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Judgment
S.N. Jha and B.N.P. Singh, JJ.—The dead body of one Sona Ram of village Sahpur Bisunpura, Police Station Barauli, District Gopalganj, was found on the outskirts of the village in the morning of 29th March, 1981. His son, Lallan Ram was informed by a co-villager, Bhukhal Ram, that a dead body was lying near the mahua tree. Lallan Ram went there and identified the body as that of his father Sona Ram. identification was made on the basis of wearing apparel. The body was without head and major part of it from neck upto pelvis was found eaten away by the birds and animals. At 4 p.m. the same day, Lallan Ram gave fardbeyan before the S.I. Digambar Jha, Officer-in-charge of Bishunpura Police Station stating that on the preceding night, he and his father went to bed at about 8 p.m. after supper. They kept on separate cots. At 12 midnight when he woke up to answer the call of nature he found his father sleeping on the adjacent cot. However, when he woke up in the morning, he did not find him there. He made a search but without success. At 10 a.m., he was informed by Bhukhal Chamar or Ram) that a dead body was lying near the mahua tree. He went there and identified it to be that of his father, as indicated above. Lallan Ram suspected the hand of Appellant Lakhi Ram as there was some dispute relating to tapping of toddy and there had been altercation about a year ago.
On the abovesaid fardbeyan of Lallan Ram, the Police instituted the case against unknown. S.I. Diagambar Jha took for investigation, prepared the inquest report, recorded statement of witnesses, sent the dead body for post mortem examination and after completing other formalities, submitted charge sheet against the Appellants.
At the trial, the prosecution examined ten witnesses in all to prove its case. One of them, P.W. 4 Phulmatia, wife of the deceased, was tendered while Bhukhal Ram examined as P.W. 6 turned hostile. P.W. 9 Raj Narayan Rai and P.W. 10 Birendra Shukla were examined as formal witnesses who proved the first information report and the inquest report, respectively. The material witnesses are P.W. 1 Lallan Ram, the informant himself, P.W. 2 Sheo Ram, brother-in-law of the deceased, and P.W. 3 Bachchi Devi, wife of P.W. 2 and sister of the deceased. Amongst them P.W. 2 Sheo Ram claimed to be eye witness to the occurrence. The remaining witnesses are official witnesses, namely, P.W. 5 Dr. Mundrika Prasad, who held autopsy on the dead body of the deceased, P.W. 7 Dr. Dharmdeo Narayan, who claimed to have examined the injury of P.W. 2 on 9.4.1981, and P.W. 8 Shiv Shankar Prasad Verma, a Judicial Officer, who had recorded the statement of P.W. 2 Sheo Ram u/s 164 of the Code of Criminal Procedure on 10.4.1981. The trial court also examined two witnesses as Court witnesses, namely, C.W. 1 Baijnath Shahi, who proved the case diary and C.W. 2 Digambar Jha, the Investigating Officer.
At the end of the trial, the trial court convicted the Appellants u/s 302 of the Indian Penal Code (IPC) and awarded sentence of imprisonment for life. Besides, they were also convicted u/s 323 IPC for which they were awarded sentence of one year''s rigorous imprisonment. The sentences were to run concurrently.
On behalf of the Appellants, appearing as amicus curiae, Shri Akhauri Baidyanath Prasad made the following submissions. The trial court framed charge against the Appellants u/s 302/ 34 IPC but convicted them u/s 302 IPC simipliciter, which is not permissible. Appellants Sahebjan Mian and Bijali Ram are alleged to have given bhala blow on the deceased but no such injury was found on the dead body of the deceased. In fact, the doctor failed to reach any conclusion about the cause of death. The prosecution also failed to prove the time of death inasmuch as in the opinion of the doctor, the deceased was killed within 24-48 hours of the post mortem but there being positive evidence about the deceased being alive till about 3 a.m. of the night of 28/29th March, 1981, and the dead body being found at 10 a.m. the next day, the case of the prosecution about the deceased being killed in the night of the occurrence is not probable. Though the wife of the deceased, Phulmatia, was a material witness, the proseuction tendered her. Lastly, the evidence of P.W. 2 Sheo Ram, the sole eye witness, is not reliable. His statement was recorded u/s 161 of the Code of Criminal Procedure after 11 days of the occurrence. There are also discrepancies in his statement before the Police and the one before the Magistrate u/s 164 Code of Criminal Procedure In fact, the circumstances suggest that P.W. 2 Sheo Ram had a hand in the commission of the crime.
We may mention at this stage that the only witness who claims to have seen the occurrence is P.W. 2 Sheo Ram. While the informant Lallan Ram, stated to have learnt about the dead body from Bhukhal Ram, he (Bhukhal Ram) turned hostile. He denied to have informed Lallan Ram about the dead body of Sona Ram lying on the outskirts of the village in the morning of 29th March, 1981. P.W. 3 Bachchi Devi also said practically nothing about the occurrence except that she corroborated her husband Sheo Ram telling her about the deceased being killed by Appellants Sahebjan Mian and Bijali Ram in the night of the occurrence, after five days of the occurrence. The rest of the witnesses, as mentioned above, are either official or formal witnesses. In the circumstances, the case hinges on the evidence of P.W. 2 Sheo Ram. Law is well settled that conviction can be based on the evidence of a solitary eye witness provided the witness is completely trustworthy and his evidence is wholly reliable. But before we advert to the evidence of P.W. 2 Sheo Ram, it would be appropriate to briefly deal with other contentions of the amicus curiae.
The submission that the conviction of the Appellant u/s 302 IPC suffers from error of law in view of fact that charge was framed u/s 302/34 IPC, has merely academic value for the reason that error, if any, committed by the trial court, can be corrected by this There being charge u/s 302/34 IPC, there is no difficulty in altering the conviction from Section 302/34 IPC to one u/s 302 IPC. As a proposition of law, we may observe, whether an accused can be convicted for a cognate offence different from the one charged with would depend on facts and circumstance the test being whether it is likely to cause prejudice to him (see AIR 1956 Supreme Court 116).
The submission that no bhala injury was found on the person of the deceased in the facts and circumstances of this case too does not seem to have much relevance in view of the state of body. As indicated above, major part of the body from neck to pelvis was found to have been eaten by the birds and animals. It would be apt to quick the relevant part of the findings of doctor as under:
The body was headless and the spine upto the sixth cervical was missing. The portion of the body upto pelvis was denuded of all the soft tissues. The sternum was also missing. The left upper limb together with the scapula was attached to the chest cage with small amount of soft tissues. The upper end of seventh servical vertebra and the front ends of the ribs appeared to be nibbled. The anal opening was gapping and communicated with the pelvis. The left upper limb and the two lower limbs were intact but devoid of soft tissues at places and peeling of the epithelium at other places. The pelvis was missing and there were dark public hairs. Foul smell emitted from the body and small maggots were present in the pelvic cavity, anal opening and other places of the limbs which were devoid of soft tissues.
In view of the fact that the dead body was denuded of major part of the flesh, the fact thatt the doctor did not find any evidence of bhala injury does not seem to have any significance. For the same reason, the fact that the doctor failed to reach to any conclusion about cause of death, does not seem to have much relevance. The submission that the prosecution failed to prove time of death also does not appear to have much force. According to the case of the prosecution, the deceased died in the later half of night of 28/29th March, 1981. The dead body was subjected to post mortem in 30th March, 1981 at about 12 noon which would bring the time of death within (sic)-28 hours and, therefore, the prosecution case does not get falsified by the coding of the doctor.
The fact that wife of the deceased, P.W. 4 Phulmatia, was tendered also has no significance for the simple reason that she was not an eye witness. The deceased was sleeping outside the house along with Lallan Ram on a separate cot. At some point of time, the deceased left the house and went out when he was killed. In the facts and circumstances of the case, as Phulmatia cannot be said to be a material witness. In any view, it is not a case where the witness was withheld by the prosecution and, therefore, no adverse inference can be drawn from the fact that she was tendered for cross-examination.
Now coming to the main argument of the counsel, it would be appropriate to refer to the material parts of the evidence of P.W. 2 Sheo Ram. P.W. 2 in his evidence stated that in the night of occurrence, which was Monday, at about 3 O''clock, he along with the deceased went for tapping toddy. Firstly, they went to the toddy tree of Sahebganj Mian (one of the Appellants) and the deceased brought two labnies (earthen pot in which toddy is collected). Thereafter, the deceased climbed the khajoor tree of Mishri Raut, (another Appellant). P.W. 2 in the meantime kept vigil from a distance of about one bigha. At that point of time, Sahebjan Mian and Bijali Ram came with bhala and Mishri Raut and Lakhi Ram came with lathi. No sooner did they come than they started beating Sona Ram, the deceased. Sahebjan Mian gave bhala blow on his hip. Sona Ram fell down from the tree. After he fell down, Bijali Ram gave bhala blow on his chest. Sona Ram fell down and asked for water from P.W. 2. When P.W. 2 reached there he was assaulted by Mishri Raut and Lakhi Ram by lathi and asked to leave the place. Out of fear he fled to Dumaria. He claimed to have identified the assailant in the moon light. The witness disclosed that deceased Sona Ram had come to his house eallier at about 9 p.m. and asked him to accompany him for tapping toddy to which he replied that it was dark night. Sona Ram returned home. They came again at about 3 a.m. The witness further disclosed that he returned to the village after five days and narrated the incident for the first time to his wife, he again fled from the village and returned after ten days. He then narrated the incident to the son of the deceased Lallan Ram. He also made statement before the police and the Magistrate. In cross-examination the witness admitted that his vision was poor during dark period of the night as he suffered from cataract. However, in moonlight he could see a bit. Though in the examination-in-chief, he stated about the deceased climbing khajoor tree of Sahebjan Mian and Mishri Raut, in cross examination he stated that the tree on which the deceased had climbed belonged to Ram Pyare Singh and he was standing at a distance of 10-15 laggis from there. He also stated that after he was beaten and threatened by the Appellants, he wanted to flee from the place and thus being in haste, he could not see the later part of the occurrence. He did not go to his house nor he met his wife. Instead, he went to Dumaria on foot. He did not meet any body in particular at Dumaria. He spent the days there abegging for food. He denied the suggestion that Sona Ram and he himself had gone for theft of the toddy. He also denied that villagers at large suspected him of having hand in his crime.
It was submitted on behalf of the Appellants that the account of the occurrence which P.W. 2 gave before the Police and the magistrate was somewhat different. As per the statement u/s 164 of the Code of Criminal Procedure before the magistrate, he was not inclined to accompany the deceased for tapping toddy in the night of the occurrence but later agreed to do so. He stated that they first went to Bishunpura and while he waited on the ground, the deceased climbed the tree and brought down two labnies of toddy. Thereafter, they went to Shahpur. At Shahpur, the witness seated himelf on the roadside keeping vigil on the labnies while the deceased went for toddy. In this manner, he climbed three times one after the other and brought down the labanies. At that point of time two persons from north and two others from south came there. They surrounded the tree which the deceased had climbed and started beating him. They also beat him (P.W. 2). The persons who surrounded the deceased and assaulted them were the Appellants.
It may be mentioned here that the description of the trees and the place from where toddy was brought down is not consistent. What is more striking is the conduct of the witness in fleeing away from the village itself and remaining absent for 11 days. Though according to him, he returned to the village in the night after five days only to inform the wife about the incident, on his own saying, he left the village again and returned after five days when he narrated the incident to the deceased''s son. From the evidence of the Investigating Officer, it appears that Shiv Ram was ''produced'' before him on 8.4.1981, that is, after 11 days of the concurrence. Earlier attempt was made to trace him but he was not found. The fact that the statement of the witness was recorded after 11 days of the incident takes the wind out of his evidence.
Counsel for the the State submitted that there is explanation for the delay. The explanation, according to him is the out of fear P.W. 2 had fled away from the village. This co called explanation in our opinion is not convincing; It is to be noted here that though P.W. 2 claimed to have suffered injuries at the hands of the Appellants in the night of the occurrence, the (sic) called injury was examined by (sic) Dharmdeo Narayan on 9.4.1981, that after 12 days. The doctor found lacerating wound of the size 1" x 1/2" x 1/4" on the front of the left leg in the middle. The wound was infected and in the process of healing. In the opinion of the doctor, the injury was simple in nature caused by I(sic)blunt substance. The circumstances in which the witness kept himself away from the investigation for about 11 days and even thereafter, did nol appear before the Investigating Officer on his own, and also the fact that his injury was not examined within reasonable time for 12 days, do not inspire confidence. It may be mentioned that though as per his evidence, the deceased and he went to different places for tapping toddy, the place where dead body of the deceased was found was only 20 laggis away from his house. The house of P.W. 2 was nearest to the place where the dead body was found. The dead body was found near bamboo clamps. Blood was found at different places. At one place there was trial of blood. The tree which was identified as the one which the deceased had climbed when he was assaulted was at a distance of about 200 yards. No blood was found by the Investigating Officer there. These circumstances coupled with conduct of P.W. 2 do create doubt about the veracity of his evidence. No wonder, as submitted by the amicus curiae, the facts and circumstances suggest complicity of Sheo Ram in the crime and, therefore, no reliance whatsoever can be placed on his evidence. This being the quality of his evidence, it would be unsafe to uphold the conviction of the Appellants, we would set aside the conviction awarded to the Appellants.
In the result, the appeal is allowed, the conviction and sentence, awarded to the Appellants are set aside and they are acquitted of the charges. Appellants Mishri Raut and Lakhi Ram are on bail. They are discharged from liability of the bail bonds. Appellants Sahebjan Mian and Bijali Ram are in custody. They are (sic)ected to be set at liberty forthwith, if not wanted in any other case.
Let copy of the first and last page of the judgment and order dated 2.5.2003 be handed over to Shri Akhouri Baidyanath Prasad to facilitate payment of fee by the Patna High Court Legal Aid Committee.