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PETITIONER: BEHARI PRASAD ETC.ETC.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT:       09/01/1996

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) NANAVATI G.T. (J)

CITATION:  1996 SCC  (2) 317        JT 1996 (1)    93  1996 SCALE  (1)162

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T G.N.Ray.J.      All these  appeals arise out of a common judgment dated March 31,  1987 passed  by the  Patna High Court in Criminal Appeal No.390  of 1983 (Uday Prasad and two others Vs. State of Bihar)  and Criminal Appeal No.382 of 1983 (Sheoji Prasad Vs. State  of Bihar)  arising out of the judgment dated July 18, 1983  passed by  the  learned  4th  Additional  Sessions Judge. Arran  in Sessions  Trial  No.314  of  1981.  By  the impugned judgment,  the High  Court has  dismissed both  the appeals and convictions and consequential sentence passed by the learned  Additional Sessions judge against the convicted appellants were affirmed by the High Court.      The four  accused  namely  Sheoji  Prasad  (A/1),  Udai Prasad (A/2).  Parameswar Prasad  (A/3)  and  Behari  Prasad (A/4) stood  charged under Section 302 read with Section 149 and 34 I.P.C. for being members of an unlawful assembly with the common  object and  common intention to commit murder of one Lal  Babu on  April 5,  1980 at about 1.00 P.M. at Arran town. The accused No.2 Udai Prasad was further charged under Section 302,  148 I.P.  C. and  Section  27  Arms  Act.  The accused Nos.3  and 4  namely Parameswar  Prasad  and  Behari Prasad were  also charged  under  Section  143  and  302/149 I.P.C. Accused  No.1 Sheoji  Prasad was  also charged  under Section 323  and 147  I.P.C. for  causing voluntary  hurt to Nandji (P.W.1)  with a  hockey stick  and for committing the offence of  rioting.  There  was  another  accused  Rameswar Prasad, the  father of  the accused  No.2  Udai  Prasad  and accused No.3  Behari Prasad out he had died before the trial was completed.  Excepting the  accused  Shedji  Prasad,  the other three  accused are  close relations. The accused Nos.2 and 4  are real brothers and accused No.3. Parameswar Prasad is the  uncle (father’s brother) of the accused Nos.2 and 4. The deceased Lal Babu was nephew (brother’s son) of Rameswar (deceased) and  accused No.3  Parameswar Prasad.  The common

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ancestor of the deceased and the accused Nos.2 to 4, namely. Baijnath  Prasad   had  self  acquired  properties.  In  the ancestral house  at Mohalla  Mahadeva at Arran town, all the sons of  Baijnath  Prasad  excepting  the  deceased  accused Rameswar Prasad  used to  reside. The  said Rameswar used to stay with  the members  of his family including his two sons namely accused  No.2 Udai  Prasad and  accused  No.4  Behari Prasad in  a  separate  house  hear  Lalji  Kothi  close  to Shismanal chowk  in the  town of  Arran which  is within the market area.  The members  of the family of Rameswar used to stay on  the upper floor of the said house and in the ground floor there  were two  shops. The  incident  of  murder  had happened close  to the  said shoos. The northern shop of the said house  was given  by Baijnath  to  the  father  of  the deceased Lal  Babu since deceased. The remaining portion was given by  Baijnath to  his other  two sons  Gajadher  Prasad (P.W.4) and Beni Prasad, the deceased father of P.W.1 Nandji Prasad. Such  disposition of  his properties by Baijnath was not liked  by his  two other  sons namely Rameswar (deceased accused) and  Parameswar (A/3).  It appears  that a  probate proceeding was pending between the five sons of Baijnath and their successors-in-interest.  The interest of deceased Beni Prasad and  deceased Badri  Prasad were represented by their sons-Nandji Prasad (P.W.1) and the deceased Lal Babu.      The residential  portion of  the  house  where  accused Rameswar used  to live  with his  family members fell in the share of  Lal Babu  and suit  for eviction  of Rameswar  was filed by  Ram Babu. The shop room in the ground floor of the said house  which was  given to  the father  of Ram  Babu by Baijnath was tenanted and accused No.1 Shedji Prasad was the tenant of  the said shop room. A suit for eviction of Shedji was filed  and such  suit was  fought upto  this Court.  The tenant Sheoji  Prasad compromised with the deceased Lal Babu by giving an undertaking that by a particular date, he would believer vacant  possession of  the same to the deceased Ram Babu.  Since   vacant  possession   was  not  delivered,  an execution case  was instituted  in the  court of the learned Munsif  at  Arran.  The  executing  court  passed  an  order directing delivery  of possession  by  the  officer  of  the Court.      On the date of the incident of murder. Rajib Ranjan the Naip Nazir  of the  Court (DW  1)  was  deputed  to  deliver possession of the shop room tenanted to Sheoji Prasad to Ram Babu deceased.  The said  Naib Nazir  in the company of four court peons and a lawyer reached the said shop at about 1.00 P.M. on  April 5,  1980. It  appears from  the deposition of Rajib (DW  1) and his report Ext.B that since one Dariachnan Sad claimed  tenancy right  in respect of the said shoo room on the  ground of being inducted as a tenant by the deceased accused Rameswar,  the  said  Naib  Nazir  did  not  deliver possession of  the said  shop room  to the deceased Ram Babu and left the place.      The prosecution  case in  short is that on a false plea of tenancy  raised  by  Dariachhan,  the  Naib  Nazir  being prevailed upon  by the  deceased Rameswar, accepted the case of tenancy  and did  not  deliver  possession  to  Ram  Babu without ascertaining  real state  of affair.  As soon as the said Naib  Nazir, the  court peons  and the  lawyer left the place, at  the exhortation of accused No.1 Sheoji Prasad, to the accused  persons  present  at  the  spot,  the  deceased accused Rameswar  Prasad  and  accused  No.1  Sheoji  Prasad assaulted the  informant Nandji  Prasad  (P.W.1)  and  P.W.2 Badri Prasad  respectively with  an iron  rod for  measuring cloth and a hockey stick. Accused No.3 Parameswar Prasad and accused No.4 Behari Prasad then caught hold of both the arms

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of the  deceased Ram  Babu and  on being exhorted by accused No.3 Parameswar,  accused No.2  Udai  Prasad  fired  on  the deceased Lal  Babu with  a countrymade  pistol. The deceased accused Rameswar gave a plow on the head of the deceased Ram Babu with  the said  iron rod.  Ram Babu  and the  two other injured namely  Nandji Prasad (P.W.1) and P.W.2 Badri Prasad were taken  to the  hospital at  Arran. Ram  Babu,  however, succumbed to  the injuries  shortly after  the incident.  At about 14.05  hours i.e. within half an hour of the incident, the fardbayan  of Nandji  Prasad (P.W.1)  was  recorded  and within  a   few  minutes   formal  F.I.R.   was  drawn   up. Investigation of  the case  was immediately  taken up and at about 14.15  hours, inducts of the dead body of Ram Babu was made.  The   Investigating  Officer  visited  the  place  of occurrence and  blood stained earth was seized and a seizure list (Ext.6) was prepared. Both the injured P.W.1 Nandji and P.W.2 Badri  Prasad were  examined by  the doctor  at  Arran hospital at  about 14.10  hours. The  Investigating  Officer Astadue Hussain, however, did not appear in court to depose. His investigation  report was identified by F.W.E. the clerk of the public prosecutor and was marked as Ext.4.      The prosecution  case has  been sought  to be proved by examining several  eye witnesses.  P.W.1  Nandji  and  P.W.2 Badri  are  injured  eye  witnesses.  P.W.1  Nandji  is  the informant of  the said incident of murder and rioting. P.W.2 Badri Prasad  is the  father-in-law of  the deceased.  PW  3 Kumkum is  the daughter  of the  deceased. She  is a  school going girl  aged about  14 years. According to her evidence, she had  gone  to  the  place  of  incident  for  witnessing delivery of  possession of  the shop through Court. P.W.4 is Sajadher Prasad  who is  an uncle of the deceased. P.W.5 has not deposed  for the  prosecution but  he was  tendered  for cross examination.      The   learned    Additional   Sessions    Judge   after consideration of  the evidences  adduced in the case and the materials on  record inter alia came to the finding that the accused were  pent upon  not giving  possession of  the shoo room and  was also  pent upon  harassing the  decree  holder deceased and  being annoyed  with the  deceased  for  taking steps to  get delivery  of the  possession of  the said shop room  through  court,  the  accused  took  extreme  step  in eliminating the  decree  holder  by  killing  him  and  also assaulting the  uncle and  the father-in-law of the deceased who were  present at  the spot in order to help the deceased in taking  possession. The learned Additional Sessions Judge held that  all the  four accused along with deceased accused Rameswar had  formed an unlawful assembly for the purpose of killing Ram Babu and assaulting his helpers on April 5, 1980 at about  1.00 P.M.  on the  road in front of Lallanji kothi and in  furtherance of common object and common intention of the accused,  accused No.2  Udai Prasad  committed murder of Ram Babu  by country  made gun  and other two accused namely accused No.3  Parameswar and  accused No.4  Behari Prasad in furtherance of  the said  common object and common intention held both  the arms of deceased Ram Babu and Parameswar also exhorted Udai  to kill  Ram  Babu.  The  learned  Additional Sessions Judge  also held that deceased Rameswar and accused No.1 Sheoji  Prasad assaulted  P.W.1 and  P.W.2 and Rameswar also assaulted the deceased.      The learned  Additional Sessions Judge, therefore, held accused No.2  Udai  Prasad  guilty  for  the  offence  under Section 302  and 148 I.P.C. and also under Section 27 of the Arms Act  for possessing unauthorised arm and also found him guilty under Section 302 read with 149 and 302/34 I.P.C. The said accused  No.2 Udai Prasad was sentenced to imprisonment

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for life  for offence  under Section  302  but  no  separate sentence was  passed for  the  offence  under  Section  148. 302/149. 303/34  I.P.C. and  Section 27  of  the  Arms  Act. Accused No.3  Parameswar and accused No.4 Behari Prasad were sentenced to imprisonment for life for offence under Section 302/149. They  were also  found  guilty  for  offence  under Section 302/34,  302/109 but no separate sentence was passed for such  offence. Accused  No.1 Sheoji Prasad was sentenced to imprisonment  for life  for  the  offence  under  Section 302/149 I.P.C.  but no  separate sentence was passed for the offence under  Section 302/34 and 147 I.P.C. although he was found guilty for such offence.      Against the said conviction and sentence of the learned Additional Sessions  Judge. Udai  Prasad, Behari  Prasad and Parmeswar Prasad  preferred Criminal  Appeal No.390  of 1983 before  the   Patna  High  Court.  Sheoji  Prasad  preferred Criminal Appeal  No.382 of  1983 before the Patna High Court against his  conviction and  sentence. Both the appeals were heard analogously  by the  Division Bench  of the High Court and by  a common  judgment dated  March 31,  1987, the  High Court dismissed both the appeals by affirming the conviction and sentence  passed  by  the  learned  Additional  Sessions Judge.      Mr.Sushil Kumar,  the learned  Senior Counsel appearing for the  appellant Behari  Prasad in Criminal Appeal No.1 of 1989 has  submitted that  in this  case it  is  an  admitted position that the deceased and the alleged eye witnesses for prosecution belong  to one  camp. The close relations of the deceased namely  P.W.1, 2,  3 and  4 are  highly  interested witnesses and  they were  actuated by  a  strong  desire  to ensure that  deceased accused  Rameswar and  their two  sons namely Udai  Prasad (A/2)  and Behari Prasad (A/4) and their uncle Parameswar  Prasad (A/3) were roded in for the offence of murder  of Ram  Babu. Admittedly,  the incident had taken place in  broad day  light in  the market area of Arran town where number  of independent  persons were  present. But the prosecution chose to examine only the close relations of the deceased to  prove the  case and no independent and reliable witness has been examined.      Mr.Sushil Kumar  has submitted  that according  to  the prosecution case  the Naib Nazir had already been influenced by the accused and the judgment debtor Sheoji Prasad and the said Naib  Nazir on  the protest  by one Dariachnan claiming tenancy right  in the  disputed shop  room, did  not deliver possession  of  the  said  shoo  and  had  left  the  place. Therefore, there  was no  occasion to  indulge  in  criminal activities including commission of a grave offence of murder in the  broad cay  light in  a market  place of  a town. The prosecution story  on the  face of  it is highly improbable. Mr.Sushil Kumar  has submitted  that alleged  eye  witnesses have deposed that the tenant of the shop Sheoji Prasad (A/1) had only  a hockey  stick in his hand. The others were empty handed. The  deceased accused Rameswar had also no weapon in his hand  but he  picked up  a small iron rod (for measuring cloth) in  the shop  itself.  The  deceased  was  admittedly accompanied by his relations. If there was any common object or common  intention to  kill the  deceased Ram Babu, it was reasonably  expected   that  the  accused  would  have  come variously armed so that oesdite expected resistance from the deceased and  his relations  and companions, they could over power the  deceased and  his companions  with  the  help  of weapons to  be carried  by them.  The  very  fact  that  the accused were practically unarmed, amply indicates that there was no common object or common intention to commit murder of Ram Babu.  Admittedly, Sheoji  is a  tenant of  the shop  in

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question. Deceased Rameswar and his two sons Udai and Behari admittedly stayed  in the  upper floor of the same building. Parameswar was  a vary  close relation  of  the  said  three accused being  brother of  Rameswar and  uncle of  Udai  and Behari. Hence,  the presence of the said accused in the shop or hear  the shop,  even if  accepted, will  not  constitute formation of unlawful assembly. According to the prosecution case, after  the Naib  Nazir of the court had left the shop. Sheoji Prasad (A/1) exhorted to the other accused to assault the deceased. On such exhortation. Nandji Prasad (P.W.1) and Badri Prasad  (P.W.2) were  assaulted by Rameswar and Sheoji Prasad respectively  with iron rod (for measuring cloth) and hockey stick.  The prosecution  witnesses have  not  alleged that other  accused on  such exhortation  assaulted the said witnesses or  even Ram  Babu. The  only allegation  is  that Parameswar (A/3) and Badri (A/4) had caught both the arms of the deceased.  According to prosecution case, it was only at this stage  that Parameswar  exhorted Udai  to kill Ram Babu whereupon Udai  (A/2) whipped  out a  countrymade pistol and fired at  Ram Babu. Mr.Sushil Kumar has submitted that there is enough  doubt as  to which  weapon was  used by Udai. The weapon was  described both  as a  gun and  as a pistol. Such vague description  of the  weapon by  the eye  witnesses who claimed to have seen the occurrence from a close range, also suggests that  they had  not seen  any weapon in the hand of Udai and noticing that an injury by a fire arm was caused to the deceased,  a false allegation of using a pistol or a gun by Udai was made.      Mr.Sushil Kumar  has  submitted  that  the  prosecution story cannot  be accepted  because the  manner in  which the deceased was  injured by  a gunshot  is  highly  improbable. Mr.Sushil Kumar  has submitted  that  if  accused  No.3  and accused No.4  had held  both the  arms of  the deceased  and accused No.2  Udai had  shot the deceased from a close range by using  deletes, both  accused No.3 and accused No.4 would have sustained injuries at least by few deletes because such deletes would  have diverged  after coming out of the barrel of the  gun. But  no such  injury was  caused  to  the  said witnesses. Appreciating the improbability of the prosecution case, the  eye witness  tried to  embellish at  the time  of deposition. Although  it was  not stated  in  the  fardbayan constituting F.I.R.  that the  said two accused had released the hands  at the  time of  firing, such  case was  later on sought to  be introduced  in the  deposition. Such  material contradiction in  the case  made out  in deposition  and  as alleged  in   F.I.R.  coming   from  a  close  relation  and interested witness  should not  be accepted  particularly in the absence  of any  corporation from  reliable, independent and disinterested  witnesses. Mr.Sushil  Kumar has submitted that no  reliance should  be made  on the  deposition of the daughter of  the deceased  (Kumkum). She  was  admittedly  a school girl  and normally  she would have been in the school at the  time of  commission of  offence. But she has deposed that she  did not  go to school but came to the market place to witness the delivery of possession of the shop room. Such case is highly unusual and improbable and no credence should be given  to the  deposition of  such chance witness who was normally not expected to be present.      Mr.Sushil  Kumar   has  admitted   that  in  this  case Investigating Officer  has not been examined. But the entire case diary  was allowed to be exhibited. The prosecution and the Judge  have relied  on the  nothings in  the case  diary Although the  maker of  the case  diary did  not  prove  the correctness of  such nothings  and the  correctness  of  the recordings in  the  diary  had  not  been  tested  by  cross

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examining the  Investigating Officer.  Mr. Sushil  Kumar has submitted that  by looking  to the case diary and relying on the same in support of prosecution case serious prejudice to the accused has been caused and such action has occasioned a grave miscarriage of justice.      In this connection, Mr.Sushil Kumar has referred to the decision in  State of kerala Vs. Ammina (AIR 1988 Kerala 1 = 1988 Crl.L.J.  107). A  Division Bench  of the  kerala  High Court has held in the said decision that the diary mentioned in Section 172 (1) and statements recorded under Section 161 (3) of  the Code  of criminal  Procedure are  covered by the sweep of  inhibition contained  in Section  162 of the Code. The  prohibition   imposed  in   Section   162   cannot   be circumvented by  resort to  Section 172 (2) of the Code. The two are  different records, though the diary envisaged under Section 172  (1) and  statements recorded  under Section 161 (3) may  together be incorporated in the same file which the police call  for the  sake of  convenience case  diary file. That  apart,  Section  172  (2)  of  the  Code  embodies  an inhibition that  the diary  envisaged in that section is not to be used as evidence in the case. Mr.Sushil Kumar has also relied on  a decision  of the  Mysore High Court in Hirianna Shetty Vs.  The State of Mysore (1972 (1) Mysore Law Journal 50). It  has  been  held  in  the  said  decision  that  the examination of  the Investigating  Officer is  necessary  in order  to   bring  on   record  the  contradictions  in  the statements of witnesses and such a right is a valuable right of the accused. Non examination of the Investigating Officer is a  serious infirmity in so far as it deprives the accused of an  opportunity to  show that witnesses were not reliable by  proving   contradictions  in   the  earlier  statements. Mr.Sushil Kumar has submitted that the accused in this case, particularly  when   the  witnesses   were   only   partisan witnesses, have  suffered serious  prejudice on  account  of being deprived  of the  opportunity to  point  out  material contradictions in  the earlier  statements of  the witnesses for not examining the Investigating Officer.      Mr.Sushil Kumar  has submitted  that in  the  aforesaid facts, the  prosecution case  must be  held to have not been proved beyond reasonable doubt and all the accused should be acquitted. Mr.Sushil  Kumar has  also submitted  that in any event accused  No.4 Behari  Prasad deserves to be acquitted. Admittedly, he  was  staying  on  the  upper  floor  of  the building in  which the  said shoo  room appertained.  It  is quite probable  that out of curiosity he had come to see the action by  Naib Nazir  in execution  of a court case. He was admittedly empty handed. The only allegation against him was that he caught hold of one of the arms of the deceased. When suddenly Parameswar  exhorted to  Udai to kill the deceased. Udai whipped  out a  fire arm  and shot  at the deceased. It cannot be  reasonably held  that he had any common intention or common  object of  killing Ram  Babu. It  is not unlikely that although  he along  with others  might have intended to give some  thrashing to  the deceased,  the events  suddenly changed  on  the  exhortation  of  Parameswar  to  kill  the deceased. It  is also not unlikely that Behari was rot aware that Udai  had concealed  a fire  arm which  he had  used on sudden provocation by Parameswar. Hence, no conviction under Section 302/149 or 302/34 I.P.C. can be given to Behari even if the  prosecution case  that he  caught one of the arms of the deceased  is accepted  on its  face value. The appellant Behari, therefore,  should  be  acquitted  by  allowing  his appeal.      Mr.U.R.Lalit, learned  senior counsel appearing for the appellant Parameswar  in Criminal  Appeal No.437 of 1988 has

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also endorsed the arguments made by Mr.Sushil Kumar that the prosecution  case  was  not  believable  and  had  not  been established beyond  reasonable doubt.  He has  also endorsed the submission  that the  case diary not having been proved, such case diary could not be looked into and the accused had suffered   serious   prejudice   for   not   examining   the Investigating  Officer.  He  has  submitted  that  such  non examination of  the Investigating  Officer and consequential prejudice in  not getting  the  opportunity  to  effectively cross examine the eye witnesses by indicating contradictions in the  earlier statements  before the police, have vitiated the trial.      Mr. Lalit  has submitted  that Parmeswar  is  the  real brother of  Rameswar and  uncle  of  Udai  and  Behari.  His presence in  or hear  the residential  house of Rameswar was neither unusual  nor  per  se  illegal.  He  was  admittedly without any  arm. The  allegation against  him  is  that  he caught hold  of one of the arms of the deceased Ram Babu and exhorted Udai  to kill Ram Babu and Udai thereafter shot the deceased. Such  case  is  highly  improbable.  He  has  also submitted that  no man holding an arm of the victim will ask the assailant  to fire  bellet shots  on the  victim from  a close  range  because  in  that  event,  the  person  giving exhortation was  also likely  to be  injured.  Mr.Lalit  has submitted that  the prosecution  case was  wholly unreliable and the appellant should be acquitted.      Mr.Promod Swarup  learned  counsel  appearing  for  the appellant Sheoji  Prasad in  Criminal Appeal  No.195 of 1989 has also endorsed the submissions of Mr.Sushil Kumar and has submitted that  the  prosecution  had  not  only  failed  to establish the  prosecution case  beyond reasonable doubt but such case on the face of it was highly improbable. Mr.Swarup has submitted that Sheoji Prasad is not related to the other accused  or   the  deceased   and  their  relations.  He  is admittedly a  member of a different caste. Sheoji Prasad was tenant of  the shop  in respect of which decree for eviction was passed.  Sheoji Prasad had undertaken to vacate the shoo room before  this Court.  It is, therefore, unlikely that on his own  initiative  he  would  flout  the  undertaking  and forcibly resist  execution of  the decree.  Even  if  it  is assumed that he was keen in frustrating the execution of the decree, admittedly  such purpose  was secured  when the Naib Nazir without  executing the  decree left  the place.  After such event,  there was hardly any occasion for Sheoji Prasad to wreck  any vengeance  on the  decree holder  by  inciting other accused.  Presence of Sheoji Prasad in his own shop is wholly legal  and he  cannot be  held  to  be  a  member  of unlawful assembly.  The allegation  is that  after the  Naib Nazir and  court peons  and the lawyer had left the shop, he exhorted other  accused to  assault  the  deceased  and  his companions. It  is alleged  that Sheoji  had only  a  hockey stick with  which he  assaulted Badri  Prasad. There  is  no allegation against  him that  he assaulted  the deceased  or exhorted for  killing the  deceased. Mr.Swarup has submitted that even if the prosecution case is accepted. Sheoji Prasad is not  liable to  be punished  for offences  under  Section 302/34, 302/149  and Section 147 I.P.C. Hence, conviction of Sheoji Prasad  for the  aforesaid offences is wholly illegal and should be set aside.      The learned  counsel appearing for Udai Prasad (A/2) in Criminal Appeal  No.789 of 1989 has endorsed the submissions of the  learned counsel  appearing for  other appellants  by contending that  the prosecution case was improbable and the same had  not  been  established  beyond  reasonable  doubt. Hence, the  said accused  should also be acquitted by giving

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him benefit of doubt. As there was direct evidence about the commission of  murder by this appellant, the learned counsel has not  advanced any submission regarding absence of common object or common intention in murdering Ram Babu.      The learned  counsel for  the State  appearing  in  all these appeals  has, however, refuted the contentions made by the  learned   counsel  for  the  appellants.  It  has  been contended by  the learned  counsel for  the State  that  the prosecution case  has been  clearly established  by reliable evidences of  the eye  witnesses. Such  eye witnesses  being close relations  were expected to be present at the place of occurrence. Simply  because they are relations, it cannot be held that  they were  partisan  and  deposing  falsely.  The learned counsel  has submitted  that the said witnesses were also close relations of the accused excepting Sheoji Prasad. After a  long drawn battle upto the Apex Court, the deceased was going  to get  possession. The  daughter of the deceased aged 14  years became  curious to  notice execution  through court and  came with  elderly relations.  There  is  nothing unusual in her presence at the time of occurrence. P.W.1 and 3 were  injured witnesses.  Shortly after the incident, they were examined by doctors. F.I.R. was also lodged immediately after the  incident and  the accused  were named.  Hence, no interference is called for in these appeals.      After considering  the facts  and circumstances  of the case and  the judgments  of the  learned Additional Sessions Judge and of the High Court and the evidences adduced in the case through which we have been taken by the learned counsel for the  parties and considering the submissions made by the learned counsel  for the  parties, it appears to us that the prosecution case  has been  proved by  the eye  witnesses in this case.  Over the  shoo room,  a long  drawn  battle  was fought by  the deceased  upto this  court.  Ultimately,  the delivery of  possession of  the shop through court was fixed on the  date of  incident. It  was, therefore, quite natural that the  said eye  witnesses being  close relations  of the deceased were  present at  the place  and at the time of the incident. In  our view, the learned counsel for the State is also justified that in the facts of the case the presence of the daughter  of the accused aged 14 years in the company of elderly relations was also not unusual. The accused Nos.2 to 4 and  deceased  accused  Rameswar  though  related  to  the deceased had  been harbouring ill feeling and grudge against the deceased.  As a  matter of  fact, suit  for eviction was also  filed  by  the  deceased  against  Rameswar.  It  was, therefore, quite likely that they took side of Sheoji Prasad in frustrating  the execution of the eviction decree against Sheoji Prasad.  Although, the  accused managed  for the time being to  frustrate execution  of decree  through  court  by influencing Naib  Nazir to  accept the  case of  independent tenancy in  favour of a third party on the face value of the statement of such tenant without ascertaining relevant facts and thereby  sending him  back without executing the decree, the accused  were fully  aware that  the decree for eviction affirmed upto  this court  was staring  on their  face. They were, therefore,  quite  agitated  and  it  is  not  at  all unlikely that  they became  revengeful  against  the  decree holder deceased Ram Babu.      Immediately after  the Naib  Nazir, Court peons and the lawyer had  left the  place of  occurrence, at the behest of accused No.1  Sheoji Prasad  the accused  No.1 and  deceased accused Rameswar assaulted P.W.1 and P.W.2. The accused No.3 and 4  with an  intention to  immobilize the deceased caught both of his arms. It is the positive case of the prosecution that accused  No.3 Parameswar  exhorted accused No.2 Udai to

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kill the  deceased and  accused No.2 then whipped out a fire arm and shot at the deceased from a close range which caused his death.  From the  evidences of  the eye  witnesses it is quite evident  that the  accused were aware that one of them namely Udai (A/2) was carrying a fire arm for assaulting the deceased.  In  order  to  facilitate  such  assault  on  the deceased both accused No.3 and 4 took active part by holding both the  arms of the deceased to make him immobile. Accused No.2 Udai  then fired  at the  deceased. The  fire  arm  was described both as pistol and gun. But the nature of the fire arm has  been explained  by the  eye witnesses. The fire arm was a countrymade weapon. It was not unlikely that barrel of the fire  arm not  being of  any standard  size,  there  was confusion in describing the fire arm very accurately. But in view of  clear evidence  that the  deceased was shot at by a countrymade fire  arm by  Udai Prasad  (A/2), we do not find any reason to entertain any doubt that the eye witnesses had not seen  Udai firing  from a  country made  fire  arm.  The medical evidence has also corroborated the case of suffering pellet injuries  by the  deceased. In  this case.  P.W.1 and P.W.2 are  injured eye witnesses. Their presence at the time of incident is, therefore, not to be doubted. They were also examined almost within an hour by this doctor. The Pardbayan forming F.I.R.  was lodged within about half an hour and the names of  the accused  and their  specified roles  were also indicated in  F.I.R. It  has been  contended by  the learned counsel that  if the  deceased had been shot at from a close range when  the two accused had been holding the arms of the deceased, they  also would have suffered pellet injuries and the fact  that  they  had  not  suffered  such  injury  only indicates that  the deposition  of  the  eye  witnesses  are false. Such  submissions, however,  should not  be accepted. There is clear evidence that just before the firing the said accused left  the deceased.  In the  facts of  the case,  no adverse inference against the prosecution case need be drawn for not  giving  the  detailed  account  of  the  firing  by indicating that  the two  accused holding  arms had left the deceased just  at the  time of  firing. It may be noted that F.I.R. was lodged almost within half an hour of the incident by the  injured witness who apart from discomfort on account of injury  sustained by  him, was  likely to  be  completely upset at  the unfortunate  incident of  killing of his close relation before his eyes. In such circumstances, omission to mention of  the fact  of leaving the arms of the deceased by the accused Parameswar and Behari just at the time of firing is understandable.      It, however,  appears to  us that the entire case diary should not  have been allowed to be exhibited by the learned Additional Sessions  Judge. In  the facts  of the  case,  it appears to  us  that  the  involvement  of  the  accused  in committing the  murder has  been clearly  established by the evidences of  the  eye  witnesses.  Such  evidences  are  in conformity with  the case  made out  in F.I.R. and also with the  medical   evidence.  Hence,   for  non  examination  of Investigating Officer, the prosecution case should not fail. We may  also indicate  here that  it will  not be correct to contend that  if an Investigating Officer is not examined in a case, such case should fail on the ground that the accused were  deprived  of  the  opportunity  to  effectively  cross examine the  witnesses for  the prosecution and to bring out contradictions in their statements before the police. A case of prejudice likely to be suffered by an accused must depend on the  facts of  the case  and no universal straight jacket formula  should   be  laid  down  that  non  examination  of Investigating Officer  per se  vitiates  a  criminal  trial.

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These  appeals,  therefore,  fail  and  are  dismissed.  The appellants who  have been  released on  bail should be taken into custody to serve out the sentence.