- (1.) The two appellants, Rajendra Singh and Triloki Singh have assailed their conviction and sentence passed by the First Additional Sessions Judge, Saran in Sessions Trial No. 189 of 1981, which has been upheld in appeal by the High Court of Patna in Criminal Appeal No. 146 of 1985. Before the learned Trial Judge in all there were nine accused persons but six of them were acquitted and only two appellants along with one Prabhunath Singh were convicted but said Prabhunath died during the pendency of appeal in the High Court, and as such, there are two appellants in this Court. The prosecution case in nutshell is; that on 4th July, 1977 an incident occurred in village Jaidpur Tola Pilui in the district of Saran and one Kameshwar Singh was murdered. Satyanarain. PW-8 gave the first information Report at 6.00 p.m. at Sadar Hospital, Chapra where he was lying injured, alleging therein that at 11.45 a.m. while the informant was getting his field ploughed by a tractor which he had hired from PW-5 these appellants and others came and asked the informant party not to plough the field but when the informant protested he was abused and then accused No. 1 assaulted him by means of Bhala on his abdomen whereas accused No. 2 assaulted him on his chest. Deceased Kameshwar who was the nephew of the informant was assaulted by accused No. 1 in his abdomen and thereafter all the accused persons assaulted him. The prosecution also further alleged that brother of the informant Banwari Singh had also been assaulted by accused Nos. 7, 1 and 2 and the acquitted persons assaulted him by means of lathi. It is also the further case of the prosecution that PW-7 who is the nephew of the informant had also been assaulted. On the basis of the aforesaid First Information Report, Sub-Inspector of Police PW-9 registered a case and started investigation. The Investigating Officer went to the village and held the inquest over the dead body at 9.45 p.m. and prepared an Inquest Report Exhibit-7. The dead body was sent for autopsy which was conducted by doctor PW-3. The said doctor had also examined the injuries on the person of the informant on the requisition of the Investigating Officer. Finally Charge-sheet was submitted as against 9 accused persons, as already stated, against Rajender Singh, Prabhunath Singh and Triloki under Section 302 for the murder of Kameshwar and against all the nine accused persons including the six acquitted under Section 302/149 for being members of an unlawful assembly in prosecution of the common object of which assembly Rajender and others assaulted the deceased and then murdered. Rajender Singh and Prabhunath Singh were further charged under Section 307 and there were charges under Sections 148 and 147 and also under Sections 324 and 323 of Indian Penal Code. From the evidence of doctor- PW-3 who conducted the postmortem on the dead body of Kameshwar it is crystal clear that the death was homicidal and the said conclusion of the learned Sessions Judge has been affirmed by the High Court in appeal and had not been assailed before us. To bring home the charges against the accused persons the prosecution relied upon four eye witnesses, namely, PWs. 2, 4, 7 and 8. The defence also examined the Magistrate as DW-1 who is alleged to have recorded the statement of informant PW-8 at the hospital on the date of occurrence while he was lying in injured condition. The said statement has been marked as 'Exhibit B'. From the cross-examination of the prosecution witnesses, the defence case appears to be that the occurrence in fact took place on Plot No. 4514 belonging to the accused lying contiguous south of plot No. 4513 while the accused persons were on their field and, therefore, it is the prosecution party who are the aggressors and the accused persons are entitled to right of private defence of property as well as person. On a though analysis of the entire evidence on record the learned Sessions Judge came to the conclusion that the occurrence took place on plot No. 4513 which admittedly belongs to the informant and, therefore, the plea of the accused that they were exercising their right of private defence of property as well as person on their land is not acceptable. This conclusion of the learned sessions Judge has been reaffirmed in appeal by the High Court and Mr. P.S. Mishra, learned senior counsel appearing for the appellants also fairly did not assail the same. The learned sessions Judge convicted the appellants on the basis of the ocular evidence of four eye witnesses, namely, PWs. 2, 4, 7 and 8 of whom PWs. 7 and 8 had been injured. He had also relied upon the evidence of the doctor-PW-3 who was posted at Sadar Hospital, Chapra and who had conducted the autopsy on the dead body of deceased Kameshwar and had submitted the postmortem report Exhibit 2 and who had also examined the injured persons. The sessions Judge convicted the appellants under Section 302/34, I.P.C. and sentenced them to imprisonment for life. They were also convicted by the sessions Judge under Section 307 and sentenced to imprisonment for 7 years and for their conviction under Section 324 they were sentenced to undergo RI for one year. The High Court in appeal has affirmed the conviction and sentence of the appellants on all three counts. It may be stated at this stage that since 9 accused persons stood their trial facing a charge under Section 302/149, I.P.C. the sessions Judge discussed the evidence of the prosecution witness, more particularly, PWs. 2 and 7 and came to the conclusion that at no point of time five accused persons had come together and, therefore, the necessary ingredients for formation of unlawful assembly having the common object to cause murder of Kameshwar is not satisfied. Consequently the question of constructive liability of all the accused persons does not arise. It also positively found that it is only Rajendernath, Prabhunath and Triloki who had made overt act by assaulting the deceased. According to the doctor PW-3 the deceased had the following three anti-mortem injures: "(e) Penetrating injury 1" x 1/2" x 1-1/2" in the chest cavity arising first above, left nipple and one inch 1" lateral to the nipple piercing in 4th intercostal space. On further examination, the left alura was found punctured at the said site and thereby punctured the left lung to its upper portions 1/3" x 1/2". The left side of chest cavity was having about 8 ones (sic) of altered blood. On further disection, both lungs were found pale, right side of chest was having blood in its chambers. Left side was found empty. On dissection of abdomen liver was found pale. The stomach contained about 10 ones (sic) of rice mixed food materials. The bladder was empty. (ii) There was penetrating injury in the posterior aspect of upper part of right leg 1/2" x 3/4" x 1-1/4" and ruptured the popliteal blood vessels. On further examination about 3/4 once (sic) of altered blood came out. (iii) Incised wound on the back in fourth theorasic vertabral column 1/3" x 1/4" x 1/5"." In the opinion of the doctor death was due to shock and hemorrhage and injury No. 1 was sufficient to cause death in the ordinary course of nature.
(2.) Mr. Mishra, learned senior counsel appearing for the appellants raised the following contentions:- (i) The serious injury on accused Rajender not having been explained the prosecution case must be held to be untrue and, therefore, the conviction and sentence cannot be sustained. (ii) In view of the statement of Satyanarain recorded by the Magistrate on 4th July, 1977 which has been exhibited as Exhibit-B clearly giving out a different prosecution story than the one which was presented in the Court during trial the entire prosecution case must fail. (iii) In any view of the matter and taking into consideration the narration of events as unfolded through the prosecution witnesses there being no pre-meditation and on account of a sudden quarrel in course of sudden fight, the accused persons having assaulted the deceased in heat of passion exception 4 to Section 300, Indian Penal Code can apply and, therefore, the offence will be not under Section 302 but under Section 304, Part I, Indian Penal Code. (iv) Even taking the prosecution case in toto accused Triloki cannot be held liable by attracting Section 34 in view of the fact that there is no material to indicate that Rajender assaulted the deceased in furtherance of common intention shared by him and Triloki. Mr. B.B. Singh, learned counsel appearing for the State on the other hand contended, that in the facts and circumstances of the case non-explanation of injury on Rejender cannot be held to be fatal, moreso, when the oral testimony of the four eye witnesses has been found to be trustworthy. He further contended that the former statement of Satyanarain has not been confronted to him while he was examined as PW-8 and therefore, the provisions of Section 145 of the Evidence Act has not been complied with, and in this view of the matter the said document cannot be relied upon. He has also contended that even in the said statement Rajender assaulted deceased Kameshwar with Bhala had been stated, and therefore, the entire prosecution case cannot be said to be a concocted one. According to Mr. Singh the very fact that accused persons went to their adjacent land brought out the weapon of offence and asaulted the deceased, would negate the contention of the defence that there was no pre-meditation. That apart, common intention developed at the spur of the moment when both Rajender and Triloki came armed and assaulted deceased and, therefore, the question of applicability of exception 4 to Section 300 does not arise. He has lastly contended that in the facts and circumstances of the case Triloki also must be held liable by applicability of Section 34 and no error has been committed in convicting both the appeallnts in Section 34 of Indian Penal Code.
(3.) So far as the question whether non-explanation of the injuries on accused Rajender ipso facto can be held to be fatal to the prosecution case, it is too well settled that ordinarily the prosecution is not obliged to explain each injury on an accused even though the injuries might have been caused in course of the occurrence, if the injuries are minor in nature,but at the same time if the prosecution fails to explain a grievous injury on one of the accused person which is established to have been caused in course of the same occurrence then certainly the Court looks at the prosecution case with little suspicion on the ground that the prosecution has suppressed the true version of the incident. In the case in hand accused appellant Rajender had one penetrating wound, three incised wounds and one lacerated wound and of these inujuries the penetrating wound on the left axillary area in the 5th inter costal space 1/2" x 1/3" x 3/4" was grevious in nature as per the evidence of doctor - PW-3 who had examined him. On the basis of the evidence of PW-3 as well as PW-11 the Courts have come to the conclusion that there is no room for doubt that the appellants and their men had injuries on their person on the date of occurrence. The question, therefore, remains to be considered is whether non-explanation of said injuries on accused appellant Rajender can form the basis of a conclusion that the prosecution version is untrue. in Mohar Rai and Bharat Rai v. State of Bihar, (1968) 3 SCR 525 : (AIR 1968 SC 1281 : 1968 Cri LJ 1479), this Court had held that the failure of the prosecution to offer any explanation regarding the injuries found on the accused shows that the evidence of the prosecution witness relating to the incident is not true or at any rate not wholly true and further those injuries probabilise plea taken by the accused persons. But In Lakshmi Singh v. State of Bihar, (1976) 4 SCC (Cri) 671 : (AIR 1976 SC 2263 : 1976 Cri LJ 1736) this Court considered Mohar Rai (Supra) and came to hold that non-explanation of the injuries on the accused by the prosecution may affect the prosecution case and such non-explanation may assume greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution. The question was considered by a three Judge Bench of this Court in the case of Vijayee Singh v. State of U.P., (1990) 3 SCC 190 : (AIR 1990 SC 1459 : 1990 Cri LJ 1510) and this Court held that if the prosecution evidence is clear, cogent and creditworthy and the Court can distinguish the truth from the falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence and consequently the whole case and much depends on the facts and circumstances of each case. In Vijayee Singh's case (supra) the Court held that non-explanation of injury on the accused person does not affect the prosecution case as a whole. This question again came up before a three Jduge Bench recently in case of Ram Sunder Yadav v. State of Bihar, (1998) 7 SCC 365 : (1998 AIR SCW 3030 : AIR 1998 SC 3117 : 1998 Cri LJ 4558) where this Court re-affirmed the statement of law made by the earlier three Judge Bench in Vijayee Singh's case (AIR 1990 SC 1459 : 1990 Cri LJ 1510) (supra) and also relied upon at other three Judge Bench decision of the Court in Bhaba Nanda Sarma v. State of Assam, (1977) 4 SCC 396 : (AIR 1977 SC 2252 : 1977 Cri LJ 1930) and as such accepted the principle that if the evidence is clear, cogent and creditworthy then non-explanation of the injury on the accused ipso facto cannot be a basis to discard the entire prosecution case. The High Court in the impugned judgment has relied upon the aforesaid principle and examined the evidence of the four eye witnesses and agreeing with the learned sessions Judge came to the conclusion that the prosecution witnesses are trustworthy and, therefore, non-explanation of injury in question cannot be held to be fatal, and we see no infirmity with the said conclusion in view of the law laid down by this Court, as held earlier. We, therefore, are not persuaded to accept the first submission of Mr. Mishra, leanred senior counsel appearing for the accused appellants.;