Prasad & Ors Vs. State of Bihar  Insc 848 (24 November 2006)
Sinha & Markandey Katju S.B. Sinha, J :
five in number were proceeded against and convicted for commission of an
offence of murder of one Shivnandan Prasad at about 07.00 a.m. on 13.12.1999. The parties are residents of the same
13.12.1999 at about 06.30
a.m., the deceased was
milking a buffalo. His other family members including the wife of his brother
(informant Krishna Deo Prasad-PW-7), nephew Sunil Prasad and others were
brushing their teeth at the roof of their house. Brijnandan Prasad and others
have their joint residential house at some distance from the house of the
deceased. They allegedly came over the roof of their house armed with rifles
and started brick-batting and abusing the brother of the informant alleging
that they had burnt a heap of straw belonging to them. When Shivnandan Prasad
went to the roof of the house, allegedly the appellants started firing. One of
the bullets hit Shivnandan Prasad on his chest. An alarm was raised. The first
informant reached near his brother and found him dead. A First Information
Report was lodged at about 10.00 a.m. on
the same day before Chandi Police Station. The distance between the place of
occurrence and the Chandi Police Station is said to be about 10 k.m.
prosecution in support of its case examined five witnesses, amongst whom the
eye-witnesses, being Satrughan Prasad (PW-4), Chandrakanti Devi (PW-5), Sunil
Kumar (PW-6), Krishnadeo Prasad (PW- 7) and Mahapati Devi (PW-8).
learned Sessions Judge relying on or on the basis of the evidence adduced by
the prosecution and in particular the deposition of the eye- witnesses found
the appellants guilty of commission of an offence under Section 302/34 of the
Indian Penal Code and sentenced them to undergo rigorous imprisonment for life.
A fine of Rs.5,000/- was also imposed upon each of them. They were also found
guilty under Section 27 of the Arms Act and were convicted to undergo rigorous
imprisonment for one year. The appeals preferred by the appellants have been
dismissed by a Division Bench of the High Court.
Rai, the learned Senior Counsel appearing on behalf of the appellants, would
raise the following contentions in support of the appeals.
prosecution version on the basis whereof the judgment of conviction and
sentence has been arrived, at is improbable and the same is falsified by
the occurrence had taken place in the morning, as alleged by the prosecution,
the post-mortem examination having been conducted at 03.00 p.m. on the same
day, it was not possible to find presence of rigour mortis in all the four
limbs and furthermore keeping in view the distance from which the firing had
taken place, the doctor would not have found margin of wound having been
manner in which the incident took place as disclosed by the prosecution having
been prevaricated from stage to stage should not be relied upon, inasmuch as in
the First Information Report it was alleged that three persons fired, whereas
in the statements made under Section 161 of the Code of Criminal Procedure, the
witnesses attributed firing to all the accused, whereas in evidence some of the
witnesses attributed the act of firing only on the Brijnandan Prasad.
investigation was perfunctory, as no blood was found at the spot; no gun was
recovered; no sign of firing was noticed.
is improbable that although there had been indiscriminate firing, nobody else
would have suffered any injury.
Even if the occurrence had taken place, it was only Brijnandan Prasad who had
fired and, thus, participation of others having common intention to commit the
said offence has not been proved.
Singh, the learned Standing Counsel appearing on behalf of the State of Bihar, on the other hand, would submit :
the place of occurrence blood was seized, which has been proved by some of the
eye-witnesses as also PW-2.
witnesses examined on behalf of the prosecution has further proved that the
appellants had indulged in brick batting.
firing by the appellants and in particular Brijnandan Prasad has categorically
been stated by all the witnesses.
adverting to the rival contentions, as noticed hereinbefore, we may notice that
on the same day, the brother of the appellants Bhuvan Mahto was said to have
been done to death wherefor a First Information Report was lodged in which the
first informant and the deceased were said to be the accused, but it is
accepted that in the said case also being Chandi P.S. Case No. 374 of 1999, a
charge-sheet has been filed wherein also the appellants have been made accused
and not the informant or the deceased.
homicidal nature of the death of the deceased is not in dispute.
report of Dr. Prabhat Keshaw corroborates the homicidal nature of death. In his
deposition, he stated :
mortis present in all four limbs.
No. (i) One lacerated wound on occipital region on scalp 1 =" x 1" x
One lacerated wound on right side of chest at the length of second
inter-coastal space 1 =" lateral to the external margin 2" x 1"
x cavity deep size, margin of wound charred and inverted, wound of entry.
Third rib fractured.
One lacerated wound on left side of back at bare area, just below the lower the
lower border of scapula 1 =" x 1" x cavity deep size, margin of wound
everted, wound of exit. Both injury No. II & IV are inter connected with
dissection, skull, brain and brain matter intact, right lung perforated, left
lung intact, arch of aorata intact contents 3-4 ounces of undigested food
materials, liver, splin, both kidneys intact, gasses ficle matters present in
small and large intestine respectively.
bladder was half full. Time elapse since death within 24 hours.
my opinion death occurred due to shock and haemorrhage caused by above noted
injury caused by fire-arm. May be by rifle. The above noted injuries are
sufficient for death. This post mortem report is in my pen and signature mark Exh.
4." In his cross-examination, he stated that the distance of firing was
more than 6 feet and was from long range, i.e. beyond 6 feet; although he could
not say the exact distance. He, however, could not state that the injury was
from parallel height or from higher height. In regard to the presence of rigour
mortis, it was stated :
start of rigour mortis depends on the temperature and weather conditions, but
in this case rigour mortis developed after three hours. In all turn limbs
developing of rigour mortis take 18 hours in such types of cases." The
deceased met instantaneous death. Although the investigation was conducted in a
slipshod manner, but the presence of blood at the spot of occurrence as also
seizure thereof had categorically been stated by PW-4, PW-5, PW-6, PW-7, PW-8
and PW-2. PW-2, Kapil Prasad, is an independent witness. He categorically stated
stained soil and brick bats were also seized by the police in my presence and
prepared the seizure list" It is, thus, not correct to say that no blood
was found at the spot.
reiterated his statement in the cross-examination in the following terms :
police seized blood stained soil, bricks etc. in my presence. I cannot say the
length and breadth of the bricks. I do not remember the area of the place from
where the blood was seized. The soil might be 4-5 hundred grams" We may
also notice that in the First Information Report, it was categorically stated
that the appellants herein had indulged in brick batting.
statement to the said effect was proved by PW-4, PW-5, PW-6, PW-7, PW-8 and
other eye-witnesses in their depositions before the court. This part of the
prosecution is not under challenge before us.
also notice the fact that there had been firing from the side of the appellants
has not only been disclosed in the First Information Report but also stated by
the witnesses. We would, however, examine the effect of the depositions of the
said witnesses, in this behalf, a little later.
notice that according to PW-3, the firing took place from a distance of about
50- 60 feet, whereas according to PW-4, the distance was anything between 40-45
feet. Both PW-7 and PW-8 stated that the distance from which the firing took
place was about 40- 45 feet.
also not in dispute that whereas prosecution witnesses PW-4, PW-7 and PW-8 also
stated that the appellants were in the second floor of their house, whereas the
deceased, informant and others were in the first floor of their house. However,
the difference of height of the respective buildings is not brought on records.
discrepancies between the medical evidence and ocular evidence, however, as
noticed hereinbefore, have been raised on two counts, namely,
mortis in four limbs were found; and
in view of the injury sustained by the deceased, the firing must have taken
place from a close distance.
must, however, state that before the High Court, the second contention was not
raised. Even before the learned Sessions Judge the only contention raised was
in regard to the time of death and with reference to the presence of rigour
mortis in all the four limbs. In the grounds of the Special Leave Petition
also, the question in regard to the possibility of the deceased having been
fired upon from a close distance has not been raised.
deal with the question as regards presence of rigour mortis.
Textbook of Medical Jurisprudence and Toxicology',21st Edn., at page 171, it is
mortis generally occurs, while the body is cooling. It is in no way connected
with the nervous system, and it develops even in paralyzed limbs, provided the
paralyzed muscle tissues have not suffered much in nutrition. It is retarded by
perfusion with normal saline.
to the setting in of rigor mortis all the muscles of the body become stiff,
hard, opaque and contracted, but they do not alter the position of body or
limb. A joint rendered stiff and rigid after death, if flexed forcibly by
mechanical violence, will remain supple and flaccid, but will not return to its
original position after the force is withdrawn; whereas a joint contracted
during life in cases of hysteria or catalepsy will return to the same condition
after the force is taken away.
mortis first appears in the involuntary muscles, and then in the voluntary. In
the heart it appears, as a rule, within an hour after death, and may be
mistaken for hypertrophy, and its relaxation or dilatation, atrophy or
degeneration. The left chambers are affected more than the right. Post-mortem
delivery may occur owing to contraction of the uterine muscular fibres.
voluntary muscles rigor mortis follows a definite course. It first occurs in
the muscles of the eyelids, next in the muscles of the back of the neck and
lower jaw, then in those of the front of the neck, face, chest and upper
extremities, and lastly extends downwards to the muscles of the abdomen and
lower extremities. Last to be affected are the small muscles of the fingers and
toes. It passes off in the same sequence.
according to H.A. Shapiro this progress of rigor mortis from proximal to distal
areas is apparent only, it actually starts in all muscles simultaneously but
one can distinguish the early developing and fully established stage, which
gives an indication of the time factor.
varies greatly in different cases, but the average period of its onset may be
regarded as three to six hours after death in temperate climates, and it may
take two to three hours to develop. In India, it usually commences in one to two hours after death." In
Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology'
6th Edn., at page 3.14, it is stated :
mortis (rigor-rigidity; mortis-of death) is a condition characterized by
stiffening and shortening of the muscles which follow the period of primary
relaxation. It is due to chemical changes involving the structural proteins of
the muscle fibres and indicates the molecular death of its cells.
contractile element of the muscle consists of protein filaments of two types, viz,
myosin and actin, which are arranged and organized interdigitating manner.
relaxed state, the actin filaments interdigitate with myosin filaments only to
a small extent but when the muscle contracts, they interdigitate to a great
extent due to the presence of ATP (adenosine triphosphate). The production and
utilization of ATP are constantly balanced in life. After death, ATP is resynthesised
for a short time depending upon the glycogen available locally, but after this
glycogen is used up, ATP cannot be resynthesised. This leads to the fusion of
myosin and actin filaments into a dehydrated stiff gel resulting in the
condition known as rigor mortis. During rigor mortis, the reaction of muscle
changes from slightly alkaline to distinctly acid owing to the local formation
of lactis acid.
mortis persists until autolysis of myosin and actin filaments occurs as a part
of putrefaction. When autolysis occurs, the muscles soften and secondary
relaxation sets in.
mortis can also be broken by mechanical force. Thus, if a limb, which is stiff
due to rigor, is flexed forcibly at a joint, the limb becomes flaccid and will
remain so thereafter. This is known as breaking of rigor mortis. Existing rigor
mortis is broken down at least partially in the process of removal of the body
from the crime scene to mortuary, and this may mislead the doctor in estimation
of time since death. It is therefore essential to make a note of its stage of development
while visiting the crime scene.
muscles of the body, voluntary and involuntary, are affected by rigor. It first
appears in involuntary and then in voluntary muscles. It is not dependent on
the nerve supply as it also develops in the paralysed limbs. It is tested by
to lift the eye lids
the jaw, and
bending the neck and various joints of the body." At page 3.16 it is stated
medico-legal importance is as follows :
is a sign of death
helps to estimate the time since death.
may give information about the position of the body at the time of death and if
it has been altered after rigor has set in. As for example, if a person dies
with the hands and legs supported against a brick wall and the position of the
body has been changed after rigor set in, the hands and legs would remain
raised in an unnatural position (without support) The factors which influence
rigor mortis are : age and condition of the body (2) mode of death, and (3)
and condition of the body : In children and old people, rigor develops earlier
than in the adults. The onset of rigor is later and the duration longer in the
strong muscular person. The more feeble or poorly developed the muscles, the
more rapid is the time of onset, and the shorter the duration" The exact
time of death, therefore, cannot be established scientifically and precisely,
only because of presence of rigour mortis or in the absence of it..
Khan and Others v. State of Rajasthan
[(2005) 10 SCC 374], this Court rejected a similar contention, opining :
the first place, neither post-mortem report suggests that the death had taken
place exactly 24 hours before the post-mortem was conducted. All that the
post-mortem reports say is that the death had occurred within 24 hours prior to
PM examination. Undoubtedly, the post-mortem examination was carried out at 11.00 a.m./12 noon on 11- 7-1997. In other words, the post-mortem reports suggest
that the death might have occurred any time after 11.00/12.00 noon of 10-7-1997. The contention urged by reference
to textbooks on forensic medicine to show the time within which rigor mortis
develops all over the body also has no factual basis. It depends on various
factors such as constitution of the deceased, season of the year, the
temperature in the region and the conditions under which the body has been
preserved. The record indicates that the body was taken from the mortuary. We
notice that there is no cross-examination, whatsoever, of the doctor so as to
elicit any of the material facts on which a possible argument could have been
based. If these are the circumstances, then the presence of rigor mortis all
over the body by itself cannot warrant the argument of the learned counsel that
the death must have occurred during the previous night. Acceptable ocular
evidence cannot be dislodged on such hypothetical basis for which no proper
grounds were laid." Yet again in Thangavelu v. State of T.N. [(2002) 6 SCC 498], this Court observed :
have heard learned counsel and carefully looked into the material on record.
From the evidence of PW-5, the doctor, we find that there is a possibility that
the incident in question might have occurred about 39 hours prior to the post
mortem. Though in the examination in chief, PW-5 has stated that the time
between the death and post mortem could be 16 to 24 hours which fits in with
the prosecution case, in the cross examination he has very clearly stated that
in this case death would have been caused about 39 hours before the post mortem
which would be sometime after 5.30 p.m. on 15.12.1990. This the doctor has
stated by taking into consideration the time and month of the incident as also
the time required for the setting of rigor mortis and passing off of the same.
According to the doctor, in the month of December in a place like Erode the
rigor mortis may set in after about 2 to 3 hours after the death. He has stated
that for the rigor mortis to reach from the leg to head, it would take 12 hours
and the same would remain in existence for about another 12 hours. Thereafter,
it would gradually diminish in the reverse direction i.e. from head to leg
taking about another 12 hours and on this basis when he examined the body of
the deceased, he found the rigor mortis had reversed almost to the end of the
legs. By this process he came to the conclusion that the death in question must
have occurred about 39 hours before post mortem" The incident took place
in the winter season. The deceased was aged about 50 years. Rigour mortis,
thus, would be well marked. Rigour mortis, as noticed hereinbefore, appears
after two to three hours. It is well developed from head to foot in about 12
hours. The age, muscular condition and activity before death, manner of death
and atmospheric conditions are relevant factors. We, therefore, do not find any
merit in the said contention of Mr. Rai.
as the contention in regard to distance of firing is concerned, it is true,
ordinarily, charring would take place, if firing is done from a distance of
less than four feet, as has been noticed in some of judgments of this Court in Subhash
and Another v. State of U.P. [(1976) 3 SCC 629], Nath Singh and Others etc. v.
State of U.P. [(1980) 4 SCC 402], State of Punjab v. Wassan Singh and Others
[(1981) 2 SC 1] and Sidharth and Others v. State of Bihar [(2005) 12 SCC 545].
some cases, medical evidence may corroborate the prosecution witnesses; in some
it may not. The court, however, cannot apply any universal rule whether ocular
evidence would be relied upon or the medical evidence , as the same will depend
upon the facts and circumstances of each case. No hard and fast rule can be
laid down therefor.
axiomatic, however, that when some discrepancies are found in the ocular
evidence vis-a-vis medical evidence, the defence should seek for an explanation
from the doctor. He should be confronted with the charge that he has committed
a mistake. Instances are not unknown where the doctor has rectified the mistake
committed by him while writing the post- mortem report.
Singh and Another v. State of U.P. [(2003)
10 SCC 26], it was held :
of the pleas raised by learned counsel for the appellants was that the injuries
as noticed by the doctor are at variance with the ocular evidence. On a close
reading of the evidence of eye-witnesses and the doctor's report there is no
noticeable variance. The mere fact that doctor said that injuries appeared to
be on one side of the body and the witnesses said that attacks were from
different sides, is too trifle an aspect. When three persons are attacking a
person, the witnesses naturally get shocked. This is normal human conduct and
the immediate reaction is to save the victim and to stop the assailants from
further attacks. That is precisely what has been done by the eye-witnesses. It
is only when the medical evidence totally improbabilises the ocular evidence,
that the Court starts suspecting the veracity of the evidence and not
otherwise." [See also State of Karnataka v. Papanaika and Others [(2004) 13 SCC180].
and Others v. State of Haryana (1997) 9 SCC 766], this Court observed
is true that Dr Jai Kishan (PW 9) who conducted the autopsy in his post-mortem
examination report described Injury 1 as being incised wound 20 cms x 2 cms
causing fracture of the underlying bone. He further noticed lacerated wounds on
the neck of the right ear of the size 1 cm x 1/2 cm causing fracture of the
underlying bone. While giving evidence in the court, he described an incised wound
as Injury 1 and lacerated wounds as Injury 1-A. He further testified that it
was a bona fide mistake in not describing these two injuries separately. Mr Sushil
Kumar urged that Dr Jai Kishan (PW 9) has made material improvement in his
evidence before the court to suit the prosecution and to lend support to the
evidence of eyewitnesses and, therefore, such an improved version which
demolishes the evidence of eyewitnesses be not accepted. This submission, is an
attractive one but having regard to the facts and circumstances of this case,
it is not possible to accept the same. The consistent evidence of both these
eyewitnesses was that A-2 had fired from his pistol on Baddal causing firearm
injuries on his head and this evidence, in our opinion, is quite a credible
one. Both these witnesses have referred to the firearm injury on Baddal on his
head whereas lacerated wounds were found behind the right ear. In an assault of
this nature, the exact description as regard to location of the firearm injury
might be not accurate but that by itself would not render their evidence
untrustworthy. It needs to be mentioned that the medical evidence is an opinion
evidence which is used to lend corroboration to the evidence of eyewitnesses.
If the medical evidence is found to be totally inconsistent with the ocular
evidence on a given set of facts, it would be permissible for the court to
reject the ocular evidence. As far as the facts of the present case are
concerned as pointed out earlier, the inconsistency between the ocular evidence
and the medical evidence is of a very minor nature and we do not think it
proper to reject the evidence of these two eyewitnesses on that score"
[Emphasis supplied] Whereas in the body of the post-mortem report, the medical
expert stated, 'the margin of wound charred and inverted' at another point, he
in no uncertain terms stated that firing was done from long range and distance
of firing would be from more than six feet. The possibility, therefore, of his
commission of some mistake in the post-mortem report cannot be ruled out. It
was on the said premise, it was incumbent upon the defence to bring the said
fact to the notice of the doctor. Probably, knowing the futility of asking such
a question, no such contention was raised either before the Sessions Judge or
before the High Court. No such ground has also been taken before us.
or charring shall depend upon the constituents of the propellant charge. It is
in that context only wounds are classified by their external appearance as close
contact, near contact and distant.
doctor in his evidence was categorical in stating that the wounds would not
come within the purview of classification of near contact; but the wounds
should be classified under 'distant contact'.
authorities like Taylor and HWV Cox in their treatises, state in details as to
how the post-mortem examination should be conducted.
nature of the gun will also have a role to play. Unfortunately, the
investigating officer did not make any attempt even to seize the gun. When the
weapon was not seized, the question of examination of any ballistic expert
would not arise. [See Nirmal Singh and Another v. State of Bihar (2005) 9 SCC 725].
45 of the Indian Evidence Act, 1872 reads as under :
Opinions of experts.
the Court has to form an opinion upon a point of foreign law or of science or
art, or as identity of handwriting or finger impressions], the opinions upon
that point of persons specially skilled in such foreign law, science or art, or
in questions as to identity of handwriting or finger impressions are relevant
persons are called experts ".
of an expert, therefore, is a relevant fact. The court may, thus, took the
expert opinion into consideration. But appreciation of evidence is the court's
thus, for the court to arrive at an opinion as to which part of contradictory
expert opinion should be accepted or whether in a given situation ocular
evidence should be believed in preference to medical evidence or vice versa.
State of U.P. v. Krishna Gopal and Another
[(1988) 4 SCC 302], this court has observed :
is trite that where the eyewitnesses account is found credible and trustworthy,
medical opinion pointing to alternative possibilities is not accepted as
as Bentham said, are the eyes and ears of justice. Hence the importance and
primacy of the orality of the trial process. Eyewitnesses account would require
a careful independent assessment and evaluation for their credibility which
should not be adversely prejudged making any other evidence, including medical
evidence, as the sole touchstone for the test of such credibility. The evidence
must be tested for its inherent consistency and the inherent probability of the
story; consistency with the account of other witnesses held to be creditworthy;
with the undisputed facts; the credit of the witnesses; their performance in
the witness box; their power of observation etc. Then the probative value of
such evidence becomes eligible to be put into the scales for a cumulative
evaluation." Yet again in Dhirajbhai Gorakhbhai Nayak v. State of Gujarat [(2003) 9 SCC 322], this Court held
regards the alleged discrepancy between the medical evidence and ocular
evidence, it is to be noted that a combined reading of the evidence of PW 9 who
examined the deceased after he was brought to the hospital and PW 7 who
conducted the post-mortem, it is clear that there is no discrepancy in the
medical evidence vis-`-vis ocular evidence. Only in respect of Injury 1, there
appears to be some confusion but that does not dilute the prosecution evidence.
It would be erroneous to accord undue primacy to the hypothetical answers of
medical witnesses to exclude the eyewitnesses account which has to be tested
independently and not treated as variable keeping in view the medical evidence
as constant. (See State of U.P. v. Krishna Gopal.)" In Birendra Rai and
Others v. State of Bihar [(2005) 9 SCC 719], this Court observed
do not attach much significance to the fact that some of the wounds showed an
upward trajectory. A bullet may possibly be deflected if it hits a hard
fact remains that all the shots fired have caused wound of entry as well as
exit wound, and from the description of the wounds given by the doctor it
appears that the firing was done from very close range. The evidence of the
witnesses is to the same effect. They have clearly stated that they came near
the deceased after firing took place. There was indiscriminate firing at the
deceased who fell down after receiving the first injury.
cannot assume that the deceased was lying still in one posture after falling on
the ground. He must have been writhing in pain when several shots were fired at
him, and in that process several injuries were caused to him. So viewed, we
find no inconsistency between the ocular evidence and medical evidence on
record." It was further observed :
was submitted that if several shots were fired, some pellets would have been
found at the place of occurrence. It is the case of the prosecution that no
pellets were found. For this reason alone we cannot discard the case of the
prosecution. If pellets were found at the place of occurrence it would have
further strengthened the case of the prosecution, but in the absence of such
evidence one has to rely upon the ocular evidence which if found reliable, may
be acted upon" In Nirmal Singh (supra), it was held :
then submitted that the prosecution has failed to prove that the dalan of the
deceased was the real place of occurrence. This submission is based on the fact
that no bloodstained earth was seized from the place of occurrence. It is true
that no bloodstained earth was seized from the place of occurrence but there is
also evidence of several witnesses including the investigating officer that no
blood had fallen on the earth.
explained that on receiving the injury the deceased pressed his wound with his
hands whereafter a piece of cloth was tied around the wound which soaked the
blood which may have come out. There was, therefore, no likelihood of the earth
for the appellants submitted that the intestines were protruding as described
in the inquest report, and in such a situation there must have been some
may be so, but in view of the explanation offered by the prosecution witnesses
it appears probable that no blood had fallen on the ground at the place of
event, if some blood had fallen at the place of occurrence which the
investigating officer failed to notice, that by itself will not be fatal to the
case of the prosecution. We must observe that the investigation in this case
has been most unsatisfactory and the investigating officer was not conscious of
his responsibilities. The bloodstained piece of cloth which was wrapped around
the wound of the deceased appears to have been seized by the investigating
officer, but when questioned as to why it was not sent for chemical
examination, he answered that he had hung that piece of cloth on a guava tree
in the police station. The statement is comical but discloses the utter
non-seriousness with which the investigation was conducted. We had expected
better from the investigating officer who was investigating a serious case of
murder. However, for this reason we will not reject the case of the prosecution
entirely." [Emphasis supplied] We, therefore, are of the opinion that the
second contention of the learned counsel also cannot be accepted.
however, are not oblivious of one patent fact. In the First Information Report,
the first informant, attributed the act of firing to Brijnandan Prasad and Sahdeo.
PW-4, however, in his deposition before the court attributed the act of firing
only to Brijnandan Prasad. According to him, other persons were only wielding
rifles. Shivnandan Prasad fell down after receiving the gunshot and died. He in
his cross-examination also attributed the act of firing only to Brijnandan
Prasad. PW-5 although stated that all the accused had started firing but even
according to her Brijnandan Prasad fired shot which had hit the deceased on his
chest. Evidence of PW-6 is also to the same effect that the shot which had hit
his father on the chest was fired by Brijnandan Prasad. PW-7 and PW-8 also
named Brijnandan Prasad.
prosecution case is that the dispute started on lighting of fire on a heap of
straw. The accused allegedly hurled brick bats, which compelled the deceased to
come to the roof to forbid them from doing so. Whereas Brijnandan Prasad alone
fired a shot which had hit the deceased, there is no evidence brought on record
to show that any other accused did so. No gun shot injury was suffered by any
person. The deceased has also suffered only one gun shot injury. No sign of firing
was found on the walls or any other part of the building. No cartridge was
no other person had suffered any injury by reason of hurling of brick bats.
Having regard to the materials brought on records, we are of the opinion that
in this case although the prosecution has proved the charge of committing the
murder of the deceased, it has failed to establish that the accused had any
common intention in relation thereto. Brijnandan Prasad alone was, thus,
responsible therefor. Had the other accused shared common intention with Brijnandan
Prasad, they would have also fired. No such evidence having been brought on
record, benefit of doubt must be extended to the other accused persons.
therefore, while holding Brijnandan Prasad guilty, are inclined to allow the
appeal of the other appellants. The judgment of conviction and sentence passed
against them is set aside. The appellants in Criminal Appeal No.1169 of 2005
shall be released forthwith, if not wanted in any other case.
Appeal No.1169 of 2005 is, therefore, allowed and Criminal Appeal No.1170 of
2005 filed by Brijnandan Prasad is dismissed.