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2004 DIGILAW 568 (PAT)

Amerika Rai & Anr. Etc. v. State Of Bihar

2004-05-20

AFTAB ALAM, B.K.JHA

body2004
Judgment AFTAB ALAM & BAL KRISHNA JHA, J. 1. These three appeals relate to the common judgment and order passed by the learned Additional Sessions Judge 9th, Saran at Chapra on 7/9th July, 1999 in Session Trial No. 55 of 1996, so, they were heard together and are being disposed of by this common judgment. 2. The appellant, Chulhan Rai @ Sheo Prasad Rai, in Cr. Appeal No. 373 of 1999 has been convicted under Section 302 of the Indian Penal Code. The appellants, Sipahi Rai @ Ramjit Rai, Sanjay Rai and Mithilesh Rai, in Cr. A. No. 372 of 1999 and the appellants, Amerika Rai and Darbesh Rai, in Cr. A. No. 311 of 1999 have been convicted under Sections 302/149 of the Indian Penal Code. All the six appellants have been sentenced to life imprisonment under the aforesaid convicted sections. The appellants, Chulhan Rai, Sipahi Rai, Sanjay Rai and Mithilesh Rai, have been convicted under Section 27 of the Arms Act and sentenced to RI for two years. The appellant, Mithilesh Rai, has again been convicted under Section 307 of the Indian Penal Code and sentenced to RI for ten years. The sentences awarded to the appellants, however, have been ordered to run concurrently. 3. The case of the prosecution is that on 25.6.1995 on the occasion of marriage of Shankar Rai, the brother of the informant, Dineshwar Rai (PW 7), the baratis had gone to the house of one Dashrath Rai of Village-Ishupur, P.S. Lalganj, District- Vaishali. At the time of dwarpuja there was some altercation in between the members of both bride and bridegrooms party in course of which some members of bride side assaulted the brother of the informant. On being learnt about it the informant also fisted and slapped some members of the bride side. Further case is that because of this incident when the accused Sanjay Rai was going to janmasa after taking his cycle from the darwaja of bride, he was assaulted by some boys of the village . The marriage of the brother of the informant, Shankar Rai, was, however, solemnised. Thereafter when barat party returned to the village the brother-in-law of the bride also came to her sasural. The marriage of the brother of the informant, Shankar Rai, was, however, solemnised. Thereafter when barat party returned to the village the brother-in-law of the bride also came to her sasural. Further case of the prosecution is that on 26.6.1995 at about 11 a.m. when brother-in-law of the bride was going to the bathan of the informant for rest after taking meal the accused-appellants, namely, Amerika Rai, Darbesh Rai, Chulhan Rai @ Prasad Rai, Mithilesh Rai, Sanjay Rai and Sipahi Rai @ Ramjit Rai, started assaulting him with fists and slaps. On the order of the accused-appellant, Amerika Rai, the accused-appellant, Chulhan Rai @ Sheo Prasad Rai, brought a licensee banduk and fired 6/7 rounds at Shankar Rai, the brother of the informant and he fell down injured on the ground. In the meant time the accused-appellant Mithilesh Rai also fired 3/4 rounds from his gun causing injury to the informant in his hand, abdomen and thigh and he also fell down on the ground. Then the accused Sanjay Rai and Sipahi Rai (appellants) opened fire from their pistol. The accused- appellant Darbesh Rai with lathi was also standing there. After this incident the injured informant and his brother, Shankar Rai, were removed to the State Dispensary, Parsa, where Shankar Rai died in course of his treatment. This occurrence was witnessed by Dhaneshwar Rai, the brother of the informant, Ramesh Rai, Sheo Nath Rai and many other co-villagers. 4. On 26.6.1995 at 16.15 hours S.I. Ashok Kumar, PW 9, Officer-in-charge of Dariyapur Police Station, recorded the fardbeyan (Ext 3) of the informant, Dinesh- war Rai, son of Ram Bhawan Rai of village-Idilpur, P.S. Dariyapur, District- Saran in State Dispensary. On the basis of his fardbeyan a formal FIR (Ext. 8) was drawn up and Dariya Pur P.S. Case No. 76/ 95 dated 26.6.1995 was registered against all the six accused-appellants under Sections 302/307/324/34 of the Indian Penal Code and Section 27 of the Arms Act. After usual investigation all of them were charge-sheeted under Sections 302/307/324/ 337/323/34 of the Indian Penal Code and Section 27 of the Arms Act. After cognizance of the offence and commitment of the case all the six accused- appellants were tried and convicted in the manner indicated above. 5. The defence of the accused-appellants was a plea of innocence and false implication due to enmity. The defence examined two witnesses in support of its case. After cognizance of the offence and commitment of the case all the six accused- appellants were tried and convicted in the manner indicated above. 5. The defence of the accused-appellants was a plea of innocence and false implication due to enmity. The defence examined two witnesses in support of its case. 6. In the eventual trial the prosecution examined altogether twelve witnesses in support of its case. Out of them PW 5, Nagendra Prasad Rai, was tendered for cross-examination but nothing material could come from his mouth. PW 11, Ram Krit Pandit, Constable No. 693 and PW 12, Vijendra Prasad, are the formal witnesses. PW 12, has proved Sanha Nos. 462 and 465-466 dated 26.6.1995 which are in the pen and signature of the then officer-in-charge, Ashok Kumar, of Dariyapur Police Station (Exts. 7 to 7/2). He has also proved formal FIR which is also in the pen and signature of Ashok Kumar (Ext. 8). PW 8 is Dr. Shradhanand who had examined the informant, Dineshwar Rai, PW 9, Ashok Kumar, is the Investigating Officer of this case. PW 10 is Dr. Amar Nath Jha who conducted the autopsy on the dead body of the deceased, Shankar Rai. The remaining six witnesses, Dhaneshwar Rai, PW 1, Sheo Nath Rai, Sheo Nath Rai, PW 2, Ramesh Rai, PW 3, Ram Bhawan Rai, PW 4 Ram Babu Rai, PW 6 and Dineshwar Rai, PW 7 the informant, are the eye-witnesses to the occurrence. Out of them PW 1, Dhaneshwar Rai, and PW 7, Dineshwar Rai are the brothers of the deceased and the sons of PW 4, Ram Bhawan Rai. Shiv Nath Rai, PW 2 and Ramesh Rai, PW 3 are the brother-in-law of the deceased, Shankar Rai. PW 6, Ram Babu Rai, is the brother-in-law of the bride. 7. PW 8 is Dr. Shradha Nand who had examined the informant, Dineshwar Rai. His evidence is that on 26.6.1995 he was posted as Medical Officer, Incharge, State dispensary, Parsa. On the same day at 1.10 p.m. he examined Dineshwar Rai and found the following injuries on his person : (i) Small pea shaped wound deep to muscle on the different parts of the body. Those were : (a) on abdomen (l)(b) on pelvic (l)(c) on wrist, (d) on hand, (2)(e) on thigh of left leg, (2)(f) on the left arm. The total numbers of wound were ten in number. Those were : (a) on abdomen (l)(b) on pelvic (l)(c) on wrist, (d) on hand, (2)(e) on thigh of left leg, (2)(f) on the left arm. The total numbers of wound were ten in number. Some wounds were filling of the small pellets inside the wounds. No mark of gun smoke was found on his body. According to him the injuries were caused by firearm like gun shot within 12 hours at the time of the examination. Further in his opinion the injury Nos. 1 (a) and (b) were dangerous to life and rests were simple in nature. His further evidence is that the injured informant was referred to P.M.C.H. for better treatment. He proved the injury report in his pen and signature, Ext. 2. In cross-examination his evidence is that all injuries were possible by one shot of pellet firing. 8. PW 10 is Dr. Amar Nath Jha who held post-mortem examination on the dead body of the deceased Shankar Rai. His evidence is that on 27.6.1995 he was posted as C.A.S., Sadar Hospital Hajipur. On the same day he conducted autopsy on the dead body of the deceased, Shankar Rai and found antemortem injuries : 1. Lacerated wound inverted irregular blackend margin below right axilla 1/2" x 1/2" x chest cavity directed downward and forward (wound of entry). 2. Lacerated wound inverted irregular blackened margin right side of chest lower and lateral aspect size 1/2" x 1/" x chest cavity directed forward and inward. 3. Lacerated wound with inverted irregular blackened margin on right side of abdomen posteriarly size 1/2" x 1/2" x abdominal cavity directed forward and inward. Lacerated wound with everted irregular margin on right side of abdomen 3/4" x 1/2" x abdominal cavity communicating to injury No. 1 (wound of exit). 5. Lacerated wound with everted irregular margin on right side of abdomen near umblicus 3/4" x 1/2" x abdominal cavity communicating to injury No. 2 (wound of exit). 6. Lacerated wound with everted irregular margin in front of abdomen left side of umblicus 3/4" x 1/2" x abdominal cavity communicating to injury No. 3 (wound of exit). 7. Lacerated wound with inverted irregular blacken margin on middle portion of penis 1/2" x 1/2" through and through (wound of entry). 8. Lacerated wound with everted irregular margin in left side of penis 3/4" x 1/2" communicating to injury No. 7. 7. Lacerated wound with inverted irregular blacken margin on middle portion of penis 1/2" x 1/2" through and through (wound of entry). 8. Lacerated wound with everted irregular margin in left side of penis 3/4" x 1/2" communicating to injury No. 7. On opening cravial cavity brain is found pale. On opening the chest cavity right side of chest was found full of blood and blood clots. Third rib of right side is found fractured. Right lung is found punctured. Left lung is pale. All chambers of heart were found empty. On opening the abdominal cavity was found full of blood and blood clots. Multiple patches of small gut (Aant) and large gut and omentum were found punctured. Liver was found punctured. In his opinion all the injuries were caused by firearm and the time elapsed since death and the postmortem examination held was within 36 hours. Further in his opinion the death was caused due to shock and haemorrhage as a result of above noted injuries which were sufficient to cause death in ordinary course of nature. He proved the postmortem examination report Ext. 6. In cross-examinations his evidence is that Injury Nos. 1, 2, 3 and 7 were wound of entries and in all the four injuries their margins were found blackened. Injury Nos. 4, 5, 6 and 8 were found wounds of exit. He has further stated that injuries No. 1 - 4, 2 - 5, 3 - 6 and 7 - 8 were found single injuries. The medical evidence is indicative of the fact that the gun shots were responsible for causing injuries on the person of the informant, Dineshwar Rai and the homicidal death of the deceased, Shankar Rai. Thus, the medical evidence is in consonence with the prosecution. 9. The defence has also not challenged it but has only disputed about the participation of the appellants in the occurrence of the assault and murder as alleged by the prosecution. The defence put forth different manner of the occurrence as surfaced on suggestion to the informant, Dineshwar Rai, PW 7, that after being assaulted Ram Babu, the brother-in-law of the bride, informed about it to the prosecution party. On this information members of the prosecution party with guns started pelting stones and brick bats at the house of the co-accused, America Rai. They also resorted to firing which hit him and his brother, Shankar Rai. On this information members of the prosecution party with guns started pelting stones and brick bats at the house of the co-accused, America Rai. They also resorted to firing which hit him and his brother, Shankar Rai. It further surfaced that the accused-appellant Chulhan Rai was in Gwalior from before the occurrence and his licensee gun had already been deposited in the Chapra Gun House. 10. Now in order to analyse it I advert to the evidence of the alleged eye-witnesses to the occurrence. The evidence of PW 7, Dineshwar Rai, is that the occurrence had taken place on 26.6.1995 at 11.00 a.m. and at that time he was present at the place of occurrence. On 25.6.1995 on the occasion of the marriage of his brother, Shankar Rai, barati had gone at the house of Dashrath Rai of Village-Ishupur, PS, Lalganj, District- Vaishali. At the time of taking dwarpuja there was some altercation in between the members of the both bride and bridgroom parties in course of which there was an occurrence of cross assault by fists and slaps. But anyhow the function of the dwarpuja was performed and barati returned back to the janmasa. He has further stated that thereafter when the accused, Sanjay Rai, was coming to janmasa after taking his cycle from the darwaja of bride, he was assaulted by some boys of the village. The marriage of, Shankar Rai was, however, soleminised and in the morning of 26.6.1995 barat party returned to the village. At the time of bidai of the bride the accused Sanjay uttered to assault the person accompanying the bride to his village. He has further stated that Ram Babu Rai, the brother-in-law of the bride came to his village-Idilpur along with her. On the day of occurrence at the alleged time the brother- in-law of the bride after taking meal was going to take rest in Bathan. He along with Shankar Rai was also accompanying him. When they stepped away about 5/6 steps in the south-east of the open land, all the six accused-appellants appeared and started assaulting the brother-in-law of the bride with fists and slaps. It also followed by abuses which was protested by him and his brother, Shankar Rai. At this the accused-appellant Amerika Rai ordered others to bring gun and kill them whereupon all the five accused-appellants went to their houses. It also followed by abuses which was protested by him and his brother, Shankar Rai. At this the accused-appellant Amerika Rai ordered others to bring gun and kill them whereupon all the five accused-appellants went to their houses. Thereafter the accused-appellants Chulhan Rai and Mithilesh Rai with double barrel guns, Sanjay Rai and Sipahi Rai with pistols and Darbesh Rai with lathi came there. Accused-appellant Chulhan Rai fired 6/7 shots at Shankar Rai and Mithilesh Rai fired 3/4 shots at him causing injuries on his abdomen, hands, elbow and thigh as a result of which he fell down on the ground. The accused Sanjay Rai and Sipahi Rai fired from their pistols but did not hit anyone. The accused-appellants Darbesh Rai with lathi was exhorting others indulged in the occurrence of assault. Then the accused persons made good escape from there. His further evidence is that he along with his brother Shankar Rai was removed to Parsa Sadar Hospital for treatment where Shankar Rai died and he himself was referred to Patna Hospital for treatment. At Parsa Hospital his fardbeyan was recorded by the Officer Incharge and he put his signature thereon, Ext. 1/1. He has further stated that he had also made a complaint petition in this case. The witnesses, Ram Babu, his co-villager, Wakil Rai, Virendra Rai and Dina Pandit have been gained over by the accused. In cross- examination his evidence is that there was ditch in the west of his house and in the south of the western wall of his house there was open land and in the south of which there was house of accused Amerika Rai. He has further stated that his house was facing east having open space in front of the house and two berhies on the southern corner of the open land. There was open space in front of the house of the accused Amerika Rai having a berh on the northern corner and there was a distance of about 8/9 laghies, 250 feet in between his bedhies and that of Amerika Rai. He has denied the suggestion that when Ram Babu Rai, the brother-in-law of the bride, was assaulted in bathan by some persons he informed about it to him and others. He has denied the suggestion that when Ram Babu Rai, the brother-in-law of the bride, was assaulted in bathan by some persons he informed about it to him and others. On this information he and others with firearms pelted brick bats and stones at the house of accused, Amerika Rai and also fired causing injury to him and his brother, Shankar Rai. He has also denied the suggestion that from before the occurrence accused-appellant Chulhan Rai was in Gwalior and his licensee gun had already been deposited in Gun House Chapra. PW 6, Ram Babu Rai, the brother-in-law, his evidence is that on the bidai of the bride he had come to her sasural. On the day of the occurrence at 11 a.m. after taking meal he was going to take rest in bathan. The deceased, Shankar Rai and Dineshwar Rai, informant, were also accompanying him. When he proceeded 5/6 steps ahead all the six accused-appellants started assaulting him. Shankar Rai and Dineshwar Rai protested them from assaulting him whereupon the accused Amerika Rai ordered to kill Shankar Rai. At this accused-appellants rushed to their darwaza. Chulhan Rai and Mithilesh Rai with guns, Sanjay Rai and Sipahi Rai with pistols and Darbesh Rai with lathi came there. The accused, Chulhan Rai fired 5/6 shots at Shankar Rai and Mithilesh Rai fired 3/4 shots at Dineshwar Rai. Sanjay Rai and sipahi Rai opened fire from their pistols but did not hit anyone. The accused Darbesh Rai with lathi was instigating other accused persons. Thereafter the accused persons made good escape from there and both the injured were removed to Parsa State Dispensary. He did not accompany them. In the evening he learnt about the death of Shankar Rai and about removal of Dineshwar Rai to P.M.C.H. Patna for better treatment. His further evidence is that the accused persons assaulted him because of the occurrence of assault taken place one day prior to the occurrence in the village of the bride. In cross-examination his evidence is that he gave his statement for the first time in Court and he was never examined by Daroga Ji or any authority. After the occurrence he returned back to his native village from Ishuwapur. In cross-examination his evidence is that he gave his statement for the first time in Court and he was never examined by Daroga Ji or any authority. After the occurrence he returned back to his native village from Ishuwapur. The other eye-witnesses, Dhaneshwar Rai, PW 1, Sheo Nath Rai, PW 2, Ramesh Rai, PW 3, Ram Bhawan Rai, PW 4, have supported the case of the prosecution and corroborated the evidence of said two witnesses on all material points. 11. PW 8, Ashok Kumar, is the Investigating Officer of this case. He has stated that on 26.6.1995 while he was posted as Officer-in-Charge, Dariyapur Police Station he heard rumour abut the occurrence of murder. On this information he went to Parsa State Dispensary and recorded the fardbeyan of the informant, Dineshwar Rai. He proved the fardbeyan which is in his pen and signature, Ext. 3. Before recording the fardbeyan he prepared the inquest report of the dead body of the deceased, Shankar Rai. He proved the inquest report which is in his pen and signature, Ext. 4. He also examined injury of Dineshwar Prasad and prepared injury report which is in his pen and signature, Ext. 5. His further evidence is that he recorded the statement of the witnesses including the witness, Ram Bhawan Rai present there. Thereafter he returned back to the police station with the fardbeyan and registered a case. On 26.6.1995 at 6.30 p.m. he visited the P.O. situated in village Idulpur. According to him P.O. was open land (sahari) in front of the house of the informant and there was a bedht made of Rahetha for keeping fodder in the south of sahan of his house, where the informant, Dineshwar Rai and Shankar Rai (deceased) were alleged to have sustained firearm injuries. He has further stated that the house of the accused was situated in south at a distance of 100 feet from PO land from where they were alleged to have fired at them. At para 9 he has given boundary of the PO. He did not find any incriminating thing at the place of occurrence. On 5.7.1995 he received the injury report of Dineshwar and on 6.7.1995 he received post-mortem examination report. On completion of the investigation he submitted charge-sheet against the accused persons. At para 9 he has given boundary of the PO. He did not find any incriminating thing at the place of occurrence. On 5.7.1995 he received the injury report of Dineshwar and on 6.7.1995 he received post-mortem examination report. On completion of the investigation he submitted charge-sheet against the accused persons. In cross-examination he has stated that at 3 p.m. while he was at the police station he heard rumour about the occurrence of murder in village-Idulpur. On this basis he made Sanaha No. 462. He also received rumour about the treatment of an injured in the hospital whereupon he directly went to the hospital from the police station. He prepared the inquest report at 4.00 p.m. then recorded the fardbeyan of the informant. He has further stated that the place of occurrence was situated at a distance of 10 k.m. from the police station. At para 17 his evidence is that he did not find bloodstains at the place of occurrence. In the morning on 27.6.1995 he recorded the statements of Ram Babu Rai, Wakil Rai, Dina Nath Pandit and Virendra Rai. At para 22 his evidence is that on 7.9.1995 he went to Gun House to seize the gun of accused Chulhan Prasad but found the shop closed. The attention of these witnesses was drawn and confronted with the statements of the witnesses, Dhaneshwar Rai, Sheo Nath Rai, Ramesh Rai, Ram Bhawan Rai, Dineshwar Rai, recorded by him during course of investigation under Section 161, Cr PC, but no major contradiction surfaced. On the other hand, the defence has examined two witnesses. DW 1, Ajit Kumar Singh, has proved Entry No. 252 of 1995 at page No. 43 of the register of "Singh Gun House" Chapra, maintained in course of business in respect of deposit of the firearms by the customers in the same. The Entry No. 252/95 was marked as Ext. A. The defence has brought this document (Ext. A) on the record to show that the licensee gun of the appellant, Chulhan Rai was deposited in "Singh Gun House" on 19.6.1995, so, its user in the commission of the murder of Shankar Rai on 26.6.1995 was not feasible by him. The trial Court rightly rejected this document Ext. A, on the ground that from the entry it did not appear that the appellant Chulhan Rai had deposited any firearm in the Gun House on 19.6.1995. The trial Court rightly rejected this document Ext. A, on the ground that from the entry it did not appear that the appellant Chulhan Rai had deposited any firearm in the Gun House on 19.6.1995. The licence standing in his name was not filed in the Court to show that the licence number mentioned in Ext. A was connected with the firearm deposited in the name of Shri Sarwa Rai and was related to licence No. 2 of 1988 of Dariyapur police station. Consequently the trial Court did not place reliance on Ext. A to hold that the licensee gun of the appellant, Chulhan Rai was in custody of Singh Gun House since 19.6.1995. 12. DW 2, Ramdhani Choudhary, is the then SDPO, Sonepur, who supervised the case on 27.6.1995 and inspected the PO. His evidence is that at the time of inspection of the PO the Investigating Officer of this case, Ashok Kumar was with him. He has further stated that there was a distance of 250 feet in between the house of the appellant, Chulhan Rai and the deceased, Shankar Rai and there was pond in between their houses. He found brick bats in front of the house of the deceased and the appellant Chulhan Rai. He learnt that there was an exchange of brick bats in between both parties and the firing was from a distance of 250 feet. He recorded the further statement of the informant, Dinesh- war Prasad and also the statement of witnesses, Ramesh Rai, Sheonath Rai and Chaneshwar Rai. All these witnesses disclosed before him that the brother-in-law of the bride had aiso come to the village along with her. When he reached near the Bathan of Shankar Rai he was fisted and slapped by Baleshwar Rai, Sipahi Rai, Chulhan Rai @ Sheo Prasad Rai and Mithilesh Rai. Then Ram Babu Rai, the brother-in-law of the bride informed about this incidence to Shankar Rai whereupon Shankar Rai and his brother informant came and made enquiry from the appellant, Chulhan Rai which followed by abuses and cross brick bating in between the parties. The prosecution party started brick batting from north-east of pond and appellant Chulhan Rai from the south of his house. At that time there were two rounds of firing which hit Shankar Rai and the informant. The prosecution party started brick batting from north-east of pond and appellant Chulhan Rai from the south of his house. At that time there were two rounds of firing which hit Shankar Rai and the informant. In cross-examination his evidence is that the informant, Dineshwar Rai was injured and his fardbeyan was recorded at Bathan. His further evidence is that the place of occurrence was the open space situated in front of the residential house of the informant. The Court below rightly rejected his evidence on the ground that the defence failed to come up with the counter version of the occurrence of plea of right of private defence of person or property. 13. The learned counsel for the appellants contended that all the eyewitnesses examined by the prosecution are the close relatives of the deceased Shankar Rai and they are highly interested witnesses. The trial Court wrongly accepted their evidence and its adequacy with regard to the complicity of the appellants in the commission of the offence, so, the judgment of the conviction is fit to be set aside. On the other hand, learned APP, Shri Jaiswal, submitted that all the alleged eyewitnesses were the most natural and probable witnesses. Their evidence is fully corroborated by the medical and other circumstantial evidence so, the trial Court rightly accepted their evidence for the conviction of the appellants. After hearing both sides I find no force in the above submissions raised on behalf of the appellants. The position of law is that mere relationship of the witness cannot be the only ground to reject their testimony, if it is otherwise found to be reliable and dependable. The only requirement is to scrutinize their evidence with more care and caution then required in case of independent witness. In case of Ashok Kumar Pandey V/s. State of Delhi, reported in (2002) 4 SCC 76 : 2002 (2) East Cr C 88 : 2002 (1) JCJR 390 (SC) that : "the evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or both, if otherwise the same is found to be credible." 14. On behalf of the appellants it was again contended that the sole independent witness, Nagendra Prasad Rai, PW 5, was tendered for cross-examination by the prosecution which affects the veracity of the case of the prosecution. On behalf of the appellants it was again contended that the sole independent witness, Nagendra Prasad Rai, PW 5, was tendered for cross-examination by the prosecution which affects the veracity of the case of the prosecution. In this context he placed reliance on the case of Sukhawant Singh V/s. State of Punjab, reported in AIR 1995 SC 1601 : 1995 (2) East Cr C 298 (SC) wherein it has been held that : "tendering witness for cross-examination without his being examined in-chief affects the credibility of the prosecution case." Admittedly the sole independent witness has been tendered for cross-examination by the prosecution but the case of the prosecution not rests solely on his testimony. A number of other witnesses have been given direct account of the occurrence, so, tendering of the PW 5, will not definitely affect the core of the prosecution case. 15. Learned counsel for the appellants further contended that the prosecution suppressed the true version of the case that exchange of brick bat had taken place prior to the alleged occurrence. DW 2, Ramdhani Choudhary, Dy, S.P. found large number of brick bats and stones in front of the houses of both the parties but the Investigating Officer, Ashok Kumar, PW 9, did not find anything at the place of occurrence, so, his evidence is doubtful. 16. It has come in the evidence of DW 2, Ram Dhani Chaudhary that at the time of the inspection of the PO the investigating officer, Ashok Kumar, PW 9 was with him. As discussed above the defence has not brought any counter version or plea of right of private defence of a person or property, so, the evidence of DW 2, was not accepted by the Court below. In the above situation I also find no escape to act upon his evidence. 17. Learned counsel for the appellants again contended that there is a conflict in between the oral and the medical evidence because of finding of blackening on the dead body of the deceased, Shankar Rai which was possible only from close range firing. But it has come in the evidence that there was firing from a distance of 100/250 feet. At trial no eye-witnesses came forward to state exact distance of firing. It has come in their evidence that the firing was done from the bedhies of the appellant, Amerika Rai. But it has come in the evidence that there was firing from a distance of 100/250 feet. At trial no eye-witnesses came forward to state exact distance of firing. It has come in their evidence that the firing was done from the bedhies of the appellant, Amerika Rai. The distance of firing from 100/250 feet only came on the hearsay statement of the Investigating Officer, PW 9 and DW 2, Ramdhani Choudhary. This being the position, do not find any force in the submissions of the learned counsel for the appellants. 18. The learned counsel for the appellants lastly contended that the statement of PW 6, Ram Babu Rai, the most important witness, was not recorded during the investigation, so, the entire genesis of the prosecution case becomes doubtful. 19. Admittedly Ram Babu Rai, the brother-in-law of the bride, was not examined by the IO under Section 161, Cr PC. But it in no way adversely affected the case of the prosecution. The prosecution examined other witnesses also and from their testimony direct evidence is available in favour of the prosecution. In a case reported in AIR, 1997 SC 1528 that ; "non-availability of the statement of a witness under Section 161, Cr PC would not cause prejudice to the defence." 20. From the above discussed evidence of all the eye-witnesses it is established that in retaliation of assault to accused Sanjay Rai on 25.6.1995 in the village of the bride, all the appellants fisted and slapped Ram Babu Rai, the brother-in-law of the bride in their village on 26.6.1995. Deceased Shankar Rai and his brother, Dineshwar Prasad protested them. Thereafter on being exhorted by the appellants Amerika Rai and Darbesh Rai the appellants Chulhan Rai fired at Shankar Rai and Mithilesh Rai fired at the informant, Dineshwar Prasad. The evidence of PW 8, Dr. Shradha Nand and PW 10, Dr. Amar Nath Jha, corroborated the occular evidence that the firing by Chulhan Rai @ Sheo Prasad Rai caused homicidal death of Shankar Rai and firing by Mithilesh Rai caused injuries to the informant, Dineshwar Prasad threatening to life. All the appellants remained present there till consummation of the crime and only thereafter they left the place. Amar Nath Jha, corroborated the occular evidence that the firing by Chulhan Rai @ Sheo Prasad Rai caused homicidal death of Shankar Rai and firing by Mithilesh Rai caused injuries to the informant, Dineshwar Prasad threatening to life. All the appellants remained present there till consummation of the crime and only thereafter they left the place. This being the position it can safely be inferred that the offence was committed in pursuance of the common object of the unlawful assembly developed at spur of the moment which the members of the unlawful assembly knew that such offence was likely to be committed. All the eye-witnesses have been examined at length and some discrepancies appeared in their evidence. When an witness is examined at length it is natural for him to make some discrepancies and there is no criminal case which does not suffer from discrepancies. The major discrepancies which touch the core of the prosecution case are to be looked into and not minor discripancies. In, the present case no major contradiction or discripancies appeared in the testimony of the eye-witnesses to the occurrence to discard their testimony. 21. On active consideration of the evidence and circumstances discussed above I find that the prosecution has proved the charges against all the appellants beyond all reasonable doubt. I find no wrong in the order of conviction and sentence recorded by the Court below against them. 22. In the result, there is no merit in all the three appeals and they are dismissed. The order of conviction and sentence passed against them are confirmed. The appellant Chulhan Rai @ Sheo Prasad Rai in Cr. Appeal No. 373/99 is in custody. The appellants, Sipahi Rai @ Ramjit Rai, Sanjay Rai and Mithilesh Rai, in Cr. Appeal No. 372/99 and the appellants Amerika Rai and Darbesh Rai in Cr. Appeal No. 311/99 are on bail. Their bail bonds are cancelled with a direction to surrender before the Court below within one month failing which the lower Court will take step for their immediate arrest to serve out the sentence imposed upon them. 23. I agree that the appeal is fit to be dismissed.