1

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Cr. Appeal (DB) No.37 of 1994 (R)

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(Against the Judgment of conviction dated 28.02.1994 and Order of

sentence dated 02.03.1994 passed by the 3

rd

Additional Sessions Judge,

Hazaribag in Sessions Trial No.13/1988)

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1. Bhim Singh son of Late Janki Singh

2. Jattu Singh son of Ramjit Singh

3. Doman Karmali @ Ganpat @ Doman son of Biglal Karmali

4. Dambar Singh @ Ram Prasad Singh son of Late Jhari Singh

5. Pavitra Singh son of Dubraj Singh

6. Mahendra Singh son of Kabiraj Singh

7. Ashok Singh son of Matuk Singh

All resident of village-Hehal, P.S. Patratu (Barkakana) District-

Hazaribagh

.…. Appellants

Versus

The State of Bihar (now Jharkhand) ….. Respondent

CORAM:HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

HON’BLE MR. JUSTICE SUBHASH CHAND

…..

For the Appellants : Mr. A.N. Deo, Advocate

For the State : Mrs. Vandana Bharti, APP

…..

C.A.V. on 18.01.2023 Pronounced on 31.01.2023

Per Sujit Narayan Prasad, J.

The instant appeal is against the Judgment of conviction dated

28.02.1994 and Order of sentence dated 02.03.1994 passed by the 3

rd

Additional Sessions Judge, Hazaribag in Sessions Trial No.13/1988,

whereby and whereunder, the appellants have been convicted for the

offence under Section 302/34 and Section 148 of the Indian Penal

Code and directed to undergo imprisonment for life for the

commission of offence under Section 302/34 of the Indian Penal Code

and further to undergo rigorous imprisonment for two years under

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Section 148 of the Indian Penal Code and both the sentences have been

directed to run concurrently.

2. The prosecution story in brief as per the fardbeyan of one

Janardan Kumar Thakur, the informant (P.W.10) is that on 25.11.1986

at about 5:30 p.m., the informant along with his brother Birendra

Kumar Thakur (deceased) was coming back having watching a football

match from Barkakana Football Ground to his house in village Hehal.

In the way, villagers Mathura Singh, P.W.3 and Dewana Kumhar @

Deo Nandan Prajapati, P.W.1 also happened to be with them. It has

been stated that at about 6:30 p.m., they reached near Nala of Naiya

Ghutuwa Village. The informant was having a torch with two cells in

his hand and his brother Birendra Kumar Thakur (deceased) had a

torch with three cells and both were coming flashing torch light. It has

further been stated that they went a bit ahead of the Nala, the informant

found the accused persons, namely, Bhim Singh, Mahendra Singh,

Umar Singh, Pavitra Singh, Ashok Singh, Jattu Singh and Doman

Karmali and two more persons, namely, Lal Mohan Singh and Pawan

Singh were sitting and hiding themselves in the ditch nearby.

It has been stated that as soon as the informant and his brother

went ahead to the said accused persons, all of a sudden accused persons

armed with bombs, pistol and chhura (dagger) surrounded Birendra

Kumar Thakur, the deceased and started attacking him. It has further

stated that being attacked with bombs, pistol and chhura, the deceased

being injured fell down on the earth and died.

It is in this pretext, the allegation has been levelled that accused

Jattu Singh, Ashok Singh and Doman Karmali were assaulting the

informant’s brother with bomb and Bhim Singh, Umar Singh and

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Pavitra Singh were assaulting the deceased with chhura, while the

accused Mahendra Singh, Lalmohan Singh (since dead) and Pawan

Singh were attacking him with pistol.

It is further stated that the informant was flashing light with his

torch and started making the noise and after hearing the alarm, the

villagers rushed to the place of occurrence and saw the dead body.

It is further alleged that the informant recognized all the accused

persons in the light of his torch and the Devana Kumhar and Mathura

Singh who were accompanying had fled away after hearing the noise of

bomb.

The informant on such occurrence has reported the same before

the Police which was instituted as regular police case by instituting the

case under Sections 147, 148, 149, 341, 302 and 120B of the Indian

Penal Code and thereafter, investigation was started.

The investigation after having been completed, the charge-sheet

was submitted under Section 302/34 of the Indian Penal Code and after

cognizance having been taken, the case was committed to the Court of

Sessions. The case was transferred from the Court of Sessions for

disposal and accordingly, the concerned Court has started trial and after

examining all together 13 witnesses and on due consideration of the

exhibits, the judgment of conviction has been passed, which is the

subject matter of the instant appeal.

3. Mr. A.N. Deo, learned counsel appearing for the appellants has

raised the following grounds in assailing the judgment of conviction

and order of sentence:-

(i) The Investigating Officer has not been examined.

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(ii) No case has been instituted under the Explosive Substance

Act and the Arms Act, even though, there is specific allegation of

explosion of bomb and assault by the pistol by giving bullet injury.

(iii) No seizure of torch in the hand of the informant.

(iv) Not a single eye witness has been examined.

(v) The date of dispatch of FIR has not been mentioned.

(vi) The Chief Judicial Magistrate had seen the FIR after two

days but without any explanation.

(vii) Why the informant held up for whole night, there is no

explanation to that effect.

(viii) No material exhibit is available on record and even in

absence thereof, the judgment of conviction/sentence has been passed.

(ix) No reference of enmity/motive to conduct crime.

(x) Accused persons were in the house and as such, it is beyond

imagination that the accused after committing crime of murder will

remain in his house which disbelieves the prosecution story.

4. Learned Addl. P.P. for the State on the other hand has defended

the impugned judgment on the ground that:-

(i) The witnesses have disclosed the culpability of the appellants

by disclosing their names having with the arms/bomb/pistol.

(ii) The Investigating Officer although has not been examined in

this case but since it is a case of eye witness and as such, even the non-

examination of the Investigating Officer will not vitiate the prosecution

story as per the settled position of law that when the charge is being

proved on the basis of the testimony of eye witness, even though, the

Investigating Officer has not been examined, the trial will not vitiate.

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(iii) The testimony of eye witnesses had been found corroborated

from the inquest report, wherein, it has been referred about the

explosion of the bomb and recovery of the bomb articles like thread,

iron pellets and the broken glass, it goes to justify that accused persons

were having with the bomb and the bomb was exploded and as such,

the charge which has been levelled against the appellants of assaulting

the deceased by bomb and other ammunitions corroborated from the

seizure memo where the incriminating articles have been recovered and

basis upon which, the judgment of conviction/sentence has been passed

and as such, it cannot be said that there is no infirmity in the impugned

order.

5. It has been submitted that the ground which has been taken on

behalf of the appellants that since no case was instituted against the

Explosive and Substance Act or the Arms Act, the same will not vitiate

the charge, taking into consideration the fact that there is testimony of

the independent witnesses who have corroborated the prosecution story

by affirming the death caused due to assault given by the accused

persons.

6. It has further been submitted that it is incorrect on the part of the

appellants to take the ground that there is no eye witness having been

examined, while it would be evident from the testimony of the

informant, namely, Janardhan Kumar Thakur P.W.10, who had heard

the sound of two bombs explosion and thereafter, he rushed to the

place of occurrence and found there the dead body of Birendra Kumar

Thakur (deceased). The testimony of P.W.10, the informant has been

corroborated by P.W.6, namely, Rameshwar Thakur, the father of the

deceased and the same was supported by the version of the P.W.5 and

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P.W.7, namely, Ashok Kumar Sharma and Kanhai Sharma respectively

and as such, it is incorrect on the part of the appellants to take the

ground that testimony of P.W.10, P.W.5, P.W.6 and P.W.7 since

cannot be treated to be an eye witness but the same if taken together

with the injury sustained by the deceased and the recovery of the bomb

articles as available in the inquest report, the circumstances are there to

prove the culpability of the appellants and taking together the said

circumstances, the judgment of conviction/sentence, cannot be said to

suffer from an error.

7. It has been contended that merely because the Chief Judicial

Magistrate had seen the F.I.R. after two days without any explanation

or the date of dispatch of F.I.R. has not been mentioned, the entire

prosecution story cannot be allowed to be vitiated.

8. The issue of no material exhibit cannot be fit to be accepted as

has been agitated on behalf of the appellants that since the inquest

report, postmortem report and the F.I.R. have been marked as exhibits

and considering the same to be material exhibits, the judgment of

conviction/sentence was passed and as such, it is incorrect on the part

of the appellants to take the ground that there is no material exhibit.

9. Learned counsel for the appellants on the aforesaid ground has

submitted that judgment of conviction requires no interference.

10. We have heard learned counsel for the parties, perused the

finding recorded by the learned trial Court and gone through the

testimony of witnesses as available in the lower court record.

11. This Court, before appreciating the argument advance on behalf

of the parties and before considering the legality and propriety of the

finding recorded by the learned trial Court, deems it fit proper to

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consider the ground which has been taken on behalf of the appellants as

referred hereinabove by discussing the testimony of the witnesses in

order to consider the legality and propriety of the finding to assess as to

whether the charge which has been levelled against the appellants have

been found to be proved beyond all reasonable doubt by the

prosecution.

P.W.1, namely, Dewnandan Prajapati who has also disclosed as

Dewana Kumhar has stated that while he was going from the garage of

one Janardhan Mistry towards his residence, he saw Birendra Thakur

and Mathura Singh near Ghutuwa Mouza and met with them.

At about 7:00 to 7:30 p.m., Janardhan Thakur, one of the

accused had come from behind and has stated that they had gone to

their residence.

P.W.1 has been declared to be hostile. However, he has been

cross-examined and has corroborated his statement that Janardhan

Thakur had come from behind and in the morning of the following day,

he came to know that Birendra Thakur (deceased) was killed.

Bhogan Kumar has been examined as P.W.2 and he was the

witness to the seizure of torch and blood stained soil.

Mathura Singh has been examined as P.W.3. He has also been

declared to be hostile.

Basudeo Thakur has been examined as P.W.4. He has stated that

he had seen the dead body of Birendra Thakur full with blood. He has

also stated that the Janardhan Thakur had disclosed to him that Pawan

Singh, Jattu Singh, Janardhan Singh, Lalmohan Singh, Pavitra Singh,

Mahendra Singh, Doman Karmali, Bhim Singh and Ram Prasad Sinha

had surrounded him along with the deceased but he fled away and

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Birendra Thakur (deceased) was caught. He has stated that he had put

his signature in the seizure memo.

P.W.5, namely, Ashok Kumar Sharma is the formal witness.

Rameshwar Thakur has been examined as P.W.6 and has

corroborated about surrounding of the deceased as was said by

Janardan. He has stated that he rushed to the place of occurrence after

hearing alarm and hence, he is hearsay witness.

Kanhai Sharma has been examined as P.W.7 and has stated

about the disclosure of the occurrence by Janardhan Thakur. He is also

hearsay witness having reached after hearing sound of bomb blast and

saw there the body of the deceased having found hair burnt and there

was injury given by the knife blow on neck and chest.

P.W.8 and P.W.9, namely, Gauri Shankar Thakur and Bhagwanti

Devi respectively are also formal witnesses.

P.W.10, namely, Janardan Kumar Thakur, the informant, is the

eye witness and has corroborated the prosecution story. He has stated

that Doman Singh had assaulted Birendra Thakur by bomb and Bhim

Singh had given knife blow. Pawan Singh had also assaulted the

deceased. He, due to fear had fled away from the place of occurrence

and stood to a place at some distance. He has stated that before

assaulting, all the accused persons had surrounded the informant and

his brother. He has also stated that Ashok Singh, Doman Karmali and

Jattu Singh were having with bomb in their hand. He has also stated

that Bhim Singh, Doman Singh and Ishwar Singh were having with

knife (chhura). He has further stated that the Mahendra Singh, Pawan

Singh and Lalmohan Singh were having with the pistol. He, thereafter,

has stated that when he rushed to the place of occurrence then he has

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found that Birendra Thakur was dead. He has stated that the deceased,

namely, Birendra Thakur was the accused in the case of murder of

Jagat Narayan Singh but he was not an accused in the aforesaid case.

He has corroborated the fact about explosion of the bomb. He

has also corroborated the fact that bomb was assaulted upon the

deceased which hit in the back of the deceased Birendra Thakur due to

which he fell down while the deceased had sustained injury by third

bomb. He has also stated that Bhim Singh had given knife blow on the

neck of the deceased. He has also stated by giving description of the

place where he was standing and watching the occurrence which was at

nearby distance from his place.

Bimla Devi has been examined as P.W. 11 and she is the formal

witness.

P.W.13, the Doctor, namely, Dr. Hari Nandan Prasad has stated

in his testimony that he had conducted postmortem of the dead body of

Birendra Kumar Thakur and found the following injuries:-

“(i) Incised wounds over face of right cheek 1/2'' x 1/2'' x bone

deep & 1" x 1'' x bone deep, incised wounds.

(ii) Incised wounds (a) 1/2'' x 1/2'' x depth up to trachea (b) 1/2''

x 1/2'' x muscle deep right side (c) 1/2'' x 1/2'' x muscle deep right side.

(iii) Incised wound over the occipital bone 2'' x 1/2'' x bone

deep.

(iv) Multiple incised wounds over the chest (a) 1/2'' x 1/4'' x

muscle deep. (b) 1/2'' x 1/4'' x muscle deep. (c) 1/2'' x 1/4'' x muscle

deep. (d) 1/2'' x 1/4'' x muscle deep. (e) 1/2'' x 1/4'' x muscle deep. (f)

1/4'' x 1/4'' x muscle deep. (g) 1/2'' x 1/4'' x muscle deep. (h) 1/2'' x 1/4''

x muscle deep.

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(v) Incised wound over back 1/2'' x 1/4'' x bone deep.

(vi) Incised wound over the right forearm laterialy 2'' x 1/2'' x

muscle deep…… ……. …….”

He has also stated that time elapsed since death was within 24

hours. The cause of death was due to Shock & Hemorrhage, due to

above injuries caused by sharp cutting weapon may be Chhura.

In his cross-examination at paragraph-7, he has stated that there

is no sign of injury caused by bomb blast or pistol.

12. The learned trial Court has considered the testimony of P.W.10,

the informant, who while accompanying the deceased had seen the

appellants, namely, Jattu Singh, Ashok Singh and Doman Karmali

having with the bomb in their hand. Bhim Singh, Doman Singh and

Ishwar Singh were having with the chhura in their hand and Mahendra

Singh, Lalmohan Singh and Pawan Singh were having pistol in their

hand. He, however, has stated that immediately after explosion of

bomb, he fled away and witnessed the occurrence from nearby distance

and seen the accused persons assaulting the deceased. He has also

stated in his testimony that Bhim Singh had given knife blow. It has

stated in specific term by him that bomb was exploded there and there

was three explosion, one at the neck and another at the chest of the

deceased and thereafter the area was full with smoke and subsequently

when he rushed to the place of occurrence, he had found the dead body

of the deceased.

The aforesaid version of P.W.10, the informant has been

corroborated by the doctor by giving its opinion that the cause of death

was due to shock and hemorrhage caused by sharp cutting weapon may

be chhura.

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The inquest report and seizure memo, i.e., ext.3 and ext.2

respectively bear the content of the bomb, since, there is reference in

the aforesaid exhibits about blood stained soil, iron pellets, pieces of

glass, thread (suthli) and the pieces of paper.

The learned trial Court has considered the testimony of P.W.10

to be acceptable testimony after being corroborated with the testimony

of the doctor, the inquest report and seizure memo, wherein, the

reference of the particles of the bomb had been found having been

seized by the Investigating Officer. The torch having three cells had

also been seized as mentioned in the seizure memo, i.e., ext.2.

The testimony of P.W.10 has been agitated to be discarded by

making a submission on behalf of the appellants that he cannot be said

to be an eye witness since he had not seen the commission of crime,

reason being that it was his deposition that immediately after explosion

of bomb, he fled away from the place due to fear and as such, he

cannot be said to be an eye witness. But the said argument, according

to our considered view, cannot be said to be acceptable in view of the

reason that the testimony of P.W.10 regarding accompanying the

deceased has no-where been challenged on behalf of the defence by

putting any suggestion to that effect and as such, his presence along

with the deceased is being un-rebutted.

13. The issue of explosion of bomb due to which injury sustained by

the deceased has also not been rebutted since, there is no suggestion to

that effect having been made by the defence.

The issue of explosion of bomb is being corroborated with the

seizure of content of the bomb as mentioned in the seizure memo and

inquest report and as such, the testimony of P.W.10 cannot be

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discarded merely because he due to fear of explosion of bomb had fled

away from the place of occurrence and remained in a place at nearby

distance from where he had deposed that he had seen the occurrence.

The evidence of doctor goes to suggest that injuries were there

having been given by sharp cutting weapon (chhura). However, the

doctor had given its opinion that he had not found any assault given by

the bomb or pistol but if the aforesaid testimony will be considered by

taking together, the recovery of the bomb articles having been seized

by the Investigating Officer as would appear from the seizure memo

(ext.2) and inquest report (ext.3), the issue of explosion of bomb cannot

be said to have no substance.

The presence of all the accused persons is also not in dispute if

the testimony of P.W.10 will be considered along with the testimonies

of other witnesses, i.e., P.W.1 and P.W.3, however, they had been

declared to be hostile but some of the facts of the prosecution as

appeared in the fardbeyan have also been supported by these two

hostile witnesses.

P.W.3 in his examination-in-chief has stated that he met

Birendra Thakur (deceased) and P.W.1 Deo Nandan Prajapati in the

way. As such, P.W.1 and P.W.3 have also stated about explosion of

bomb and also presence of the informant, P.W.10 near the place of

occurrence.

14. The issue of consideration of testimony of hostile witnesses is

no-where in dispute that the testimony given by the hostile witnesses in

support of the prosecution story cannot be discarded, as has been

settled by the Hon’ble Apex Court in the case of Mrinal Das Vrs. State

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of Tripura, reported in (2011) 9 SCC 479, wherein at paragraph-67, it

has been held as under:-

“67. It is settled law that corroborated part of evidence

of hostile witness regarding commission of offence is

admissible. The fact that the witness was declared

hostile at the instance of the Public Prosecutor and he

was allowed to cross-examine the witness furnishes no

justification for rejecting en bloc the evidence of the

witness. However, the court has to be very careful, as

prima facie, a witness who makes different statements

at different times, has no regard for the truth. His

evidence has to be read and considered as a whole

with a view to find out whether any weight should be

attached to it. The court should be slow to act on the

testimony of such a witness, normally, it should look

for corroboration with other witnesses. Merely because

a witness deviates from his statement made in the FIR,

his evidence cannot be held to be totally unreliable. To

make it clear that evidence of hostile witness can be

relied upon at least up to the extent, he supported the

case of the prosecution. The evidence of a person does

not become effaced from the record merely because he

has turned hostile and his deposition must be examined

more cautiously to find out as to what extent he has

supported the case of the prosecution.”

15. The learned trial Court has considered the testimony of P.W.10

with the testimony of other witnesses about presence of the informant

along with the deceased and the story of occurrence coupled with the

medical evidence and came to the conclusive finding about proving of

charge beyond all reasonable doubt.

Admittedly in this case, the Investigating Officer has not been

examined but non-examination of the Investigating Officer always not

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prejudice the prosecution story, as has been held by the Hon’ble Apex

Court in the case of Raj Kishore Jha Vrs. State of Bihar & Ors.,

reported in (2003) 11 SCC 519, wherein, at paragraph-11, it has been

held as under:-

“11. Mere non-examination of the Investigating

Officer does not in every case cause prejudice to the

accused or affects the creditability of the prosecution

version. In Ram Dev v. State of U.P. [1995 Supp (1)

SCC 547 : 1995 SCC (Cri) 402 (2)] it was noted that

non-examination of the Investigating Officer does not

in any way create any dent in the prosecution case,

much less affect the credibility of otherwise

trustworthy testimony of the eyewitnesses. It was,

however, indicated that it is always desirable for the

prosecution to examine the Investigating Officer. In

the present case after examination-in-chief and

partial cross-examination, the Investigating Officer

had died. Therefore, this cannot be a case which can

be stated to have caused any prejudice to the accused

on account of the Investigating Officer's non-

examination. The prosecution cannot be attributed

with any lapse or ulterior motive in such

circumstances. In Behari Prasad v. State of

Bihar [(1996) 2 SCC 317 : 1996 SCC (Cri) 271] it

was held that a case of prejudice likely to be suffered

mostly depends upon facts of each case and no

universal straitjacket formula should be laid down

that non-examination of the Investigating Officer per

se vitiates the criminal trial. The said view has been

found echoed in Ambika Prasad v. State (Delhi

Admn.) [(2000) 2 SCC 646 : 2000 SCC (Cri) 522]

, Bahadur Naik v. State of Bihar [(2000) 9 SCC 153 :

2000 SCC (Cri) 1186] and Ram Gulam

Chaudhary v. State of Bihar [(2001) 8 SCC 311 :

2001 SCC (Cri) 1546 : JT (2001) 8 SC 110].”

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Likewise, the Hon’ble Apex Court in the case of Dinesh Yadav

Vrs. State of Jharkhand, reported in (2017) 5 SCC 764, wherein, at

paragraph-11, it has been held as under:-

“11. Injury 1 (grievous injury) corresponds to the

overt act of the appellant. Since the evidence of

eyewitnesses coupled with the evidence of the doctor

proves the case of the prosecution against the appellant

and as nothing was brought out in the cross-examination

of these witnesses so as to discard their evidence, the trial

court as well as the High Court are justified in relying

upon the evidence of these witnesses for coming to the

conclusion. Since the evidence of these witnesses has

remained unimpeached, and as there are no major

contradictions or omissions in the evidence of these

witnesses, the non-examination of the investigating

officer by the prosecution may not tilt the balance in

favour of the defence. It has not been shown what

prejudice has been caused to the appellant by such non-

examination. Similar view is taken by this Court as back

as in the year 2000 in Bahadur Naik v. State of

Bihar [Bahadur Naik v. State of Bihar, (2000) 9 SCC 153

: 2000 SCC (Cri) 1186 : AIR 2000 SC 1582] wherein it is

observed thus: (SCC pp. 154-55, para 2)

“2. The appellant has not been able to shake

the credibility of the eyewitnesses. No material

contradiction in the case of the prosecution has

been shown to us. Under these facts and

circumstances, the non-examination of the

investigating officer as a witness is of no

consequence. It has not been shown what

prejudice has been caused to the appellant by

such non-examination.”

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As mentioned supra, the injured had expired

prior to commencement of the trial of sessions

case. Hence, he could not be examined.”

16. The issue of causing prejudice due to non-examination of

Investigating Officer is to be tested depending upon the facts and

circumstances of the case and more particularly if the other testimonies

are there to establish the charge beyond all shadow of doubt.

Herein, the P.W.10, the informant, namely, Janardan Kumar

Thakur in specific terms had deposed about the culpability of the

appellants and as such, the same cannot be discarded merely because

the Investigating Officer has not been examined. Further, the inquest

report contains the reference of the seized articles so as also the seizure

memo has been proved, wherein, the particles of the bomb has been

found mentioned.

17. This Court, on the basis of the entirety of the facts and

circumstances of the case as discussed hereinabove is of the view that

since the testimony of P.W.10 has been found to be trustworthy

evidence and as such, merely because the Investigating Officer has not

been examined or no case under Explosive Substance Act or the Arms

Act have been instituted or the torch had not been seized and non-

reference of dispatch of F.I.R. and the perusal of the F.I.R. by the Chief

Judicial Magistrate after delay of two days without any explanation, it

cannot be said that the prosecution case will be allowed to be vitiated.

This Court is further of the view on the basis of the discussion

made hereinabove that it is incorrect on the part of the appellants to

raise the issue that there is no material exhibits, since, the exhibits are

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there, i.e., inquest report and the seizure memo, wherein, reference of

articles having been seized found mentioned.

Further ground to the effect that no reference of enmity/motive

to conduct crime has been disclosed but the fact which came in surface

on the basis of testimony of P.W.10 coupled with the statement of other

witnesses and corroborated by testimony of doctor, namely Dr.

Harinandan Prasad who had conducted the postmortem, the said

ground cannot be said to vitiate the entire prosecution story.

18. The defence has taken apart from the aforesaid ground that

chhura causes penetrating wound but the medical officer found incised

wounds on the person of the deceased and as such, the prosecution case

is not supported by the medical evidence but while with the same, the

learned trial Court has discarded the said submission on the ground that

chhura may cause penetrating wounds and the P.W. 13, the doctor has

stated that multiple incised wounds had been found but according to his

opinion, the injuries found were caused by chhura and in his evidence,

he has clearly mentioned that the injuries were caused by sharp cutting

weapon which may be chhura.

The learned trial Court has considered the deposition given by

him in the cross-examination, wherein, no question appears to have

been asked by the defence on this point as to how incised injuries were

caused by chhura.

19. This Court has considered the aforesaid finding and considering

the fact that even by chhura the incised injuries can be caused, since a

cut or incised would is produced by a sharp edge and usually longer

than it is deep. Because of sharp force mechanism of injury, incised

wounds lack tissue, breezing and often display, very clean sharp wound

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edges. Knives, box cutters, glass, metal typically caused incised

wounds.

This Court after considering the same and taking together the

nature of injury as reported by the doctor in his examination has found

therefrom the following injuries, i.e., (i) Incised wounds over face of

right cheek 1/2'' x 1/2'' x bone deep & 1" x 1'' x bone deep.

(ii) Incised wounds (a) 1/2'' x 1/2'' x depth up to trachea (b) 1/2''

x 1/2'' x muscle deep right side (c) 1/2'' x 1/2'' x muscle deep right side.

(iii) Incised wound over the occipital bone 2'' x 1/2'' x bone

deep.

(iv) Multiple incised wounds over the chest (a) 1/2'' x 1/4'' x

muscle deep. (b) 1/2'' x 1/4'' x muscle deep. (c) 1/2'' x 1/4'' x muscle

deep. (d) 1/2'' x 1/4'' x muscle deep. (e) 1/2'' x 1/4'' x muscle deep. (f)

1/4'' x 1/4'' x muscle deep. (g) 1/2'' x 1/4'' x muscle deep. (h) 1/2'' x 1/4''

x muscle deep.

(v) Incised wound over back 1/2'' x 1/4'' x bone deep.

(vi) Incised wound over the right forearm laterialy 2'' x 1/2'' x

muscle deep etc. and therefore, if the conclusion had been arrived at by

the doctor that such injuries had been caused by the sharp cutting

weapon which may be chhura and accepting the same, if the trial Court

has discarded the ground raised on behalf of the appellants that chhura

can only cause penetrating wounds and not the incised wounds, the

same suffers from no error.

20. The defence has also raised the issue of some contradiction and

infirmities in the evidence but merely because there is some

contradiction and discrepancies in the testimonies, the same cannot be

alone to vitiate the prosecution story, as has been held by the Hon’ble

- 19 -

Apex Court in the case of Mukesh Kumar Vrs. State (NCT of Delhi),

reported in (2015) 17 SCC 694, wherein, at paragraph-8, it has been

held as under:-

“8. While the slight difference in the initial version of

the prosecution and the FIR version has been

reasonably explained by the cross-examination of PW

6, it is our considered view that minor discrepancies,

embellishments and contradictions in the evidence of

the eyewitnesses do not destroy the essential fabric of

the prosecution case, the core of which remains

unaffected. Even if we have to assume that there are

certain unnatural features in the evidence of the

eyewitnesses the same can be reasonably explained on

an accepted proposition of law that different persons

would react to the same situation in different manner

and there can be no uniform or accepted code of

conduct to judge the correctness of the conduct of the

prosecution witnesses i.e. PWs 1 and 2. The relation

between PWs 5 and 6 and PWs 1 and 2 and the

deceased, in our considered view, by itself, would not

discredit the testimony of the said witnesses. There is

nothing in the evidence of PWs 1 and 2 which makes

their version unworthy of acceptance and their

testimony remains unshaken in the elaborate cross-

examination undertaken.”

Likewise, the Hon’ble Apex Court in the case of Shyamal

Ghosh Vrs. State of West Bengal, reported in (2012) 7 SCC 646,

wherein, at paragraphs-46 & 49, it has been held as under:-

“46. Then, it was argued that there are certain

discrepancies and contradictions in the statement of the

prosecution witnesses inasmuch as these witnesses have

given different timing as to when they had seen the

scuffling and strangulation of the deceased by the accused.

It is true that there is some variation in the timing given by

- 20 -

PW 8, PW 17 and PW 19. Similarly, there is some variation

in the statement of PW 7, PW 9 and PW 11. Certain

variations are also pointed out in the statements of PW 2,

PW 4 and PW 6 as to the motive of the accused for

commission of the crime. Undoubtedly, some minor

discrepancies or variations are traceable in the statements

of these witnesses. But what the Court has to see is whether

these variations are material and affect the case of the

prosecution substantially. Every variation may not be

enough to adversely affect the case of the prosecution.

49. It is a settled principle of law that the court should

examine the statement of a witness in its entirety and read

the said statement along with the statement of other

witnesses in order to arrive at a rational conclusion. No

statement of a witness can be read in part and/or in

isolation. We are unable to see any material or serious

contradiction in the statement of these witnesses which may

give any advantage to the accused.”

21. The learned trial Court on the basis of the aforesaid principle if

discarded the aforesaid submission, which according to our considered

view, cannot be said to suffer from an error.

22. The defence has also raised the ground of putting reliance upon

the interested witnesses, the same although has been discarded, which

according to our considered view, cannot be said to suffer from an

error because of the established principle of law that the evidence of a

related witnesses cannot be discarded only on the ground of

relationship.

The Hon’ble Apex Court in the case of Rupinder Singh Sandhu

Vrs. State of Punjab & Ors., reported in (2018) 16 SCC 475 has held

at paragraph-50 which reads as under:-

“50. The fact that PWs 3 and 4 are related to the

deceased Gurnam Singh is not in dispute. The existence

of such relationship by itself does not render the

evidence of PWs 3 and 4 untrustworthy. This Court has

repeatedly held so and also held that the related

witnesses are less likely to implicate innocent persons

- 21 -

exonerating the real culprits. [ See Rizan v. State of

Chhattisgarh, (2003) 2 SCC 661, p. 667, para 6 : 2003

SCC (Cri) 664“6. We shall first deal with the contention

regarding interestedness of the witnesses for furthering

the prosecution version. Relationship is not a factor to

affect credibility of a witness. It is more often than not

that a relation would not conceal the actual culprit and

make allegations against an innocent person.

Foundation has to be laid if plea of false implication is

made. In such cases, the court has to adopt a careful

approach and analyse evidence to find out whether it is

cogent and credible.”Also see, Dalip Singh v. State of

Punjab, AIR 1953 SC 364, p. 366, para 26 : 1953 Cri LJ

1465“26. A witness is normally to be considered

independent unless he or she springs from sources which

are likely to be tainted and that usually means unless the

witness has cause, such as enmity against the accused,

to wish to implicate him falsely. Ordinarily, a close

relative would be the last to screen the real culprit and

falsely implicate an innocent person. It is true, when

feelings run high and there is personal cause for enmity,

that there is a tendency to drag in an innocent person

against whom a witness has a grudge along with the

guilty, but foundation must be laid for such a criticism

and the mere fact of relationship far from being a

foundation is often a sure guarantee of truth.”]”

The Hon’ble Apex Court in the case of Shamim Vrs. State

(Government of NCT of Delhi), reported in (2018) 10 SCC 509 has

held at paragraph-9 which reads as under:-

“9. In a criminal trial, normally the evidence of the wife,

husband, son or daughter of the deceased, is given great

weightage on the principle that there is no reason for them not

to speak the truth and shield the real culprit. We see no

reason why the same principle cannot be applied when such a

witness deposes against a closely related accused. According

to normal human behaviour and conduct, a witness would

tend to shield and protect a closely related accused. It would

- 22 -

require great courage of conviction and moral strength for a

daughter to depose against her own mother who is an

accused. There is no reason why the same reverse weightage

shall not be given to the credibility of such a witness. PW 4 is

the daughter of the appellant. She has deposed that two days

prior to the occurrence the appellant had threatened the

witness to leave PW 1 else she would get his family members

killed. Soon after the occurrence having reached the house of

her in-laws she stepped out on the verandah. The appellant

who was standing on her own verandah told the witness that

she had got the deceased killed because the witness did not

listen to her and that her husband would be killed next. In

cross-examination she reiterated the same. The statement, in

our opinion, can be considered as a corroborative evidence

being a voluntary extra-judicial confession, considering the

nature of relationship between the witness and the appellant.”

The Hon’ble Apex Court again in the case of Rizan & Anr. Vrs.

State of Chattishgarh, reported in (2003) 2 SCC 661 has held at

paragraph-6 which reads as under:-

“6. We shall first deal with the contention regarding

interestedness of the witnesses for furthering the prosecution

version. Relationship is not a factor to affect credibility of a

witness. It is more often than not that a relation would not

conceal the actual culprit and make allegations against an

innocent person. Foundation has to be laid if plea of false

implication is made. In such cases, the court has to adopt a

careful approach and analyse evidence to find out whether it

is cogent and credible.”

The Hon’ble Apex Court in the case of Dalip Singh& Ors. Vrs.

State of Punjab, reported in 1954 S.C.R. 145, it has been laid down at

paragraph-26 as under:-

“26. A witness is normally to be considered independent

unless he or she springs from sources which are likely to be

tainted and that usually means unless the witness has cause,

such as enmity against the accused, to wish to implicate him

- 23 -

falsely. Ordinarily, a close relative would be the last to screen

the real culprit and falsely implicate an innocent person. It is

true, when feelings run high and there is personal cause for

enmity, that there is a tendency to drag in an innocent person

against whom a witness has a grudge along with the guilty,

but foundation must be laid for such a criticism and the mere

fact of relationship far from being a foundation is often a sure

guarantee of truth. However, we are not attempting any

sweeping generalisation. Each case must be judged on its own

facts. Our observations are only made to combat what is so

often put forward in cases before us as a general rule of

prudence. There is no such general rule. Each case must be

limited to and be governed by its own facts.”

The Hon’ble Apex Court in the case of Masalti Vrs. State of

U.P., reported in AIR 1965 SC 202, wherein, it has been held that the

evidence given by witnesses should not be discarded only on the

ground that it is evidence of partisan or interested witnesses.

…………The mechanical rejection of such evidence on the sole

ground that it is partisan would invariably would lead to failure of

justice. No hard and fast rule can be laid down as to how much

evidence should be appreciated. Judicial approach has to be cautious in

dealing with such evidence; but the plea that such evidence should be

rejected because it is partisan cannot be accepted as correct.

The Hon’ble Apex Court in the case of State of Punjab Vrs.

Jagir Singh & Ors., reported in (1974) 3 SCC 277 and Lehna Vrs.

State of Haryana, reported in (2002) 3 SCC 76, has dealt with “the

credibility of the related witnesses and the interested witnesses.”

It has been held that interested witness is a witness who is

vitally interested in conviction of a person due to enmity.

The “interested witness” has been defined by the Hon’ble Apex

Court in the case of Mohd. Rojali Ali & Ors. Vrs. State of Assam,

- 24 -

Ministry of Home Affairs through Secretary, reported in (2019) 19

SCC 567, wherein, it has been held at paragraph-13 and 14 which reads

as under:-

“13. As regards the contention that all the eyewitnesses are

close relatives of the deceased, it is by now well-settled that

a related witness cannot be said to be an “interested”

witness merely by virtue of being a relative of the victim.

This Court has elucidated the difference between

“interested” and “related” witnesses in a plethora of cases,

stating that a witness may be called interested only when he

or she derives some benefit from the result of a litigation,

which in the context of a criminal case would mean that the

witness has a direct or indirect interest in seeing the accused

punished due to prior enmity or other reasons, and thus has

a motive to falsely implicate the accused (for instance,

see State of Rajasthan v. Kalki [State of Rajasthan v. Kalki,

(1981) 2 SCC 752 : 1981 SCC (Cri) 593] ; Amit v. State of

U.P. [Amit v. State of U.P., (2012) 4 SCC 107 : (2012) 2

SCC (Cri) 590] ; and Gangabhavani v. Rayapati Venkat

Reddy [Gangabhavani v. Rayapati Venkat Reddy, (2013) 15

SCC 298 : (2014) 6 SCC (Cri) 182] ). Recently, this

difference was reiterated in Ganapathiv. State of

T.N. [Ganapathi v. State of T.N., (2018) 5 SCC 549 : (2018)

2 SCC (Cri) 793] , in the following terms, by referring to the

three-Judge Bench decision in State of

Rajasthan v. Kalki [State of Rajasthan v. Kalki, (1981) 2

SCC 752 : 1981 SCC (Cri) 593] : (Ganapathi

case [Ganapathi v. State of T.N., (2018) 5 SCC 549 : (2018)

2 SCC (Cri) 793] , SCC p. 555, para 14)

“14. “Related” is not equivalent to “interested”. A

witness may be called “interested” only when he

or she derives some benefit from the result of a

litigation; in the decree in a civil case, or in seeing

an accused person punished. A witness who is a

natural one and is the only possible eyewitness in

the circumstances of a case cannot be said to be

“interested.”

14. In criminal cases, it is often the case that the offence is

witnessed by a close relative of the victim, whose presence

on the scene of the offence would be natural. The evidence of

such a witness cannot automatically be discarded by

labelling the witness as interested. Indeed, one of the earliest

statements with respect to interested witnesses in criminal

cases was made by this Court in Dalip Singh v. State of

Punjab [Dalip Singh v. State of Punjab, 1954 SCR 145 : AIR

- 25 -

1953 SC 364 : 1953 Cri LJ 1465] , wherein this Court

observed: (AIR p. 366, para 26)

“26. A witness is normally to be considered

independent unless he or she springs from

sources which are likely to be tainted and that

usually means unless the witness has cause, such

as enmity against the accused, to wish to

implicate him falsely. Ordinarily a close relative

would be the last to screen the real culprit and

falsely implicate an innocent person.”

23. This Court, on the basis of the aforesaid position of law is of the

view that the mechanical rejection of testimony of witness even if

P.W.10, the informant of the given case is the brother of the deceased,

cannot be fit to be disallowed and if thoughtful consideration has been

given with respect to testimony of P.W.10, the informant by the learned

trial Court, the same according to our considered view, cannot be said

to suffer from an error.

24. It requires to refer herein the well settled principle of law that

the entire evidence is to be read as a whole.

The Hon’ble Apex Court in the case of Shyamal Ghosh Vrs.

State of West Bengal, reported in (2012) 7 SCC 646 has held at

paragraph-69, which reads as under:-

“69. Another settled rule of appreciation of evidence as

already indicated is that the court should not draw any

conclusion by picking up an isolated portion from the

testimony of a witness without adverting to the statement as

a whole. Sometimes it may be feasible that admission of a

fact or circumstance by the witness is only to clarify his

statement or what has been placed on record. Where it is a

genuine attempt on the part of a witness to bring correct

facts by clarification on record, such statement must be

seen in a different light to a situation where the

contradiction is of such a nature that it impairs his

evidence in its entirety.”

- 26 -

The Hon’ble Apex Court in the case of Bhagwan Jagannath

Markad & Ors. Vrs. State of Maharashtra, reported in (2016) 10 SCC

537 had held at paragraph-19 & 20 as under:-

“19. While appreciating the evidence of a witness, the court

has to assess whether read as a whole, it is truthful. In doing

so, the court has to keep in mind the deficiencies, drawbacks

and infirmities to find out whether such discrepancies shake

the truthfulness. Some discrepancies not touching the core of

the case are not enough to reject the evidence as a whole. No

true witness can escape from giving some discrepant details.

Only when discrepancies are so incompatible as to affect the

credibility of the version of a witness, the court may reject

the evidence. Section 155 of the Evidence Act enables the

doubt to impeach the credibility of the witness by proof of

former inconsistent statement. Section 145 of the Evidence

Act lays down the procedure for contradicting a witness by

drawing his attention to the part of the previous statement

which is to be used for contradiction. The former statement

should have the effect of discrediting the present statement

but merely because the latter statement is at variance to the

former to some extent, it is not enough to be treated as a

contradiction. It is not every discrepancy which affects the

creditworthiness and the trustworthiness of a witness. There

may at times be exaggeration or embellishment not affecting

the credibility. The court has to sift the chaff from the grain

and find out the truth. A statement may be partly rejected or

partly accepted [Leela Ram v. State of Haryana, (1999) 9

SCC 525, pp. 532-35, paras 9-13 : 2000 SCC (Cri) 222] .

Want of independent witnesses or unusual behaviour of

witnesses of a crime is not enough to reject evidence. A

witness being a close relative is not enough to reject his

testimony if it is otherwise credible. A relation may not

conceal the actual culprit. The evidence may be closely

scrutinised to assess whether an innocent person is falsely

implicated. Mechanical rejection of evidence even of a

“partisan” or “interested” witness may lead to failure of

justice. It is well known that principle “falsus in uno, falsus

- 27 -

in omnibus” has no general acceptability [Gangadhar

Behera v. State of Orissa, (2002) 8 SCC 381, pp. 392-93,

para 15 : 2003 SCC (Cri) 32] . On the same evidence, some

accused persons may be acquitted while others may be

convicted, depending upon the nature of the offence. The

court can differentiate the accused who is acquitted from

those who are convicted. A witness may be untruthful in

some aspects but the other part of the evidence may be

worthy of acceptance. Discrepancies may arise due to error

of observations, loss of memory due to lapse of time, mental

disposition such as shock at the time of occurrence and as

such the normal discrepancy does not affect the credibility of

a witness.

20. Exaggerated to the rule of benefit of doubt can result in

miscarriage of justice. Letting the guilty escape is not doing

justice. A Judge presides over the trial not only to ensure

that no innocent is punished but also to see that guilty does

not escape. [Gangadhar Behera case, (2002) 8 SCC 381, p.

394, para 17]”

The Hon’ble Apex Court yet in the case of State of Himachal

Pradesh Vrs. Raj Kumar, reported in (2018) 2 SCC 69 has held at

paragraph-16 as under:-

“16. While appreciating the evidence of a witness, the

approach must be whether the evidence of the witness

read as a whole appears to be truthful in the given

circumstances of the case. Once that impression is

formed, it is necessary for the court to scrutinise the

evidence more particularly keeping in view the

drawbacks and infirmities pointed out in the evidence

and evaluate them to find out whether it is against the

general tenor of the prosecution case. Jeewan Lal (PW

1) is the son of the deceased Meena Devi residing with

her and the accused in the same house, and a natural

witness to speak about the occurrence. Evidence of PW

1 is cogent and natural and is consistent with the

prosecution case. The High Court was not right in

doubting the evidence of PW 1 on the ground of alleged

- 28 -

improvements made by Jeewan Lal (PW 1) and

rejecting his evidence on the premise that there were

certain improvements.”

The Hon’ble Apex Court, again in the case of State of

Karnataka Vrs. Suvarnamma & Anr., reported in (2015) 1 SCC 323

has held that a criminal trial is a judicial examination of the issues in

the case and its purpose is to arrive at a judgment on an issue as to a

fact or relevant facts which may lead to the discovery of the fact in

issue and obtain proof of such facts at which the prosecution and the

accused have arrived by their pleadings; the controlling question being

the guilt or innocence of the accused. Since the object is to mete out

justice and to convict the guilty and protect the innocent, the trial

should be a search for the truth and not a bout over technicalities, and

must be conducted under such rules as will protect the innocent, and

punish the guilty. The proof of charge which has to be beyond

reasonable doubt must depend upon judicial evaluation of the totality

of the evidence, oral and circumstantial, and not by an isolated

scrutiny.

It is, thus, evident from the position of law as has been referred

hereinabove that if the evidence of the witness is read as a whole, then

from the co-joint reading of evidence of all the witnesses if it is clear,

then the charge as has been levelled is being proved, the minor

discrepancy is to be ignored.

25. This Court, therefore, is of the view that on the basis of the

discussion made hereinabove and considering the testimony of P.W.10,

the informant coupled with the testimony of the doctor, if the learned

trial Court has come to the conclusion that the prosecution has been

able to prove the charge beyond all shadow of doubt, which according

- 29 -

to our considered view, cannot be said to suffer from an error,

therefore, the instant appeal deserves to be dismissed.

26. This Court, after having passed the order as aforesaid has

considered the sentence and found therefrom that the order of sentence

to undergo rigorous imprisonment for the offence committed under

Section 302 read with Section 34 of the Indian Penal Code suffers from

infirmity, reason being that Section 302 provides that along with the

sentence of rigorous imprisonment, the fine is also mandatory to be

inflicted as would appear from Section 302 of the Indian Penal Code,

which reads as under:-

“302. Punishment for murder.-Whoever commits

murder shall be punished with death, or

[imprisonment for life], and shall also be liable

to fine.”

27. The trial Court while imposing the sentence has not considered

the mandatory provision as contained under Section 302 of the Indian

Penal Code and passed the order of sentence without inflicting any

fine, therefore, the order of sentence is modified to the extent that apart

from the sentence to undergo rigorous imprisonment for life, a fine of

Rs.5,000/- (Rupees Five Thousand) to each of the appellants, is hereby

imposed.

28. With the aforesaid modification in the order of sentence, the

instant appeal stands dismissed.

29. Consequent upon dismissal of the appeal preferred by the

appellants, since the appellants who are enjoying suspension of

sentence after the order being passed by this Court directed to release

them during pendency of the appeal, their bail bonds are cancelled and

- 30 -

they are directed to surrender before the learned trial Court who would

send them jail to serve out their remaining sentence.

30. Needless to say that if the appellants will not surrender, the trial

Court will take endeavours for securing custody to serve out their

remaining sentence and further secure that they deposit the amount of

fine so imposed by this Court.

31. Let the Lower Court Records be sent back to the Court

concerned forthwith, along with the copy of this Judgment.

(Sujit Narayan Prasad, J.)

I agree

(

Subhash Chand, J.)

(

Subhash Chand, J.)

Jharkhand High Court, Ranchi

Dated, the 31

st

January, 2023.

Rohit/-A.F.R.