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2004 DIGILAW 895 (PAT)

Sikandar Singh v. State Of Bihar

2004-09-03

MRIDULA MISHRA, P.N.YADAV

body2004
Judgment P.N.Yadav, J. 1. Intense fondness, allurement and infatuation for land among the people of the State particularly those belonging to peasantry class has been taking heavy toll of human lives for quite sometime. Innumerable persons lost their lives owing to land dispute and litigations arising thereafter between the deceased and their marauders. The murder of 20 year youth Upendra Singh giving rise to the instant case is one in the series of murder committed over trifling matter emanating from land dispute between the parties. 2. Shorn of unnecessary details factual matrix of the case is : There is a piece of land infront of the cattle-shed of the de-ceased-Upendra Singh. His cattle were fed over the land in question. There was dispute between the parties, over the land and title suit with respect to the same was pending. In the morning at about 9-10 a.m. on 23-12-1987, the deceased was sweeping and cleaning the said land. Just then the accused Rajeshwar Singh alias Kamta Singh happened to reach there and he protested against the act of the deceased saying that the land belonged to him. The deceased did not pay heed to the protest and he continued cleaning the land. There ensued exchange of hot words. In the meanwhile, the accused-Nagina Singh (since dead) got infuriated and enraged and he ordered and instigated elimination of the deceased. Soon Ramshwar Singh went to his house and came back with gun accompanied by Sheoji Singh alias Akshay Singh, Awadhesh Singh (since dead), Sikandar Singh, Harendra Singh, Shankar Singh alias Shiv Shankar Singh and Beshlal Singh alias Banshlal Singh who were also armed with various lethal weapons such as spear, farsa and lathi. After having picked up quarrel and exchange of hot and abusive words the accused Rajehswar Singh resorted to firing against the deceased as a result of which he sustained injuries on his chest, abdomen, arm and forearm. Rajendra Singh (P.W. 4) rushed to save his brother, the deceased Upendra Singh but to his utter dismay and surprise he was also shot at by Rajeshwar Singh as a result of which he sustained injuries on his head, forehead and cheek. The deceased succumbed to the injuries instantaneously on the spot. 3. Rajendra Singh (P.W. 4) rushed to save his brother, the deceased Upendra Singh but to his utter dismay and surprise he was also shot at by Rajeshwar Singh as a result of which he sustained injuries on his head, forehead and cheek. The deceased succumbed to the injuries instantaneously on the spot. 3. In pursuance of alarm, certain villagers including Jagish Singh (P.W. 1), Samhoot Singh (P.W. 2), Harihar Singh (P.W. 3) and Chandrama Singh arrived at the scene and they witnessed the incident leading to infliction of injuries on the deceased and his brother Rajendra Singh (P.W. 4). 4. Gupteshwar Singh (P.W. 5), uncle of the deceased rushed to Tarari Police Station and he with the aforesaid accusation against the accused persons including the police lodged the First Information Report at about 1.00 p.m. on the same day i.e. on 23-12-1987 on the basis of which Tarari P.S. Case No. 85 of 1987 was registered u/s. 302 besides some other sections of the Indian Penal Code (hereinafter to be referred to as the Code) as well as under Section 27 of the Arms Act. The injured Rajendra Singh (P.W. 4) and Mahendra Kumar Singh, who were accompanying P.W. 5 also put their signatures on the First Information Report. P.W. 4 was referred to Tarari State Dispensary where he was examined and treated by Dr. Bijay Pratap Singh (P.W. 6). 5. Binay Kumar, Sub-Inspector of Police, Tarari Police Station took up investigation, recorded subsequent statement of the informant (P.W. 5), tried to record statement of Rajendra Singh (P.W. 4) but he could not make statement owing to shock and mental agony he suffered on account of injuries sustained by him and death of his brother and his statement was recorded later on, visited the place of occurrence, prepared inquest report, caused the dead body of the deceased to be sent to mortuary where Dr. Kamla Prasad (P.W. 7) conducted autopsy, inspected the place of occurrence, recorded the statements of the witnesses, took steps for arrest of the accused persons including the appellants who would also, henceforward, be referred to as the accused, collected the post-mortem examination report and after completing investigation and complying with certain formalities he submitted the charge-sheet against all the eight accused persons out of whom the accused-Awadhesh Singh and Nagina Singh died during trial and proceeding was dropped against them. The case after commitment gave rise to Sessions Trial No. 4 of 1989 and finally the trial commenced. 6. The accused persons refuted the charges levelled against them. They entered into defence and examined two witnesses, Dinesh Chandra Upadhyaya (D.W. 1), who merely proved formal First Information Report (Ext. A) and fardbeyan of Sheoji Singh (Ext. 8) on the basis of which Tarari P.S. Case No. 86 of 1987 said to be counter version of the present case was registered and Dr. Rameshwar Singh (D.W. 2), who examined injuries on Akshay Singh alias Sheoji Singh. The defence set up by the accused before the trial Court as well as this Court was that of total denial and false implication out of sheer enmity emanating from long drawn land dispute and a series of litigations arising therefrom. It was contended that proceeding u/s. 144, Cr. P.C., rent fixation cases and title suit in respect of the disputed land over which the place of occurrence situated were decided in favour of the accused and against the prosecution party and it was the prosecution party which was aggressor in which Akshhay Singh alias Sheoji Singh was brutally assaulted as a result of which he sustained grievous injury for which Tarari P.S. Case No. 86 of 1987 was not registered and whatever was done by the accused it was in exercise of right of private defence. 7. The trial Court after scanning and appreciating the evidence brought on records negatived the defence version, rendered verdict of guilt and convicted the accused Rajeshwar Singh under Secs. 302 and 307 of the Code as well as under sec. 27 of the Arms Act and sentenced him to undergo rigorous imprisonment for life u/s. 302, rigorous imprisonment for ten years under sec. 307 of the Code and rigorous imprisonment for three years under Sec. 27 of the Arms Act while the accused Akshay Singh alias Sheoji Singh, Sikandar Singh, Harendra Singh, Shankar Singh and Beshlal Singh were convicted and sentenced to undergo rigorous imprisonment for life u/s. 302 read with sec. 149 and rigorous imprisonment for five years u/s. 307 read with sec. 149 and rigorous imprisonment for five years u/s. 307 read with sec. 149 of the Code and the accused-Sheoji Singh was further convicted and sentenced to undergo rigorous imprisonment for three years u/s. 27 of the Arms Act while Beshlal Singh was convicted and sentenced to undergo rigorous imprisonment for two years u/s. 148 and Sikandar Singh, Shankar Singh and Harendra Singh were convicted and sentenced to undergo rigorous imprisonment for six months each u/s. 147 of the Code, the sentences in respect of all the accused having been ordered to run concurrently vide the impugned judgment and order dated 7-6-2001 and 12-6-2001. 8. Being aggrieved with the judgment and order of conviction and sentence recorded against them by the Court below, the accused-Sikandar Singh, Harendra Singh and Shankar Singh preferred Cr. Appeal No. 268 of 2001, Sheoji Singh and Beshlal Singh filed Cr. Appeal No. 284 of 2001 and Rajeshwar Singh filed Cr. Appeal No. 384 of 2001. As all the three appeals arose out of one and the same judgment and order, they were heard together and are going to be disposed of by this common judgment. 9. Before adverting to the evidence brought on records to substantiate the charges levelled against the accused persons, we would notice the contentions raised for challenging and assailing the impugned judgment and order of conviction and sentence, which may be summarised as follows: The witnesses who supported the prosecution case are relatives and interested and they made inconsistent and discrepant statement and as such their evidence cannot form the basis of conviction. Out of three witnesses named in the First Information Report only two, namely, Jagdish Singh (P.W. 1) and Samhoot Singh (P.W. 2) were examined and none of them supported the prosecution version as to which of the accused is the assailant of the deceased and one Chandrama Singh named in the First Information Report and Mahendra Kumar Singh who had put his signature on the First Information Report and was thus an attesting witness were not examined. Eye-witness account of the incident leading to the death of the deceased is not in consonance with medical evidence inasmuch as although one of the witnesses said the deceased had not. Eye-witness account of the incident leading to the death of the deceased is not in consonance with medical evidence inasmuch as although one of the witnesses said the deceased had not. taken meal, the doctor conducting autopsy found undigested food particles (rice) in the stomach of the deceased and that would indicate that the deceased was killed sometime in the preceding night and not at the time and place of occurrence. Admittedly, there has been long drawn land dispute between the parties and they have been locked in a series of proceedings and litigations in respect of the land and the proceeding under sec. 144, Cr. P.C., rent fixation case and the title suit bearing No. 28 of 1986 in respect of the land over which the place of occurrence situated were decided against the prosecution party and in favour of the accused. Although the deceased was not killed at the time, place and in the manner alleged by the prosecution even if it is assumed that the deceased was murdered at the time and place of occurrence the prosecution party must be said to be aggressor for, they having no right, title and possession over the land in question went there and they caused grievous injury to the accused-Sheoji Singh, which was not explained by the prosecution and in the circumstances the accused were entitled even to cause death of the deceased in exercise of right of private defence of life and property. The Investigating Officer was not examined as a result of which the accused were put to serious prejudice in their defence. 10. On the other hand, learned State counsel Shri Lala Kailash Bihari Prasad resisting the contentions put forward on behalf of the accused has submitted that the proceeding u/s. 144, Cr. The Investigating Officer was not examined as a result of which the accused were put to serious prejudice in their defence. 10. On the other hand, learned State counsel Shri Lala Kailash Bihari Prasad resisting the contentions put forward on behalf of the accused has submitted that the proceeding u/s. 144, Cr. P.C. and Rent Fixation Cases in respect of Gairmazrua Aam land (which is in dispute), decided against the prosecution party cannot create right, title, interest and possession over the disputed land nor can orders made in such proceedings form the basis for acquittal of the accused and so far title suit referred to above is concerned it was decided long after the date of incident and even on the basis of the judgment rendered in the title suit, which was brought by the prosecution party in representative capacity as the land was Gairmazrua Aam it cannot be said that the land was in exclusive possession of the accused; that no right of private defence was available to the accused; that the evidence of the prosecution witnesses was consistent and corroborative free from inherent and infirmity and the same cannot be discarded on account of the witnesses being relatives and interested ones; that the doctors findings in regard to presence of undigested rice in the stomach of the deceased cannot render the prosecution case doubtful in view of abundance of direct and cogent evidence of eye-witnesses; that it was not incumbent upon the part of the prosecution to explain the injury on the person of the accused-Sheoji Singh and that as no major contradiction or discrepancy going to the root of the case has been elicited in cross-examination of the witnesses non-examination of the Investigating Officer is of no consequence and his non-examination cannot be said to be fatal to the prosecution case. 11. Though, the evidence of the prosecution witnesses has been lucidly and in detail spelt out by the trial Court in its judgment and the same need not be reproduced in so many details, it would be relevant and convenient to discuss and analyse the testimony of the witnesses with brevity in order to appreciate the rival contentions put forward at the bar. All the five witnesses on facts, viz., P.W. 1, Jagdish Singh, P.W. 2, Samhoot Singh, P.W. 3, Harihar Singh, P.W. 4, Rajendra Singh and P.W. 5, Gupteshwar Singh, the informant were claimed by the prosecution to be the eye-witnesses to the incident leading to the murder of the de-ceased-Upendra Singh. We may first notice the evidence of P.W. 5, Gupteswar Singh, the informant. He has supported the prosecution case as laid in the First Information Report by stating that at about 8.00 a.m. through 10 a.m. was mentioned in the First Information Report on 23-12-1987, the deceased was sweeping and cleaning the land situated infront of his cattle shed and just then the accused-Rajeshwar Singh went there and protested against the act of the deceased, however, the latter continued sweeping the land asserting that it belonged to him and he would clean the same on which the accused-Nagina Singh (since dead) got infuriated and enraged and in pursuance of his order and instigation Rajeshwar Singh went to his house and soon he returned with other accused persons, all armed with various lethal weapons and Rajeshwar Singh resorted to firing as a result of which the deceased sustained injuries and fell down and when his brother, Rajendra Singh (P.W. 4) rushed to save him he was also shot at by Rajeshwar Singh causing injuries to him. The decesed succumbed to the injuries at the spot. It is in his evidence that Rajeshwar Singh, Nagina Singh (dead), Awadhesh Singh (dead) and Sheo Jeo Singh were armed with gun, spear and gun respectively while other accused were having lathi. Identical is the evidence of P.W. 4, Rajendra Singh, the injured witness. He noticing quarrel and exchange of hot words and Rajeshwar Singh opening fire upon his brother, the deceased-Upendra Singh in pursuance of order and instigation made by Nagina Singh (dead) rushed to save him but to his utter dismay and surmise Rajeshwar Singh shot at him as well as a result of which he sustained injuries on his forehead and left cheek and fell down unconscious and after he regained senses he along with P.W. 5 went to Tarari Police Station where fardbeyan of P.W. 5 was recorded and the police forwarded the witness to the hospital for his treatment. P.W. 4 also naming all the accused persons spoke of their presence with various arms at the time and place of occurrence and the decesed succumbing to the injuries instantaneously on the spot. 12. P.W. 3. Harihar Singh happens to be the father of the deceased. He gave eye-witness account of the entire incident similar to that given by P.W. 5 and P.W. 4. He also named all the accused persons and spoke of their participation in the incident after having armed themselves with various lethal weapons. P.W. 1, Jagdish Singh and P.W. 2, Samhoot Singh were named in the First Information Report and they were eyewitnesses to the incident and they did depose as eye-witnesses. They named all the accused persons with the weapons they had in their hands. They also stated that soon after there ensued quarrel and exchange of hot words the deceased and P.W. 4 were shot at as a result of which they sustained injuries and the deceased died on the spot. It is also in their evidence that Rajeshwar Singh, Besh Lal Singh and Nagina Singh were armed with gun, farsa and gun respectively while others were having lathi. They, however, did not disclose the name of the accused who had opened fire causing fatal injuries to the deceased and simple injuries to P.W. 4 and probably on that account P.W. 1 was declared hostile. P.W. 1 admitted all the accused were his agnates. He was suggested that on account of his being agnates of the accused purposely did not name the assailant of the deceased and his brother. Both P.Ws. 1 and 2 had stated before the Investigating Officer that it was the accused-Rajeshwar Singh who had fired upon the deceased and P.W. 4, but this statement cannot be acted upon as the Investigating Officer was not examined, however, their evidence on the other aspect of the incident would continue to lend assurance to the prosecution case. 13. All the eye-witnesses have their houses continuous to the place of occurrence and their presence at the time and scene of incident is quite probable. They are natural and competent witnesses. Their evidence on the point of occurrence is quite consistent and corroborative free from inherent taint and infirmity. Their evidence is worthy of credence and wholly reliable. They were subjected to long cross-examination but nothing was elicited to impeach their testimony. They are natural and competent witnesses. Their evidence on the point of occurrence is quite consistent and corroborative free from inherent taint and infirmity. Their evidence is worthy of credence and wholly reliable. They were subjected to long cross-examination but nothing was elicited to impeach their testimony. Whatever minor inconsistency or discrepancy occurred in their evidence the same was not material adversely affecting the edifice of the prosecution case. The informant (P.W. 5) in the First Information Report recited the incident took place at 10.00 a.m. but in his evidence he said the incident occurred at 8.00 a.m. The hour/ time must have been narrated as per estimate made by the witness. Accurate and exact time of occurrence can be stated after looking to the watch. There is nothing to show that the hour of the occurrence was disclosed by the witness after looking to the watch. Rustic villagers residing in the remote corner of the countryside are not expected to have got idea and knowledge of accurate and correct hour of the time. Again certain witnesses tried to conceal litigations between the parties and P.W. 5 stated that Mahendra Singh had not accompanied him to the police station though Mahendra Singh had put his signature as attesting witnesses on fardbeyan of P.W. 5. Certain contradiction and untrue statement are bound to occur in the evidence of natural and truthful witnesses. A witness while making his way through the labyrinth of long cross-examination ventures to give some answer which is not necessarily true and correct for fear that his evidence on the main incident which he witnessed may not be disbelieved and discarded but that is not to say that the entire evidence of such witness is liable to be rejected. 14. No doubt, the three material witnesses, that is, P.Ws. 3, 4 and 5 are relatives and interested witnesses inasmuch as P.Ws. 3 and 4 are the father and the brother respectively of the deceased while P.W. 5 is his uncle. Shri D. K. Sinha, learned counsel appearing on behalf of the accused has vehemently contended that eye-witnesses are close relatives of the deceased and they are at the same time inimical to the accused on account of long drawn land dispute and no conviction can be based on uncorroborated testimony of such relatives and interested witnesses. Shri D. K. Sinha, learned counsel appearing on behalf of the accused has vehemently contended that eye-witnesses are close relatives of the deceased and they are at the same time inimical to the accused on account of long drawn land dispute and no conviction can be based on uncorroborated testimony of such relatives and interested witnesses. The principle of law enunciated in a catena of decisions rendered by the Apex Court as well as various High Courts is that evidence of relatives and interested witnesses who are also inimical to the accused cannot be discarded and conviction can well be based even on their uncorroborated testimony provided their evidence on a close and cautious scrutiny is found to be consistent, trustworthy and wholly reliable. In the case of Anil Sharma V/s. State of Jharkhand (2004) 5 SCC 675 : (2004 Cri LJ 2527) it has been held that testimony of related and interested witnesses cannot be discarded if it is after deep scrutiny found to be otherwise truthful and credible. There must be intense desire in the mind of the witness to punish the assailant of his kith and kin and he would not think in terms of substituting the real assailants with the enemies of the family even though they were not concerned with assault inflicted on the victim. The test prescribed by the law stands fully satisfied in the present case for, the evidence of the witnesses in the present case on close scrutiny and analysis has been found to be above board, worthy of credence and wholly reliable. 15. The incident that gave rise to the instant case occurred at 8-9 a.m. The distance between the place of occurrence and the police station is 10 kms. It has come in evidence that the informant went to the police station on foot. His fardbeyan was recorded at about 1.00 p.m. on the same day. The First Information Report was thus lodged promptly and there was no chance of embellishment, exaggeration and concoction to be made by the informant. 16. Medical evidence is also consistent with eye-witness account of the incident leading to the commission of murder of the deceased and infliction of injury on P.W, 4. P.W. 6, Dr. Bijay Pratap Singh examined P.W. 4 Rajendra Singh at about 10.00 a.m. on 23-12-1987. 16. Medical evidence is also consistent with eye-witness account of the incident leading to the commission of murder of the deceased and infliction of injury on P.W, 4. P.W. 6, Dr. Bijay Pratap Singh examined P.W. 4 Rajendra Singh at about 10.00 a.m. on 23-12-1987. He found three pin-head size holes over face one over scalp, one over forehead and one on right cheek caused by pellets. The Injuries were simple in nature caused by fire arm within 12 hours of his examination. The doctor stated that the injured was referred to him by the police. 17. P.W. 7, Dr. K. P. Rai conducted autopsy on the dead body of the ill-fated chap Upendra Singh at 9.00 a.m. on 24-12-1987. He noticed 41 pellet injuries scattered all over the chest out of which 15 were penetrating on left side of chest, 9 on abdomen and 15 on left arm and forearm. On dissection the doctor found trachea full of blood clots, essophagus containing blood clots, 10 pellet injuries on left lung causing laceration of lung tissues and blood vessels inside it, 2 pellet injuries causing laceration and puncture of right lung tissues, laceration of left side of upper portion of diaphragm, 5 punctured pellet injuries on stomach causing regugitation of its contents, that is, undigested rice, 7 pellet injuries on heart puncturing its chamber. All chambers of heart were empty and whole chest cavity full of blood clots. In the opinion of the doctor, all the injuries were anti-mortem in nature caused by fire arm and the cause of death was shock and haemorrhage due to the aforesaid injuries on vital organs like heart lungs, chest and stomach and the time elapsed since death was 24 hours. The Doctor (P.W. 7] in his cross-examination stated the injuries might have been caused by more than one shot from certain distance and the deceased had taken meal soon before his death. 18. The Doctor (P.W. 7] in his cross-examination stated the injuries might have been caused by more than one shot from certain distance and the deceased had taken meal soon before his death. 18. It is true that no eye-witness said that the deceased was hit by more than one shot fired from certain distance and the deceased had taken meal soon before his death, but on that account accepting the statement of the doctor made in his cross-examination it cannot be inferred that the deceased was shot dead, sometime in the night after his taking meal and not at 8.00 a.m. as per evidence of the informant or 10.00 a.m. as mentioned in the First Information Report and the time and place of occurrence could not be established as suggested by Shri Sinha, learned counsel for the accused. The doctor appears to have gone beyond his jurisdiction by stating as eye-witness that the deceased had taken meal soon before his death. Certain eye-witness merely stated that he could not say whether the deceased had taken meal before he started sweeping the small chunk of the land infront of his cattle shed and whether he had attended to natures call prior to the incident while one witness (P.W. 5) said he had not taken meal before occurrence and he did not see him go to attend to call of nature. Though the occurrence took place at 8-9 a.m. in the morning in the month of December when the days are shorter than nights and there is no eye-witness account of his taking meal before he started sweeping the land, the possibility of his taking meal in the morning cannot altogether be ruled out for, it is a matter of common experience that the villagers in the countryside area are habituated to taking meal at early hours in the morning as well as in the evening. Be that as it may, the time of occurrence as alleged by the prosecution cannot be doubted and changed on the basis of statement of the doctor in regard to his finding undigested rice in the stomach of the deceased in view of direct, cogent and unimpeachable evidence of the eye-witnesses. Be that as it may, the time of occurrence as alleged by the prosecution cannot be doubted and changed on the basis of statement of the doctor in regard to his finding undigested rice in the stomach of the deceased in view of direct, cogent and unimpeachable evidence of the eye-witnesses. In the case of Bhim Singh V/s. State of Haryana, 2003 SCC (Cri) 1469 : (2003 Cri LJ 857), there surfaced considerable difference in two timings of the occurrence as per account of two sets of witnesses. The High Court found corroboration for one set of witnesses from stomach contents of the deceased as mentioned in the post-mortem examination report. The Supreme Court observed that this piece of evidence cannot be relied as conclusive evidence in the absence of there being some other materials to show when the deceased had his meal or when the deceased went to answer the call of nature. Similar view in respect of reliance being placed on stomach contents for ascertaining the time of occurrence was taken by the Apex Court in the case of State of U.P. V/s. Rashid, 2003 SCC (Cri) 1840 : (2003 Cri LJ 2011). 19. Shri Sinha has strenuously urged that the accused-Akshhay Singh alias Sheoji Singh had in the incident sustained grievous injury and it was bounden duty of the prosecution to explain how he was inflicted the aforesaid injury but the prosecution could not do so and as such adverse inference must be drawn against the prosecution version. The accused-Akshay Singh alias Sheoji Singh was said to have been examined by Dr. Rameshwar Singh (D.W. 2) at 4.50 p.m. on 23-12-1987. The doctor found a swelling covering around the lower one-third of right upper arm just above right elbow with fracture of underlying bone. The injured accused was not forwarded to the doctor by the police. He appeared to have suo motu got himself examined by the doctor. In his cross-examination, the doctor (D.W. 2) said that he could not say whether the accused-Akshay Singh was referred to him by the police. There is nothing on records to show when, where and in which manner the accused-Akshay Singh was inflicted injury nor is there any material to show that he sustained injury in the incident leading to the murder of the deceased-Upendra Singh. There is nothing on records to show when, where and in which manner the accused-Akshay Singh was inflicted injury nor is there any material to show that he sustained injury in the incident leading to the murder of the deceased-Upendra Singh. Material to connect the injury on the arm of accused-Akshay Singh with any police case is conspicious by its absence from the records nor was any suggestion put to any of the prosecution witnesses that Akshay Singh was assaulted by the prosecution party in the same incident. Though, the accused entered into defence and examined certain defence witnesses, no evidence at all was led to establish correlation between infliction of injury on Akshay Singh and the incident leading to commission of murder of the deceased. Mere getting the fardbeyan or the First Information Report of Tarari P.S. Case No. 86 of 1987 exhibited and admission of P.W. 1 that he had seen Akshay Singh in the hospital can by no stretch of imagination establish that he had sustained injury in the occurrence in which Upendra Singh was done away with particularly when P.W. 1, P.W. 3 and P.W. 5 consistently stated that they had seen no injury at all on the person of the accused-Akshay Singh at the time and place of occurrence. No document was produced to show that Akshay Singh was admitted into the hospital. The doctors mere statement based on conjecture and surmises that Akshay Singh must have been admitted into the hospital cannot conclusively prove that he was really admitted into the hospital and he was treated as indoor patient. 20. Though, it is expected of prosecution to explain grievous injury on the person of the accused such explanation is not necessary in each and every case. In the case we are in seisin of the prosecution brought on records cogent, clear and credible evidence to establish the charges against the accused and as such the prosecution was not obliged to explain the solitary injury on the arm of the accused. In the case of Rajendra Singh V/s. State of Bihar, 2000 SCC (Cri) 796 :(2000 Cri LJ 2199), the accused-appellant had sustained one penetrating grievous injury, three incised injuries and one lacerated wound. In the case of Rajendra Singh V/s. State of Bihar, 2000 SCC (Cri) 796 :(2000 Cri LJ 2199), the accused-appellant had sustained one penetrating grievous injury, three incised injuries and one lacerated wound. The Apex Court has held that failure of the prosecution to explain injuries on the accused cannot ipso facto be held to be fatal to the prosecution case if evidence led by the prosecution is otherwise clear, cogent and trustworthy. On the basis of this principle of law failure of the prosecution to explain the penetrating grievous injury, three incised injuries and one lacerated wound on the person of the accused was in the aforesaid case not held to be fatal to the prosecution version or even to instil suspicion in the case. The same view was taken by three-Judges Benches of the Supreme Court in the case of Vijayee Singh V/s. State of U.P. (1990) 3 SCC 190 and the case of Ram Sundar Yadav V/s. State of Bihar (1998) 7 SCC 365 : (1998 Cri LJ 4558). In the case of Mohar Rai V/s. State of Bihar, AIR 1968 SC 1281 : (1968 Cri LJ 1479), the accused-appellant having injuries on his person was chased and caught with a revolver. Subsequently, three cartridges said to have been fired by the accused as well as misfired cartridges were seized. The revolver and the cartridges were sent to the ballistic expert for examination. The ballistic expert submitted report to the effect that the seized emptied as well as the misfired cartridges could not have been fired from the revolver seized from possession of the accused. From statement of witnesses examined by the prosecution as well as the report of the ballistic expert the prosecution version stood discredited. The evidence of the doctor revealed that the injuries found on the person of the accused could not have been self-inflicted. The Apex Court held that failure of the prosecution to offer any explanation in regard to the injuries on the person of the accused showed that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. The facts and circumstances of the case cited at the bar were entirely different from those of the case at hand and as such that case cannot come to the rescue of the accused before us. 21. The facts and circumstances of the case cited at the bar were entirely different from those of the case at hand and as such that case cannot come to the rescue of the accused before us. 21. It is true that the Investigating Officer was not examined by the prosecution as despite the best possible efforts made by the Court his attendance could not be procured. Non-examination of the Investigating Officer is also of no consequence when the defence fails to shake the credibility of the eye-witnesses or to point out any material contradiction vide the case of Bahadur Naik V/s. State of Bihar, 2000 (3) PLJR 144 (SC). In the instant case, no material contradiction or omission has been elicited in cross-examination of the eyewitnesses. Attention of the witnesses was drawn to their previous statements recorded during investigation. Whatever inconsistency or omission in the statement of the witnesses has been elicited by drawing their attention to their previous statements is of trifling nature and not in the nature of major contradiction or omission adversely affecting the core of the prosecution version. The credibility of the eye-witnesses has not been shakened. In the facts and circumstances, non-examination of the Investigating Officer as a witness is of no consequence for, no prejudice has been shown to have been caused to the accused in their defence on account of his non-examination. 22. Both the parties have been on litigating terms since prior to the date of incident. There had been proceeding u/s. 144, Cr. P.C., Rent Fixation Case and title suit between the parties in respect of the land. The proceeding under sec. 144. Cr. P.C. was decided on 17-12-1986 vide the order (Ext. C). Rent Fixation Appeal brought by Jagdish Singh (P.W. 1) and others against the accused-Nagina Singh and others was dismissed on 24-4-1986 vide order (Ext. E/ 1). Title suit bearing No. 28 of 1986 filed by the aforesaid Jagdish Singh and others in representative capacity on behalf of the members of the public at large against the accused-Nagina Singh and others was dismissed on 18-9-1991 vide the judgment (Ext. D/1) and the decree (Ext. F). E/ 1). Title suit bearing No. 28 of 1986 filed by the aforesaid Jagdish Singh and others in representative capacity on behalf of the members of the public at large against the accused-Nagina Singh and others was dismissed on 18-9-1991 vide the judgment (Ext. D/1) and the decree (Ext. F). The accused persons placing reliance on these documents pleaded that the land in question was in their possession and not in possession of the deceased or the prosecution witnesses and the deceased had no right to go over the said land and whatever action or steps was taken by the accused it must be said to be in exercise of right of private defence of life and property. The contention though seems to be attractive and convincing in reality it is not so and no right of private defence was available to the accused person in the instant case. sec. 144, Cr. P.C. is a preventive section. The order made thereunder must have seized to be operative of the date of the incident. Neither order made u/s. 144, Cr. P.C. nor order passed in Rent Fixation Case/Appeal can confer right, title, interest and possession over the land in question. The orders under these proceedings have no evidentiary value. The land in dispute was admittedly Gair Mazrua Aam land. Such land can hardly be settled with any individual. No document relating to settlement of the land in favour of the accused was brought on record. From the statement of the prosecution witnesses, it would transpire that it was really a Gair Muzrua land to be used by the members of the public at large. Neither the prosecution party nor the accused can be said to be in exclusive possession of the land. The NAAD and KHUNTA for the cattle of the deceased situated over a portion of land since long and his cattle-shed was a little away from there as per prosecution evidence. Besides the title suit which was instituted by P.W. 1 and others in representative capacity was pending at the time of incident and it was decided in the year 1991. Even on the basis of the judgment (Ext. D/1) and the decree (Ext. F), it cannot be held that the accused were in exclusive actual physical possession of the land. 23. Even on the basis of the judgment (Ext. D/1) and the decree (Ext. F), it cannot be held that the accused were in exclusive actual physical possession of the land. 23. The accused in course of hearing also pleaded that the prosecution party was aggressor and in the incident Akshay Singh @ Sheo Jee Singh was brutally assaulted as a result of which he sustained grievous injury and the accused were entitled to exercise right of private defence and even to cause death of the assailant while exercising their right of private defence of life and property. The principle of law in regard to exercise of right of private defence has been well propounded by a three Judges Bench of the Apex Court in the case of Jaidev v. State of Punjab, AIR 1963 SC 612 . If a person apprehends the assailant to cause grievous injury to him it would be open for him to defend himself even by causing the death of the assailant. However, in the exercise of his right he must use force necessary for the purpose and the violence which the person defending himself or his properties is entitled to use must be proportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. In the case at hand the deceased was just sweeping and cleaning the land. He was empty handed. He had nothing more than a broomstick. The prosecution witnesses too had no weapons in their hands. The deceased was not taking away the land nor was he changing its nature or damaging the same. No overt act at all was committed by the deceased or any of the prosecution witnesses. No harm/injury was likely to be caused to the accused or the land in dispute. At the relevant time, there was no threat to the life and property of the accused. Besides, right of private defence of life and property cannot be exercised against unarmed persons. 24. The accused brought on records, fardbeyan (Ext. No harm/injury was likely to be caused to the accused or the land in dispute. At the relevant time, there was no threat to the life and property of the accused. Besides, right of private defence of life and property cannot be exercised against unarmed persons. 24. The accused brought on records, fardbeyan (Ext. A) of Akshay Singh recorded at 6.30 a.m. on 23-12-1987 at Arrah Sadar Hospital giving rise to Tarari P. S. Case No. 86 of 1987 to show that the prosecution party was aggressor and he was attacked by the deceased and others while he along with his certain relatives was sitting at his Darwaza and in the incident he was inflicted lathi blow by P.W. 4, Rajendra Singh. As already observed, no evidence was led by the accused in respect of the incident leading to infliction of assault on Akshay Singh. The fardbeyan not being a substantive piece of evidence cannot by itself establish that the prosecution case is doubtful and the same must be thrown over board and the case laid in Ext. A is true and genuine. Assuming genuiness and truthfulness of Ext. A. it may be stated that it is in respect of another incident taking place at a different place and not at the place of occurrence as alleged by the prosecution and that is why the fardbeyan (Ext. A) is silent on infliction of fatal injury on the deceased. It is also worthwhile to mention that neither the injured accused Akshay Singh nor any other accused in his statement under Sec. 313, Cr. P. C. spoke of the incident narrated in the fardbeyan (Ext. A) nor was there any whisper in regard to the exercise of private defence by them. Even if it is assumed for the sake of argument though there is no justification for such assumption that Akshay Singh was assaulted by P.W. 4 Rajendra Singh and the accused was entitled to exercise right of private defence, their act in using violence to eliminate the deceased and to cause gun shot injury to his brother (P.W. 4) must be said to be disproportionate to the harm/injury which was to be averted or anticipated. 25. All the five accused other than the accused Rameshwar Singh @ Kamta Singh were convicted under Secs. 302 and 307 with aid of sec. 149 of the Code. 25. All the five accused other than the accused Rameshwar Singh @ Kamta Singh were convicted under Secs. 302 and 307 with aid of sec. 149 of the Code. Though no argument was at the time of hearing advanced to assail conviction of the accused with the aid of sec. 149, it is deemed just and proper to consider propriety or otherwise of their conviction with the aid of sec. 149 of the Code. sec. 149 deals with vicarious liability of the members of the unlawful assembly for act done in prosecution of the common object of that assembly or for such offence as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. If an unlawful assembly is formed with the common object of committing an offence and if that offence is committed in prosecution of the common object all the members of the assembly will be vicariously liable for that offence even if one or more but not all committed the offence. Direct proof of all the accused sharing common object or having knowledge that a particular offence is to be committed in prosecution of common object of the unlawful assembly is seldom available and such common object can only be inferred from the circumstances appearing from the proved facts and circumstances of the case. It is recited In the first information report that the accused Rajeshwar Singh @ Kamta Singh and Akshay Singh @ Sheoji Singh armed with guns and other accused persons having various lethal weapons arrived at the scene of incident. The informant Gupteshwar Singh (P.W. 5) stated that the accused Rajeshwar Singh and Sheoji Singh were armed with guns while the accused Besh Lal Singh and Nagina Singh (since dead) were having farsa and spear respectively and other accused persons were having lathi in their hands. Identical is the evidence of P.W. 4 Rajendra Singh, P.W. 3 Harihar Singh, P.W. 2 Samhoot Singh and P.W. 1 Jagdish Singh on this point with slight difference that P.W. 2 stated that the accused Besh Lal Singh was having spear and the accused Sikandar Singh was armed with Pasuli. This inconsistency in the statement of P.W. 2 and that of other witnesses might have occurred due to defective memory or loss of memory with passage of long interval of time of about six years from the date of occurrence. This inconsistency in the statement of P.W. 2 and that of other witnesses might have occurred due to defective memory or loss of memory with passage of long interval of time of about six years from the date of occurrence. It has come in the evidence that all the accused persons coming out of one and the same house of Nagina Singh appeared at the scene of incident. All the accused persons must be deemed to have formed an unlawful assembly the common object of which was to eliminate the deceased and his brother and in prosecution of the common object the deceased was shot dead and an attempt on life of his brother (P.W. 4) was made by one of the members of the unlawful assembly, namely, Rajeshwar Singh @ Kamta Singh. They must be held to have knowledge of the common object of the assembly. Hence, all the accused persons were liable and they were rightly convicted with aid and assistance of Sec. 149 of the Code. There is no ground or reason to interfere with conviction and sentence recorded by the Court below against the accused persons. 26. To conclude there is no merit in the appeals which must fail. Accordingly, all the three appeals are dismissed and the impugned judgment and order of conviction and sentence stands maintained and confirmed. The accused Rajeshwar Singh @ Kamta Singh is already in jail custody. Let him serve the remainder of sentence The appellants Sikandar Singh, Harendra Singh, Shankar Singh, Sheoji Singh @ Akshay Singh and Besh Lal Singh @ Bansh Lal Singh are on bail. Their bail bonds are cancelled. Let them be directed to surrender before the trial Court within four weeks to serve out sentences awarded to them failing which the Court below shall take coercive steps for procuring their surrender/arrest.