SUPREME COURT OF INDIA
Ramjee Rai and Others
Vs
State of Bihar
Writ Petition (Crl.) 1621 of 2005
(S. B. Sinha and Dalveer Bhandari, JJ)
24.08.2006
S. B. SINHA, J.
The Appellants herein with Bharat Rai and Ganeshi Rai (since deceased) were
prosecuted for commission of the offence of causing intentional death to one
Baijnath Singh and disappearance of his dead body.
A First Information Report was lodged by Rajnath Singh (PW-3), brother of
Baijnath Singh (deceased) alleging that on 21.8.1980 at about 4 in the
afternoon he along with him was at their plot of land situated by the side of a
Dhab in the north of village Dudhiyan where they had gone for cutting Masuria
Crops. The Appellants together with Bharat Rai and Ganeshi Rai, variously
armed, took them forcibly on a boat to the Dhab letting the boat moving freely.
After the boat had proceeded some distance, they started assaulting the
deceased. He, however, finding an opportunity in this behalf jumped from the
boat and started swimming towards the higher ground, shouting and crying for
help. Baijnath Singh died as a result of the assault and his dead body was
carried away in their boat. It was stated that the occurrence had been seen by
Satyanand Singh (PW-1), Kameshwar Singh (PW-2) and Pancham Singh (PW-5). It was
alleged that in view of the flood conditions as also due to night fall, the
report could not be lodged in the night. As regards motive for commission of
the said offence, the informant alleged that the deceased had a piece of land
near the house of the accused and they repeatedly used to pluck the maize and
cut away the Masuria crop grown on that land as a result whereof the parties
had been quarreling with each other. Allegedly, Baijnath Singh had also
apprehended the accused cutting away his Masuria crop wherefor he had abused
them in retaliation. The accused persons are said to be belonging to one family
and they had been indulging in commission of theft and dacoity. The murder of
Baijnath Singh was said to have committed in retaliation of the said incident.
In the First Information Report, two accused were said to be carrying country
made pistols while the rest were armed with gandasas, lathies and spears. The
dead body was recovered after five days, i.e., 26.8.1980. The dead body was
first seen by the Chowkidar (PW-4) of the village. He reported to the informant
thereabout. He came and also identified the dead body. All the accused persons
were convicted for commission of an offence under Section 302/34 read with
Section 201 of the Indian Penal Code and sentenced to undergo imprisonment for
life under Section 302/34 and five years rigorous imprisonment under Section
201 of the Indian Penal Code by a judgment and order dated 31.7.1987. An appeal
preferred thereagainst by the accused has been dismissed by the High Court by
the impugned judgment.
Mr. P.S. Mishra, learned senior counsel appearing on behalf of the Appellants,
submitted that the learned Sessions Judge as also the High Court committed a
serious error in holding that the dead body had been identified to be that of
the deceased. According to the learned counsel, keeping in view the post mortem
report which clearly showed that only bones were visible, it could not have
been identified and in that view of the matter the prosecution case cannot be
said to have been proved.
It was further submitted that some of the independent witnesses who could throw
light on the prosecution case had deliberately been withheld by the prosecution
as a result whereof the Appellants suffered grave prejudice. Non-examination of
independent and uninterested witnesses by the prosecution, having regard to the
fact of the case, Mr. Mishra would submit, was imperative. Reliance in this
behalf has been placed on Sahaj Ram and Others v. The State of U.P. and
Habeeb Mohammad v. The State of Hyderabad.
The High Court, it was urged, committed a serious error in passing the impugned
judgment insofar as it failed to take into consideration the fact that the
deceased was having criminal background and, thus, could have been done to
death by others. The Appellants, it was contended, have been implicated because
of the enmity. Inconsistency in depositions of PWs, it was submitted, had also
not been taken into consideration by the courts below. It also argued that the
Trial Court as also the High Court ought to have considered individual overt
acts on the part of each of the Appellants.
Ms. Kirti Sinha, learned counsel appearing on behalf of the State, on the other
hand, submitted that the learned Sessions Judge and the High Court rightly
convicted the Appellants herein in view of the evidence of the eye witnesses to
the occurrence, viz., PWs. 1, 2, 3 and 5.
The learned Trial Judge in his judgment inter alia held:
(i)The injuries inflicted on the body of the deceased were homicidal in nature.
(ii)The prosecution has been able to show that the dead body of Baijnath Singh
had been identified.
(iii)Although PW-3 was inimically disposed of towards the accused, it cannot be
said that he had falsely implicated the Appellants.
(iv)The prosecution has assigned sufficient reasons for non-examination of the
witnesses named in the chargesheet.
(v)Evidences adduced on behalf of the prosecution witnesses being consistent,
the prosecution case has been proved.
The High Court in its judgment opined:
(i)The prosecution has brought on records sufficient evidences to prove that
the assailants had arrived on a boat, assaulted the deceased and carried away
his dead body.
(ii)The prosecution witnesses being closely associated with the deceased, it
was not difficult for them to identify the corpse.
(iii)Ocular evidences being consistent in nature, the prosecution has been able
to prove the charges as against the Appellants.
PW-3 is the informant. The First Information Report was lodged at the earliest
possible opportunity. The informant categorically stated that he not only saw
the deceased being assaulted, he at the first opportunity jumped from the boat,
swam across the Dhab and somehow escaped from the clutches of the Appellants.
He categorically stated that he had gone to Akilpur, which was an out-post but
the Officer-Incharge was not present there thence. He thereafter returned to
his house and in the next morning came to the Danapur Police Station on a boat.
It is not in dispute that the dead body of Baijnath Singh was first seen by
Ganga Paswan, who was a chowkidar. He was also resident of same village. He knew
the deceased from his childhood. He categorically stated that the deceased, on
his right hand side of the forehead had patch of grey hair. A one paisa coin
was also tied against his waist. He had thick mustache and same resembled with
that of Baijnath Singh. He identified the dead body seeing his face and other
features. The dead body was found in a field of maize situate in Mauza
Banwarichak. It was at a distance of about 1.5 kms. from the place of
occurrence. According to him, river Ganges flows at a distance of 3 kms. South
from that field and about 20 kms. from the West of the said field. From the
place where the dead body was found, river Ganges flows at a distance of 1.5
miles East. The place has been completely surrounded by the said river. According
to him, crops had also been sown in the field.
The dead body was also noticed by Ram Swarup Singh. The informant (PW-3) was
informed thereabout. He also went to the spot and identified the dead body as
that of his brother. The police authorities were also informed in regard
thereto.
Another witness who was examined by the prosecution was Satyanand Singh (PW-1).
He was also an eye-witness. He was sitting on a Machan. He not only named the
accused persons having assaulted Baijnath Singh, but also stated that he had
seen the informant escaping from the clutches of the accused.
PW-2 another eye-witness is Kameshwar Singh. He was also in his maize field at
the time of occurrence. He corroborated the statements of PWs 1 and 3. He is
again an eye-witness. He also identified the dead body. In his deposition, he
stated:
"I told the police that I was in my field on the date of incident. I
saw Baijnath Singh, Rajnath Singh in their field before the coming of the
accused. There was sickle in their hand at that time. At the time when Rajnath
Singh jumped from the boat there was nothing in his hand. The field of Rajnath
Singh in Dhudhiya village is at a distance of 2-4-10 Laggi from the
Basti."
He also stated that despite cries nobody from the village came in view of the
water. They have gone to their respective fields by wading through risen water.
One Pancham Singh was examined as PW-5. He also was an eye-witness. He
testified having seen Baijnath Singh was being assaulted. According to him, as
the deceased stopped shouting, he realized that he was no more.
The learned Sessions Judge had placed implicit reliance on the testimonies of
these witnesses opining:
"Therefore, in view of the discussions made above, I find that all the
eye-witnesses are quite competent and reliable and their evidence coupled with
the evidence of Doctor (PW.6) and I.O. (PW.7) fully establishes that on the
alleged date all the accused persons armed with lathi, Bhala, Gandasa, pistol
came on boat, in the field of the informant and forcibly picked up the
informant and Baijnath Singh on boat, and then went towards Dhab and assaulted
Baijnath Singh with their respective weapons, causing his death."
The High Court also in its impugned judgment discussed the evidence of the
eye-witnesses and held:
"We are unable to accept the submission and on a careful examination of
the written report and the depositions of all the witnesses, including the
informant, P.W.3, we find no inconsistency in those statements. In the written
report, it is stated that while the informant and his brother Baijnath Singh
were cutting Masuriya crop on their plot of land, the accused arrived with
variously armed and threatening them with their arms, they forcibly took him
and his brother to the Dhab on a boat. We are unable to read to statement in
the written report to mean that the accused had come to the land, where the
informant was there with his brother, on foot and they took them along on foot
upto Dhab where they boarded the boat that was waiting there. The statement in
the written report on a careful reading plainly means that the accused arrived
there on a boat and forcibly picked up the informant and his brother on it and
took them in the direction of the Dhab. We, thus, find no inconsistency, much
less, any contradiction in the prosecution story as stated in the written
report and as deposed before the court by the witnesses."
In regard to the identification of the dead body, the learned Sessions Judge
held that the dead body was that of Baijnath Singh which had duly been proved
by PWs 3 and 4.
We may at this juncture notice the medical evidence.
Dr. Sheonandan Barunwal, who examined himself as PW-6, proved the post mortem
report. The dead body before him had been identified as that of Baijnath Singh
by the constable, Rajnath Singh and the Chowkidar. The age of the deceased was
said to be 35 years. The clothes were having a ganji, dhoti and a small chadar.
The body was in a decomposed condition. Rigor mortis was absent. The body had
three cut wounds. It was categorically stated that the hairs of scalp were
intact. The post mortem report does not suggest that there was no mark on face
or identification marks were totally absent. In his opinion, the death might
have been due to amputation of hands. He categorically stated that the dead
body was thrown in water and the soft parts were eaten away by the fish.
According to him, it was difficult to assess the period past since death. But,
according to him, it may be approximately 10 days.
The Appellants did not even suggest that the deceased did not have the special
features whereabout PW-4 made categorical statement. His age at the time of
death had also not been disputed. The Investigating Officer Ram Naresh Shukla
(PW-7) also stated in categorical terms that the entire flesh below the stomach
had been eaten away by the animals and the dead body had been identified by
Chowkidar Ram Swarup Singh and Raghunandan Paswan, Ganga Paswan and Kameshwar
Singh of Banwarichak stating that the same was that of Baijnath Singh. Even the
age of the deceased was not disputed.
It is now a trite law that corpus delicti need not be proved. Discovery of the
dead body is a rule of caution and not of law. In the event, there exists
strong circumstantial evidence; a judgment of conviction can be recorded even
in absence of the dead body. [See Rama Nand and Others v. State of Himachal
Pradesh,.
In Ram Gulam Chaudhary and Others v. State of Bihar, this Court noticed the
decision in Rama Nand (supra) and opined:
"There can be no dispute with the proposition of law set out above. As
is set out in the various authorities (referred to above), it is not at all
necessary for a conviction for murder that the corpus delicti be found.
Undoubtedly, in the absence of the corpus delicti there must be direct or
circumstantial evidence leading to the inescapable conclusion that the person
has died and that the accused are the persons who had committed the
murder"
What was, therefore, necessary for the courts below to arrive at a finding of
guilt as against the Appellants in regard to their involvement in the crime. It
is not a case where the dead body could not be identified. There had been
sufficient materials placed by the prosecution to bring home the said fact.
So far as submission of Mr. Mishra that some independent witnesses have not
been examined is concerned, from the records it may be noticed that it would
appear that the public prosecutor categorically stated before the learned
Sessions Judge that some of the witnesses were inimically disposed of towards
the informant. The Appellants have not brought on record any material to show
that the aforementioned stand taken by the prosecution was not correct. It is
true that ordinarily the prosecution should examine all witnesses whose names have
been disclosed in the chargesheet; but, then the same cannot be said to be a
rule having universal application. Each case has to be considered on its own
facts.
It is now well-settled that what is necessary for proving the prosecution case
is not the quantity but quality of the evidence. The court cannot overlook the
changes in the value system in the society. When an offence is committed in a
village owing to land dispute, the independent witnesses may not come forward.
In Sheelam Ramesh and Another v. State of A.P. 5,
this Court opined:
"Courts are concerned with quality and not with quantity of evidence
and in a criminal trial, conviction can be based on the sole evidence of a
witness if it inspires confidence."
Yet again in Pohlu v. State of Haryana 2005 (10) SCC 196, this Court
opined:
"It is true that it is not necessary for the prosecution to multiply
witnesses, if it prefers to rely upon the evidence of the eyewitnesses examined
by it, which it considers sufficient to prove the case of the prosecution.
However, the intrinsic worth of the testimony of the witnesses examined by the
prosecution has to be assessed by the court. If their evidence appears to be
truthful, reliable and acceptable, the mere fact that some other witnesses have
not been examined, will not adversely affect the case of the prosecution"
In Balram Singh v. State of Punjab, , this Court opined:
"The appellants' contention that the prosecution has relied only on
interested evidence of PWs 1 and 2 and has not examined the other independent
witnesses who were present or for that matter the non-examination of another
son of the deceased by the name of Jasbir Singh should give rise to an adverse
inference, cannot also be accepted because so far as Jasbir Singh is concerned,
though there is some material on record to show that he was examined by a
doctor on the night of the incident, there is no material to show that he was
actually involved in this fight. His name is not mentioned in the FIR also,
therefore if the prosecution has thought it not necessary to examine this
witness, we do not think an adverse inference could be drawn on the basis of
this non-examination of the said Jasbir Singh. This view of ours also holds
good in regard to the so-called other independent witnesses who were present at
the time of the incident since in a family feud like this it is rare that an
independent witness would come forward to give evidence."
Yet again in State of U.P. v. Anil Singh it was observed:
"Of late this Court has been receiving a large number of appeals
against acquittals and in the great majority of cases, the prosecution version
is rejected either for want of corroboration by independent witnesses, or for
some falsehood stated or embroidery added by witnesses. In some cases, the
entire prosecution case is doubted for not examining all witnesses to the
occurrence. We have recently pointed out the indifferent attitude of the public
in the investigation of crimes. The public are generally reluctant to come
forward to depose before the court. It is, therefore, not correct to reject the
prosecution version only on the ground that all witnesses to the occurrence
have not been examined. Nor it is proper to reject the case for want of
corroboration by independent witnesses if the case made out is otherwise true
and acceptable."
In Habeeb Mohammad (supra), whereupon Mr. Mishra has placed strong reliance,
this Court stated that prosecution was not bound to call all available witnesses
irrespective of consideration of number of reliability, witnesses essential to
the unfolding of the narrative on which the prosecution was based must be
called by the prosecution, whether in the result the effect of their testimony
is against the case of the prosecution.
However, in that case the Appellant there was a Subedar. The allegation against
him was that he ordered the police to fire. The Deputy Commissioner of Police
who had accompanied the Appellant and had witnessed the occurrence had not been
examined by the prosecution. It was in that fact situation held that the
prosecution should have examined the said witness. It was held that the
Appellant was considerably prejudiced by the omission on the part of the
prosecution to examine the said officer and other officers in the circumstances
of the said case and the conviction of the Appellant merely based on the
testimony of the police jamedar cannot be said to have been arrived at after a
fair trial, particularly, when no satisfactory explanation has been given or
even attempted for this omission. In Sahaj Ram (supra) again, relied by Mr.
Mishra, there was a group rivalry. In that case, the Court found serious
mistakes committed by the Sessions Judge as also the High Court in appreciating
evidence. Keeping in view the peculiar nature of the case and having regard to
the fact that there had been group rivalry, it was opined:
"As pointed out by this Court in Habeeb Mohammed v. State of Hyderabad
though the prosecution is not bound to call all available witnesses
irrespective of considerations of number or reliability, witnesses essential to
the unfolding of the narrative on which the prosecution is based must be called
by the prosecution, whether in the result the effect of their testimony is for
or against the case of the prosecution. This Court approved the decision of the
Judicial Committee in Stephen Seneviratne v. King laying down a similar
proposition. In this case the first information report clearly states that
Shitabi, CW 1, was an employee of the deceased and he was with his master at
the time of the incident. He has also given information about the incident to
PW 1 and others. Whatever justification there may have been for not examining
Ram Prasad, the prosecution, in our opinion, was not justified in keeping back
Shitabi"
In Lakshmi and Others v. State of U.P. 0,
this Court opined:
"Undoubtedly, the identification of the body, cause of death and
recovery of weapon with which the injury may have been inflicted on the
deceased are some of the important factors to be established by the prosecution
in an ordinary given case to bring home the charge of offence under Section 302
IPC. This, however, is not an inflexible rule. It cannot be held as a general
and broad proposition of law that where these aspects are not established, it
would be fatal to the case of the prosecution and in all cases and
eventualities, it ought to result in the acquittal of those who may be charged
with the offence of murder. It would depend on the facts and circumstances of
each case. A charge of murder may stand established against an accused even in
the absence of identification of the body and cause of the death."
In the instant case, however, some of the witnesses examined by the prosecution
are independent. The evidence of all the witnesses are more or less consistent.
Nothing has been pointed out to discredit their testimonies. The learned
Sessions Judge as also the High Court, therefore, cannot be said to have
committed any mistake in relying upon the testimonies of the said witnesses.
A contention was raised that autopsy surgeon opined that the death must have
taken place 10 days prior to the post mortem examination and in that view of
the matter the prosecution case should be disbelieved. The murder allegedly
took place on a boat. The dead body was thrown in the water. It remained under
water for more than five days. Rigor mortis was absent and the body was fully
decomposed. The soft tissues of some of the parts of the body had been eaten
away by fish.
Medical science has not achieved such perfection so as to enable a medical
practitioner to categorically state in regard to the exact time of death. In a
case of this nature, it was difficult to pinpoint the exact time of death. The
autopsy surgeon told about the approximate time lag between the date of post
mortem examination and the likely date of death. He did not explain the basis
for arriving at his opinion.
This Court on a number of occasions noticed that it may not be possible for a
doctor to pinpoint the exact time of death.
In Ramreddy Rajeshkhanna Reddy and Anr. v. State of Andhra Pradesh 2006
(3) SCALE 452, this Court observed:
"In
this case, the time of actual offence having regard to the different statements
made by different witnesses may assume some importance as one of the grounds
whereupon the High Court has based its judgment of conviction is the time of
death of the deceased on the basis of the opinion rendered by Dr. P.
Venkateshvarlu (P.W.13).
In Modi's Medical Jurisprudence, 22nd edition, as regard duration of rigor
mortis, it is stated:
AverageMinimumMaximumHoursMinutesHoursMinutesHoursMinutesDuration of rigor mortis191230400"
It was, therefore, extremely difficult to purport the exact time of death of
the deceased, more so when no sufficient reason was assigned in the post-mortem
report."
Submission of Mr. Mishra is also to the effect that the learned Sessions Judge
had not discussed about the individual overt acts of the Appellants. The
prosecution witnesses categorically stated about the whole incident. The
occurrence took place on a boat. Out of two persons forcibly taken on the boat,
PW-3 could escape. There were fourteen accused persons. They had inflicted
injuries upon him. Post mortem suggests that sharp cutting weapons had been
used. Two accused persons, as noticed hereinbefore, were held to be possessed
of some cutting weapons. The Appellants came in a group. Some of them started
assaulting the deceased with weapons in their hands. In a case of this nature,
it was well nigh impossible for the first informant to pinpoint the exact overt
acts committed by each of the accused persons individually.
Section 34 of the Indian Penal Code, therefore, is clearly attracted in a case
of this nature.
In a recent judgment in Bishna Alias Bhiswadeb Mahato and Others v. State of
W.B. 2005 (12) SCC 657, the law has been stated in the following terms:
"For the purpose of attracting Section 149 and/or 34 IPC, a specific
overt act on the part of the accused is not necessary. He may wait and watch
and the inaction on the part of an accused may some time go a long way to hold
that he shared a common object with others."
For the reasons aforementioned, we are of the opinion that no case has been
made out for interference with the impugned judgment.
The appeal is dismissed.