JUDGMENT G.D. Sharma, J.
1. This appeal arises out of an internecine fight between two brothers and their family members. Vide judgment dated 2-8-1994 and 5-8-1994 passed by the learned 2nd Addl. Sessions Judge, Jammu, the appellants were convicted under Section 302 read with Section 34, RPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 2000/- each. The appellant Onkar Singh has been convicted under Section 323, RPC and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 2000/-. The deceased- Jagdev Singh was the real brother of the appellant-Baldev Singh and uncle of appellant-Onkar Singh. The appellants are the father and the son. The matrix of the prosecution case is that on 17-7-1991, the complainant-Balwan Singh and his father deceased-Jagdev Singh were cultivating their land in village Agwan, Tehsil R. S. Pora, 'When at about 8-30 a.m. the appellant accompanied by Smt. Sunita Devi and Smt. Anita Devi (daughters of appellant-Baldev Singh) criminally trespassed there. The appellants were carrying spades ('Kahis') in their hands and they threatened the deceased and the complainant to immediately desist from doing any work, otherwise face the physical liquidation. The deceased resisted the threat by pleading that the land belonged to him and they were not doing any objectionable act. Such an excuse was a bolt from the blue for the appellant-Baldev Singh, who lost his senses and gave a blow with the spade on the head of Jagdev Singh. He was followed by the appellant Onkar Singh who did the same thing as he also inflicted an injury with the spade on the head. Thereafter, they inflicted more injuries on the back and other parts of the body of the deceased. When complainant came to the rescue of his father he was attacked by the appellant-Onkar Singh, who inflicted two injuries which landed on the right arm and the back. Smt. Sunita Devi and Smt. Anita Devi threw stones on the complainant and the deceased. The deceased Jagdev Singh fell on the ground and on this happening, the appellants along with Smt. Sunita Devi and Anita Devi disappeared from the spot. The complainant took the injured Jagdev Singh to R. S. Pora Hospital where he was admitted. Babu Ram Sharma, Sub-Inspector received the information of the incident who arrived in the Hospital and recorded the statement of the complainant. The deceased-Jagdev Singh was unconscious and he could not regain senses till he succumbed to the injuries. On the basis of this statement at 1-30 p.m., the case was registered under FIR No. 185/91 in Police Station, R. S. Pora for the Commission of offences under Sections 307/447/324, RPC read with Section 34, RPC. On the same day, the injured Jagdev Singh was shifted to SMGS Hospital, Jammu where he died on 31 -7-1.991. On 20-5-1992, the appellants along with Smt. Sunita Devi and Smt. Anita Devi were charged by the learned 2nd Addl. Sessions Judge, Jammu for the commission of offences under Sections 302/34, 447, 323, RPC. They pleaded not guilty and the prosecution examined Balwan Singh P.W. 1, Smt. Raj Kumari PW. 2, Sahib Singh PW-3, Ajit Singh PW-4, Nasib Singh PW-5, Subash Singh PW-6, Ganpat Rai PW-7, Surjit Kumar Patwari PW-8, Dr. V.K. Verma PW-9, Dr. S. D. Thakur PW-10, Joginder Lal Constable PW-11, Ravinder Kumar Chalotra (SHO Police) PW-12 and Babu Ram SI PW-13 as witnesses. Relying upon the prosecution evidence, the learned Judge held the appellants guilty for the commission of murder of Jagdev Singh. Appellant No. 2 was also found guilty for causing simple hurt to complainant Balwan, Singh. They were convicted and sentenced as stated above. The co-accused Smt. Sunita Devi and Smt. Anita Devi were acquitted.
2. The appellants have challenged their conviction and sentence on the grounds that the trial Court has misappreciated the evidence. The testimony of sole eyewitness namely, complain-ant-Balwan Singh was of shaby and shaky nature but the same has been treated as credulous and relied upon. He had given two different versions of the alleged occurrence i.e. one in the FIR and the other in his statement in Court. It was stated in the FIR that some inhabitants of the village had witnessed the occurrence but none of them was examined in the Court. In the statement given on oath in the Court, he had stated that the villagers were working in their fields at a distance. The deceased had not died because of the injuries sustained by him but the death was caused because of infection of the wounds. There was no evidence to establish that the appellants had caused the injuries and they were sufficient in the ordinary course of nature to have caused the death. Undue delay was caused in lodging the report. The statements of the appellants were not recorded in accordance with the provisions of Section 342, Cr. P.C.
3. Heard the arguments.
4. The learned counsel appearing for the appellants has contended that there were three witnesses of the alleged occurrence namely, complainant-Balwan Singh, Smt. Raj Kumari and Sahib Singh. Complainant-Balwan Singh and Sahib Singh are the sons of the deceased and Smt. Raj Kumari is his widow. The case was registered at the instance of Balwan Singh whose statement EXPW-BS (the basis of FIR) was recorded on the day of the occurrence (17-7-91) by Babu Ram PW-13. The complainant-Balwan Singh had not in the FIR mentioned the names of his brother Sahib Singh and mother Smt. Raj Kumari to have witnessed the occurrence. But according to him, the occurrence had been witnessed by some inhabitants of the village Agwan. He did not name anybody. Nor such person was examined as a witness. Had his brother and mother witnessed the occurrence, he would have mentioned this fact in the FIR. The trial Judge has weighed this fact in true perspective and rightly discarded the testimony of these two planted witnesses. After the elimination of the evidence of these two witnesses and in the absence of any account given by any alleged eye-witness of the FIR, there remains the sole testimony of complainant-Balwan Singh which because of its diversity of nature and inherent infirmities does not inspire confidence. The complainant was not sure about the time of occurrence as in the FIR he had stated that the occurrence took place at about 10-15 a.m. but in his statement in the Court he has stated that the occurrence took place at 8 a.m. or 8-30 a.m. In his statement in the Court, he had resiled from the statement of the FIR that some inhabitants of the village had witnessed the occurrence. In the FIR the genesis of the occurrence is the criminal trespass committed by the appellants and co-accused Smt. Sunita Devi and Smt. Anita Devi in the land possessed by the deceased whereas, in the statement on oath it is stated that the appellants were cutting the common boundary of the land and when they were challenged they made spontaneous attack with spades. That these material contradictions cannot be reconciled and the irresistible conclusion is that he had not seen the occurrence and his testimony should be discarded.
5. Learned Govt. Advocate has contended that the complainant-Balwan Singh is a natural witness because he was also assaulted in the attack and received the injuries at the hands of appellant-Onkar Singh. That when Babu Ram PW-13 recorded his statement EXPW-BS, he was in a dazed state and a difference of two or 1 1/2 hours regarding the time of the occurrence will not deface the whole evidence. The allegation made in the FIR for the commission of trespass in the land of the complainant subsequently finding no support in his evidence on oath but a new plea that altercation regarding cutting of the common boundary of the fields by the appellants soon developing into a usual fight is a trivial or insignificant discrepancy having no relevance to the veracity of the prosecution case.
6. After considering the rival contentions it has to be seen whether the testimony of the complainant-Balwan Singh has to be accepted or rejected. In case it has to be accepted then up to what extent. There is independent medical evidence as well as the evidence of Babu Ram PW-13 that the complainant did not bat an eyelid to get his injured father and himself admitted in the nearby Govt. Hospital at R. S. Pora. There is medical evidence of corroborative nature that he had received two injuries which were of simple nature and could be caused by spade. The account of injuries and the manner in which they were caused has found support from the medical evidence. It thus cannot be said that he was not present on the spot and is a got up witness. When his presence is established, the process of sifting his evidence starts. It has to be seen how far truth and falsehood can be separated. He is a rustic villager and at the time of the incident was hardly. 18 years old. When his statement EXPW-BS was recorded undoubtedly he was in trauma as his father was in unconscious state. Here the moot question is the infliction of injuries on the deceased as well as on the complainant. He has categorically stated that appellant-Baldev Singh had dealt a spade blow on the head of the deceased. That second blow of the spade was given by appellant-Onkar Singh which also had landed on the head. The complainant interceded and asked Baldev Singh to desist from assault whereupon he was also assaulted by the appellant-Onkar Singh. The deceased-Jagdev Singh had fallen on the ground and then the appellants indiscriminately caused him the injuries on the head, back and other parts of the body. It is to be seen whether the medical evidence has supported this version or contradicted it. Dr. V.K. Verma, Medical Officer, Govt. Hospital, R. S. Pora on 17-7-1991 at 12.45 p.m. examined the said Jagdev Singh and found the following injuries on his person: -
1. Lacerated wound occipital region exposing the skull bone about 8 cm;
2. Irregular wounds lacerated 8 cm x 4 cm at centre of vertex limb right side depth of the wound upto bone;
3. Lacerated wound fore-head 6 cm x 1/2 cm upto bone;
4. Bleeding from nose;
5. Right index finger lacerated wound 2 cm x 1/2 cm.
7. The Doctor has further stated that these injuries could be caused by spades. The deceased remained as an indoor patient in the S.M.G.S. Hospital Jammu and died on 31-7-1991. The postmortem was conducted on the dead-body by Dr. S. D. Thakur, who had found these injuries on the head as well as on other parts of the body. The cause of death was due to Craniocerebral injuries. Thus, the medical evidence lends valuable corroboration to ocular account of the eye-witness. In this manner the truth and the false-hood has been separated and the substratum of the deposition is that the complainant-Balwan Singh had seen the occurrence and the injuries which were caused by the appellants had proved fatal. He was not required to give a graphic account of the incident in the FIR. This principle has been elucidated by the Apex Court in the case of Baldev Singh v. State of Punjab AIR 1996 SC 372, wherein it is held that FIR is not a substantive piece of evidence. Non-mentioning of some facts or vague reference to some others is not fatal. Also in the case of Rattan Singh v. State of H.P. AIR 1997 SC 768 : 1997 Cri LJ 833 it has been held by the Supreme Court that (para 9) -
Criminal Courts should not be fastidious with mere omissions in First Information Statement, since such statement cannot be expected to be a chronicle of every details of what happened, nor to contain an exhaustive catalogue of the events which took place. The person who furnishes first information to authorities might be fresh with the facts but he need not necessarily have the skill or ability to reproduce details of the entire story without anything missing there from. Some may miss even important details in a narration. Quite often the Police Officer, who takes down the first information, would record what the informant conveys to him without resorting to any elicitatory exercise. It is the voluntary narrative of the informant without interrogation which usually goes into such statement. So any omission therein has to be considered along with the other evidence to determine whether the fact so omitted never happened at all.
8. In the FIR, the complainant had alleged that the occurrence was witnessed by the villagers also, but in his statement in the Court he had stated that at that time there was nobody and the people were working in their fields at a distance. His evidence has already been scrutinized with care and caution and accepted partly. These discrepancies as has been detailed above are not! of such a nature which necessitate his evidence to be thrown over-board.
9. Then there remains the objection for not recording the statements of the appellants in accordance with the provisions of Section 342, Cr. P.C. The requirement of the law is that each such circumstance which is incriminating has to be put specifically, distinctly and separately. Failure to do so amounts to serious irregularity vitiating the trial if it is shown to have prejudiced the accused. If the irregularity does not, in fact occasion a failure of justice, it is curable under Section 537 of the Code of Criminal Procedure. The record reveals that the trial Judge has put each circumstance for explanation to the appellants. The incriminating part of the deposition of eye-witness Balwan Singh and the opinions of the Doctors with regard to injuries (Dr. V.K. Verma and Dr. S. D. Thakur) have been put for explanation and the answers were recorded thereto. It is not established how any prejudice has been caused in not observing the mandates of Section 342, Cr. P.C. Thus, the argument is of no avail.
10. Lastly, it is contended by the learned counsel for the appellants that injuries were caused by the deceased from the blunt side of the spade and there was no intention to cause the death and in these circumstances the offence under Section 302, RPC is not made out, but only an offence Under Section 304, Part-II, RPC is made out. Section 300, RPC defines murder which is reproduced as under :-
Murder -- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causin death, or -
Secondly, if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or -
Thirdly, if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly, if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
11. There are five exceptions in this section which make culpable homicide as not murder and there is no necessity of reproducing them here. The present case has to be viewed within the parametres of Section 300, RPC in order to hold whether it is a murder or an act of homicide not amounting to murder. The present occurrence had taken place in a field where the deceased and the complainant were cultivating the land. In case the version of the complainant is accepted then this land on family partition-had come to the share of the deceased and in case the prosecution witness Patwari Surjit Singh has to be believed, then the occurrence took place, in the land which was commonly possessed by the deceased and his brother appellant-Baldev Singh. The weapons of offence are agricultural implements i.e. spades. The fight had started for cutting of the common boundary by the appellants or regarding the planting of paddy saplings in the field. The prosecution has not established that appellants had the intention of causing the death. The matter requires discussion under head Thirdly' as enshrined in Section 300, RPC. It has to be seen whether from the testimony of the complainant-Balwan Singh, it is proved that the appellants had the intention to inflict that particular bodily injury which was proved fatal and the answer is in the negative. He has stated that appellant-Baldev Singh first inflicted an injury on the head of deceased with the spade and the injury was not of serious nature. After this, appellant Onkar Singh had also inflicted an injury on the head and when the complainant asked them not to beat his father. Mst. Sunita Devi and Mst. Anita Devi had thrown stones. The appellant Onkar Singh caused one injury to the complainant on his right arm. The second injury was caused with the blunt side of spade on his back. The medical evidence is that these two injuries on his person were simple in nature. Thereafter, the witness has stated that appellants had again attacked the deceased with spade and when he had fallen down, injuries were inflicted on the head and back. Firstly, the deceased was examined on the same day by Dr. V.K. Verma, who in his certificate EXPW-VK has specified five injuries. Injuries No. 1,2 and 3 were on the head. In cross-examination he has stated that blunt side of spade (Kahi) could have caused these injuries. Dr. S. D. Thakur conducted, the post-mortem on the dead-body of the deceased and has stated in the statement that injury No. 1 mentioned in the post-mortem report was partially healed and infected wound over top scalp in sagital flame extending from frontal to occipital region 6" x 3" bone deep. Injury No. 2 was also infected partially healed wound over right parietal region 4" x 2" bone deep. Injury No. 3 was also infected wound over left parietal occipital region 3" x 2" bone deep. Injury No. 4 was 'L' shaped linear fracture over both parietal regions. Injury No. 5 was partially healed wound in lumber region 3" x 1". Injury No. 6 was wound over left wrist 1" x 1", 2" x 1", 2" and injury No. 7 was wound over little finger of right hand 1" x 2" x 1"/ 4" x 174". He has also opined that all these injuries were partially healed and they, were all capable of being cured by treatment. Had the patient been given specialised treatment he would have been saved. He has not given any opinion as which of the injury was fatal. Rather, Dr. V.K. Verma has stated that all these injuries could be caused by spade by using its blunt side. In the presence of such evidence, it cannot be said that appellants had the intention to inflict a particular injury which proved fatal. No question was asked to the medical experts as to which of the injury or all of them were sufficient to cause death in the ordinary course of nature. Rather, Dr. S. D. Thakur has stated that in case the deceased would have received proper treatment, he would have been saved. In the presence of such evidence, it cannot be said that appellants can be convicted for the murder of the deceased. Rather, it is established from the evidence that the appellants have committed culpable homicide not amounting to murder as the act done by them was done with the knowledge that it was likely to cause death. Hence, the appeal of the appellants is accepted to the extent that they are found to have committed offence falling under Section 304, Part-II, RPC read with Section 34, RPC and not under Section 302, RPC. Their conviction and sentence is accordingly altered from 302 to 304, Part-II read with Section 34, RPC. They have been undergoing the imprisonment for the last about six years. In the circumstances of the case this imprisonment which already has been undergone by them is sufficient to meet the ends of justice. The amounts of fines imposed by the trial Judge are kept intact and in default of payment of fines, they shall further undergo rigorous imprisonment for six months each. The conviction and sentence awarded to the appellant-Onkar Singh by the trial Court for the commission of offence under Section 323, RPC is maintained. The reference made by the learned 2nd Additional Sessions Judge, Jammu (No. 36/94) accordingly stands disposed of.