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PETITIONER:

BEHARI PRASAD ETC.ETC.

Vs.

RESPONDENT:

STATE OF BIHAR

DATE OF JUDGMENT: 09/01/1996

BENCH:

RAY, G.N. (J)

BENCH:

RAY, G.N. (J)

NANAVATI G.T. (J)

CITATION:

1996 SCC (2) 317 JT 1996 (1) 93

1996 SCALE (1)162

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

G.N.Ray.J.

All these appeals arise out of a common judgment dated

March 31, 1987 passed by the Patna High Court in Criminal

Appeal No.390 of 1983 (Uday Prasad and two others Vs. State

of Bihar) and Criminal Appeal No.382 of 1983 (Sheoji Prasad

Vs. State of Bihar) arising out of the judgment dated July

18, 1983 passed by the learned 4th Additional Sessions

Judge. Arran in Sessions Trial No.314 of 1981. By the

impugned judgment, the High Court has dismissed both the

appeals and convictions and consequential sentence passed by

the learned Additional Sessions judge against the convicted

appellants were affirmed by the High Court.

The four accused namely Sheoji Prasad (A/1), Udai

Prasad (A/2). Parameswar Prasad (A/3) and Behari Prasad

(A/4) stood charged under Section 302 read with Section 149

and 34 I.P.C. for being members of an unlawful assembly with

the common object and common intention to commit murder of

one Lal Babu on April 5, 1980 at about 1.00 P.M. at Arran

town. The accused No.2 Udai Prasad was further charged under

Section 302, 148 I.P. C. and Section 27 Arms Act. The

accused Nos.3 and 4 namely Parameswar Prasad and Behari

Prasad were also charged under Section 143 and 302/149

I.P.C. Accused No.1 Sheoji Prasad was also charged under

Section 323 and 147 I.P.C. for causing voluntary hurt to

Nandji (P.W.1) with a hockey stick and for committing the

offence of rioting. There was another accused Rameswar

Prasad, the father of the accused No.2 Udai Prasad and

accused No.3 Behari Prasad out he had died before the trial

was completed. Excepting the accused Shedji Prasad, the

other three accused are close relations. The accused Nos.2

and 4 are real brothers and accused No.3. Parameswar Prasad

is the uncle (father's brother) of the accused Nos.2 and 4.

The deceased Lal Babu was nephew (brother's son) of Rameswar

(deceased) and accused No.3 Parameswar Prasad. The common

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ancestor of the deceased and the accused Nos.2 to 4, namely.

Baijnath Prasad had self acquired properties. In the

ancestral house at Mohalla Mahadeva at Arran town, all the

sons of Baijnath Prasad excepting the deceased accused

Rameswar Prasad used to reside. The said Rameswar used to

stay with the members of his family including his two sons

namely accused No.2 Udai Prasad and accused No.4 Behari

Prasad in a separate house hear Lalji Kothi close to

Shismanal chowk in the town of Arran which is within the

market area. The members of the family of Rameswar used to

stay on the upper floor of the said house and in the ground

floor there were two shops. The incident of murder had

happened close to the said shoos. The northern shop of the

said house was given by Baijnath to the father of the

deceased Lal Babu since deceased. The remaining portion was

given by Baijnath to his other two sons Gajadher Prasad

(P.W.4) and Beni Prasad, the deceased father of P.W.1 Nandji

Prasad. Such disposition of his properties by Baijnath was

not liked by his two other sons namely Rameswar (deceased

accused) and Parameswar (A/3). It appears that a probate

proceeding was pending between the five sons of Baijnath and

their successors-in-interest. The interest of deceased Beni

Prasad and deceased Badri Prasad were represented by their

sons-Nandji Prasad (P.W.1) and the deceased Lal Babu.

The residential portion of the house where accused

Rameswar used to live with his family members fell in the

share of Lal Babu and suit for eviction of Rameswar was

filed by Ram Babu. The shop room in the ground floor of the

said house which was given to the father of Ram Babu by

Baijnath was tenanted and accused No.1 Shedji Prasad was the

tenant of the said shop room. A suit for eviction of Shedji

was filed and such suit was fought upto this Court. The

tenant Sheoji Prasad compromised with the deceased Lal Babu

by giving an undertaking that by a particular date, he would

believer vacant possession of the same to the deceased Ram

Babu. Since vacant possession was not delivered, an

execution case was instituted in the court of the learned

Munsif at Arran. The executing court passed an order

directing delivery of possession by the officer of the

Court.

On the date of the incident of murder. Rajib Ranjan the

Naip Nazir of the Court (DW 1) was deputed to deliver

possession of the shop room tenanted to Sheoji Prasad to Ram

Babu deceased. The said Naib Nazir in the company of four

court peons and a lawyer reached the said shop at about 1.00

P.M. on April 5, 1980. It appears from the deposition of

Rajib (DW 1) and his report Ext.B that since one Dariachnan

Sad claimed tenancy right in respect of the said shoo room

on the ground of being inducted as a tenant by the deceased

accused Rameswar, the said Naib Nazir did not deliver

possession of the said shop room to the deceased Ram Babu

and left the place.

The prosecution case in short is that on a false plea

of tenancy raised by Dariachhan, the Naib Nazir being

prevailed upon by the deceased Rameswar, accepted the case

of tenancy and did not deliver possession to Ram Babu

without ascertaining real state of affair. As soon as the

said Naib Nazir, the court peons and the lawyer left the

place, at the exhortation of accused No.1 Sheoji Prasad, to

the accused persons present at the spot, the deceased

accused Rameswar Prasad and accused No.1 Sheoji Prasad

assaulted the informant Nandji Prasad (P.W.1) and P.W.2

Badri Prasad respectively with an iron rod for measuring

cloth and a hockey stick. Accused No.3 Parameswar Prasad and

accused No.4 Behari Prasad then caught hold of both the arms

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of the deceased Ram Babu and on being exhorted by accused

No.3 Parameswar, accused No.2 Udai Prasad fired on the

deceased Lal Babu with a countrymade pistol. The deceased

accused Rameswar gave a plow on the head of the deceased Ram

Babu with the said iron rod. Ram Babu and the two other

injured namely Nandji Prasad (P.W.1) and P.W.2 Badri Prasad

were taken to the hospital at Arran. Ram Babu, however,

succumbed to the injuries shortly after the incident. At

about 14.05 hours i.e. within half an hour of the incident,

the fardbayan of Nandji Prasad (P.W.1) was recorded and

within a few minutes formal F.I.R. was drawn up.

Investigation of the case was immediately taken up and at

about 14.15 hours, inducts of the dead body of Ram Babu was

made. The Investigating Officer visited the place of

occurrence and blood stained earth was seized and a seizure

list (Ext.6) was prepared. Both the injured P.W.1 Nandji and

P.W.2 Badri Prasad were examined by the doctor at Arran

hospital at about 14.10 hours. The Investigating Officer

Astadue Hussain, however, did not appear in court to depose.

His investigation report was identified by F.W.E. the clerk

of the public prosecutor and was marked as Ext.4.

The prosecution case has been sought to be proved by

examining several eye witnesses. P.W.1 Nandji and P.W.2

Badri are injured eye witnesses. P.W.1 Nandji is the

informant of the said incident of murder and rioting. P.W.2

Badri Prasad is the father-in-law of the deceased. PW 3

Kumkum is the daughter of the deceased. She is a school

going girl aged about 14 years. According to her evidence,

she had gone to the place of incident for witnessing

delivery of possession of the shop through Court. P.W.4 is

Sajadher Prasad who is an uncle of the deceased. P.W.5 has

not deposed for the prosecution but he was tendered for

cross examination.

The learned Additional Sessions Judge after

consideration of the evidences adduced in the case and the

materials on record inter alia came to the finding that the

accused were pent upon not giving possession of the shoo

room and was also pent upon harassing the decree holder

deceased and being annoyed with the deceased for taking

steps to get delivery of the possession of the said shop

room through court, the accused took extreme step in

eliminating the decree holder by killing him and also

assaulting the uncle and the father-in-law of the deceased

who were present at the spot in order to help the deceased

in taking possession. The learned Additional Sessions Judge

held that all the four accused along with deceased accused

Rameswar had formed an unlawful assembly for the purpose of

killing Ram Babu and assaulting his helpers on April 5, 1980

at about 1.00 P.M. on the road in front of Lallanji kothi

and in furtherance of common object and common intention of

the accused, accused No.2 Udai Prasad committed murder of

Ram Babu by country made gun and other two accused namely

accused No.3 Parameswar and accused No.4 Behari Prasad in

furtherance of the said common object and common intention

held both the arms of deceased Ram Babu and Parameswar also

exhorted Udai to kill Ram Babu. The learned Additional

Sessions Judge also held that deceased Rameswar and accused

No.1 Sheoji Prasad assaulted P.W.1 and P.W.2 and Rameswar

also assaulted the deceased.

The learned Additional Sessions Judge, therefore, held

accused No.2 Udai Prasad guilty for the offence under

Section 302 and 148 I.P.C. and also under Section 27 of the

Arms Act for possessing unauthorised arm and also found him

guilty under Section 302 read with 149 and 302/34 I.P.C. The

said accused No.2 Udai Prasad was sentenced to imprisonment

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for life for offence under Section 302 but no separate

sentence was passed for the offence under Section 148.

302/149. 303/34 I.P.C. and Section 27 of the Arms Act.

Accused No.3 Parameswar and accused No.4 Behari Prasad were

sentenced to imprisonment for life for offence under Section

302/149. They were also found guilty for offence under

Section 302/34, 302/109 but no separate sentence was passed

for such offence. Accused No.1 Sheoji Prasad was sentenced

to imprisonment for life for the offence under Section

302/149 I.P.C. but no separate sentence was passed for the

offence under Section 302/34 and 147 I.P.C. although he was

found guilty for such offence.

Against the said conviction and sentence of the learned

Additional Sessions Judge. Udai Prasad, Behari Prasad and

Parmeswar Prasad preferred Criminal Appeal No.390 of 1983

before the Patna High Court. Sheoji Prasad preferred

Criminal Appeal No.382 of 1983 before the Patna High Court

against his conviction and sentence. Both the appeals were

heard analogously by the Division Bench of the High Court

and by a common judgment dated March 31, 1987, the High

Court dismissed both the appeals by affirming the conviction

and sentence passed by the learned Additional Sessions

Judge.

Mr.Sushil Kumar, the learned Senior Counsel appearing

for the appellant Behari Prasad in Criminal Appeal No.1 of

1989 has submitted that in this case it is an admitted

position that the deceased and the alleged eye witnesses for

prosecution belong to one camp. The close relations of the

deceased namely P.W.1, 2, 3 and 4 are highly interested

witnesses and they were actuated by a strong desire to

ensure that deceased accused Rameswar and their two sons

namely Udai Prasad (A/2) and Behari Prasad (A/4) and their

uncle Parameswar Prasad (A/3) were roded in for the offence

of murder of Ram Babu. Admittedly, the incident had taken

place in broad day light in the market area of Arran town

where number of independent persons were present. But the

prosecution chose to examine only the close relations of the

deceased to prove the case and no independent and reliable

witness has been examined.

Mr.Sushil Kumar has submitted that according to the

prosecution case the Naib Nazir had already been influenced

by the accused and the judgment debtor Sheoji Prasad and the

said Naib Nazir on the protest by one Dariachnan claiming

tenancy right in the disputed shop room, did not deliver

possession of the said shoo and had left the place.

Therefore, there was no occasion to indulge in criminal

activities including commission of a grave offence of murder

in the broad cay light in a market place of a town. The

prosecution story on the face of it is highly improbable.

Mr.Sushil Kumar has submitted that alleged eye witnesses

have deposed that the tenant of the shop Sheoji Prasad (A/1)

had only a hockey stick in his hand. The others were empty

handed. The deceased accused Rameswar had also no weapon in

his hand but he picked up a small iron rod (for measuring

cloth) in the shop itself. The deceased was admittedly

accompanied by his relations. If there was any common object

or common intention to kill the deceased Ram Babu, it was

reasonably expected that the accused would have come

variously armed so that oesdite expected resistance from the

deceased and his relations and companions, they could over

power the deceased and his companions with the help of

weapons to be carried by them. The very fact that the

accused were practically unarmed, amply indicates that there

was no common object or common intention to commit murder of

Ram Babu. Admittedly, Sheoji is a tenant of the shop in

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question. Deceased Rameswar and his two sons Udai and Behari

admittedly stayed in the upper floor of the same building.

Parameswar was a vary close relation of the said three

accused being brother of Rameswar and uncle of Udai and

Behari. Hence, the presence of the said accused in the shop

or hear the shop, even if accepted, will not constitute

formation of unlawful assembly. According to the prosecution

case, after the Naib Nazir of the court had left the shop.

Sheoji Prasad (A/1) exhorted to the other accused to assault

the deceased. On such exhortation. Nandji Prasad (P.W.1) and

Badri Prasad (P.W.2) were assaulted by Rameswar and Sheoji

Prasad respectively with iron rod (for measuring cloth) and

hockey stick. The prosecution witnesses have not alleged

that other accused on such exhortation assaulted the said

witnesses or even Ram Babu. The only allegation is that

Parameswar (A/3) and Badri (A/4) had caught both the arms of

the deceased. According to prosecution case, it was only at

this stage that Parameswar exhorted Udai to kill Ram Babu

whereupon Udai (A/2) whipped out a countrymade pistol and

fired at Ram Babu. Mr.Sushil Kumar has submitted that there

is enough doubt as to which weapon was used by Udai. The

weapon was described both as a gun and as a pistol. Such

vague description of the weapon by the eye witnesses who

claimed to have seen the occurrence from a close range, also

suggests that they had not seen any weapon in the hand of

Udai and noticing that an injury by a fire arm was caused to

the deceased, a false allegation of using a pistol or a gun

by Udai was made.

Mr.Sushil Kumar has submitted that the prosecution

story cannot be accepted because the manner in which the

deceased was injured by a gunshot is highly improbable.

Mr.Sushil Kumar has submitted that if accused No.3 and

accused No.4 had held both the arms of the deceased and

accused No.2 Udai had shot the deceased from a close range

by using deletes, both accused No.3 and accused No.4 would

have sustained injuries at least by few deletes because such

deletes would have diverged after coming out of the barrel

of the gun. But no such injury was caused to the said

witnesses. Appreciating the improbability of the prosecution

case, the eye witness tried to embellish at the time of

deposition. Although it was not stated in the fardbayan

constituting F.I.R. that the said two accused had released

the hands at the time of firing, such case was later on

sought to be introduced in the deposition. Such material

contradiction in the case made out in deposition and as

alleged in F.I.R. coming from a close relation and

interested witness should not be accepted particularly in

the absence of any corporation from reliable, independent

and disinterested witnesses. Mr.Sushil Kumar has submitted

that no reliance should be made on the deposition of the

daughter of the deceased (Kumkum). She was admittedly a

school girl and normally she would have been in the school

at the time of commission of offence. But she has deposed

that she did not go to school but came to the market place

to witness the delivery of possession of the shop room. Such

case is highly unusual and improbable and no credence should

be given to the deposition of such chance witness who was

normally not expected to be present.

Mr.Sushil Kumar has admitted that in this case

Investigating Officer has not been examined. But the entire

case diary was allowed to be exhibited. The prosecution and

the Judge have relied on the nothings in the case diary

Although the maker of the case diary did not prove the

correctness of such nothings and the correctness of the

recordings in the diary had not been tested by cross

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examining the Investigating Officer. Mr. Sushil Kumar has

submitted that by looking to the case diary and relying on

the same in support of prosecution case serious prejudice to

the accused has been caused and such action has occasioned a

grave miscarriage of justice.

In this connection, Mr.Sushil Kumar has referred to the

decision in State of kerala Vs. Ammina (AIR 1988 Kerala 1 =

1988 Crl.L.J. 107). A Division Bench of the kerala High

Court has held in the said decision that the diary mentioned

in Section 172 (1) and statements recorded under Section 161

(3) of the Code of criminal Procedure are covered by the

sweep of inhibition contained in Section 162 of the Code.

The prohibition imposed in Section 162 cannot be

circumvented by resort to Section 172 (2) of the Code. The

two are different records, though the diary envisaged under

Section 172 (1) and statements recorded under Section 161

(3) may together be incorporated in the same file which the

police call for the sake of convenience case diary file.

That apart, Section 172 (2) of the Code embodies an

inhibition that the diary envisaged in that section is not

to be used as evidence in the case. Mr.Sushil Kumar has also

relied on a decision of the Mysore High Court in Hirianna

Shetty Vs. The State of Mysore (1972 (1) Mysore Law Journal

50). It has been held in the said decision that the

examination of the Investigating Officer is necessary in

order to bring on record the contradictions in the

statements of witnesses and such a right is a valuable right

of the accused. Non examination of the Investigating Officer

is a serious infirmity in so far as it deprives the accused

of an opportunity to show that witnesses were not reliable

by proving contradictions in the earlier statements.

Mr.Sushil Kumar has submitted that the accused in this case,

particularly when the witnesses were only partisan

witnesses, have suffered serious prejudice on account of

being deprived of the opportunity to point out material

contradictions in the earlier statements of the witnesses

for not examining the Investigating Officer.

Mr.Sushil Kumar has submitted that in the aforesaid

facts, the prosecution case must be held to have not been

proved beyond reasonable doubt and all the accused should be

acquitted. Mr.Sushil Kumar has also submitted that in any

event accused No.4 Behari Prasad deserves to be acquitted.

Admittedly, he was staying on the upper floor of the

building in which the said shoo room appertained. It is

quite probable that out of curiosity he had come to see the

action by Naib Nazir in execution of a court case. He was

admittedly empty handed. The only allegation against him was

that he caught hold of one of the arms of the deceased. When

suddenly Parameswar exhorted to Udai to kill the deceased.

Udai whipped out a fire arm and shot at the deceased. It

cannot be reasonably held that he had any common intention

or common object of killing Ram Babu. It is not unlikely

that although he along with others might have intended to

give some thrashing to the deceased, the events suddenly

changed on the exhortation of Parameswar to kill the

deceased. It is also not unlikely that Behari was rot aware

that Udai had concealed a fire arm which he had used on

sudden provocation by Parameswar. Hence, no conviction under

Section 302/149 or 302/34 I.P.C. can be given to Behari even

if the prosecution case that he caught one of the arms of

the deceased is accepted on its face value. The appellant

Behari, therefore, should be acquitted by allowing his

appeal.

Mr.U.R.Lalit, learned senior counsel appearing for the

appellant Parameswar in Criminal Appeal No.437 of 1988 has

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also endorsed the arguments made by Mr.Sushil Kumar that the

prosecution case was not believable and had not been

established beyond reasonable doubt. He has also endorsed

the submission that the case diary not having been proved,

such case diary could not be looked into and the accused had

suffered serious prejudice for not examining the

Investigating Officer. He has submitted that such non

examination of the Investigating Officer and consequential

prejudice in not getting the opportunity to effectively

cross examine the eye witnesses by indicating contradictions

in the earlier statements before the police, have vitiated

the trial.

Mr. Lalit has submitted that Parmeswar is the real

brother of Rameswar and uncle of Udai and Behari. His

presence in or hear the residential house of Rameswar was

neither unusual nor per se illegal. He was admittedly

without any arm. The allegation against him is that he

caught hold of one of the arms of the deceased Ram Babu and

exhorted Udai to kill Ram Babu and Udai thereafter shot the

deceased. Such case is highly improbable. He has also

submitted that no man holding an arm of the victim will ask

the assailant to fire bellet shots on the victim from a

close range because in that event, the person giving

exhortation was also likely to be injured. Mr.Lalit has

submitted that the prosecution case was wholly unreliable

and the appellant should be acquitted.

Mr.Promod Swarup learned counsel appearing for the

appellant Sheoji Prasad in Criminal Appeal No.195 of 1989

has also endorsed the submissions of Mr.Sushil Kumar and has

submitted that the prosecution had not only failed to

establish the prosecution case beyond reasonable doubt but

such case on the face of it was highly improbable. Mr.Swarup

has submitted that Sheoji Prasad is not related to the other

accused or the deceased and their relations. He is

admittedly a member of a different caste. Sheoji Prasad was

tenant of the shop in respect of which decree for eviction

was passed. Sheoji Prasad had undertaken to vacate the shoo

room before this Court. It is, therefore, unlikely that on

his own initiative he would flout the undertaking and

forcibly resist execution of the decree. Even if it is

assumed that he was keen in frustrating the execution of the

decree, admittedly such purpose was secured when the Naib

Nazir without executing the decree left the place. After

such event, there was hardly any occasion for Sheoji Prasad

to wreck any vengeance on the decree holder by inciting

other accused. Presence of Sheoji Prasad in his own shop is

wholly legal and he cannot be held to be a member of

unlawful assembly. The allegation is that after the Naib

Nazir and court peons and the lawyer had left the shop, he

exhorted other accused to assault the deceased and his

companions. It is alleged that Sheoji had only a hockey

stick with which he assaulted Badri Prasad. There is no

allegation against him that he assaulted the deceased or

exhorted for killing the deceased. Mr.Swarup has submitted

that even if the prosecution case is accepted. Sheoji Prasad

is not liable to be punished for offences under Section

302/34, 302/149 and Section 147 I.P.C. Hence, conviction of

Sheoji Prasad for the aforesaid offences is wholly illegal

and should be set aside.

The learned counsel appearing for Udai Prasad (A/2) in

Criminal Appeal No.789 of 1989 has endorsed the submissions

of the learned counsel appearing for other appellants by

contending that the prosecution case was improbable and the

same had not been established beyond reasonable doubt.

Hence, the said accused should also be acquitted by giving

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him benefit of doubt. As there was direct evidence about the

commission of murder by this appellant, the learned counsel

has not advanced any submission regarding absence of common

object or common intention in murdering Ram Babu.

The learned counsel for the State appearing in all

these appeals has, however, refuted the contentions made by

the learned counsel for the appellants. It has been

contended by the learned counsel for the State that the

prosecution case has been clearly established by reliable

evidences of the eye witnesses. Such eye witnesses being

close relations were expected to be present at the place of

occurrence. Simply because they are relations, it cannot be

held that they were partisan and deposing falsely. The

learned counsel has submitted that the said witnesses were

also close relations of the accused excepting Sheoji Prasad.

After a long drawn battle upto the Apex Court, the deceased

was going to get possession. The daughter of the deceased

aged 14 years became curious to notice execution through

court and came with elderly relations. There is nothing

unusual in her presence at the time of occurrence. P.W.1 and

3 were injured witnesses. Shortly after the incident, they

were examined by doctors. F.I.R. was also lodged immediately

after the incident and the accused were named. Hence, no

interference is called for in these appeals.

After considering the facts and circumstances of the

case and the judgments of the learned Additional Sessions

Judge and of the High Court and the evidences adduced in the

case through which we have been taken by the learned counsel

for the parties and considering the submissions made by the

learned counsel for the parties, it appears to us that the

prosecution case has been proved by the eye witnesses in

this case. Over the shoo room, a long drawn battle was

fought by the deceased upto this court. Ultimately, the

delivery of possession of the shop through court was fixed

on the date of incident. It was, therefore, quite natural

that the said eye witnesses being close relations of the

deceased were present at the place and at the time of the

incident. In our view, the learned counsel for the State is

also justified that in the facts of the case the presence of

the daughter of the accused aged 14 years in the company of

elderly relations was also not unusual. The accused Nos.2 to

4 and deceased accused Rameswar though related to the

deceased had been harbouring ill feeling and grudge against

the deceased. As a matter of fact, suit for eviction was

also filed by the deceased against Rameswar. It was,

therefore, quite likely that they took side of Sheoji Prasad

in frustrating the execution of the eviction decree against

Sheoji Prasad. Although, the accused managed for the time

being to frustrate execution of decree through court by

influencing Naib Nazir to accept the case of independent

tenancy in favour of a third party on the face value of the

statement of such tenant without ascertaining relevant facts

and thereby sending him back without executing the decree,

the accused were fully aware that the decree for eviction

affirmed upto this court was staring on their face. They

were, therefore, quite agitated and it is not at all

unlikely that they became revengeful against the decree

holder deceased Ram Babu.

Immediately after the Naib Nazir, Court peons and the

lawyer had left the place of occurrence, at the behest of

accused No.1 Sheoji Prasad the accused No.1 and deceased

accused Rameswar assaulted P.W.1 and P.W.2. The accused No.3

and 4 with an intention to immobilize the deceased caught

both of his arms. It is the positive case of the prosecution

that accused No.3 Parameswar exhorted accused No.2 Udai to

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kill the deceased and accused No.2 then whipped out a fire

arm and shot at the deceased from a close range which caused

his death. From the evidences of the eye witnesses it is

quite evident that the accused were aware that one of them

namely Udai (A/2) was carrying a fire arm for assaulting the

deceased. In order to facilitate such assault on the

deceased both accused No.3 and 4 took active part by holding

both the arms of the deceased to make him immobile. Accused

No.2 Udai then fired at the deceased. The fire arm was

described both as pistol and gun. But the nature of the fire

arm has been explained by the eye witnesses. The fire arm

was a countrymade weapon. It was not unlikely that barrel of

the fire arm not being of any standard size, there was

confusion in describing the fire arm very accurately. But in

view of clear evidence that the deceased was shot at by a

countrymade fire arm by Udai Prasad (A/2), we do not find

any reason to entertain any doubt that the eye witnesses had

not seen Udai firing from a country made fire arm. The

medical evidence has also corroborated the case of suffering

pellet injuries by the deceased. In this case. P.W.1 and

P.W.2 are injured eye witnesses. Their presence at the time

of incident is, therefore, not to be doubted. They were also

examined almost within an hour by this doctor. The Pardbayan

forming F.I.R. was lodged within about half an hour and the

names of the accused and their specified roles were also

indicated in F.I.R. It has been contended by the learned

counsel that if the deceased had been shot at from a close

range when the two accused had been holding the arms of the

deceased, they also would have suffered pellet injuries and

the fact that they had not suffered such injury only

indicates that the deposition of the eye witnesses are

false. Such submissions, however, should not be accepted.

There is clear evidence that just before the firing the said

accused left the deceased. In the facts of the case, no

adverse inference against the prosecution case need be drawn

for not giving the detailed account of the firing by

indicating that the two accused holding arms had left the

deceased just at the time of firing. It may be noted that

F.I.R. was lodged almost within half an hour of the incident

by the injured witness who apart from discomfort on account

of injury sustained by him, was likely to be completely

upset at the unfortunate incident of killing of his close

relation before his eyes. In such circumstances, omission to

mention of the fact of leaving the arms of the deceased by

the accused Parameswar and Behari just at the time of firing

is understandable.

It, however, appears to us that the entire case diary

should not have been allowed to be exhibited by the learned

Additional Sessions Judge. In the facts of the case, it

appears to us that the involvement of the accused in

committing the murder has been clearly established by the

evidences of the eye witnesses. Such evidences are in

conformity with the case made out in F.I.R. and also with

the medical evidence. Hence, for non examination of

Investigating Officer, the prosecution case should not fail.

We may also indicate here that it will not be correct to

contend that if an Investigating Officer is not examined in

a case, such case should fail on the ground that the accused

were deprived of the opportunity to effectively cross

examine the witnesses for the prosecution and to bring out

contradictions in their statements before the police. A case

of prejudice likely to be suffered by an accused must depend

on the facts of the case and no universal straight jacket

formula should be laid down that non examination of

Investigating Officer per se vitiates a criminal trial.

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These appeals, therefore, fail and are dismissed. The

appellants who have been released on bail should be taken

into custody to serve out the sentence.