Dhirubhai Naranbhai Patel, J. - (1.) THE present appeal is arising out of judgment of conviction and order of sentence dated 16th August, 2003 and 18th August, 2003 respectively passed by learned Additional Sessions Judge, F.T.C. II, Bermo at Tenughat in Sessions Trial No. 169 of 1987/20 of 2002, whereby, the present appellant has been found guilty for the offences punishable under Sections 302, 307 and 324 to be read with Section 149 of the Indian Penal Code. The appellant has been punished for life imprisonment for the offence punishable under Section 302 of the Indian Penal Code, for ten years imprisonment for the offence under Section 307 of the Indian Penal Code and for three years imprisonment for the offence under Section 324 of the Indian Penal Code and all the sentences have been ordered to run concurrently. It is a case of the prosecution that on 22nd May, 1986 at about 12:00 noon at Village Aara Saram, Police Station Jaridih, District Bokaro, when the informant P.W. 10 Parmeshwar Mahto and his father, namely, Hari Mahto were at their field, the appellant -accused as well as other co -accused came with sharp cutting instruments like Tangi and other weapons and they assaulted the informant, who is P.W. 10 Parmeshwar Mahto, whose father intervened to save life of his son, who was also attacked by the appellant and other co -accused with sharp cutting instrument and the accused have caused severe injuries to Hari Mahto, who expired on the spot. Mother of the informant (P.W.5 Kamini Devi) has also tried to intervene and she was also attacked by the appellant and other co -accused and both P.W.5 Kamini Devi and P.W. 10 Parmeshwar Mahto have sustained injuries, which are incised wounds. First Information Report was lodged on the same day and the appellant and other co -accused were named in the F.I.R. Investigation was carried out and upon recording of statement of several witnesses including injured eye -witnesses and other eye -witnesses, charge -sheet was filed and the Sessions Trial Case No. 169 of 1987 was committed and on the basis of evidences on record, the learned trial Court has convicted the appellant -accused for the offences punishable under Section 302 of the Indian Penal Code for causing murder of Hari Mahto for life imprisonment, for the offence punishable under Section 307 of the Indian Penal Code ten years imprisonment for endangering the life of P.W. 10 Parmeshwar Mahto and for the offence punishable under Section 324 of the Indian Penal Code three years imprisonment for causing injuries to P.W.5 Kamini Devi. The appellant has been convicted for the aforesaid offences to be read with Section 149 of the Indian Penal Code. Against this judgment of conviction and order of sentence, present appeal has been preferred.
(2.) WE have heard learned counsel for the appellant, who has meticulously read out the deposition of all the prosecution witnesses and defence witness Lobin Mahto and has submitted that there are major omissions, contradictions and improvements in the depositions of the prosecution witnesses. This aspect of the matter has not been properly appreciated by the learned trial Court and, hence, the judgment of conviction and order of sentence passed by the trial Court deserves to be quashed and set aside. It is also submitted by learned counsel for the appellant that the so called eye -witnesses are, in fact, not the eye -witnesses, at all. P.W.5 and P.W. 10 are highly interested witnesses. None of the eye -witnesses have stated that the appellant has caused injury upon the body of the deceased, which has resulted into the death of deceased. It is also submitted by learned counsel for the appellant that there was old enmity between the parties. As stated by the defence witness, bamboo trees were not belonging to the victim and there was sudden fight between the appellant side and the victim side persons. The appellant has also sustained injuries, which has been proved by P.W. 11 Dr. Surendra Narayan Chowdhary. Thus alternatively, it is submitted by learned counsel for the appellant that the case of the appellant is not falling within the definition of murder, but, it is falling within the exception and, therefore, it is a case of culpable homicide not amounting to the murder. The appellant is in judicial custody since the date of judgment i.e. August, 2003. It is also submitted by learned counsel for the appellant that even during trial also, the appellant was in the jail and he has remained in jail for more than 10 years.
(3.) LEARNED A.P.P. appearing on behalf of the State vehemently submitted that the case of the prosecution is based upon several eyewitnesses, who are P.W.3, P.W.5, P.W.6, P.W.8 and P.W. 10, out of which, there are two injured eye -witnesses, who are P.W.5 and P.W. 10. The injured eye -witnesses have also been proved by the medical evidence given by P.W. 11. It is submitted by learned A.P.P., that the incident has taken place on broad day light at about 12:00 noon on 22nd May, 1986. The appellant and other co -accused were known to the prosecution witnesses, so there is no question of mis -identity, whatsoever arises. Immediate is the First Information Report and the name of the appellant is also reflected in the First Information Report along with other co -accused. The whole incident has taken place because the appellant's side were aggressive, in nature. They were having sharp cutting instruments in their hands. Initially, P.W. 10 was assaulted, who has sustained several injuries, as many as five incised wounds and when father, namely, Hari Mahto tried to intervene to save life of his son, he was also so severely beaten that he expired, on the spot and mother, namely, Kamini Devi (P.W.5) also tried to intervene and she was also assaulted by the appellant and other co -accused, who has also sustained three incised wounds. It is submitted by learned A.P.P., that P.W.3 has clearly narrated the incident and the role played by the appellant that the appellant has used sharp cutting instrument like Tangi and caused injury upon the deceased, who expired on the spot. P.W. 3 also narrated the place of offence where, the occurrence has taken place. The names of the appellant and other co -accused have also been narrated by this witness and the time of the incident has also been narrated by this witness. This witness has also narrated the injuries caused by the appellant and other co -accused upon the deceased and injured eye -witnesses. Similarly, P.W.5. P.W.6, P.W.8 and P.W. 10 have categorically narrated the role played by the appellant -accused in causing murder of deceased, namely, Hari Mahto. Injury certificates of injured eye -witnesses have also been proved by P.W. 11 Dr. Surendra Narayan Chowdhary, which are at Exhibits 4/1 and 4 for P.W.5 and P.W. 10 respectively. The depositions of injured eye -witnesses P.W.5 and P.W. 10 are getting enough corroboration by the deposition given by P.W.3, P.W.6 and P.W.8. P.W.5 and P.W.10 are injured eye -witnesses. Though they are relatives of the deceased, that does not mean that their depositions may be discarded. The depositions of relatives of the deceased should be viewed with all circumspection, when there is enough corroboration by medical evidence as well as by other eye -witnesses. The witnesses are reliable and trustworthy. The deposition of these eye -witnesses is getting enough corroboration by the deposition given by P.W.2 Dr. Ray Sudheer Prasad, who has carried out post -mortem of the deceased on 24th May, 1986. Post -mortem report is at Exhibit 2. Several injuries have been sustained by the deceased, which are capable of being caused by sharp cutting instrument, namely, Tangi. So far as defence witness is concerned, it is submitted by learned A.P.P., that the defence witness has never given any statement before the police nor he has proved about the ownership of bamboo trees etc. Bare assertion is not evidence, at all. No documentary evidence is placed on record and, therefore, rightly the defence witness has not been believed by the learned trial Court. Thus, it is submitted by learned A.P.P., that the prosecution has proved the offence of murder of Hari Mahto by the appellant beyond reasonable doubt and, hence, no error has been committed by the learned trial Court in passing the judgment of conviction and order of sentence and, hence, it is submitted that the appeal may not be entertained by this Court. Having heard learned counsel for both the sides and looking to the evidences on record, it appears that: (i) The whole incident has taken place on 22nd May, 1986 at about 12:00 noon at Village Aara Saram, Police Station Jaridih, District Bokaro. When P.W. 10 was in the field, at that time, the appellant as well as other co -accused came with sharp cutting instruments like Tangi and spear. They have assaulted and caused several injuries upon the body of P.W. 10 Parmeshwar Mahto. Father Hari Mahto tried to intervene to save life of his son and he was also severely beaten by sharp cutting instrument, who expired on the spot. Mother Kamini Devi (P.W.5) also tried to save life of son as well as husband and she was also assaulted by the appellant and other co -accused. She has also sustained several incised wounds. (ii) Parmeshwar Mahto (P.W. 10) has sustained following injuries: (a) Deep incised wound 8" x 1 1/2" muscle bone deep across the right arm deltoid region bone cut and fractured breeding margins. (b) Incised wound 3/4" x 1/8" skin deep with clots over the back of right of forearm. (c) Incised wound 3" x 3/4" bleeding over the front of head frontal region insized hair margin, outer table of skull cut. (d) Incised wound 1 1/4" x 1/4" cartilage cut on right pinna upper part with clots. (e) Incised wound bone deep with clots 2" x 3/4" outer table cut above left ear (mastoid region). Looking to the deposition of P.W. 10, it appears that he has clearly stated that the appellant has assaulted him by Tangia a sharp cutting instrument. Several injuries were caused by the appellant as well as by other co -accused and father Hari Mahto tried to save his life, who was also assaulted by the present appellant and other co -accused by the weapons like Tangi and Spear and he was so severely beaten that he expired, on the spot. Looking to the cross -examination, nothing is coming out in favour of the appellant -accused. This witness has clearly stated the time and place of the offence, the weapon used by the appellant and he has also given the names of appellant and other co -accused. His presence at the place of offence is natural. He has also sustained as many as five incised wounds, which are grievous in nature, as stated by P.W.11 Dr. Surendra Narayan Chowdhary, who has proved the injury certificate of P.W.10, which is at Exhibit 4. Thus, we see no reason to disbelieve this injured eye -witness. He is son of the deceased and, thus, he is a close relative of the deceased. We have carefully gone through the deposition of this witness. Merely because he is a relative of the deceased, his deposition cannot be brushed aside by this Court. The Court has to view the deposition of close relative of the deceased with all circumspection. Looking to his deposition and looking to the nature of the injury sustained by him, it appears that his deposition is getting enough corroboration by the medical evidence given by P.W.2 Dr. Ray Sudheer Prasad, who has carried out the postmortem of the deceased and also from the deposition of P.W. 11 and also from the depositions of P.W.3, P.W.5, P.W.6 and P.W.8. Thus, he is a trustworthy and reliable witness and he has clearly narrated the role played by the appellant -accused of causing injury by sharp cutting instrument upon body of the deceased and upon the body of injured eyewitnesses. Thus, no error has been committed by the learned trial Court in appreciating the evidence, given by this injured eye -witness P.W. 10. (iii) P.W.5, namely, Kamini Devi, who is wife of the deceased and also an injured eye -witness has sustained following injuries: (a) Incised wound 3/4" x 1/6" muscle deep with clots margin over inner side of right palm. (b) Incised wound 1/2" x 1/8" muscle deep over the left deltoid region. (c) Incised wound 1/2" x 1/8" clots over the inner side of right wrist. The injury certificate of P.W.5 has been proved by P.W. 11, which is at Exhibit 4/1. This witness, who has sustained injuries by the appellant as well as by other co -accused, has clearly narrated that the appellant as well as other co -accused attacked P.W. 10 Parmeshwar Mahto as well as Hari Mahto and Hari Mahto expired on the spot because of the injury caused by the appellant as well as by the other co -accused. P.W. 10 has also sustained several injuries. When P.W.5 -Kamini Devi tried to intervene to save life of deceased as well as P.W. 10, she was also assaulted by the appellant by sharp cutting instruments like Tangi and Spear. Looking to the cross -examination of this witness, nothing is taken away from the examination -in -chief during the cross -examination, though she is a villager and giving evidence after several years. She has clearly narrated the role played by the appellant and other co -accused. She has also clearly stated the place of offence, weapon used by the appellant, injuries caused by the appellant and other co -accused to herself, P.W. 10 and deceased. She is wife of the deceased. Merely because she is a relative, it cannot be said that she is not a reliable witness, on the contrary, her deposition is getting enough corroboration by the depositions given by several prosecution witnesses, who are P.W.3, P.W.6, P.W.8 and P.W. 10 as well as by the medical evidence given by P.W.2 and P.W. 11. Her presence at the place of offence is also a natural one. Without any exaggeration, she has narrated the whole incident, in detail. She is an injured eye -witness, therefore, her presence at the place of offence is also established. We have no reason to disbelieve this injured eyewitness. She is a trustworthy and reliable witness. She has clearly stated that the appellant has caused injury upon body of the deceased by sharp cutting instrument and has also caused injury upon P.W.5 and P.W.10. The learned trial Court has correctly appreciated the evidence given by P.W.5. (iv) Looking to the evidences given by independent witnesses i.e. P.W.6 and P.W.8, who are Raja Ram Mahto and Dhirendra Nath Mahto respectively, they have also clearly stated that the appellant has caused injury by Tangi upon the deceased and the injured eyewitnesses P.W.5 and P.W.10. P.W. 8 has also proved his signature upon the fardbeyan of Parmeshwar Mahto, which is at Exhibit 1/1. He has also confirmed injuries of P.W. 10. Looking to their evidences including the cross -examination, it appears that they are trustworthy and reliable witnesses, who have also stated before the learned trial Court that the appellant and other co -accused have caused injury by sharp cutting instruments upon Hari Mahto and other injured eye -witnesses and Hari Mahto expired on the spot. They have also proved the place and time of offence and they have also given the names of the appellant and other co -accused. They have also narrated the weapon at the hand of the appellant and they have also clearly stated that injuries have been caused by the appellant and other co -accused upon the deceased and other injured eye -witnesses. Moreover, the depositions of these eye -witnesses are also getting enough corroboration by other prosecution witnesses as well as by the medical evidence, given by P.W.2 and P.W.11. They are trustworthy and reliable witnesses. The learned trial Court has correctly appreciated the evidences, given by them. (v) There is one more eye -witness, i.e. P.W.3 -Gajo Mahto, who is a cousin of the deceased. Looking to the deposition given by P.W.3, he has also supported the case of the prosecution and his deposition is getting enough corroboration to the deposition of the injured eye -witnesses and other witnesses. Looking to his cross -examination, nothing is coming out in favour of the present appellant -accused. Thus, looking to the evidence given by P.W.3, P.W.5, P.W.6, P.W.8 and P.W. 10, who are eyewitnesses, they have proved the offence of murder of Hari Mahto, committed by the appellant -accused and other co -accused beyond reasonable doubt. The case of the present appellant is tried in Sessions Trial No. 169 of 1987, whereas, the case of the other co -accused has been separated. (vi) Looking to the deposition given by P.W.2 Dr. Ray Sudheer Prasad, who has carried out the post -mortem of the deceased on 24th May, 1986 at about 08:30 a.m., he has observed following injuries upon the body of the deceased: (a) Incised wound 8 1/2" x 4 1/2" bone deep from top of left shoulder to scapular area another incised wound 8 1/2" x 2" bone deep from left scapular area to the vertebral column. Both the wounds continuous with each other. (b) Incised wound 1 1/2" x 1" bone deep on back and left side of chest. (c) Incised wound 1" x 1/2" x 1/2" an outer surface of middle of left arm. (d) Incised wound 4 3/4" x 1" cavity deep on outer half of the left collor bone. On dissection, P.W.2 found that the left clavicle first second rib and membrane are found to be cut. Further deep the aorta was seen to be cut through and through. PW.2 has clearly stated that the injuries were sufficient in ordinary course of nature to cause death of the deceased and injury No. (d) was capable of causing death, instantaneously. The injuries were also capable of being used by Tangi and Spear, which are sharp cutting instruments. Looking to the deposition of P.W.2, it appears that it is getting enough corroboration to the deposition given by other prosecution witnesses including the deposition of injured eye -witnesses, as stated hereinabove. The incised wounds have been sustained by the deceased, which have been narrated by the eye -witnesses. The ocular evidence and medical evidence are corroborative, in this case. The time of death is 42 to 48 hours from the post -mortem hour, which is also believable with the deposition given by the eye -witnesses. (vii) Looking to the deposition of P.W. 11 Dr. Surendra Narayan Chowdhary, who was posted at Referal Hospital, Jaina More, Bokaro as Surgeon, had examined P.W.5 and P.W. 10 and had proved the injury certificates of these eye -witnesses. The injuries sustained by P.W.10 are as many as five incised wounds, which are grievous in nature. The appellant and other co -accused were endangering the life of P.W. 10. Thus, rightly the evidences have been appreciated by the learned trial Court in convicting the appellant for the offence under Section 307 of the Indian Penal Code for endangering life of P.W. 10 Parmeshwar Mahto. Similarly, looking to the nature of injury sustained by P.W.5 Kamini Devi, it is also rightly appreciated by the learned trial Court that the appellant has committed the offence under Section 324 of the Indian Penal Code for causing injury to P.W.5. (viii) It is contended by learned counsel for the appellant that it is a case of sudden fight and the appellant has also sustained injury, as proved by P.W. 11 and tried the offence is not of a case of murder of Hari Mahto, but, it is a case of culpable homicide of not committing murder. The case of the appellant is not falling within the definition of murder, but, it is falling within exception. This contention is not accepted by this Court mainly for the reason that the appellant's side were aggressive in nature, they were having sharp cutting instruments like Tangi and Spear and they have caused injuries to P.W. 10 - Parmeshwar Mahto and there are as many as five incised wounds. Similarly, they have also caused injuries to P.W.5 Kamini Devi, who is also an injured witness and looking to the post -mortem report, which is at Exhibit 2 and proved by P.W.2, it appears that several incised wounds have been sustained by the deceased Hari Mahto. Thus, it is not a case of sudden fight, at all. The injuries sustained by the appellant are nothing, but lacerated, as stated by P.W. 11. The injuries sustained by the appellant are simple in nature. Thus, the case is not falling within an exception and this aspect of the matter has been rightly appreciated by the learned trial Court. (ix) It is also submitted by learned counsel for the appellant that there is old enmity between the parties and the bamboo trees were belonging to the appellant and, therefore, the appellant has been roped into the case. This contention is not accepted by this Court mainly for the reason that the so called defence witness Lobin Mahto is not a reliable witness, at all. He has stated that the bamboo trees were' belonging to the appellant, but, bare assertion is not an evidence in the eyes of law, without any documentary evidence on record. Moreover, this defence witness has never given any statement before the police and moreover the case of the prosecution is based upon the injured eye -witnesses and other eye -witnesses and, therefore, we see no reason to disbelieve these eye -witnesses. Several injuries have been caused, one by one by sharp cutting instruments upon P.W.5, P.W.10 and deceased. (x) It has been submitted by the learned counsel for the appellant that the so called eyewitnesses i.e. P.W.5 and P.W. 10 are not eyewitnesses, but, highly interested witnesses, as they are relatives of the deceased. We, however, do not accept this argument. Merely because, the witnesses in question are related to the deceased cannot be a ground for non -acceptance of their evidence, which otherwise was found to be trustworthy. Moreover, these witnesses were also injured witnesses. It becomes immensely difficult to believe that the witnesses who were injured and who lost a relative would lie to falsely implicate someone other than the culprit just out of enmity. (xi) It has been held by the Hon'ble Supreme Court in the case of Balraje v. State of Maharashtra, reported in : (2010) 6 SCC 673 : (2010 AIR SCW 3707) especially in paragraphs 29 and 30, which read as under: 29. Law is fairly well settled that even if acquittal is recorded in respect of the co -accused on the ground that there were exaggerations and embellishments, yet conviction can be recorded if the evidence is found cogent, credible and truthful in respect of another accused. The mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. ;