JUDGMENT
G.C. Bharuka, J.
1. This appeal is directed against the judgment and order dated 2nd May, 1988, passed by the 5th Additional Sessions Judge, Rohtas in S.T. No. 1470/79. There are two appellants in this appeal. Appellant No. 1 (Kashinath Lal Sinha) has been convicted for the offence under Sections 302 and 324 of the Indian Penal Code and sentenced to undergo R.I. for the life and three years, respectively. Appellant No. 2 (Lalbalu alias Surendral Lal Sinha alias Surendra Kr. Srivastava) has been convicted for the offence under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act, and sentenced to undergo R.I. for life and three years, respectively. However, the sentences in case of both the appellants have been directed to run concurrently.
2. In this case the F.I.R. (Ext. 6) was drawn up on the basis of the Ward Beyan (Ext. 4) which was lodged by Manika Devi (P.W. 11-A). According to the Fard Beyan (Ext. 4) on 23-10-1978 at about 12 noon both the appellants came to the miscellaneous shop of the brothers of the informant. Appellant No. 1 was having a Bhala in his hand whereas appellant No. 2 was having a country made pistol. Appellant No. 1 entered into the shop and assaulted the uncle of the informant, namely, Rameshwar Lal with bhala on chist, stomach and on the wrist of right hand. He also assaulted the two brothers of the informant, namely, Ram Chandra Lal (P.W. 3) and Bharat Lal (P.W. 9) on their Panjra and stomach, respectively. Further case of the prosecution is that during the course of the occurrence, appellant No. 2 remained standing at the entrance of the shop with a pistol in his hand. On hull a being raised many villagers assembled there and carried all the three injured persons to Natwar hospital. But Rameshwar Lal succumbed to the injuries on the way to the hospital. Since, at Natwar hospital the doctor was not available, therefore, after first aid by the compounder both Ram Chandra Lal (P.W. 3) and Bharat Lal (P.W. 9) were taken to Patna for treatment.
3. According to the informant, as disclosed by her in the Ford Beyan, since her uncle Rameshwar Lal (deceased) had no issue, therefore, ho was residing with her two brothers, P.Ws. 3 and 9 who used to look after him. As a consequence, Rameshwar Lal (deceased) executed a registered Deed of gift in favour of P.Ws. 3 and 9 in respect of his 21/2 Bighas of agricultural land as well as a residential house. This caused annoyance to the appellants, who are sons of late Muneshwar Lal, elder brother of the deceased Rameswar Lal. As per the Fard Beyan of the informant 15-20 days prior to the date of occurrence there was some altercation between the appellants and the deceased with respect to the execution of the aforesaid Deed of gift.
4. During the course of trial, prosecution has examined altogether 14 witnesses. Out of them Ramchandta Lal (P.W. 3), Bharat Lal (P.W. 9) and Manika Devi (P.W. 11-A) are the eye-witnesses. P.W. 5 Jwala, Prasad P.W. 6, Budhu Lal, and P.W. 7 Hari Shankar Kahar have pleaded ignorance about the occurrence P.W. 8 Lorik Ram, though not a witness to the assault, but had reached the place of the occurrence immediately thereafter and had witnessed all the subsequent happenings. P.W. 1 Chandradeo Pd. Sinha and P.W. 4 Lal Saheb are seizure list witnesses P.W. 2 Hari Shanker Lal is a witness to the inquest report P.W. 19 Jagdish Ram is a compounder of Natwar Government hospital. P.W. 11 Sheo Balak Lal and P.W. 13 Satyendra Kumar Srivastava are formal witnesses. P.W. 12 is Dr. Sharda Pd. Singh, who had held post mortem examination on the dead body of the deceased, Rameshwar Lal. However, the defence has not chosen to examine any witness on its behalf.
5. P.W. 3 Ram Chandra Lal, in his deposition, has stated that his father Gorakh Lal had two brothers, namely, Rameshwar Lal (the deceased) and late Muneshwar Lal. According to this witness (P.W. 3) family properties were partitioned amongst his father and uncles. In Para 8 of his deposition, P.W. 3 has stated that his uncle Rameshwar Lal (deceased) was issueless and, therefore, he used to reside with his father. In Para 12 it has been stated by him that Rameshwar Lal (deceased) had a daughter Ram Dulara and has two grand daughters (Daughter’s daughter). He has further deposed that Rameshwar Lal 4-5 months earlier the date of the occurrence had executed a Deed of Gift in respect of his lands in favour of the deponent and his brother, which had resulted in some dispute between the parties. He has further deposed that on the date of the occurrence both the appellants came to his shop. Appellant No. 1 was having a bhala in his hand and appellant No. 8 was having a country-made pistol. Appellant No. 1 entered into the shop with bhala and appellant No. 2 remained on the shop. Thereafter entrance of the appellant No. 1 first assaulted Rameshwar Lal with bhala causing injuries on his chest, stomach and on the left wrist. He also assaulted the deponent (P.W. 3), his brother Bharat Lal (P.W. 9) and one Hriday Lal with bhala. The deponent sustained injury on his left panjra. Bharat Lal sustained injury in his stomach. After assault the appellants ran away. Thereafter halla was raised and the injured were taken to Natwar hospital for treatment. Because of the injuries the deponent became unconscious in the shop itself and on the following day when he regained consciousness, he found himself in Patna hospital. He found that Bharat Lal (P.W. 9) was also admitted there. His uncle Rameshwar Lal succumbed to the injuries.
6. Bharat Lal (P.W. 9) is younger brother as Ramchandra Lal (P.W. 3) This witness (P.W.) had also sustained injuries in the occurrence. During the course of his deposition he had shown his injury on the stomach to the Court, which, according to the trial court was quite apparent. This witness has supported the version of the occurrence as well as the reasons therefor on all material points as spelt out by his brother Ram Chandra Lal (P.W. 3) and, as such, the same need not be repeated.
7. P.W. 11-A Manika Devi is the informant in this case. She has deposed that on the date of the occurrence she was sitting outside the shop of her brothers, P.Ws. and 9. She has further deposed that the appellants Kashinath and Lalbabu along with one more person came to the shop and after assaulting the injured persons ran away. She said that she had not seen as to with what weapon they had assaulted. She further said that on halla the villagers assembled and carried the injured to Natwar hospital. On the way Rameshwar Lai died. Ram Chandra Lal (P.W. 3) and Bharat Lal (P.W. 9) were thereafter taken to Patna for treatment.
8. P.W. 8 Lorik Ram one of the villagers has deposed that on the date of the occurrence, on hearing halla he went to the place of the occurrence. He found Rameshwar Lal as also Bharat Lal and Ram Chandra Lal and one Hirday Lal in injured condition. The informant, Manika told him that the appellant No. 1 (Kashinath Lal) had injured these persons with bhala and at that time Lalbabu (appellant No. 2) was standing at the entrance of the shop with a country made pistol in his hand. He has further deposed that immediately thereafter the injured were taken to Natwar hospital and in the way Rameshwar Lal died, Bharat Lal and Ram Chandra Lal were taken to Patna for treatment. He further deposed that the Investigating Officer had searched the house of the appellants and had seized a letter (Ext. 2). According to him that letter is in handwriting of Kaplildeo Prasad, who is own brother of the appellant. Lal Saheb (P.W. 4) was also present at the time of seizure of this letter. In Para 20 of his deposition P.W. 8 has deposed that during the course of search, a blood stained bhala was also recovered and seized by the Investigating Officer, P.W. 4 Lal Saheb, who is a seizure list witness, though in his examination in chief, denied any seizure in his presence, but in Para 3 (latter part) he admitted that the I.O. had seized a letter written in Deonagri script from the house of the appellants and he had put his signature as a witness on the seizure list. P.W. 1 Chandradeo Pd. Sinha is also a co-villager and is a seizure list witness to the seizure of certain cloths of the deceased Rameshwar Lal. Though according to him he was not present at the place of the occurrence but he has deposed that on learning about the injuries of Ram Chandra Lal (P.W. 3) and Bharat Lal (P.W. 9), he went to Natwar hospital and from these he went to Patna with the injured persons.
9. Jagdish Ram (P.W. 10) was a compounder in Natwar Government hospital at the material time. He has, inter alia, deposed that on 23-10-1975 Ram Chandra Lal (P.W. 3) and Bharat Lal (P.W. 9), were brought to the hospital in unconscious state. They were severely injured. He has further deposed that since the doctor was not present at the hospital and the condition of the injured was serious, therefore, after the first aid as per his advice, the injured were taken to Patna. He has further deposed that along with aforesaid two injured persons one dead body was also brought.
10. Dr. Sharada Pd. Singh (P.W. 12) had conducted the post mortem examination on the dead body of the deceased, Rameshwar Lal on 24-10-1978 According to him 5 injuries were found on the body of the deceased. Out of which one was penetrating on the mid line of abdomen and on opening the abdominal cavity the stomach was found punctured through and through and blood clots were found in the abdominal cavity. According to this witness death was caused due to haemorrhage and shock caused by anti mortem injuries. Except injury No. (i) as mentioned in the evidence of the doctor, which was an incised wound on the back of lower arm, the rest injuries were caused by sharp pointed weapon. Ho far as injury No. (i) is concerned, the same was found to be attributable to some sharp cutting weapon.
11. In absence of any defence version based on any legal evidence, the only thing to be seen is whether the prosecution has been successful in bringing home the charge against the appellants beyond reasonable doubts.
12. The argument of the learned Counsel for the appellants is that there are material contradictions in the evidence of the prosecution witnesses, which render the total prosecution case as unbelievable. It has further been submitted that in this case the prosecution has failed to examine the Investigating Officer of the case, which has caused great prejudice to the defence. In support of this submission, reliauce has been placed in the case of Laxmi Narain Singh and Ors. v. State of Bihar 1988 BLJ 235, and in the case of Brahmdeo Hazra and Ors. v. The State of Bihar 1987 PLJR 826. It was further submitted that the weapon, which is alleged to have been used in the commission of the offence was not shown to the medical witness to obtain his opinion as to whether the said weapon could have caused the injuries as found on the person of the deceased. This infirmity, according to the learned Counsel for the appellants, has led to incurable lacuna in the prosecution case. In support of this submission, reliance has been placed in the case of Kartarey and Ors. v. State of U.P. . It is also submitted that a spear can cause only penetrating wound whereas one of the wounds was found incised in nature but it is none of the prosecution case that except spear any other weapon was used by appellant No. 1. This also creates doubt in the prosecution story.
13. Reliance placed by the appellants in the case of Kartarey and others, (supra), is of no help to them. This case will have the bearing only in a situation where the problem before the Court is whether all or any of those injuries could be caused with one or more than one weapon. Then it is the duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. In the present case there was no such problem before the court. Nature of the injuries found on the person of the victim can well, in normal course, be attributed to the use of bhala (spear) which, according to the prosecution, was the weapon used in the commission of the offence. Non-production of the bhala before the medical witness for seeking his opinion is of no consequence.
14. On the other hand; it has been submitted on behalf of the State that the minor contradictions appearing in the deposition of the witnesses here and there are inconsequential because on all material aspects the witnesses are consistent and have stood the test of cross-examination. It has further been submitted that non-examination of the Investigating Officer has not caused any prejudice to the appellants and, therefore, this per se is not fatal to the defence. Learned Counsel for the State has further, on reference to the decisions cited, has submitted that none of the decisions have any bearing on the points raised on behalf of the apppellants since the principle enunciated therein does not apply to the facts of the present case.
15. After hearing the rival contentions of the parties and having perused the evidence available on the record, there cannot be any manner of doubt with regard to the assaults committed on Rameshwar Lal, (the deceased) as also to Ram Chandra Lal (P.W. 3) and Bharat Lal (P.W. 9). The factum of assault is well proved by the evidence of P.Ws. 3, 8, 9, 10 and 11-A. From the evidence of the medical expert Dr. Sharda Pd. Singh, P.W. 12, it also stands established that the cause of death of Rameshwar Lal was the wounds caused by shop pointed weapon. No doubt one incised wound was found on the arm of the deceased but such wound or injury can be caused by the sharp edge of bhala if it slides down on the part of the body,
16. Now the main question is as to whether the appellants, as suggested by the prosecution, are responsible for the assault and injuries in question. P.Ws. 3 and 9 had themselves sustained injuries and were present at the place of the occurrence. They have stated in very ‘clear terms that appellant No. 1 has caused injuries on all the three persons with bhala, which he was holding, They have also deposed that appellant No. 2 was standing on the entrance of the shop, which was the place of occurrence with a country made pistol in his hand, Manika Devi (P.W. 11-A) has deposed in the Court that at the time of the occurence she was sitting outside the shop and in her presence the appellants had come, entered into the shop and after they had run away it transpired that Rameshwar Lal, her uncle, and two brother P.Ws. 3 and 9 have been grievously injured. No doubt according to her she had not seen as to who out of the appellants had assaulted whom and with what weapon but then the trend of her deposition clearly establishes that the injuries were caused by the appellants. Looking at the totality of the circumstances, according to me, there is no inconsistency in the evidence of this lady, P.W. 11-A, the informant with that of the prosecution version spelt out through P. Ws, 3 and 9.
17. During the course of hearing, it was vehemently argued on behalf of the appallants that in the F.I.R. Manika Devi, P.W. 11-A, has given the details with regard to the assault but in the court she has stated that she had not seen as to who actually assaulted whom and with what weapon. On a pointed question, during the cross-examination this witness has clarified that so far as the manner and weapon of assault is concerned, she has described it in the F.I.R. on the basis of what she had heard from her brothers, P.Ws. 3 and 9. According to me there was nothing unnatural on the part of this lady in describing the manner of assault in the F.I.R. as was made known to her and this aspect does not lead to any contradiction. A reference to the F.I.R. (Ext. 6) will show that this lady informant, P.W. U-A, had gone to the police station with the wives of her injured brothers and the Bard Beyan was recorded by the police officer concerned on the basis of her statement of facts gathered by her on the spot.
18. Admittedly Rameshwar Lal (deceased) had two brothers, Gorakh and Muneshwar, P.Ws. 3 and 9 are the sons of Gorakh whereas, the appellants are sons of Muneshwar. It has come in evidence that Rameshwar (deceasd) had no son and he was residing with in family of P.Ws. 3 and 9, who used to look after his food and comforts. The evidence on the record also shows that Rameshwar Lal (deceased) had executed a registered deed of gift in respect of his 21/2 Bighas of land and one house in favour of P.Ws. 3 and 9. Pursuant to this deed of gift lands were mutated in favour of P.Ws. 3 and 9. Deposition of the P.Ws. also shows that this act of Rameswar Lal had caused annoyance on the part of the appellans and other brothers giving rise to some dispute. According to the prosecution this was the main cause leading to the present occurrence. On the other hand, according to the appellants, in the F.I.R. it was stated that Rameshwar Lai (deceased) was issueless whereas subsequently in the cross-exemination P.Ws. 3, and 11-A themselves have stated that Rameshwar Lal had a daughter Ram Dulara and has two natnis (daghter’s daughters). The suggestion is that since Rameshwar has natnis, therefore, there was no occasion for making a been of gift in favour of P.Ws. 3 and 9 and, in any view of the matter since a false statement was made in the F.I.R. in this regard, therefore, the entire prosecution case should be disbelieved. This argument is not acceptable. Weighing the circumstances as a whole, the context in which Rameshwar Lal (deceased) was described as issueless could only mean that he had no son, who could have looked after him in his old age. In any view of the matter, oven if it be taken as a discrepancy, this by itself cannot falsify the occurrence, which on the basis of the evidence, has been duly proved. The ill feelings between the parties are also established by the contents of the letter (Ext. 2) which had been written in the handwriting of one of the brothers of the appellants. Even otherwise in view of the oral evidence adduced in this case it is not necessary to enter into a greater detail about the contents of that letter (Ext. 2).
19. Now coming to the aspect of non-examination of the Investigating Officer, the learned Counsel for the appellants has not shown by reference to any particular aspect as to how non-examination of the I.O. has resulted in any prejudice to the defence. The argument that non-examination of the I.O. invariably results in causing prejudice to the accused and should be held to be fatal as an absolute proposition is fallacious. Law is that non-examination of the I.O. can result in failure of the prosecution case only in such cases where the defence wants to prove some material contradictions in the deposition of the witnesses by reference to their statements made during the investigation to undo their credibility or in the like manner when some other material evidence can not be brought on the record except by examining the I.O. In the present case nothing of this nature has been brought to our notice which can be said to have resulted in any prejudice to the appellants on account of non-examination of the I.O. The cases cited at the Bar in support of this submission of the appellants have no bearing on the facts of this case.
20. On the aforesaid facts and circumstances, I do not find any merit in this appeal, which is accordingly dismissed. I also confirm the sentences awarded to the appellants. Appellant No. 2 was granted bail vide order dated 27-5-1988. He should be immediately taken into custody so as to serve his sentences.
21. In the result, the appeal is dismissed and the order of conviction and sentence to the appellants is confirmed.