JUDGMENT : D.P.S. CHOUDHARY & S.K. KATRIAR, JJ.:- Appellant Raj Kumar Rajwar has been found guilty under section 302 IPC and sentenced to undergo rigorous imprisonment for life. He has further been found guilty under section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for one year. Before the trial court i.e. the 9th Addl. Sessions Judge, Rohtas, Sasaram, four accused were tried under sections 302, 302/ 84, 366/86 and 376 IPC, and 27 of the Arms Act. The trial court by its judgment and order dated 28th May, 1988, acquitted the other three accused persons for the charges under sections 302/34, 366/34 and 376 IPC and only found the accused appellant guilty and convicted him accordingly as mentioned above. 2. The prosecution case, as contained in the fardbeyan is that the informant Shyam Sundari Devi @ Sundari Devi, P.W.6 was residing in her Chhawni with her two daughters and a son to the north of village Lohradih at Barheto Bal, P.S. Tilotha, District Rohtas. She used to look after her cultivation work. On the date of occurrence i.e. 20.5.86 at about 7.30 p.m., she was at her Chhawni and her daughters were making preparation for meal. Her Son, Umesh, P.W.1 had gone to the nearby Chhawni of Ramdhani Singh. At that time four persons arrived at her Chhawni from the eastern side to whom she could see in the moon-lit night. She gave the description that they were young and one of them was fatty. They were wearing Lungi and Ganji. She further stated that three of them were holding pistols. The accused persons asked her about the where about of her son and she replied that she did not know as to where he had gone. Thereafter one of the accused caught hold of her daughter Kanti Kumari, P.W.7 and dragged her towards the back of the Chhawni. She began to cry. The accused persons assaulted her on her cheek and also enquired from her about her brother. On hearing her cry, one Laxman Singh (since deceased) and Bihari Singh, P.W.4 went there running from their nearby Chhawni. In the meantime the other three accused persons also arrived from the Chhawni of the informant. The informant also rushed there after hearing the cry of her daughter. On hearing her cry, one Laxman Singh (since deceased) and Bihari Singh, P.W.4 went there running from their nearby Chhawni. In the meantime the other three accused persons also arrived from the Chhawni of the informant. The informant also rushed there after hearing the cry of her daughter. It is the further case of prosecution that one of the four accused fired upon Laxman Singh from a close range which hit him his "Panjra" who fell down senseless. Thereafter, P.W.4, Bihari Singh started hurling Lathi on the accused persons. On the alarm being raised the nearby villagers rushed there. In the meantime all the four accused persons fled away. Some of the villagers who had arrived at the place of occurrence had seen the accused persons running-away from the place of occurrence. The informant with the help of other villagers brought the injured to the police station and from there he was removed to the hospital, but he died in the way to the hospital. At the police station, the fardbeyan of the informant was recorded, over which she gave her thumb impression and P.W.1 Umesh Singh signed over it as a witness. 3. After investigation, the police submitted charge-sheet against all the four accused persons under different sections as mentioned above and the trial proceeded. 4. The defence case as emerges out from the trend of the cross examination, is that because of the enmity all the four accused including the appellant have been falsely implicated. 5. On behalf of the prosecution nine witnesses have been examined. Out of them P.W.4 Bihari Singh and P.W.7 Kanti Kumari have deposed as eye witnesses. They have named the appellant and stated that he had fired at the deceased Laxman Singh from his double barrel gun from a close range. P.W.1 Umesh Prasad Singh is the son of the informant. He stated that he reached the place of occurrence on hearing the sound of firing and saw all the four accused persons fleeing, from the place of occurrence. Bihari Singh, P.W.4, followed them to some distance. Bihari Singh had told him the names of the accused persons including the appellant and he claimed that he had identified all the four accused persons. He found Laxman Singh injured lying at the place of occurrence in a pool of blood. Bihari Singh, P.W.4, followed them to some distance. Bihari Singh had told him the names of the accused persons including the appellant and he claimed that he had identified all the four accused persons. He found Laxman Singh injured lying at the place of occurrence in a pool of blood. He and other villagers brought him to the police station and subsequently to the hospital. This witness has admitted in his cross examination that he had not seen the occurrence of firing at the deceased. P.W.2 Harilal Singh had reached the place of occurrence on Hulla and had seen and identified all the four accused persons who were fleeing away. He had also chased the accused persons along with other villagers to some distance, but could not succeed in catching hold of them. At the Chhawni of the informant, Kanti Kumari, P.W.7 told him that appellant Raj Kumar Rajwar had fired at the deceased from his gun. In the cross examination he stated that when he arrived at the place of occurrence, he saw all the accused persons from a distance of about 10 yards and he along with other villagers chased them to a considerable distance. Since the accused persons were firing to scare the mob he and the other villagers returned back. 6. P.W.3, Ram Dhani singh, had arrived at the place of occurrence on hearing the Hulla and saw Laxman Singh lying injured. He also saw accused Gaya Yadav and three others fleeing away from the place of occurrence and he also accompanied the injured to the police station and to the hospital. 7. P.W.4, Bihari Singh, is the brother of the deceased and on the cry of Kanti Kumari he along with his brother had reached the place of the occurrence and saw one of the accused was catching hold of Kanti Kumari and he was trying to commit rape on her. In the meantime, his brother, Laxman Singh challenged them but the appellant Raj Kumar Rajwar fired at him from a close range who fell down with bleeding injury. After the firing, all the four accused persons fled away towards the village. He brought his brother Laxman Singh on a cot to the police station along with the villagers and from there he was removed to the hospital, but he died in the way. After the firing, all the four accused persons fled away towards the village. He brought his brother Laxman Singh on a cot to the police station along with the villagers and from there he was removed to the hospital, but he died in the way. In the cross examination he stated that from the place of occurrence the Chhawni is situated at a distance of 20 steps in the east and his Chhawni is at a distance of about 10 yards from the tree where the occurrence took place. He further stated that he had seen Rajkumar Rajwar, the appellant, firing at the deceased from a close range (Ek Bitta). He made it clear that no other accused had fired at the place of occurrence, though they were armed with pistols. After the firing when the accused persons were fleeing away, the informant and other co-villagers had arrived and they had seen them fleeing away. In the cross examination he stated that he was examined by the police under section 161 Cr. P.C. after 8 days of the occurrence. P.W.5, Dashrath Dusadh has been declared hostile by the prosecution and his cross examination is not relevant on any material point. P.W.6 Sundari Devi is the informant. She has supported her case as made out in the fardbeyan and further stated that she had identified all the accused persons by their faces in the moon lit night. According to her, accused Gaya Yadav caught hold of her daughter, Kanti Kumari and dragged to the back of her Chhawni. He assaulted her with fists and slaps and on her cry, the deceased, Laxman Singh and his brother Bihari rushed to the place of occurrence. She also went there thereafter. She heard the sound of firing and saw Laxman Singh lying injured on the ground. She accompanied the injured to the police station where her fardbeyan was recorded at 10 p.m. on the same night. In the cross examination she stated that her daughter, Kanti Kumari named the appellant Rajkumar Rajwar who had fired at the deceased. P.W.7 Kanti Kumari who deposed as a eye witness, has stated that appellant Rajkumar Rajwar had fired at the deceased. She has named other accused persons. She further stated that when other witnesses arrived at the place of occurrence she told them about the name of the appellant who had fired at the deceased. P.W.7 Kanti Kumari who deposed as a eye witness, has stated that appellant Rajkumar Rajwar had fired at the deceased. She has named other accused persons. She further stated that when other witnesses arrived at the place of occurrence she told them about the name of the appellant who had fired at the deceased. She also disclosed the name of the appellant to her mother. In the cross examination she made it clear that the appellant had fired at the deceased from a close range from his gun which was bigger in size than the pistol possessed by the other accused persons. 8. P.W.9. is the doctor who held postmortem examination over the dead body of the deceased and found the following injuries: (1) Multiple punctured wound about 30 in number in the right side of lower chest on right lower part of axella. The margins are inverted. The skin around the wound was blackened due to smoke. (2) Above injuries were caused by fire arm. This was the way of entrance." On dissection of thorex and abdomen the right of liver and lungs were found lacerated and right thoracic cavity was full of blood. Some pellets were found inside the liver, lung and the heart. In the opinion of the doctor the injuries wee caused by fire arm and the death was due to the injuries on the vital organs including liver, lung and heart. In the postmortem report he has mentioned that there was blackening around the inverted wound suggesting that the firing was made from a close range. He further opined that the death was within 48 hours. The postmortem report has been marked as Ext. 3. 9. P.W.8 the another doctor who examined Kanti Kumari on 21.5.86 at Dehrion Sone dispensary and found some scratches over the right side of her face. The doctor has not found any sign of rape or marks of violence over the body of Kanti Kumari. The reason assigned by the doctor is that the victim Kanti Kumari did not allow the doctor to examine her private part. However, her evidence is of not much importance because the trial court has acquitted the accused persons under section 366 and 376 IPC. The reason assigned by the doctor is that the victim Kanti Kumari did not allow the doctor to examine her private part. However, her evidence is of not much importance because the trial court has acquitted the accused persons under section 366 and 376 IPC. In the opinion of the doctor Kanti Kumari was aged about 17 years and the court while recording her deposition estimated that she was 16 years of age and capable to understand the entire incident. 10. On the basis of these evidences, learned counsel for the appellant submitted that the prosecution has not been able to prove its case beyond all doubts that appellant Rajkumar Rajwar has fired at the deceased. The other part of the occurrence including the death of Laxman Singh has not been seriously challenged either before the trial court or before us in this Appeal. The main contention of the appellant's lawyer is that out of the two eye witnesses, P.W.4 in paragraph 4 of his cross examination has stated that he had not seen the other three accused persons coming at the place of occurrence when he arrived there on hearing hulla before the firing. He had not seen the other three accused persons since they arrived at the place of occurrence from the east direction and he was facing at that time towards north. On the basis of this statement, the learned counsel has submitted that it was not possible for this witness to see the appellant firing at the deceased. We have carefully scrutinised the evidence of this witness and we do not find any substance in the above contention of the learned lawyer. In his subsequent statement in paragraph 5, this witness has made it clear that he had seen the appellant Raj Kumar Rajwar firing at the deceased from a close range and further stated that no other accused had fired at that time. His evidence finds corroboration from the evidence of another eye witness P.W.7 who stated that in presence of this witness the appellant had fired at the deceased. P.Ws. 1, 2 and 3 who had arrived at the place of occurrence on hearing Hulla, had also seen the accused persons including the appellant fleeing away. P.W.4 has stated that he had named the appellant that he had fired at the deceased. P.Ws. 1, 2 and 3 who had arrived at the place of occurrence on hearing Hulla, had also seen the accused persons including the appellant fleeing away. P.W.4 has stated that he had named the appellant that he had fired at the deceased. Therefore, we do not find any ambiguity on the point of identification of the appellant. Some minor contradictions have been pointed out on behalf of the appellant in his evidence that when he was standing facing towards north and the accused persons came from east, it was not possible for him to see the appellant. Such minor contradictions cannot go to the root of the case particularly on the point of identification of the appellant because the appellant was co-villager and was known to the witnesses from before. He was seen firing at the deceased from a close, range and therefore, there is no chance of any error in identifying the appellant at the place of occurrence. He fairly stated that other accused persons had not fired at the place of occurrence. As suggested on behalf of the defence that the appellant has been falsely implicated, does not appear to be convincing because in that event the witness would have attributed some acts to the other accused also. This shows that the witness is truthful and reliable. We do not find any reason to disbelieve him on the point of identification of the appellant. 11. Another witness P.W.7, Kanti Kumari, is a competent witness because she was dragged from her Chhawni to the place of occurrence. She was also assaulted and her evidence finds support from the report of the lady doctor, P.W.B, who found some scratches on her cheek. She stated that when she cried from the nearby Chhawni, deceased, Laxman Singh and his brother Bihari Singh, P.W.4 arrived at the place of occurrence and when Laxman Singh intervened, the appellant fired from a close range on him. She has further stated that before the firing took place, the three accused persons who were standing at her Chhawni near her mother arrived at the place of occurrence and they were armed with pistols. She further stated that when other witness arrived at the place of occurrence, she told them the name of the appellant who had fired at the deceased. This part of her evidence has been supported by all the three witnesses as stated above. She further stated that when other witness arrived at the place of occurrence, she told them the name of the appellant who had fired at the deceased. This part of her evidence has been supported by all the three witnesses as stated above. From the scrutiny of her evidence, we find no reason as to why she will falsely implicate the appellant. If she was to speak lie then it was possible for her to name other accused also attributing some acts against them. But she has fairly stated that the other accused had not fired at the place of occurrence. She was examined by the Investigating Officer on that very night and named the appellant who had fired at the deceased. In paragraph 6, she stated that she also narrated to her mother the name of the appellant who had fired at Laxman Singh. This part of her evidence is corroborated from the evidence of her mother, P.W.6, the informant as discussed above. Her evidence is corroborated on material points both from the evidence of the eye witness P.W.4 and the other witnesses, namely, P.Ws. 1 to 3, who arrived at the place of occurrence after hearing the sound of firing. Therefore, the evidence of this witness finds corroboration from the other witnesses also. 12. Laxman Singh has died due to gun shot injury is corroborated from the evidence of the doctor P.W.9. The evidence of the doctor fully corroborates the prosecution case. We have discussed that the Doctor has mentioned in the postmortem report that there was blackening near the wound suggesting that the firing was from a close range. This also corroborates the evidence of the two eye witnesses, namely, P. Ws. 4 and 7, who have categorically stated that the appellant had fired from a close range at the deceased. 13. Another point that has been raised on behalf of the appellant is that the F.I.R. is against unknown when the informant and the appellant are of the same village. The informant has claimed to have identified the accused persons by face when they arrived at her Chhawni in the moon lit night. As per the evidence of P.W.4 he had disclosed the name of the appellant to the informant before she went to the police station. P.W.7 says that she had disclosed the name of the appellant to her mother. As per the evidence of P.W.4 he had disclosed the name of the appellant to the informant before she went to the police station. P.W.7 says that she had disclosed the name of the appellant to her mother. In these circumstances, it was natural on the part of the informant to disclose the name of the appellant in her fardbeyan. In the light of this submission, we have carefully scrutinized the fardbeyan and the evidence of P. Ws. 4 and 7 and it appears that they had not disclosed the names of the accused persons including the appellant before the fardbeyan was recorded at about 10 p.m. The occurrence had taken place at about 7.30 p.m. and just after the occurrence the informant accompanied the injured along with other villagers to the police station where her fardbeyan was recorded. From the evidence of P.Ws. 4 and 7 it appears that before her fardbeyan was recorded they had not disclosed the name of the appellant. However, this point does not cut the very root of the prosecution case because there is consistent evidence on the record leading to the conclusion that the appellant had fired at the deceased. He was identified at the spot by the two eye witnesses named above. There is no suggestion in the cross examination as to why they will falsely implicate the appellant as they had no personal enmity with the appellant. The motive of the occurrence as alleged in the fardbeyan is some land dispute in between the informant and the appellant and other accused persons, but none of the accused including the appellant had any grudge against P.Ws. 4 and of and also against P.Ws.1 to 3, who have corroborated the evidence of P.Ws. 4 and 7 on material points. It was next submitted by the learned counsel for the appellant that Investigating Officer has not been examined in this case and this has caused serious prejudice to the appellant because he was debarred to take material contradictions in the evidence of the P.W.s. and their statement before the I.O. during the investigation. Learned APP has submitted that non-examination of the Investigating Officer is only a lacuna on the part of the prosecution, but on this ground alone, the entire prosecution case should not be disbelieved, as non examination of the Investigating Officer has not caused any serious prejudice to the appellant. Learned APP has submitted that non-examination of the Investigating Officer is only a lacuna on the part of the prosecution, but on this ground alone, the entire prosecution case should not be disbelieved, as non examination of the Investigating Officer has not caused any serious prejudice to the appellant. Learned counsel for the appellant has not pointed out any such vital contradiction in the evidence of the eye witnesses and their statement before the Investigating Officer which makes their evidence doubtful. Besides, the factum of the murder and the place of occurrence is not in dispute. Had there been any dispute regarding the place of occurrence, examination of the Investigating Officer would have been essential to fix the place of occurrence. No cross examination has been made on behalf of the defence on the point of place of occurrence; rather it has been admitted in so many words that the manner and the place of occurrence are not in dispute. 14. Learned APP has relied upon the case of Bishundeo Mishra and ors. Vs. The State of Bihar, reported in 1989 PLJR-405, and submitted that it has been held in that case that non-examination of the Investigating Officer is not fatal for the prosecution case, if no prejudice has been caused to the accused appellant on this score. If actually some prejudice is shown caused to the accused because of non examination of the Investigating Officer, only then the benefit of this lacuna would help the accused. In this case, we have already stated that non examination of the Investigating Officer has not caused any prejudice to the accused-appellant. Hence he is not entitled for any benefit out of this lacuna of the prosecution. 15. On consideration of the facts and circumstances and the submissions made on behalf of the appellant, we find no reason to interfere with the findings and the judgment of the trial court by which he has held the appellant guilty under section 302 IPC and 27 of the Arms Act. 16. In the result, we find no merit in this appeal. It is accordingly dismissed. The judgment and order of conviction and sentence passed by the trial court against the appellant is hereby upheld. The appellant is in jail and he shall serve out the remaining period of his sentence.