Judgment MANOHAR LAL VISA, J. 1. This appeal by the sole appellant Shiva Prakash Suman @ Suman Kumar Singh is directed against the judgment and order dated 3.3.1998 passed by 5th Additional Sessions Judge, Samastipur, in Sessions Trial No. 270 of 1993/4 of 1997 convicting and sentencing the appellant to undergo RI for life under Section 302 of the Indian Penal Code and RI for a period of five years under Section 27 of Arms Act. Both the sentences have, however, been ordered to run concurrently. 2. The case of prosecution as disclosed in the fardbeyan of informant Devendra Singh (PW 12), in short, is that on 9.3.1999 at about 1 p.m. appellant went to the house of informant and took Shradha Nand Singh, son of informant, with him to his house on the pretext of playing cards. When Shradha Nand Singh did not return for about quarter to one hour, Chaturbhuj Singh (PW 8), younger brother of informant went to the house of appellant and found that at the dariwaja of appellant villagers namely, Mahesh Singh (PW 1), Dip Narayan Singh (PW 3), Amir Prasad Singh (not examined), Chhathu Singh (not examined), were sitting on a mat on which playing cards were placed and Shradha Nand Singh was also sitting there and was nervous and appellant was pointing out a pistol at him and was shouting that he would kill him. When Chaturbhuj Singh went forward to save Shradha Nand Singh, appellant fired from pistol hitting Shradha Nand Singh on the left side of his upper lip and shot came out from back portion of his head and he died at the spot. Thereafter, the villagers who were playing cards collected the cards and fled away. Occurrence was witnessed by Ranjeet (not examined), Ram Binod Singh (not examined), Bhola Singh (PW 15) and others. Villager Hare Krishna Bihari Singh collected the blood stained soil from the place of occurrence. When informant at about 3 p.m. came to his house he was told about the occurrence by his wife Shall Devi (not examined) and brother Chaturbhuj Singh. Occurrence was witnessed by Ranjeet (not examined), Ram Binod Singh (not examined), Bhola Singh (PW 15) and others. Villager Hare Krishna Bihari Singh collected the blood stained soil from the place of occurrence. When informant at about 3 p.m. came to his house he was told about the occurrence by his wife Shall Devi (not examined) and brother Chaturbhuj Singh. About the motive of occurrence informant in his fardbeyan has stated that his deceased son Shradha Nand Singh used to run a coaching school at the house of Hare Krishna Singh but owing to some difficulty he shifted that school to his own house and for this reason the appellant and his family members were unhappy with his deceased son. Fardbeyan of informant was recorded by ASI K.K. Chaudhary (not examined) at about 4 p.m. in his village. On the basis of fardbeyan of informant a case under Section 302/201/34, IPC and 27 of Arms Act was registered against the appellant and Hare Krishna Singh by drawing FIR (Ext. 2). The police after investigation submitted charge-sheet against the appellant only. After taking cognizance the case was committed to the Court of Session where charges under Sections 302, IPC and 27 of Arms Act were framed against the appellant and because he denied the charges against him he was put on trial and after trial he was found guilty and was convicted and sentenced as indicated above. 3. No witness on behalf of appellant was examined before the Court below but from the trend of cross examination of prosecution witnesses the case of appellant appears to be complete denial of allegation against him and his false implication in this case. 4. Altogether 16 witnesses have been examined on behalf of the prosecution. Devendra Singh (PW 12) is informant. Ram Narayan Singh (PW 14) is a doctor who had conducted autopsy on the dead body of deceased. Shankar Thakur (PW 13) is the I.O. Ram Sagar Singh (PW 4), Bhangwan Kanth (PW 10) and Shobha Kant Jha (PW11) are formal witnesses who have proved fardbeyan (Ext. 1), formal FIR (Ext. 2) and endorsement (Ext. 3) of ASI Shankar Thakur on the fardbeyan. Shankar Thakur (PW 13) is the I.O. Ram Sagar Singh (PW 4), Bhangwan Kanth (PW 10) and Shobha Kant Jha (PW11) are formal witnesses who have proved fardbeyan (Ext. 1), formal FIR (Ext. 2) and endorsement (Ext. 3) of ASI Shankar Thakur on the fardbeyan. Dip Narayan Singh (PW 3) had seen the villagers playing cards at the darwaja of the appellant and had heard sound of firing when he was in his own house and when came out from his house he saw appellant running away carrying a revolver and dead body of deceased at the place of playing cards and had also seen Hare Krishna Singh scraping blood by a spade. Ram Sanjiwan Singh (PW 6) on hearing nulla had gone to place of occurrence where he had seen the dead body of deceased and had also seen Hare Krishna Singh scraping blood stained soil and has also stated about the motive of occurrence. Ram Bilas Singh (PW 7) had gone to place of occurrence after hearing hulla and had seen the dead body of deceased. Pawan Kumar Singh (PW 9) had gone to the place of occurrence after hearing sound of firing and had seen the dead body of deceased at the darwqja of appellant and was told by Chaturbhuj Singh that appellant had fired at the deceased. Mahesh Singh (PW 1), Chhatho Singh (PW 2), Chaturbhuj Singh (PW 8), Bhola Singh (PW 15) and Sonelal Sah (PW 16) are said to be eye witnesses to the occurrence. 5. Dr. Ram Narayan Singh (PW 14), in his evidence, has said that on 10.3.1993 he was posted as Civil Assistant Surgeon, Sadar Hospital, Samastipur, and on that day at about 10.30 a.m. he held post mortem examination on the dead body of deceased Shradha Nand Singh and found the following ante-mortem injuries : (i) One oval lacerated inverted margin wound adjacent to left side of nose, surrounded by blackening and charring skin of the diameter of 1/4" and this was wound of entry. (ii) One oval lacerated 1/2" diameter wound over back of skull (occipital bone) with reverted margin and it was wound of exit. According to him, both the aforesaid injuries were communicated and on deep dissection of skull he found fracture of left maxillary bone and occipital bones. (ii) One oval lacerated 1/2" diameter wound over back of skull (occipital bone) with reverted margin and it was wound of exit. According to him, both the aforesaid injuries were communicated and on deep dissection of skull he found fracture of left maxillary bone and occipital bones. Cranial cavity was filled up with blood and blood clots and meninges and brain matters were lacerated and protruded through wound of exit. According to him, the cause of death was projectile fire which may be caused by a bullet from pistol and time elapsed since death was 24 hours. He has proved the carbon copy of post mortem examination report which, according to him, was prepared by him and bears his signature which is marked Ext. 3. He has denied the suggestion of defence that his report is. unscientific and incorrect. From his evidence it is established that dead of deceased was homicidal. 6 Devendra Singh (PW 12), the informant, in his evidence has said that on the day of occurrence at about 1-1.30 p.m. he was in his house when appellant came there and took his son Sharda @ Shradha Nand Singh with him for playing cards at his house and after some time his wife sent his brother for calling the deceased and when his brother went to the house of appellant, the deceased wanted to go with him but appellant stopped him and threatened that in case he left the place he would be killed and thereafter the appellant fired at the deceased. He has further said that information about the occurrence was given to him by Mahesh Singh (PW 1) and one another at Ganganpur. About the motive of occurrence he has said that his deceased son used to run a coaching school near the house of appellant where appellant used to go which was objected to by his deceased son because amongst the students there were some girls and thereafter deceased shifted his coaching school at his own darwqja which caused annoyance to appellant. He has said that his fardbeyan was recorded by ASI K.K. Chaudhary on which he put his signature (Ext. 1/1). In cross-examination he has said that he is not eye witness to the occurrence and he gave statement on the basis of information which he received from Mahesh Singh (PW 1) and his brother. 7. He has said that his fardbeyan was recorded by ASI K.K. Chaudhary on which he put his signature (Ext. 1/1). In cross-examination he has said that he is not eye witness to the occurrence and he gave statement on the basis of information which he received from Mahesh Singh (PW 1) and his brother. 7. Mahesh Singh (PW 1), in his evidence, has said that on the day of occurrence he and some others were playing cards at the darwaja of appellant when appellant took out a pistol from his waist and fired at the deceased who fell down and died and he then out of fear fled away from the place of occurrence. Chhatho Singh (PW 2) and Bhola Singh (PW 15) have also said that on the day of occurrence they were playing cards at the darwqja of appellant and appellant fired at the deceased from a pistol. Bhola Singh (PW 15) in his examination-in-chief has admitted that his statement was not recorded by police but by Court and in para 8 of his cross-examination he has further said that after the occurrence police had come but his statement was not recorded because he did not go to the police out of fear. 8. Sonelal Sah (PW 16) has said that he had seen the deceased and others playing cards at the darwaja of appellant where he was chewing tobacco and he had heard sound of firing and saw the appellant running away with a revolver towards west. Before his examination-in-chief started he stated to Court that in this case he was not examined by the police and at the time of recording his statement under Section 164, Cr PC he had not disclosed the real name of his father which is Shaukhi Sah and in his statement recorded under Section 164, Cr PC name of his father has been stated as Fekan Sah. In view of own admission of PWs 15 and 16 that their statements were not recorded by police no reliance can be placed on their evidence. 9. In view of own admission of PWs 15 and 16 that their statements were not recorded by police no reliance can be placed on their evidence. 9. Chaturbhuj Singh (PW 8), uncle of deceased, has said that on the day of occurrence after irrigating his land he came to his house at about 1.302.00 p.m. and his bhabhi asked him to call the deceased who had gone with appellant and when he went to the darwaja of appellant he found the deceased and others playing cards and when he was at some distance from them appellant took out a revolver and fired at the deceased and he wanted to catch hold of deceased but deceased fell down and the revolver of appellant also fell on the ground but it was picked up by appellant who fled away towards south. He has further said that the deceased had received injuries on upper part of nose and blood was oozing from the injuries and deceased died. He has further said that all the players fled away from there and thereafter number of persons assembled there. 10. Ram Sanjiwan Singh (PW 6) has said that at the time of occurrence he was in his house when he heard hulla and when he went to the place of occurrence which is near the darwaja of Mahabir Sah, he found the deceas.ed lying injured with injuries of fire arms and Chaturbhuj Singh (PW 8) had told him that appellant had fired at the deceased and he also saw Hare Krishna Singh scraping blood by a spade and about the motive of occurrence he has said that deceased used to protest the illegal acts of appellant during running a school at the darwaja of Hare Krishna Singh and thereafter deceased shifted his school at his own darwaja. In cross- examination he has admitted that he is not eye witness to the occurrence. 11. Pawan Kumar Singh (PW 9) in his evidence has said that on hearing the sound of firing when he went to the darwqja of Mahabir Singh he found the deceased lying dead there and Chaturbhuj Singh (PW 8) told him that appellant had fired at the deceased and he saw the appellant running away towards south carrying a gun. In cross-examination he has admitted that he is not eye witness to the occurrence. 12. In cross-examination he has admitted that he is not eye witness to the occurrence. 12. Shankar Thakur (PW 13) is the I.O. of this case. He in his evidence has said that on 9.3.1993 he was posted at Baini Out Post and on account of Holi festival he was engaged in law and order duty when he received information that a murder had been committed in the village Chandauli. On this information he went to village Chandauli and found that ASI K.K. Chaudhary was present there and who had already recorded the fardbeyan of informant and he sent the fardbeyan to Baini Out Post for registering a case. He has further said that he recorded further statement of informant and inspected the place of occurrence where he found the dead body of deceased and blood stained soil. He got the inquest report (Ext. 4) of the dead body prepared and sent the dead body for post mortem examination to Sadar Hospital, Samastipur and recorded the statement of other witnesses and because of night he could not complete the inspection of place of occurrence and on the next day in the morning he again inspected the place of occurrence which is a place situate on the northern corner from east of open space in front of the house of Amir Prasad Singh and he seized blood stained soil from the place of occurrence. He has proved para 1 to 41 of carbon copy of the case diary which is marked Ext. 5. In cross-examination he has admitted that witness Chhathu Singh (PW 2) had not stated before him that he along with others were playing cards and appellant took out a revolver from his waist and fired at the deceased which hit on the left side of lip of deceased and deceased fell down and died there and appellant fled away with revolver towards south. About witness Dip Narayan Singh (PW 3) he has said that this witness had not stated before him that when Ramadhin, Sonelal and Amir Prasad Singh were playing cards he saw the appellant fleeing away with revolver towards south. About witness Dip Narayan Singh (PW 3) he has said that this witness had not stated before him that when Ramadhin, Sonelal and Amir Prasad Singh were playing cards he saw the appellant fleeing away with revolver towards south. He has further said that witness Ram Sanjiwan Singh (PW 6) had not stated before him that when he reached the place of occurrence after hearing hulla he saw the deceased lying in dying condition and Hare Krishna Singh was scraping blood with a spade and motive of occurrence was that deceased used to protest the illegal activities of appellant in the convent school of Hare Krishna Singh and deceased had brought the school at his own darwaja. About witness Ram Bilas Singh (PW 7) he has said that this witness had stated before him that at the time of occurrence he was not present in the village and had not stated that he heard the sound of firing and when went there he saw the deceased lying dead. He has further stated that witness Chaturbhuj Singh (PW 8) had not stated before him that his bhabhi had sent him to call the deceased and when he wanted to catch hold of the deceased, the deceased fell down and appellants revolver also fell down and appellant fled away towards south with revolver and had not stated that shot had hit the upper portion of nose and other players who vere playing cards fled away. He has further said that this witness had given statement before him of hearsay facts. About the informant he has said that before him he had not stated the boundary of place where dead body was lying in the following manner : NorthRoad, SouthJoint Darwaja of Amir Singh, EastDarwaja of Mahendra Singh and WestDarwaja and house of Chhathu Singh and he has further said that informant had not stated before him that his wife and Chaturbhuj Singh (PW 8) had given him information about the occurrence and had not stated before him that witness Mahesh Singh (PW 1) and one another had gone to call him and they had told him about the occurrence. 13. From the evidence of Shankar Thakur (PW 13), I.O., we find that he has admitted that he recorded the statements of witnesses examined during investigation. 13. From the evidence of Shankar Thakur (PW 13), I.O., we find that he has admitted that he recorded the statements of witnesses examined during investigation. From the different paragraphs of his deposition we find that he has perused the case diary for refreshing his memory at the time of giving evidence. The defence has tried to bring on record the contradictions in the earlier statements and evidence in Court of some of prosecution witnesses namely, Chhathu Singh (PW 2), Dip Narayan Singh (PW 3), Ram Sanjiwan Singh (PW 6), Ram Bilas Singh (PW 7), Chaturbhuj Singh (PW 8) and informant (PW 12). When Chaturbhuj Singh (PW 8) was examined as a witness the defence drew his attention towards his earlier statement by putting questions to him that whether before police he had stated that his bhabhi had sent him to bring the deceased, whether he had stated that when he wanted to catch hold of deceased, the deceased fell down, whether he had stated that revolver of appellant also fell down which was picked up by appellant, who ran towards north, whether he had stated that the shot fired by appellant hit on the left side of nose of deceased and other villagers fled away. To these questions he replied in affirmative and another question was put to him that whether before police he had only stated about the facts which he had heard. This question he replied in negative. It is true that Shankar Thakur (PW 13) in para 36 of his evidence has said that witness Chaturbhuj Singh (PW 8) had not stated before him that his bhabhi had sent him to call the deceased and when he wanted to catch hold the deceased, the deceased fell down and revolver of appellant also fell down on the ground which was picked up by appellant who ran towards southern side and shot had hit the deceased on the upper portion of nose and all who were playing cards fled away. He has further said that this witness had stated before him about only facts which were heard by him. Here we may state that we are quite aware of the legal position for use of case diary in a trial but we are not using any statement of case diary as a substantive piece of evidence or for corroborating the evidence of any of prosecution witnesses. Here we may state that we are quite aware of the legal position for use of case diary in a trial but we are not using any statement of case diary as a substantive piece of evidence or for corroborating the evidence of any of prosecution witnesses. The prosecution itself has brought on record para 1-41 of carbon copy of case diary written by I.O. (PW 13) which is marked Ext. 5. From perusal of para 5 of case diary we find that whatever the I.O. has said about the aforesaid contradictions in the statement of witness Chaturbhuj Singh (PW 8) is not correct. When admittedly the statement of Chaturbhuj Singh (PW 8) during the investigation was recorded by I.O. and I.O. at the time of giving his evidence refreshed his memory by perusing the case diary, the answer to questions regarding previous statement of this witness before him should have been based on the statement which was given, in fact, before him and was recorded by him. As stated above, the case diary has been brought on record by getting it marked as an exhibit by the evidence of I.O., himself on behalf of the prosecution and perusal of which clearly shows that Investigating Officer is not giving answers truly and we have got no hesitation in saying that Investigating Officer has given false replies on the point of previous statement of aforesaid witness. Only for the purpose of contradicting him we are referring the case diary which, in our opinion, is permissible under Section 172(3) of the Code of Criminal Procedure. Besides this, perusal of case diary which has been marked as an exhibit and has been brought on record by the prosecution itself, we find that the evidence of I.O. in respect of some other witnesses is also false. We cannot shut our eyes by not looking into the case diary for this limited purpose of contradicting the evidence of I.O. For witness Dip Narayan Singh (PW 3) by drawing his attention towards his previous statement the defence through the I.O. has tried to bring on record the contradiction in his earlier statement and in his evidence in Court to the effect that in his earlier statement this witness had not stated that he had seen Ramadhin, Sonelal and Amir playing cards and had seen the appellant running towards south with a revolver. The evidence of I.O. in para 33 that this witness had not stated the aforesaid facts before him, is also not correct which is apparent from para 6 of case diary. About Chhathu Singh (PW 2) we find that I.O. has given evidence that this witness had not stated before him on the point of occurrence what he has said in his evidence but we find that in case diary only joint statement of this witness Chhathu Singh and other witnesses was recorded supporting the case of prosecution. This is also procedural error committed by the Investigating Officer. Notwithstanding all these facts we find that besides the evidence of witnesses in respect of whom contradictions in their earlier statements and their evidence in Court has been tried to be brought on record by defence, there remains evidence of Mahesh Singh (PW 1), Jai Lal Sah (PW 5) and Pawan Kumar Singh (PW 9), out of whom Mahesh Singh (PW 1) is eye witness to the occurrence whereas remaining two witnesses are hearsay witnesses. Mahesh Singh has fully supported the case of prosecution that appellant had fired at the deceased. PWs 5 and 9 have said that they had seen the dead body of deceased at the place of occurrence at the time of occurrence and Chaturbhuj Singh (PW 8) had told them that appellant had fired at the deceased. The defence has given suggestion to Mahesh Singh (PW 1) that because he was removed from the job by Mahabir Singh, father of appellant, therefore, he deposed falsely. He has denied the suggestion although admitting that two years ago he was working in Baini Pusa Road Kumbhkari Udyog of which father of appellant is a manager but has said that he voluntarily left the job. The defence has not brought anything on record that this witness was removed from his service by father of appellant. 14. It has been argued on behalf of the appellant that the carbon copy of the case diary (Ext. 5) shows cutting on the first page of it in the name of police station and it shows that earlier in the place meant for writing name of police station Ujiarpur was written and by cutting it has been made Tajpur (Baini). It has been argued on behalf of the appellant that the carbon copy of the case diary (Ext. 5) shows cutting on the first page of it in the name of police station and it shows that earlier in the place meant for writing name of police station Ujiarpur was written and by cutting it has been made Tajpur (Baini). It has further been argued that the I.O. Shankar Thakur (PW 13), in his evidence, has admitted that after investigation of the case, he was transferred to Ujiarpur Police Station. Learned counsel for the appellant has submitted that the aforesaid circumstances show that I.O. did not investigate the case properly and he prepared the case diary sitting at Ujiarpur Police Station. We do not find any merit in this submission because admittedly the I.O. at the time of occurrence was posted at Baini Out Post where FIRs were not registered and FIRs for the area of this out post used to be registered at Tajpur police station, which is apparent from the endorsement (Ext. 3) of PW 13 on the fardbeyan and by formal FIR (Ext. 2). Merely by a mistake in writing the name of police station on case diary which was corrected does not affect the case of prosecution particularly when case number, date and place of occurrence and sections under which case was registered are correctly mentioned at the same place where aforesaid correction was made. 15. Learned counsel of appellant has submitted that the informant in his fardbeyan has stated that when he returned to his house at 3 p.m. he came to know about the occurrence from his wife and his brother Ghaturbhuj Singh but wife of informant has not been examined and the informant in his evidence has said that he received information about occurrence at Gopalpur when Mahesh Singh (PW 1) along with other man told him about the occurrence and subsequently he has given the name of that other man as Ashok Singh, son of Yadu Nandan Singh. It is true that there is aforesaid discrepancy in the fardbeyan and in the evidence of informant but admittedly informant is not eye witness to the occurrence and, therefore, we do not find that this contradiction in the statement of informant in the fardbeyan and in his evidence in Court in any way affects adversely the case of prosecution. 16. It is true that there is aforesaid discrepancy in the fardbeyan and in the evidence of informant but admittedly informant is not eye witness to the occurrence and, therefore, we do not find that this contradiction in the statement of informant in the fardbeyan and in his evidence in Court in any way affects adversely the case of prosecution. 16. Learned counsel of appellant further argued that Dr. Ram Narayan Singh (PW 14), who is said to have held autopsy on the dead body of deceased, in his evidence, has said that injuries which he found on the body of deceased were possible when both assailant and victim were in parallel position whereas evidence of Mahesh Singh (PW 1) is that appellant after standing up fired from his pistol and in view of his evidence, the injuries found on the dead body of deceased cannot be attributed to the appellant. We are unable to accept this argument. The allegation against appellant is that he fired from his pistol. Even if at the time of firing the appellant was in standing position and deceased was sitting by the side of him, injury on the dead body of deceased is possible because it was surrounded by blackening and charring and it is not the case of prosecution that firing at the deceased was made from height. Learned counsel appearing on behalf of appellant has further argued that place of occurrence as given by the I.O. in his evidence does not tally with the place of occurrence as stated by prosecution. The case of prosecution is that occurrence took place at the darwaja of appellant. The I.O. in para 5 of his evidence has said that place of occurrence is a place from the northern angle of east of an open place in front of the house of Amir Prasad Singh. Informant (PW 12) in his evidence has said that Mahabir Singh, father of appellant and Amir Prasad Singh have joint darwaja although their houses are separate. In the inquest report it is clearly mentioned that the dead body was found in front of the darwaja of Mahabir Singh towards south of road. So we find that there is no ambiguity on the point of place of occurrence. In the inquest report it is clearly mentioned that the dead body was found in front of the darwaja of Mahabir Singh towards south of road. So we find that there is no ambiguity on the point of place of occurrence. Learned counsel of appellant has also argued that Ram Sanjiwan Singh (PW 6), in his evidence, has said that deceased and appellant were not on talking terms on account of matter of place of running a school and Chaturbhuj Singh (PW 8). uncle of deceased, in para 12 of his evidence has also said that deceased and appellants were not on talking terms and in this view of the matter, the case of prosecution that deceased went to the darwaja of appellant on his call for playing cards does not seem to be true and probable. It is true that aforesaid two witnesses have said that appellant and deceased were not on talking terms to each other but the informant (PW 12) in para 22 of his evidence has said that there were differences between the appellant and deceased since 1-1/2 months prior to occurrence but no quarrel had taken place between them and they both were on talking and visiting terms with each other and in his presence also they had talked to each other and appellant had asked the deceased to shift his school at the old place. In view of this evidence of informant we do not find anything unusual in the case of prosecution that the deceased on the request of appellant went to his darwqja for playing cards specially when the time was of Holi festival as deposed by the I.O. 17. Considering the entire evidence on record we find that prosecution has proved the charges under Section 302, IPC and 27 of Arms Act against the appellant beyond all reasonable doubts and we find no reason for disturbing the finding of the Court below. 18. In the result, this appeal is dismissed. The judgment and order of the Court below convicting and sentencing the appellant is hereby confirmed. The appellant who is on bail is directed to surrender before the Court below for serving out the remainder of sentence passed against him. Bal Krishna Jha, J. 19 I agree.