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CASE NO.: Appeal (crl.)  1169-1170 of 2005

PETITIONER: Baso Prasad & Ors.                                                      

RESPONDENT: State of Bihar                                                          

DATE OF JUDGMENT: 24/11/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       Appellants  five in number were proceeded against and convicted for  commission of an offence of murder of one Shivnandan Prasad at about  07.00  a.m. on  13.12.1999.  The parties are residents of the same village.

       On  13.12.1999 at about 06.30 a.m., the deceased was milking a  buffalo.  His other family members including the wife of his brother  (informant Krishna Deo Prasad-PW-7),  nephew Sunil Prasad and others  were brushing their teeth at the roof of their house.  Brijnandan Prasad and  others have their joint residential house at some distance from the house of  the deceased.  They allegedly came over the roof of their house armed with  rifles and started brick-batting and abusing the brother of the informant  alleging that they had burnt a heap of straw belonging to them.  When  Shivnandan Prasad went to the roof of the house, allegedly the appellants  started firing.  One of the bullets hit Shivnandan Prasad on his chest.  An  alarm was raised.  The first informant reached near his brother and found  him dead.  A First Information Report was lodged at about 10.00 a.m. on the  same day before Chandi Police Station.  The distance between the place of  occurrence and the Chandi Police Station is said to be about  10 k.m.   

       The prosecution in support of its case examined five witnesses,  amongst whom the eye-witnesses, being Satrughan Prasad (PW-4),  Chandrakanti Devi (PW-5), Sunil Kumar (PW-6), Krishnadeo Prasad (PW- 7) and Mahapati Devi (PW-8).

       The learned Sessions Judge relying on or on the basis of the evidence  adduced by the prosecution and in particular the deposition of the eye- witnesses found  the appellants guilty of commission of an offence under  Section 302/34 of the Indian Penal Code and sentenced them to undergo  rigorous imprisonment for life.  A fine of Rs.5,000/- was also imposed upon  each of them.  They were also found guilty under Section 27 of the  Arms  Act and were convicted to undergo rigorous imprisonment for one year.  The  appeals preferred by the appellants have been dismissed by a Division Bench  of the High Court.

       Mr. Nagendra Rai, the learned Senior Counsel appearing on behalf of  the appellants, would raise the following contentions in support of the  appeals.

1)      The prosecution version on the  basis whereof the judgment of          conviction and sentence has been arrived, at is improbable and the          same is falsified by medical evidence.

2)      If the occurrence had taken place in the morning, as alleged by the          prosecution,  the post-mortem examination having been conducted at           03.00 p.m. on the same day, it was not possible to find presence of  

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       rigour mortis  in all the four limbs and furthermore keeping in view          the     distance from which the firing had taken place, the doctor          would not have found margin of  wound having been charred.   

3)      The manner in which the incident took place as disclosed by the          prosecution having been         prevaricated from stage to stage should not          be relied upon, inasmuch as in the First Information Report it was          alleged that three persons fired, whereas in the statements made under          Section 161 of the Code of Criminal Procedure, the witnesses          attributed firing to all the accused, whereas in evidence some of the          witnesses attributed the act of firing only on the Brijnandan Prasad.   

4)      The investigation was perfunctory, as no blood was found at the spot;          no gun was recovered; no sign of firing was noticed.

5)      It is improbable that although there had been indiscriminate firing,          nobody else would have suffered any injury.

6)      Even if the occurrence had taken place, it was only Brijnandan Prasad          who had fired and, thus, participation of others having common          intention to commit  the said offence has not been proved.                     Mr. Gopal Singh, the learned Standing Counsel appearing on behalf of  the State of Bihar, on the other hand, would submit :

1)      At the place of occurrence blood was seized, which has been proved          by some of the eye-witnesses as also PW-2.

2)      The witnesses examined on behalf of the prosecution has further          proved that the appellants had indulged in brick batting.   3)      The firing by the appellants and in particular Brijnandan Prasad has          categorically been stated by all the witnesses.

       Before adverting to the rival contentions, as noticed hereinbefore, we  may notice that on the same day, the brother of the appellants Bhuvan Mahto  was said to have been done to death wherefor a First Information Report was  lodged in which the first informant and  the deceased were said to be the  accused,  but it is accepted that in the said case also being Chandi P.S. Case  No. 374 of 1999, a charge-sheet has been filed wherein also the appellants  have been made accused and not the informant or the deceased.                    The homicidal nature of the death of the deceased is not in dispute.   The autopsy report of Dr. Prabhat Keshaw  corroborates the homicidal  nature of death.  In his deposition, he stated :

"Rigour mortis present in all four limbs.

Injury No. (i)  One lacerated wound on occipital region  on scalp 1 =" x 1" x scalp deep.

       (ii) One lacerated wound on right side of chest at  the length of second inter-coastal space 1 =" lateral to  the external margin 2" x 1" x cavity deep size, margin  of wound charred and  inverted, wound of entry.

       (iii)   Third rib fractured.

       (iv)    One lacerated wound on left side of back at  bare area, just below the lower the lower border of  scapula 1 =" x 1" x cavity deep size, margin of wound  everted, wound of exit.  Both injury No. II & IV are  inter connected with each other.

       (3)     On dissection, skull, brain and brain matter  intact, right lung perforated, left lung intact, arch of

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aorata intact contents 3-4 ounces of undigested food  materials, liver, splin, both kidneys intact, gasses ficle  matters present in small and large intestine respectively.   The bladder was half full.  Time elapse since death  within 24 hours.

       (4)     In my opinion death occurred due to shock  and haemorrhage caused by above noted injury caused  by fire-arm.  May be by rifle.  The above noted injuries  are sufficient for death.  This post mortem report is in  my pen and signature mark Exh. 4."

       In his cross-examination, he stated that the distance of firing was more  than 6 feet and was  from  long range, i.e. beyond 6 feet; although he could  not say the exact distance.  He, however, could not state that the injury was  from parallel height or from higher height.  In regard to the presence of  rigour mortis, it was stated :             "\005The start of rigour mortis depends on the temperature  and weather conditions, but in this case rigour mortis  developed after three hours.  In all turn limbs developing  of rigour mortis take 18 hours in such types of cases\005."

       The deceased met instantaneous death.  Although the investigation  was conducted in a slipshod manner, but the presence of blood at the spot of  occurrence as also seizure thereof had categorically been stated by PW-4,  PW-5, PW-6, PW-7, PW-8 and PW-2.   PW-2, Kapil Prasad, is an  independent witness.  He categorically stated :

"\005Blood stained soil and brick bats were also seized by  the police in my presence and prepared the seizure list\005"

       It is, thus, not correct to say that no blood was found at the spot.  

       He reiterated his statement in the cross-examination in the following  terms :

       "The police seized blood stained soil, bricks etc. in  my presence.  I cannot say the length and breadth of the  bricks.  I do not remember the area of the place from  where the blood was seized.  The soil might be 4-5  hundred grams\005"

       We may also notice that in the  First Information Report, it was  categorically stated that the appellants herein had indulged in brick batting.   The statement to the said effect was proved  by PW-4, PW-5, PW-6, PW-7,  PW-8 and other eye-witnesses in their depositions before the court. This part  of the prosecution is not under challenge before us.

       We may also notice the fact that there had been firing from the side of  the appellants has not only been disclosed in the First Information Report  but also stated by the witnesses.  We would, however, examine the effect of  the depositions of the said witnesses, in this behalf, a little later.

       We may notice that according to PW-3, the firing took place from a  distance of about 50- 60 feet, whereas according to PW-4, the distance was  anything between 40-45 feet.   Both PW-7 and  PW-8 stated that the distance  from which the firing took place was about 40- 45 feet.

       It is also not in dispute that whereas prosecution witnesses PW-4,  

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PW-7 and PW-8 also stated that the appellants were in the second floor of  their house, whereas the deceased, informant and others were in the first  floor of their house.  However, the difference of height of the respective  buildings is not brought on records.

       The discrepancies between the medical evidence and ocular evidence,  however, as noticed hereinbefore, have been raised on two counts, namely,  (i) rigour mortis in four limbs were found; and (ii) in view of the injury  sustained by the deceased, the firing must have taken place from a close  distance.   

       We must, however, state that before the High Court, the second  contention was not raised.  Even before the learned Sessions Judge the only  contention raised was in regard to the time of death and with reference to the  presence of rigour mortis in all the four limbs.  In the grounds of the Special  Leave Petition also, the question in regard to the possibility of the deceased  having been fired upon from a close distance has not been raised.

       We may deal with the question as regards presence of rigour mortis.

       In ’Modi’s Textbook of Medical Jurisprudence and Toxicology’,21st  Edn., at page 171,  it is stated :

       "Rigor mortis generally occurs, while the body is  cooling.  It is in no way connected with the nervous  system, and it develops even in paralyzed limbs,  provided the paralyzed muscle tissues have not suffered  much in nutrition.  It is retarded by perfusion with normal  saline.

       Owing to the setting in of rigor mortis all the  muscles of the body become stiff, hard, opaque and  contracted, but they do not alter the position of body or  limb.  A joint rendered stiff and rigid after death, if  flexed forcibly by mechanical violence, will remain  supple and flaccid, but will not return to its original  position after the force is withdrawn; whereas a joint  contracted during life in cases of hysteria or catalepsy  will return to the same condition after the force is taken  away.

       Rigor mortis first appears in the involuntary  muscles, and then in the voluntary.  In the heart it  appears, as a rule, within an hour after death, and may be  mistaken for hypertrophy, and its relaxation or dilatation,  atrophy or degeneration.  The left chambers are affected  more  than the right.  Post-mortem delivery may occur  owing to contraction of the uterine muscular fibres.

       In the voluntary muscles rigor mortis follows a  definite course.  It first occurs in the muscles of the  eyelids, next in the muscles of the back of the neck and  lower jaw, then in those of the front of the neck, face,  chest and upper extremities, and lastly extends  downwards to the muscles of the abdomen and lower  extremities.  Last to be affected are the small muscles of  the fingers and toes. It passes off in the same sequence.   However, according to H.A. Shapiro this progress of  rigor mortis from proximal to distal areas is apparent  only, it actually starts in all muscles simultaneously but  one can distinguish the early developing and fully  established stage, which gives an indication of the time  factor.

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       Time of Onset.- This varies greatly in different  cases, but the average period of its onset may be regarded  as three to six hours after death in temperate climates,  and it may take two to three hours to develop.  In India, it  usually commences in one to two hours after death."

                        In Parikh’s Textbook of Medical Jurisprudence, Forensic Medicine  and Toxicology’ 6th Edn., at page 3.14,  it is stated :

       "Rigor mortis (rigor-rigidity; mortis-of death) is a  condition characterized by stiffening and shortening of  the muscles which follow the period of primary  relaxation.  It is due to chemical changes involving the  structural proteins of the muscle fibres and indicates the  molecular death of its cells.

       The contractile element of the muscle consists of  protein filaments of two types, viz, myosin and actin,  which are arranged and organized interdigitating manner.   In the relaxed state, the actin filaments interdigitate with  myosin filaments only to a small extent but when the  muscle contracts, they interdigitate to a great extent due  to the presence of ATP (adenosine triphosphate).  The  production and utilization of ATP are constantly  balanced in life.  After death, ATP is resynthesised for a  short time depending upon the glycogen available  locally, but after this glycogen is used up, ATP cannot be  resynthesised.  This leads to the fusion of myosin and  actin filaments into a dehydrated stiff gel resulting in the  condition known as rigor mortis.  During rigor mortis, the  reaction of muscle changes from slightly alkaline to  distinctly acid owing to the local formation of lactis acid.   Rigor mortis persists until autolysis of myosin and actin  filaments occurs as a part of putrefaction.   When  autolysis occurs, the muscles soften and secondary  relaxation sets in.   

       Rigor mortis can also be broken by mechanical  force.  Thus, if a limb, which is stiff due to rigor, is  flexed forcibly at a joint, the limb becomes flaccid and  will remain so thereafter.  This is known as breaking of  rigor mortis. Existing rigor mortis is broken down at least  partially in the process of removal of the body from the  crime scene to mortuary, and this may mislead the doctor  in estimation of time since death.  It is therefore essential  to make a note of its stage of development while visiting  the crime scene.

       All muscles of the body, voluntary and  involuntary, are affected by rigor.  It first appears in  involuntary and then in voluntary muscles.  It is not  dependent on the nerve supply as it also develops in the  paralysed limbs.  It is tested by (1) attempting to lift the  eye lids (2) depressing the jaw, and (3) gently bending  the neck and various joints of the body."

       At page 3.16 it is stated :

                "The medico-legal importance is as follows : (1) It  is a sign of death (2) It helps to estimate the time since  death.  (3) It may give information about the position of  the body at the time of death and if it has been altered

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after rigor has set in.  As for example, if a person dies  with the hands and legs supported against a brick wall  and the position of the body has been changed after rigor  set in, the hands and legs would remain raised in an  unnatural position (without support)

       The factors which influence rigor mortis are : age  and condition of the body (2) mode of death, and (3)  surroundings.

       Age and condition of the body : In children and old  people, rigor develops earlier than in the adults.  The  onset of rigor is later and the duration longer in the strong  muscular person.  The  more feeble or poorly developed  the muscles, the more rapid is the time of onset, and the  shorter the duration"

       The exact time of death, therefore, cannot be established scientifically  and precisely, only because of presence of  rigour mortis or in the absence of  it..   

       In Mangu Khan and Others v. State of Rajasthan [(2005) 10 SCC  374], this Court rejected a similar contention, opining : "\005In the first place, neither post-mortem report suggests  that the death had taken place exactly 24 hours before the  post-mortem was conducted. All that the post-mortem  reports say is that the death had occurred within 24 hours  prior to PM examination. Undoubtedly, the post-mortem  examination was carried out at 11.00 a.m./12 noon on 11- 7-1997. In other words, the post-mortem reports suggest  that the death might have occurred any time after  11.00/12.00 noon of 10-7-1997. The contention urged by  reference to textbooks on forensic medicine to show the  time within which rigor mortis develops all over the body  also has no factual basis. It depends on various factors  such as constitution of the deceased, season of the year,  the temperature in the region and the conditions under  which the body has been preserved. The record indicates  that the body was taken from the mortuary. We notice  that there is no cross-examination, whatsoever, of the  doctor so as to elicit any of the material facts on which a  possible argument could have been based. If these are the  circumstances, then the presence of rigor mortis all over  the body by itself cannot warrant the argument of the  learned counsel that the death must have occurred during  the previous night. Acceptable ocular evidence cannot be  dislodged on such hypothetical basis for which no proper  grounds were laid."

       Yet again in Thangavelu v. State of T.N. [(2002) 6 SCC 498], this  Court observed :

       "We have heard learned counsel and carefully  looked into the material on record. From the evidence of  PW-5, the doctor, we find that there is a possibility that  the incident in question might have occurred about 39  hours prior to the post mortem. Though in the  examination in chief, PW-5 has stated that the time  between the death and post mortem could be 16 to 24  hours which fits in with the prosecution case, in the cross  examination he has very clearly stated that in this case  death would have been caused about 39 hours before the  post mortem which would be sometime after 5.30 p.m.  on 15.12.1990. This the doctor has stated by taking into

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consideration the time and month of the incident as also  the time required for the setting of rigor mortis and  passing off of the same. According to the doctor, in the  month of December in a place like Erode the rigor mortis  may set in after about 2 to 3 hours after the death. He has  stated that for the rigor mortis to reach from the leg to  head, it would take 12 hours and the same would remain  in existence for about another 12 hours. Thereafter, it  would gradually diminish in the reverse direction i.e.  from head to leg taking about another 12 hours and on  this basis when he examined the body of the deceased, he  found the rigor mortis had reversed almost to the end of  the legs. By this process he came to the conclusion that  the death in question must have occurred about 39 hours  before post mortem\005"  

       The incident took place in the winter season.  The deceased was aged  about 50 years.  Rigour mortis, thus, would be well marked.  Rigour mortis,  as noticed hereinbefore, appears after two to three hours.  It is well  developed from head to foot in about 12 hours.  The  age, muscular  condition and activity before death, manner of death and atmospheric  conditions are relevant factors.  We, therefore, do not find any merit in the  said contention of Mr. Rai.   

       So far as the contention in regard to distance of firing is concerned, it  is true, ordinarily, charring would take place, if firing is done from a  distance of less than four feet, as has been noticed in some of judgments of  this Court in Subhash and Another v. State of U.P.  [(1976) 3 SCC 629],   Nath  Singh and Others etc. v. State of U.P. [(1980) 4 SCC 402], State of  Punjab v. Wassan Singh and Others [(1981) 2 SC 1] and Sidharth and Others  v. State of Bihar [(2005) 12 SCC 545].

       In some cases, medical evidence may corroborate the prosecution  witnesses; in some it may  not.  The court, however, cannot apply any  universal rule whether ocular evidence would be relied upon or the medical  evidence , as the same will depend upon the facts and circumstances of each  case.  No hard and fast rule can be laid down therefor.    

       It is axiomatic, however, that when some discrepancies are found  in  the  ocular evidence vis-a-vis medical evidence,  the defence should seek for  an explanation from the doctor.  He should be confronted with the charge  that he has committed a mistake. Instances are not unknown where the  doctor has rectified the mistake committed by him while writing the post- mortem report.          In Surinder Singh and Another v. State of U.P. [(2003) 10 SCC 26], it  was held :         "One of the pleas raised by learned counsel for the  appellants was that the injuries as noticed by the doctor  are at variance with the ocular evidence. On a close  reading of the evidence of eye-witnesses and the doctor’s  report there is no noticeable variance. The mere fact that  doctor said that injuries appeared to be on one side of the  body and the witnesses said that attacks were from  different sides, is too trifle an aspect. When three persons  are attacking a person, the witnesses naturally get  shocked. This is normal human conduct and the  immediate reaction is to save the victim and to stop the  assailants from further attacks. That is precisely what has  been done by the eye-witnesses. It is only when the  medical evidence totally improbabilises the ocular  evidence, that the Court starts suspecting the veracity of  the evidence and not otherwise."  [See also State of Karnataka v. Papanaika and Others \026 [(2004) 13  SCC180].

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       In  Anwar and Others v. State of Haryana  (1997) 9 SCC  766], this  Court observed : "\005It is true that Dr Jai Kishan (PW 9) who conducted  the autopsy in his post-mortem examination report  described Injury 1 as being incised wound 20 cms x 2  cms causing fracture of the underlying bone. He further  noticed lacerated wounds on the neck of the right ear of  the size 1 cm x 1/2 cm causing fracture of the underlying  bone. While giving evidence in the court, he described an  incised wound as Injury 1 and lacerated wounds as Injury  1-A. He further testified that it was a bona fide mistake in  not describing these two injuries separately. Mr Sushil  Kumar urged that Dr Jai Kishan (PW 9) has made  material improvement in his evidence before the court to  suit the prosecution and to lend support to the evidence  of eyewitnesses and, therefore, such an improved version  which demolishes the evidence of eyewitnesses be not  accepted. This submission, is an attractive one but having  regard to the facts and circumstances of this case, it is not  possible to accept the same. The consistent evidence of  both these eyewitnesses was that A-2 had fired from his  pistol on Baddal causing firearm injuries on his head and  this evidence, in our opinion, is quite a credible one. Both  these witnesses have referred to the firearm injury on  Baddal on his head whereas lacerated wounds were  found behind the right ear. In an assault of this nature, the  exact description as regard to location of the firearm  injury might be not accurate but that by itself would not  render their evidence untrustworthy. It needs to be  mentioned that the medical evidence is an opinion  evidence which is used to lend corroboration to the  evidence of eyewitnesses. If the medical evidence is  found to be totally inconsistent with the ocular evidence  on a given set of facts, it would be permissible for the  court to reject the ocular evidence. As far as the facts of  the present case are concerned as pointed out earlier, the  inconsistency between the ocular evidence and the  medical evidence is of a very minor nature and we do not  think it proper to reject the evidence of these two  eyewitnesses on that score\005"                                                         [Emphasis supplied]

       Whereas  in  the  body  of  the   post-mortem  report,  the medical  expert stated,   ’the   margin of wound charred and inverted’ at another point,  he in no uncertain terms stated that firing was done from long range and  distance of firing would be from more than six feet.  The possibility,  therefore, of his commission of some mistake in the post-mortem report  cannot be ruled out.  It was on the said premise, it was incumbent upon the  defence to bring the said fact to the notice of the doctor.  Probably, knowing  the futility of asking such a question, no such contention was raised either  before the Sessions Judge or before the High Court.  No such ground has  also been taken before us.                  Tattooing or charring shall depend upon the constituents of the  propellant charge.  It is in that context only wounds are classified by their  external appearance as close contact, near contact and distant.

       The doctor in his evidence was categorical in stating that the wounds  would not come within the purview of classification of near contact; but the  wounds should be classified under ’distant contact’.

       The authorities like Taylor and  HWV Cox in their  treatises, state in  details as to how the post-mortem examination should be conducted.  

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       The nature of the gun will also have a role to play. Unfortunately, the  investigating officer did not make any attempt even to seize the gun.  When  the weapon was not seized, the question of examination of any ballistic  expert would not arise. [See Nirmal Singh  and Another  v. State of Bihar \026  (2005) 9 SCC 725].

       Section 45 of the Indian Evidence Act, 1872 reads as under :

"45. Opinions of experts.\027When the Court has to form  an opinion upon a point of foreign law or of science or  art, or as identity of handwriting or finger impressions],  the opinions upon that point of persons specially skilled  in such foreign law, science or art, or in questions as to  identity of handwriting or finger impressions are relevant  facts.         Such persons are called experts ".           Opinion of an expert, therefore, is a relevant fact. The court may, thus,  took the expert opinion into consideration.  But appreciation of evidence is  the court’s job.

       It is, thus, for the court to arrive at an opinion as to which part of  contradictory expert opinion should be accepted or whether in a given  situation ocular evidence should be believed in preference to medical  evidence or vice versa.    

       In State of U.P. v. Krishna Gopal and Another [(1988) 4 SCC 302],  this court has observed :         "It is trite that where the eyewitnesses account is  found credible and trustworthy, medical opinion pointing  to alternative possibilities is not accepted as conclusive.  Witnesses, as Bentham said, are the eyes and ears of  justice. Hence the importance and primacy of the orality  of the trial process. Eyewitnesses account would require  a careful independent assessment and evaluation for their  credibility which should not be adversely prejudged  making any other evidence, including medical evidence,  as the sole touchstone for the test of such credibility. The  evidence must be tested for its inherent consistency and  the inherent probability of the story; consistency with the  account of other witnesses held to be creditworthy;  consistency with the undisputed facts; the credit of the  witnesses; their performance in the witness box; their  power of observation etc. Then the probative value of  such evidence becomes eligible to be put into the scales  for a cumulative evaluation."

       Yet again in Dhirajbhai Gorakhbhai  Nayak v. State of Gujarat  [(2003) 9 SCC 322], this Court held : "\005As regards the alleged discrepancy between the  medical evidence and ocular evidence, it is to be noted  that a combined reading of the evidence of PW 9 who  examined the deceased after he was brought to the  hospital and PW 7 who conducted the post-mortem, it is  clear that there is no discrepancy in the medical evidence  vis-‘-vis ocular evidence. Only in respect of Injury 1,  there appears to be some confusion but that does not  dilute the prosecution evidence. It would be erroneous to  accord undue primacy to the hypothetical answers of  medical witnesses to exclude the eyewitnesses account  which has to be tested independently and not treated as  variable keeping in view the medical evidence as  constant. (See State of U.P. v. Krishna Gopal.)"

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       In Birendra Rai and Others v. State of Bihar [(2005) 9 SCC 719], this  Court observed : "\005We do not attach much significance to the fact that  some of the wounds showed an upward trajectory. A  bullet may possibly be deflected if it hits a hard surface.  The fact remains that all the shots fired have caused  wound of entry as well as exit wound, and from the  description of the wounds given by the doctor it appears  that the firing was done from very close range. The  evidence of the witnesses is to the same effect. They have  clearly stated that they came near the deceased after  firing took place. There was indiscriminate firing at the  deceased who fell down after receiving the first injury.  One cannot assume that the deceased was lying still in  one posture after falling on the ground. He must have  been writhing in pain when several shots were fired at  him, and in that process several injuries were caused to  him. So viewed, we find no inconsistency between the  ocular evidence and medical evidence on record."

       It was further observed :  "\005It was submitted that if several shots were fired,  some pellets would have been found at the place of  occurrence. It is the case of the prosecution that no  pellets were found. For this reason alone we cannot  discard the case of the prosecution. If pellets were found  at the place of occurrence it would have further  strengthened the case of the prosecution, but in the  absence of such evidence one has to rely upon the ocular  evidence which if found reliable, may be acted upon\005"

       In Nirmal Singh (supra), it was held :

"Counsel then submitted that the prosecution has failed  to prove that the dalan of the deceased was the real place  of occurrence. This submission is based on the fact that  no bloodstained earth was seized from the place of  occurrence. It is true that no bloodstained earth was  seized from the place of occurrence but there is also  evidence of several witnesses including the investigating  officer that no blood had fallen on the earth.  Eyewitnesses explained that on receiving the injury the  deceased pressed his wound with his hands whereafter a  piece of cloth was tied around the wound which soaked  the blood which may have come out. There was,  therefore, no likelihood of the earth getting bloodstained.  Counsel for the appellants submitted that the intestines  were protruding as described in the inquest report, and in  such a situation there must have been some bleeding.  That may be so, but in view of the explanation offered by  the prosecution witnesses it appears probable that no  blood had fallen on the ground at the place of occurrence.  In any event, if some blood had fallen at the place of  occurrence which the investigating officer failed to  notice, that by itself will not be fatal to the case of the  prosecution. We must observe that the investigation in  this case has been most unsatisfactory and the  investigating officer was not conscious of his  responsibilities. The bloodstained piece of cloth which  was wrapped around the wound of the deceased appears  to have been seized by the investigating officer, but when  questioned as to why it was not sent for chemical  examination, he answered that he had hung that piece of  cloth on a guava tree in the police station. The statement  is comical but discloses the utter non-seriousness with

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which the investigation was conducted. We had expected  better from the investigating officer who was  investigating a serious case of murder. However, for this  reason we will not reject the case of the prosecution  entirely."                                                         [Emphasis supplied]

       We, therefore, are of the opinion that the second contention of the  learned counsel also cannot be accepted.   

       We, however, are not oblivious of one patent fact.  In the First  Information Report, the first informant, attributed the act of firing to  Brijnandan Prasad and Sahdeo.  PW-4, however, in his deposition before the  court attributed the act of firing only to Brijnandan Prasad.  According to  him, other persons were only wielding rifles.  Shivnandan Prasad fell down  after receiving the gunshot and died.  He in his cross-examination also  attributed the act of firing only to Brijnandan Prasad.  PW-5 although stated  that all the accused had started firing but even according to her Brijnandan  Prasad fired shot which had hit the deceased on his chest.  Evidence of PW-6  is also to the same effect that the shot which had hit his father on the chest  was fired by Brijnandan Prasad.  PW-7 and PW-8 also named Brijnandan  Prasad.   

       The prosecution case is that the dispute started on lighting of fire on a  heap of straw.  The accused allegedly hurled brick bats, which compelled the  deceased to come to the roof to forbid them from  doing so.  Whereas  Brijnandan Prasad alone fired a shot which had hit the deceased, there is no  evidence brought on record to show that any other accused did so.  No gun  shot injury was suffered by any person.  The deceased has also suffered only  one gun shot injury.  No sign of firing was found on the walls or any other  part of the building.  No cartridge was recovered.   

       Even no other person had suffered any injury by reason of hurling of  brick bats.  Having regard to the materials brought on records, we are of the  opinion that in this case although the prosecution has proved the charge of  committing the murder of the deceased, it has failed to establish that the  accused had any common intention in relation thereto. Brijnandan Prasad  alone was, thus, responsible therefor.  Had the other accused shared common  intention with Brijnandan Prasad, they would have also fired.  No such  evidence having been brought on record, benefit of doubt must be extended  to the other accused persons.   

       We,  therefore, while holding Brijnandan Prasad guilty, are inclined to  allow the appeal of the other appellants.  The judgment of conviction and  sentence passed against them is set aside.  The appellants in Criminal Appeal  No.1169 of 2005 shall be released forthwith, if not wanted in any other case.                  Criminal Appeal No.1169 of 2005 is, therefore, allowed and Criminal  Appeal No.1170 of 2005 filed by Brijnandan Prasad is dismissed.