The sufficiency of evidence, the credibility of eyewitness testimony, and the admissibility of reexamination of witnesses were central legal points established in the judgment.

Per: HONOURABLE SHRI JUSTICE AMARESH KUMAR LAL

1. This appeal is directed against the judgment of conviction and order of sentence dated 19.12.1990 passed by the learned 4th Additional Sessions Judge, Ara in Session Trial No. 329 of 1984 by which the appellants have been convicted and sentenced to rigorous imprisonment for life under Section 302/34 IPC.

2. The prosecution case, in brief, is that on 18.3.1984 at about 5 p.m. the villagers including the informant Chhedi Bhar (P.W. 6) and others were singing at Thakurbari at Ramjanki Temple on the occasion of Holi. All of a sudden, the appellants Ram Pratap Rai and Subash Sharma sons of late Vindhyachal Rai and one Ram Dular Rai came there. The accused Ram Dular Rai instigated the other two accused to kill Bishram Bhar, the son of the informant (P.W. 6) who was also there, thereafter, the appellants shot fire which caused injury to his son Bishram Bhar, who got injury and fell down. There was stampede. The co-villager Ramayan Bhar was taking Bishram Bhar (deceased) towards the northern side in a lane but the accused dragged the injured towards their house in the vicinity of flour mill and assaulted him with garasa which caused the death of Vishram Bhar, the son of the informant. It has further been alleged that in the vicinity of Ramjanaki Thakurbari where there was firing a person Sitaram Singh also got injury and he also succumbed to the injuries after sometime there. The reason for the occurrence is the old enmity between both the parties. The occurrence was witnessed by Ramayan Bhar (P.W. 3), Rampati Bhar (P.W. 4), Raj Kishore Bhar (P.W. 1), Bindhyachal Bhar (P.W. 2) and others. The fardbeyan was recorded by ASI, R. Alam (not examined ) at the house of Subash Sharma, the son of late Bindhyachal Rai at village Dehri on 18.3.1984 at 21.30 hours. On the basis of it Rajpur P. S. Case No. 31 of 1984 was instituted for the offence punishable under Sections 302/201/34 IPC against the appellants and Ram Dular Rai who died during the trial. After investigation charge-sheet was submitted cognizance was taken. Charges were framed against all the accused including the appellants for the offence punishable under Section 302 read with Section 34 and section 201 of the Indian Penal Code to which they denied and claimed to be tried.

3. During the pendency of the appeal accused Ram Dular Rai died and the trial against him was abated vide order dated 8.9.1989 by the learned Trial Court.

4. The defence of the accused-appellants is false implication on account of old enmity.

5. After trial both the appellants have been held guilty under Section 302/34 IPC and were sentenced as aforesaid. They have not been held guilty under Section 201 of IPC.

6. Learned counsel for the appellants has submitted that non- examination of the investigating officer has prejudiced the case of the appellant and they should be given the benefit of doubt. Although, P.Ws. 1, 2, 3, 4 and 6 have supported the prosecution case but on recall they have contradicted their previous statement before the trial court and they have not been declared hostile. Since these appellants have not been declared hostile, their evidence is binding on the prosecution. In support of his contention, he has relied upon two decisions; (2005) 5 SCC 272 (Raja Ram vs. the State of Rajasthan) and 2012 (1) PLJR 252 (Sanjai Paswan vs. State of Bihar).

7. Learned counsel for the State has submitted that the witnesses have supported the prosecution case as such they have not been declared hostile. After a long gap they have been recalled without any justification to demolish the prosecution case. The order to recall those witnesses is against the principles of law. However, no specific question has been asked by the accused. Previous statement made by the witness before the learned Magistrate has not been put before the witness as such the statement of witnesses after recall by the Court at the instance of the accused is not relevant and no