C.A.V. JUDGMENT Out of total seven appellants, since appellant no. 1, namely, Triloki Singh and appellant no. 2, namely, Pashupati Singh are dead, the appeal against them has already been abated and appellant no. 6, namely, Pramod Singh since aged about 17 years at the time of recording of his statement under Section 313 of the Code of Criminal Procedure, a report was called for vide order dated 09th April, 2012 from the Juvenile Justice Board and the report indicates he has been declared juvenile. 2. This appeal has been preferred by the appellants. Against conviction of appellant no. 7, Baiju Singh for the offence under Sections 304 and 379 of the Indian Penal Code and sentence to undergo rigorous imprisonment respectively for ten years and six months and against conviction of appellant nos. 1 – 6 (out of whom appellant nos. 1 & 2 are now dead and appellant no. 6 declared juvenile) under Sections 304 read with Section 149 and Section 323 of the Indian Penal Code and sentence to undergo rigorous imprisonment respectively for ten years and three months by learned Sessions Judge, Vaishali at Hajipur on 03rd August, 1989 in Sessions Trial No. 179 of 1987 arising out of Bidupur P.S. Case No. 25 of 1987 and G.R. Case No. 443 of 1987. All such sentences are to run concurrently. 3. The prosecution case in short as reveal from Exhibit-1, the Fardbeyan of Sarswati Devi (PW-8) recorded by Assistant Sub-Inspector, Laldeo Singh (PW-11) at Bidupur hospital at about 11.55 hours on 12th February, 1987 is that in the morning at about 6.30 A.M., Baiju Singh (A-7) had been abusing the mother-in-law of the informant on the count of keeping some wastage adjacent to wall. The informant objected with assurance to remove the same, but Baiju Singh (A-7) started assaulting her mother-in-law by brick. On alarm raised, the husband of the informant, Siyaram Singh (deceased) arrived, then the appellants, namely, Triloki Singh (A-1), Jagarnath Singh (A-3), Bishwanath Singh (A-5) and Pramod Singh (A-6) armed with Lathi and Farsa by surrounding her husband started assaulting. Baiju Singh (A-7) gave Farsa blow on his head and rest of the accused persons started assaulting by Lathi and throwing bricks. On further alarm, the son of informant, Satyendra Singh (PW-6), daughter Sita Kumari (PW-7) and mother-in-law Deodhar Devi (not examined) tried to intervene in rescue, but all were assaulted. Baiju Singh (A-7) gave Farsa blow on his head and rest of the accused persons started assaulting by Lathi and throwing bricks. On further alarm, the son of informant, Satyendra Singh (PW-6), daughter Sita Kumari (PW-7) and mother-in-law Deodhar Devi (not examined) tried to intervene in rescue, but all were assaulted. The witnesses, Braj Kishore Singh (PW-4), Jagdeo Singh (PW-2), Lal Bihar Singh (PW-5), Upendra Singh (PW-1) and Ram Bilok Singh (PW-3) etc. arrived then, the miscreants left the place, but only after appellant no. 7, Baiju Singh snatched the golden chain worth Rs. 6,000/- from the neck of the informant. This Fardbeyan was attested by Braj Kishore Singh (PW-4). After, institution of completion of investigation, taking cognizance and commitment to Court of Sessions, the appellant no. 7, Baiju Singh was charged for the offence under Section 302 and 379 of the Indian Penal Code exclusively and also charged under Sections 302/149 and 323 of the Indian Penal Code along with other accused persons. 4. During trial, the prosecution side examined altogether twelve witnesses besides producing exhibits, such as :- Exhibit-1- Fard byan, Exhibit-2- Postmortem report, Exhibit-3- Fard Bayan, Exhibit-4- Formal F.I.R., Exhibit-5- Inquest report, Exhibit-6 to 6/4- Requisition, Exhibit-7 to 7/4- Injury report and Exibit-8- Entry dated 12.02.87 in the police information Register of P.H.C. Bidupur. 5. In the defence there is neither any oral nor documentary evidence, but from the trend of cross-examination and statement recorded under Section 313 of the Code of Criminal Procedure, the appellants have denied their complicity and alleged false implication. The trial court on consideration of the materials available on record instead of Section 302 of the Indian Penal Code convicted and sentenced the appellants in the manner aforestated. 6. On behalf of the appellants, it is contended that the prosecution has not been able to establish the charges against either of the appellants rather they have developed their case during trial since finding no injury caused by sharp cut weapon i.e. Farsa, as alleged by the prosecution on the head of the deceased, who simply sustained single injury by hard and blunt substance. Thus, the entire manner of occurrence and use of weapons etc. is doubtful. Simultaneously, without any explanation they have not examined the mother of the deceased and one of the injured and alleged eye-witness right from initiation of the occurrence. Thus, the entire manner of occurrence and use of weapons etc. is doubtful. Simultaneously, without any explanation they have not examined the mother of the deceased and one of the injured and alleged eye-witness right from initiation of the occurrence. In the alternative, it is also contended that on being inspired with the decision of Hon’ble Apex Court in a case of “Mohinder Pal Jolly Versus The State of Punjab reported in “(1979) 3 Supreme Court Cases 30”, that in case the conviction of the appellants is not interfered with, their sentences may be reduced as already undergone. 7. PW-1, Upendra Singh has come to say that at the relevant time when he was returning after natural call arrived at the door of the deceased found Triloki Singh, Jagarnath Singh, Baiju Singh, Bishwanath Singh, Pashupati Singh and Pramod Singh and Baiju Singh (A-7) was armed with Farsa and rests with Lathi and the deceased arrived from the northern side and was surrounded and the appellant Baiju Singh gave Farsa blow on his head and here he has developed the case with specifically saying that he turned Farsa and assaulted by its back portion and the deceased after being injured fell down. Thereafter, Bishwanath Singh (A-5) assaulted by brick and remaining by brick pieces and all started going away treating him dead but when the wife, son and daughter of Siyaram Singh (deceased) arrived, the miscreants also assaulted them. This witness is not only silent about Badri Singh (A-4), but also rules out presence of informant since before the occurrence as per the prosecution version and also rules out the presence of mother of the deceased at any point of time. In cross-examination in paragraph- 4, he says that for the first time when he saw the armed accused persons they were at the Bathan of appellant no. 1, Triloki Singh and the deceased, Siyaram Singh was not present there, but when he arrived from the northern side then the miscreants arrived near him with arms and without any talk with him or giving him any opportunity to flee he was surrounded. Attention of this witness was drawn towards earlier statement recorded under Section 161 of the Code of Criminal Procedure where he was not stated about the assault of the deceased by back portion of the weapon. Attention of this witness was drawn towards earlier statement recorded under Section 161 of the Code of Criminal Procedure where he was not stated about the assault of the deceased by back portion of the weapon. In cross-examination in paragraph- 5, he states about brick batting while the deceased was lying after sustaining injury on the head and also brick batting upon his family members by the miscreants. 8. PW-2 is Jagdeo Singh, who was initially at his house where the deceased was also sitting, suddenly on information received from Braj Kishore Singh (PW-4) about quarrel between the kids, the deceased left the place followed by the witnesses and when arrived opposite Bathan of Triloki Singh (A-1), he was surrounded there by all the appellants, who were armed with Lathi and Farsa and Baiju Singh (A-7) assaulted him by means of Farsa, he fell down, thereafter, Bishwanath Singh (A-5) gave him 3 – 4 Lathi blows and when his children started crying, they were also assaulted by the miscreants. During the occurrence, the mother, wife, daughter and son of the deceased also assaulted and by fleeing appellant no. 7, Baiju singh snatched the golden chain from the neck of the informant. Towards end of his examination-in-chief, he says that the injuries sustained were by back portion of Farsa. In cross-examination, this witness is specific about house of the deceased adjacent east to the Bathan of Triloki Singh (A-1), but this falsifies his submission of change of place of occurrence from opposite house of the deceased to Bathan of appellant since both are adjacent. In cross-examination in paragraph- 4, he is specific about that the deceased was coming from the passage at the northern side of his house and arrived at the eastern side, which is adjacent south to Bathan of Triloki Singh (A-1), Ram Lagan and Ram Prasad and Braj Kishore Singh (PW-4) was not there rather he arrived at the place of occurrence. He further says that after sustaining Farsa injury there was some bleeding and he was not in a position to say as to whether any blood falling on the earth or not. He further says that after sustaining Farsa injury there was some bleeding and he was not in a position to say as to whether any blood falling on the earth or not. In paragraph- 6 his attention was drawn towards his statement recorded under Section 161 of the Code of Criminal Procedure and he asserts that before the Investigating Officer he also stated about the assault by back portion of Farsa, but this submission is falsified by the statement of the Investigating Officer, Laldeo Singh (PW-11) in paragraph- 10 of the deposition. 9. PW-3, Ram Bilok Singh, was at the relevant time in his field just opposite house of the deceased. He has stated about the occurrence since beginning during which the deceased sustained injury on the head by Farsa blow given by Baiju Singh (A-7) followed by Lathi blows of Bishwanath Singh (A-5) and others also thrown some brick chips. In cross-examination in paragraph- 6, he says about the appellants, just on arrival of the deceased going inside their house and Baiju Singh (A-7) first came out, given Farsa blow followed by Bishwanath Singh (A-5) assaulting by Lathi and Triloki Singh (A-1) throwing brick-chiefs and further he states his ignorance about crack on the head of the deceased caused whether by Farsa, Lathi or brick-batting. His attention in paragraph- 7 have been drawn towards his statement before the Investigating Officer and he asserts about assault by Bishwanath Singh (A-5) after falling of the deceased, but this statement remain unsubstantiated from the statement of the Investigating Officer (PW-11) in paragraph-11. 10. PW-4 is Braj Kishore Singh, who is not an eye-witness, but simply attesting witness to the First Information Report, who arrived at the seen after the occurrence taken place. PW-5 is Lal Bihar Singh, tendered for cross-examination, but there is nothing to comment on his behalf. Similar is the position of PW-7, Sita Kumari, one of the injured-cum-witness. 11. 10. PW-4 is Braj Kishore Singh, who is not an eye-witness, but simply attesting witness to the First Information Report, who arrived at the seen after the occurrence taken place. PW-5 is Lal Bihar Singh, tendered for cross-examination, but there is nothing to comment on his behalf. Similar is the position of PW-7, Sita Kumari, one of the injured-cum-witness. 11. PW-6 is Satyendra Singh, son of the deceased and informant, who at the relevant time was at his Bathan and on alarm raised arrived and found Baiju Singh (A-7) armed with Farsa and Bishwanath Singh (A-5) armed with Lathi and rest of the accused persons with Lathi and bricks and all assaulted his father, wherein, Baiju Singh assaulted on the head followed by Bishwanath Singh by Lathi and when his father fell down, Bishwanath Singh (A-5) given repeated blows, but rest only assaulted by bricks and when the witnesses, the mother, grand-mother and sister intervened in rescue they were also assaulted by slaps and fists. The occurrence was seen by the other witnesses besides several villagers and while fleeing Baiju Singh (A-7) taken away the golden Hasunli (chain) of his mother. The deceased in the injured state with the help of co-villagers brought to the hospital from where he was referred to Patna, but ultimately, declared dead. In cross-examination in paragraph- 4, according to this witness when he arrived at the place of occurrence, the accused persons had been assaulting his father and he is not in a position to say as to who was armed with Lathi and who was with bricks and while his father was restless, Bishwanath Singh (A-5) given him 10 – 12 Lathi blows and when he stopped, others started giving Lathi and brick blows. He is not in a position to say, who assaulted his mother, sister and grand-mother. 12. PW-8, Sarswati Devi (informant) stated prosecution version with only development that Farsa caused injury from its back portion. In cross-examination she states about her mother-in-law aged about hundred years and for last about ten years she is in ailing state. This explains a lot her non-examination. Further, none of the witnesses examined so far have said about sustaining any specific injury by her. In paragraph- 5 of the cross-examination, she speaks that her husband after sustaining injures at the hands of appellant nos. This explains a lot her non-examination. Further, none of the witnesses examined so far have said about sustaining any specific injury by her. In paragraph- 5 of the cross-examination, she speaks that her husband after sustaining injures at the hands of appellant nos. 5 and 7 fell down and, thereafter, no Lathi blow was given to him, but only there was brick batting and when this witness, her mother-in-law, daughter and son intervened in rescue, Baiju Singh (A-7) given Lathi blow upon her and also snatched golden chain. She further stated about shifting of her husband from Bidupur to Patna, where he was examined by the doctor at Rajendra Nagar and no surgery was done in the hospital. She further states that none of the miscreants had Bhala. In paragraph- 7, she speaks that in the Fardbeyan she has got recorded that assault was given by back portion of Farsa, but it appears contrary to the Fardbeyan and in the same paragraph about her different statements attention was drawn, but at the time of examination of the Investigating Officer as PW-11 nothing appears placed before him, so whenever she appears stated in paragraph-7 about her statement before the Investigating Officer remains un-contradicted. 13. PW-9, Vishwanath Prasad is Investigating Officer of subsequent part, who simply submits the charge-sheet. And PW-10 is Dr. Ram Krishna Prasad Singh, who holding autopsy on the body of the deceased and has found following ante-mortem injury :- (i) Stitched wound of size 2 ½ “x ½”x bone deep was found placed horizontally on the right side of skull. (ii) Massive haematoma underneath the skull was found on the right temporal parietal and right side of the occipital region of skull. (iii) Depressed and communited fracture of size 3”x1” was found on the right side of the skull involving the right temporal and right parietal bone. (iv) Massive extra-dural and sub-dural haematoma was found on the right tempo-parietal region of brain surface. (v) The brain was lacerated on the right side. Opinion :- The time elapsed since death and post-mortem examination was within 24 hours approximately. Death was due to head injury. Opinion regarding nature weapon could not be given due to surgical interference. The above injuries was sufficient to cause death in-ordinary course of nature. Further, he expressed his inability to opine anything regarding the nature of weapon due to surgical interference. Death was due to head injury. Opinion regarding nature weapon could not be given due to surgical interference. The above injuries was sufficient to cause death in-ordinary course of nature. Further, he expressed his inability to opine anything regarding the nature of weapon due to surgical interference. And proved postmortem report (Exhibit-2), but in cross-examination and re-examination on recall, he says that there is nothing in the postmortem report about injures being sufficient to caused death in ordinary course of nature or the deceased was operated at P.M.C.H., Patna. 14. PW-11 is Laldeo Singh, the Investigating Officer, who proved Exhibits- 3 - 6 series. But lastly, PW-12 is Dr. Girindra Shekhar Singh, who examined the deceased and injuries at the first site and found following injuries and proved Exhibits- 7 - 7/4 :- (i)Siyaram Singh (deceased) – (i) Lacerated wound placed horizontally right side of head of size 2 ½ “x ½”x skin deep caused by hard blunt substance such as blunt portion of Farsa. The patient was referred for further treatment and X-ray of the wound to P.M.C.H. on 13.01.89. Injury was caused within 3-4 hours. (ii)Satyendra Singh (PW-6) – (i) Swelling and tenderness on left (below) knee joint. The injury was simple caused by hard blunt substance such as brick-bats and lathi. Age within 2to3 hours. (iii)Sita Kumari (PW-7) – (i) Scratch mark on right ankle joint caused by hard blunt substance such as brick-bats and lathi. The size of the injury was ½” in diameter. (ii) Swlling and tenderness on right feet caused by hard blunt substance such as brick-bats and lathi of size ½ x 1”. Both the injuries were simple in nature and caused within 23 hours. (iv) Sarswati Devi (PW-8) – (i) Swelling and tenderness on the left side of back caused by hard blunt instrument of size 2”x1”. (ii) Swelling and tenderness on left knee joint caused by hard blunt substance such as lathi and brick bats. Both the injuries were simple nature and caused within 2-3 hours of my examination. (v) Deodhar Devi (not examined) – (i) Scratch mark on right arm caused by hard blund substance ½” in diameter. (ii) Scratch mark on right ankle joint by hard blunt instrument. Size ½” in diameter. Both the injuries were simple in nature and could be caused by brick bats or lathi within 2-3 hours of my examination. (v) Deodhar Devi (not examined) – (i) Scratch mark on right arm caused by hard blund substance ½” in diameter. (ii) Scratch mark on right ankle joint by hard blunt instrument. Size ½” in diameter. Both the injuries were simple in nature and could be caused by brick bats or lathi within 2-3 hours of my examination. As regard to injury upon the body of the deceased in cross-examination, he says in case of laceration blood is bound to come out. Blood starts clotting after 10-20 minutes, but he has not mentioned in his report about clotting of blood, had it been he ought to have mentioned. Further, Farsa contains either concave or convex blade and its back side can be either plain, rectangular or circular. 15. From the careful consideration of the statements of the witnesses aforementioned, it appears that except appellant nos. 5 and 7, none carrying any specific allegation of having active participation in the occurrence and assault to the deceased or any one else. The two injured PW-6, Satyendra Singh and PW-8, Sarswati Devi (informant) are also not specific, who assaulted and by what means to the four injured rather she states appellant no. 7 as her assailant, but he appears not convicted for such offence and injury or postmortem report of deceased also does not support sustaining any injury by the deceased at their instance. 16. There is no material to establish participation or active participation of remaining appellants, Jagarnath Singh, Badri Singh and Pramod Singh. So, their conviction for the offence under Section 304 read with Section 149 or Section 323 of the Indian Penal Code cannot be said sustainable. Likewise, appellant no. 5, Bishwanath Singh also has not been charged under Section 323 of the Indian Penal Code for assaulting anyone else than the above four injured persons. Hence, his conviction also under Section 323 of the Indian Penal Code is not sustainable. 17. Now remains conviction and sentence of appellant no. 5, Bishwanath Singh for the offence under Section 304 read with Section 149 of the Indian Penal Code and appellant no. 7, Baiju Singh for the offence under Sections 304 and 379 of the Indian Penal Code. 18. The witnesses examined on the occurrence in their earlier statements recorded under Section 161 of the Code of Criminal Procedure have clearly stated that appellant no. 7, Baiju Singh for the offence under Sections 304 and 379 of the Indian Penal Code. 18. The witnesses examined on the occurrence in their earlier statements recorded under Section 161 of the Code of Criminal Procedure have clearly stated that appellant no. 7, Baiju Singh gave Farsa blow upon the head of Siyaram Singh (deceased), but during trail in their examination-in-chief they have developed the prosecution case by saying that it was the back portion of Farsa which caused injury or while assaulting, appellant no. 7, Baiju Singh turned Farsa making the same capable to inflict injury from its back side alone not from the front i.e. edged side giving room to learned counsel for the appellants to submit the changes being not acceptable since it is just to make the medical evidence corroborating and to support the submission, the learned counsel placed reliance upon a decision of Hon’ble Apex Court in a case of “Thaman Kumar Versus State of Union Territory of Chandigarh” reported in “(2003) 6 Supreme Court Cases 380”, wherein paragraph – 16 reads as such:- “16. The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possibly by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injures found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eyewitnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straight away be drawn. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straight away be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony.” 19. It is true that normally Farsa is deemed and treated as a sharp edge weapon, but its back portion also can inflict injuries, of course, there shall be a sharp difference between the natures of injuries. The back portion of the Farsa is nothing but a hard blunt substance, so it cannot be said that by means of Farsa injuries sustained cannot be said to be caused by hard and blunt substance only, requirement is, such infliction, by its back portion, but in the instant case throughout in the investigation the witnesses were silent about use of back portion of the weapon. 20. Furthermore, there is consistent evidence that appellant no. 5, Bishwanath Singh assaulted the deceased by Lathi on his head and the witnesses are not sure which of the injuries caused either by the back portion of Farsa or by Lathi blow given by Bishwanath Singh (A-5) proved fatal to the deceased. 21. On taking into consideration the prosecution evidence, it appears that appellant no. 7, Baiju Singh during assault at his own turned Farsa just to cause injury by its back portion. His intention may be gathered not to kill or inflict any fatal injury upon Siyaram Singh (deceased) while assaulting first, but the following Lathi blow given by appellant no. 5, Bishwanath Singh, might have made the injury sustained more graver and fatal. The intention of appellant no. 5, Bishwanath Singh using Lathi also indicates his intention may or may not be to do what ultimately resulted. 22. The doctor, who examined the deceased for the first time, he was alive, found simple single injury on his head, which also creates a doubt against inflicting injury by two persons by two weapons of different or even of same nature. 22. The doctor, who examined the deceased for the first time, he was alive, found simple single injury on his head, which also creates a doubt against inflicting injury by two persons by two weapons of different or even of same nature. He died during treatment, after some surgery, but none has come to explain such sort of treatment, so possibility of death due to any delay or negligence during treatment also cannot be completely ruled out. 23. Thus in absence of anything specific it appears difficult to hold these two appellants (nos. 5 & 7) guilty for the offence under Sections 304 or 304 read with Section 149 of the Indian Penal Code sustainable. Further, the two persons only cannot constitute an unlawful assembly, so conviction of appellant no. 5, Bishwanath Singh with help of Section 149 of the Indian Penal Code is further not sustainable rather respectively appellant nos. 5 and 7, namely, Bishwanath Singh and Baiju Singh may be guilty for inflicting injury upon the deceased, one simple by means of Lathi and another by a deadly weapon (back portion), so offence under Sections 323 and 324 of the Indian Penal Code. 24. At the same time, in view of consistent evidence against appellant no. 7, Baiju Singh about snatching of golden chain of the informant, there is nothing to interfere in his conviction for the offence under Section 379 of the Indian Penal Code. Thus, appellant no. 7, Baiju Singh is found guilty for the offence under Sections 324 and 379 of the Indian Penal Code, whereby, appellant no. 5, Bishwanath Singh for the offence under Section 323 of the Indian Penal Code and their sentence is reduced as sentence undergone. 25. In the result, the conviction and sentence with respect to appellant nos. 3, 4 and 6, namely, Jagarnath Singh, Badri Singh and Pramod Singh, is set-aside and the appeal with respect to them is allowed. But with the above stated modification in conviction and sentence with respect to appellant nos. 5 and 7, namely, Bishwanath Singh and Baiju Singh, the appeal is dismissed.