JUDGMENT
A.K. Prasad, J.
1. This criminal appeal at the behest of the appellants is directed against the judgment and order dated 31-3-1989 in S.T. No. 123 of 1985/3 of 1986 passed by Sri Damodar Prasad, the then Addl. Judicial Commissioner, Ranchi, whereby and whereunder they have been convicted under Sections 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life thereunder. Further, they have been convicted under Sections 307/149 and 364/149 of the Indian Penal Code and sentenced to five years’ rigorous imprisonment on each count. They have been further convicted under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months thereunder. All the sentences have been directed to run concurrently.
2. The prosecution case, in brief, as made out in the fardbeyan (Exhibit 6), is as under:
On 10-5-1980, between 4/5 p.m. Baha Oraon (P.W. 3), the informant, in the company of Sheo Prasad Gwala, the deceased, and Hira Kumhar, the other deceased, went to Satranji Market, At about 6 p.m., the accused Dineshwar Kumhar alias Gandur Kumhar, who was accompanied by accused Md. Islam Mian, Fakira Oraon, Bara Hasan, Chhota Hasan, Mahli Mahto, Manir Mian and an unknown person, told the informant that, they had to visit village Danrul to witness Manda Mela (fair). The informant and the two deceased left Satranji Market in their company for village Danrul around 6.15 p.m. On the way, at about 7 p.m., they reached village Shiladon, from where accused Fakira Oraon and Manir Mian took Balua and Bhola respectively. Accused Dineshwar Kumhar alias Gandur Kumhar was armed with pistol, whereas the other accused were possessing daggers. At about 10 p.m. they reached near river Darul. Accused Dineshwar Kumhar has Gandur Kumhar proposed that they would stay there for some time, as there was some delay in holding of the fair. The deceased Sheo Prasad Gwala and Hira Kumhar lay on the sand, while the informant and the accused were sitting there. There was a Karanj tree nearby. After about half an hour, accused Fakira Oraon gave a Balua blow to the informant, causing wound on the back of the neck.
Accused Chota Hasan dealt a dagger blow on the left arm of the informant. At that moment, the informant saw that the other accused were assaulting the deceased Hira Kumhar and Sheo Prasad Gwala with Balua, Bhala and dagger. Accused Dineshwar Kumar alias Gandur Kumar fired two shots, but the informant could not see whether any one had suffered fire-arm wound. The deceased Hira Kumhar and Sheo Prasad Gwala succumbed to the wounds on the spot. The informant escaped to save himself. He took shelter in the house of Durga Mahto (P.W. 4), situate at Hulhundu and narrated the incident to him. On the next day at about 10.45 a.m. R.S. Pandey (who has not been examined), the then Sub-Inspector of Police attached to Hatia Police Station, recorded the fardbeyan of the informant at the house of Durga Mahto in village Hulhundu.
The cause of the incident, as alleged in the fardbeyan is that is months ago the informant desired to marry Sita, daughter of Manth Oraon of village Shiladon, but Mangru Mukhia, a resident of village Shiladon, stood in the way and had assaulted the informant and threatened him with dire consequences.
On the basis of the aforesaid fardbeyan (Exhibit 6), the present case came to be instituted, formal First Information Report (Exhibit 5) was drawn up and on completion of investigation, charge-sheet was laid in Court against the accused-persons,
3. The main defence is of innocence and false implication.
4. At the trial, the prosecution examined seven witnesses in support of its case. Out of them P.W. 4 (Durga Mahto) has turned hostile to the prosecution, P.W. 7 (Jagarnath Ram) is a formal witness. He has proved the formal First Information Report (Exhibit 5) in the pen of S.K. Mallick, the then Assistant Sub-Inspector of Police, attached to Hatia Police Station, the fardbeyan (Exhibit 6) and the endorsement thereon (Exhibit 7) in the hand-writing of R.S. Pandey, the then Sub-Inspector of Police, attached to Hatia Police Station. The other P.Ws. are : P.W. 1 (Doman Mahto Kumhar) and P.W. 2 (Bandhwa Devi), the parents of deceased Hira Kumhar, P.W. 3 (Baha Oraon), the informant, who is the sole eye-witness, P.W. 5 (Dr. Arun Kumar Srivastava) who has stated that Baha Oraon, the informant, was admitted to RMCH with multiple injuries on 11-5-1980, and P.W. 6 (Dr. R.S. Prasad) who held autopsy on the dead bodies of Sheo Prasad Gwala and Hira Kumhar.
5. The defence, on the other hand, did not examine any witness.
6. The trial Court, on consideration of the evidence and materials on record and mainly relying on the testimony of P.W. 3 (Baha Oraon) as well as the evidence of P.Ws. 1 and 2 and the medical evidence, arrived at the conclusion that the prosecution had been able to substantiate the charges levelled against the accused-persons and accordingly convicted and sentenced them under Sections 302/149, 307/149, 364/149 and 148, I.P.C., as stated above.
7. Mr. Praveen Shankar Dayal, learned Counsel for the appellants, has assailed the impugned judgment mainly on the grounds that the testimony of P.W. 3 (Baha Oraon), the sole eye-witness, is inconsistent, inasmuch as in the fardbeyan (Exhibit 6) he alleged that Chota Hassan and dealt a dagger blow on his left arm, but in his evidence he is conspicuously silent about it and in conflict with the fardbeyan, he has alleged in his evidence that Chota Hassan was an assailant of the deceased; that there is no medical evidence to corroborate the fact that he had sustained the wounds in the occurrence; that in the fardbeyan, it is alleged that the informant and the two deceased had proceeded from Satranji Bazar on the fateful day for village Danrul and there was no occasion for the accused-persons to visit the house of the deceased, Hira Kumhar, on that evening to collect and take away him in their company and the evidence of the parents of the deceased, Hira Kumhar, P.Ws. 1 and 2, to this effect cannot be believed; that the Investigating Officer has not been examined in this case, which has caused prejudice to the defence and the First Information Report in the present case was received in the Court of the Chief Judicial Magistrate, Ranchi, on 17-5-1980, although the case is said to have been instituted on 13-5-1980 and despatched on the same day, and the delayed receipt of the First Information Report in the Court of the Addl. Chief Judicial Magistrate, Ranchi, for which no explanation has been furnished by the prosecution, renders the prosecution case suspicious and leads to the inference that the fardbeyan is ante-timed and ante-dated. He further contended that in the facts and circumstances of the case, the trial Court erred in convicting and sentencing the appellants on different counts and ought to have acquitted the accused in the case.
8. Mrs. Sheela Prasad, learned A.P.P., for the State, on the other hand, has supported the impugned judgment.
9. At the first instance, it has to be considered whether the death of deceased (Hira Kumhar and Sheo Prasad Gwala) was homicidal.
10. P.W. 3 (Baha Oraon) has testified to the effect that both the deceased died of wounds caused by Bhala, Chhura and Farsa on the fateful night. He has explained that Farsa and Balua are one and the same weapon. P.W. 1 (Doman Mahto), who claims to be witness on the inquest reports, has stated that he had found wound son the dead bodies of Hira Kumhar and Sheo Prasad Gwala.
P.W. 6 (Dr. R.S. Prasad) has stated that while he was posted in Rajendra Medical College and Hospital (RMCH) at Ranchi on 14-5-1980 as Professor of Forensic Department, he had held autopsy on the dead body of Hira Kumar, the deceased, at 12 a.m. which had the following features:
The process of decomposition had set in. Larvae of flies were present on the body. Hair of head had fallen out. Skin and muscles around the right arm, fore-arm were eaten away by animals.
He has further stated that he had found the following incised wounds on the person of the deceased Hira Kumhar:
(i) 7 c.m. x 2 c.m. on the right head behind right ear cutting the bone and brain matter.
(ii) 9 c.m. x 2 c.m. below the wound No. (i) cutting spine and the chord.
(iii) 5 c.m. x 3 c.m. below the front neck cutting the breast bone superficially.
(iv) 14 c.m. x 2 c.m. on left-half of the head and adjoining fore-head cutting the bone and the brain matter.
(v) 6 c.m. x 3 c.m. front left fore-arm.
He has opined that all the incised wounds were ante-mortem in nature, caused by sharp-cutting weapon and the death was caused by the wounds. He did not find any fire-arm injury on the person of the deceased. According to him, the time elapsed since the death was between 4 to 10 days of the post-mortem examination. Exhibit 4 is the post-mortem report of deceased Hira Kumhar in the pen of P.W. 6. The post-mortem report shows that the dead body had been despatched from village on 13-5-1980 at 2.30 p.m. and had been received in the dead-house the same day at 5.30 p.m. for autopsy.
P.W. 6 (Dr. R.S. Prasad) has further stated that on 14-5-1980 at 12.30 p.m. he had held post-mortem examination on the dead body of Sheo Prasad Gwala and he had found the following features:
Decomposition was in progress. Entire body was swollen due to collection of gases of decomposition. There was peeling of the skin and the body was infested with maggots, eye-balls were liquefied and had disappeared. The right-half of the skin of the head had been eaten away by the animals and skull bone underneath were broken into pieces, brain matters were liquefied and disappeared. Skin and flesh of the right-half of the face was eaten away by animals and bones were broken into pieces. The skin and flesh of the right front chest, right shoulder gurdel, right arm and elbow were eaten away by animals.
He has further stated that he had found the following injuries on the person of the deceased, Sheo Prasad Gwala:
(i) incised wound 13 cm. x 3 cm. right half of the neck, cutting muscles, spine and chord.
(ii) incised wound 2 cm. x 1 cm. back right arm.
(iii) incised wound 2 cm. x 1 cm. root of the left index finger.
According to him, all the incised wound were ante-mortem in nature, caused by sharp-cutting weapon, such as Balua, and the rest (i.e. fracture of skull and face as mentioned in the post-mortem report) were caused by hard and blunt substance and the death was caused due to injury on the neck, and the time elapsed since the death was between 4 to 10 days of the post-mortem examination. The post-mortem report of the deceased, Sheo Prasad Gwala in the pen of P.W. 6 is Exhibit 3. In this report, it has been mentioned that the dead body had also been despatched on 13-5-1980 at 2.30 p.m. and had been received in the dead-house the same day at 5.30 p.m. for autopsy.
The Evidence of P.W. 6 establishes beyond doubt that both the deceased met with violent death. It further fits in with the prosecution case that the deceased had been done to death late in the night on 10-5-1980 and they had suffered wounds by sharp-cutting weapons. The factum of murder of the two deceased has not been disputed by the defence, Hence, on the basis of the materials on record, it is established beyond doubt that the death of the two deceased was homicidal.
11. The crucial point which now arises for consideration is whether the appellants were instrumental in the murder of the two deceased.
P.W. 3 (Baha Oraon), the informant, has testified to the effect in his chief-examination that on 10-5-1980 at the instance of the appellants, he as well as the two deceased, Hira Kumhar and Sheo Prasad Gwala, accompanied them for witnessing Dungra fair and on the way a forest and river co-join and they reached the bank of the river around 11 to 11.15 p.m. He has further stated that they sat near the river, while the two deceased Hira and Sheo Prasad were lying and the accused-persons were armed. He has further stated in his chief-examination that appellant Fakira Oraon got up with Farsa in his hand and dealt a Farsa blow from behind, which struck on his neck, whereas the appellants Chota Hassan, Dinesh and Bara Hassan assaulted the deceased Hira and Sheo Prasad with Bhala, Chhura and Farsa, who died on the spot and at the time of the assault on the deceased, the other appellants were present and he himself fled for safety to the house of Durga Mahto, situate at village Hulhundu, where the police officer recorded his fardbeyan the next day at about 10 a.m. the contents of which were read over and explained to him and on finding it to be correct, he appended his signature (Exhibit 1) to it, while Durga Mahto (P.W. 4) put his signature (Exhibit 1 / 1) on it as a witness. He identified the appellants in Court. This witness showed the scar of wound on the neck at the time of recording of his evidence.
P.W. 4 (Durga Mahto) has corroborated the testimony of P.W. 3 that on 10-5-1980 around 2 a.m., he had been to his house with bleeding wound no neck and P.W. 3 had disclosed to him that he was going to Mela in the company of the two deceased Hira and Sheo Prasad and that the police officer had recorded his fardbeyan on which he put his signature as a witness. P.W, 2 (Bandhwa Debi) has stated that on the next following morning when her son (Hira) had left home for going to Mela, the mother of Durga asked her to visit her home at village Hulhundu, since Baha had returned wounded and would disclose the whereabouts of Hira, whereupon she visited the house of Durga Mahto and she found that Baha Oraon (P.W. 3) had a wound, which was bandaged with a Gamcha (towel).
P.W. 5 (Dr. Arun Kumar Srivastava) has testified to the effect that on 11-5-1980 he was posted as Assistant Professor in the Department of Surgery at R.M.C.H., Ranchi and on that day Baha Oraon (P.W, 3) was admitted to R.M.C.H. with multiple injuries and he was treated in the ward of Dr. G. Das, where he was working. He has explained that the bedhead ticket and the injury report could hot be produced because the same were stolen from the office of the Register. He has proved the letter dated 27-8-1988, issued by the Registrar, Surgery, R.M.C.H., Ranchi, Exhibit 2, to this effect. The evidence of P.W. 5 read with Exhibit 2 reveals that Baha Oraon (P.W. 3) was admitted with multiple injuries to R.M.C.H., vide Registration No. 1686 dated 11-5-1980. A criticism has been made by the learned Counsel for the appellants that in absence of the injury report, the prosecution case that P.W. 3 was injured in the occurrence cannot be accepted. In the fardbeyan (Exhibit 6), it is specifically alleged that the informant (Baha Oraon) had sustained wound on the neck. It has not been suggested by the defence to P.W. 3 (Baha Oraon) that he had sustained no wound. Sufficient explanation has come in the evidence of Dr. Arun Kumar Srivastava (P.W. 5) as well as the letter (Exhibit 2) for non-production of his injury report. The evidence of P.Ws. 2, 4 and 5 corroborates the assertion of P.W. 3 that he had suffered wound in the incident. Exhibit 7, endorsement of the police officer on the fardbeyan dated 11-5-1980 also shows that the informant (Baha Oraon) had injuries and was admitted in RMCH.
The facts and circumstances, stated above, establish beyond doubt that P.W. 3 (Baha Oraon) had suffered wound in the incident.
12. It has been pointed out by the learned Counsel for the appellants that P.W. 3 had alleged in the fardbeyan (Exhibit 6) that appellant (Chota Hassan) had assaulted him and had not named this appellant as an assailant of the deceased. But in his evidence, he states that appellant (Chota Hassan) too had assaulted the deceased and as such he has made a development in the prosecution case. The evidence of P.W. 3 was recorded after eight years of the occurrence. So due to lapse of time, P.W. 3 might have erred in narrating the part played by the appellant (Chota Hassan) in the incident or regarding the minute details of the occurrence, but he is consistent in his evidence on the substratum of the prosecution case that the appellants had taken him and the deceased in their company on the pretext to witness the Manda Mela, and on the way at a lonely place, near the bank of the river, all broke the journey to take rest and all of a sudden, attack was made on the informant and the deceased by some of the appellants, who were armed and all the appellants were present on the scene of the occurrence. It has come in his evidence that the occurrence took place in moon-lit night. It is quit possible that he might not have witnessed the complete assault on the deceased as he was himself injured and soon he had fled from the spot to save himself. It is true that in the cross-examination, he has stated that he had narrated the incident in the night of the occurrence to his family members, the Mukhia and the Sarpanch as well. This statement may be an exaggeration, but he has also stated that he had disclosed about the incident to his villagers. P.Ws. 1 and 2 have stated that P.W. 3 (Baha Oraon) had narrated the incident to them and had disclosed that the accused-persons have done the deceased persons to death. The appellants are named in the fardbeyan. The fardbeyan in substance corroborates the testimony of P.W. 3 that Fakru Oraon (Fakira Oraon) had assaulted him on neck and that the appellants are involved in the murder of the deceased persons. P.W. 3 is an injured witness. His presence on the spot during the occurrence cannot be doubted. It is well settled that the evidence of an injured witness carries great weight and there must be strong grounds to reject the evidence of an injured witness. The evidence of an injured witness is not to be discredited merely because there are some minor discrepancies in his evidence or some exaggerations, which have no bearing on the main theme of the prosecution case. It was pointed out by the learned Counsel for the appellants that P.W. 3 has admitted that he was in jail in a murder case on the day of his evidence in the case. This by itself is not sufficient to discard the testimony of
P.W. 3. Moreover, there is no material on record to suggest that P.W. 3 has any animus against the appellants. It does not stand to reason why P.W. 3, being an injured witness, would spare the real culprits and falsely implicate the appellants.
13. There is circumstantial evidence against the appellants which has come in the evidence of P.Ws. 1 and 2. P.W. 1 (Doman Mahto), father of deceased Hira Kumhar, has stated that on the fateful day around 5 p.m. in the evening, Hira Kumhar, his son, had returned from Bazar and ate two pieces of bread and in the meantime, appellants Bara Hassan, Chota Hassan, Fakira Oraon, Mahli, Islam and deceased Sheo Prasad, came to his house and took away his son Hira Kumhar in their company, whereafter he never returned and was done to death. P.W. 2 (Bandhwa Devi), mother of deceased Hira Kumhar, has testified to the effect that in the evening, which was a Saturday, she was at her home arid appellants Fakira, Gandur (Dineshwar Kumhar), Mahli, Chota Hassan, Bara Hassan, and Islam came to her house and taken away Hira Kumhar, her son for witnessing the Mela and on the next day, she learnt that he had been murdered. There is no reason to discard their consistent testimony on the point. Thus, their evidence shows that the deceased persons had left in the company of the appellants, except appellant Manir Mian, on the fateful day around evening. In the fardbeyan, it is recited that after some interval, the informant and the deceased persons had left Satranji Bazar for witnessing the Manda Mela. So, it does not exclude the possibility that after the offer was made by appellant Dineshwar Kumhar in the Satranji Bazar for going to the Mela, Hira Kumhar visited his home wherefrom the appellants brought him back in their company for journey to the Mela. The evidence of P.Ws. 1 and 2 lends assurance to the testimony of P.W. 3 that on the fateful day, he and the deceased persons had accompanied the appellants from Satranji Bazar for going to the Mela.
The evidence of P.W. 3 establishes beyond doubt that the appellants were members of unlawful assembly armed with deadly weapons and in prosecution of the common object, some of the appellants inflicted wounds to the deceased, who ultimately died. It is true that there is no positive evidence as to who had dealt the fatal blows to the deceased. It is not necessary that overt act should be attributed to every member of an unlawful assembly for constructive liability for the murder of the deceased. Thus, in the facts and circumstances of the case, the appellants have been rightly convicted under Section 302/149, I.P.C. Hence, their conviction under Sections 302/149 and 148, I.P.C. is confirmed.
14. There is specific allegation in the evidence of P.W. 3 that the appellant Fakira Oraon (Fakru Oraon) had inflicted wound on his neck with Farsa. There is no medical evidence about the nature of the injury sustained by him. In the circumstances, Fakira Oraon (Fakru Oraon) is convicted under Section 324, I.P.C. The conviction of the appellants under Section 307/149, I.P.C. for voluntarily causing hurt to Baha Oraon, the informant, is set aside.
15. This is a case of direct evidence on assault of the informant and murder of the deceased. Hence, the conviction of the appellants under Section 364/149, I.P.C. cannot be sustained.
16. It is true that the Investigating Officer has not been examined in the present case. The record shows that the defence has not taken any contradiction in the cross-examination of the P.Ws., vis-a-vis their evidence in Court and the statement made before the police during investigation. The identity of the place of occurrence has not been disputed by the defence. Learned Counsel for the appellants has failed to demonstrate that any material prejudice has been caused to the defence due to non-examination of the I.O. Hence, in the circumstances of the case, the failure of the prosecution to examine the Investigating Officer does not adversely affect the prosecution case.
17. One may now come to the contention of the learned Counsel for the appellants regarding the delay in receipt of the First Information Report in the Court of the Chief Judicial Magistrate, Ranchi. The record suggests that the fardbeyan (Exhibit 6) was forwarded to Khunti Police Station as the place of occurrence appeared to lie within its jurisdiction and on its return from Khunti Police Station, the case was instituted on 135-1980. It is true that the fardbeyan (Exhibit 6) was received in the office of the Magistrate on 17-5-1980, although it is shown to have been despatched from the police station on 13-5-1980.
It is the contention of the learned Counsel for the appellants that the fardbeyan is ante-timed and ante-dated. There is positive statement of P.Ws. 3 and 4 that the fardbeyan was recorded by the police officer on 11-5-1980. It was not suggested by the defence to P.W. 3 that the fardbeyan was not recorded on 11-5-1980 or it was ante-dated. It has not been raised before the trial Court. The record suggests that the fardbeyan was sent to the Officer-in-Charge, Khunti Police Station, on 11-5-1980, which was received on 12-5-1980. Hence, the question of any fabrication of the fardbeyan does not arise. This apart, no prejudice is shown to have been caused to the defence by the delay in the actual despatch of the fardbeyan to the Magistrate or its delayed receipt there.
In the circumstances, there is no merit in the contention of the learned Counsel for the appellants that the fardbeyan was ante-timed or ante-dated.
18. In the result, the conviction of the appellants under Sections 302 / 149 and 148, I.P.C. and the sentence passed by the trial Court thereunder are confirmed. Appellant Fakira Oraon (Fakru Oraon) is convicted under Section 324, I.P.C. and sentenced to undergo rigorous imprisonment for two years thereunder. The conviction and sentence of the appellants under Sections 307/149 and 364/149, I.P.C. are set aside. The sentences awarded to the appellants are to run concurrently. The appeal is accordingly dismissed with the modification in the order of conviction and sentence, passed against the appellants by the trial Court, to the extent indicated above. The appellants are on bail. They are directed to surrender to their bail-bonds in the Court below forthwith to serve out the remaining part of the sentence, failing which the Court below shall take all steps for securing their attendance.