evidence as also as per the evidence of P.W. 7. The inquest report was prepared on old G.T. Road, Dehri. This is available to us from column no. 3 of Ext. 9. After having 12 recorded the fardbeyan of P.W. 7 what the I.O. had done, as he states in his evidence, was to hold the inquest upon the dead body and prepare the report. As such, while preparing Ext. 9, the I.O. must not have the case number because by that time, he had not sent the fardbeyan to the police station for registering a case. This could be the reason that the postmortem examination report, Ext. 4, also did not contain the police station case number. This is only on account of this fact that the details regarding the police case must have been derived by the doctor who had done the postmortem examination only after he had perused the inquest report. The relevant rules of the Bihar Police Manual, i.e., Rule 199 indicates that the first copy of the inquest report has to be sent to the doctor who is supposed to hold the postmortem examination. The purposes are manifold. One of the purposes is to establish the identity of the deceased and then to give opinion as to what could be the manner of the occurrence and the cause of death. In case the doctor had differed with the manner of occurrence which could be recorded in the opinion part of the police officer preparing the document like the inquest report, then the doctor conducting the autopsy may give those additional reasons. On perusal of Ext. 9, what we find is that non-mentioning of the police station case number may not be of much relevance. The I.O. was put a question in his cross examination that he copied the inquest report in certain paragraph of the case diary and that paragraph of the case diary was containing the case number. The 13 I.O. has stated in answer to the above question that by that time he had known the case number. We do not see any anomaly in the document and the answer of the officer . 14. On consideration of the evidence available to us, we find that the trial court was perfectly right in accepting the manner of occurrence in which it had taken place. 15. This brings us to consider the contention of learned amicus curiae on the non-mentioning of the circumstance of the proof of the genesis of the occurrence and also the recovery of the blood stained weapon of assault. 15. The observations of the Supreme Court which were placed before us, are contained in paragraph 21 of report, i.e., AIR 1963 Supreme Court 612 Jai Dev Vs. State of Punjab. We want to extract the relevant part of the observations of the Supreme Court which is as under: “………The examination of the accused person under S. 342 is undoubtedly intended to give an opportunity to explain any circumstances appearing in the evidence against him. In exercising its powers 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 14 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 anxietly 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.” 16. In other words, what may appear from the observations of the Supreme Court is that the purpose of examining an accused under section 313 of the Code of Criminal Procedure was to convey to him as to for what charge he has been tried and further that the facts relating to the charge were duly communicated to him so as to elicit his explanation. If this could be the purpose, as was observed by the Supreme Court, then we could find that the charge was in the following terms: “ I, S.K. Singh, Add. Sessions Judge 10 at Sasaram S.T. No. 20/2000 hereby charge you 1. Amrish Sonar 2. Santosh Sonar 3. Most. Bachia as follows:- That you, on or about the 11th day of May, 1999 at Dehri, P.S. Dehri (T), District Rohtas in furtherance of common intention did commit murder intentionally and knowingly causing the death of Santosh Gupta.” xx xx xx 15 I, S.K. Singh, Add. Sessions Judge 10 at Sasaram S.T. No. 20/2000 hereby charge you 1. Amrish Sonar as follows:- That you, on or about the 11th day of May, 1999 at Dehri, P.S. Dehri (T), District Rohtas did commit murder intentionally and knowingly causing the death of Santosh Gupta.” 17. While being examined under section 313 of the Code of Criminal Procedure, appellants were put a simple question which appears as question no. 2: “