Paswan Vs. State of Jharkhand  Insc 604 (28 November 2003)
Raju & Arijit Pasayat. Arijit Pasayat,J
Das (hereinafter referred to as the deceased) paid price for changing his
loyalty from one trade union to another and Surendra (hereinafter referred to
as the 'accused') was said to be instrumental in taking away his life. Four
persons faced trial for alleged commission of offence punishable under Section
302 read with Section 34 of the Indian Penal Code, 1860 (for short the 'IPC').
The trial Court convicted them accordingly. The matter was carried in appeal
before the Jharkhand High Court which by the impugned order dismissed the
appeal filed by the accused appellant and held that accusations under Section
302 IPC have been made out against him who was accused No.4 before the trial
Court. Kedar Dusadh (A-1) died during the pendency of the appeal before the
High Court. Chandrika Das (A-2) and Krishna Kumar (A-3) were given the benefit
of doubt and their acquittal was directed.
version as unfolded during trial is as follows:
about 9.30 a.m. on 1.8.1995 the deceased and his
son Satyendra Das (PW-4) had gone to take tea near the shop of one Siyaram
Sao (PW-1) and Ravindra Sao (PW-2) were also sitting near the shop.
the four accused persons came from the side of the road.
Krishna Kumar came towards the informant (PW-4) and the deceased and directed
that the deceased should be assaulted. On hearing this, accused appellant Surendra
took out a pistol from his waist and fired at the deceased. The bullet hit left
eye of the deceased. After such firing all the four accused persons fled away.
On receiving the bullet injury, deceased fell down and became unconscious. The
informant with the help of others took him to nearby hospital where he was
to the information given at the police station on which investigation was
started, the four accused persons were working in the Katras Colliery. The
deceased was a labour leader. Since he left the union to which the accused
persons belonged and joined another union, this has caused annoyance to the
accused persons and because of this, the murder was committed. After completion
of investigation charge sheet was placed. The accused persons pleaded false
reliance on the evidence of the eye-witnesses, the trial Court convicted the
accused persons and the conviction was maintained by the High Court so far as
only the accused appellant is concerned. The High Court's judgment is under
challenge in this appeal.
counsel for the appellant submitted that the information given by the informant
cannot be treated as a first information report as the police officials had
already received information about the incident. Therefore, the statement made
was hit by provisions of Section 162 of the Code of Criminal Procedure, 1973
(in short the 'Cr.P.C.').
place of occurrence has been changed as no blood was seized from the cot where
the deceased was purportedly sitting at the time of attack.
so-called eye witnesses had stated that blood had spilled over to the cot.
Though the prosecution case is that one bullet was fired, the investigating
officer at certain stages in his statement in Court has stated that he
recovered a pellet. Bullet and pellet are different things. The prosecution has
suppressed the actual scenario and this is evident from the different types of
ammunition deposed about. The bullet which was found embodied on the body of
the deceased was extracted by the doctor who had handed it over to the police
officials. The same was not sent for chemical examination. Therefore, the
conviction cannot be maintained. Additionally, the investigating officer had
accepted that the accused appellant was found at a distance of about 50 feet
from the place of occurrence in an injured and unconscious stage which
necessitated his admission to hospital. The injuries on the accused were not
explained by the prosecution and the investigation was perfunctory as is
evident from the accepted fact that the medical report of the accused-appellant
was not even collected and seized bullet was not sent for ballistic
examination. Strong reliance was placed on the decision of this Court in Sukhwant
Singh v. State of Punjab (AIR 1995 SC 1601) to contend that same was fatal to
the prosecution case. In the statement under Section 313 of the Cr.P.C. the
accused appellant had taken a definite stand that a shot was fired by the
deceased which did not hit him and the deceased and Satyendra Das, Munna Das, Hira
Sao and Ravindra Sao assaulted him and made him senseless. The injuries were of
serious nature. The defence version was more probable and therefore the
conviction should be set aside was the plea.
response, learned counsel for the State submitted that three eye-witnesses
specifically deposed regarding the place of occurrence, the manner of assault
and gave detailed description of the entire scenario. The trial Court and the
High Court have analysed their evidence and found to be credible, cogent and
trustworthy. That being the position, there is no scope for interference in
there was a confusion between bullet and pellet which has been clarified by the
investigating officer. Merely because the bullet which was extracted by the
doctor was not sent for chemical examination, it would not be a factor which
would outweigh the testimonial worth of the eye-witnesses. The injuries have
not been established by the accused to have been sustained in course of the
incident as per the prosecution version. There was not even any suggestion
about the defence version to any of the prosecution witnesses and for the first
time while giving statement under Section 313 Cr.P.C. the plea has been taken.
shall first deal with the question regarding non-explanation of injuries on the
accused. Issue is if there is no such explanation what would be its effect? We
are not prepared to agree with the learned counsel for the defence that in each
and every case where prosecution fails to explain the injuries found on some of
the accused, the prosecution case should automatically be rejected, without any
further probe. In Mohar Rai and Bharath Rai v. The State of Bihar (1968 (3) SCR 525), it was
our judgment, the failure of the prosecution to offer any explanation in that
regard shows that evidence of the prosecution witnesses relating to the
incident is not true or at any rate not wholly true. Further those injuries probabilise
the plea taken by the appellants." In another important case Lakshmi Singh
and Ors. v. State of Bihar (1976 (4) SCC 394), after referring
to the ratio laid down in Mohar Rai's case (supra), this Court observed:
the prosecution fails to explain the injuries on the accused, two results
the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise
the plea taken by the appellants." It was further observed that:
a murder case, the non-explanation of the injuries sustained by the accused at
about the time of the occurrence or in the course of altercation is a very
important circumstance from which the Court can draw the following inferences:
the prosecution has suppressed the genesis and the origin of the occurrence and
has thus not presented the true version;
the witnesses who have denied the presence of the injuries on the person of the
accused are lying on a most material point and, therefore, their evidence is
that in case there is a defence version which explains the injuries on the
person of the accused assumes much 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 one."
In Mohar Rai's case (supra) 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's case (supra) 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 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. Much depends on the
facts and circumstances of each case. These aspects were highlighted by this
Court in Vijayee Singh and Ors. v. State of U.P.
(AIR 1990 SC 1459).
of injuries by the prosecution will not affect prosecution case where injuries
sustained by the accused are minor and superficial or where the evidence is so
clear and cogent, so independent and disinterested, so probable, consistent and
creditworthy, that it outweighs the effect of the omission on the part of
prosecution to explain the injuries. As observed by this Court in Ramlagan
Singh v. State of Bihar (AIR 1972 SC 2593) prosecution is not called upon in
all cases to explain the injuries received by the accused persons. It is for
the defence to put questions to the prosecution witnesses regarding the
injuries of the accused persons. When that is not done, there is no occasion
for the prosecution witnesses to explain any injury on the person of an
accused. In Hare krishna Singh and Ors. v. State of Bihar (AIR 1988 SC 863), it was observed
that the obligation of the prosecution to explain the injuries sustained by the
accused in the same occurrence may not arise in each and every case. In other
words, it is not an invariable rule that the prosecution has to explain the
injuries sustained by the accused in the same occurrence. If the witnesses
examined on behalf of the prosecution are believed by the Court in proof of
guilt of the accused beyond reasonable doubt, question of obligation of prosecution
to explain injuries sustained by the accused will not arise. When the
prosecution comes with a definite case that the offence has been committed by
the accused and proves its case beyond any reasonable doubt, it becomes hardly
necessary for the prosecution to again explain how and under what circumstances
injuries have been inflicted on the person of the accused. It is more so when
the injuries are simple or superficial in nature. In the case at hand, trifle
and superficial injuries on accused are of little assistance to them to throw
doubt on veracity of prosecution case.
as the non seizure of blood from the cot is concerned, the investigating
officer has stated that he found blood stained earth at the place of occurrence
and had seized it. Merely because it was not sent for chemical examination, it
may be a defect in the investigation but does not corrode the evidentiary value
of the eye-witnesses. The investigating officer did not find presence of blood
on the cot. The trial Court and the High Court have analysed this aspect. It
has been found that after receiving the bullet injury the deceased leaned
forward and whatever blood was profusing spilled over to the earth.
as the effect of the bullet being not sent for chemical examination, it has to
be noted that Sukhwant Singh's case (supra) is not an authority for the
proposition as submitted that whenever a bullet is not sent for chemical
examination the prosecution has to fail. In that case one of the factors which
weighed with this Court for not finding the accused guilty was the
prosecution's failure to send the weapon and the bullet for ballistic
examination. In the instant case, the weapon was not seized. That makes a
significant factual difference between Sukhwant Singh's case (supra) and the
to be noted that there was not even a suggestion to any of the prosecution
witnesses that the injuries were sustained by the accused-appellant in the
manner indicated by him, as stated for the first time in the statement under
Section 313 Cr.P.C.
as the confusion relating to bullet and pellet is concerned, the same has been
clarified by the doctor's evidence. In his examination the doctor (PW-3) has
categorically stated that there was only one injury on the body of the deceased
and no other injury was found anywhere on the person of the deceased.
Therefore, the question of the deceased having received any injury by a pellet
stated to have been recovered by the investigating officer is not established.
The investigating officer has clarified that the bullet embodied was given to
the police officials by the doctor which was initially not produced as it was
in the Malkhana but subsequently the witness was recalled and it was produced
it may not be having any determinative value, certain suggestions given to the
witnesses make interesting reading. A question was put to PW-4 in cross
examination which reads as follows:
x x x x It is not correct that Hira, Ravindra did not run to catch the accused
persons, rather they themselves ran away".
in a way probabilises the prosecution version and does not in any way establish
the defence version as is indicated for the first time in the statement under
Section 313 Cr.P.C. and has pleaded before this Court to be a ground for
doubting the veracity of the prosecution version.
well reasoned judgments of the trial Court and the High Court do not need any
interference. The appeal is without any merit and is dismissed.