The prosecution must stand on its own evidence, and non-explanation of injury on the accused will not be fatal if the evidence of witnesses is found to be trustworthy.

R.N.Prasad and B.P.N.Singh JJ.

1. These three appeals arise out of the judgment and order dated 25.7.1987 passed by 5th Additional Sessions Judge, Gaya in Sessions Trial No. 44 of 1984/90 of 1984. They have been heard together and are being disposed of by this judgment.

2. The appellants in all these appeals have been convicted for the offence under Section 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life. Appellants in Cr. Appeal No. 408 and 441 of 1987 have further been convicted for the offence under Section 3 of the Explosive substance Act and sentenced to undergo rigorous imprisonment for seven years. The appellant in Cr. Appeal No. 354 of 1987 has also been convicted for the offence under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years. However, sentences were ordered to run concurrently.

3. The occurrence is alleged to have taken place on 5.7.1983 at 12 noon. The fardbeyan of the informant Binod Singh, was recorded on the same day at about 1.15. p.m. at his house that while his elder brother, Ashok Singh, was sleeping in the verandah of Jhulan Ram about 12 noon, Mathura Yadav, Baidyanath Yadav, Vijay @ Natu Rawani with bomb and Baun Yadav with pistol in their hand came. Mathure Yadav. Vijya and Baidyanath Yadav hurled bomb on his brother, Ashok Singh, causing injury on his person. Baun Yadav also fired from Pistol at his brother, Ashok Singh. He raised alarm on which Nawal Prasad, PW 1, Dinesh Lal, PW 3, and Gopal Raut, PW 4, came at the place of occurrence and saw the occurrence. They chased the culprits. The motive of the occurrence was that there was enmity between his brother, Ashok Singh, the deceased, and the appellants.

4. On the aforesaid fardbeyan, Ext. 4, a formal first information report, Ext. 5, was drawn. Investigation was taken up and on completion of investigation, charge sheet was submitted against the appellants. The Court on receipt of the charge sheet took cognizance and committed the case to the Court of sessions for trial. The trial Court convicted the appellants as indicated above.

5. The defence of the appellants was that they were innocent and had falsely been implicated in this case. No occurrence took place in the manner as alleged by the prosecution. In support of the defence, fardbeyan of appellant, Mathura yadav, Ext. C, has been brought of the record. It appears from Ext. C that Mathura Yadav gave his fardbeyan on 5.7.1983 at 9.30 p.m. in the hospital that the deceased had gone to his house for compromise in the case. He along with Ashok Singh proceeded to meet his brother in remand home. When they reached near the house of Jhulan Ram; Fuchu Yadav, Tunu, Binu Sinha, Dani Sinha and Uday Srivastava came abusing and surrounded them. Fuchu Yadav instigated to kill and he himself hurled bomb which hit Ashok Singh due to which he fell down on the ground. He tried to run away but Tunu fired from his pistol which hit on his chest causing bleeding injury. While he was trying to run away Uday Srivastava uttered that Ashok Singh is alive on which Dani Sinha, Binu Sinha and Uday hurled bomb on Ashok. He however, succeeded in running away. He was taken to the hospital for treatment.

6. The prosecution in support of its case examined ten witnesses out of whom PW 1, PW3 and PW 4 claimed to be eye witnesses to the occurrence. PW 7 is informant and he also claimed to be an eye-witnesses to the occurrence. PW 2 and PW 8 have been tendered. PW 5 is a doctor, who held postmortem over the dead body, PW 6 proved sanction letter, PW 9 proved station diary entry and PW 10 is investigating officer.

7. The defence also examined four witnesses out of whom DW 1 claimed to be an eye witness to the occurrence and supported the defence version, Ext. C. DW 2 is a doctor, who examined Mathura Yadav. DW 3 is Mathura yadav himself on whose fardbeyan, Ext. C. first information report, Ext. D was lodged. DW 4 has proved outdoor patient register, Ex