Rogi Chamar @ Rajnath Chamar. Lallan Chamar v. The State of Bihar

Patna High Court CR. APP (DB) No.511 of 1990 dt.16-10-2012 4 actually were not even named in the First Information Report by the informant, and were acquitted. This appeal, therefore, is confined only to the two appellants as against their conviction and sentence mentioned above.

4. Mr. Aswini Kumar Sinha, learned counsel for appellants, while assailing the impugned judgment, has submitted that first of all the First Information Report itself is hit by Section 162 Cr.P.C. because it was recorded after the so-called dying declaration of informant at 10.45 AM on

13.4.1981 by the Sub-Divisional Judicial Magistrate. He has also submitted that the so-called dying declaration of the informant having been not proved or exhibited would leave the prosecution with no plausible case because according to him, the First Information Report was actually ante-dated because the informant P.W.3 in his cross-examination had himself admitted that he came into his senses at Bhabua hospital at 12 PM which in turn would automatically go to show that recording of the Fardbeyan of the informant at 9 AM on 13.4.1981 was impossible.

5. Proceeding ahead, Mr. Sinha was of the view that when the investigating officer had not been able to trace the dead body of the deceased Basgit Chamar nor his death by way of postmortem report had been proven, the whole prosecution case in fact remained shrouded in mystery. According to Mr. Sinha, neither the place of occurrence nor the manner of occurrence could also be successfully proved by the evidence led Patna High Court CR. APP (DB) No.511 of 1990 dt.16-10-2012 5 by the prosecution. In this regard, he was quite emphatic that even the injuries on P.W.1, the uncle of the informant as well as on the informant himself having been caused injuries by sharp cutting weapon as found and recorded by the Doctor in their injury reports did not match with the ocular evidence of their such injuries being caused by Ballam.

6. He has also highlighted the aspect that the Investigating Officer (P.W.6) who had already gone to the place of occurrence in connection with the investigation of the counter case already instituted at the behest of the appellants before the institution of the present case did not find any blood mark at the alleged place of occurrence. He has, therefore, emphasized that it was on account of collusive role played by the police officer, who subsequently having given a go-bye to the earlier criminal case filed by the appellants, had somehow sought to falsely rope in not only these two appellants but, four others, namely, Ram Briksh Ram, Babu Ram, Dasrath Ram and Subhag Chamar as co-accused and though the trial court was able to decipher this embellishment in the prosecution case and had acquitted three of them, namely, Ram Briksh Ram, Babu Ram and Dasrath Ram while the trial against Subhag Chamar had abated on account of his death during course of trial itself, the trial court had committed an error in convicting and sentencing the appellants in the same set of unreliable evidence.

7. Per contra, Ms. Shasi Bala Verma, learned APP, while Patna High Court CR. APP (DB) No.511 of 1990 dt.16-10-2012 6 supporting the findings against the appellants in the impugned judgment, has submitted that the First Information Report drawn in this case at Bhagwanpur police station, where it was transmitted from Bhabua because of the offence taking place within the jurisdiction of Bhagwanpur police station will itself go to show that there were specific allegation of overt act against both these appeals who are said to have assaulted all the three persons, namely, P.W.1, P.W.3 and the deceased. She has also submitted that simply because the prosecution case was found to be partly disbelieved on account of acquittal of three other co-accused persons who were not even named in the First Information Report by the informant, the same in no manner would come to the rescue of these two appellants because of the specific allegations made against them by the informant within three hours of the occurrence which were fully proven in course of trial.

8. As with regard to the alleged discrepancy in the medical evidence vis-a-vis ocular evidence, Ms. Verma has firstly submitted that both the Ballam and Bhalua are sharp cutting weapon and even though the doctor was cross-examined on this aspect but nothing tangible could be taken out from him to discredit the prosecution case, inasmuch as, the injuries which were found by the doctor could very well be caused by sharp weapon and in any event the doctor was not competent to describe the nature of weapon being used in assault being Ballam or Bhalua with which the prosecution witnesses were actually well acquainted and had explained Patna High Court CR. APP (DB) No.511 of 1990 dt.16-10-2012 7 about them in their evidence. She has also submitted that in any event, much cannot be made out from the conduct of the prosecution witnesses who were rustic villagers and were not supposed to be given the exact timings alike a well educated person.

9. She has also explained that the prosecution witnesses had themselves stated that after sustaining serious injuries, the father of the deceased along with P.W.1 and P.W.3 in the were sought to be removed to Varanasi for better medical treatment but, since the deceased had died in the way, he was cremated as a result whereof his dead body could not be found by the police and thus his postmortem was not conducted. In her opinion, the absence of postmortem report was not at all going to adversely affect the prosecution case, inasmuch as, the fact relating to immediate removal of the deceased along with P.W.1 and P.W.3 in the injured condition for their examination and treatment by the doctor has been fully proved by the Dictor at Bhabhua Hospital. She has also relied on the evidence to show that after the examination of injury on the deceased which were very serious in nature not only the doctors had sent requisition by way of O.D. Slip to the police but the police, having arrived in the hospital, had recorded the Fardbeyan of the informant P.W.3, whereafter, the Bhabhua police had also filed application before the C.J.M., Bhabhua for recording the dying declaration of Basgit Chamar and on such orders of the C.J.M. by way of deputation of S.D.J.M., Bhabhua and his arrival at Bhabhua hospital but also recording of Patna High Court CR. APP (DB) No.511 of 1990 dt.16-10-2012 8 statement of the informant at 10.45 A.M. of the deceased Basgir Chamar of being full unconscious.

10. Before we would examine the aforesaid rival contentions of both the parties, it will be necessary for us to take stock of the prosecution evidence. The prosecution in this case has examined in all six witnesses out of whom P.W.1 Baul Chamar and P.W.3 Sheo Bachan Chamar are injured F.I.R. eyewitnesses. While P.W.5 Ram Deyi is the mother of the informant and wife of the deceased Basgit Chamar who too has deposed as eyewitness P.W.2 Dukhanti Chamar is a hearsay witness who has supported part of the prosecution case as with regard to hospitalalin and treatment of deceased in Bhabhua Hospital as also his death taking place in route to Varanasi and his dead body being accordingly disposed of at Varanasi. P.W.4 is the Dr. B.D. Bhagat who had examined the injuries on the person of deceased as well as P.W.1 and P.W.3 in Bhabua hospital whereas P.W.6 Rameshwar Nath Srivastava is the Investigating Officer. The prosecution has also proved three documents by way of Fardbeyan (Exhbt.-1), Injury Report (Exhbt.-2, 2/1 & 2/2) and formal First Information Report (Exbht.-3).

11. Though the defence has not examined any witness nor has exhibited any document but, from the mode of cross-examination as well as statement of appellants under Section 313 Cr.P.C., it seems that their case is one of complete denial of the occurrence in the manner alleged and, their, Patna High Court CR. APP (DB) No.511 of 1990 dt.16-10-2012 9 false implication due to old grudge and enmity. Their further defence is based on the counter case filed by the appellants but, surprisingly, even the First Information Report or charge-sheet of the counter case has not been proven. Nonetheless, they have proceeded to cross-examine the witnesses that the present case was an afterthought and a counter blast of the earlier case filed by the appellants as with regard to theft of the crops and the assault made on the person of the appellants in course of such theft of crops.

12. The first and foremost thing which would receive out attention is the challenge to the veracity of the Fardbeyan on the basis of which the First Information Report was lodged. It is not in doubt that the Fardbeyan was recorded in the Bhabua hospital because Doctor B.D. Bhagat (P.W.5) has claimed to examine the deceased Basgit Chamar at 8.10 AM on 13.4.1981 whereafter he had also examined P.W.1 and P.W.3 and, therefore, once the arrival of the police on O.D. Slip sent by the doctor is an admitted fact because no cross-examination on this aspect has been made by the defence, the logical outcome would be that when the copy of this very Fardbeyan was received by the P.W.6, the Investigating Officer on the basis of which the formal First Information Report was drawn, the same cannot be said to be hit by the provision of Section 162 Cr.P.C., inasmuch as, the said Fardbeyan was recorded at 9 AM on 13.4.1981 and much before the statement of informant had been recorded at 10.45 AM on 13.4.1981 by S.D.J.M., Bhabhua. Patna High Court CR. APP (DB) No.511 of 1990 dt.16-10-2012 10

13. At this stage and in fact while dealing this very aspect, we must take judicial notice of this fact that another recording of Fardbeyan at 9 AM on 13.4.1981, his statement was also recorded by S.D.J.M., Bhabhua at 10.45 AM when he had arrived at Bhabhua Hospital on the orders passed by the C.J.M., Bhabhua on an application filed by the police officer who had recorded the Fardbeyan of informant wherein he on finding the condition of the deceased Basgit Chamar to be serious had immediately informed the court for deputation of Magistrate to record the statement of Basgit Chamar. His such application filed on 13.4.1981 at 9.50 AM being at Page-4 of the lower court records is reproduced hereinbelow:- ^^Jheku eq[; U;kf;d n.Mkf/kdkjh] HkHkqvk fo’k;%& HkHkqvk vLirky esa t[eh cklxhr pekj lk0 fujohliqj Fkkuk Hkxokuiqj ds e‘R;wdkyhu c;ku vafdr djus ds lEcU/k esaA egk”;] t[eh clxhr pekj HkHkqvk vuqeaMy vLirky esa ejuklUu gS budk e‘R;qdkyhu c;ku vafdr djus ds fy;s ,d U;kf;d n.Mkf/kdkjh dh rSukrh “kh?kz fd;k tk;A vkidk fo”oklh l0v0fu0 13@4@1981 HkHkqvk Fkkuk Sri S.D. Prasad, S.D.J.M., Bhabhua is requested to record dying declaration of injured. Sd./- 13.4.1981 9.50 a.m.”

14. At page-5 of the lower court records, there is also a report of Sri S.D. Prasad, S.D.J.M., Bhabhua which reads as follows:- Patna High Court CR. APP (DB) No.511 of 1990 dt.16-10-2012 11 “Dying Declaration Reached at Bhabhua Hospital at 10.15 a.m. to record the dying declaration of Basgit Chamar S/o Kanhai Chamar of Nirbishpur P.S. Bhagwanpur Dist. Bhabhua. Found the patient lying on bed quite senseless, unable to speak. Sd./- illegible 13.4.1981 S.D.J.M., Bhabhua”

15. From the records of Sessions Trial at Page-3, it is also found that an incomplete statement of informant (P.W.3) though not signed by him was recorded by Sri S.D. Prasad, S.D.J.M. on 13.4.1981 which reads as follows:- “Dying Declaration Recorded the Dying Declaration of Shiwa Bachan Chamar S/o Basgit Chamar of Nirbishpur, P.S. Bhagwanpur, District Bhabhua at Bhabhua Hospital at

10.45 a.m. esjk uke f”kocpu pekj is0 cklxhr pekj gSA vkt lqcg 6 cts jksxh pekj] yyu pekj] jke tue pekjA jke tue pekj ej x;s gSa mudk yM+dk gS jksxh pekjA jksxh pekj vkSj yyu pekj feydj eq>dks ekjsA yyu us ekjk Hkyqvk myV dj vkSj jksxh pekj us cYye ls ekjk gSA …jksxh NViVk jgk Fkk] ckj&ckj ikuh nok dh ekax dj jgk Fkk] dg jgk gS fd ej tbc] tku xby] vc uk cpc gks‰ lR;nso izlkn S.D.J.M. 13.4.81”

16. It is true that the aforesaid statement of P.W.3 recorded by Sri Satyadeo Prasad, S.D.J.M., Bhabhua has not been proven by examining Patna High Court CR. APP (DB) No.511 of 1990 dt.16-10-2012 12 him as prosecution witness but then the fact regarding his being deputed by the Chief Judicial Magistrate, Bhabhua at 9.50 a.m. on 13.4.1981 being on record his reaching in Bhabhua hospital and finding the deceased Basgit unconscious and not in a position and recording of statement of P.W.3 who also was injured cannot be altogether brushed aside when in the cross- examination of P.W.3 the defence itself had got in on recorded that after recording of the Fardbeyan of P.W.3, his statement was also recorded by a Magistrate. In this regard, it would be relevant to quote paragraph no.23 of the P.W.3 which reads as follows:- ^^23- vius vkSjy bryk; esa n”kjFk] ds;j ckcw jke vkSj fclslj dk uke ugha fy[kk;k FkkA HkHkqvk vLirky esa eftLV~sV ds lkeus esjk c;ku gqvk FkkA&&&&**

17. Thus the much levied criticism of the First Information Report being ante-dated would also not inspire any confidence, inasmuch as, the First Information Report which was instituted at Bhagwanpur police station at 3 PM on 13.4.1981 and was also seen and received by the Magistrate on 14.4.1981, as is clear from the order-sheet of the trial court as also the endorsement made on the First Information Report was based on fardbeyan of P.W.3 recorded at 9 am on 13.4.1981 at Bhabhua Hospital which gets supported from the fact of injury report of deceased P.W.1 and P.W.3 Exhibit 2, 2/1 and 2/2 at 8.10 am on 13.4.1981 and proved by its maker namely P.W.4 Dr. B.D. Bhagat. We, would, therefore proceed on the basis that such Fardbeyan has been proved beyond doubt being at earlier Patna High Court CR. APP (DB) No.511 of 1990 dt.16-10-2012 13 point of time as is also apparent from paragraph no.17 of the cross- examination of P.W.3 wherein he had reiterated that his Fardbeyan was recorded in the hospital by the police officer in the manner he had described about the whole occurrence.

18. Yet another important limb of the submission of the learned counsel for the appellant as with regard to the prosecution case of the charge of Section 302 being not proved in absence of dead body by police and postmortem report of the deceased, has been answered by the doctor (P.W.4) who in his examination in chief had stated as follows:- “1. On 13.4.1981 I was posted as medical officer of the sub- divisional Hospital at Bhabua. On that day at 8-10 A.M. I have examined one Basgit Chamar S/o Kanhai Chamar of village Nirwispur, P.S. Bhagwanpur, Dist. Rohtas had found the following injuries on his person. (i) (ii) (iii) One swelling with tenderness on the front of the left thigh 2”X1 ½”. Swelling with tenderness on the front of the left forearm, 3”X 3 ½”. Right side of the head was found depressed causing fracture of the right temporal bone.

2. Injuries was (i) and (ii) were simple in nature caused by some hard and blunt substance. Injury no. (iii) was grievous and caused by some hard blunt substance. The above mentioned injuries were caused within six hours.

3. The condition of the patient was very serious and he was deeply unconscious. Hence he was referred to any institute for treatment and investigation. This injury report is in my pen and bears my signature (Points)

4. Injury no. (iii) was dangerous to life and likely to cause Patna High Court CR. APP (DB) No.511 of 1990 dt.16-10-2012 14 death”

19. Thus, the injury on the person of the deceased being condition being very serious as also his being referred to the specialized center for treatment actually fits in with the rest of the prosecution case as set out by the injured witness P.W.3 and the other witness present in Bhabhua hospital P.W.2 who have stated that as they had found the injuries on the person of the deceased to be very serious, they had started from Bhabua hospital for Varanasi for his treatment but as the deceased had succumbed to his injuries in the way, the deceased was cremated at Varanasi. Thus, absence of postmortem report in this case will not be fatal for them on account of his injury report being available through the deposition of P.W.4 the doctor who had examined him at 8.10 AM on

13.4.1981 as also the injury no.3 on his person being sufficient to cause his death as also condition of the deceased having been described to be very serious. In any event, there is no cross-examination of P.W.4 by the defence on the nature of injury on the person of the deceased found by him and, therefore, whatever has been stated by doctor P.W.4 as with regard to the condition of the deceased remains unchallenged.

20. It may also be recorded here that apart from P.W.1 and P.W.3, the two injured witnesses who had stated as with regard to injuries on deceased, there was also presence of P.W.2 in Bhabhua hospital who had stated that on acquiring knowledge of injuries of all the three persons, Patna High Court CR. APP (DB) No.511 of 1990 dt.16-10-2012 15 namely, deceased Basgit Chamar, Baul Chamar (P.W.1) and Sheo Bachan Chamar (P.W.3) and their being hospitalized, he had gone there and had found all three of them in an injured condition out of which the condition of the deceased Basgit Chamar was precarious and, therefore, he along with P.W.3 had taken the deceased to Varanasi for treatment but, in the way near Durgawati, he had succumbed to his injuries. According to him, the P.W.3 along with the deceased were being taken to Varanasi for treatment and the deceased after his death in the way of Varanasi was cremated at Varanasi. In fact, in the cross-examination of P.W.2, it has also come into light that the deceased had succumbed to his injuries near Durgawati at the time of sunset while he was being taken in a vehicle to Varanasi. P.W.2 was not at all cross-examined either on the point of deceased being taken to Varanasi or his injury or any other aspect of the condition of the deceased even when he had specifically stated in his examination in chief that he along with P.W.3 and deceased had started for Varanasi by a vehicle for treatment of the deceased who in a very serious condition at that point of time and had been referred to by the Doctor for hi treatment to some specialized centre.

21. This part of prosecution case of deceased being taken away for his treatment to Varanasi was also supported by P.W.5, the wife of the deceased had also stated before the police that her husband, the deceased, had already been taken to Varanasi for treatment. The presence of the deceased in Bhabua hospital and his being examined by the doctor Patna High Court CR. APP (DB) No.511 of 1990 dt.16-10-2012 16 P.W.4 at 8.10 AM being not in question, this Court in the background of the injuries found on the person of the deceased by the doctor P.W.4 will therefore have no difficulty in holding that there is proper explanation by the prosecution for absence of the postmortem report.

22. As noted above, we having scanned the judicial records of this case have also found that condition of Basgit Chamar (deceased) was in a precarious condition for which a requisition was made before the Chief Judicial Magistrate, Bhabua to depute a Magistrate for recording his dying declaration and the Chief Judicial Magistrate thereafter had authorized the Sub-Divisional Judicial Magistrate to go to the hospital and record the statement of Basgit Chamar. As noted above, the doctor also had found Basgit Chamar in an unconscious situation and, therefore, when the Sub- Divisional Judicial Magistrate had gone to the hospital, he could not record the statement of Basgit Chamar. In such a situation, absence of postmortem report of Basgit Chamar cannot be fatal for the prosecution, inasmuch as, this aspect has been settled by the Apex Court way back in the year 1957 in the case of Ram Chandra & Anr. Vs. State of Uttar Pradesh reported in 1957 Cr.L.J. 559 in the following terms:- “It is true that in law a conviction for an offence does not necessarily depend upon the corpus delicti being found. There may be reliable evidence, direct or circumstantial, of the commission of the murder though the corpus delicti are not traceable.”

23. The aforesaid view of the Apex Court in fact has also been Patna High Court CR. APP (DB) No.511 of 1990 dt.16-10-2012 17 reiterated even subsequently in the case of Sevaka Perumal & Anr. Vs. State of Tamil Nadu reported in 1991(3)SCC 471 wherein it was held as follows:- “5. -------- In a trial for murder it is not an absolute necessity or an essential ingredient to establish corpus delicti. The fact of death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. Take for instance that a murder was committed and the dead body was thrown into flowing tidal river or stream or burnt out. It is unlikely that the dead body may be recovered. If recovery of the dead body, therefore, is an absolute necessity to convict an accused, in many a case the accused would manage to see that the dead body is destroyed etc. and would afford a complete immunity to the guilty from being punished and would escape even when the offence of murder is proved. What, therefore, is required to base a conviction for an offence of murder is that there should be reliable and acceptable evidence that the offence of murder, like any other factum of death was committed and it must be proved by direct or circumstantial evidence, although the dead body may not be traced.------” and yet again in the case of Mani Kumar Thapa Vs. State of Sikkim reported in 2002 Cr.L.J. 4069, the same view has been again taken in paragraph no.4 by the Apex Court and thus, in the light of the aforesaid discussions, we must Patna High Court CR. APP (DB) No.511 of 1990 dt.16-10-2012 18 reject the contention of the learned counsel for the appellants that absence of dead body of the deceased Basgit Chamar and its postmortem will be fatal to the prosecution case.

24. In the considered opinion of this Court, the prosecution case gets full support from the ocular evidence of the two injured witnesses, namely, P.W.1 and P.W.3. where injury reports Exhibit 2/1 and 2/2 proven by P.W.4 reads as follows:- “Examined one injured Baul Chamar S/o Kanhai Chamar of village Nirbispur P.S. Bhagwanpur District Rohtas at 8.10 AM and found the following injuries on his person. I. One incised wound on the front of the lower part of the left side of the chest ¾” x ½” x tissue deep. II. One swelling with tenderness on the back of the left hand 2” x 3”. 6. Injury No.(i) was caused by some sharp cutting weapon whereas injury no.(ii) by hard and blunt substance. Both the injuries were simple in nature caused within six hours. Also exhibited injury report marked as Ext.-2/1. Age- within 6 hours” “Examined one injured Siwb Bachan Chamar S/o Basgit Chamar of Vill. Nirbispur, P.S. Bhagwanpur on 13.4.1981 at 8.10 AM and found following injuries on his person. (i) (ii) One scratch on the dorsum of the right thumb ¾ “ x ¼”. One lacerated wound on the front of the right leg below the right lence ¾” x ½” x ¼” (iii) One incised would on the front of the left side of abdomen below the umbilicus ½” x ½” x ¼” Injuries were simple in nature caused within six hours. Injuries nos. (i) and (ii) were caused by some hard and blunt substance whereas injury no.(iii) by some sharp cutting weapon. Patna High Court CR. APP (DB) No.511 of 1990 dt.16-10-2012 19 Age- Within six hours.”

25. P.W.3, the informant thus being the injured had not only supported his Fardbeyan wherein he had named both the appellants to be assailants of his father, deceased Basgit Chamar, who had also named appellant Rogi Chamar to be the person who had assaulted him and Basgit Chamar (P.W.1) by means of Ballam. In his deposition, he has also disclosed that as per advice of the doctor, he had proceeded from Bhabua hospital along with P.W.2 to Varanasi for providing better medical facility to his injured father Basgit Chamar but, however had succumb to his injuries in the way to Varanasi. P.W.3 was cross-examined at length by the defence over the manner of assault but, he had remained firm in his statement so far it relates to allegation and accusation against these two appellants.

26. It is true that part of the evidence of P.W.3 as with regard to naming of four other co-accused persons to be assailant of his father, who have since been acquitted by the court below, has been disbelieved but, then, that, in no view of the matter, is going to benefit these two appellants about whom there has been a consistent version either in the Fardbeyan of the informant P.W.3 or in course of his deposition in the court. The much levied criticism with regard to timings of his becoming conscious in the hospital in paragraph no.14 of his cross-examination has to be understood in the context of this witness being not only belonging to a downtrodden Patna High Court CR. APP (DB) No.511 of 1990 dt.16-10-2012 20 section of the society but also being a rustic person. In any event, the timing given by him of his gaining conscience at about 12 noon in the hospital in no view of the matter can belie either the statement of doctor who had examined the injuries on the person of deceased Basgit Chamar, P.W.1 and P.W.3 around 8.10 AM on 13.4.1981 or the recording of the First Information Report at 9 AM on 13.4.1981 or the judicial records showing the deputation of the Sub-Divisional Judicial Magistrate, Bhabua at 9.50 AM on 13.4.1981 on the order of the Chief Judicial Magistrate for recording the statement of the deceased Basgit Chamar in Bhabua hospital. In the background of these timings well proven by the records, this Court would find it difficult to disbelieve the entire prosecution case only on account of assertion made by P.W.3 in his evidence in court with regard to his gaining consciousness at 12 noon.

27. Status of rustic witness as with regard to exact timings in a mathematical manner has been considered by the Apex Court in the case of State of Uttar Pradesh Vs. Naresh reported in (2011) 4 SCC 324 wherein it has been held as follows:- “18. The High Court has given undue importance to the minor contradictions in the statement of Subedar (PW 1) and Balak Ram (PW 5) as one of them had stated that the IO reached the place of occurrence at 10.15 p.m. and another has stated that he reached about midnight. The incident occurred in mid-October

1979. This is the time when the winter starts and in such a fact situation no person is supposed to keep record of exact time particularly in a rural area. Everybody deposes according to his estimate. More so, the statement had been recorded after a long lapse of time. Therefore, a margin of 1‰ hours remained Patna High Court CR. APP (DB) No.511 of 1990 dt.16-10-2012 21 merely a trivial issue.”

28. This Court would also find that even P.W.1, the other injured witness has supported the prosecution case as an eyewitness. P.W.1 had stated that he had reached at the Khalihan on hearing hulla where the wheat was stored and kept and appellant Rogi Chamar was challenging both the deceased Basgit Chamar as also the informant P.W.3 for taking away the wheat. He has also stated that both the appellants had assaulted Basgit Chamar and while appellant Rogi Chamar had assaulted the deceased by Ballam, appellant Lallan Chamar had assaulted him by Bhalua. He has further stated that he too was assaulted by the appellant Rogi Chamar by Ballam as a result whereof his intestine had come out from the stomach. He had also narrated about the assault on the person of P.W.3. In his examination-in-chief, had also claimed to have been treated at Bhabua hospital as also removal of Basgit Chamar to Varanasi.

29. It has to be kept in mind that alike P.W.3, other injured witness P.W.1 was also subjected to a detailed cross-examination but he could not be shaken either on the point of manner of occurrence or place of occurrence. The only reference to paragraph no.17 of the P.W.1 in his cross- examination as with regard to the timings and their leaving the place of occurrence for Bhabua hospital at around 10 AM cannot discredit the entire oral evidence, inasmuch as, he too alike the P.W.3 is a rustic witness and in any event, when the examination of the deceased in Bhabua hospital at 8.10 Patna High Court CR. APP (DB) No.511 of 1990 dt.16-10-2012 22 AM, recording of the Fardbeyan of the P.W.3 at 9 AM, the deputation of Sub-Divisional Judicial Magistrate, Bhabua for recording the statement of the deceased prior to 10.45 AM are fully proved from the connected records, this timing of 10 AM by alone is not going to help the defence in any manner.

30. The Apex Court as with regard to the status of injured witnesses has consistently held that merely because they are the family members and the relatives of the deceased, their evidence cannot be altogether discarded. Reference in this connection may be usefully made to the judgment of the Apex Court in the case of in the case of Bhajan Singh alias Harbhajan Singh & Ors. Vs. State of Haryana reported in AIR 2011 SC 2552 wherein it was held as follows:- “21. The evidence of the stamped witness must be given due weightage as his presence on the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness". Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide: Abdul Sayeed v. State of Madhya Pradesh, (2010) 10 SCC 259 : (AIR 2011 SC (Cri) 964 Patna High Court CR. APP (DB) No.511 of 1990 dt.16-10-2012 23 : 2010 AIR SCW 5701); Kailas and Ors. v. State of Maharashtra,