Judgment SHIVA KIRTI SINGH and SUBASH CHANDRA JHA JJ. 1. This appeal has been preferred by the sole appellant against his conviction under sec. 302 of the I.P.C. by the impugned judgment dated 2nd February, 2002 passed by learned 1st. Addl. Sessions Judge, Sitamarhi in Sessions Trial No. 171/97/19/01. 2. The charge found proved against the appellant is of having caused death of his brother Ram Nandan Sharma (deceased) and for that he has been awarded the sentence of rigorous imprisonment for life. He has further been sentenced to pay a, fine of Rs. 10,000/- and in default to under go rigorous inprisonment for a further period of two years. In case of realisation the amount of fine has been directed to be paid to the wife of the deceased as compensation. 3. The prosecution case, in brief, is that on 9th November, 1996 when the deceased had gone out in the evening from his house in village Sauria (Chhotaki) P.S. Nanpur, District Sitamarhi to attend the call of nature, he was followed by the accused/appellant. Some time later the wife of the deceased, Maheran Devi (P.W. 3) heard sound of firing and when she came out of the house at some distance found her husband fallen down on the earth having received fire arm injury. The mother of the deceased who is also mother of the appellant, Sarbasia Devi (P.W. 2) also heard the noise and saw the deceased fallen down on the earth. Amongst others, Abdul Gafoor (P.W. 4), a co-villager reported that he had seen Ram Nandan Sharma the deceased going on the way and behind him was Ram Akshay Sharma the accused/appellant. The wife of the deceased, as claimed by her, lodged a Fardbeyan with the police when the police arrived in the village on the next morning and disclosed to the police that because of previous enmity on account of payment of Rs. 18,000/- by the deceased to the accused and on refusal of the accused/appellant to execute a sale deed in respect of some land, as promised, the accused had warned the deceased not to press for execution of sale deed in respect of the land otherwise he would not live to see the festival of Diwali which was to follow soon. 18,000/- by the deceased to the accused and on refusal of the accused/appellant to execute a sale deed in respect of some land, as promised, the accused had warned the deceased not to press for execution of sale deed in respect of the land otherwise he would not live to see the festival of Diwali which was to follow soon. According to the wife of the deceased and the prosecution case, when the deceased was returning after attending the call of nature, the accused killed him by means of fire arm shot from the back which resulted in his death. 4. The fardbeyan and the F.I.R. which are available on record as part of the police papers have not been formally proved by the prosecution but on that basis investigation was carried on, witnesses were examined, allegedly recovery of the weapon of assault and empty cartridge was also made from near the place of occurrence in the village after the arrest of the accused effected two days after the occurrence. The dead body was sent for postmortem examination and the post-mortem report has been proved by the doctor as Exhibit-1. 5. On submission of chargesheet against the accused/appellant the trial commenced with framing of charge to which appellant pleaded not guilty. His general defence appears to be denial of the occurrence in the manner alleged by the prosecution. 6. In order to prove the charge of murder against the accused the prosecution has examined only six witnesses in total. P.W. 1, Ram Kishun Sharma is father of the deceased and the appellant. P.W. 2, Sarbasia Devi, as mentioned earlier, is mother of the deceased and the appellant. P.W. 3, Matheran Devi is wife of the deceased and is also informant of the case. P.W. 4, Abdul Gafoor is a co-villager. P.W. 5, Ashok Sharma is a minor son of the deceased who has been only tendered for cross-examination, P.W.6 is Dr. Surendra Choudhary who conducted autopsy on the dead body of the deceased and has proved the postmortem report. 7. The evidence of P.Ws. 1, 2 and 3 when read in their entirety leave no manner of doubt that on the date of occurrence at about 6 P.M. the deceased went out of his house to attend the call of nature and soon thereafter the accused also went out. 7. The evidence of P.Ws. 1, 2 and 3 when read in their entirety leave no manner of doubt that on the date of occurrence at about 6 P.M. the deceased went out of his house to attend the call of nature and soon thereafter the accused also went out. It further emerges from their evidence that earlier the two brothers were living jointly at Delhi doing the work of carpenter and there the accused had developed dis-satisfaction on account of non-realisation of money from some customers where both the brothers had jointly worked. To any how compensate himself for that money the accused promised that he would transfer four kathas of his land to the deceased and for that he was paid a consideration of Rs. 18,000/- in instalments but subsequently the accused took the stand that the money, he had received as consideration was for the loss he had suffered at Delhi and that he would not transfer the land to the deceased. 8. From the evidence of the aforesaid witnesses who are relations of the deceased as well as for the accused/appellant it further appears that when the deceased was approximately at a distance of 4-5 lagies from a hand-pump placed at the Darwaja of the deceased and the accused, there was a sound of firing, the inmates of the house, including the witnesses and some other villagers rushed there and found the deceased fallen down on the earth. The witnesses have claimed that there was immediate report by some villagers that the accused had killed the deceased and fled away. 9. It further appears from the evidence on record that soon after the occurrence the accused/appellant was searched, was not available even till lodging of the F.I.R. on the next day and it was on the second day when the police came to the village, the accused/appellant was apprehended. There is oral evidence of the aforesaid witnesses that on being apprehended the accused/appellant confessed his guilty and showed the place where the arm and empty cartridge was hidden and the same was recovered and seized by the police. It is relevant to add here that seizure memo has not been formally proved and brought on record although it is available in the police papers. 10. It is relevant to add here that seizure memo has not been formally proved and brought on record although it is available in the police papers. 10. The trial court carefully went through the evidence of witnesses and chose to reply upon them for different purposes but it placed main reliance upon P.W.2, Sarbasis Devi, the mother of the deceased as well as the appellant by treating her to be eye witness. Learned counsel for the appellant has submitted on the basis of her evidence on record that in cross-examination she has admitted that she reached near the dead body of her son on hearing the sound of firing. Hence it has been submitted that on account of her own evidence as well as on account of version of the occurrence given by the informant (P.W. 3) the court below was not justified in treating P.W. 2 to be an eye witness of the occurrence. On going though the relevant materials we are in agreement with the learned counsel for the appellant that P.W. 2 should not have been relied upon as eye witness of the alleged occurrence. From her evidence as well as from the evidence of P.W. 3 it appears that although the occurrence took place quite close to the hand-pump situated at the Darwaja of their house, they rushed to the place of occurrence only after hearing the sound of firing. P.W. 2 in paragraph-10 of her deposition has honestly admitted that she had stated to the police officer that she had not seen the actual assault but she saw the accused running away and at that time she was at a distance of 6-7 lagies and soon thereafter her daughter-in-law (P.W. 3) also arrived. 11. On a very careful examination of all the facts and circumstances we have no hesitation in placing full reliance upon the evidence of P.W. 2 as noticed above that she saw the accused running away but did not see the actual occurrence. She being mother of both the deceased and the appellant is not expected to add even a grain of falsehood to what she saw, heard and perceived. Even in the court her demeanour recorded by the trial court in paragraphs shows that after she had stated that the accused admitted his guilt and showed the revolver which was recovered, she started crying. Even in the court her demeanour recorded by the trial court in paragraphs shows that after she had stated that the accused admitted his guilt and showed the revolver which was recovered, she started crying. Such demeanour is of a mother who unfortunately was the witness of the killing of her one son by another son. The medical evidence available on record and the postmortem report contained in exhibit-1 amply supports the prosecution case that the deceased received a fire arm injury from the back side. The doctor has found the wound of entry by a fire arm on the back of the deceased which was from a close range as apparent from charring mark on the skin surrounding the wound of entry. In the opinion of the doctor the other injury on the left side of front of chest was wound of exit: the wound of entry was caused by firing from a distance of about 3 feet and it was sufficient in ordinary course of nature to cause death. 12. We have been called upon to examine the legal effect of non-examination of the Investigating Officer by the prosecution and to give its benefit to the accused because it has been claimed that he has been prejudiced in his defence due to such non-examination of the I.O. We have given anxious consideration to this aspect of the matter and on going through the questions put to the witnesses in respect of their earlier statements to the I.O. we have found that except the confession on that P.W. 2 was wrongly claiming to be an eye witness which was subsequently clarified by her evidence as noticed above there is no material brought on record by drawing the attention of the witnesses during examination which may prejudice the defence in any material aspect. The relevant and material facts and circumstances for getting the appellant convicted have been amply proved by the prosecution through reliable evidence. In fact, the non-examination of the I.O. which apparently has led to none proving of the formal F.I.R. and Fardbeyan in his hand-writing and none proving of the memo of seizure of fire arm has caused prejudice rather to the prosecution case. The counsel who was acting as Public Prosecutor/Addl. In fact, the non-examination of the I.O. which apparently has led to none proving of the formal F.I.R. and Fardbeyan in his hand-writing and none proving of the memo of seizure of fire arm has caused prejudice rather to the prosecution case. The counsel who was acting as Public Prosecutor/Addl. Public Prosecutor, we are constrained to observe, did not act efficiently and did not take the required steps of proving the documents through other means if the I.O. could not be located despite best efforts. The court below should also have shown more concern at the relevant stage to see that material pieces of evidence available with the police papers should not have been left out. 13. We had two courses open for us in the aforesaid circumstances. On serious consideration of the materials available on record, we opted not to send the matter to the court below for recording additional evidence because on the basis of evidence available on record we are satisfied that the prosecution has been able to prove the charge under sec. 302 I.P.C. against the appellant. 14. We have also been called upon to examine the legal question as to whether failure of the prosecution to prove the fardbeyan and formal F.I.R. must be treated to be fatal to the prosecution case. In this regard learned counsel for the State has rightly submitted that the fardbeyan and the F.I.R. are not substantive evidence and their purpose is to corroborate or contradict its maker. He relied upon a Division Bench Judgment of this court in the case of the State Vs. Ramprasad Singh reported in 1953 BLJR 333 . In that case the fardbeyan of an injured was admitted in evidence after the injured died. treating it as a dying declaration of the injured. On account of legal difficulty arising due to medical opinion regarding the cause of death, the High Court held that even if the Fard-beyan could not have been treated as dying delcaration and therefore the trial court wrongly admitted it in evidence, there was no need for sending the matter back for retrial because on scrutiny of the evidence available on record even after discarding the Fard-beyan, this court was satisfied that the charges stood proved by the residue of the prosecution evidence. This view is now fully fortified by a recent judgment of the Supreme Court particularly paragraph-35 in the case of Krishna Mochi Vs. State of Bihar, 2002 SCC (Cri) 1220. 15. In the present case whatever material was stated in the fardbeyan and the F.I.R. has been stated by its maker, P.W. 3 in court and she has been fully cross-examined on all relevant aspects and hence there is no good ground to hold that the prosecution case must fail only because the fardbeyan and formal F.I.R. could not be proved. In this case there is no allegation of deliberate suppression of the Fard-beyan or F.I.R. for any advantage to the prosecution. The charge framed against the accused/appellant stands proved by the evidence available on record. 16. We would like to add a word of caution that ordinarily we would have decided for sending the matter back to the court below so that such mistakes are not repeated and the criminal cases involving serious charges are not handled in such a casual fashion but since on other available materials on record we find no difficulty in affirming the judgment of conviction, we decided to dispose of the appeal without unnecessarily remitting the matter to the trial court. As a result of aforesaid discussions, we find no merit in the appeal, the judgment and order of conviction and sentence passed against the appellant are hereby confirmed. This appeal stands dismissed.