JUDGMENT
N.N. Singh, J.
1. Both these appeals arising out of the judgment of conviction and sentence passed in Sessions Trial No. 69 of 1977 of 30th September, 1986 passed by 2nd Additional Sessions Judge, Arrah are being disposed of by this common judgment. Appellants Tribeni Ahir, Dhorha Ahir and Nand Kumar Ahir of Criminal Appeal 513/86 and appellant Jugeshwar Dubey of Criminal Appeal No. 515 of 1986 were convicted under Section 302 of the Indian Penal Code and were sentenced to undergo imprisonment for life. Rest seven appellants of Criminal Appeal No. 513/86 and Surajdeo Dubey (since dead) of Criminal Appeal No. 515/86 were convicted under Sections 302/149 of the Indian Penal Code and were sentenced to undergo imprisonment for life, while appellant Surajdeo Dubey of Criminal Appeal No. 515/86 was further convicted under Section 147 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for six months and ten appellants of Criminal Appeal No. 513/86 and appellant Jugeshwar Dubey of Criminal Appeal No. 515/ 86 were further convicted under Section 148 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for one year. Appellant Sheojee Ahir, Moti Ahir, Nand Kumar Ahir, Laxman Ahir and Teja Ahir were further convicted under Section 307 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for five years with a direction that all sentences would run concurrently. A supplementary affidavit was filed on 12-2-99 sworn by appellant No. 8 of Criminal Appeal No. 513/86 Negarjit Ahir, informing that appellants Tribeni Ahir, Rameshish Ahir of Criminal Appeal No. 513/86 and appellant Surajdeo Dubey of Criminal Appeal No. 515/86 had died during the pendency of these appeals and as such their appeals stand abated.
2. Briefly, stated the prosecution case, as mentioned in Fardbeyan (Ext. 2) of informant Ramta Singh (P.W. 7) was that on 13-4-76 the informant along with deceased-Jagannath Singh alias Natha Singh and witnesses Kanhjee Singh (P.W. 6), Kamta Singh (P.W. 1) Murari Singh (P.W. 2) and Rangnath Singh (P.W. 4) had gone to take bath in river Ganges at Teksemer Ghat situated at village Salempur on the occasion of Satuwan festival and after taking bath when they were proceeding to their house at about 8.00 a.m. and had gone 10 to 15 steps ahead from the bank of the river then all of a sudden 12 persons who are appellants came with Barchha and under orders of Surajdeo Dubey they started assaulting the informant and his companions. Further case of prosecution was that Tribeni Ahir, Dhorha Ahir, Nand Kumar Ahir and Jugeshwar Dubey inflicted Barchha injury on Jagarnath Singh alias Natha Singh in his chest, side of chest and on forehead, as a result of which Jagarnath Singh fell down and died. It was further alleged that witness Kamta Singh was attacked by appellants Sheojee Ahir, Moti Ahir and Teja Ahir by Barchha and informant Ramta Singh was assaulted by appellant Nand Kumar Ahir and Jitan Ahir by Barchha and Murari Singh was assaulted by appellant Nand Kumar Ahir by Barchha and Rangnath Singh was assaulted by appellant Lax-man Ahir by Barchha. According to the informant, on alarm raised by them, Karu Kurmi (P.W. 3), Sheo Bilash Singh (P.W. 5), Awadhesh Dubey, Rameshwar Dubey and other had arrived there and had witnessed the occurrence. It is also alleged that after assaulting them, the appellants fled away and the injured were brought by the witnesses to Salempur Chatti from where they and dead body of Jagarnath Singh were brought to Arrah Sadar Hospital, where injured were treated. Fardbeyan of Ramta Singh (P.W. 7) was recorded by S.I., R. B. Singh (since dead) at Arrah Muffasil Police Station at 11.00 a.m. on l3-4-76. On the basis of the aforesaid Fardbeyan a formal F.I.R. (Ext. 4) was drawn up and Arrah Muffasil P. S. Case No. 10 dated 13-4-76 was registered against these appellants and the police, after due investigation submitted charge-sheet against them who after commitment were put on trial and were convicted and sentenced as aforesaid.
3. The defence of the appellants of Criminal Appeal No. 513 of 1986 was that they have been falsely implicated in this case due to enmity and that this case has been filed as a counter-blast of their case bearing Arrah Muffasil P. S. Case No. 11, dated 13-4-76 in which on 13-4-76 at 6.00 a.m. when Tribeni Ahir and Ramashish Ahir were watching their bundles of gram and wheat in their Khalihan then the prosecution party armed wish deadly weapons attacked and started looting away the bundles of the crops and assaulted Tribeni Ahir and Ramashish Ahir by Barchha and lathi and that Tribeni Ahir and Ramashish Ahir could be saved only on arrival of witnesses and that Fardbeyan of Tribeni Ahir was recorded at 3.00 p.m. on 13-4-76 in the Sadar Hospital, Arrah and that case after commitment is also pending as Sessions Trial No. 449/77. The defence of appellants of Criminal Appeal-No. 5157 86 was that they have been falsely implicated in this case and that the prosecution party was aggressor who assaulted Tribeni Ahir and Ramashish Ahir by deadly weapons. It was further claimed that they were implicated at the instance of Kanhjee Singh with whom Rupees 6,000/- of appellant Surajdeo Dubey was due which he was not returning and in order to grab the money they were implicated.
4. The prosecution had examined ten witnesses in support of its case out of whom P.W. 9 Murat Ram was a formal witness who proved formal F.I.R. (Ext. 4) Fardbeyan (Ext. 2), Inquest report (Ext. 5) and the case diary (Ext. 8). He stated that the investigating officer of the case S.I. R. B. Singh had died. P.W. 10 is doctor Azizur Rahman who held post-mortem examination on the dead body of Jagarnath Singh and proved the post-mortem report (Ext. 9). P. W. 8 is Dr. P.B. Ojha who examined the injured P.Ws. 1,2,4 and 7 and proved the injuries reports Exts. 3 to 3/C. P.W. 7 Ramta Singh is the informant and also one of the injured. P.W. 1 Kamta Singh, P.W. 2 Murari Singh, P.W. 4 Rangnath Singh who are also injured are witnesses on the point of occurrence along with P.W. 6 Kanhjee Singh and two independent witnesses P.W. 3 Karu Kurmi and P.W. 5 Sheo Bilash Singh. The I.O. of this case is said to have died. The defence also examined three witnesses out of whom D.W. 1 Gorakh Singh proved the Exts. B, C, D and D/1, Formal F.I.R., Fardbeyan, entry in case diary at para 14 and entry in case diary at page 72 respectively of the case filed by Tribeni Ahir, D.W. 2 Gorakh Singh proved the destruction report (Ext. E) regarding an informatory petition and D.W. 3 Rameshwar Singh proved sale deed (Ext. A/1) and application (Ext. B/1).
5. The learned trial Court has discussed the evidence of P.W. 10, Dr. A. Rahman in paragraph 18 of its judgment. This witness proved the post-mortem report (Ext. 9), claimed to have held post-mortem examination on the dead body of deceased Jagarnath Singh alias Natha Singh at 4.15 p.m. on 13-4-76 and to have found following ante mortem injuries on the dead body :-
1. A wound 1 1/2″ x 1/2″ in the upper most part of the anterior axillary fold on the left side of the chest.
2. Wound 1 1/4″ x 1/3″ on the upper part of the left side abdomen.
3. Wound 1 1/4 x 1/3″ on the right lateral side of the abdomen.
4. Incised injury 1″ x 1/6″ x skin deep on the upper part of the right side of the forehead.
5. On dissection – hole in the chest wall underneath and continuous with injury No. 1.
6. Through and through puncture of the upper lobe of left lung.
7. Through and through puncture across both upper chambers of heart.
8. Pericardium was punctured.
9. Puncture in the anterior part of the lower aspect of the right lobe of liver.
10. Puncture of the peritoneum and omentum inside injury Nos. 2 and 3.
He opined that injuries were ante-mortem in nature caused by sharp piercing weapon such as Bhala and Barchha and that the death was caused due to shock and haemorrhage as a result of the aforesaid injuries which were sufficient in ordinary course of nature to cause death. Time elapsed since death was within 24 hours. These injuries were found by the I.O. while preparing inquest report (Ext. 5). Thus, the trial Court rightly came to the conclusion that deceased-Jagarnath Singh alias Natha Singh died a homicidal death.
6. Another doctor P.W. 8, Dr. P. B. Ojha claimed to have examined injured Murari Singh (P.W. 2) on 13-4-1976 at 9-45 a.m. in Sadar Hospital, Arrah and to have found one incised wound 1/4″ x 1/4″ x thickness of chest wall on the left side of the chest. 2″ outside the left nipple. Blood oozing out of the injury. He opined that the injury was simple in nature caused by sharp cutting weapon such as Bhala. He further stated to have examined Kamta Singh (P.W. 7) and to have found following injury on his person : (1) Incised wound 1/4″ x 1/4″ x abdominal wall of thickness on right side of abdomen. (2) Incised wound 1″ x 1/4″ x muscle deep on middle in front of right arm with blood oozing out. He further stated to have examined Kamta Singh (P.W. 1) and to have found three injuries on his person, namely, (1) incised wound 1/4″ x 1/4″ x muscle deep in front of middle of right arm, (2) incised wound 1/4″ x 1/4″ x muscle deep on inner side of middle of right arm, and (3) incised wound 1/4″ x 1/4″ x muscle deep on right side of the chest. 2″ outside right nipple. Blood was oozing out of injury Nos. 2 and 3. He opined that injuries were simple in nature and were caused by sharp cutting weapon, such as Bhala. P.W. 8 further stated to have examined the injuries on the person of Rangnath Singh and to have found one incised wound 1/4″ x 1/4″ x muscle deep on left buttock. He proved the injury reports (Exts. 3 to 3/C) which is in his pen (sic) and in his cross-examination, he stated that Bhala was a sharp pointed weapon and punctured and piercing wounds have greater depth comparison to length. It was argued that if the weapon is taken out, its sharp edges would cause incised wound.
7. The trial Court discussed the evidence of informant in para 11 of its judgment and that of P.W. I in para 12, of P.W. 2 in para 13 and of P.W. 14 in para 15 of its judgment. They were all injured. These injury reports were proved by P.W. 8 and while P.W. 1 brother of the informant, P.Ws. 2, and 4 are sons of the deceased nothing was taken out in their cross-examination to disbelieve their testimony. It was argued on behalf of the appellants that they were not independent witnesses and being close relatives of the informand and the deceased, they should not be relied upon. It has been held in the decision of the case of Shushil v. State of U.P. report at 1995 Suppl. (1) SCC 363, that evidence of interested witnesses and who were related to deceased could not be thrown out simply for that reason when their evidence is found to be reliable and corroborated by independent witnesses. The learned trial Court discussed the evidence of P.W. 3 Karu Kurmi who is an independent witness and whose name was mentioned as a witness in the Fardbeyan (Ext. 2). He had also gone there to take his bath and actually when he was taking bath, he heard hulla and when he came on the bank of river he saw the occurrence. He has fully corroborated the prosecution case. He denied the suggestion that there were bundles of harvested crops. The trial Court discussed his evidence in para 14 of its judgment and has given cogent reason for believing his testimony. P.W. 5 Sheo Bilash Singh is another independent witness. His name was cited in the Fardbeyan and he has also fully supported the prosecution case. Though suggestion was given to him that he was inimical but nothing specific was mentioned regarding any enmity. Besides those two witnesses P.W. 6 Kanhjee Singh who had also gone there with them to take bath has also supported the prosecution case. The trial Court has discussed their evidence in detail and has given cogent reasons for believing their testimony. As held in the decision of the case reported at 1994 Supp. (3) SCC 235 : AIR 1995 SC 254 Shivalingappa Kallayanappa v. The State of Karnataka, that presence of injured witnesses at the place of occurrence cannot be doubted unless there is strong ground for that. Nothing was brought to show that their presence at the P.O. and sustaining of injury can be disbelieved. Their evidence is also corroborated by independent witnesses like P.W. 3 Karu Kurmi and P.W. 5 Shiv Bilash Singh. I find no force in the argument of the learned advocate for the appellants that simply on the ground that P.Ws. 1,2,4 and 7 were related to the deceased and the informant, their evidence should be rejected. In the decision of the case reported at AIR 1996 SC 3429 : 1996 Cri LJ 3496 Ram Lakhan v. The State of U.P., it was held that “evidence of close relative of the deceased is not liable to be rejected on the ground of witnesses being interested witnesses. What is necessary is that Court should scrutinise evidence of such witnesses carefully”. I find that the learned trial Court has scrutinised the evidence of those related witnesses carefully and had rightly believed their testimony which was corroborated by independent witnesses (P.Ws. 3 and 5) and the medical evidence of P.W. 8. In appreciating their evidence, the Court had to adhere to two principles; (1) Whether it was possible for witnesses to be present there and (2) whether there is anything inherently improbable or unreliable. Credibility of witness can be decided by referring to evidence of witness and how that witness had fared in cross-examination and what impression is created by his evidence. I find that the learned trial Court has rightly held that evidence of those injured witnesses P.Ws. 1, 2, 4 and 7 supported by the evidence of independent witnesses P.Ws. 3 and 5 and further supported by the medical evidence of P.W. 8 go to show that their evidence was consistent with one another so far as place of occurrence, manner of assault and use of weapon were concerned, I further find that nothing was brought out in their cross-examination to impeach their testimony and as such the trial Court had rightly held that the prosecution has been able to establish the charge.
8. Sri N. A. Shamshi, the learned advocate for the appellants took strong objection towards finding of the trial Court in para 21 of its judgment where the trial Court mentioned that the I.O. is dead. The sketch map (Ext. 6) prepared by the “I.O. and other documents in the case diary, inquest report (Ext. 5) production list (Ext. 7) and case diary (Ext. 8) go to support the statement of prosecution witnesses referred to above and that P.O. found by the I.O. also tallies with the evidence of P.Ws. and that non-examination of the I.O. was not prejudicial to the appellants. “It was argued by the learned counsel for the appellants that evidence of P.W. 9 was not sufficient to hold that I.O.S.I., R.B. Singh had died and that case diary could not be used beyond what has been provided in Section 172 of the Code of Criminal Procedure, So far as the question of death of I.O.S.I., R.B. Singh is concerned, that point stands admitted by the evidence of D.W. 1 Gorakh Singh who also asserted that S.I., R.B. Singh, whom he knew is dead and that the same witness D.W. 1 also proved entries in paragraphs 14 and 72 of the case diary. Thus, the fact of death of S.I. R.B. Singh, the I.O., could not be disputed by the appellants. Entries made by the police officer in the case diary, as regards statements made by the witnesses and what he himself found is admissible after his death under Section 32(2) of the Indian Evidence Act, AIR 1932 All 442 : 34 Cri LJ 109 Abdul Aziz v. Emperor, Sri K.P. Gupta, learned Additional P.P. put reliance on two decisions of this Court, Dasrath Mandal v. The State of Bihar reported at 1993 (1) Pat LJR 737, paragraph 18) where it was held that in case Investigating Officer could not be examined ;at least the case diary be brought on record so that the Court may look into admissible part to analyse and appreciate the oral testimony of the witnesses. Sri Gupta placed further reliance on a decision reported at 1994 (1) Pat LJR 488, where non-examination of the I.O. was not considered prejudicial to defence and it was further held that in view of the consistent evidence of the prosecution witnesses, the situs of occurrence also cannot be said to be in doubt. Sri Gupta placed alternative argument also that if the evidence on record was itself sufficient, warranting an order of conviction, simply because the trial Court used the case diary in the way which was not permissible that observation should be ignored. True it is that entries in the case diary cannot be used for the purpose of corroboration, but in view of the consistent evidence of P.Ws. the place of occurrence also cannot be said to be under doubt.
9. The learned counsel for the appellants submitted that as held in the case of Brahamdeo Hazra v. The State of Bihar reported at 1987 BBCJ (HC) 340 : 1988 Cri LJ 734, the trial Court could not have looked into case diary . In paragraph 11 of the same decision it was held that “we could not get what were the objective ;findings noted by the police officer which would have been helpful in appreciating the correctness or otherwise of the prosecution version. I further find at page 345 of the same decision where it was observed that “not only that the Investigating Officer was not examined, even the police diary was not put in evidence or proved to enable the Court to consider the admissible part of the record to analyse and appreciate and to test the credibility of oral testimony of the witness. “These observations would go to show that case diary could be proved to know the objective finding of the police officer. It is all the more necessary when the I.O. is dead.
10. The argument placed by the learned ‘Counsel for the appellants was that as P.W. 10 proved the injuries on the persons of Tribeni Ahir and Ramashish Ahir and that one of the injury was grievous but the prosecution has not explained the injury found on the person of appellants and as such as held in the case of Laxmi Singh reported at 1977 Pat LJR 219 : 1976 Cri LJ 1736 it must be held that the prosecution has suppressed the genesis and origin of the occurrence. Sri Gupta, appearing for the State place reliance on the decision of the case of Hare Krishna Singh v. The State of Bihar reported at AIR 1988 SC 863 : 1988 Cri LJ 925 (para- graphs 18 and 20) were it was held that prosecution was not required to explain injury sustained by the accused in each and every case. In other words, it is not an invariable rule that prosecution has to explain the injury sustained by the accused in the same occurrence and if the witnesses examined on behalf of the prosecution are believed by the Court in proof of guilt of accused beyond reasonable doubt, the question of obligation to explain the injury will not arise. The question of failure to explain the injury of accused and whether failure to do so would mean that the prosecution has suppressed the truth and also the origin and genesis of the occurrence, was examined by the Supreme Court in the case of Ram Sundar Yadav v. The State of Bihar reported in (1998) 7 SCC 365 : 1988 Cri LJ 4558. It was held therein that in Bhaba Nanda Sarma v. State of Assam (1977) 4 SCC 396 : 1977 Cri LJ 1930 three-Judges Bench held that the prosecution is not obliged to explain the injuries on the person of accused in all cases and in all circumstances. The same question was considered by another three-Judges Bench in Vijayee Singh v. The State of U.P. (1990) 3 SCC 190 : 1990 Cri LJ 1510 wherein it was held as under (at page 1517 of Cri LJ):-
In Mohar Rai Case (1968 Cri LJ 1479) it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true or at any rate not wholly true. Likewise in Lakshmi Singh case (1976 Cri LJ 1736) also it is observed that any non-explanation of the injuries on the accused by the prosecution may affect the prosecution case. But such a non-explanation may assume greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution. But where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence and consequently the whole case.
Here in this case also the prosecution evidence has rightly been held by the trial Court to be cogent and creditworthy and as such, such non-explanation of injuries on the person of Tribeni Ahir and Ramashish Ahir itself cannot be a sole basis to hold that the prosecution has suppressed the truth. Moreover, from perusal of Ext. B, the Fardbeyan of the case filed by appellant-Tribeni Ahir it does not appeal’ that that case is a counter-case of this case as the time of occurrence and the place of occurrence of both the cases are differrent, whereas this occurrence took place at 8.00 a.m. and the case filed by appellant Tribeni Ahir the occurrence took place at 6 p.m. and whereas the place of occurrence of this case is river bank at Salempur Tola, the place of occurrence of Ext. B was Khalihan of Tribeni Ahir. Thus, no question of explanation of injuries at all arises in this case. The prosecution was not obliged to explain any such injuries.
11. The last argument of Mr. Shamshi was that this case should be remanded to the lower Court. No ground was placed before us as to why this case be remanded and what illegality was committed by the trial Court for which a fresh trial is warranted. 1 have held above that the evidence of prosecution witnesses are cogent and consistent and even if the observation of the trial Court regarding corroboration seeking from entries in the case diary is left out, the evidence on: record fully supports the prosecution case and for that alone the case cannot be remanded. Sri K. P. Gupta, placed reliance on provision of Section 167 of the Evidence Act where it was provided that improper admission or rejection of evidence shall not be a ground for a new trial or reversal of any decision in any case, if it appears to -the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision. It means that unless in the opinion of the Court substantial wrong or miscarriage of justice has occasioned, this cannot be a ground for new trial. Similar provision has been made in Section 465 of the Code of Criminal Procedure where it is provided that in case of allegation of illegality or irregularity, the superior Court will not interfere unless there has been failure of justice. Since nothing has been alleged as such, I find no merit in this argument made on behalf of the appellants for remand of this case.
12. After giving our anxious consideration to the facts and circumstances of the case and considering the judgment of the trial Court and evidence adduced in the case, I find and hold that trial Court had rightly convicted the appellants. However , I find that so far as conviction of the five appellants under Section 307 of the Indian Penal Code is concerned, it could not be sustained in view of the medical evidence of P. W. 10 in which he found all the injuries to be simple. The injuries were not such as to indicate the intention to commit murder of the injured. In the circumstances of the case, I find it expedient, in the interest of justice, that conviction of appellants Sheojee Ahir, Moti Ahir, Nand Kumar Ahir, Laxman Ahir and Teja Ahir under Section 307 of the Indian Penal Code is converted to that under Section 324 of the Indian Penal Code and its sentence is modified to rigorous imprisonment for two years each.
13. Finding no merit in both these appeals, they are dismissed with alteration of section of conviction and modification of sentence as aforesaid. The bail bonds of the appellants are cancelled and they are directed to surrender in the trial Court and the trial Court is also directed to take steps for their arrest to serve out their remaining part of sentences.
S.K. Chattopadhyaya, J.
14. I agree.