JUDGMENT
Om Prakash, J.
1. Arun Kumar Singh alias Ramadhar Singh and Anil Kumar Singh, two of the appellants in Criminal Appeal No. 532/84, have been convicted for the offences punishable Under Sections 302 and 148, IPC and sentenced to imprisonment for life for offences Under Section 302 and to undergo rigorous imprisonment for three years for the offence Under Section 148, IPC. The other two appellants in this appeal, namely, Satrughan Singh and Ram Surat Rai, have been convicted for the offences punishable Under Section 302 read with 149 and 148, IPC. They have been sentenced to undergo imprisonment for life for the offence under Section 302 read with 149, IPC and to undergo imprisonment for three years for the offence punishable Under Section 148, IPC.
2. Brij Nandan Rai, Ram Sajiwan Rai and Sakaldeo Singh three of the appellants in Cr. Appeal No. 367/84, have been convicted for the offences punishable Under Section 324 and 148 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for three years on each count. Appellants Pritam Singh alias Ram Pritam Singh, Ram Bahadur Rai and Sunil Kumar Singh have been convicted for the offence punishable Under Section 148, IPC. Appellants Ram Bahadur Rai and Sakaldeo Singh have been sentenced to undergo rigorous imprisonment for three years and Sunil Kumar, Singh has been ordered to execute a bond of Rs. 2,000 / – with two sureties in like amount to keep peace and be of good behaviour for one year under provisions of Section 360, Cr. P.C. Appellant Kali Singh has been convicted for the offence punishable Under Section 147, IPC and has been sentenced to pay a fine of Rs. 2,000/- and, in default, to undergo rigorous imprisonment for one year on such count. Being aggrieved the appellants in the two appeals which arise out of a common judgment, have preferred the appeals.
3. Briefly stated, the prosecution case is that informant’s father Ramdayal Tiwari, the deceased, had purchased some land situated in village Bhavdiha, P.S. Belsand, District-Sitamarhi, from ‘Bhojai’ (elder brother’s wife) of appellant Kali Singh about a year before the date of occurrence i.e. 19-6-77. Such land is situated near the boring of deceased Ramdayal. On 19-6-77 at about 7 a.m., Ramdayal’s son Babu Nandan Tiwari, the informant, had deputed four ploughmen to plough such purchased land. At about 9.30 a.m. Babu Nandan reached his boring land carrying breakfast for the four ploughmen and other labourers who were working in his maize field situated nearby. On his arrival there, his father Ramdayal set for calling the ploughmen for taking their breakfast. When he (Ramdayal) had covered about three Kolas, he raised alarm for being rescued. It attracted Babu Nandan’s attention towards East and he saw a mob led by appellant Kali Singh comprising of the appellants and some others, armed with Bhalas and Farsas, rushing from the direction of village Bhavdiha. Kali Singh ordered for killing Ramdayal as he had purchased the above land. Babu Nandan rushed empty handed to rescue his father. By the time he reached there, the mob had surrounded Ramdayal. Appellant Ram Surat Rai and Arun Singh alias Ramadhar Singh inflicted Bhala injuries on Ramdayal’s ‘Panjra’. Appellant Satrughan Singh caused bhala injury on Ramdayal’s left hand. Injured Ramdayal fell down unconscious. On his fall, appellant Anil Singh inflicted a bhala injury on the left Panjara of Ramdayal. Appellants Brij Nandan Rai, Sakaldeo Singh and Ram Sajiwan Rai attacked Babu Nandan by Farsas and bhalas and injured him. Other members of the mob, namely, Ram Bahadur, Sunil Singh, Pritam Singh and Gangadeo Singh (since dead) each of whom was armed with bhala, were leaping and jumping. After his fall, the appellants fled away. Injured Ramdayal was taken to his boring by Gopalji Baitha and Wakil Dhunia. He succumbed to his injuries there. Yogi Tiwari, Sri Narayan Singh (P.W. 11), Laksmandeo Singh (P.W. 10), Harish Chandra Tiwari, Sathu Baitha (P.W. 3), Gopalji Baitha (P.W. 4) and Ram Fal Sah witnessed the occurrence. A little thereafter, house of one Gyan Chandra Turha was seen aflame. Fardbeyan of Babu Nandan Tiwari was recorded at his boring at 11-30 on the same date.
4. In their statements Under Section 313, Cr. P.C., the appellants have denied the allegations against them. Defence case as appears from Exhibit A, a certified copy of the FIR lodged on the date of occurrence at 11-30 a.m. at Belsand police station by appellant Anil Kumar Singh, is that on 19-6-77, a Sunday, at about 8 to 9 a.m. Ramdayal Tiwari (the deceased), Babu Nandan Tiwari (the informant), Dinabandhu Singh, Sri Narayan Singh (P.W. 11) and about fifty others, armed with Bhala, Farsa and Guns, demolished the ridge of their (SIC) Khatas field and amalgamated the same with their own land. They ploughed the amalgamated land. Celebrating such occasion they arrived in the field having a brick kiln situated to the south of their village Bhavdiha. Appellants Anil Kumar Singh (his uncle), Ram Pritam Singh and others protested. Then Ramdayal ordered for murdering him and inflicted a bhala blow on the chest of appellant Ram Pritam Singh who fell down injured. Informant Babu Nandan Tiwari aimed a bhala blow on his neck which struck his ‘dandi’. Dinbandhu Singh inflicted a bhala blow on his abdomen. At that very time Krishna Singh inflicted two bhala blows on fallen Ram Pritam Singh. Dinabandhu Singh ordered his younger brother Sri Narayan Singh to open fire, Sri Narayan Singh fired two gun shots causing injuries to Sukhdeo Sah, Ram Surat Rai, Betal Paswan and Mahadeo Sah. The mob moved to the eastern end of the village and two more gun shots were fired by Sri Narayan Singh. Udit Narayan Singh set fire to the house of Lal Chandra Turha. Shayam Nandan Tiwari, Ram Sakal Singh, Kamaldeo Singh, Dharamdeo Singh besides many others, were members of such mob. Injured Ram Pritam Singh was taken to police station on a cot in an unconscious condition where FIR was lodged.
5. The prosecution has examined 15 P.Ws. of whom P.Ws. 6 and 13 to 15 are formal witnesses. P.Ws. 7 & 8 are two doctors. P.W. 12 is the investigating officer. P.Ws. 1 to 5 and 9 to 11 have been examined as eye witnesses.
6. The learned counsel for the appellants has not challenged the date, time and place of occurrence. What he has challenged is the origin and the manner of occurrence and the veracity and creditability of the prosecution witnesses.
7. Evidence of P.W. 9 Babu Nandan Tiwari, a son of deceased Ramdayal and the informant, is that on 19-6-77 at about 9 a.m. he reached his boring located on plot No. 273 situated to the west of the land purchased by his brother from Kali Singh’s ‘Bhojai’ with breakfast for his labourers. The purchased land was being ploughed. His father was there supervising the ‘Kamauni’ work in his another field having maize crop etc. He asked his father to call the ploughmen for taking breakfast at the boring and his father Ramdayal advanced towards east to call the ploughmen. When he covered about three Kolas, he (Ramdayal) called him for his rescue. He, the informant, looked towards east and saw an armed mob rushing towards his father. He ran to rescue his father raising alarm. The mob surrounded his father and Kali Singh ordered for killing him. On his such order, Ram Surat and Arun Singh alias Ramadhar Singh gave bhala blows on his father’s left ‘Panjara’. Satrughan Singh assaulted his father on his left hand. When his father fell down, Anil Singh gave a bhala blow on his left Panjra. By the time he (P.W. 9) reached there and the mob surrounded him also. He was assaulted by Brij Nandan Rai by farsa and Sakaldeo Singh and Ram Sajiwan Singh by means of their bhalas. Pritam Singh inflicted a bhala blow on his abdomen. The other members of the mob were leaping and jumping. He claims to have identified Sunil Singh, Ram Surat Rai, Ram Bahadur Rai and Gangadeo Singh also in the mob. Kali Singh and Brij Nandan were armed with farsa and the others had bhalas. His injured father was taken to his boring by Gopalji Baitha and Wakil Dhunia where he succumbed to his injuries. P. Ws. 1 to 5 and 10 to 11 have spoken almost in the same term.
8. But P.W. 1 Ramdayal Baitha who is a brother of P.Ws. 3 and 4 and claims to be a labourer working in the field of the informant at the time of occurrence has not been named in the FIR. His evidence in para 11 is that he stayed at the informant’s boring till 2 p.m. after the occurrence. The investigating officer had arrived in his presence. Had it been so, the Investigating Officer would have naturally examined him at that very time on the date of occurrence itself. But evidence of investigating officer, P.W. 12, is that P.W. 1 Ramdayal, P.W. 3 Sathu Baitha, P.W. 4 Gopal Baitha, the three informant’s labourers, and P.W. 5 Shivji Tiwari who too has not been named as an eye witness in the fardbeyan were not available to him for examination for two days after the occurrence. He searched for them even on 20-6-77 but no one appeared. It shows that the informant withheld his witnesses, holding deliberations for over two days to take a decision about the shape to be given to his case and the eye witnesses to be introduced. P.W. 2 Wakil Mian another labourer of the informant who has not been named in the FIR as an eye witness but as a person who removed the injured to his boring was made available to be examined by the I.O. on 26-6-77 i.e. eight days after the occurrence. Evidence of the I.O. is that he appeared before him at the police station on 26-6-77. Apparently he, too has been introduced as an eye witness after deliberation for days together. Had the prosecution case as narrated by the informant been true, he, as an average man of ordinary prudence would have produced his witnesses specially P.Ws. 1 to 4 who claim to have been present at the place of occurrence and were under his command before the Investigating officer for their statements, promptly on 19-6-77 itself.
9. Describing such delay in examination of P.Ws. by the I.O., as not material, learned Additional P.P. has referred to two decisions in the cases of Ranbir v. State of Punjab, as reported in AIR 1973 SC 1409 : (1973 Cri LJ 1120) and Ram Prasad v. State of U.P. as reported in 1973 SCC (Cri) 953 : (1973 Cri LJ 1807). In Ranbir’s case it has been held that the question of delay in examining a witness during investigation is material only if it is indicative and suggestive to some unfair practice by the investigating agency for the purpose of introducing a got up witness to falsely support the prosecution case. It is essential that the investigating officer should be asked specifically about the delay and the reasons therefor. Evidence of a witness does not become untrustworthy merely because he was examined after delay in the I.O. In Ram Prasad’s case it has been held that in a criminal trial delay in recording statement of an eye witness is not detrimental when his non-availability was justified and he was named in the FIR.
10. But in the instant case as appears from the above discussion delay in examination of P.Ws. 1 to 4 indicates and suggests unfair prectice and their non-availability is unjustified. It makes the prosecution case suspicious and the credibility of the above P.Ws. becomes very much doubtful.
11. It has been held in the decision in the case of G.B. Patel v. State of Maharashtra as reported in AIR 1979 SC 135 : (1979 Cri LJ 51) that delay of few hours in recording of the statement of eye witnesses may not by itself amount a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that investigator was deliberately making time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced. Delay in recording the statement of the material witness casts a cloud of suspicion on the credibility of the entire wrap and woof of the prosecution story.
12. P.W. 10 Lakshmandeo Singh and P.W. 1 Sri Nandan Singh were never examined by the I.O. as appears from his evidence. Their names do not appear in the chargesheet. They have come to depose against the appellants on 2-4-1983 i.e. almost six years after the occurrence. I, therefore, consider it neither reasonable nor safe to rely on them.
13. It has been held in the decision in the case of Ramlakhan v. State of U.P. as reported in AIR 1977 SC 1936 : (1977 Cri LJ 1566) that in a grave charge like dacoity with murder it will not be proper to place reliance on a witness who never appeared during the investigation and was not named in the chargesheet. The accused who are entitled to know his earlier conversation to the police are naturally deprived of an opportunity of effective cross examination and it will be difficult to give any credence to a statement which was given for the first time in court after about a year of the occurrence.
14. P.W. 1 admits that he saw appellant Ram Pritam Singh injured. Evidence of the I.O., P.W. 12, is that he found appellant Pritam Singh injured in the hospital and his condition was serious. It was not possible to send him to jail Hazat on this account. Exhibit J. an injury report, shows that doctor has found one grievous injury on his chest besides six other injuries on his person, all caused by sharp pointed weapon. The prosecution has not explained such grievous injury satisfactorily on the person of appellant Ram Pritam Singh. A belated attempt has been made unsuccessfully on 7th October, 1982, over five years after the occurrence for the first time in Court, by some of the P. Ws. who say that villagers appeared at the scene, assaulted the appellants and drove them away. But none of the P.Ws. made such a statement before I.O. P.W. 9, the informant, denies having seen any injury on any of the appellants. This shows that he is not a truthful witness; he does not hesitate to tell such a white lie on a most vital and material point. Obviously he is unreliable.
15. P.W. 3 Sathu Baitha, too, admits that he saw Ram Pritam Singh injured. Evidence of the I.O. is that when he enquired about the injury on the person of Ram Pritam Singh, P.W. 3 kept quiet. Had such story about the assault by the villagers on the applicants been true, P.W. 3 would have certainly disclosed it to the I.O. on being called upon to explain Ram Pritam’s injuries. Thus it is clear that such story developed by P.Ws. for the first time in court is nothing but an afterthought. The above also shows that P.Ws. are not unfolding the correct and true picture of the occurrence.
16. It has been held in the decision in the case of Laxmi Singh v. State of Bihar as reported in AIR 1976 SC 2263 : (1976 Cri LJ 1736) relied upon by the learned counsel for the appellants that in a murder case, non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences —
(i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true versions.
(ii) that the witnesses who has denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable.
(iii) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much 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. There may be cases where non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously not apply to cases where the injuries sustained by the accused are minor or superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.
17. Reference has been made by learned A.P.P. also to the decisions in the cases of Bankelal v. State of U.P. as reported in AIR 1971 SC 2233 : (1971 Cri LJ 1540), Jagdish Singh v. State of Rajasthan as reported in AIR 1979 SC 1010 : (1979 Cri LJ 888) and Harekishna Singh v. State of Bihar as reported in AIR 1988 SC 863 : (1988 Cri LJ 925).
18. In Bankelal’s case (1971 Cri LJ 1540) (SC) it has been held that where prosecution witnesses have not deposed truly in all respects, Court should scrutinise their evidence with care. But simply because prosecution did not explain injuries on the person of accused, court cannot discard the entire prosecution evidence.
19. In Jagdish Singh’s case (1979 Cri LJ 888) (SC) it has been held that it is obligatory on the prosecution to explain the injuries so as to satisfy the Court as to the circumstances under which the occurrence originated and before this obligation is placed on the prosecution two conditions must be satisfied —
(i) that the injuries on the person of the accused must be very serious and severe and not superficial.
(ii) That it must be shown that these injuries must have been caused at the time of the occurrence in question.
20. It has been held in Hare Krishna’s case (1988 Cri LJ 925) (SC) that if the witnesses examined on behalf of the prosecution are believed by the court in prove (Sic) of the guilt of the accused beyond reasonable doubt, the question of obligation of the prosecution to explain the injuries sustained by the accused will not arise.
21. But in the instant case, the injury found on the chest of appellant Ram Pritam Singh is very serious and severe and not superficial and it was caused at the time of occurrence in question. The P.Ws. in the instant case are not reliable and trustworthy. The prosecution has suppressed the origin of the occurrence. Evidence of the I.O. is that he found no breakfast material at the place of occurrence. Thus it has not presented true and correct picture of the occurrence. Undue delay in examination of P.Ws. indicates lack of fairness on the part of the prosecution. All the witnesses are partisan. There is a defence version which explains the severe and serious injury on the chest of appellant Ram Pritam Singh. The defence version competes in probability with that of the prosecution. Omission on the part of the prosecution to explain the grievous injury on the chest of appellant Ram Pritam Singh assumed much greater importance in the above circumstances. The evidence adduced by the prosecution is neither clear and cogent nor independent and disinterested nor probable, consistant and creditworthy.
22. Further evidence of P.W. 1 is that he had learnt that Sukhdeo Sah, Ram Surat Rai, Betal Paswan and Manadeo Sah had sustained gun shot injuries. Fxts. J/1 to J/4, injury reports of the above four, all dated 19-6-77, show that the medical officer found pellet injuries on their persons. Evidence of I.O. is that he recovered a 12 bore empty cartridge, emitting fresh sulpher smell, 13 steps north west of the boring of appellant Kali Singh. Such objective finding of the I.O. also lend considerable strength to the defence case that firing was resorted to by the prosecution party. Further evidence of the I.O. is that he found Gayanchand’s hut situated 85 paces north of Kali Singh boring burnt. Even P.W. 2, Wakil Mian, admits in his evidence that he saw the house of Gyanchand Turha who is a labourer of appellant Kali Singh, burning. Informant Babunandan himself admits in his fardbeyan that he saw the house of Gyanchand Turha aflame. The above renders the defence case highly probable.
23. In view of the above, I am of the opinion that the entire picture of the occurrence as presented by the prosecution and its witnesses is very much suspicious and doubtful and defence case is highly probable.
24. The appeals therefore succeed. They are hereby allowed. The appellants in the two appeals are acquitted of the charges levelled against them. They are discharged from their bail bonds.
Bimlendu Narayan Sinha, J.
25. I agree.
