IMPORTANT POINT
When ocular evidence is consistent and wholly reliable, mere non-examination of other witnesses who might have seen the incident would not affect the prosecution case.

Headnote:Indian Penal Code, 1860-Section 302/149-Arms Act-Section 27-Conviction of appellants for offences-Deceased carrying a bundle of pea crop on head was fired upon by appellant No. 1 and then other appellants fired indiscriminately from their weapons who were in a tractor-PW 4, nephew of deceased, and PW 3 an independent witness present at nearby tea-shop were the eye witnesses-FIR was lodged by PW 8 promptly-PW 4 corroborated PW 3 in all respects and evidence of both eye witnesses was consistent-Nothing was elicited in their cross examination to render their evidence unworthy of credence-No much significance could be attached to fact that some wounds showed an upward trajectory as there was indiscriminate firing-Non-recovery of pellets from spot would not create doubt when ocular evidence was reliable-Mere failure to examine all witnesses who might have witnessed occurrence will not result in rejection of case-Non-examination of I.O. when did not cause any prejudice to accused could not be a ground to interfere-Conviction was liable to be confirmed.
       Held : Ram Bachan Singh P.W.4 informant deposed in a manner consistent with the facts narrated by him in his first information report. He has corroborated P.W.3 in all respects. The manner of occurrence deposed to by him is consistent with the statement of P.W.3. This witness has further clarified that the place of occurrence was only 5-6 steps west of the shop where he was sitting. After Bhola Singh fell down on the service road on the embankment of the canal the tractor passed by the side of Bhola Singh. There is nothing of significance worth noticing in the cross examination of these eye witnesses. Their evidence is consistent and nothing has been elicited from them in their cross examination which may render their evidence unworthy of credence. (Para 9)
       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. Unfortunately, in this case, despite the efforts of the prosecution, the investigating officer could not be examined as a witness. The seizure witness has also been declared hostile. There is really no corroborative evidence, except the circumstantial evidence to corroborate the version given by the witnesses. However, we find the eye witnesses to be straight forward and reliable. Being rustic villagers, there is no effort on their part to improve the case of the prosecution on the basis of imaginary facts. They have deposed in a straight forward manner, and there is a ring of truth in their testimony. We find them to be implicitly reliable. (Para 12)
       Mere failure to examine all the witnesses who may have witnessed the occurrence will not result in outright rejection of the prosecution case if the witnesses examined by the prosecution are found to be truthful and reliable. Moreover, we cannot ignore the reality that many eye witnesses shy away from giving evidence for obvious reasons. (Para 13)

JUDGMENT

B.P. Singh, J.-This appeal by special leave is directed against the judgment and order of the High Court of Judicature at Patna dated March 4, 2003 in Criminal Appeal No. 366/1997 whereby the appeal preferred by the appellants was dismissed by the High Court, affirming the judgment and order passed against them by the 5th Additional District and Sessions Judge, Rohtas at Sasaram in Session Trial No. 321/1986. Appellant No. 1 Birendra Rai has been sentenced to undergo rigorous imprisonment for life under Section 302 IPC and five years rigorous imprisonment under Section 27 of the Arms Act. Appellant Nos. 2 to 5 have also been sentenced to undergo rigorous imprisonment for life under Section 302/149 IPC. Appellants Govind Rai and Uma Shankar Pandey have also been sentenced to undergo five years rigorous imprisonment under Section 27 of the Arms Act.

2. The occurrence is said to have taken place at about 2 p.m. on the 6th February, 1985, near a bridge on the canal, a little distance away from village Gaura. The case of the prosecution is that deceased Bhola Singh carrying a bundle of pea crop on his head came near the canal from his field when the appellants came near the bridge on a tractor trolly and fired at him. The first shot was fired by appellant Birendra Rai from his rifle causing injury on the chin of the deceased. After getting injured, he fell down, whereafter the other appellants fired indiscriminately from their respective weapons and went towards their village in the tractor trolly. P.W. 4 Ram Bachan Singh, nephew of the deceased rushed to the police station along with P.W. 3 Yogendra Singh where he lodged the report, on the basis of which a first information report was drawn up and a case was registered. Police Station Dinara was at a distance of 8 kms. from the place of occurrence and the report was lodged by PW-4 at the police station at 3 p.m. Therefore, it appears that the first information report was promptly lodged.

3. The prosecution has examined two eye witnesses namely, Ram Bachan Singh, the informant, P.W. 4 and another eye witness Yogendra Singh, P.W. 3. While P.W. 4 is nephew of the deceased, P.W. 3 Yogendra Singh is not related either to the accused persons or the deceased. P.W. 2 Dr. Sudhir Kumar Singh was examined to prove the injuries suffered by the deceased, he being the doctor who conducted the post-mortem examination.

4. From the deposition of Dr. Sudhir Kumar Singh, P.W. 2, it appears that he conducted the post-mortem examination on the body of the deceased at 7 a.m. on 7th February, 1985 and found the following injuries on his person:

(i) Wound of entrance about 2" x 2" with blackening of skin and margin are inverted over the left side of chin with fracture left mandible wound of exit about 3"x 2-1/2" over left mastoid bone (behind left ear) with a regular shape and margin are inverted and brain matters covering out from skull cavity.

(ii) Wound of entrance are multiple 1/6" x 1/8", 1/4" x 1/6", 1/4" x 1/8", 1/4" x 1/6", over in front of left side of chest upper portion with fracture of left clavicle (collar bone) with sign of blackening of skin around the wound. Wound of exit about 1/2" x 1/2" in a regular shape and margin are inverted over back upper portion of left shoulder with fracture of left spin of scapula.

(iii) Wound of entrance are multiple about 1/4" x 1/4", 1/6" x 1/8", 1/4" x 1/8" and 1/4" x 1/6" over left back of scapula. Wound of exit about 1/2" x 1" with a regular shape and margin inverted over left side of abdomen.

(iv) Wound of entrance about 1" x 1/2" blackening of skin and margin are inverted over left middle outer portion of forearm. Wound of exit about 2-1/2" x 1-1/2" with a regular shape with lacerated over left middle inner portion of left forearm.

On dissection of skull, the skull cavity was full of blood and blood clots with fracture of left occipital are left parital

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2004 Supreme(SC) 1432

IMPORTANT POINTWhen ocular evidence is consistent and wholly reliable, mere non-examination of other witnesses who might have seen the incident would not affect the prosecution case.

IMPORTANT POINT
When ocular evidence is consistent and wholly reliable, mere non-examination of other witnesses who might have seen the incident would not affect the prosecution case.