IMPORTANT POINTS
FIR is not an encyclopedia of the case. A witness’ testimony need not be disbelieved only because it did not find mention in the FIR.
It is not necessary to discard entire testimony because a part of it is false.
Members of unlawful assembly having common object of committing murder of deceased are liable for conviction.
Merely because blood group of the human blood stain could not be ascertained due to disintegration, conviction cannot be undone.

JUDGMENT

MOHAN M. SHANTANAGOUDAR, J.

The judgment and order of conviction dated 17.09.2013 passed by the High Court of Judicature at Rajasthan, Bench at Jaipur in D.B. Criminal Appeal No. 659 of 2003, insofar as it relates to the conviction of the appellant, is the subject matter of this appeal. By the impugned judgment, the High Court has affirmed the judgment of conviction passed by the Additional Sessions Judge (Fast Track) Court No. 2, Bharatpur, Rajasthan in Sessions Case No. 53/2001.

2. The case of the prosecution in brief is that on the night of 01.05.1997, the informant Vikram Singh, who was sleeping at a distance of 15 to 20 yards from his brother Gopal in his house, heard the sound of a fired gun shot and got up at 1:00 a.m. in the intervening night between 01.05.1997 and 02.05.1997; he saw Prabhu (the appellant herein), Indal, Rajveer, Gyan, and Shiv Singh armed with weapons and standing near the cot on which his brother Gopal was lying, shouting that Prabhu (the appellant herein) fired on his chest; then Prabhu told Shiv Singh to kill his bhabhi Smt. Devi; thereupon, Shiv Singh opened fire and injured her; Prabhu, Rajveer, Indal and Shiv Singh were having kattas (country made pistol) in their hands and Gyan was armed with farsa (axe); 4 to 5 other persons were also standing outside the compound but he could not identify them because of the darkness; the appellant-Prabhu was shouting that they have killed Gopal on that day and they will see who dares to oppose them in the future; the informant raised a hue and cry and at that point of time, Surjan, Ramesh, Subhash, Pappu and other neighbours reached on the spot. Based on these allegations, the first information came to be lodged by Vikram Singh as per Exhibit P14 on 02.05.1997.

Totally, ten accused were tried, including the appellant herein, for the offences punishable under Sections 147, 148, 307, 302, 459, 460, 120B, 118, and 176 read with Section 149 of the Indian Penal Code, and Sections 3/25 of the Arms Act.

3. The Trial Court acquitted accused nos. 7 to 10 and convicted accused nos. 1 to 5, viz., Gyan Singh, Shiv Singh, Indal, Rajveer and Prabhu Dayal (the appellant herein) (Accused No.6 – Babu expired during investigation). Gyan Singh was convicted under S. 302, IPC simpliciter, and was sentenced to life imprisonment with a fine of Rs. 1,000/-. Shiv Singh was convicted under Section 307, IPC, and sentenced to simple imprisonment of 4 years with fine. The rest of the accused, including Indal, Rajveer, and Prabhu Dayal, were convicted under Ss. 302/149, IPC and given the same sentence as Gyan Singh. During the pendency of the appeal before the High Court, one of the accused – Indal expired. Thus, the appeal was heard by the High Court against four accused, namely, Gyan Singh, Shiv Singh, Rajveer and Prabhu Dayal. The High Court on hearing, while acquitting the accused – Rajveer, has confirmed the judgment of conviction passed by the trial Court in respect of Gyan Singh, Shiv Singh and Prabhu Dayal.

The accused – Gyan Singh has served the sentence of imprisonment and he has not filed an appeal in this Court. The accused – Shiv Singh did not choose to file an appeal and consequently has accepted the judgment of conviction and sentence passed against him. Hence, the accused – Prabhu Dayal is the only person who is before this Court in this appeal, questioning the judgment and order of conviction passed against him.

4. Shri Nagendra Rai, learned Senior Advocate, took us to the material on record and submitted that the High Court is not justified in affirming the judgment of conviction passed by the Trial Court. The names of the accused, including the appellant, were not disclosed by the alleged eye witnesses when they went to the police station immediately after the incident, i.e., at 2:00 a.m. on 02.05.1997, and hence it is clear that the so-called eye witnesses are not actually the eye witnesses of the incident; the prosecution witnesses had been changing the sto