Judgment BRAJ NANDAN PRASAD SINGH, J. 1. Sometimes people do suffer for their goodness and it was no in case of deceased Jagdish Yadav too who, in his pious object to pacify the assailant, Suffered on slaught and met his tragic end. This takes us to an incident which happened in village Pattan on 20th March. 1994. Allegedly, on 20th March, 1994, a meeting of community had been convened in the Primary School to discuss some domestic issue of the community, and shortly after deceased Jagdish Yadav left venue of panchayati for his house, that he was informed by Vidya Prasad Yadav (PW 2) about his son being assaulted by appellant and others. Deceased Jagdish Yadav and others rushed towards house of the appellant and questioned him for his action, pursuant to which appellant and Krishnanand, Yadav took up arms and fired shots on Jagdish Yadav which hit abdominal region of Jagdish Yadav, the deceased, who while fighting loosing battle for his survival, rendered his fardbeyan at 11 p.m. on 20th March, 1994 at Sadar Hospital, Munger. 2. After Police was set in motion, investigation commenced, and during investigation, that followed, Police Officer took statement of a number of witnesses, visited place of occurrence, noticed incriminating articles there, got autopsy held over the dead body of the deceased, took steps for apprehension of the assailants and on conclusion of investigation, laid charge sheet before the Court. Guilt of the appellant was sought to be established by the State, with the aid of 13 witnesses, examined at trial, and those examined at trial, include family members of the deceased, the doctor. Police Officer and host of other witnesses. 3. Defence of appellant and others at trial had been that the member of prosecution party had made abortive bid to kill appellant for which Naya Ram Nagar P.S. Case No. 30/94 was instituted against deceased Jagdish Yadav and others and only to counter allegations attributed to them the prosecution had brought in existence the instant case. Defence had chosen to examine two witnesses at trial. However, trial Court on meticulously appreciating evidence of the witnesses, while negativing plea of innocence of the appellant, and acquitting Satya Prakash Yadav, who too was put on trial with the appellant, recorded verdict of guilt under Section 302 of the Indian Penal Code (IPC) against the appellant and sentenced him to suffer-rigorous imprisonment for life. 4. However, trial Court on meticulously appreciating evidence of the witnesses, while negativing plea of innocence of the appellant, and acquitting Satya Prakash Yadav, who too was put on trial with the appellant, recorded verdict of guilt under Section 302 of the Indian Penal Code (IPC) against the appellant and sentenced him to suffer-rigorous imprisonment for life. 4. At the outset, we consider it proper to state some salient features of the proceeding. Though four persons were sought to be prosecuted at the threshold. Dinesh Yadav absconded, pursuant thereto though three persons including appellant were put on trial, Krishnanand Yadav absconded in the midst of trial and it is how that only appellant and Krishnanand Yadav continued to be on the record till conclusion of the trial. 5. Since manifold contentions were raised at Bar, a brief resume of the narration made by the witnesses may be useful to appreciate them. First, we may notice positive finding recorded by Dr. Haider Imam Ansari (PW 10), who held autopsy over the dead body of the deceased on 21st March, 1994. Though the doctor found as many as five injuries on the person of the deceased, he noticed that injury Nos. (iii) and (iv), which were wounds of entry and wound of exit on the arm, were communicating injuries. The doctor also noticed one surgical wound with drainage fixed into it on right side of chest laterally. On removal of drainage a firearm wound of entry with inverted margin was found. Though the injuries in estimation of the doctor were ante mortem in nature caused by firearms, cause of death was haemorrhage and shock following entra abdominal injuries. The doctor, however, in response to question put by the defence, opined that all the five injuries were caused by single shot. 6. We may now notice some of the objective findings recorded by the Police Officer who happens to be Raj Ballabh Singh (PW 12). He visited village Pattan on receipt of information about incident, and as injured had been taken to Munger, he visited Sadar Hospital, Munger, where he recorded fardbeyan of Jagdish Yadav. He took steps for apprehension of the assailants, and in course of search of the house of the appellant, seized live cartridges from different places of his house for which a separate case had been registered. He took steps for apprehension of the assailants, and in course of search of the house of the appellant, seized live cartridges from different places of his house for which a separate case had been registered. Place of occurrence, as was found by the Police Officer, was a lane from where house of Mundrika Yadav, the appellant, situates at a distance of 30-45 ft. Though blood drops were visible at the place of occurrence, but due to trampling of the place, it could not be seized, marks of violence on the wall of the house of Ramanand Yadav was also visible. The case was supervised by the superior Police Officer. The Police Officer states to have received fardbeyan of Pradeep Yadav and also the inquest report of deceased Jagdish Yadav from Barari Police Station, pursuant to which on conclusion of investigation, he laid charge-sheet before the Court. 7. A brief resume of the ocular testimony of witnesses can also be outlined. Sevasant Yadav (PW 1) happens to be son of the deceased. He was in panchayati and shortly after the meeting was over, Vidya Prasad Yadav came running and informed that the appellant and Krishnanand had assaulted his son. Thereafter, pouches including the deceased went to the appellant and reprimanded him, pursuant to which Krishanand Yadav fired shot in the abdominal region of Jagdish Yadav followed by another shot by the appellant in arm of the deceased, who dropped injured. Though injured was taken to hospital, but he succumbed to the injures. Vidya Prasad Yadav (PW 2) shortly after conclusion of meeting was going to his house. However, he shortly returned to the venue of meeting the informed persons about appellant and others assaulting his son Sanjiv Kumar. The witness says that shortly thereafter, Jagdish Yadav along with others went there and questioned the assailant for his action. Then appellant while exhorting others, fired shots which hit arm of the deceased followed by another, shot by Krishnanand Yadav by which deceased sustained injuries in his abdominal region and dropped injured. Others, who were present there, threatened to assault. Pradeep Kumar (PW 3) too states that after conclusion of meeting, while he was going towards house, some persons came running and informed about assault, pursuant to which deceased Jagdish Yadav along with others went there and saw appellant exhorting Krishanand Yadav for assault. Others, who were present there, threatened to assault. Pradeep Kumar (PW 3) too states that after conclusion of meeting, while he was going towards house, some persons came running and informed about assault, pursuant to which deceased Jagdish Yadav along with others went there and saw appellant exhorting Krishanand Yadav for assault. The witness further says that Krishnanand fired first shot on the abdominal region of Jagdish Yadav followed by another shot fired by appellant on his arm, when he dropped injured. Others who accompanied assailant threatened to shoot who dared to resist. The injured was surgically operated upon in the hospital, but he succumbed to the injuries. We may now advert to the testimony of Sanjiv Kumar alias Pappu (PW 4) who too claimed to be ocular witness to the killing of the deceased after conclusion of the meeting. The witness states that while he was going appellant and others assaulted him. His father, who too was returning from meeting, having witnessed assault on him, went back and informed persons in the meeting about the incident, pursuant to which deceased Jagdish Yadav, who claimed to be there along with others, reprimanded appellant who having exhorted Krishnanand Yadav, fired shots on arm of Jagdish Yadav, preceded by shot, fired by Krishnanand Yadav when Jagdish dropped injured. The witness say that Satya Prakash and Dinesh threatened those, who wanted to lift Jagdish Yadav from the site. 8. We may take notice that while PWs 5 to 9 had turned volte face to the State, though PW 11 was a witness to the recovery of front part of the cartridges from a place near window and door of Ramanand Yadav, no such objective finding has been recorded by the Police Officer about seizure of these incriminating object from a place near the house of Ramanand Yadav. 9. Among defence witnesses, DW 1 Syed Iqbal Taiyab Hasan Raza stated to have examined admitted signature of the deceased with his disputed signature on fardbeyan and in his view, since both the signatures were at variance from each other, they were not of the same person. Damodar Prasad Yadav (Dw 2) states that Sanjiv Kumar alias Pappu was with him while he was witnessing a volley ball match. The witness acknowledges that he had come to depose at the instance of the appellant. 10. Damodar Prasad Yadav (Dw 2) states that Sanjiv Kumar alias Pappu was with him while he was witnessing a volley ball match. The witness acknowledges that he had come to depose at the instance of the appellant. 10. Manifold contentions were raised on behalf of the appellant to assail propriety of findings recorded by Court below and the foremost criticism that has been levelled by the learned counsel for the appellant was that though the witnesses were stating about appellant and Krishnanand Yadav having fired two successive shots on the deceased, if positive finding recorded by the doctor was to be given any credence, all injuries noticed on the person of the deceased were result of one shot, and on these premises it is sought to be urged that narrations made by the persons who claimed to be ocular witnesses had to be discarded on this score alone. The finding recorded by the doctor, it appears, has not been appreciated in proper perspective. We have noticed, as has been the finding of the doctor, that injury No. (iii) was the wound of entry and that apart, injury No. (v) too was wound of entry and considering these findings recorded by the doctor, no conclusion possibly can be arrived at that all the injuries were impact of one shot and even if opinion of the doctor is judged on its face value we may state, which has also been reiterated by catena of decisions of Court that even if there were variance in finding of the doctor and narration made by ocular witnesses, finding recorded by doctor would not override the ocular testimony of witnesses who had witnesses the incident with their naked eyes, The matter can be looked from another angle also. Since both the shots appear to have been fired in quick succession, as such witnesses would not have been in a position to state which shot hit the deceased on a particular spot of the person of the deceased. If shot has been fired or firearm has been used but shot did not hit the victim, it may be also on account of misfiring of erratic firing, and from this angle also we are of the view that the testimony of witnesses cannot be discarded only because the doctor has recorded finding that all the injuries were result of one shot. 11. 11. Yet it is urged that since the injured Jagdish Yadav had suffered injuries on chest, he was not expected to even make speech for recording his fardbeyan by the Police Officer and on this score too, we would negate the submission for the simple reason that though the doctor was examined by the Court, no such question was ever asked by the defence, so as to persuade the Court to believe that injured was not in position to make any speech. In quick succession it was urged that if concluding lines of the fardbeyan were taken into consideration, that would persuade one to believe that the writings were not that of Jagdish Yadav as mode of writing was quite different, and on this aspect our attention has been drawn to the evidence of DW 1 and on this score too we are of the view that even if concluding part of the fardbeyan was excluded from consideration that did not bring significant changes in the matter for exclusion of the appellant as assailant, and that apart, even if there has been finding of the expert about there being variance between the two signatures of the deceased, this fact cannot be lost sight of that some times writing of the same person may differ. Finding recorded by the Court below was also assailed on premises that while genesis of the incident was said to be assault on Sanjiv Kumar alias Pappu but since there has been no finding of the doctor about assault on him, the genesis of the case was entirely lost but since Sanjiv Kumar alias Pappu says that he was assaulted only with fists and slaps, in that backdrop, non-examination of Pappu doctor did not necessarily lead to conclusion that genesis of the incident alleged by prosecution was unfounded. 12. While commenting on credibility of witnesses, learned counsel submits that while PW 1 happens to be son of the deceased, PW 3 is cousin, and about credibility of PWs 2 and 4, it is urged that they were enimical to the appellant, there being land dispute between Mundrika and Pappu Yadav. We have considered these submissions and found that for animosity alone, reliability of PWs 2 and 4 would not be questioned since they have been found to be credible, and as for PW. We have considered these submissions and found that for animosity alone, reliability of PWs 2 and 4 would not be questioned since they have been found to be credible, and as for PW. 1 and PW 3, though they were family members of the deceased, they were not suggested to be enimical to the appellant and for that reason they are not expected to falsely implicate the appellants, sparing the actual assailants and that apart their presence too at the place of occurrence could not possibly be doubted. 13. True it is that though host of other witnesses had turned volte face to the State, but for that reason alone their testimony could not be discarded wholly, as we have found even hostile witnesses stating about holding of panchayati, and we may refer to the evidence of PW 5 and PW 8. As for other hostile witnesses, we find that PWs 6, 7 and 9 also stated about Jagdish Yadav having sustained gunshot injury after holding meeting in primary school. Though their evidences are ancillary in nature, yet they lend assurance to the prosecution version about Jagdish Yadav having suffered gun shot injury shortly after conclusion of meeting. Credibility of PW 1 was criticized also on premises that as on his own showing, PW 1 was not a witness to the recording of fardbeyan by the Police Officer of the deceased which primarily shows that he had not accompanied the injured father to hospital and was against normal conduct of a son, but we have found that presence of PW 1 cannot be doubted in view of his evidence and also evidence of PW 3, as even PW 3 says that he was one of those who accompanied the deceased father to the hospital. Though it was not stated in express words by PW 1 that he too participated in the meeting, he stated about his presence in the primary school where panchayati had been convened. Since much has been argued about a different version of incident appearing in the fardbeyan of Pradeep Yadav though the Investigating Officer acknowledges about receipt of fardbeyan of Pradeep Yadav but we have noticed that his fardbeyan was not brought on the record, and hence, it cannot be given credence. 14. Since much has been argued about a different version of incident appearing in the fardbeyan of Pradeep Yadav though the Investigating Officer acknowledges about receipt of fardbeyan of Pradeep Yadav but we have noticed that his fardbeyan was not brought on the record, and hence, it cannot be given credence. 14. Other argument, canvassed, was that considering testimony of ocular witness to be true on face value, the appellant resorted to firing when deceased intervened, while he was assaulting Sanjiv Kumar alias Pappu and it was most unlikely that the appellant would have reacted so violently on such petty matters, and on this score too we would negate submission as it is difficult to predict human nature, since all persons do not react similarly, as while some persons remain cool even on witnessing atrocious crime committed, there are persons who react violently. 15. Having considered testimony of witnesses and also finding recorded by the doctor, we are of the view that the fact that the deceased died homicidal death was not in dispute, for which there has been express accusations attributed to the appellant. Now other question which merits consideration was about sentence against the appellant. Accusations were attributed to both, appellant, and Krishnanand Yadav for firing shots on the deceased, and if positive finding recorded by doctor was to be given any credence, the fire shot fired by Krishnanand Yadav, on the lung, was cause of death. While we are conscious that the appellant was not suggested to be the author of fatal injury, are yet not oblivious that he was one of the authors of injury found on the person of the deceased which makes him vicariously liable by legal fiction lor the killing of Jagdish Yadav with the aid of Section 34, IPC. Since the appellant stood charged also under Section 302/34, IPC, we do not feel difficulty in convicting the appellant under Section 302/34, IPC, which in the circumstances would not prejudice the appellant and we may profitably refer to the celebrated decision of the Apex Court reported in AIR 1956 SC 116 , Willie (William) Slaney V/s. State of Madhya Pradesh, and accordingly while upholding finding of guilt, we convict appellant under Section 302/34, IPC and confirm sentence awarded to him by the trial Court. The appeal bring meritless, is accordingly dismissed. SACHCHIDANAND JHA, J. 16 I agree.