IMPORTANT POINT
Evidence of interested witnesses is not required to be thrown out out rightly but rather is required to be scrutinised with care and caution.

JUDGMENT

R.N. Prasad and B.N.P. Singh, JJ. - The sole appellant has preferred this appeal against the judgment and order dated 2.8.1995/5.8.1995 passed by the 3rd Additional District and Sessions Judge, Nalanda at Bihashariff in Sessions Trial No. 359/72 of 1994 whereby the appellant has been convicted for the offence under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life. He has further been convicted for the offence under Section 27 of the Arms Act. However, no separate sentence has been awarded.

2. The prosecution case is that Salauddin took his deceased son. Aslam to the police station on 3.4.1994 and gave his fardbeyan that there was marriage of the daughter of Ibrahim Mian. At about 6.30 p.m. Rarat came. His son Aslam went to see the Rarat. He was standing at his door. Sohrab gave order to Md. Kalim, the appellant, to shoot Aslam on which Kalim Mian took out pistol from his waist and fired causing injury on the back of Aslam. He fell down and died. One Babloo was also standing there. He also sustained injury. The motive of the occurrence was old enmity. Akhtar and many other persons witnessed the occurrence.

3. On the aforesaid fardbeyan, a formal first information report was drawn, Investigation was taken up and on completion of investigation charge sheet was submitted in the Court. The Court took cognizance and committed the case to the Court of Sessions for trial. The trial Court convicted the appellant, as indicated above.

4. The defence of the appellant was that he was innocent and had falsely been implicated in the case.

5. The prosecution in support of its case examined seven witnesses out of whom PW 2 and PW 7 claimed to be eye witnesses to the occurrence. PW 4 is informant and he also claimed to be an eye witness to the occurrence. PW 1 was declared hostile. PW 3 is a doctor, who held postmortem over the dead body. PW 5 recorded fardbeyan and prepared inquest report. PW 6 is investigating officer.

6. The eye-witness. PW 2, is mother of the deceased. PW 4 is father of the deceased. PW 7 is Bhabhi of the deceased. Learned counsel for the appellant, Mr. Lala Kailash Bihari, pointed out that the eye-witnesses are relations of the deceased and are interested witnesses and as such their evidence should not be accepted. In this regard it would not be out of place to mention herein that the evidence of the interested witness is not required to be thrown out outright rather evidence of such witness is required to be scrutinised with care and caution. Keeping in mind the aforesaid well settled rule of law we proceed to examine the evidence of the witnesses.

7. PW 4 is informant of the case. His evidence is that on the day of occurrence there was marriage of the daughter of Ibraim Mian. The Barat party was near the Mazar. His son was near the Mazar, Sohrab and Kalim came out from the house of Ibrahim Mian. Shorab ordered to shoot Aslam on which the appellant. Md. Kalim, took out pistol from the waist and fired which hit on the right side of his back. Babloo @ Dabloo was standing there. He also sustained injury. His son fell down and died. The accused persons thereafter ran away. There was light at the place of occurrence. He took his son to the police station where his fardbeyan was recorded. The occurrence was witnessed by many persons. However, the witnesses, namely, Babloo @ Dabloo, Mansoor Mian and Shamima Khatoon, have been gained over and as such they are not ready to depose in this case. In cross examination the witness testified his evidence in examination-in-chief and stated that further statement was recorded. On the order of Sohrab, the appellant fired causing injury on the back. The witness gave details of the place of occurrence and stated that there were houses of many persons near the place of occurrence. In cross examination the witness also stated that light was available at the time of occurrence. His son Aslam first came out from the house and after about five minutes f