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1996(1) Supreme 347
SUPREME COURT OF INDIA
G.N. Ray and G.T. Nanavat, JJ.
Behari Prasad etc. etc. -Appellants
versus
State of Bihar -Respondent
Criminal Appeal No. 1 of 1989
(With Criminal Appeal Nos. 195/89, 437/88 and 789/89)
Decided on 9.1.1996
Counsel for the Parties :
For the Appellant in Cri. Appeal 1/89 : Sushil Kumar.
For the Appellant in Cr. Appeal 437/88 : U.R. Lalit, Sr. Advocate.
For the Appellant in Cr. Appeal 195/89 : Promod Swarup.
Held : In view of clear evidence that the deceased was shot at by a country made fire arm by Udai Prasad (A/2). We do not find any reason to entertain any doubt that the eye witnesses had not been 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 Fardbayan forming F.I.R. was lodged within about half an hour and the names of the accused and their specific 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 dellet 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.
Held further : 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 appelllants who have been released on bail should be taken into custody to serve out the sentence.
JUDGMENT
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 1985 (Uday Prasad and two others v. State of Bihar) and Criminal Appeal No. 382 of 1983 (Sheoji Parsad v. 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.
2. The four accused namely Sheoji Prasad (A/1), Udai Prasad (A/2). Parameswar Parsad (A/3) and Behari Prasad (A/4) stood charged under Section 302 read with Sections 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 Parmeswar 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 but he had died before the trial was completed. Excepting the accused Sheoiji Prasad, the other three accused are close ralations. The accused No.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 (brothers 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 near Lalji Kothi close to Shismahal 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 shops. 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 son other sons namely Rameswar (deceased accused) and Parameswar (A/3). It appears that a predate 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.
3. 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 Sheoji Prasad was the tenant of the said shop room. A suit for eviction of Sheoji was filed and such suit was tought upto this Court. The tenant Sheoji Prasad compromised with the deceased Lal Babu by giving an undertaking that by a particular date, he would deliver vacant possession of the same to the deceased Ram Babu. Since vacant possession was not delivered, an
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