Judgment Prabhat Kumar Sinha and Chandra Mohan Prasad JJ. 1. For causing death of Radhe Shyam Mahto by firing upon him, appellant Manoj Kumar was convicted under section 302 of the Indian Penal Code (the Code, in short) whereas appellants of Criminal Appeal nos. 284 and 296 of 2000 were convicted under section 302 read with section 34 of the Code, all sentenced to imprisonment for life. Appellant Manoj Kumar was further convicted under section 27 of the Arms Act and, sentenced to rigorous imprisonment for ifive years, both sentences in his case to tun concurrently. 2. The case of the prosecution, as revealed in the fardbeyan of Madan Prasad (P.W. 4), father of the deceased, which is Exhibit-5, briefly stated is that at about 7.30 P.M. on 10.12.1995 while he was in his shop situated at his Darwaza, all the appellants came and Manoj Kumar demanded half kilograms of sugar candy (Misri) but when the informant weighed the entire sugar candy available with him that came to only 125 grams which he gave to Manoj Kumar but he refused to pay the amount because of short supply. Other three appellants asked the informant to give the sugar candy assuring that the price would be paid. At that time Radhe Shyam came there and enquired as to what was going on at which Manoj Kumar turned, and abusing him told that even though sugar candy was supplied short to him, price was being demanded and threatened that he would kill them. Radhe Shyam replied that though they had not done anything wrong, but if he wanted to kill them he could do so. On that Manoj handed over the sugar candy to his brother, appellant Ram Bachan Prasad, took out a pistol from his waist and fired at the chest of Radhe Shyam who fell down. The informant caught hold of Manoj Kumar but other three appellants exlrictated him from the grip of the informant and all fled away 3. The defence, so far Manoj Kumar is concerned, as coming out from the suggestion thrown to P.W. 2, Kusum Kumari, daughter of informant is that on the fateful night wife of Manoj Kumar was admitted in Jehanabad hospital where she gave birth to a child and Manoj Kumar was present in the hospital. The defence, so far Manoj Kumar is concerned, as coming out from the suggestion thrown to P.W. 2, Kusum Kumari, daughter of informant is that on the fateful night wife of Manoj Kumar was admitted in Jehanabad hospital where she gave birth to a child and Manoj Kumar was present in the hospital. P.W. 3, Shyam Pari Devi was suggested that the appellants were innocent but the deceased had fallen in bad company and ased to sell wine which he was asked to discontinue by the leaders of Indian People Front (I.P.F.) and P.W. 4, Madan Prasad, was suggested that the deceased was killed by the terrorists and drunkards but the appellants were falsely implicated because of previous enmity. About previous enmity some suggestions were thrown by the defence in course of cross-examination of P.W. 4 where it was put to him, though denied by the witness, that at the instance of the deceased Indian People Front had called a meejting on account of rape committed by appellant Manoj Kumar upon daughter of one Jhigan Mahto leaving behind his sandal after rape, which was identified by the deceased in the meeting of Indian People Front people resulting in punishment to Manoj Kumar. 4. Now coming to the evidences, P.W. 2 (Kusum Kumari, daughter of the Informant), P.W. 3 (Shyam Pari Devi, wife of informant) are eye-witnesses besides the informant. PW. 1 and PW. 6 are formal witnesses and P.W. 7, Anju Devi is wife of the deceased who has lent a supporting hand to the prosecution though did not claim to be a witness to murder. P.W, 8, Dr. Mukesh Kumar Singh had conducted the post mortem, whereas P.W. 9, Ramesh Kumar Sharma, was the Investigating Police Officer. 5. First the evidence of eye-witnesses may be seen. But before that the topogra- phy of the place of occurrence may be kept in mind as having come into the evidence including that of the Investigating Police Officer. The shop of the informant was situated at the outer portion of the house, attached to the house though there was no entrance to the inner house from the shop itself, but there was another entrance to the house. A person coming to the shop from inside of the house would come first out from that entrance and then would go to the shop having a north facing door. A person coming to the shop from inside of the house would come first out from that entrance and then would go to the shop having a north facing door. In another portion of that shop was the place where the informant kept his animal for which there was another entrance. While considering the evidence of witnesses first the prosecution case against Manoj Kumar will be dealt with and, thereafter, the case of other appellants. 6. Kusum Kumari, P.W. 2, who was assessed to be eleven years old on 4.7.1996, the date of her evidence, has fully supported the prosecution case. She said that about 7.30 P.M. her brother, Radhe Shyam was taking meal and father was at the shop when on hearing abuses at the shop her brother washed his hands and went to the shop, she and her mother following him, and her Bhabhi, wife of the deceased, also came to the shop. They saw Manoj Kumar abusing the father. On being protested by brother, Manoj Kumar told that instead of half kilogram of sugar candy only 125 grams was given and even then money was demanded threatening brother to kill him with fire-arm. Brother said that if he wanted to kill him he could do so though he had done no wrong at which Manoj Kumar took out a pistol from his waist and fired at her brother which hit at his chest who fell down whereafter her father caught Manoj Kumar but other three appellants rescued him and then they all fled away. 7. Similar support has come from P.W. 3, Shyam Pari Devi mother of the deceased, who also claimed that on hulla at the shop her son, who just had sat for taking his meal, washed his hands and came out and following him she and her daughter went to the shop where altercation was going on and also said that, handing over sugar candy to his brother, Ram Bachan Prasad, Manoj Kumar took out his pistol from his waist and killed Radhe Shyam with that, hitting him in the chest. She also supported that while he was fleeing away her husband had caught Manoj Kumar but other three appellants had rescued him. She also supported that while he was fleeing away her husband had caught Manoj Kumar but other three appellants had rescued him. P.W. 4, Madan Prasad, the informant, has similarly supported his case fully as given in the first information report including how Manoj Kumar had killed his son and how when he had caught Manoj Kumar, the other three appellants had extricated him before fleeing away. He also supported that soon after his son had come to the shop his wife and his daughter also had come and after gome time, his daughter-in-law (P.W. 7) had also come. 8. Support also came from P.W. 5, Deo Rani Devi, a neighbour who also said that by relation she happened to be the grand-mother of Radhe Shyam, the deceased. She said that at 730 P.M. while she was taking her meal she heard firing sound and thereafter sound of cry and she came running to the house of the informant and saw that Radhe Shyam was murdered in the shop and the ladies of the house were crying who all said that Manoj Kumar had killed him and had fled away, they also naming other three appellants who were also in the shop at that time. She admitted that when she reached the shop of the informant none was there except the family members of the informant. But, thereafter, many people frorn the village and from adjoining villages had come. Though this witness was asked as to whether or not she had told Police that the family members of the informant had told that Manoj Kumar had fired at Radhe Shyam, which she claimeid to have said, but confirmation of that was not taken from the Investigating Officer when he took the witness stand. Though her evidence was claimed to be hearsay but that would be admissible under section, 6 of the Indian Evidence Act. 9. P.W. 7, Anju Devi, wife of the deceased about whom the; witnesses had said that she also had cbme to the shop but belatedly, (evidence of the informant and the evidence of P.W. 3), said that while her husband was taking meal he heard a firing sound but thereafter volunteered that her husband came outside the house and went to the shop and asked Manoj Kumar as to what had happened, her husband having been followed by her mother-in-law and sister-in-law. She said that then she also heard a firing sound whereafter she came to the shop where she found her husband dead with wound in the chest and mother-in-law said that Manoj Kumar had fired upon her husband. She also fell unconscious. However, in cross-examination she also said that after she gained consciousness her mother-in-law had told her about the incident but she also claimed (paragraph 8) that in the night of incident itself her statement was recorded by the police. Therefore, there is sufficient support in the prosecution evidence to prove beyond doubts, about an altercation having taken place at a seemingly trifling matter and Radhe Shyam intervening while Manoj Kumar was abusing the informant, Manoj Kumar then threatening the deceased and, thereafter, taking out pistol from his waist and firing in his chest, killing him. 10. Before coming to the arguments of the learned counsel for the appellants, evidence of P.W, 8, the doctor may also be seen. P.W. 8 has supported the prosecution case finding a fire-arm wound in the chest with blackening marks and another wound on the back, left side, with torn margin. About the reason for death the opinion of doctor is as follows : "In my opinion, the death is (sic) happened due to chest wound caused by gun shot injury leading to haemorrhagic shock leading to cardiac respiratory failure and death." It is this evidence that has come under attack of the learned counsel for the appellants submitting that the doctor had not clearly stated as to which of the two wounds was wound of entry and the wound of exit, therefore it could not be ruled out that the wound on the back coulb have been the wound of entry. In the evidence the doctor has not said, nor in the the post mortem report, Exhibit-4, as to which wound had inverted and which everted, margins. But it is clear from his evidence that he had considered the wound in the chest to be the cause of death, thereby treating that wound to be the wound of entry. 11 Evidence of the doctor is just evidence of a witness in which the doctor after finding the injuries on the body, external and internal expresses his opinion about its nature or about the cause of death. The evidence of the doctor has to be read in harmony with the evidence of eye-witnesses. 11 Evidence of the doctor is just evidence of a witness in which the doctor after finding the injuries on the body, external and internal expresses his opinion about its nature or about the cause of death. The evidence of the doctor has to be read in harmony with the evidence of eye-witnesses. When the evidence of ocular witnesses clearly establishes that the assailant had fired a shot hitting a particular portion of the body of the deceased, and if the doctor also has found a wound at that particular spot then the medical evidence should be treated to be conforming to the ocular evidence. In this particular casie, in view of the evidence of eye-witnesses and the evidence of the doctor clearly opining that the death was caused because of the wound in the chest, it should be treated that the medical and ocular evidence are in harmony supporting each other and the wound on the back was wound of exit. 12. Learned counsel for the appellants, again on the basis of the medical evidence has argued that the doctor had said that he had found completely digested food in the stomach. Learned counsel pointed out evidence of P.W. 2 in that regard, who said that the deceased was eating rice and pulse in his room but he could not eat the entire food, some having been left out (when he rushed to the shop). But she said that he was eating in room while other witnesses had said that he was eating outside, at the Osara or in the Aangan. However, some discrepancy about the place of eating prior to the incident is not such which could affect a well proven case. So far eating of the meal is concerned, PW, 3 said that her son had just sat for taking his meal in the Aangan (paragraph 10), further telling during cross- examination (Paragraph 58) that at the time of occurrence her son had just sat for taking his meal but before he could eat anything he had washed his hands and had gone. P.W. 7, who had given food to her husband, said that he was taking food at Osara and further said (paragraph 6) that the meal was kept in front of her husband and he had just mixed pulse with the rice, denying that he had already taken his meal. P.W. 7, who had given food to her husband, said that he was taking food at Osara and further said (paragraph 6) that the meal was kept in front of her husband and he had just mixed pulse with the rice, denying that he had already taken his meal. Therefore, from the evidence of these two witnesses including the witness who had served meal to her husband it is clear that at that time her husband, the deceased, had just sat for taking meal but could not eat owing to the quarrel in the shop where he eventually went. Therefore, we do not find that this argument on behalf of the appellants has any force. 13. Learned counsel for the appellants submitted that though the shop and the house was in the village with many houses around, but no independent witness had been examined in this case which raised doubts about the veracity of the prosecution case. 14. In that regard evidence of some of the witnesses may be seen. PW. 2 said (paragraph 42) that while they were at the entrance of the shop, no outside person had gone inside. It may be noted here that it has sufficiently come into evidence that the ladies of the family had seen the occurrence while standing at the entrance whereas the deceased already had gone inside the shop. She further said in cross- examination (paragraph 51) that on their bulla no one from the village had come though some people residing around had come. From her evidence it is clear that they had come only after they had raised hulla and it has come that they had raised hulla when the firing had already taken place. P.W. 3 said (paragraph 13) that the son had gone inside the shop and they (ladies) had stood at the Chaukhat of the shop and she named one Lallan, her nephew, who had come but said that he had come after her son already had suffered the fire-arm injury. She further stated (paragraph 19) that while she was at Chaukhat none from the village had come. It has also come in the evidence that outside people had come after the incident and in that regard P.W. 3 said that though she could not say as to who had come but she remembered that the Wife of Babu Ram (P.W. 5) had come. It has also come in the evidence that outside people had come after the incident and in that regard P.W. 3 said that though she could not say as to who had come but she remembered that the Wife of Babu Ram (P.W. 5) had come. This witness in cross-examination also said that at the time of occurrence no other customer was inside the shop. Further she said (paragraph 59) that when on hulls she came to the shop none else from outside was outside the shop. 15. Likewise, P.W. 5 jhas said, as already seen, that when she had gone to the shop only family members of the informant were present there P.W. 4 said (paragraph 32) that after the miscreants had fled away, P.W. 5 and wife of Kameshwar Mahto as well daughter of Paras Nam had come. This witness admitted that to the north of the shop there was house of his brother, Sadan, but said that though Sadan himself did not come, his family members had come after the occurrence, that is, Lallan. There fore, from the evidence on the record it is clear that at the time of occurrence none was present at the shop or near it except the miscreant and the informant and his family members. It may also be noticed here that occurrence is said to have taken; place at about 7.30 P.M. in a winter-night, therefore it was hardly likely that many-persons would be outside. When the occurrence had taken place in a shop attached to the house, the family members residing in that house would be the most natural witnesses. Therefore, on account of nobody coming there at the time of occurrence and for no independent witness supporting the prosecution case so far occurrence was concerned, no adverse inference can be drawn. 16. Learned counsel also laid some stress to the fact that though entire incident was said to have taken place on account of selling of sugar candy but witnesses denied, when asked, that they had seen any sugar candy at the place of occurrence. That no sugar candy would be available in the shop is evident from the fact that the prosecution case, as supported by witnesses, is that on demand of sugar candy by Manoj Kumar the informant had weighed the entire sugar candy kept inside a jar which was handed over to Manoj Kumar (F.I.R.). That no sugar candy would be available in the shop is evident from the fact that the prosecution case, as supported by witnesses, is that on demand of sugar candy by Manoj Kumar the informant had weighed the entire sugar candy kept inside a jar which was handed over to Manoj Kumar (F.I.R.). P.W. 4 also supported that and P.W. 3 said that Manoj Kumar who had sugar candy in his hand had handed that over to his brother Ram Bachan Prasad and thereafter fired from his pistol. Obviously, therefore, the sugar candy was in possession of Manoj Kumar, subsequently given to Ram Bachan Prasad who, while fleeing away, had taken away the sugar candy with them. Therefore, it was natural that no sugar candy was found in the shop. 17. Learned counsel for the appellants also went into minute details to argue as to how the appellants would not be the assailants because, as per evidence, Manoj had fired at Radhe Shyam by turning to north, i.e., with back to the informant, still the informant claimed that he had caught Manoj from the front. However, it is too trifling a point to give any anxious thought as to how under such circumstances the informant said (paragraph 65) that. He might have gone in front of assailant or the assailant might have turned after fifing. 18. It was also pointed out that P.W. 7 had first said that her husband, while going to take meal, had heard firing sound but there could not have been any firing sound at that time. However, this particular piece of evidence is in isolation and just after saying that P.W. 7 had again said that her husband had gone out. She also claimed that thereafter she had heard a firing sound. Obviously, only one shot was fired as per overwhelming evidence. 19. The Investigating Officer had found that the shop of the informant was; the place of occurrence and he has given full details of the place. He also found copjious blood at the place of occurrence which he had seized. The evidence of the Investigating Officer about the place of occurrence lends support to the prosecution case. 20. Learned counsel, lastly, argued that the motive as given by the prosecution was too trivial to impel any one to commit a crime such as murder. He also found copjious blood at the place of occurrence which he had seized. The evidence of the Investigating Officer about the place of occurrence lends support to the prosecution case. 20. Learned counsel, lastly, argued that the motive as given by the prosecution was too trivial to impel any one to commit a crime such as murder. Murders are known to have been committed for some major reasons and, some times for more trifling ones. What was motive at that time for Manoj Kumar to fire at Radhe Shyarr is difficult to say, if he had one. The investigating Officer has said (paragraph 13) that in course of investigation it also come cut that some love affairs was involved. However, there is no material on the record to even assume that any such love affair could have been reason for the murder. Moreover, as already stated, in cross-examination of RW. 4 the defence itself had brought animus on part of the assailant towards Radhe Shyam when that witness was asked about Indian People Front convening a meeting for rape upon a girl, in which a sandal left out at the place of occurrence was identified by the deceased to be belonging to Manoj Kumar for which Manoj was punished. A sudden spark in a person having a volcanic mind can also result in such an incident. But when the murder is proved by ocular evidence, the search for motive is a non-issue, even absence of whcih will not in any way affect the prosecution case. 21. Lastly, learned counsel argued that this case even against Manoj Kumar would come under Exception (4) of Section 300 of the Code and would amount to a homicide not amounting to murder. In our opinion, appellant Manoj Kumar can hardly be given benefit of Exception (4). There was hardly any reason for the appellant Manoj Kumar to indulge into a sudden fight in the heat of passion. Nothing whatsoever was done by the victim to incur his wrath. From the evidence it appears that the appellant without any reason had started abusing the informant for short supply of sugar candy. When the deceased intervened he did not say anything to give rise to a fight. Rather, there had been no fight at all. It was unilateral action of the informant that ultimately resulted in the death of Radhe Shyam. When the deceased intervened he did not say anything to give rise to a fight. Rather, there had been no fight at all. It was unilateral action of the informant that ultimately resulted in the death of Radhe Shyam. In an earlier judgment by this court in which one of us was also a member, in connection With SUCh Situation it was observed that a person with a volcanic mind, ready to erupt at slightest pretext if commits such a heinous crime, cannot be given benefit of Exception (4) of section 300 of the Code. The mentality of this appellant is apparent from the fact that he was used to carry a loaded fire-arm with him. 22. Therefore, in our opinion the appellant cannot be given benefit of Exception (4), as aforesaid. In our opinion appellant Manoj Kumar has been rightly convicted by the learned lower court under section 302 of the Code as well under section 27 of the Arms Act. The Appeal must fail as against Manoj Kumar. 23. In so far as the other three appellants are concerned, the evidence on record is that they had accompanied Manoj Kumar to the shop of the informant where he had apparently gone to make a purchase. The fire-arm was with Manoj Kumar but that was concealed in his waist. There is nothing on record to show that any other appellant had knowledge that Manoj Kumar had gone there with a loaded fire-arm. No witness has assigned any role of any of the three appellants in the murder of Radhe Shyam. They appear to be as much a silent spectator in the episode as the witnesses were. The only role they have played, as per evidence, is that when the informant had caught hold of Manoj Kumar after the murder, they had helped Manoj Kumar to extricate himself from the clutches of the informant and to flee away. Such action on their part may be an offence punishable under section 225 of the Code. But in so far as offence of murder is concerned, the evidence on the record does not exhibit any common intention or meeting of the minds amongst them as commission of murder would appear to be unilateral act of Manoj Kumar. Such action on their part may be an offence punishable under section 225 of the Code. But in so far as offence of murder is concerned, the evidence on the record does not exhibit any common intention or meeting of the minds amongst them as commission of murder would appear to be unilateral act of Manoj Kumar. These three appellants, therefore, in our opinion, namely, Ram Bachan Prasad, Sunil Prasad and Baran Prasad could not have been convicted for the murder of Radhe Shyam with the help of section 24 of the Code in that view of the matter, they must be acquitted of this charge. It is also not possible to covict them for the offence that they appear to have committed as per evidence. They have not been charged for rescuing Manoj Kumar when the informant lawfully wanted to arrest him and had caught him. An offence under Section 225 of the Code is an offence quite distinct from the offence punishable under section 302 of the Code and cannot be said to be an offence minor to section 302. Therefore, they cannot be convicted with the help of section 222 of the Code of Criminal Procedure. In that view of the matter, appellants Ram Bachan Prasad, Sunil Prasad and Baran Prasad have to be acquitted and set at liberty. 24. In the result, Criminal Appeal No. 376 of 2000, preferred by Manoj Kumar, is dismissed. Criminal Appeal nos. 284 and 296 of 2000 are allowed and the conviction of the appellants by the learned trial court is set aside and the three appellants, namely, Ram Bachan Prasad, Sunil Prasad and Baran Prasad are set at liberty. They an on bail. They will be discharged from the liabilities of their bail bonds. 25. Sri Arun Kumar Tripathi, Advocate had argued in Criminal Appeal no. 296 of 2000 as Amicus-Curiae. Remuneration of Sri Tripathi will be paid by the Patna High Court Council of Legal Aid and Advice.