IMPORTANT POINTS
1. Testimony of inimical witnesses has to be considered with caution and if otherwise witnesses are true and reliable, their testimony cannot be thrown out on threshold by branding them as inimical witnesses.
2. When the prosecution evidence is so strong and positive the motive become inconsequential.

Headnote:Indian Penal Code, 1860-Section 302/148 and Section 27 Arms Act-Respondent-accused was convicted by trial Court where remaining nine accused were convicted u/s 302 with aid of Section 149 IPC-High Court acquitted all accused in appeal-SLP by informant-complainant, brother of deceased-On 21.3.1986 all accused, name in FIR, armed with weapons like gun, rifle, bhala and country made gun came between 8 to 9 P.M. hurling abuses when informant and deceased were sitting-Respondent accused fired rifle shot and deceased fell dead on spot-Informant snatched rifle from accused and handed it over to police-Six persons were examined eye witnesses-Ocular evidence was corroborated in material particulars by medical evidence-High Court discarded eye witness account branding witnesses as inimical which was not requirement of law-Defence set up by accused was that fire went off accidentally when prosecution partly tried to snatch the rifle but evidence showed rifle was snatched after fire was shot-Consistent and creditworthy evidence-Plea of accidental fire was inherently improbable and was rightly-Rejected in face of positive evidence-When prosecution evidence was strong and positive, motive became inconsequential-Conviction recorded by trial Court was liable to be restored against respondent accused.
Held : The High Court discarded the eye witness account, branded them as inimical witnesses. This is not the requirement of law. The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well settled principle of law that enmity is a double edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the Court to examine the testimony of inimical witnesses with due caution and diligence. In the present case the High Court has rejected the otherwise creditworthy testimony of eye-witness account merely on the ground that there was enmity between the prosecution party and the accused party. In the present case the accused-Jagdish admitted that the offending rifle belongs to him. In fact he had made an attempt to make a report to the police that his rifle was being snatched away by the prosecution party. There is also no dispute that he was present at the place of occurrence with the rifle. It is also undisputed that the shot was fired from the said rifle which killed the deceased. The defence set up by the accused before the Trial Court, before the High Court and before this Court is that the fire went off accidentally when the prosecution party tried to snatch away the said rifle from his hands. Apart from this plea there is no evidence at all to substantiate his defence. It is the evidence on record that the rifle was snatched away by the informant after the fire was shot at the deceased. The statement of the informant - P.W. 10 is corroborated by other eye-witnesses including PW-8. (Paras 7 and 8)

JUDGMENT

H.K. Sema, J.-Ten accused persons were put to trial for the offence punishable under Sections 302, 147, 148, 149 IPC and Section 27 of the Arms Act before the 2nd Additional Sessions Judge, Arrah in Sessions Trial No. 366 of 1982. After conclusion of the trial, the Trial Court convicted accused No. 2- Jagdish Singh Rai (the respondent herein) for the offences under Section 302/148 IPC and under Section 27 of the Arms Act. He was sentenced to undergo R.I. for life under Section 302 IPC, and two years R.I. under Section 148 IPC. He was further sentenced to undergo R.I. for three years under Section 27 of the Arms Act. The remaining nine accused (not before us) were convicted under Section 302 with the aid of Section 149 and sentenced to undergo R.I. for life and two years R.I. under Section 148 respectively. Their sentences were, however, directed to run concurrently.

2. Aggrieved thereby, two appeals have been preferred before the High Court of Patna. Criminal Appeal No. 596 of 1986 was preferred by nine accused and Criminal Appeal No. 46 of 1987 was preferred by accused No. 2-Jagdish Singh alias Jagdish Rai, separately. By a common Judgment, the High Court acquitted all the accused. Hence, the present appeal by special leave. The State has not filed any appeal. The present appeal has been filed by the brother of the deceased with permission to file the SLPs.

3. On 3.12.1999, this Court dismissed the SLPs against all the accused persons except the second accused - Jagdish Singh. This is how the present appeal is survived against accused No. 2 - Jagdish Singh Rai.

4. We have heard the counsel for the parties. Briefly stated, the facts giving rise to the present appeal are as follows:

The Officer-in-charge, Dumraon P.S. recorded the fardbeyan of Ramashish Rai alias Gana Rai (PW-10) to the effect - that on 21.3.1986 between 8 to 9 P.M. when the informant was sitting alongwith his deceased brother Sudershan Rai, the FIR name accused persons came hurling abuses carrying lethal weapons like gun, rifle, bhala, country made gun etc. and accused No. 2, Jagdish Singh was shouting that the score would be settled today, where after the deceased proceeded towards the accused persons with a view to pacify them and requesting them not to indulge into violence, whereupon the accused - Jagdish Singh Rai opened blank fire from his rifle twice. The accused Jagdish Singh also fired the third shot from his rifle which hit the deceased - Sudershan Rai and he died on the spot. Then and there the informant snatched away his rifle and the said rifle was produced before the police officer who recorded Fardbeyan. On hearing the Hullah PWs. 1, 2, 3, 5 and 8 also came in and witnessed the incident.

5. In course of the trial, the prosecution examined as many as 12 witnesses out of which PWs. 1, 2, 3, 5, 8 and 10 were examined as eye witnesses to the occurrence. The Trial Court, on threadbare discussion of the eye witness account and medical evidence, convicted the accused as aforesaid.

6. The High Court, by its order impugned, discarded the eye-witnesses account of the occurrence in paragraph 20 of its judgment as under:

"From over all scrutiny of evidence of prosecution witnesses it is apparent that there was long standing enmity between the two parties, who which civil as well as criminal cases were fought up to the High Court. Secondly, most of the eye witnesses have admitted that in counter case filed by the appellant Jagdish Singh either they or their sons and relatives were made accused. Thirdly, almost all the eye witnesses have deliberately tried to improve the prosecution case by deposing something, which are not to be found either from the FIR or from the evidence of the informant himself. So far means of identification is concerned, there is contradictory statement. The I.O. also did not found any light near about the place of occurrence. Thus, in between 8.30 P.M. to 9 P.M. in a village lane it was difficult for the so called eye witnesses to

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