JUDGMENT
D.G.R. Patnaik, J.
1. All the above named appellants were charged and tried for the offences under Section 302/149, 307/149/326/147/148/324 and 326 of the Indian Penal Code. The appellants Revlshwar Manjhl and Jaleshwar Manjhi were convicted under Section 302/148 of the Indian Penal Code. Jaleshwar Manjhi appellant was further convicted for the offence under Section 326 of the Indian Penal Code. Appellants Kala Chand Manjhi and Raghu Manjhi were convicted for the offence under Sections 326/148, IPC while appellants Santu Manjhl and Jma Kant Rajak were convicted for the offence under Section 148 of the Indian Penal Code. Sentence of life Imprisonment was awarded to the appellants Ravishwar Manjhi and Jaleshwar Manjhl for the offence under Section 302 of the Indian Penal Code. The appellants Jaleshwar Manjhi, Kalachand Manjhl and Raghu Manjhi were sentenced to undergo rigorous imprisonment for five years for the offence under Section 326 of the Indian Penal Code, and two years rigorous imprisonment for offence under Section 148, IPC. The remaining two appellants Santu Manjhi and Uma Kant Rajak were sentenced to undergo two years rigorous imprisonment for the offence under Section 148 of the Indian Penal Code. Feeling aggrieved, they have preferred these appeals.
2. The case was registered on the basis of the fardbeyan of the informant Suresh Kumar Das recorded at 3.45 p.m. on 31.10.1997 by ASI Shankar Ram (PW 17) who was then posted at Bangoria Police Out Post within Chanda Kiyari Police Station In the District of Dhanbad (now Bokaro). The case relates to the homicidal death of Nagendra Das, father of the informant Suresh Kumar Das (PW 10), which occurred on account of an alleged assault made at him on 31.10.1997 at abut 2.00 p.m. on the road in front of his house within the village Simultand.
The brief facts of the case, as per the fardbeyan of the informant is that on 31.10.1997 at about 2.00 p.m. the deceased, Nagendra Das along with his cousin Manpuran Das (PW 1) was sitting and gossiping outside his house. At that time, all the appellants, whose house is situated opposite the house of the informant, came variously armed with lethal weapons and began abusing Nagendra Das, on protest by Nagendra Das. they began assaulting him with the weapons in their hands. It is stated that the appellant Jaleshwar Manjhi assaulted Nagendra Das with Jangi on the victim’s head and when he bent down, the appellant Rabishwar Manjhi pierced a tenta (a long iron road having a pointed blade) on the back of the victim. When the victim’s brothers Manpuran Das (PW 1) and Gaur Das (PW 8) tried to intervene, they were also assaulted. Ravishwar Manjhi assaulted Manpuran Das with tangi while the appellant Jaleshwar Manjhi assaulted Gaur Das with tangl The appellants Kala Chand Manjhi and Raghu Manjhi also assaulted Manpuran Das (PW 1) with tangi on his head and on his knee. The remaining two appellants name santu Manjhi and Urna Kant Manjhi also assaulted Gaur Das with the weapons in their hands. While Gaur Das (PW 8) and Manpuran Das (PW 1) sustained grievous injuries on their person, the victim Nagendra Das who had sustained fatal injuries died at the spot. The incident was witnessed by several members of the family of the deceased and also by the neighbouring residents, including PW 2 Rajan Das, PW 3 Dhaneshwar as, PW 4 Chinta Haran Das, PW 5 Mantu Das, PW 7 Parmeshwar Das, PW 8 Nityam Devi, PW 10 Suresh Kumar Das (informant) and PW 13 Shankuntala Devi. ASI Shankar Ram (PW 17) arrived at the place of the occurrence within 1-1/2 hours. After recording the Jardbeyan of the informant, he noted down the injuries seen on the bodies of PWs 1 and 8 and referred the injured persons for medical treatment, prepared the inquest on the dead body of the deceased, seized blood stained earth and grass from the place of the occurrence and prepared seizure list thereof in presence of the witness and later, forwarded the dead body of the deceased Nagendra Das for post mortem examination.
3. The appellants in their defence pleaded not guilty to the charges and put forward their defence version claiming that the deceased Nagendra Das had criminally trespassed into the house of the appellant Ravishwar Manjhi and tried to outrage the modesty of the wife of Ravishwar Manjhi and on hearing her alarms, when the appellant Ravishwar manjhi and Jaleshwar Manjhi tried to save her, the deceased Nagendra Das who was armed with a tangi, opened assault on both the appellants while calling out for his own family members who also arrived armed with lethal weapons and assaulted the appellants and caused injuries to them the further contention of the appellants is that in respect of the said incident, the appellant Ravishwar Manjhi had lodged a first information report (FIR) with the police which was registered at the police station and on completion of the investigation, charge-sheet was submitted against the deceased and other family members of his family for the offences under Sections 147/148/149/324/342/354/307 of the Indian Penal Code.
4. At the trial, the prosecution had examined altogether 17 witnesses, including the informant (PW 10) and the injured persons as well as the witnesses living adjacent to the place of the occurrence besides the doctor who had examined the injured persons and had also conducted post-mortem examination on the dead body of the deceased. The investigating officer was, however, not examined by the prosecution.
On the other hand, the defence had also examined two witnesses by whom the FIR and chargesheet relating to the counter case, and the injury reports pertaining to the appellants Ravishwar Manjhi and Jaleshwar Manjhi were proved in evidence.
5. The Court after considering the evidence on record had placed reliance on the testimonies of the informant and other eye-witnesses finding support from the evidence of the doctor and had recorded its finding of guilt under Section 302 against the appellant Ravishwar Manjhi and Jaleshwar Manjhi and, for the offence under Section 326, IPC against the appellant Jaleshwar Manjhi, Kalachand Manjhi and Raghu Manjhi and for offence under Section 148, IPC against all the appellants. The learned trial Court rejected the defence plea of right of private defence on the ground of it being highly improbable that the deceased, a man of 50 years of age, would try to criminally trespass armed with tangi, into the house of his sworn enemy with whom he is contesting proceedings under Section 10, Cr PC, for the purpose of molesting the female members of the house, that too in broad day light, In the presence of male members of the family. The trial Court had observed that the possibility of procuring a false medical report by the defence with the connivance of the doctor and the police in order to bolster a false case, cannot be ruled out.
6. Assailing the impugned judgment of conviction and sentence, learned Counsel appearing for the appellants in the individual appeals have advanced common grounds stating basically that the finding of guilt by the learned trial Court against the appellants for the offences for which they were convicted is totally misconceived, and without proper appreciation of the evidence adduced by the defence in respect of the circumstances brought on record by virtue of the counter case instituted by the appellant Ravishwar Manjhi against the deceased and against the other members of the family of the deceased. Referring to the purported contradictions and inconsistencies in the evidence of the witnesses who have claimed themselves to be the eye-witnesses, learned Counsel point out that the statements of these witnesses are inconsistent particularly in respect of the manner of occurrence, the weapons allegedly used by the appellants and the injuries sustained by the injured persons and the non-examination of the investigating officer has caused serious prejudice to the defence, since the defene has not been able to bring on record the contradictions appearing in the depositions of the witnesses as compared to their earlier statements made before the investigating officer. It is further submitted that the evidences brought on record indicate two separate places of the occurrence. The place of occurrence relating to the instant case has not been properly fixed by the evidence of any witness examined by the prosecution and it was the investigating officer alone who could possibly have thrown light on these issues, but his non-examination has added to the prejudice suffered by the defence. Learned Counsel for the appellant Ravishwar Manjhi has further stated that according to the own admission of the witnesses, their statements were recorded by the investigating after more than 12 days of the alleged date of the occurrence. The reason for the delay having not been explained by the witnesses, it was the investigating officer alone, who could have explained the same. Learned Counsel adds further that though it is claimed that blood stained earth and grass were seized by the police officer (PW 17) from the place of occurrence, but in absence of forensic examination, it cannot be claimed conclusively that the same was human blood belonging to the deceased. Learned Counsel adds further that there are two versions; one, from the side of the prosecution and the other from the defence regarding the genesis of the occurrence, and the actual cause for the occurrence could have been explained by the investigating officer only. His non-examination has caused prejudice to the defence on this account also. Learned Counsel adds further that the statements of the witnesses, particularly those claiming to have sustained injuries, has to be viewed with suspicion for the reason that instead of obtaining medical treatment for their injuries at the Government hospital or at the BCCL hospital situated at closer distance from the place of occurrence, the witnesses had obtained medical treatment and corresponding medical report from a private clinic of Dr. Ratan Kejriwal (PW 11), although the witnesses were not referred by the police for treatment of their injuries to the aforesaid private clinic of PW 11. Learned Counsel points out that the Doctor was paid a sum of rupees six thousand purportedly towards the charge for medical treatment, but there is reason to believe that the money was paid to the doctor for obtaining false injury reports. Referring to the evidence of the defence witnesses and the documents introduced, learned Counsel submits that from the aforesaid evidence, it is established that the appellants Ravishwar manjhi and Jaleshwar Manjhi and sustained severe injuries on their persons at the hands of the deceased Nagendra Das and other members of his family. The matter was investigated by the police in which after conclusion of the investigation, chargesheet was submitted against the deceased and other members of his family. Learned Counsel submits that the prosecution is conspicuously silent regarding the injuries caused to the appellants and no explanation has been offered by the prosecution regarding the injuries and, therefore, the evidence adduced by the prosecution cannot be accepted as the truth. It is further submitted that from the circumstances brought on record by the defence, it will transpire that it was the deceased who had criminally trespassed into the house of the appellant Ravishwar Manjhi with an intent to outrage the modesty of the female members of his family and in such circumstances, the appellants had every right to exercise in private defence and if, in the course, some injuries were caused to the deceased and other members of the family, the appellants could not be held criminally responsible and liable for the same. It is lastly submitted that from the evidence of PW 17, it transpires that he had received information at the police out Post regarding the occurrence and had made entry in the Police Station diary. The station diary entry having not been produced, it leads to the definite inference that the prosecution has suppressed material facts and distorted the original version of the alleged occurrence.
7. Learned Counsel appearing on behalf of the State has submitted his arguments to controvert each of the grounds raised by the learned Counsel for the appellants. His main contention is that the presence of the appellants at the place of occurrence is virtually admitted by the appellants as is apparent from the counter case of the appellants. Learned Counsel adds that the evidence of all the eye-witnesses particularly that of the injured witnesses, cannot be ignored or brushed aside merely because of the fact that they happen to be members of the family of the deceased or because of the fact that they do not acknowledge the purported injuries cause to the two of the appellants Ravishwar Manjhi and Jaleshwar Manjhi. Referring to the judgment of the Supreme Court in the case of Ayodhya Ram v. State of Bihar reported in 1999 (2) East Cr C 257, learned Counsel submits that the prosecution is not bound to explain each and every injury of the accused and non-explanation in respect of the minor injuries cannot be considered as fatal to the prosecution. Supporting the impugned Judgment of conviction and the sentence as imposed by the learned trial Court, learned counsel submits that the trial Court has considered each and every aspect of the evidence and has assigned adequate reasons for arriving at the conclusions drawn and for the findings recorded by it.
8. For proper appreciation of the grounds advanced on behalf of the appellants, a reference to the evidence of the witnesses adduced by the prosecution would be necessary. Out of 17 witnesses examined by the prosecution, PWs 1, 2. 3, 8, 9, 10 and 13 have claimed to be the eyewitnesses to the occurrence. Out of them, PWs 1 and 9 are the injured witnesses. PW 7 has also claimed to be an eye-witness and one of the injured persons, but he has been disbelieved by the learned trial Court on account of the fact that his presence has not been confirmed specifically by any of the remaining eye-witnesses and also on account of the fact that the nature of injuries claimed to have been sustained by him do not find corroboration from the medical report, nor was he found at the place of occurrence by the police officer (PW 17) on his visit. Though PWs 4 and 5 claim to be the eye-witnesses, but it is in their evidence that they had seen only a part of the occurrence and they admit to have run away from the place soon after the alleged assault was made upon the victim. On going through the evidence of the above mentioned witnesses, it appears that all of them are either members of the family of the deceased Nagendra Das, or are related to him as cousins or agnates. They explain their presence at the time and place of the ocourrence by virtue of the fact that their houses are adjacent to the house of the deceased.
9. As regards the homicidal death of the deceased Nagendra Das, though the defence has not acknowledged the same in specific terms, but the defence has not raised any controversy either, The fact that the deceased Nagendra Das suffered homicidal death is confirmed from the evidence of the doctor Avlnash Kumar Chaudhary (PW 12) who had conducted post mortem examination on the dead body of the deceased at the Sadar Hospital, Bokaro on 1.11.1997. The injuries observed by the Doctor as recorded in his post mortem report which, in his opinion, were ante mortem injuries were the following:
(i) incised wound 5″ x 1-1/2″ x cranial cavity deep on the left side of the forehead obliquely placed and extending to the right parietal region of the scalp with obvious commuted fracture of frontal bone on the left side;
(ii) Abrasion 2-1/2″ x 1-1/2″ over front of left shoulder wrist;
(iii) Abrasion 1-1/2″ x 1/2″ over left shoulder;
(iv) Penetrating wound with sharp margins 1-1/2″ x 1/4″ x 5″ deep over the right renal area 1″ away from the L2 spine.
(v) On dissection, the doctor had found the cranial vault fractured and the margins and brain matter were torn, lacerated and contused over the left asterior half extending to the right hemisphere; The penetrating wound was 5″ deep and in its area had lacerated right kidney bodily through out its breadth. It had also perforated the peritoneum and the ascending column of the large gut and part of the small intestine. The soft tissue and pours of the aforesaid wound was lacerated. The abdominal cavity was filled with blood clots, faecal matter and other intestinal material.
The doctor had further observed that an iron rod with a spear shaped head with two spikes (tenta) was found stuck in the body which he had removed and handed over to the constable who had brought and identified the dead body before him. The injury No. (iv) was caused by a sharp pointed weapon. Death, in the opinion of the doctor, was on account of the injury No. (iv) and due to cardiac respiratory failure on account of the internal and external haemorrage and injury to the vital organs like brain, kidney and intestine, which were sufficient in the ordinary course of nature to cause death. On the basis of the contents of the stomach and the intestine, the doctor had opined that the deceased had taken food four hours before his death. Adverting to this opinion of the doctor, learned Counsel for the appellants submits that the aforesaid opinion of the doctor contradicts the evidence of the purported eye-witnesses who claim that the deceased had taken his lunch just two hours before the occurrence. The fact which remains however proved is that the deceased had died on account of the ante-mortem injuries sustained by him. The time of death a$ opined by the doctor corresponds to the evidence of the witnesses who have confirmed that the victim had died at the spot almost immediately after sustaining the injuries. The evidence of the doctor also corroborates the statements of the witnesses who had asserted that the tenta was pierced into the body of the deceased from back and it almost protruded through the front and remained stuck in the body.
10. Referring now to the evidence of the above mentioned eyewitnesses, the evidence of PWs 1 and 9, both of whom are the injured witnesses, is significant. Their presence at the place of occurrence is also admitted by the defence. As per the narration regarding the genesis and the manner of the occurrence, both these witnesses assert that on the date of the occurrence i.e. 31.10.1997 at about 2.00 p.m. while the deceased and PW 1 were sitting and gossiping out side the house of the deceased, the appellants in an inebriated condition, variously armed with lethal weapons, came in front of the house of the deceased and began abusing the deceased Nagendra Das. On protest by the deceased, these appellants surrounded him and began assaulting him. Both these witnesses consistently claim that the appellants Jaleshwar Manjhi assaulted the deceased Nagendra Manjhi with a tangi on the victim’s head as a result of which the victim bent down and at that time, the appellant Ravishwar Manjhi pierced through the back of the victim as a result of which, he fell on the ground and died almost immediately at the spot. The witnesses further affirm that the appellant Ravishwar Manjhi had also assaulted PW 1 Manpuran Das, while Jaleshwar Manjhl appellant had assaulted Gaur Das (PW 8) with tangi resulting in fracture Injury on his right palm. The appellant Kala Chand had assaulted on the left scapula of PW 1 with tangi while the appellant Raghu Manjhi had assaulted PW 1 Manpuran Das on the victim’s knee joint with a tangi. The evidence of these two witnesses find corroboration from the medical evidence of the doctor Ratan Kejriwal (PW 11) who had found grievous incised wounds both on the persons of PW 1 and PW 8 caused by sharp cutting instruments. Both these witnesses, in course of their respective cross examination explain that the assault had lasted for about five minutes and they did not see any injury on the persons of the appellants. The witness Manpuran Das claims that after sustaining injuries, he was rendered unconscious and this statement of his is confirmed by the statement of other eyewitnesses. That part of the evidence of the witness Gaur Das PW 8 wherein he has claimed that the appellant Santu Manjhi had assaulted and caused injuries to him with tangi having not found support from the medical report, or the statement of other witnesses, PWs 8, 9, and 10 the trial Court has discounted the aforesaid part of the evidence of PW 9 giving benefit of the same to the appellant Santu Manjhi.
11. As regards the genesis of the occurrence, both these witnesses have confirmed that the incident had occurred when the appellants came in front of the house of the deceased and started abusing the deceased and on his protest, the assailants opened assault on him and that when both these witnesses attempted to intervene, they were also assaulted and injured by the assailants. The evidence of these witnesses in respect of the genesis and the manner of occurrence, the role played by the individual appellants and weapons they were armed with finds adequate support from the evidence of PW 2 Rajan Das; PW 3 Dhaneshwar Das; PW4 Chaintaharan Das; PW 5 Mantu Das; PW 8 Nityam Devi; and PW 10 Suresh Kumar Das. The main ground on which the learned counsel for the appellant emphasizes that the evidence of these witnesses could not b*e relied upon, is that none of these witnesses explain the injuries caused to the appellants Ravishwar Manjhi and Jaleshwar Manjhi. The other ground is the purported contradiction in the statements of these witnesses relating to the weapons used by the assailants and the nature of injuries caused to the injured witnesses. As regards the later ground, the contradictions do not appear to be of serious nature and the witnesses are not expected to retain a photographic memory in their narration of the occurrence in sequence consistently. As regards the other ground regarding the injuries sustained by the appellants, from the injury report of DW 2, Dr. B. Kumar who claims to have examined both the appellants Ravishwar Manjhi and Jaleshwar Manjhi, it appears that the doctor had found two incised injuries, one on the left palm and the other on the right palm of Ravishwar Manjhi besides scratches on the upper portion of his back caused by sharp cutting weapon. Both the incised wounds were opined by the doctor to be grievous, but the doctor has also opined that all the three injuries could also be caused by fall on sharp edges of stones. The doctor had also found incised injuries at two places, on head on posterior region of appellant Jaleshwar Manjhi caused by sharp cutting weapon, but the injuries were simple in nature. The prosecution witnesses, including the injured witnesses have expressed ignorance regarding the aforementioned injuries found on the person of both the above named appellants. The witnesses have, however, acknowledged that the appellant Ravishwar Manjhi had lodged FIR at the police station against them on the allegation that the appellants were assaulted by the members of the prosecution party including the deceased Nagendra. Das. This is also asserted by the FIR (Ext A) adduced in evidence by the defence. The explanation given by the prosecution witnesses that they could not notice the injuries, if any, on the person of the above named appellants on account of the fact that they themselves had sustained injuries and one of their own having sustained fatal injuries had died at the spot and the assault continued hardly for less than five minutes whereafter the assailants had fled away, appears to be a reasonable explanation as far as the injured witnesses are concerned. This, however, does not apply to the other eyewitnesses, since they had an opportunity to see the entire occurrence from the beginning to end. From the evidence adduced by the prosecution and that by the defence, it appears that both sides had indulged in a free fight with each other in course of which, members of both the parties had sustained injuries. In the FIR of the counter case instituted by the appellant Ravishwar Manjhi, a feeble attempt to explain the injuries found on the person of the members of the prosecution party has been made. It is contended that it was in exercise of right of private defence by the appellants while resisting the advances made by the deceased that some injuries may have been caused to the deceased and other members of his family.
12. Having shown that both cases were instituted in respect of one and the same occurrence and having brought on record that the appellants had also sustained injuries on their persons, the appellants may claim to have brought on record suggestive circumstances in respect of their claim of exercise of right of private defence. It becomes the duty of the trial Court therefore to consider the circumstances and to record its findings as to whether the accused persons had a right of private defence and whether they could get the benefit of such right even if it is brought in evidence that they had caused injuries to the members of the prosecution party.
13. In order to appreciate these aspects of the case, the relevant important materials to be considered are the genesis of the occurrence, the place of the occurrence and the issue as to which party was the aggressor? The contention of the appellants as appearing from the FIR lodged by the appellant Ravishwar Manjhi is that on the date of the occurrence at about 2.00 p.m. the deceased Nagendra Das had criminally trespassed into the house of the appellant Ravishwar Manjhi and had tried to molest the wife of Ravishwar Manjhi. The; appellants Ravishwar Manjhi and Jalesh-war Manjhi who were present within their Courtyard nearby came running on hearing the alarms of the lady and saw the deceased Nagendra Das running away out of their house, armed with a tangi. The appellants chased him whereupon the deceased retaliated by aiming blows with tangi on them. Meanwhile, other members of the family of the deceased also arrived armed with tangi and began assaulting both the appellants. It is apparent from the above version of the defence that the deceased was accosted by the appellants not in their house, but outside their house on the road. It may be noted here that the houses of the deceased Nagendra Das and that of the appellant Ravishwar Manjhi are opposite to each other with a road(alley) dividing the houses. As per the evidence of the police officer (FW 17) who had arrived at the place of occurrence, he had found the deceased lying dead on the road i.e. within the alley in front of his house and had also found stains on grass and earth at that place. The evidence of PW 17 also indicates that the occurrence took place on the alley in front of the house of the deceased Nagendra Das. This is also confirmed by the evidence of ‘ the witnesses who testify to the seizure of blood stained grass and earth by the police officer. The place of occurrence, as per the evidence on record may safely be fixed as the alley in front of the house of the deceased. As regards the claim of the appellants that the deceased himself was the cause of the occurrence since he had allegedly trespassed into the house of the appellant Ravishwar Manjhi and had tried to molest the female members of his family, the same does not appear to be convincing and probable. It needs to be noted here that both the parties were on inimical terms much prior to the date of the occurrence and proceedings under Section 107, CrPC were pending between them. Further more, as rightly found by the learned trial Court, it seems highly improbable that the deceased would trespass into the house of his enemies armed with tangi, with intent to outrage the modesty of the female members and that too, knowing fully well that male members of the family were present nearby. Even otherwise, the circumstances indicate that the deceased was accosted outside the house of the appellant and not within their house. It is the appellants who had chased the deceased. Thus, the right of private defence, even if there was any, at an earlier point of time when the deceased had allegedly trespassed into the house of the appellant, had ceased immediately after the deceased had retreated from their house. The injuries found on the deceased and also on the person of the injured persons (PWs 1 and 9), read with their respective depositions indicate that they had sustained injuries at the hands of the appellants, who at the relevant time were armed with sharp cutting weapons namely tangi and tenta. Apparently, before chasing and following the deceased, the appellants had armed themselves with lethal weapons. The circumstances indicate that the right of private defence at the time when injuries were inflicted on the deceased, was no more available to the appellants. Rather, the fact that the appellants were chasing the deceased armed with lethal weapons, had created a situation where the deceased could have tried to protect himself and the other members of his family as also the injured witnesses had also tried to protect the deceased from being assaulted by the appellants and if in the process, the appellants had sustained the injuries, the circumstances Itself offer adequate explanation for the injuries sustained by them.
14. As regards the contention raised on behalf of the appellants that the station diary entry which was recorded by PW 17 at the police station should have been treated as the FIR and the prosecution by suppressing the document having put forth Instead, the fardbeyan of the informant as the FIR, gives reason to believe that In the earlier information recorded In the station diary, the present appellants were not named as the assailants, the same appears to be misplaced. From perusal of the statement of PW 17, the police officer, posted at Bahgoria Out Post It appears that on 31.10.1997, he had received information by way of rumour about some fight between some persons at Simultand. He entered the information in the station diary and proceeded to village Simultand to verify the information. On reaching the village, he found a person (identified by the witnesses present as Nagendra Das), lying dead with an iron tenta stuck at the back of the deceased. It is apparent from the evidence of this witness that no definite information regarding the occurrence was received by him at the police station and, therefore, even had the station diary entry been brought on record, it would have been of no consequence either to the prosecution or to the defence. In any case, the non production of the station diary entry does riot appear to have caused any serious prejudice to the defence.
15. As regards the controversy raised by the learned Counsel for the appellants that the injured persons namely PWs 1 and 9 had Intentionally avoided to obtain medical treatment for their purported injuries at the Government hospital or at the hospital of the Bharat Coking Coal Limited (BCCL) which the injured witnesses being employees, were entitled to free medical treatment and Instead, they had chosen to go to the private clinic of PW 11 and obtain Injury report on payment of rupees six thousand to the doctor, it appears from the statement of the aforesaid witnesses (PWs 1 and 9) and also that of PWs 2, 3 and 10 that the injured persons were initially taken to the Government hospital, but they found the hospital closed at the time of their visit. The witnesses have also explained that they did not have faith in the medical treatment available at the BCCL, hospital and considering the seriousness of the injuries, they had obtained medical treatment at the private clinic of PW 11.
In this regard, the evidence of PW 17 is significant. It is in his evidence that on reaching the village Simultand after having entered the information in the station diary at the police station he had found the dead body of the deceased lying on the road in front of the house of the deceased. He had also found two injured persons, namely PW1 and FW9 and rioted down the injuries observed on their bodies and also prepared injury reports and had referred them to the primary health centre (PHC) Chandankiyari. Furthermore, it is in the evidence of the injured witnesses as also the statements of other witnesses that Chandankiyari PHC is located at a distance of about 20 Kms and almost same is the distance from the place of occurrence to the private clinic of PW 11. The reason why the injured witnesses were taken to the private clinic of PW 11 has been adequately explained and merely because the injured were taken to the private doctor, this in itself does not lead to any adverse inference against the prosecution. It is further significant to note that except PWs 1 and 9, the police officer (PW 17) did not find any other injured person at the time of his visit to the place of occurrence. He has specifically stated that he did not find either the appellant Jaleshwar Manjhi or Ravishwar Manjhi at village Simultand at that time. Controversy has also been raised by the appellants over carrying the dead body of the deceased along with the injured persons to the private clinic of PW 11 and retaining the same for the whole night at the clinic. The explanation offered by the witnesses is that the dead body was put on the same Trekker on which the injured witnesses were carried to the hospital. Finding the hospital closed, the Trekker along with the injured persons and the dead body proceeded to the clinic of PW 11 apparently due to the urgency for obtaining immediate medical treatment for the injured both of whom were admitted to the clinic as indoor patients. The dead body, as per the evidence of the witnesses, had remained in the Trekker throughout the night and early next morning, it was taken to the Sadar Hospital, Chas for post mortem examination. The circumstances under which the dead body remained in the vehicle till the time it was brought to the Sadar Hospital is adequately explained leaving no room for drawing any adverse inference against the prosecution. It is pertinent to note from the evidences of PW 11 and PW 12 that the nursing home of PW 11 and the Sadar hospital where the autopsy on the dead body was held, are within the same locality namely Chas. This could explain that for the post mortem examination, the dead body had to be invariably carried from the place of occurrence to Chas and since the injured witnesses were to be taken to the clinic of PW 11 located at Chas, the dead body was carried on the same vehicle along with the injured.
16. Learned Counsel for the appellants has laid emphasis on the ground that non-examination of the investigating officer has caused serious prejudice to the defence. It is explained by him that the contradictions appearing in the deposition of other witnesses as compared to their earlier statement recorded by the investigating officer could not be brought on record on account of non-examination of the investigating officer. Learned Counsel adds further that the place of occurrence has not been established conclusively by the witnesses who were examined by the prosecution and non-examination of the investigating officer has left the lacuna thereby causing prejudice to the defence. This argument on behalf of the appellants appears to be misplaced. No doubt, the defence while cross examining some of the witnesses, namely PWs 2, 5, and 7 had confronted these witnesses with their earlier statement made under Section 161, CrPC suggesting to the witnesses that they have not made the statements deposed in course of the trial, before the police. It appears that the purported contradictions are minor contradictions. It appears from the impugned judgment that the learned trial Court has considered the evidence of these witnesses and has observed that the witnesses have made improvement upon their previous statement made before the police by adding that the appellant Uma Kant had also indulged in the assault with tangi on the injured persons. The learned trial Court has given benefit of the aforesaid contradiction to the defence and has not believed that part of the statements of these witnesses wherein it was alleged that the appellant Uma Kant assaulted the injured persons with tangi. However, on going through he evidence of the injured witnesses FW 1 and 9 as also the evidence of PWs 8 and 10, I find that in their respective cross examination, the defence has not elicited any contradiction in their evidence over what they had stated before the investigating officer. I do not find any other circumstance brought on record by the defence to suggest that the defence had sustained any serious prejudice on account of non-examination of the investigating officer. The further controversy regarding delay in recording the statements of the witnesses by the investigating officer has also been explained satisfactorily by the witnesses who, having accompanied the injured persons for their medical treatment, had to remain at Chas and could not avail an earlier opportunity to contact the Investigating officer of their own. It is to be noted that the entire case of the prosecution finds mentioned in the fardbeyan of the informant (PW 10) which was recorded within 1-1/2 hours of the time of occurrence by PW 17.
17. The evidence of the prosecution witnesses on the point that the appellants Jaleshwar Manjhi and Ravishwar Manjhi had caused fatal injuries to the deceased Nagendra Das and the evidence of the witnesses on the point that the appellants Jaleshwar Manjhi and Kala Chand Manjhi and Raghu Manjhi had caused grievous injuries to the injured witnesses namely PW 1 man Puran Das and PW 9 Gaur Das and that all the appellants being variously armed with weapons had formed an unlawful assembly and had committed rioting appears to be consistent and reliable. The trial Court has considered all the relevant aspects appearing in the evidence on record in proper perspective, and has assigned adequate reasons for the findings recorded.
18. In the final analysis, I find that these appeals are devoid of any merit and deserve to be dismissed.
19. For the reasons aforesaid, these appeals are dismissed. The judgment of conviction and sentence of the appellants as recorded by the trial Court are hereby confirmed. Except appellant Ravishwar Manjhi all other appellants are on bail. Their bail bonds are cancelled and they are directed to surrender themselves before the Court below forthwith, failing which the trial Court shall take all coercive steps to take them into custody to serve out their respective sentences.
D.P. Singh, J.
20. I agree.