Behari
Prasadetc. Vs. State of Bihar [1996] INSC 30 (9 January 1996)
Ray,
G.N. (J) Ray, G.N. (J) Nanavati G.T. (J) G.N.Ray.J.
CITATION:
1996 SCC (2) 317 JT 1996 (1) 93 1996 SCALE (1)162
ACT:
HEAD NOTE:
All
these appeals arise out of a common judgment dated March 31, 1987 passed by the
Patna High Court in Criminal of Bihar) and Criminal Appeal No.382 of 1983 (Sheoji
Prasad 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 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 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 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 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
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 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 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 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 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 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.
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.
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