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TMI Blog2000 (4) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... e the informant was getting his field ploughed by a tractor which he had hired from PW 5 these appellants and others came and asked the informant party not to plough the field but when the informant protested he was abused and then accused No. 1 assaulted him by means of Bhala on his abdomen whereas accused No. 2 assaulted him on his chest. Deceased Kameshwar who was the nephew of the informant was assaulted by accused No. 1 in his abdomen and thereafter all the accused persons assaulted him. The prosecution also further alleged that brother of the informant Banwari Singh had also been assaulted by accused Nos. 7, 1 and 2 and the acquitted persons assaulted him by means of lathi. It is also the further case of the prosecution that PW 7 who is the nephew of the informant had also been assaulted. On the basis of the aforesaid First Information Report Sub Inspector of Police PW 9 registered a case and started investigation. The Investigating Officer went to the village and held the inquest over the dead body at 9.45 p.m. and prepared an Inquest Report Exhibit 7. The dead body was sent for autopsy which was conducted by doctor PW 3. The said doctor had also examined the injuries on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ocular evidence of four eye witnesses, namely, PWs. 2, 4, 7 and 8 of whom PWs 7 and 8 had been injured. He had also relied upon the evidence of the doctor-PW3 who was posted at Sadar Hospital, Chapra and who had conducted the autopsy on the dead body of deceased Kameshwar and had submitted the post mortem report Exhibit 2 and who had also examined the injured persons. The Sessions Judge convicted the appellants under Section 302/34 IPC and sentenced them to imprisonment for life. They were also convicted by the Sessions Judge under Section 307 and sentenced to imprisonment for 7 years and for their conviction under Section 324 they were sentenced to undergo R1 for one year. The High Court in appeal has affirmed the conviction and sentence of the appellants on all three counts. It may be staled at this stage that since 9 accused persons stood their trial facing a charge under Section 302/149 IPC the Sessions Judge discussed the evidence of the prosecution witness, more particularly, PWs 2 and 7 and came to the conclusion that at no point of time five accused persons had come together and, therefore, the necessary ingredients for formation of unlawful assembly having the common obj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot under Section 302 but under Section 304 Part I Indian Penal Code. (iv) Even taking the prosecution case in toto accused Triloki cannot be held liable by attracting Section 34 in view of the fact that there is no material to indicate that Rajender assaulted the deceased in furtherance of common intention shared by him and Triloki. Mr. B.B. Singh, learned Counsel appearing for the State on the other hand contended, that in the facts and circumstances of the case non-explanation of injury on Rajender cannot be held to be fatal, more so, when the oral testimony of the four eye witnesses has been found to be trustworthy. He further contended that the former statement of Satyanarain has not been confronted to him while he was examined as PW 8, and therefore, the provisions of Section 145 of the Evidence Act has not been complied with, and in this view of the matter the said document cannot be relied upon. He has also contended that even in the said statement Rajender assaulted deceased Kameshwar with Bhala had been stated, and therefore, the entire prosecution case cannot be said to be a concocted one. According to Mr. Singh the very fact that accused persons went to their adjacent la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused persons. But in Lakshmi Singh v. State of Bihar 1976 CriLJ 1736, this Court considered Mohar Rai (Supra) and came to hold that non-explanation of the injuries on the accused by the prosecution may affect the prosecution case and such 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. The question was considered by a three Judge Bench of this Court in the case of Vijayee Singh v. State of U.P. 1990 CriLJ 1510: 1990 CriLJ 1510, and this Court held that if the prosecution evidence is clear, cogent and creditworthy and the Court can distinguish the truth from the 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 and much depends on the facts and circumstances of each case. In Vijayee Singh's case (supra) the Court held that non-explanation of injury on the accused person does not affect the prosecution case as a whole. 5. This question again came up before a three Judge Bench recently in case of Ram S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the necessary particulars of the former statement has been put to the witness in cross-examination then notwithstanding the fact that the provisions of Section 145 of the Evidence Act is not complied with in letter i.e. by not drawing the attention of the witness to that part of the former statement yet the statement could be utilised and the veracity of the witness could be impeached. According to Mr. Mishra the former statement of PW-8 which has been exhibited as Exhibit B was to the effect that Kameshwar was assaulted with Bhala by Rajender and Surender and he did not see whether any other person had been assaulted or not, whereas in course of trial the substantive evidence of the witness is that it is Rajender and Triloki who assaulted the deceased and, therefore, it belies the entire prosecution case. The question of contradicting evidence and the requirements of compliance of Section 145 of the Evidence Act has been considered by this Court in the Constitution Bench decision in the case of Tahsildar Singh and Anr. v. The State of Uttar Pradesh 1959 CriLJ 1231. The Court in the aforesaid case was examining the question as to when an omission in the former statement can be h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to what he stated before the Magistrate. In this state of affairs it is difficult for us to hold that the provisions of Section 145 of the Evidence Act has been complied with in the case in hand. Then again, so far as accused Rajender is concerned, there has been no variance in his so-called former statement Exhibit B and his statement in the Court when he was examined as PW-8 clearly asserting that Rajender assaulted the deceased Kameshwar by means of Bhala. In the aforesaid premises, we are unable to accept the second submission of Mr. Mishra and the same accordingly stands rejected. 7. So far as the third contention of Mr. Mishra is concerned, the question for consideration would be as to whether the ingredients of Exception 4 to Section 300 of the Indian Penal Code can be said to have been satisfied? The necessary ingredients of Exception 4 to Section 300 are: (a) a sudden fight; (b) absence of pre-meditation (c) no undue advantage or cruelty, but the occasion must be sudden and not as a cloak for pre- existing malice. It is only an un-premeditated assault committed in the heat of passion upon a sudden quarrel which would come within Exception 4 and it is necessary that all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reciation of the evidence came to the conclusion that there had been no unlawful assembly nor there was any common object to cause assault or murder of deceased Kameshwar. From the evidence of PW-8 it is apparent that while he was on Plot No. 4513 Rajender Singh, Prabhu Nath and Ramdev reached near PW-8 and told him not to plough the field at that point of time the accused persons had no arms with them. It is further apparent that there was altercations between the prosecution party, more particularly PW-8 and the accused persons and that the accused persons picked up some weapon and assaulted Kameshwar as well as other persons injured. It is further established that in course of the occurrence accused Rajender sustained a grievous injury. The said evidence of PW-8 also indicates that Kameshwar himself was armed with a Farsa while Ramdev Singh, Surender, Kishun Pandit and Rudal Singh were armed with lathis and when Rajender Singh gave a lalkara Prabhunath Jagnarain and Kishun Pandit assaulted PW-8. It is under these circumstances when Triloki Singh has been ascribed to have given a blow on the leg of the deceased. It is difficult to hold that he also shared the common intention wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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