JUDGMENT
S.N. Jha, J.
1. This judgment will govern both the reference and the appeal which arise out of the same judgment and order of the trial Court and, as such, have been heard together.
2. The sole appellant Jai Kant Tewary was put on trial and has been convicted and sentenced to death for having committed the murder of his wife, Manju Devi, in the wee hours of 24th April, 1988. The Fardbeyan was lodged by the Chaukidar, Ayodhya Paswan, at the place of occurrence which is the house of the appellant in village Mahuli within Khaira Police Station of Hunger district at 1 p.m. on the same day. Curiously, the Fardbeyan has not been brought on record. However, as would appear from the evidence of the prosecution witnesses, the appellant is said to have given three tengari blows on the neck of the deceased resulting in her death on the spot. The occurence is said to have been witnessed by the son, Ranjit Kumar Tewary, who has been examined as P. W. 3 in the case. According to him, he was sleeping near his mother at the time of occurrence, when his father i.e., the appellant gave two tengari blows and another after he woke up. PW 2 Sundara Devi, who is none else than own mother of the appellant, stated that in the early hours of the day of occurence while it was still dark, she was sleeping in the backyard of the angan. When she reached the actual place of occurrence, she found the deceased lying dead in the angan. With cut injuries on her neck. The appellant at that time asked her to take away the dead body. According to PW 1 Sita Devi, brother’s wife i.e., bhabhi of the appellant on hearing the cries of Ranjit (PW 1) she awoks her mother-in-law i.e. PW 2 and asked her to go to the place of occurrence. She also went there and found the deceased lying dead on the darwaza. Her neck had been cut. She stated that Ranjit (PW 3) who was present there told her at that very point of time that ‘Papa had cut the neck’. One more witness namely Bibu Mandal was produced but he was merely tendered for cross-examination and, therefore, I need not refer to him. The whole prosecution case thus rests on the evidence of these three witnesses.
3. In the instant case the prosecution neither examined the informant nor the Investigating Officer or even the doctor who had held the post-mortem nor came out with explanation for their non-examination. Naturally, their non-examination was the main plank of the submission of Mr. Chitranjan Sinha, learned Counsel for the appellant. So far as the informant is concerned, no doubt, as per his fardbeyan, he claimed to have reached the place when the deceased was still alive and to have seen the appellant holding a tengari be smeared with blood and to have further stated that upon seeing him the appellant threw off the tengari and wanted to flee but he (appellant) was caught hold of and with the help of the villagers confined till the police on information came to the place. As stated above, fardbeyan has not been brought on record. Even if it had been it could not have been used as substantive evidence except for the purpose of corroboration or contradiction. If the informant had been examined as witness in the case that would have certainly added strength to the prosecution case. However, mere non-examination of the informant cannot discredit the prosecution case. What is to be seen is whether the evidence on record is sufficient to hold the accused guilty beyond all reasonable doubts.
4. As regards the non-examination of the Investigating Officer, the law is now well settled. The accused can make a grievance as to non-examination of the I. O. only if prejudice is shown to have been caused to him. It appears, from the cross-examination of the prosecution witnesses that no contradiction whatsoever was pointed out to any of them, which means that their statement in Court was the same as before the police. If any contradiction had been pointed out between the two statements certainly the appellant could legitimately make a grievance that non-examination of the I. 0. has caused prejudice to him inasmuch as he has been deprived of the opportunity to bring his previous statement (before the police) on the record and to impeach the credibility of the witnesses. That grievance the appellant cannot make in this case. In view of the consistent evidence of the prosecution witnesses the sites of occurrence also cannot be in said to be in doubt. No suggestion to that effect was made to the witnesses either.
5. Non-examination of the doctor was the subject of detailed discussion, and understandably so, because even though the doctor, who had held the autopsy was not examined, the post-mortem report has been proved under Section 294, Cr. P.C. and used as substantive evidence. Having regard to the seriousness of the question we heard detailed submissions of the counsel for the parties. While learned Counsel for the appellant placing strong reliance on the Division Bench decisions of the Allahabad High Court and the Bombay High Court in Jagdeo Singh and Ors. v. State 1979 Cr LJ 236 and Ganpat Raoji Suryavanshi v. The State of Maharashtra 1980 Cr LJ 853, as well as decision of a learned Single Judge of this Court in Ramdeo Yadav and Ors. v. The State of Bihar 1987 BBCJ 775, submitted that Section 294, Cr. P.C. is intended to dispense with the necessity of formal proof of only formal documents, such as, letters, photographs etc. whose genuineness is not challenged. However, such documents cannot be used as substantive evidence as regards their contents as well. It was contended that a postmortem report, except in circumstances covered by Section 32 of the Evidence Act, cannot be used as substantive evidence unless its author appears as witness in Court and after proving the report tenders evidence as regards its contents. Counsel for the State, on the other hand, submitted that the two decisions aforesaid of the Allahabad High Court and the Bombay High Court stand overruled vide Saddiq and Ors. v. State 1981 Cr LJ 379 and Shaikh Farid Hasainsab v. The State of Maharashtra 1983 Cr LJ 487, respectively. Counsel for the State submitted that as far as this Court is concerned, at least two Division Benches have taken the same view in Dashrath Mandal and Ors. v. The State of Bihar 1993 (1) PLJR 737, and Udho Mahton v. The State of Bihar 1993 (2) PLJR 133.
6. In view of the importance of question, I would have preferred to deal with the same at some length. At one stage I was even inclined to refer this case to larger Bench for authoritative decision on the point. However, having regard to the fact that the appellant has been sentenced to death and is suffering the trauma of impending execution for the last one year, I have come to the view that referring the case to larger Bench will hardly serve any purpose, so far as the appellant is concerned, since it is bound to cause further delay and whatever be the ultimate decision on the point, the appellant may not ultimately get any benefit out of it inasmuch as on the facts of the case he is not likely to earn acquittal even though the postmortem report is discarded and at the same time the facts are not such as to justify capital punishment. Why, therefore, prolong the agony of the convict when ultimately his conviction is to be maintained but the sentence is to be commuted to imprisonment for life ? Nevertheless, I would like to very briefly record my tentative views, which are more in the nature of doubts. on the point.
7. Section 224 reads as follows:
294. No formal proof of certain documents.- (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuieneness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
Provided that the Court may, in its discretion, require such signature to be proved.
As preamble to it, indicates, it provides to dispense with the necessity of formal proof of certain documents. The documents may be filed either by the prosecution or the accused with the option to the other side to either admit or deny its genuineness. If the genuineness of the documents is not disputed the same may be read in evidence in any enquiry, trial or other preceding “without proof of the signature of the person to whom it purports to be signed”. Documents whose genuineness is not disputed may be used as evidence. The ordinary literal meaning of the term genuine is ‘true’ or ‘not fake’. There may be documents which the other side may not claim to be fake. Does he by conceding to its genuineness bind himself to its contents as well? A person may accept that a document is signed by a person who has purported to sign it but it does not mean that he accepts the contents of the documents which may contain the opinion of the author, to be true or correct. The Full Bench decisions relied upon by the counsel for the State have, no doubt, taken the view that the word genuineness contemplates not only genuineness of the signature but also genuinenss of the contents of the documents (vide 1983 Cr LJ 487). However, I have serious reservations in agreeing to this view. I am not able to reconcile as to how a document like a post mortem which is not to be otherwise used as substantive evidence, except in circumstances covered by Section 32 of the Evidence Act, can be so used merely because the accused does not deny the genuineness “of the signature of the person to whom it purports to be signed”. There are cases in which in the absence of the doctor, even though the conditions envisaged under Section 32 of the Evidence Act are not fulfilled or made out, the post-mortem reports may the proved by, say, compounder or any other person, claiming to know the signature of the doctor, testifies to that effect and states that the report was prepared in his presence. Surely in such cases the report cannot be used as substantive evidence. If the postmortem report although formally proved by person other than its author cannot be used as substantive evidence how can the same be used as such, though it is even not formally proved, under Section 294? Section 294, as rightly argued at the Bar by both sides, is intended to shorten process of trial by dispensing with the necessity of formally proving ‘undisputed’ documents. It is a new provision incorporated in the Code of Criminal Procedure, 1973. The new provision, no doubt, has to be given full effect. However, reading the provision as conferring upon a document a ‘status’ which it otherwise does not possess will be going too far resulting in injustice to the accused. According to me, the expression ‘such document may be read in evidence’ occurring in the Section has to be understood, in the context of post-mortem report as subject to its legal effect and limitations, that is to say, it can be read in evidence only for the purpose of corroboration or contradiction within the meaning of Section 157 or 145 of the Evidence Act. I am conscious of the fact that in cases covered by Section 32 of the Evidence Act, a post-mortem report can be used as substantive evidence even though the doctor concerned is not examined as witness in court but the conditions envisaged therein are entirely different.
8. The Division Benches of this Court in the cases cited above, relied upon by the counsel for the State, if I may say so with utmost respect, did not go into the questions in details and give them own interpretation ; they merely noticed the Full Bench decision of the Allahabad and Bombay High Court (supra), and followed them. However, having regard to the facts of the case, I have refrained from going into the question in its required details and record my final opinion in this judgment or to refer the case to larger Bench for authoritative decision since, as I have already indicated above, that may neither be necessary nor helpful to the appellant, I have merely indicated my doubts so that in an appropriate case in future the question may be debated and decided.
9. Adverting back to the facts of the case, in my opinion, the oral evidence of three eye-witnesses is so clear, cogent, consistent and convincing that there is hardly any need of corroboration even by medical evidence. As Benthem has said the witnesses are the ‘eye and cars of justice’. It is now well settled that ocular evidence, if found to be cogent, clear and convincing, is to be preferred to a discrepant medical evidence. According to the present trend of judicial pronouncements, occular evidence stands on the highest pedestal of course depending on its quality. Thus, even if the post-mortem report (Exhibit 1) is excluded from consideration as not being substantive evidence, in my opinion, the conviction of the appellant can be sustained on the basis’ of the three prosecution witnesses.
10. It is to be kept in mind that the prosecution witnesses are none else than the closed relatives, two of them being own son and mother, of the appellants. It is difficult to visualise that both the son and the mother (of the appellant) would depose falsely against their father or son respectively. This is what PWs. 3 and 2 precisely did. The son is privy to his parents and so far as the mother is concerned she would not come in the witness box to swear falsely against her own son. As a matter of fact, their natural conduct would be, in the absence of any extraordinary reason or motive, to save and defend him, particularly when the daughter-in-law had already died. No suggestion whatsoever was given to them as to any possible motive on their part for doing so. The trial court has noted the demeanour of both PWs 2 and 3 and recorded that during course of their examination they looked at the appellant with scorn and contempt. That shows the feeling which they had for him. That would not have been possible but for their hatred for him obviously because of the occurrence. It is obvious that they were not prepared to forgive the appellant for the crime which he had committed. At the time of his examination PW 3 was 12 years old. He was thus 8 years old at the time of occurrence. His presence at the place was most natural. He has said in most uncertain words that his father had inflicted tengari blows and cut the neck of the deceased. He reiterated that in his cross-examination also. His evidence is quite natural and does not leave any room for doubt that it was tutored. No suggestion of tutoring, in fact, has been made out either during trial or in course of hearing of the appeal. His evidence finds sufficient corroboration from the evidence of PW 2 and PW 1.
11. Counsel for the appellant tried to point out so called discrepancies in the evidence of the prosecution witnesses. Counsel submitted that as per the evidence of PW 2 the police found out the tengari in course of search while as per PW 3 it was he who gave it to the police I do not see how the two statements can be said to be inconsistent. The Police obviously must have made a search for the weapon and in course of search PW 3 might have given to him. A boy of tender age is not expected to give detailed sequence of events in this regard. Counsel also submitted that there was discrepancy in the evidence of the prosecution witnesses as to whether dead body was found at the darwaza or in the angan. Although description of the house is not on record, one can visualise that the darwaza and the angan must be adjacent. In villages people belonging to lower strata of society live in small houses where terms like angan, verandah or darwaza are often used interchangeably. As is well known a criminal case is decided on broad probability and leaving aside minor details. I have not been able to discern any material or important discrepancy or inconsistency.
12. Counsel made a grievance that the Tangani i.e. the weapon by which the deceased is said to have been killed was not produced by the police. Submission is devoid of any substance. Recently in the case of Kapildeo Singh v. State of Bihar (1993) 2 BUR 779, while dealing with the question as to whether failure of the investigating officer to take possession of the lantern which was said to be means of identification and to produce the same at the time of trial was fatal or not, the argument put forth on behalf of the accused was rejected and the conviction was upheld by the Apex Court on the basis of the testimony of the eye-witnesses who claimed to have seen and recognised the accused persons in the light of the lantern. It was held that the failure of the Investigating agency to seize the lantern or to produce cannot render the testimony of the witnesses doubtful.
13. Thus, on careful perusal of the evidence of the prosecution witnesses and after due consideration of the submission of the Counsel for the appellant, I am satisfied that the prosecution had succeeded in proving the charge of murder against the appellant beyond all reasonable doubts and his conviction under Section 302, I.P.C. cannot be said to be erroneous. However, the facts are not such as to warrant the extreme penalty of death. It is not one of those rarert of rare cases in which the capital punishment should be awarded. Accordingly, while maintaining the conviction under Section 302, I.P.C., I direct that the sentence be commuted to imprisonment for life.
14. In the result, the Reference is answered in the negative. The death sentence awarded to the appellant is commuted to imprisonment for life. The appeal, however, is dismissed, subject to modification in the sentence as above.
Dharmpal Sinha, J.
15. I have advantage of going through the judgment of my learned brother, S. N. Jha, J. and I agree with the finding and conclusion given therein. 1, however, wish to add a few words of my own.
16. As the facts and evidence have already been referred to in the judgment of my learned brother, I need not give the details. The sole appellant, Jai Kant Tewary, had been charged of the offence punishable under Section 302, I.P.C. for killing his own wife, Manju Devi at about 5 a.m. on the 23rd April, 1988 in his own house situated at Mahauli police station Khaira, within the district of Munger and the trial Court has found him guilty of the offence and has sentenced him to death, I may, at the very outset, mention that the reason given for awarding extreme penalty of death sentence by the learned trial Court is wholly unacceptable. On the basis of the statement made by the appellant, while he was being examined under Section 313 of the Code of Criminal Procedure (for short ‘the Coda’) to the effect that he loved his wife very much, the learned trial Court observed that if he could murder his wife whom he loved very much, he can murder any one including his other relations and existence of such person (the convict-appellant) will be constantly dangerous for the society, This reasoning to say the least is imaginary and based on fanciful and unnecessarily exaggerated fear, and it ignores the fact stated by the sister-in-law (PW 1) Sita Devi of the appellant that he was of good character, also the fact stated by PW No 3 that there used to be some quarrel between the appellant and the deceased. To be sure, the killing is said to have been done by giving three blows with Tengari on the neck, and it may be stated that some brutality is involved; but in several cases of murder, brutality is involved, and it cannot be said only for that reason that the case is one which could be considered to be a rare case, not to speak of rarest of the rare, which could justify sentencing him to death after the charge has been proved against him.
17. The prosecution case that the appellant killed his own wife at the very early hours of the morning when inmates of the house could normally be expected to be in their bed had been supported only by three witnesses, (the fourth having been only tendered), out of them PW 3 Ranjit Kumar Tewary figured as eye-witness of the occurrence. He is a child witness and was aged about 12 years and reading in Class V, when he was examined on 23rd of June, 1992. His evidence shows that he was sleeping with mother and his father gave two blows with his Tengari (axe) when he was sleeping, and when he had got up the appellant had given one Tengari blow on his mother. His cross-examination shows that there used to be quarrel between his father and mother, and he further reiterated during cross-examination that he was awaken when his father had given blow with axe. It is significant that even though this witness was deposing before the Court more than four years after the occurrence, he did support the case of the prosecution as an eye-witness against his own father. The learned trial Court has also noted the demeanour of the witness who had looked at the accused (appellant) contemptuously and stated that he was his papa. Ho denied the suggestion that he had been tutored. There appears to be no material on the record to discredit the testimony of this child witness whose evidence though brief contains all the facts which constitute necessary ingredients of the offence punishable under Section 302, IPC.
18. PW 2 is the mother of the appellant and she deposed to the effect that Manju Devi, wife of Jai Kani Tewary had been killed and the occurrence had taken place at dawn when it was still dark. Her evidence shows that she was sleeping behind the court-yard and when the reached the place of occurrence she saw Manju Divi lying in the court-yard and when she went close to her, she found that there had been cut injury and Manju was already dead. She has further stated that Jaikant Tiwary (the appellant) told her to take away the deadbody. Although her evidence does not show as to who had killed Manju Devi, it is definitely indicated from her evidence that Manju Devi had been killed in the Aangan in the early hours of the morning and the accused had asked her to take away the deadbody. The evidence of this witness who is own mother of the appellant at least shows that the appellant was present in the house at that time and he had directed her to take away the deadbody. The conduct of the appellant in giving direction for removing the deadbody of his own wife who had been killed in the house definitely provides a circumstance against the appellant.
19. On the fact of killing of Manju Devi at the alleged time and place, there is further evidence of PW 1, Sita Devi, sister-in-law (Bhabhi of the appellant). Her evidence shows that she had got up on the cry of Manju’s son, Ranjit (PW 3) and then she went to the place of occurrence with her mother-in-law and saw that Manju’s deadbody was lying at the door and her throat had been cut. She also stated that Ranjit said that papa had cut her. Her evidence in cross-examination shows that the deadbody was at the court-yard (Aangari).
20. All the three witnesses examined in this case are natural and probable witnesses who could be expected to be present at the time and at the place of occurrence. The fact of killing of Manju Devi, whose deadbody was found with cut injuries at her neck/throat in the Aangan near the door has been deposed even by PW 1 and PW 2, and PW 1 has even stated that PW 3 told her at that time that his father had killed Manju Devi. PW 3, as already noted above, has sated about killing by giving blows with Tangari both in his examination-in-chief and he reiterated the same during cross-examination. The evidence brought on the record by the prosecution though succinct and concise appears to be sufficient and satisfactory enough to establish beyond all reasonable doubt the charge of the offence punishable under Section 302, IPC against the appellant.
21. During the course of argument learned Counsel for the appellant has pointed out that there are some lacunae in the evidence because of non-examination of the informant and not bringing on record of the Fardbeyan lodged by the Choukidar and non-examination of the Investigating Officer. All these contentions have already been noticed and negatived for the reasons given in the judgment with which I respectfully agree and I need not repeat them. I only want to observe generally that what ought to have been brought on the record should not be given undue weight so as to out-weighed of the evidence which has been brought on record. If nature and quality of evidence which has already been brought on the record is satisfactory and sufficient to establish a charge, as appears in this case, we need not put undue importance to non-examination of some of witnesses.
22. Now, I may make a mention of one argument which had been strongly advanced regarding the extent of admissibility of the postmortem report which has been brought on the record and marked as Ex. 1 without examination in the trial Court of the doctor who had prepared and signed it. It appears from the order recorded by the trial Court on 5-11-1992 that a petition had been filed by the prosecution praying for marking as exhibit the original post-mortem report under Section 294 of the Code and no objection certificate had been granted on the petition by the learned Counsel for the defence. The petition was allowed and the post-mortem report was marked as Ext. 1. The learned trial Court referring to the injuries mentioned in the post-mortem report (Ext. 1) has observed that the evidence of PW 3 regarding giving three blows with axe finds support from the postmortem report. During the course of argument, learned Counsel for the appellant argued, rather strongly, that merely because the post-mortem report has been marked as Ext. 1 when no objection had been raised, the contents of the post-mortem report could not be used as substantive piece of evidence. He has submitted that although there are two decisions of Division Bench of this Court in the case of Dasrath Mandal v. State of Bihar 1993 (1) PLJR 737, and in the case of Udho Mahto v. State of Bihar 1993 (2) PLJR 133, taking the view on the basis of Full Bench decision of the Allahabad High Court in the case of Saddique and Anr. v. State of U.P. 1981 Cr LJ 379 and followed by Bombay High Court in the case of Sh. Farooque Hassan v. State of Maharasthra 1983 Cr LJ 487, respectively that such a report can be used as substantive piece of evidence if it has been brought on the record according to the provision of Section 294 of the Code, this question requires re-consideration. He has strongly contended that taking the entire contents of any such document which had been marked under Section 294 of the Code which only contemplates dispensing with the formal proof will be against all basic principle of the evidence which requires that if a person bad seen anything or beard anything he himself should come before the court and say about the fact which he had seen or heard and whatever is deposed by him in this manner should also be tested by giving opportunity to the other side for cross-examining him.
23. I too have some reservations on the views taken by the Full Bench of the Allahabad and Bombay High Courts which have been noticed and followed by this Court about the extent of use that can be made of such a document which has been brought on the record under Section 294 of the Code because of not disputing its genuineness. In my opinion, admitting genuineness of a document cannot necessarily mean admitting facts stated in the document. The heading of Section 294 of the Code seems to refer only to formal proof and it reads as follows:
No formal proof of the certain documents’. There are provisions of Sections 67 and 68 of the Evidence Act regarding proof of documents and if any document has to be brought on the record it must be proved in the way provided under Sections 67 and 6$ of the Evidence Act. So far as formal proof is concerned, a post-mortem report may be formally proved even by a person other than the Doctor who prepared the post-mortem examination report and put his signature on it. For this can be done by any person, who can identify the writing and signatures of the concerned doctor or who had been present at the time of preparation and signing of the post-mortem report. If any document is filed by the prosecution or by the accused, and if it is sought to be brought on the record Section 294 provides that the other side shall be called upon to admit or deny genuiness of the documents and if the genuieness is not denied, it may be ‘read in evidence.’ Obviously if genuineness is not denied, formal proof as required by Section 67 or 68 of the Evidence Act is not needed. The document (the post-mortem report in this case) may be taken to be genuine in the sense that it contains signature of the doctor by whom it purports to be signed or it was prepared by or at the instruction of the doctor, whose signature appears on it. In this sense it is not false or forged, fictitious or spurious, counterfeit or simulated. It is genuine because it was prepared by or on the instruction or at the instance of the doctor concerned and contains his genuine signature. Considering the heading of Section 294 of the Code and the meaning which is normally given to the adjective ‘genuine’, I think, to use the entire contents as substantive piece of evidence without examining the doctor, if he could be available in my opinion, certainly requires careful consideration by a larger Bench of this Court also. It may also be noticed in this connection that post-mortem report though prepared by doctor who can be considered an expert in medical field has not been put on the same footing as other reports such as that of chemical examiner, Chief Inspector of Fingers Print Bureau which can be “used as evidence” under the provisions of Section 293 of the Code. The use of different expression namely ‘used in evidence’ in Section 293 and ‘read in evidence’ in Section 294 may, in my opinion, be indicative of some distinction, though the Full Bench of Allahabad High Court has taken the view that both the expressions have the same meaning. The expression ‘read in evidence’ also appears in Section 296 of the Code which provides for reading in evidence affidavit but that can be done only when the evidence is of a formal character. In this case, however, even without considering the post-mortem report (Ext. 1), there is, as already stated above, sufficient and satisfactory evidence to establish the charge. So I do not think it proper to refer this question to any larger bench particularly when the appellant has been sentenced to death, but as already stated above, the death sentence is not at all justified. It will not be proper to continue for any long period the appellant in fear of death sentence which is likely to occur if reference is made in this very case to a larger bench for consideration of the question raised in this regard.
24. So far as this case is concerned, for the reasons indicated above, I agree with the finding of the learned Court below holding the appellant guilty of the offence punishable under Section 302, IPC and finding of conviction has to be upheld and confirmed, but the sentence of death awarded by the trial Court must, for the reasons already indicated, be set aside, the appellant shall stand sentenced to imprisonment for life for the aforementioned offence. The appeal is, accordingly, dismissed except regarding modification in the sentence and the reference is, accordingly, disposed of.
