State Of Bihar v. Mohan Miskar — 1999 DIGILAW 122 (PAT)

Judgment 1. The Death Reference along with two Cr. Appeals preferred by the appellants arise out of the judgment and order of the 2nd Addl. District and Sessions Judge, Chapra in S.T.No. 312 of 1996/10 of 1997, dated 27th February, 1998. In Criminal Appeal 131/98, the appellants are Mohan Miskar and Raju Miskar, who have been sentenced to death under Sec. 302, read with Sec. 148, IPC. They have also been directed to pay a fine of Rs. 1000.00 and in default, to undergo six months rigorous imprisonment. They have further been found guilty and sentenced to four years rigorous imprisonment under Sec. 27 of the Arms Act. Though they have also been found guilty under Sec. 148, IPC, but no separate sentence has been passed on this count.In Criminal Appeal 155/98, there are three appellants, namely, Munna Miskar, Baldeo Miskar and Babulal Miskar. They have been found guilty under Sec. 302/149, IPC and sentenced to undergo rigorous imprisonment for life and have also been directed to pay a fine of Rs. 1000.00 each and in default, to undergo six months rigorous imprisonment. There is no finding recorded by the trial Court against them under Sec. 148, IPC, but the judgment mentions that no separate sentence was passed under Sec. 148, IPC.Appellant Baldeo Miskar is the father of the remaining four appellants.Apart from the two appeals before us there is also a Death Reference which has been made by the 2nd Addl. District and Sessions Judge, Chapra for confirmation of the sentence of death passed against Appellants Mohan Miskar and Raju Miskar. 2. The occurrence giving rise to these appeals and the death reference is said to have taken place at about 7 a.m. on 17th February, 1996. The place of occurrence is Masumganj Korar situated at a distance of about 21/2 kms. from the Police Station Bhagwan Bazar. The Ferdbeyan was lodged at about 8.30 a.m. on the same day by Lal Bahadur Rai, brother of the deceased Ram Rai, in which it was alleged that appellants Mohan Miskar and Raju Miskar armed with pistols, appellant Munna Miskar and Babulal Miskar armed with Chhura and Gupti respectively committed the murder of Ramu Rai, the deceased on the orders of Baldeo Miskar. Seven witnesses have been examined in this case, out of whom four have been examined as eye-witnesses.P.W. 1 Rajdeo Rai, P.W. 2, Dhurandhar Rai, P.W. 3 Bheem Rai and P.W. 4 Lal Bahadur Rai (informant) have been examined as the eye-witnesses. P.W. 5, Dr. Deepak Kumar is the Civil Assistant Surgeon, who performed autopsy on the dead body of the deceased Ramu Rai. P.W.6 Khalik Ahmad and P.W. 7 Deepak Kumar are the formal witnesses, who have proved the case diary and the Ferdbeyan recorded in the pen of the Investigating Officer, namely, Awadesh Prasad Singh, Sub-Inspector of Police.Unfortunately the Investigating Officer was not examined as a witness in this case. It appears from the order sheet of the trial court that efforts were made to secure the presence of the Investigating Officer for giving evidence, and at one stage Dasti summons were issued and handed over to the Public Prosecutor for service upon the Investigating Officer. It appears that despite efforts made by the trial Court, the Investigating Officer was not available for his deposition in this case. In view of the direction of this Court that the trial be concluded expeditiously, the trial Court proceeded with the trial even in absence of the Investigating Officer. 3. The Ferdbeyan of Lal Bahadur Rai. P.W. 4 was recorded at the place of occurrence itself by the Sub-Inspector, Awadesh Prasad Singh of Bhawgan Bazar, Police Station, on the date of occurrence, about 11/2 hours later, at 8.30 a.m. In his statement to the police, the informant, in presence of Bheem Rai, P.W. 3, Rajdeo Rai, P.W. 1 and others stated that about 7O clock in the morning, the informant and his brother Ramu Rai were plucking Brinjals from the Brinjal field situated in Masumganj Korar. In the meantime, Mohan Miskar and Raju Miskar armed with pistols, Munna Miskar armed with knife and Baldeo Miskar armed with Lathi and Babulal Miskar armed with gupti came there raising a cry to kill. Seeing them, the informant and his brother attempted to flee but in that process Mohan Miskar and Raju Miskar fired from their pistols causing injuries to Ramu Rai, who fell down in the field of Jawahar Koiri in which wheat crop was standing. Seeing them, the informant and his brother attempted to flee but in that process Mohan Miskar and Raju Miskar fired from their pistols causing injuries to Ramu Rai, who fell down in the field of Jawahar Koiri in which wheat crop was standing. After he fell down, Munna Miskar and Babulal Miskar inflicted injuries on his person with knife and Gupti respectively, while their father, appellant Baldeo Miskar ordered them not to leave Ramu Rai alive. His brother died immediately thereafter since he had received severe injuries on his head, neck, chest, ribs, left side of the back, right arm and above navel causing the intestines to come out. Several persons witnessed the occurrence including Rajdeo Rai, P.W. 1, who had gone to attend the call of nature and Bheem Rai, P.W. 3, who was returning after selling milk. In the Ferdbeyan, it is stated that the cause of the murder was that on the earlier night i.e. on 16-2-96, a Barat party had come to the house of Ram Parwesh Choudhary at Masumganj and in that party, the deceased Ramu Rai was dancing. The appellants had abused Ramu Rai and forbade him to dance and also slapped him. This was the reason why they attacked Ramu Rai and killed him. 4. P.W.5, Dr. Deepak Kumar who was posted as Civil Assistant Surgeon in the Sadar Hospital, Chapra on 17-2-96, held postmortem examination on the dead body of Ramu Rai at 1.35 p.m. He assessed the age of Ramu Rai (deceased) to be about 20 years. He found the following ante-mortem injuries on his person :"Injury No. 1. One incised wound of size 11/2" x 1/2" skull bone deep over left temporal region of scalp.2. One lacerated wound with charred margin of skin 1/4" x 1/4" x skin deep over left side of neck on front and mid (torn)3. One lacerated wound with inverted and charred margin (root of entry) of size 1" diameter oval shaped over front of chest of left side in between left nipple to medial aspect.4. One lacerated wound with everted margin (root of exit) of size 1/2" diameter oval shaped over left infra scapular region. Both the injury No. (3) and (4) were communicating through and through 5. One incised wound of size 1/2" x 1/4" x muscle deep over left arm on lateral aspect of mid portion. 6. One lacerated wound with everted margin (root of exit) of size 1/2" diameter oval shaped over left infra scapular region. Both the injury No. (3) and (4) were communicating through and through 5. One incised wound of size 1/2" x 1/4" x muscle deep over left arm on lateral aspect of mid portion. 6. One incised wound of size 1/4" x 1/8" x muscle deep over left arm on medial aspect of lower portion. 7. One lacerated wound of size 3" x 2" x abdominal cavity deep over supra public region below unbilicus through which gut was protruding out."On dissection of the skull, the doctor found the temporal bone on the left side fractured. The brain beneath was cut and filled with dark clotted blood. On examination of the chest he found that there was one hole in the right atrium. The left lung was punctured. Injury No. 3 was communicating through heart and lung inside with injury No. 4. The gut was protruding through wound and mentioned as injury No. 7 and was cut at multiple places. In the opinion of the doctor, the death was caused due to shock and haemorrhage, as a result of the above injuries. In his opinion, injuries 2, 3 and 4 were caused by fire arm while injuries 1, 5 and 6 were caused by sharp cutting weapon. Injury No. 7, in his opinion has been caused by a hard and blunt substance. The time that elapsed since the death was assessed as 12 hours.5. It would thus appear from the evidence of the medical expert that the death of Ramu Rai was homicidal and was caused on account of injuries sustained by him by use of fire arm and also sharp cutting weapon and lathi.At this stage, we may only observe that though in the opinion of the doctor, injury No. 7 was caused by Lathi, having regard to the nature of the injury as described by him, we have serious doubt about the correctness of the opinion of the doctor in this regard. Having regard to the description of the injury, we are of the view that this injury must have been caused by a weapon which pierced into the abdomen resulting in the intestine protruding out of abdomen.6. We shall now notice the evidence of the alleged eye witnesses. Having regard to the description of the injury, we are of the view that this injury must have been caused by a weapon which pierced into the abdomen resulting in the intestine protruding out of abdomen.6. We shall now notice the evidence of the alleged eye witnesses. P.W. 1, is Rajdeo Rai, whose name finds mention in the FIR. He has deposed that on the date of occurrence at about 7O clock in the morning, he had gone to Korar (vegetable field of Masumganj) to attend the call of nature. He then says that the informant Lal Bahadur Rai and Ramu Rai were plucking brinjals in their brinjal field. The appellants came there raising Hulla and shouting that Lal Bahadur and Ramu Rai should be killed. Lal Bahadur Rai and Ramu Rai, the deceased, fled but appellants Mohan Miskar and Raju Miskar fired from their pistols and the shots fired by them hit Ramu Rai, who fell down. Baldeo Miskar ordered his sons to kill him, after he had fallen and thereafter appellants Munna Miskar and Babulal Miskar assaulted Ramu Rai with Chhura and Gupti respectively. Ramu Rai remained alive only for a while and thereafter died. According to this witness, the occurrence was also witnessed by Bheem Rai, P.W. 3 and Lal Bahadur Rai, P.W. 4.This witness further deposed that while he was present at the place of occurrence, sub-inspector of police had come and prepared inquest report in his presence and he had signed the inquest report as a witness. The police officer also recorded his statement. He claimed to know all the appellants and identified them in the dock. In his cross-examination, this witness admitted that the informant was his cousin, but he did not have any relationship with Bheem Rai, P.W. 3. At the time of occurrence, he was attending the call of nature at a distance of 100 steps to the south of his house and the informant and the deceased were plucking brinjals at a distance of 10 steps west of that place. He did not know as to who was the owner of the field, but he stated that Lal Bahadur Rai, the informant, had been cultivating the field. After receiving gun shot injury Ramu Rai, the deceased, fell 10 steps east of that field. He fell in the field belonging to Jawahar Koiri where wheat crop was standing. He did not know as to who was the owner of the field, but he stated that Lal Bahadur Rai, the informant, had been cultivating the field. After receiving gun shot injury Ramu Rai, the deceased, fell 10 steps east of that field. He fell in the field belonging to Jawahar Koiri where wheat crop was standing. The informant and his brother started running away when the appellants were at a distance of about 10 steps from them. The appellants were towards the north, while the informant and his brother fled towards the east from the place where they were plucking brinjals. They were chased by theappellants Mohan Miskar and Raju Miskar who fired at Ramu Rai from a distance of about 2-3 steps. This witness deposed that they fired from their pistols at Lal Bahadur Rai but Ramu Rai received the shot, and Lal Bahadur Rai the informant fled away in order to save himself. After Ramu had fallen on the ground he received one Chhura injury and one Gupti injury. Ramu Rai was wearing trousers and Ganji. The Ganji was black-white shaded. About 300-400 people from Masum Ganj had gathered soon after the occurrence, after the accused persons fled away, and the Sub-Inspector of police came to the place of occurrence after an hour. The witness stated that the Sub-inspector came with Lal Bahadur Rai, the informant. He stated that apart from him, Bheem Rai had also put his signature on the inquest report. He denied the suggestion that no such occurrence took place and that he had given false evidence.7. P.W. 2 is Dhurandhar Rai, This witness stated that on the date and time of occurrence, he had heard Hulla coming from the field at village Nabi Ganj. He saw that some people assaulted Raju after chasing him. The Sub-Inspector had seized the blood stained soil in his presence and prepared the seizure list which he had signed along with another witness, Gauri Shankar. This witness stated that he did not see anything more. It appears from his testimony that this witness had not seen the deceased being assaulted with any weapon as the deceased had died even before he reached the place of occurrence. This witness stated that he did not see anything more. It appears from his testimony that this witness had not seen the deceased being assaulted with any weapon as the deceased had died even before he reached the place of occurrence. We have carefully read the evidence of this witness and we are inclined to agree with the view of the trial Court that this witness cannot be said to be an eye witness, though he may have come to the place of occurrence soon after the occurrence. 8. P.W. 3, Bheem Rai is also named in the ferdbeyan of the informant as an eye-witness. He claimed that at about 7O clock on the date of occurrence he was returning after supplying milk and when he reached Korar at Nabiganj, he saw the appellants shouting that Ramu and Lal Bahadur be killed. Appellants Mohan Miskar and Raju Miskar fired from their pistols at Ramu, and Munna Miskar assaulted Ramu with Chhura, while appellant Babulal Miskar assaulted him with Gupti. This witness added that appellant Baldeo Miskar assaulted the deceased with Lathi. Ramu died on account of the assault. The Sub-inspector of police came to the place of occurrence and prepared the inquest report in his presence on which he had put his signature. This witness identified all the accused persons in the dock.In his cross-examination, this witness admitted that his village is Chhota Brahmpur and is situated at a distance of 500 yards south of Masum Ganj. He had left his house for selling milk at 6O clock in the morning and was returning by 7O clock after supplying milk to two of his customers. This witness admitted that by the time he came near Ramu, he was already dead and the accused persons were not present. He stayed there for about an hour. He had left the place of occurrence while the Sub-inspector of police was still present there. His statement was recorded by the Sub-inspector of police. In his cross-examination, it has been taken from him that he had not stated before the Sub-inspector that Raju and Mohan killed Ramu by firing pistol, and that he had not stated before the Sub-inspector that Munna assaulted with Chhura and Babulal with Gupti and Baldeo with Lathi. His statement was recorded by the Sub-inspector of police. In his cross-examination, it has been taken from him that he had not stated before the Sub-inspector that Raju and Mohan killed Ramu by firing pistol, and that he had not stated before the Sub-inspector that Munna assaulted with Chhura and Babulal with Gupti and Baldeo with Lathi. While the statement has been taken from this witness, but it does not appear that he was confronted with any part of his statement made before the police. We shall consider this aspect of the matter while considering the submissions advanced on behalf of the counsel for the appellants. This witness also stated that the deceased had fallen in the Korar of Nabiganj and blood had fallen there within an area of 3-4 cubics. Wheat crop was standing at the place where the blood had fallen. The intestines of the deceased had bulged out. The field where Ramu had fallen belonged to Jawahar Koiri. The distance between Nabiganj and Masumganj is only 200 yards. Masumganj lay to the north of Nabiganj. This witness denied the suggestion that Raghunandan Rai was his grandfather. He stated that he did not know Sri Rai of Masumganj, but he knew Sri Rai, father of the witness Rajdeo. He denied the suggestion that mother of Sri Rai and his grandmother were sisters by relation. He stated that Rajdeo was his brother only by village relationship and that he was not related to Lal Bahadur Rai, the informant. He denied the suggestion that he had not seen the occurrence and that as a relation of the informant he had given false evidence. 4 9. The informant, Lal Bahadur Rai was examined as P.W. 4. He stated that on the date of occurrence at 7O clock he and his brother Ramu Rai, the deceased were plucking brinjals from the brinjal field, which lay in Nabiganj Korar. At that time, the appellants came running from north shouting to kill and to catch hold of them. When they were at a distance of 7-8 steps, he and his brother ran away towards east chased by the appellants. He was ahead of Ramu Rai, the deceased. Mohan Miskar and Raju Miskar fired from their pistols hitting his brother Ramu Rai, who fell down. When they were at a distance of 7-8 steps, he and his brother ran away towards east chased by the appellants. He was ahead of Ramu Rai, the deceased. Mohan Miskar and Raju Miskar fired from their pistols hitting his brother Ramu Rai, who fell down. The witness ran away on account of fear, but he had noticed that appellant Munna was armed with Chhura, Babulal with Gupti and Baldeo with Lathi. They stated assaulting Ramu Rai with those weapons. Soon after the assault, the deceased, Ramu Rai died on the spot. He also stated that one day before the occurrence, a Barat had come to the house of Ram Parwesh Choudhary and while Baratis were dancing, his brother Ramu also started dancing. The appellants stopped Ramu Rai from dancing, but he did not stop and thereafter he was abused and slapped by the appellants. They warned him to wait, threatening that they would teach him a lesson tomorrow. This witness categorically stated that Rajdeo Rai, P.W. 1, Dhurandhar Rai, P.W. 2, Bheem Rai, P.W. 3 had seen the occurrence. He had given statement before the Sub-inspector of police as soon as he came, and after his statement was read over and explained to him, finding it to be correct, he put his signature on the statement. He also stated that Gauri Shanker Sah, Shanker Sah, Ganga Vishun Sah, Ram Parwesh Choudhary and Suraj Rai will not depose in this case as they were in collusion with the appellants.In his cross-examination this witness admitted that Rajdeo Rai, P.W. 1 is his cousin. So far as, Bheem Rai, P.W. 3 is concerned, this witness did not know whether the name of the grand father of Bheem Rai was Raghunandan Rai. According to this witness, father of Bheem Rai was Sadhu Rai. He denied the suggestion that the mother of Sadhu Rai and his grandmother were full sisters. This witness explained that Nabiganj and Masumganj are two mohallas and the distance between these two mohallas is 4-5 laggis and in between the two Mohallas is Korar, which is cultivated. The field in which he was plucking brinjals belonged to Jiwan Pandey, but he had taken the same on Thika and had been cultivating that field for 3-4 years before the occurrence. The field in which he was plucking brinjals belonged to Jiwan Pandey, but he had taken the same on Thika and had been cultivating that field for 3-4 years before the occurrence. This witness admitted that 2-3 days ago he had asked Ganga Vishun, Ram Parwesh Choudhary, Gauri Shankar and Suraj Rai to depose in this case, but they did not want to give evidence. After the occurrence this witness had not gone to home and remained standing there. He did not go to Inspector and report the matter as he started crying there. He came back after 15-20 minutes to the place where Ramu had fallen down, and by that time the whole village had gathered there including Rajdeo P.W. 1, Bheem Rai P.W. 3 and Dhurandhar Rai P.W. 2. He could not say as to how many injuries were caused by pistol shots on the person of Ramu Rai and which injury was caused by whom and by what weapon. Blood had fallen on the wheat crop at the place where Ramu had fallen. He had shown the blood which had fallen on the wheat crop to the Sub-Inspector. The Sub-Inspector also found trampled field. He stayed there for 2-3 hours and also recorded the statement of the informant and Bheem Rai, P.W. 3 and Rajjeo Rai, P.W. 1. He did not pay any attention as to how many other persons gave their statement to the police on that date. According to this witness, Ramu was wearing White full pant and full sleeve Ganji of light blue colour. He denied the suggestion that he cultivated the field in question on behalf of Jawahar Mahto, and there was dispute between Jawahar Mahto and Baldeo Mahto relating to the land and that Baldeo Mahto did not deliver possession of the field to them. Since Baldeo Mahto was not willing to withdraw the case, hence in collusion with Jawahar his family members had been falsely implicated. He also denied the suggestion that Ramu was in the company of criminals with whom he had developed enmity and that he was actually killed by the criminals and that the occurrence as stated by the witnesses never took place. 10. In the FIR the informant P.W. 4 had not alleged that Baldeo Miskar had assaulted the deceased with lathi. He also denied the suggestion that Ramu was in the company of criminals with whom he had developed enmity and that he was actually killed by the criminals and that the occurrence as stated by the witnesses never took place. 10. In the FIR the informant P.W. 4 had not alleged that Baldeo Miskar had assaulted the deceased with lathi. In his deposition, however, he made a general statement that the three accused armed with Chhura, Gupti and Lathi assaulted the deceased with their weapons. We have already noticed that injury No. 7 which is said to be lathi injury does not appear to be an injury caused by hard and blunt substance. P.W. 1 has stated that Baldeo had only orderedhis sons not to spare the life of Ramu Rai. P.W. 3 had further stated that appellant Baldeo Miskar had assaulted the deceased with Lathi. As we have noticed earlier Baldeo Miskar happens to be the father of the remaining appellants and is an old person as in the judgment of the trial court his age has been shown as 85 years. Since appellant Baldeo Miskar has been described in the FIR to be the proverbial order giver, and though at the trial some of the witnesses deposed that he had actually assaulted the deceased with lathi, we are inclined to give to Baldeo Miskar benefit of doubt without casting any reflection on the evidence of the witnesses and as a matter of abundant caution. We are not in agreement with the opinion of the doctor that injury No. 7 was caused by lathi. We are, therefore, clearly of the opinion that appellant Baldeo Miskar should be given benefit of doubt. 11. Appellants were charged for the offence under Ss. 302/34, IPC and even if we doubt the participation of Baldeo Miskar, the remaining appellants can still be found guilty for the offence under Ss. 302/34, IPC, since all of them had actually participated in the commission of the crime. 12. Learned counsel for the appellants submitted that there are serious discrepancies and contradictions in the evidence of the eye-witnesses. He submitted that while the informant has stated that he never went to call the police and he returned to the place of occurrence within 15-20 minutes of the occurrence, P.W. 1, Rajdeo Rai stated that the informant came with the Sub-Inspector of police after about an hour. He submitted that while the informant has stated that he never went to call the police and he returned to the place of occurrence within 15-20 minutes of the occurrence, P.W. 1, Rajdeo Rai stated that the informant came with the Sub-Inspector of police after about an hour. In our view this is not a serious discrepancy. It is evident from the record that a large number of persons had assembled there and it may be that when the Sub-Inspector of police came to the place of occurrence, the informant may have gone ahead and brought him to the place of occurrence giving an impression that he had come with the police officer from the police station. 13. It was then submitted that a large number of independent witnesses were available to the prosecution, but none of them have been examined in this case. P.W. 1, Rajdeo Rai happens to be the cousin of the informant, while P.W. 3, Bheem Rai also happens to be a distant relation. It was, therefore, submitted that failure to examine those independent witnesses must prove fatal to the prosecution. He submitted that it was not enough for the informant to say that independent witnesses were not willing to depose in this case. Reliance has been placed on the judgment of a Division Bench of the Allahabad High Court in the case of Sahabjan V/s. The State of U.P. reported in 1990 Cri LJ 980. In that case, the Court noticed the discrepancies in the testimony of the witnesses examined in the trial and came to the conclusion that the prosecution had not proved its case beyond all reasonable doubts. It was in that context that it was observed that there was no reason for the prosecution not to examine the witnesses named in the FIR, on the mere pretext that they were not prepared to support the prosecution case and had been won over. In this case the situation is quite different. If the witnesses examined by the prosecution were not found reliable or trustworthy by the trial Court, non-examination of other independent witnesses would have become significant. We find that the persons named in the FIR have been examined. In this case the situation is quite different. If the witnesses examined by the prosecution were not found reliable or trustworthy by the trial Court, non-examination of other independent witnesses would have become significant. We find that the persons named in the FIR have been examined. Moreover when one refers to partisan or inimical witnesses one visualises a case where there are two rival groups bearing animus against each other and the witnesses are shown to be favourably inclined towards one of them. The mere fact that a person is a relation does not make him a partisan witness, unless it is shown that he has also reason to bear animus against the accused. In this case the facts are entirely different. The informant had no enmity with the appellants, nor is there anything to show that the witnesses bore animus against the appellants. The real dispute was only between the deceased on the one hand and the appellants on the other, and that too on a trifling issue, since the deceased had displeased the appellants by dancing in the Barat party on the earlier evening for which they slapped and also abused him and threatened him to teach a lesson. It is not known as to why actually the appellants took it into their head to commit the murder of Ramu Rai. It is very difficult for any one to explain as to how the mind works, and it is not very unusual to find that some people over-react in a given situation. All that appears to us from the record is that the appellants had quarrelled with the deceased on the earlier night and threatened him with dire consequences. Perhaps they felt insulted by the behaviour of the deceased and, therefore, resolved to kill him. Insuch a case it cannot be said that the informant, who happens to be the brother of the deceased, and an eye-witness, had pre-existing enmity with the appellants or bore animus against them. In any event, Courts have taken notice of the tendency of independent witnesses not to depose in a criminal trial for fear of the wrath of the accused persons. It has been held that even if independent witnesses available are not examined by the prosecution, that by itself would not detract the veracity of the eye-witness account. In any event, Courts have taken notice of the tendency of independent witnesses not to depose in a criminal trial for fear of the wrath of the accused persons. It has been held that even if independent witnesses available are not examined by the prosecution, that by itself would not detract the veracity of the eye-witness account. Evidence of such witnesses examined by the prosecution has to be carefully scrutinised with caution and mere non-examination of the so-called independent witness, would not by itself, result in total rejection of the prosecution case. Counsel for the State has rightly placed reliance on the observation of the Supreme Court in paragraph 11 of the judgment in the case of Ram Sanjiwan Singh V/s. The State of Bihar, reported in AIR 1996 SC 3265 : (1996 Cri LJ 2528). Having regard to the facts and circumstances of this case, we are not prepared to hold that the failure of the prosecution to examine other witnesses, the so-called independent witnesses, warrants total rejection of the prosecution case. The presence of the witnesses examined by the prosecution appears to be natural, since one of them was the brother of the deceased who was plucking brinjals with him, while the other two eye-witnesses belonged to the neighbouring area and have satisfactorily explained their presence near the place of occurrence when the occurrence took place. 14. It was also submitted before us that though the Investigating Officer had seized the blood stained earth etc. from the place of occurrence, and though the seizure list was prepared, that was neither proved nor was the blood stained earth sent for chemical examination. It is true that in such cases where blood stained earth is seized, it must be sent for chemical examination and the report of the serologist must be obtained because that may provide strong corroborative evidence supporting the prosecution case. We have noticed with some amount of distress, tendency on the part of the Investigating Officers in this State, not to produce material exhibits before the Court and also not to send the blood stained earth, the blood stained weapon of offence and other material exhibits seized in course of investigation, for chemical examination to the Forensic Science Laboratory. The Investigation of cases involving serious offences are at times most perfunctory which reflects on the efficiency, and even integrity, of the Investigating Officer. The Investigation of cases involving serious offences are at times most perfunctory which reflects on the efficiency, and even integrity, of the Investigating Officer. However, having regard to the facts of this case, when direct evidence available on the record is found to be acceptable, even failure of the Investigating Officer to get the bloodstained earth chemically examined would also not adversely affect the fate of the prosecution, though the prosecution may be deprived of the valuable corroborative evidence which it could rely upon in support of its case. Counsel for the State has drawn our attention to the observation of the Supreme Court in the case of Baleshwar Mandal V/s. The State of Bihar, reported in AIR 1997 SC 3471 : (1997 Cri LJ 4084). It was observed that once all the eye-witnesses are believed and the Court comes to the conclusion that the testimony of the eye-witnesses is trustworthy, the lapse on the part of the Investigating Officer in not observing the provisions of S. 172, Cr. P.C., unless some prejudice is shown to have been caused to the accused will not affect the finding of guilt recorded by the Court. That was also a case in which due to the lapse on the part of the Investigating Officer, blood stained clothes and earth seized from the place of occurrence had not been sent for chemical examination. In this case, we do not find, neither was it urged, that any prejudice has been caused to the accused because of such lapse on the part of the Investigating Officer. 15. An argument was advanced before us that the genesis of the occurrence has not been established. It was submitted that though it was the case of the prosecution that an incident had taken place on the earlier night in which the appellants had assaulted the deceased with fists and slaps and had also abused him for his taking part in the dance along with the Baratis, no one has been examined to prove that fact. He also submitted that in absence of any evidence to prove that such an occurrence had taken place on the earlier evening, it must be held that the prosecution had failed to prove the motive for the crime. He also submitted that in absence of any evidence to prove that such an occurrence had taken place on the earlier evening, it must be held that the prosecution had failed to prove the motive for the crime. It was indeed submitted that for the failure of the prosecution to prove the motive for the commission of the offence, the prosecution case must be rejected outright, because it is the duty of the prosecution in every case to prove the motive for the commission of the offence. We are not preparedto accept the broad proposition of law as enunciated by the counsel for the appellants. It is settled law that even if the prosecution fails to prove the motive, that by itself will not lead to rejection of the prosecution case. The motive may become very relevant in a case based on circumstantial evidence, but where the direct evidence of eye-witnesses is available, failure to prove the motive would not necessarily result in rejection of the prosecution case. Reliance placed by the counsel for the appellants in the case of State of U.P. V/s. Hari Prasad, reported in 1974 (2) B.B.C.J. 163, is also misplaced. That case had its own special features. That was a case where no motive was assigned as to why the assailants assaulted the deceased who was on friendly terms and with whom there was no enmity, and the prosecution case rested on the basis of the allegation that it was a case of mistaken identification. The Court observed in these circumstances that the very foundation of the prosecution case was that the accused had a motive to commit the murder of the complainant, that they mistook Vishwanath for the complainant and that Vishwanath was murdered as a result of this unfortunate mistake. In these circumstances, it was not open for the prosecution to ask the Court to discard the very substratum of their case and to construct a new theory founded on a hypothesis presented for the first time before the Supreme Court. It will appear that their lordships reiterating the settled law observed that it is never incumbent on the prosecution to prove the motive for the crime, and often times, a motive is indicated to heighten the probabilities that the offence was committed by the person who was impelled by the motive. It will appear that their lordships reiterating the settled law observed that it is never incumbent on the prosecution to prove the motive for the crime, and often times, a motive is indicated to heighten the probabilities that the offence was committed by the person who was impelled by the motive. But, if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in with the alleged motive. Where the very foundation of the prosecution case is that the accused had a motive to commit the murder of the complainant, that they mistook X for the complainant and that X was murdered as a result of this unfortunate mistake, it is not open to the prosecution to ask the Court to discard the very substratum of their case and to construct a new theory. In this case, the facts are quite different and the peculiar features noticed by the Supreme Court are completely absent in this case. The evidence adduced by the prosecution of as many as three eye-witnesses is consistent, and if accepted, proves the prosecution case beyond reasonable doubt. In a case of this nature, it does not appear necessary for the prosecution also to prove the motive for the offence. 16. It was then submitted that the trial Court has committed error in referring to the statements recorded in the case diary by the Investigating Officer, and in particular, our attention has been drawn to paragraphs 20-27 of the judgment of the trial Court. While considering the question whether the prosecution has proved the place of occurrence, the trial Court, no doubt, referred to the case diary and found that the Investigating Officer had written that the place of occurrence was the passage situated between the fields of Jawahar Koiri and late Ram Lakhan Prasad on which wheat crops were standing. We agree with the learned counsel that the trial Court should not have referred to the case diary in such a manner, and should have confined itself to the evidence adduced at the trial. We agree with the learned counsel that the trial Court should not have referred to the case diary in such a manner, and should have confined itself to the evidence adduced at the trial. But that does not make any difference to the result of the appeals because the prosecution witnesses have deposed consistently about the place of occurrence.The trial Court has also considered the submission urged on behalf of the defence, that though P.W. 4 had stated in his evidence that there were blood drops on the wheat crop, the Investigating Officer had not written this fact in his diary. The trial Court found that the Investigating Officer had mentioned this fact in paragraph 6 of the case diary. We cannot find fault with the trial Court for its observation, because it was the defence which advanced a submission before the Court compelling the Court to look into the case diary to test the submissions advanced. However, we have already observed earlier that reference to the case diary cannot affect the result of the case because so far as the piece of occurrence is concerned, the evidence of the prosecution witnesses is consistent. Indeed it was not even suggested to any of the witnesses that the occurrence took place at a place different from the one deposed to by the prosecution witnesses. 17. Learned counsel then submitted that non-examination of the Investigating Officer has resulted in prejudice to the accused persons because if the Investigating Officer had been examined, the defence could have elicited from him the contradictions that appeared in the depositionof the witnesses before the Court and their state ments in course of investigation. We do not find that in course of cross-examination, attention of any of the witness was drawn to any part of their statement recorded in the case diary. It is no doubt true that a witness may be cross-examined as to the previous statement made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved. But S. 145 of the Evidence Act mandates that if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. But S. 145 of the Evidence Act mandates that if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. It is unfortunate that S. 145 of the Evidence Act is observed in this State in its breach. What we find prevalent today is the practice of putting a question to a witness as to whether he had made a particular statement before the Investigating Officer without drawing his attention to any part of his statement, even if contradiction is sought to be elicited. Thereafter, a question is put to the Investigating Officer when he appears as a witness and an answer is elicited from him whether the witness had made such a statement. In the absence of the witness being confronted with the relevant part of his earlier statement, the Court does not get an opportunity to verify as to whether what is stated by the witness is true, or what is stated by the Investigating Officer is true, because no part of the statement is even marked for the purpose of identification. The Court, therefore, does not know as to what was the statement made in course of investigation by the witness, and whether the witness has really contradicted his earlier statement recorded in the case diary. It is incumbent upon the defence to draw the attention of the witness to that part of the statement in the case diary which is contradictory to the statement made by him before the Court. If the attention of the witness is drawn to that part of his statement recorded in the diary, he may have an explanation to offer. As observed earlier, no part of his case diary statement was brought to the notice of any of the witnesses for the purpose of contradicting him, and therefore, no prejudice has been caused to the defence even if the Investigating Officer was not examined at the trial. We, therefore, hold that no prejudice has been caused to the defence by non-examination of the Investigating Officer. Reliance placed upon a Division Bench decision of this Court in the case of Rajawa Kebat V/s. The State of Bihar, reported in 1988 Cri LJ 1288, is also of no help to the defence. We, therefore, hold that no prejudice has been caused to the defence by non-examination of the Investigating Officer. Reliance placed upon a Division Bench decision of this Court in the case of Rajawa Kebat V/s. The State of Bihar, reported in 1988 Cri LJ 1288, is also of no help to the defence. In that case, the Court on appreciation of the evidence on record found the evidence to be weak and full of doubts. There was solitary evidence of the informant and the wrong identification caused further confusion. In addition to all this, it was submitted that there was no adequate explanation for non-production of the Investigating Officer and the case diary was not proved on the record. The Court held that serious prejudice was caused to the defence, though the judgment does not disclose as to the nature of the prejudice caused. In the instant case, we do not find that any prejudice has been caused to the defence. The other decision relied upon is in the case of T. Subbi Reddy, reported in 1984 Cri LJ 502 (Andh Pra), a decision of a learned single Judge of Andhra Pradesh High Court in a Criminal Revision against an order of acquittal. The Court found that there were number of contradictions elicited from the evidence of the witnesses which were to be put to the Investigating Officer, who failed to appear before the Court to give evidence. By a short order, the learned single Judge held that this was not a fit case where permission could be granted for filing revision petition against the order of acquittal. In our view the said decision does not lay down any principle of law and the learned single Judge simply refused permission to file revision petition in the facts and circumstances of the case. 18. It was then submitted by the learned counsel for the appellants that the prosecution case at best is that the appellants wanted to commit murder of Lal Bahadur Rai, P.W. 4, but in fact they committed the murder of his brother Ramu Rai. He, therefore, submitted that S. 149 was not applicable to the facts of the case. 18. It was then submitted by the learned counsel for the appellants that the prosecution case at best is that the appellants wanted to commit murder of Lal Bahadur Rai, P.W. 4, but in fact they committed the murder of his brother Ramu Rai. He, therefore, submitted that S. 149 was not applicable to the facts of the case. Since we have found that Baldeo Miskar may not have participated in the commission of the offence, the question arises whether the remaining appellants can be convicted with the aid of S. 34, IPC.It was submitted that P.W. 1 has stated in his deposition that the appellants had fired from their pistols at Lal Bahadur Rai, but Ramu Rai received the shot. Relying upon this one stray statement of P.W. 1, it was submitted that the common unlawful object of the assembly was tokill Lal Bahadur Rai, the informant and not Ramu Rai. This submission must be rejected because, the case of the prosecution is that the dispute if any, was only between Ramu Rai and the appellants, and the appellants had actually come to kill Ramu Rai and not Lal Bahadur Rai. Defence cannot make much of the stray statement in the evidence of the witness, particularly when there is no basis for the witness to make such a statement. Moreover, the question is merely academic, because the evidence on the record is that all the appellants did actually participate in the commission of the offence. It is, therefore, immaterial whether they intended to cause death of any one else, because they actually participated in the commission of murder of the deceased Ramu Rai, each one of them having used his weapon to cause injury on his person. In this context learned counsel relied upon the decision in the case of Kshudiram Majhi V/s. The State of West Bengal, reported in AIR 1972 SC 1221 : (1972 Cri LJ 756). That decision is clearly distinguishable because the Court found that the grievous injuries inflicted by one of the accused on a workman working in the house was his individual act and, therefore, other accused persons could not be held guilty of any vicarious liability for the assault of that particular accused on the workman against whom none of the accused persons had any particular animus. In the instant case, as we have noticed earlier, the question becomes academic because all the accused persons have actually inflicted injuries on the deceased and, therefore, there is no doubt about the common object which they shared. 19. The next submission of the counsel for the appellants is that the charge against the appellants has not been properly framed inasmuch as the charge does not specify the common unlawful object of the assembly. We have read the charge framed under Ss. 302/149, IPC in which it is stated that the appellants on or about 17th day of February, 1996, at Masumganj, P. S. Bhagwan Bazar, district Saran in prosecution of the common object of such assembly, intentionally and with knowledge, committed murder of informants brother, Ramu Rai and thereby committed an offence punishable under Ss. 302/149, IPC. In our view, the charge is quite clear and leaves no doubt about the common unlawful object of the assembly because the charge states that in prosecution of the common object, the murder of the informants brother was committed. Though it is advisable while framing the charge, to clearly state the common object of the assembly, we find that no prejudice has been caused to the appellants even by the failure to state the common unlawful object of the assembly in the manner suggested by the counsel for the appellants. 20. It was then submitted that the examination of the accused under S. 313, Cr. P.C. is most perfunctory and the accused were not examined by the Court in the manner they should have been. Each incriminating circumstance should have been put to the accused and their answers or explanations elicited. That was not done in the instant case.We have noticed from the statement of the accused recorded under S. 313, Cr. P.C. that the trial Court did not put to the accused separately each circumstance appearing against him. A question was put that it has been alleged that on 17-2-1996, at 7O clock in the morning you were member of the unlawful assembly at Masumganj, P.S. Bhagwan Bazar, district Saran and in fulfilment of the common object of that assembly you committed the murder of the informants brother, Ramu Rai. Have you got anything to say? The answer given was "No Sir". Another question that was put was, have you got to say anything to your defence? Have you got anything to say? The answer given was "No Sir". Another question that was put was, have you got to say anything to your defence? The answer was "Yes Sir". 21. While it is true that each incriminating circumstance should be put to the witness separately, and several incriminating circumstances should not be rolled into one question, the conviction of the appellants cannot be set aside unless it is shown that some prejudice has been caused to them by reason of the Court not putting to the accused each circumstance appearing against him separately, and by separate questions. We asked the counsel for the appellants to demonstrate as to how prejudice has been caused to the defence, and what possible answers could be given by the accused, if the questions were put separately relating to each incriminating circumstance. We have not been given any satisfactory reply, except that the questions put to the accused are not strictly in accordance with S. 313, Cr. P.C. It also appears from the suggestions put to witnesses that the defence of the appellants at the trial was that none of them were the eye-witnesses and that the occurrence as alleged hadnever taken place. In the facts and circumstances of the case, we are satisfied that no prejudice has been caused to the defence, though we must record that the examination of the accused in this case under S. 313, Cr. P.C. is not satisfactory. In the case of State of Maharashtra V/s. Sukhdeo Singh, reported in AIR 1992 SC 2100 : (1992 Cri LJ 3454), the Supreme Court observed :"It is trite law that the attention of the accused must be specifically invited to the inculpatory pieces of evidence or circumstances laid on record with a view to giving him an opportunity to offer an explanation if he chooses to do so. The section imposes a heavy duty on the Court to take great care to ensure that the incriminating circumstances are put to the accused and his response solicited. The words shall question him clearly bring out the mandatory character of the clause and cast an imperative duty on the Court and confer a corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him. The words shall question him clearly bring out the mandatory character of the clause and cast an imperative duty on the Court and confer a corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him. It is, therefore, true that the purpose of the examination of the accused under S. 313 is to give the accused an opportunity to explain the incriminating material which has surfaced on record."In K. C. Mathew V/s. State of Travancore-Cochin, reported in AIR 1956 SC 241 : (1956 Cri LJ 444), it was found that the examination of the accused under S. 342, Cr. P.C. was not as full or as clear as it should have been, yet the Court was not satisfied that there was any prejudice caused to the defence. The question as to whether any prejudice is caused depends on the facts and circumstances of the case. The Court may well ask the counsel as to what questions should have been asked and what possible answer could have been given if they had been asked such questions. In that context, it was observed as under :"Again, though that is not necessarily fatal ordinarily it will be very difficult to sustain a plea of prejudice unless the Court is told just where the shoe pinches. It is true that in certain exceptional cases prejudice, or a reasonable likelihood of prejudice, may be so patent on the face of the facts that nothing more is needed; but that class of case must be exceptional.After all, the only person who can really tell us whether he was in fact prejudiced is the accused; and if there is real prejudice he can at once state the facts and leave the Court to judge their worth. But if the attitude of the accused, whether in person or through the mouth of his counsel is; "I dont know what I would have said. I still have to think that up. But if the attitude of the accused, whether in person or through the mouth of his counsel is; "I dont know what I would have said. I still have to think that up. But I might have said this, that or the other then there will ordinarily be little difficulty in concluding that there neither was, nor could have been, prejudice.Here, as elsewhere, the Court is entitled to conclude that a person who deliberately withholds facts within his special knowledge and refuses to give the Court that assistance which is its right and due, has nothing of value which he can disclose and that if he did disclose anything that would at once expose the hollowness of his cause."As observed in paragraph 11 of the same judgment, we put it to the counsel for the appellant as to what possible questions should have been put and what possible explanation may have been offered by the accused, which he could not offer in view of the defective questions put under S. 313, Cr. P.C. He could not give us any satisfactory reply because if he did, we could take the explanation that the accused could have given in the trial and after taking into consideration, weighed the evidence in just the same way as it would have been done if it had been there all along. Since no particular explanation is forthcoming, we are of the view that no real prejudice has resulted, and mere defective examination of the accused under S. 313, Cr. P.C. cannot be made a ground for setting aside the judgment of the trial Court. In the same volume of the Report at page 469 (1956) Cri LJ 831), there is another decision of the Supreme Court in the case of Bimbadhar Pradhan V/s. The State of Orissa, which lays down the same principle. 22. In the case of Harijan Megha Jesha V/s. State of Gujrat, reported in AIR 1979 SC 1566 : (1979 Cri LJ 1137), the Supreme Court was dealing with a case where an order of acquittal by the trial Court has been set aside by the High Court. The Court held that it cannot be said in the circumstances of the case that the view taken by the Sessions Judge was perverse and was not at all borne out by the evidence on the record. The Court held that it cannot be said in the circumstances of the case that the view taken by the Sessions Judge was perverse and was not at all borne out by the evidence on the record. It was pointed out that the High Court had relied upon certain circumstances to corroborate the evidence of P.W. 1, one of them being that on personal search of the appellant a Chaddi was found which was blood stained and according tothe report of the serologist, it contained human blood. The Court observed that this circumstance was not put to the accused in his statement under S. 342, Cr. P.C. and therefore, the prosecution could not be permitted to rely on this statement in order to convict the appellant, particularly after he had been acquitted by the trial Court. This observation must be understood in the context in which it was made. 23. We have carefully considered the evidence of the witnesses in the light of the submissions urged on behalf of the appellants. We find their presence to be natural and we find a ring of truth in their version. The version given by the witnesses is consistent. The FIR was lodged promptly and there appears no reason why the informant as well as the other two witnesses should have falsely implicated the appellants. We, therefore, agree with the reasonings of the trial Court and sustain the conviction of the appellants, except appellant Baldeo Miskar, on the basis of the testimony of P.Ws. 1, 3 and 4. Since we have acquitted Baldeo Miskar of all the charges levelled against him, the conviction of the remaining appellants must be recorded under Ss. 302/34, IPC as all of them had inflicted injuries on the deceased. 24. We now come to the Death Reference made by the trial Court for confirmation of the sentence of death passed against appellant Mohan Miskar and Raju Miskar. Having appreciated the facts and circumstances of the case, we are satisfied that this is not a case in which imposition of extreme penalty was justified. This is not one of the rarest of the rare cases, and though every murder is an act of cruelty, we do not find that the appellants had acted in such a depraved manner or with such cruelty, that imposition of death sentence was imperative. This is not one of the rarest of the rare cases, and though every murder is an act of cruelty, we do not find that the appellants had acted in such a depraved manner or with such cruelty, that imposition of death sentence was imperative. Having regard to the facts and circumstances of the case, we are of the view that sentence of rigorous imprisonment for life will meet the ends of justice so far as these appellants are concerned. 25. In the result, the reference being Death Reference No. 5/98 is declined. Criminal Appeal 131/98 is partly allowed to the extent that though appellants Mohan Miskar and Raju Miskar are found guilty of the offence under Ss. 302/34, they are sentenced to undergo rigorous imprisonment for life after setting aside the death sentence. The sentence of fine imposed against them is set aside but the sentence of four years rigorous imprisonment under S. 27 of the Arms Act is upheld. The sentences are directed to run concurrently.Criminal Appeal 155/98 is also partly allowed to the extent that appellant Baldeo Miskar is acquitted of all the charges levelled against him. Appellants Munna Miskar and Babulal Miskar are sentenced to rigorous imprisonment for life under Ss. 302/34, IPC instead of Ss. 302/149, IPC, but the sentence of fine is set aside.Order accordingly.