Ananda Sen, J
1. This Criminal Appeal arises out of the judgment of conviction and the order of sentence, both dated 27.07.2002 in Sessions Trial Case No. 169 of 2000 whereby and whereunder learned 5th Additional Sessions Judge, Bermo at Tenughat convicted the appellants under Sections 324/34 and 302/34 of the Indian Penal Code and sentenced them to undergo RI for life under Sections 302/34 of the Indian Penal Code and RI for three years under Section 324/34 of the Indian Penal Code.
2. The prosecution case is at the behest of Shakuntala Devi who is none but the wife of the deceased. She stated that they returned from Maithan. On 20.11.1999 at about 10 a.m the informant Shakuntala Devi along with her husband was present in the courtyard. Two planks of their door were missing. Her father-in-law asked them to keep quite. The planks of the door were taken by the sons of Kameshwar Nayak (who happened to be her elder brother-in-law) namely, Bhagawandas Nayak and Ramdas Nayak. As they were refusing to return the same, exchange of words took place. Then Ramdas Nayak and Bhagawandas Nayak came out with tangi and gave 2-3 blows on the head of Shakuntala Devi and chased Premchand Nayak and these appellants Ramdas Nayak and Bhagawandas Nayak gave several tangi (axe) blows on the deceased and Kameshwar Nayak also assaulted with lathi till the deceased died. Then they returned to their house.
3. At the instance of Shakuntala Devi FIR was registered being Peterwar PS Case No. 133 of 1999 under sections 324/307/302/34 of the Indian Penal Code. The FIR is Exhibit-5.
4. After investigation, the Investigating Officer submitted chargesheet against the appellant for the offence punishable under Sections 341/323/324/307/302/34 of the Indian Penal.
5. On the basis of chargesheet and materials available on record, cognizance was taken and case was committed to the Court of Sessions where charges were framed under Sections 302/34, 307/34 and 324/34 of the Indian Penal Code and trial proceeded.
6. The learned counsel appearing on behalf of the appellants stated that because of enmity between two family, these appellants have been falsely implicated in this case. The conviction by no stretch of imagination can be under section 302 of the Indian Penal Code as there were evidences that the parties were quarrelling amongst each other. As per the learned counsel for the appellants, the FIR is hit by section 162 Cr.P.C as the police reached the place of occurrence after getting anonymous information. Said information should have been treated to be the first information in this case. Thus the statement of the informant is not the first version. The statement of PW1 is doubtful and PW6 is an interested witness being the wife of the deceased, thus their statement should not be given much weightage. The allegation in the First Information Report is that the father-in-law of the informant had stated that the planks of the door have been kept by the appellants but neither those were recovered from the possession of the appellants nor were produced in the Court to substantiate the aforesaid allegation. PW6 has categorically stated that there was jealousy amongst both the families. If the statement of PW6 is analyzed properly it will be clear that there are contradiction in her statement. No independent witness has been examined in this case which gives a fatal blow to the prosecution case. The investigating officer did not collect the blood stained earth, wearing apparels nor sent it to the Forensic Science Laboratory. Even the murder weapon was not produced before the Court which makes the case suspicious. The defence witnesses falsifies the case of the prosecution but their evidence has not been considered in proper manner. The case of the appellant no. 3 stands on different footing but he also has been convicted under section 302 of the Indian Penal Code. On these grounds he prays for acquittal of the appellants.
7. The learned counsel for the State submits that the prosecution has proved the commission of murder by the appellants. The eye-witnesses clearly supports the case. The doctor who examined the deceased also found several injuries by sharp cutting weapon, that too, on the vital part of the body. The ocular evidence matched the medical evidence. Further the informant is an injured witness and her credibility cannot be doubted. Thus the appellants are rightly found to be guilty of committing offence under section 302 of the Indian Penal Code.
8. After going through the records, I find that to prove the prosecution case, altogether 7 witnesses were examined by the prosecution, who are:-
i. PW1 :-Badri Rajwar
ii. PW2 :-Madhusudan Mahatha
iii. PW3 :- Bishweshwar Rajwar
iv. PW4 :- Dr. Upendra Prasad
v. PW5 :-Dr. Akhilesh Sharma
vi. PW6:-Shakuntala Devi
vii. PW7:- Basant Pathak
PW1 Badri Rajwar had stated that the occurrence had taken place 10 months ago. On that day i.e. on Saturday at 10 a.m he was going towards the pond when Premchand (deceased) asked him to take tea. He then sat in his courtyard. After 10 minutes Bhagwandas Nayak, Ramdas Nayak and Kameshwar Nayak came out of the room and started assaulting Shakuntala Devi wife of Premchand Nayak. While Premchand Nayak was fleeing towards the south direction and trying to enter the house of Parmeshwar Nayak the accused persons Bhagwandas Nayak, Ramdas Nayak and Kameshwar Nayak reached there by chasing him and Bhagwandas Nayak and Ramdas Nayak started assaulting with tangi and tanga (axe) and Kameshwar was standing with them with lathi. When Premchand Nayak fell down the accused started assaulting him on his chest and after his death all the accused went towards their house. In cross examination he stated that on receipt of the notice from the Public Prosecutor he had come to the Court to depose. He states that his house is 800-900 feet away from the house of the deceased. He states that there was proceeding under section 144 of the Cr.PC between his cousins and the appellants before the Sub-Divisional Officer. He states that there was no villager at the place of occurrence except them. He stated that he was at the distance of 25 feet away from Shakuntala Devi, when she was assaulted. He also stated that there was verbal altercation between them for half an hour and then the assault started. The deceased was not there when the assault started. In cross examination nothing contrary could be extracted by the defence.
PW2 Madhusudan Mahatha had stated that the occurrence is of 20.11.1999. At about 4:00 p.m when he was going towards his field there was a dead body on the road between the house of Chunnilal Singh and Parmeshwar Singh and police was present there. After reaching there he saw that the dead body was of Premchand Nayak. Police prepared the inquest report and he signed on the same. His signature on inquest report was marked as Exhibit-1. From his evidence it is clear that he is not an eye-witness.
PW3 Bishweshwar Raja stated that at about 4:00 p.m on 20.11.1999 when he was returning after working from Rolling Mill. On the way house of Kameshwar Rajwar was situated where the police were present and dead body of Premchand Nayak was there. He signed on the paper prepared by the police in connection with the dead body and which was marked as Exhibit1/1. He is also not an eye-witness.
PW4 Dr. Upendra Prasad who conducted the postmortem on the dead body of Premchand Nayak found the following injuries:
(i) Sharp cut at right shoulder 6” x 3” x muscles deep.
(ii) Sharp cut on neck, including muscle, vain, vertebra, spinal cord leaving posterior muscle.
(iii) Sharp cut below chin 3” x 1” bone deep mandible fracture.
(iv) Sharp cut at right fore arm 4” x 2” x muscle deep.
(v) Sharp cut at right arm 3” x 2” x muscle deep.
The doctor opined that the injuries were antemortem in nature and caused by sharp heavy instrument. Cause of death :-shock-hemorrhagic and neuragic due to injury no.2. The postmortem report is marked as Exhibit-2.
PW5 Dr. Akhilesh Sharma examined the informant Sahkuntala Devi and found the following injuries on her person:
i. Incised wound 2” x ½” x ½” on the right side of scalp
ii. Incised wound 1” x ½” x ½” on the left side of scalp
iii. Swelling with bruise 1” x 1” on the left elbow
iv. Swelling 1” x 1” on the right side back of shoulder
v. Complain of pain in body M.2 mole on the middle lower lip.
The doctor opined that injury nos. 1 and 2 was caused by sharp cutting weapon and the rest are caused by hard and blunt object. The report is marked as Exhibit-3.
PW6 Shakuntala Devi stated that about two years and two months ago at about 10:00 a.m she was in her house along with her husband and other family members. There was verbal altercation between her husband and her father-in-law. In the meantime, Ramdas Nayak, Bhagwandas Nayak and Kameshwar Nayak came and threatened to kill all the family members of her. Ramdas Nayak and Bhagwandas Nayak hit on her head by tangi and Kameshwar Nayak beat her with lathi. When her husband tried to flee Ramdas Nayak and Bhagwandas Nayak chased him and assaulted him by tangi and Kameshwar Nayak with lathi. On assault her husband died at the spot. She stated that just before the date of occurrence her husband returned from Maithan. Kameshwar Nayak is the elder brother of her husband.
Bhagwandas Nayak and Ramdas Nayak are sons of Kameshwar Nayak. There was no land dispute between them and the accused. The accused persons were jealous because the informant was leading a decent life. Both the families were not in visiting terms. She stated that before her marriage the house was built and they were staying and her husband, father-in-law, mother-in-law and the appellants were also residing in the same house but she does not know whether partition had taken place or not but they were separated in mess. She describes about the house and the courtyard. She stated that she sustained three cut injuries on her head. In her cross examination she stated that she was assaulted by lathi. She further stated that after she fell down the assault upon her stopped. Her husband was locked in the room by her mother-in-law. Her husband thereafter came out of the room and ran but he was chased and assaulted. She saw the dead body of her husband. She heard the shouts of the appellants but none of the villagers came. The villagers reached thereafter and started shouting that the deceased has been murdered. Thereafter she went to Choukidar who took her to the Petarwar Hospital in tempo for treatment. While returning from hospital she met the police in front of her house where police recorded her fardbeyan. She put her LTI over the fardbeyan. The police took dead body her husband to Sub-Divisional Hospital at Tenughat.
PW7 is the investigating officer who stated that on 20.11.1999 at 14:30 hours he received information that one person had been killed in Chando-Khurd. He reached the place of occurrence alongwith ASI D.P. Yadav and one section BMP force. At 15:00 hours he recorded fardbeyan of the informant Sakuntala Devi. After being read over and explained, the informant Sakuntala Devi had put her LTI on the fardbeyan which is marked as Exhibit-4. He then sent the dead body of the deceased to Sub-Divisional Hospital, Tenughat for postmortem.
9. Following documents have been exhibited:
i. Ext. 1, 1/1, 1/2 & 1/3 – Inquest report of deceased.
ii. Ext.2 – Postmortem report of deceased.
iii. Ext.3 – Injury report of informant.
iv. Ext. 4 & 4/1 – Fardbeyan
v. Ext.5& 5/1- Formal FIR
vi. Ext. 6, 7 & 7/1 – Case dairy.
10. The defence has also examined six witnesses.
DW1 is the father of the deceased and the appellant Kameshwar Nayak. He stated that there was no dispute between both the brothers prior to the occurrence. Premchand, the deceased, was providing for the entire family. He also borne the expense of the studies of the accused Bhagwandas Nayak and Ramdas Nayak as deceased was working as teacher in Maithan. He was involved in money lending business and he was also lending money to gamblers. He stated that there was enmity between the Premchand and others because of money lending business. He did not stop the business inspite of warning. He stated that in the morning he woke up and heard that somebody was lying dead in the road of the house and went there with the informant and saw the deceased lying dead. Then he and informant went to inform the Choukidar. In cross examination he admitted that what he had stated in the Court, has not been stated by him before the police. He stated that he did pairvi for the appellants for bail and admitted that nowhere he had stated that Premchand was killed by someone else other than the accused persons. He admits that in his younger days, he was doing money lending business. He stated that he had reservation about institution of the case at the behest of the Shakuntala Devi.
DW2 stated that the deceased was employed and was having money lending business. He was occasionally having quarrel with some person. He stated that Premchand had no enmity with the appellants. He stated that he does not know how Premchand had died. He also stated that he was not examined by police.
DW3 also stated that the deceased had money lending business and used to have occasional quarrel with others. He stated that the accused persons had enmity with the deceased. He had stated that he had not seen who had killed Premchand. He stated that he had seen the injury on Premchand Nayak and did not see any injury on the wife of Premchand i.e. the informant.
DW4 also stated in the similar manner that the deceased was in the money lending business and there was good relationship between the appellants and the deceased. He also stated that he was never examined by the police. He also stated that he had no connection with the deceased Premchand Nayak.
DW5 stated that there was good relationship between the appellants and the deceased and there was no quarrel between them. He also stated that he had given no statement before the police. He only heard about the occurrence.
DW6 stated that the relationship between the accused and the appellants was good and also stated that he does not know about the facts of the case. He denied that he had stated before the police that Bhagwandas Nayak and Ramdas Nayak armed with tangi, assaulted the deceased.
11. From the evidence led by the prosecution and the defence, we find that there are two sets of witnesses. One on behalf of the prosecution and another on behalf of the defence. Since this case is under section 302 of the Indian Penal Code, it is the prosecution who has to prove the guilt of the appellants beyond all reasonable doubt. If there is any reasonable doubt about the occurrence or about involvement of the accused, the benefit of the same should be given to the accused persons.
12. When we go through the evidence of the prosecution, we find that there are two eye witness i.e. PW1 and the informant who is the injured witness. The Hon’ble Supreme Court in the case of “Jodhan v. State of M.P.” reported in (2015) 11 SCC 52 has held that the testimony of the injured witness should be kept at the highest pedestal.
13. The evidence of the informant proves that she was present at the place of occurrence i.e. their house when there was some altercation going on between the deceased and the appellants. She also stated that the appellants came out with axe and stick and first assaulted her on head. The doctor PW5 examined this informant. He found two incised wound on the left side and right side of the scalp. These two injuries were caused by sharp cutting weapon. Further one swelling with bruise on the left elbow and other simple swelling on the shoulder was caused by hard and blunt object. It is the case of the prosecution through the eye witness that she was assaulted by these appellants. Eye witness also stated that appellant nos. 1 and 2 were assaulting by axe (sharp weapon) and appellant no. 3 by stick. She stated that there was jealousy between the appellants and the deceased, as the deceased was well off. This fact that they were well off and leading a decent life is supported by DW1 who is none but father of the appellant no. 3 and the deceased. DW1 in examination-in-chief stated that it is the deceased who used to run the entire family. The fact that the relationship was not cordial has also been stated by the informant and also by DW3. The injury which was found on the head of the informant corroborates with her testimony. PW1 who was also present in the house of the deceased at the time when the assault had taken place, had also stated the aforesaid fact that these appellants assaulted the informant and thereafter the deceased. The fact that he was present at the place of occurrence and had seen the same could not be demolished by the defence. There are no material to disbelieve him.
14. Postmortem of the deceased was conducted by PW4. From the postmortem report we find that there was sharp cutting injuries on the right shoulder, neck vertebra, spinal cord, sharp cut below the chin and right forearm. They are all caused by sharp and heavy instrument. The axe which was used is a sharp and heavy instrument. The evidence of the prosecution witnesses i.e PW1 and PW6 is consistent that these appellants had assaulted the deceased with axe. There is no material to disbelieve them as the ocular evidence corroborates with the medical evidence.
15. So far as the defence evidence is concerned after going through the same we find that they are not at all reliable witness. None of them stated that how the occurrence had taken place neither they came up with any explanation as to how the informant was injured. Since the defence has taken up some pleas, it is the defence who had to prove the same. It is a fact that the plea of the defence that the deceased was in money lending business was not proved. DW1 who is the father of the deceased and the appellant no. 3, had given a story that the deceased was a money lender and there was some dispute with others and that is why he was killed. While deposing in paragraph no. 9 he stated that what he has stated in the Court, was not narrated by him to the police. Thus we come to the conclusion that his statement in the Court is nothing but an afterthought to save his son and his grandsons.
16. Similarly DW2 also said nothing about the occurrence and also stated that he was not examined by the police. DW3 stated that there was enmity between the appellants and the deceased but admitted he had not seen who had killed the deceased. He is also not a reliable witness as he stated that he had not seen any injury on the body of the informant but the medical evidence and the doctor evidence is just the opposite. DW4 also had not seen how the occurrence had taken place but had only stated that the relationship of the appellants and the deceased was good which is not a correct statement as is evident from the statement of other witnesses. Similar is the statement of DW5 and DW6. Thus none of the defence witnesses can be relied upon.
17. So far as the argument of the learned counsel that the FIR is hit by section 162 Cr.PC, we also don’t find any material to agree with the said argument. The investigating officer had stated that they had only received a rumour that a person had been murdered in the village. A rumor cannot become a First Information Report. Though the First Information Report need not be an encyclopedia but still some basic information should be there before the police to register the First Information Report which in the instant case was absolutely missing when the rumour was received. Thus on receiving the rumour the police went to the place of occurrence and after seeing the same, got the statement of PW6 i.e wife of the deceased recorded which was converted into an FIR. We find no illegality in the said procedure. From the statement of the I.O we find that the station dairy entry bearing no. 375 dated 21.11.1999 was recorded but the same was not produced in the Court. We are of the opinion that non-production of the station dairy is not fatal for the prosecution, as he had stated that he had only received a message that one person had been killed in village Khurd-Chando. Thus in our opinion the FIR is not hit by section 162 of the Cr.PC.
18. Further the learned counsel for the appellants tries to emphasis that the case will come under section 304 Part-II of the Indian Penal Code. We are also not in agreement with the aforesaid argument. To bring home the case under the purview of section 304 Part-II of the IPC, the same must be brought under Exception of section 300 IPC. In the instant case none of the Exceptions are applicable. The deceased and his wife were unarmed. Though quarrel was going on, the appellants came with sharp cutting weapons and repeatedly assaulted both the deceased and the injured, that too, on the head, which is a vital part of the body. The injury report and the postmortem report clearly suggest the magnitude of the assault, which can be said to be of cruel in manner. The appellants were in advantageous position as they were armed with weapon and the deceased and informant were bare handed. This situation cannot attract any of the Exceptions of section 300 of the Indian Penal Code.
19. From what has been held above, we find that the prosecution has been able to prove the guilt of the appellants beyond all reasonable doubts.
20. Thus, this Criminal Appeal (DB) No. 581 of 2002 stands dismissed.
21. The judgment of conviction and the order of sentence, both dated 27.07.2002 passed by the learned 5th Additional Sessions Judge, Bermo in Tenughat in Sessions Trial Case No. 169 of 2000 are affirmed.
22. Since the appellants are on bail, their bail bonds are cancelled. They are directed to surrender before the concerned Court to serve the remaining sentence awarded to them.
23. Let a copy of the judgment along with the Trial Court Records be sent back to the Court concerned forthwith.
