Loknath Prasad, J.
1. All these three appeals had arisen from a common judgment of conviction dated 3rd July, 1992 passed by Sri Anwar Ahmad, 3rd Additional Sessions Judge, Nawadah in S.T.No. 78/90, 4/92 through which he convicted the appellant Bhola Singh to undergo imprisonment for life under Section 302 of the Indian Penal Code and the remaining three appellants were also convicted and sentenced to undergo imprisonment for life under Section 302/34 of the Indian Penal Code. All these appellants were also found guilty under Section 323 of the Indian Penal Code but no separate sentence was passed under this count.
2. In Cr. Appeal No. 224 of 1992 the sole appellant is Bhola Singh whereas in Cr. Appeal No. 241 of 1992 Raj Kishore Singh is the appellant and in Cr. Appeal No. 244 of 1992 Manoj alias Manoj Kumar and Raj Kumar alias Raju are the appellants. This common order will dispose of all these three appeals.
3. The prosecution case in short is that on 26.7.1989 the informant Anjay Kumar son of Lala Shashi Bhushan Kumar Sinha of Mohalla Sonar Pati, Vijay Cinema Chowk within Nawadah town had left his residential house for going to teach some students as a private tutor and he was apprehended near his house on the road at about 8.10 P.M. and surrounded by these four appellants Appellant Bhola Singh was holding revolver and the other three appellants were holding lathis. One of the appellant Manoj said that the informant has now become Hero and as such all these appellants assaulted him by lathi and fist and slap. An alarm was raised by the informant and so his younger brothers Anand Kumar and Rajesh Kumar (P.W. 1 and P.W. 2) and the deceased Ravi Shankar, who were inside the house immediately came down and the moment they reached there, again appellant Manoj shouted that Ravi Shankar is also a Hero of the area and as such appellant Bhola Singh fired from a pointblank range on the chest of Ravi Shankar due to that he was seriously injured and when Anand Kumar came to his rescue, he was assaulted on the head by the butt portion of the revolver by Bhola Singh. Similarly, appellant Manoj brought Chholni (cooking apparatus) from his nearby shop and assaulted on his head. On Hulla, Rajendra Prasad and Santosh Kumar also came down from the house of the informant but in the meantime all the appellants escaped away.
4. During investigation the witnesses had also taken the name of Doman, father of two appellants, namely, Bhola singh and Raj Kumar @ Raju that he too was present and instigated for the killing of the deceased. As the name of this accused was not in the F.I.R. and due to paucity of evidence that trial court gave benefit of doubt to accused Doman and found other appellants guilty and convicted and sentenced them in the manner indicated above.
5. All these appellants denied the allegation levelled against them and from the suggestions given by the witnesses it can be said that the degence version was that in fact the sister of the informant Sangita had some connection with the deceased and also had some connection with the appellant Bhola Singh to which the family members of the informant did not approve and for that reason firing was resorted by the family members of the informant from the roof killing the deceased and the appellants, who are Muhalla people, were falsely implicated.
6. In this occurrence which took place in the night of 26.7.1989 at about 8.00 P.M. or so, according to the prosecution Ravi Shankar sustained fire-arm injury in front of the house of the informant on the road known as station Road and as many as three witnesses i.e. the informant and P.W. 1 and P.W. 2 sustained simple injuries. So far homicidal death of Ravi Shankar is concerned, the defence has not specifically challenged the manner and genesis and participation of the appellants. However, on behalf of the prosecution, P.W. 1, P.W. 2, P.W. 4 and P.W. 5 are the main witnesses to prove the alleged assault.
7. Admittedly, P.W. 5 who is the informant, is the most important witness for the reason that the entire occurrence took place in his presence, rather the first part of the occurrence started with him. It is the evidence of P.W. 5 that the moment he came out from his house situated on Station Road Near Vijay Cinema Chowk, he found all these four appellants including the acquitted accused Doman. Bhola Singh was holding a revolver and other three appellants were holding lathis and all of them claimed this very witness to be the Hero of the area and as such he was assaulted by first and slap by Bhola Singh and by other three appellants by lathi. In the midst of assault this witness has claimed that he raised alarm, then his two brothers i.e. P.W. 1 and P.W. 2 and the deceased Ravi Shankar came down on the road and on seeing Ravi Shankar, one of the appellants shouted that he too is the Hero of the area and immediately after the the other appellant Bhola Singh filed on his chest from a point-blank range and Anand Kumar (P.W. 1), who wanted to intervene, was assaulted on the head by butt portion of the revolver by Bhola Singh whereas P.W. 2 Rajesh Kumar @ Bablu was assaulted on the head by appellant Manoj by a Chholni which he brought from a nearby shop. It is also his evidence that on alarm Rajendra Prasad and Santosh Kumar also came and some persons of the locality also arrived and then the accused persons escaped away and they were taken to Nawadah Sadar Hospital where Ravi Shankar succumbed to his fire arm injury and other injured were treated for their injuries. This witness also said that in the hospital itself the Police Officer attached to Nawadah Police Station came and his Fardbeyan (Ext. 2) was recorded in that very night.
8. Fardbeyan (Ext. 2) indicates that the Police Officer rushed to the hospital immediately after the occurrence and the fardbeyan was recorded without any loss of time i.e. at about 9.30 P.M. and in the fardbeyan description of the occurrence and participation of the appellants were fully described which indicate that there was no delay on the part of the prosecution in disclosing the name of the appellants and the part played by them to the Police Officer concerned.
9. The evidence of this witness also finds corroboration from the evidence of P.W. 1 and P.W. 2, who are admittedly brothers of this witness and naturally expected to see the occurrence because the occurrence took place in front of their house on the road. These two witnesses also said that in that very night they were in their house witnessing the programme on the Television and at that time they heard the alarm raised by P.W. 5 and came down from the house on the road and found these four appellants and appellant Bhola Singh, was holding a revolver. It is also their evidence that Ravi Shankar, who was also in the house came with them and then Bhola Singh fired on his chest from close range and P.W. 1 was also assaulted on the head by the butt portion of the revolver by Bhola Singh and P.W. 2 was assaulted by Manoj by Chholni and they sustained injuries and as such they had gone to the Hospital and were treated for their injuries.
10. Learned Counsel for the appellants submitted and tried to demolish the evidence of P.W. 2 mainly for the reason that P.W. 2 has stated in his cross-examination that he had not seen the actual firing which hit the deceased. Thus it was submitted that P.W. 2 had not seen the occurrence and as P.W. 1 also came along with P.W. 2 so it is expected that P.W. 1 had also not seen the occurrence. On close examination and scrutiny of the entire evidence of these witnesses and that of the statement of P.W. 1 and others, it can be said that all of them immediately came down at the place of occurrence along with the deceased and then the firing was resorted. If that is so, these witnesses were definitely present at the time of occurrence and P.W. 2 has also said that only Bhola Singh was holding revolver and he heard the firing sound and found the deceased injured. If all these sequences are to be accepted, it clearly leads to the conclusion that Bhola Singh resorted to firing. Moreover, there is no two opinion that if several witnesses are present then it is quite possible that some of them may miss one portion or the other portion of the occurrence only for the reason of their mental alertness and standard of their preception. In that view of the matter, argument advanced by the counsel for the appellants has no force and thus is rejected more particularly for the reason that the other evidences are on the record.
11. P.W. 4 is the father of P.W. 5 and he too claimed that the moment he heard the alarm of his son, he came to the Balcony of his roof and had seen the entire occurrence as stated by the informant and other witnesses. An attempt was made to discredit the evidence of this witness also from the appellants side on two fold grounds that he has not been named in the F.I.R. to be the witness of the occurrence and secondly his conduct also appears to be suspicious. So far first ground that he was not named as witness in the F.I.R., it can be said that the informant himself admitted in his cross-examination that he had not seen his father, mother or sister if at all they came put in the balcony, so this is the reason that the informant had not seen his father witnessing the occurrence and so he has not been named in the F.I.R. and as the occurrence took place just in front of the house, it is expected that this witness might have seen the occurrence from Balcony.
12. So far the conduct of this witness, it was submitted that it is not expected from the father to remain silent spectator and it was expected from him to rush to save his son. On his score, the prosecution side submitted that admittedly his two sons and some more witnesses came down from the house and in that view of the matter, the father being an elderly man had not developed much courage to come down and to face the other accused persons, who were holding revolver and lathis. The explanation advanced by the prosecution appears to be reasonable because elderly people some time feel afraid of going near the place of occurrence where two sides are engaged and some of them are holding fire-arm and lathis.
13. The prosecution case also finds support from, the evidence of the doctors and in this case the prosecution could examine two doctors i.e. P.W. 6 Dr. Basuki Pd. Bhagat, who examined all the three injured i.e. P.W. 1, P.W. 2 and P.W. 5 at about 10.10 P.M. in the same night. This doctor found lacerated wound on occipital region and in right eye of P.W. 1 Anand Kumar whereas as many as five bruises on the left arm, swelling of left elbow, and three abrasions on left and right thigh were found on P.W. 5, the informant and similarly lacerated wound behind left ear and two bruises were found on P.W. 2 Rajesh Kumar. The injury reports (Ext. 3 to 3/2) were prepared in the same night. As the injured immediately rushed to the hospital, their statements came to the police immediately and their injuries were examined without any delay, all these indicate that they sustained injuries in this very occurrence and as such being injured witnesses, they are competent witnesses to depose on the point of occurrence.
14. Similarly, P.W. 7 Dr. B.P. Singh, who held post mortem on the dead body of the deceased on the next day i.e. on 27.7.1989 at about 8.00 A.M., found circular, lacerated and inverted wound 1/4' of diameter of the front of chest which also caused fracture inside and from the opinion of the doctor also it can be said that Ravi Shankar sustained fire-arm injury on his chest which resulted in his death and this injury was sufficient to cause death in ordinary course of nature, It was contended on behalf of the appellant that the doctor P.W. 7 has given his opinion in his cross examination that the injury was found to be going downward and this injury might have been inflicted from above from a distance of 8 ft. or so and thus it can be said that actually the family members of the informant fired on the deceased from the roof. At the very outset it can be said that the doctor found injury which was charred which clearly indicate, that the injury was caused from a point-blank range. Moreover, if at all the injury would be caused from a distance of 8 to 10 ft., that too from a country made pistol or revolver, in that case there will be no charring or blackening mark.
15. The prosecution case also finds support from the evidence of P.W. 8 Ram Lakhan Pd. Choudhary, father of the deceased and from his evidence it is clear that the moment he learnt about the occurrence, he rushed to hospital and found his son dead and he learnt from the other persons that the appellant Bhola Singh fired causing the death of his son. If at all the deceased was done to death by the informant or his family members, then in that case the father of the deceased should have been the last person to spare them because naturally it is expected from the father not to spare the actual culprit. On the other hand the father has also stated in his evidence that the learnt that Bhola Singh had fired not from the informant or any of his family members rather from the other persons i.e. independent source which indicate that actually it was Bhola Singh who is responsible for causing the murder of the deceased.
16. P.W. 9 is the Investigating Officer of this case and from his evidence it is clear that he got a telephonic message about the death of the deceased from the Hospital and so he immediately rushed there and found the informant and his brothers injured and so the injury reports were prepared and the inquest of the deceased was prepared in that very night. It is also the evidence of this witness that the place of occurrence is in front of the house of the informant near Vijay Cinema Chowk on the Station Road and also found blood mark there. So, the evidence of the I.O. also indicates that the occurrence took place on the Station Road in front of the house of the informant.
17. During the course of argument, learned Counsel for the appellants tried to discredit the evidence of the witnesses mainly for the reason that all the witnesses are of the same family and the independent witnesses i.e. Rajendra Prasad and Santosh Kumar, who were also named in the F.I.R. and some Shopkeepers and the residents of that locality were not examined to prove the occurrence and thus the prosecution has concealed the actual occurrence and has withheld the material witnesses prejudicial to the defence case. Moreover, the I.O. has also not seized the blood stained earth which he claimed that he found at the place of occurrence and it was sent for chemical examination. In support of this contention, learned Counsel for the appellants relied upon the authority of our own High Court reported in 1990 (1) B.L.J. 555 : 1990 (2) PLJR 285 State of Bihar v. Mithilesh Rai. In this case it was held that the blood stained earth found from the place of occurrence should invariably be sent to the chemical examiner and the report should be produced before the court concerned and the evidence of partisan witnesses may be examined carefully and with due caution and the prosecution is required to prove the case without any infirmity and the accused is not bound by his pleading.
18. On the other hand, it was submitted on behalf of the prosecution that though the witnesses are of the same family but they are most natural and competent witnesses because the occurrence took place in front of their house and some of the witnesses were injured and thus their presence is well proved. Moreover, these witnesses are definitely independent witnesses and they are not interested witnesses in any way because practically there is nothing on the record to show that there was prior enmity or they are related in one way or the other with the deceased or even the caste men of the deceased. In support of this contention, learned Counsel relied upon the authority of the Supreme Court reported in : AIR1994SC846 Rajaram v. State of M.P. in which it was held that if the eye-witnesses are not of the same caste as that of the deceased nor in any way related to him, then in that situation they cannot be called as interested witnesses and a witness is normally considered to be an independent witness unless he springs from the sources which are likely to be tainted such as enmity or relationship which make him inclined to implicate the accused falsely. In the instant case practically there is no enmity between these appellants and these witnesses and they are certainly not the caste men or related with the deceased anywhere. In that view of the matter, it can be said that these witnesses are not in the category of the interested witnesses. Moreover, their evidence has been examined with due care and caution and it appears that they are truthful and their evidence also finds support from surrounding circumstances. 19. So far non examination of the independent witnesses, more particularly, Santosh Kumar and Rajendra Prasad, who were cited in the FIR., it was submitted on behalf of the prosecution that admittedly they are witnesses of the occurrence but in the trial court a petition had been filed on 17.5.1991 that these two witnesses were gained over and so the prosecution did not want to examine them but inspite of that again a petition was filed for summoning these two witnesses so that the defence may not take any plea that they have been withheld but the trial court rejected this prayer vide order dated 31.3.1992 mainly for the reason that the prosecution first of all filed a petition that they were gained over. In such a situation it was rightly submitted on behalf of the prosecution that actually the prosecution had no intention to withheld these two independent witnesses. So far non examination of any of the witnesses of the locality from the corss-exatnination of the I.O., it can be said that the I.O. also examined some of the witnesses of the locality and they had claimed that they had not seen the actual occurrence. In that view of the matter, it was not expected from the prosecution to examine any independent witnesses.
20. It was also submitted on behalf of the prosecution that it is not the duty of the prosecution to examine each and every witnesses and the purpose of the prosecution is served if reasonable witnesses are examined to prove the case beyond any doubt because now a tendency has developed among general public to disengage themselves or to keep themselves aloof from the investigation of the criminal trial and they are not willing to be figured as witnesses. In that view of the matter, it is not expected from the prosecution to examine any more witnesses and even if interested witnesses are truthful and stood the test of cross-examination and their credibility had not been demolished in any way, in that view of the matter, the court can safely rely upon the evidence for recording the order of conviction. In support of this contention, learned Counsel for the prosecution has relied upon the authority of Supreme Court reported in : 1989CriLJ88 State of U.P. v. Anil Singh in which it was held that indifferent attitude of the public in the investigation of the crimes is definitely there and public are generally reluctant to come before the court to depose. In such a situation, it is, therefore, not correct to reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined and it is also not proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. Moreover, there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version and on that ground alone the prosecution story should not be disbelieved and it is duty of the Court to make an effort to disengage the truth from falsehood and to sift the grain from the chaff. It was also held by Their Lordships that it is necessary to remember that a judge does not preside over a criminal trial merely to see that no innocent man is punished but a judge also presides to see that a guilty man does not excape and one is as important as the other.
21. In the instant case also if we test the entire evidence of the witnesses, it can be said that they are truthful and some of them were injured and had seen the occurrence and admittedly there was no enmity as against the appellants and the only discrepancy is that in their evidence they had not stated before the I.O. that there was electric light or they were witnessing the programmes on the T.V. and some other minor discrepancies and further they had also taken the name of Doman Singh, but who had been acquitted by the trial court. So, in view of the authorities mentioned above, these discrepancies are minor in nature and it is not a ground for disbelieving the prosecution case as a whole because one of the accused was acquitted for paucity of evidence by the trial court.
22. So far the defence version that actually it is the prosecution side responsible for the murder of the deceased because the deceased had some relationship with Sangita the sister of the informant, on this point, it was contended that the I.O. had also admitted in his cross-examination that the murder took place only for the girl Sangita but the I.O. had also stated that appellant Bhola Singh got annoyance for the reason that he too had an eye over that girl and was having rivalry with the deceased; if that is so, the cause of annoyance was to Bhola Singh because he was considering the deceased as his rival. IN that view of the matter, it is he who committed murder to eliminate his rival in love. Moreover, practically there is nothing on the record save and except the suggestion that the family members of Sangita committed murder of the deceased because the affairs of the deceased with Sangita was inviting their wrath. On the other hand, the evidence is to the contrary that the deceased was in good term and in visiting term and prior to occurrence he was also in their house. So, practically, there is no merit in the defence version.
23. The entire evidence on the record and the surrounding circumstances prove beyond reasonable doubt that the appellant Bhola Singh fired from his revolver from close ranger as against the deceased Ravi Shankar the moment he came down from the house after hearing the alarm of the informant, most probably, to rescue him. The injury was on the chest and so it can be said that this appellant had intention to commit murder of the deceased and in that view of the matter, the trial court was perfectly justified in convicting and sentencing this appellant under Section 302 of the Indian Penal Code and the sentence also does not require any interference.
24. So far the other appellants are concerned, they were also found guilty under Section 302/34 of the Indian Penal Code as the trial court found that they were also sharing common intention to commit murder of the deceased. So far sharing of common intention is concerned, practically there is nothing on the record to show that the other appellants were also sharing common intention because the evidence indicates that all these appellants though armed had assembled and assaulted the informant and the informant sustained simple injury. So, it can be said that they had no common intention even to commit murder of the informant and the deceased came down from the house all of a sudden. In that view of the matter, the other appellants were not expected to know his presence in the house. Moreover, there was no instigation on the part of the other appellants. They had also not contributed anything by way of surrounding, apprehending or even instigating and Bhola Singh fired alone which hit on the chest resulting in his death. In that view of the matter all the surrounding circumstances and evidence clearly indicate that the other three appellants, namely, Raj Kishore Singh @ Didi, Manoj @ Manoj Kumar and Raj Kumar @ Raju were not sharing common intention. In that view of the matter, their conviction and sentence under Section 302/34 of the Indian Penal Code is definitely bad in law and as such the order of conviction and sentence of these three appellants is set aside so far under Section 302/34 of the Indian Penal Code is concerned. This fact is also well proved that Bhola Singh caused simple injury to the informant. In that view of the matter, the trial court rightly convicted him under Section 323 of the Indian Penal Code and it does not require any interference. The Court below also found other three appellants guilty under Section 323 of the Indian Penal Code and the evidence on the record also indicate that they are definitely guilty under Section 323 of the Indian Penal Code but the greatest hurdle before us is that the court below has not awarded any sentence as against these three appellants under Section 323 of the Indian Penal Code and simply observed that no separate sentence is necessary. In that view of the matter, learned Counsel for the appellants submitted that admittedly, the State has not preferred any appeal against the sentence awarded by the court below in view of the provision of Section 377 of the Code of Criminal Procedure and even though this Court has power to enhance the punishment by exercising the revisional jurisdiction but rule was not issued as against the appellants for enhancing the punishment. In support of this contention, learned Counsel for the appellant also relied upon the authority of the Supreme Court reported in 1990 Cr.L.J. 1202 in which it was held that unless there is an appeal by the State or there is rule of enhancement, the High Court is not competent to enhance the punishment. In that view of the matter, no sentence under Section 323 of the Indian Penal Code is to be passed as against these three appellants.
25. In the result, Cr. Appeal No. 224 of 1992 preferred by the appellant Bhola Singh is dismissed and his conviction and sentence as awarded by the trial court is hereby confirmed and maintained. So far Cr. Appeal Nos. 241 and 244 of 1992 preferred by appellants, namely, Raj Kishore Singh @ Didi, Manoj @ Manoj Kumar and Raj Kumar @ Raju are concerned, these two appeals are allowed in part and their conviction and sentence so far under Section 302/34 of the Indian Penal Code is hereby set aside. These three appellants are on bail and so, they are discharged from the liability of their bail bonds.
Ram Nandan Prasad, J.
26. I agree.