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2010 DIGILAW 1180 (PAT)

Raghubansh Rai v. State Of Bihar

2010-05-07

GOPAL PRASAD, SHYAM KISHORE SHARMA

body2010
JUDGEMENT Gopal Prasad, J. 1. These two criminal appeals (Cr. Appeal (D. B.) No.491 and 2004 and Cr. Appeal (D. B.) No.521 of 2004) are being heard together and disposed of by this common judgment in view of the fact that both the appeals arise out of the same judgment passed in Sessions Trial No.197/93 of 2001 by the Additional Fast Track Court, II, Patna, dated 30.06.2006. 2. The appellants, Raghubansh Rai and Bira Rai of Cr. Appeal (D. B.) No.491 of 2004 and appellants Kuldeep Rai and Udit Narain Rai of Cr. Appeal (D. B.) No.521 of 2004 have been convicted under Sec.302/34 of the Penal Code and have been sentenced to undergo rigorous imprisonment for life. Accused Deep Narain Rai and Kuldeep Rai have further been convicted under Sec.27 of the Arms Act and have been sentenced to undergo rigorous imprisonment for three years for offence under Sec.27 of the Arms Act. However, it has been ordered that both the sentences, against the convicts, Deep Narain Rai and Kuldeep Rai, shall run concurrently. 3. The prosecution case, as alleged in the fardbeyan of the informant, Ram Bilas Rai, that on 25.09.1990 at about 05.30 p. m. his son, Laxman Kumar @ Nepali, went to bring his cloth from Supreme Tailor which was given for stitching. The said Supreme Tailor is beside the State Bank of India on Ashok Raj Path. The informant was at his shop, which is at Gandhi Chowk. In the meantime, accused, Deep Narain Rai, Bira Rai, Raghubansh Rai and Kuleep Yadav, were seen going towards the Bank and all were steering at him, this cast suspicion and then the informant also went after them. Further, case of the prosecution is that all the four went and stopped near Supreme Tailor, where Laxman Kumar, son of the informant was sitting in the shop of Tailor. In the meantime, Deep Narain Rai and Bira Rai commanded that he is Laxmanwa, who is sitting, kill him, and Deep Narain Rai and Kuldeep Rai took out country made pistol and fired which hit on the head of the son of the informant. It has further been alleged that all the four persons were armed with country made pistol and out of the firing of Deep Narain and Kuldeep, his son got injured and succumbed to injury. It has further been alleged that all the four persons were armed with country made pistol and out of the firing of Deep Narain and Kuldeep, his son got injured and succumbed to injury. The motive of the occurrence has been alleged as the prior enmity for the reason that on 06.10.1989 the accused persons have taken some clothes from his shop and when the money was demanded then they had threatened to kill and ultimately they killed. 4. However, after the occurrence in between 50.30 p. m. to 05.45 p. m. the fardbeyan was recorded at about 05.50 p. m. on 25.09.1990 near the said tailoring shop and the first information report was lodged at 06.45 p. m. on 25.09.1990 at Pirbahore Police Station and the investigation proceeded, but first information report was received at Chief Judicial Magistrate office on 27.09.1990 though after the investigation charge sheet was submitted, cognizance taken and subsequently the case was committed to the Court of sessions. After commitment the charge was framed under Sec.302/34 of the Penal Code against Bira Rai and Raghubansh Rai and charge was framed under Sections 302 of the Penal Code and 27 of the Arms Act against Kuldeep Rai and Deep Narain Rai. 5. After the framing of the charge sheet the trial proceeded and during trial six witnesses were examined, who are P. W.1, Munni Sao, P. W.2, Ram Bilas Rai, the informant and father of the deceased, P. W.3, Shiv Pujan Sao, the brother of the deceased, P. W.4, Md. Hedayatullah, owner of the tailoring shop, P. W.5, Dr. Arvind Kumar Singh, who has done autopsy on the person of the deceased, and P. W.6, Ram Singh, the investigating officer. Documentary evidence adduced in this case is Exhibit 1, the signature of the informant on the fardbeyan, Exhibit 1/1, the signature of Shiv Pujan on the fardbeyan, Exhibit 1/2, the signature of Ram Bilas Sao on the inquest report, Exhibit 2, a purza (prescription), Exhibit 3, the signature on the seizure list, Exhibit 4, the post mortem report, Exhibit 5, the written report, Exhibit 6, formal first information report, Exhibit 7, the inquest report, Exhibit 8, seizure list, Exhibit 9, the case diary, paragraphs 1 to 126. 6. The defence has also adduced oral evidence on behalf of the defence. 6. The defence has also adduced oral evidence on behalf of the defence. D. W.1 is Manoj Kumar, D. W.2 is Sona Lal Gupta, D. W.3 is Bhagwan Singh and D. W.4 is Ram Prasad Singh. 7. The defence of the appellants is that no occurrence, as alleged, occurred and the witnesses has deposed falsely and further that the deceased was a veteran criminal and was accused in several criminal cases or dacoity, murder or even sent to jail and may have been killed out of enmity by some unknown person and the witnesses had not seen the occurrence and no occurrence as alleged occurred at about the time, place and manner of occurrence and till the preparation of the inquest report the name of the assailants was not known and first information report is ante dated concocted after the post mortem examination and at the time of the occurrence the appellants were not at the place of occurrence and were at their village, indulged in agricultural operations and have falsely been implicated out of the enmity. 8. On considering the oral and documentary evidence and taking into consideration the submissions made by the learned counsel for the parties the learned Court below convicted and sentenced the appellants as stated above at the outset. 9. The learned counsel for the appellants, however, contends that P. W.1 has been declared hostile as not supported the prosecution case. The story and the evidence propounded by P. Ws.2 and 3 are of chance witness and the story propounded by them for their being at the place of occurrence as well as being the eye witness also does not appears to be probable and further there is contradiction that though both of them claim to be present at the site of occurrence, but, none is saying about the presence of the other specifically at and about the time and place of occurrence and, hence, contends that their presence at the site of occurrence itself is doubtful and, hence, contends that their evidence is neither reliable nor trustworthy nor worthy of confidence and, hence, their evidence as an eye witness required to be out right rejected and further P. W.4 has turned hostile and has not supported the prosecution case and is not the eye witness. It is further contended that delay in sending the first information report to Court cast s doubt on prosecution as first information report is ante dated and the name of the assailant not known and have been roped in the case after the post mortem examination and inquest report and till the name of assailants were not known and the accused persons were not present at the place of occurrence, but, were engaged in agriculture and, hence, contends that the prosecution has not been able to prove the charges beyond reasonable doubts. 10. The learned counsel for the State, however, contends that both the witnesses, P. Ws.2 and 3, are natural witnesses and their presence at the place of occurrence is most probable and can not be doubted and have supported the prosecution case about the involvement of the accused persons and they are the residents of the vicinity and the shops are also in the vicinity and just after the occurrence the police was informed and police reached at the place of occurrence and the statement of this informant having been recorded at the place of occurrence itself and their is nothing in their evidence to cast doubt on their evidence and their evidence are reliable, trustworthy and worthy of confidence and, hence, contended the prosecution has to prove the charges beyond reasonable doubts. 11. Hence, taking into consideration the respective submissions of the parties the question for consideration whether the prosecution has been able to prove the charges beyond reasonable doubts. 12. The prosecution, as alleged in the fardbeyan as well in the evidence of the witnesses that the four appellants while coming to Supreme Tailor, the way they were steering at the informant on his shop causing doubt to the informant and, thereafter, the informant went after them and then the four appellants reached at the tailoring shop and accused, Deep Narain and Kuldip Narain, fired at Laxman in shop of Supreme Tailor by which the deceased succumbed to injury. The motive for the occurrence alleged is about the prior enmity and the accused persons has taken clothes on credit from the shop of the informant and the deceased when demanded said money, the accused persons had threatened him for dire consequences. 13. The defence of the accused persons is that they have been falsely implicated and no occurrence, as alleged, occurred. 13. The defence of the accused persons is that they have been falsely implicated and no occurrence, as alleged, occurred. The accused persons were not present at the place and time of occurrence and the deceased as a veteran criminal, several cases were against him and the accused persons have taken the plea of alibi that they were harvesting the paddy crop at that time. The learned counsel for the appellants, however, contended that the prosecution is that accused persons were steering at the informant while going towards Supreme Tailor compelled him to go behind the appellants. This story of the informant, itself, appears to be doubtful and further the witnesses are the relative and there is delay in sending the first information report to the Chief Judicial Magistrate and, hence, the prosecution story is not believable and ought to be rejected. 14. However, in this background, I proceed to consider the evidence as to whether the prosecution has been able to prove the charges beyond reasonable doubts. I proceed to consider the evidence of Doctor first as the prosecution case is that the occurrence took place on 25.09.1990 and there is allegation that accused persons shot from few distance causing injury of the fire arm on the person of deceased by which the deceased succumbed to injury. 15. P. W.5 is the doctor, who has conducted the post mortem examination on the person of the deceased on 26.09.1990 at about 10.15 a. m. He has stated that the dead body of Laxman Kumar @ Nepali, aged about twenty years, was identified by the Home Guard, Ramakant Sharma, and he found the following ante mortem injuries (i) one penetrating wound 2x 1x into brain deep on the back of right ear (wound of entry) and (ii) margin lacerated and blackened though one penetrating 1x 1x into brain deep on right temporal region just below ear lobule margin blackened and a laceration. 16. On dissection projectile of injury no. (i) passed through terminal bone and injury no. (ii) right master royal. Both the bullets were taken out and kept in a packet, sealed and handed over to the Constable. He has opined that the time elapsed since death within 12 to 36 hours and cause of death is haemorrhage and shock due to above mentioned injuries. The injury was caused by fire arm. (ii) right master royal. Both the bullets were taken out and kept in a packet, sealed and handed over to the Constable. He has opined that the time elapsed since death within 12 to 36 hours and cause of death is haemorrhage and shock due to above mentioned injuries. The injury was caused by fire arm. The post mortem report has been marked as Exhibit 4. However, in cross examination he has stated that two injuries were possible by two shots may be of some fire arm. Hence, from the evidence of the doctor it is apparent that the time of occurrence is within 12 to 36 hours whereas the occurrence alleged to have been done on 25.09.1990 at 05.30 p. m. and the time of the post mortem is 26.09.1990 at 10.15 a. m. , hence, according to the doctor the occurrence is in between 12 to 36 hours and, hence, doctors evidence confirm the time of occurrence as time of occurrence falling within the stipulated period of death. The evidence of the doctor corroborates about the time of occurrence and further there is allegation that the accused fired at the deceased causing injury near the ear and the evidence of the doctor corroborated the prosecution case about the injuries fire arm shots from point blank range as the fire arm injury on deceased also found to be blackened. 17. P. W.6 is the investigating officer and he has stated that on 25.09.1990 he was posted as Assistant Sub Inspector of Police in Pirbahor Police Station and on that date at 05.45 p. m. while he was mobile duty at Engineering College More then received a wireless message that one Laxman Kumar @ Nepali has been shot at Gandhi Chauraha by fire arm injury and on the said information he proceeded to Ashok Raj Path at Mahendru Mohalla and reached the Supreme Trailor shop for physical verification and he saw the dead body of Laxman Kumar @ Nepali lying by the side of the road in front of Supreme Tailor shop. The father of the deceased, Rambilas Sao, informant, identified the deceased there and disclosed his name and there he recorded the fardbeyan of Rambilas Sao at 05.50 p. m. He has proved the fardbeyan in his evidence and signature of Rambilas Sao on the fardbeyan, which has been marked as Exhibit 5. The father of the deceased, Rambilas Sao, informant, identified the deceased there and disclosed his name and there he recorded the fardbeyan of Rambilas Sao at 05.50 p. m. He has proved the fardbeyan in his evidence and signature of Rambilas Sao on the fardbeyan, which has been marked as Exhibit 5. he has also stated that witness, Shivpujan Prasad, also signed on the fardbeyan and, thereafter, the fardbeyan was sent for lodging the first information report and has also proved the formal first information report in the writing of Assistant Sub Inspector of Police, Shreenivas Pandey, which has been marked as Annexure 6. He has further stated that the he inspected the place of occurrence, the shop of Supreme Tailor, which is adjacent north of Ashok Raj Path at a little distance from Gandhi Chauraha in Mahendru Mohalla, the dead body was found by the side of stairs of Supreme Tailor. A khokha (empty cartridge) was found on the body of the deceased. The blood was seen flowing at the counter of Supreme Tailor up to the road continuously. The blood lying there was not in a position to be collected. The description of the place of occurrence having been established as to the south of the place of occurrence there is house of Nathuni Sao, the land owner. In the north there is Ashok Raj Path and, thereafter the shop of Hakim Etwari and Sons and Neel Ratan Jewellers, in the east shop of wielding of Sukhu Mistri and in west the grocery shop of Raghu. He has further stated that at a distance of about 30-40 feets there is a Branch of State Bank of India an about twenty feets east there is Prameshwari Dyer. He has further stated that at the place of occurrence three glasses of tea which contain small amount of tea were found. He has also proved carbon copy of the inquest report which was prepared in same carbon, which has been marked as Exhibit 7. The seizure list about the empty cartridge has been marked as Exhibit 8. He has also proved the empty cartridges, seized at the dead body, which has been marked as material Exhibit 1 and has also stated that after post mortem a Constable collected pellets and clothes which have been kept at the Malkhana of Police Station. The seizure list about the empty cartridge has been marked as Exhibit 8. He has also proved the empty cartridges, seized at the dead body, which has been marked as material Exhibit 1 and has also stated that after post mortem a Constable collected pellets and clothes which have been kept at the Malkhana of Police Station. He has further stated in cross examination that Patna Civil Court is at a distance of about 100 feets from Pirbahore Police Station. The fardbeyan was recorded on 25.09.1990 at 05.50 p. m. , first information report drawn at 06.45 p. m. , however, he denied the suggestion that the first information report was prepared on 27.09.1990 after having knowledge about the post mortem report on 27.09.1990. Hence, from the evidence, the place of occurrence has been stated to be the Supreme Tailor Shop, the blood was found at the counter and the dead body was lying near the stair of Supreme Tailor and a cartridge was also found which has been marked as Exhibit 1. 18. However, P. W.1 has stated that the occurrence was about two days prior to Dussehra Puja and his shop is about two shops east of Supreme Tailor and has stated that Laxman Sao has order for three cups of tea on behalf of Supreme Tailor and he went along with tea and served three glasses of tea and after five minutes he heard the sound of firing and, thereafter, he closed the shop and went out. He has further stated that he had been to serve the tea then Laxman Kumar @ Nepali was sitting in the shop of Supreme Trailor and, hence, from the evidence of this witness it is apparent that prior to the time of occurrence Laxman Kumar was sitting in the shop of Supreme Tailor, he made an order for tea and it was served, just five minutes before the occurrence. Further, he stated that he heard the sound of firing just after five minutes when he served tea and, hence, from the evidence of this witness as well as from the evidence of the investigating officer the place of occurrence has been established and it is well settled that the occurrence took place at the shop of Supreme Tailor at about the time of occurrence. 19. P. W.2 is the informant. 19. P. W.2 is the informant. However, in his evidence he stated that on 25.09.1990 at 05.30 p. m. he was at his shop near Gandhi Chauraha and Laxman Kumar had gone to the tailoring shop for bring his clothes. The said shop, Supreme Tailor, is by the side of the State Bank of India in Mahendru Mohalla then 3-4 persons were steering at him, they were Deep Narain Rai, Bira Rai, Raghubansh Rai and Kuldip Rai, residents of the same place and they were going from west to east towards the State Bank of India. He doubted their conduct and so followed them and when he reached near Supreme Tailor where his son was sitting, he saw Deep Narain Rain and Bira Rai said this is Laxmanwa, kill him and Deep Narain Rai got on ota and pointed pistol, Kuldip Rai also took out his pistol and, thereafter, Deep narain Rai and Kuldip Rai, both, fired, which hit at or near the ear of his son by which the son of the informant fell down then he made hulla, in the meantime, his son, Shivpujan Prasad, reached near him and the accused persons fled away after making firing. He has proved his signature on the fardbeyan. He has further stated that the police reached there and recorded his statement and has proved his signature, which has been marked as Exhibit 1 and has also proved his signature of Shivpujan Prasad on the fardbeyan which has been marked as Exhibit 1/1. He has further stated that Deep Narain Rai has taken clothes from his shop on credit and he and Laxman Kumar used to demand money and the accused persons had threatened and this is the reason for the occurrence. He has further stated that at the time of firing the shop was opened and he was at a distance of 1 to 2 bamboos (bans ). He has further stated that after firing there was stampede and the people started fleeing away after closing the shops and at the time of firing the owner of the shop, his son and employees of the shop were there. He has further stated that after firing there was stampede and the people started fleeing away after closing the shops and at the time of firing the owner of the shop, his son and employees of the shop were there. He has further stated that abut 150-200 yards east of Supreme Tailor the accused persons reside and the accused persons always used to visit Mahendru and, hence, there is nothing in his evidence to disbelieve his testimony either about the time, place and manner of occurrence. He has stated that time of occurrence is 05.30 p. m. , just after the occurrence the police came and recorded his statement and he has named the accused persons and has stated that two firing caused the injury of the deceased by which the deceased succumbed to injury. 20. P. W.3 is Shivpujan Sah. He stated that on 25.09.1990 it about 05.30 to 06.00 p. m. , his brother Laxman Kumar had come to the shop for taking the clothes which he has given for stitching, in the meantime, he saw four persons, Deep Narain Rai, Kuldip Rai, Bira Rai and Raghubansh rai, coming from the side of the State Bank of India and all the four stopped there and Bira and Deep Narain stated that this is Laxmanwa and, thereafter Deep Narain Rai and Kuldip Rai went on Supreme Tailor, pointed pistol and both fired, which hit at the ear. Deep Narain Rail unloaded his pistol and the empty cartridge fell and again he reloaded and fired and the accused persons fled away chasing him. He said that he hid himself in the gali near Devi Asthan and, thereafter, he came back to Supreme Tailor. He has proved the purza in the writing of Deep Narain, which has been marked as Exhibit 2. He has further stated that accused persons used to sell milk earlier. He has also stated that adjacent east of the State Bank of India there is Supreme Tailor and to the west there is Suli Tola at a distance of 100-150 years and they have got his shop at Suli Tola. He has further stated that accused persons used to sell milk earlier. He has also stated that adjacent east of the State Bank of India there is Supreme Tailor and to the west there is Suli Tola at a distance of 100-150 years and they have got his shop at Suli Tola. He has stated that he has stated before the police that four accused persons stopped near the shop and Deep Narain Rai and Bira Rai said that this is Laxmanwa, kill him and, thereafter, pointed the pistol and even disclosed before the police that Deep Narain unleaded the pistol and the empty cartridge fell down and when he was fleeing away Deep Narain fired at him. However, the attention drawn regarding these facts to this witness for taking contradiction. 21. P. W.6 is the investigating officer and for taking contradiction in paragraph 25 of the evidence and investigating officer has stated that all the persons stopped near his shop and Bira Rai and Deep Narain said to surround and Kuldip Rai got over the shop and pointed the pistol, however, in the evidence the investigating officer has specifically stated that Shivpujan (P. W.3) has stated that Kuldip Rai and Deep Narain Rai fired and Deep Narain unloaded the pistol by which empty cartridge fell. However, the question for consideration is whether these evidence amounts to contradiction. However, the investigating officer in his evidence stated that this witness had stated that Kuldip Rai and Deep Narain Rai fired. However, attention has been drawn regarding the fact which this witness stated in Court about the occurrence, however, his attention has been drawn that witness has not stated before the police certain fact. However, the investigating officer has stated that this witness stated about the firing by Kuldip Rai and Deep Narain Rai. However, when this witness has stated the material fact that who were the assailants and which weapon used by the assailants and act for using the weapon. However, the investigating officer has stated that this witness stated about the firing by Kuldip Rai and Deep Narain Rai. However, when this witness has stated the material fact that who were the assailants and which weapon used by the assailants and act for using the weapon. This witness if not used the same language before the investigating officer and in Court or has not stated the details about the occurrence in his statement under Sec.161 of the Criminal Procedure Code before the police or police having not recorded the evidence in great detail with minutes particularly the evidence of P. W.3 can not be disbelieved on this ground or can not be said to be in contradiction to his earlier statement. However, a person may describe anything in different manner and merely because the manner of description having been different on this ground it can not be stated that the evidence are contradictory. However, contradiction and statement can only be said to be contradictory if the two statements can not co-exist, i. e. , the existence of one is contradictory to the statement of another statement, but, if the two statements co-exist together it can not be said that it is contradictory statement. Having regard to the fact that this witness have stated about the assault, i. e. , firing, stated named the accused then merely because the minutes details have not been stated, the statement of this witness can not be said to be in contradiction to his earlier statement before the police when the two statements can co-exist together. However, here the attention has been drawn about the minutes detail of the statement that how the accused persons assaulted, where they stopped, where they fired whereas the investigating officer has stated that this witness has stated the name of the accused persons, Kuldip Rai and Deep Narain Rai, attributing their role in firing from pistol and, hence, the minute discussion about the assault having not been recorded can not be a ground to disbelieve that part of the evidence as contradictory when the crux of the facts about the manner of assault of firing and name of accused having been mentioned by this witness. However, going into the entire facts and the cross examination neither anything has been pointed out in evidence about the manner, time or place of occurrence to disbelieve the testimony of this witness. However, going into the entire facts and the cross examination neither anything has been pointed out in evidence about the manner, time or place of occurrence to disbelieve the testimony of this witness. The only criticism advanced that this witness has stated that accused persons reached near the place of occurrence and accused persons fired at deceased then he fled away does not appear to be probable about the reaching of this witness. However, having regard to the fact that when the evidence of this witness is strictly scrutinized, I do not find any inconformity in the evidence of this witness to disbelieve his testimony and, hence, the evidence, of this witness can not be ignored or doubted merely because that his presence at the place of occurrence does not appear to be reliable or probable. However, having regard to the fact that the shop of this witness is only at a distance of 100-150 yards, both, the accused persons and this witness are residents of the same area, hence, the presence of this witness is very much probable at the site of occurrence. 22. P. W.4 is Md. Hedayatullah. He is owner of the tailoring shop. However, he stated that his shop is by the side of the State Bank of India. The occurrence has taken at about 05.00-06.00 p. m. and at that time Naushad was the employee and there is a small boy on the date of occurrence, some customers came and Nepali was killed by firing and about 4-5 days, prior to the occurrence, Nepali had come to give clothes for stitching. He has further stated that he ordered for tea and they took tea. He has further stated that at once he tried to hid himself and he saw a person pointing pistol at him and then this witness fled away in the dressing room and then he heard about the sound of firing and after 6-7 minutes he came out and found Nepali fell and he died between 15 to 20 minutes. However, this witness has been declared hostile. This witness supports the prosecution case about the manner of occurrence that a person came, pointed pistol and fired by which his son Nepali died. However, this witness has been declared hostile. This witness supports the prosecution case about the manner of occurrence that a person came, pointed pistol and fired by which his son Nepali died. Having regard to the fact that if his evidence believed then he has stated that Nepali order for tea then tea served and, thereafter, a person came at the shop, pointed pistol, this witness hide himself in the dressing room then this witness heard a sound of firing and, thereafter, he came out of dressing room and saw Nepali dead. Hence, in this fact only conclusion can be drawn that Nepali died out of njury by fire arm and the manner of occurrence is established by the evidence of this witness. However, his evidence is not of much relevance. 23. Taking into consideration the entire evidence it is apparent that the P. Ws.1, 2, 3 and 4 have supported the prosecution case about the time of occurrence at about 05.30 p. m. P. W.1 has stated that Laxman was there at the tailoring shop and even ordered for tea and P. W.1 served him three glasses of tea and after five minutes he heard the sound of firing. P. W.4 has also said that Laxman had come and was sitting on the shop when one person came and shot though this person has been declared hostile. P. Ws.2 and 3 are the eye witnesses to the occurrence, however, they are father and brother of the deceased. Their evidence is also that the occurrence took place at 05.30 p. m. and four persons came and out of them Kuldip Rai and Deep Narain Rai fired causing injury to Laxman, the deceased, by which Laxman succumbed to injury. The occurrence has been established to have been taken place at about 05.30 p. m. Just after the occurrence the police came, recorded the statement of the informant at about 05.50 p. m. and the first information report was drawn at 06.45 p. m. The evidence of the investigating officer found the dead body at the place of occurrence, just after the occurrence in the pool of blood at the shop of Supreme Tailor. The investigating officer has also described the description of the place of occurrence and, hence, the place of occurrence has also been established and so far the manner is concerned and name of accused, concerned, has come in evidence that just after the occurrence the police reached the place of occurrence within ten minutes and recorded fardbeyan and in the fardbeyan the name of the accused and manner of occurrence, the witness stated about the firing and P. Ws.2 and 3 have identified the accused persons and have supported the prosecution case about the occurrence. There is nothing in the evidence of these witnesses to discard or disbelieve. 24. The learned counsel for the appellants have contended that there is delay in sending the first information report to the Chief Judicial Magistrate and has contended that first information report is ante dated, after report of the post mortem examination was known to the prosecution about the nature of injury so that they could be attributed to the appellants as per the report. However, the fact remain that the occurrence took place in between 05.30 to 05.45 p. m. , the investigating officer received the information at 05.45 p. m. while he was on duty near Engineering College More, and he rushed to the place of occurrence immediately, which was in the vicinity of the place where he was on duty and reached even within five minutes and found the dead body, which was identified by the father to this investigating officer and the fardbeyan was recorded at 05.50 p. m. , just after the occurrence. If the first information report recorded within five minutes, there was no chance or little chance for false implication. The investigating officer also found the father, the brother of the deceased at the place of occurrence where he reached there at the place of occurrence and both signed on the fardbeyan and in the fardbeyan there is specific allegation about the name of the appellants as well as attributing the role of firing to Kuldip Rai and Deep Narain Rai with specific allegation of the firing which hit the deceased at his ear by which he succumbed to injury and there is nothing in the evidence of P. Ws.2 and 3 to disbelieve the testimony. 25. 25. The learned counsel for the appellants contends that since there was delay in sending the first information report to the Court/magistrate the evidence of P. W.2 or plea about reaching at the place of occurrence on suspicion in the mind of the informant on watching the conduct of accused is improbable and repugnant to normal common sense. However the defence not able to show any irregularity or illegality in the entire evidence of the witnesses and on strict scrutiny I also did not find any illegality or irregularity in the evidence to disbelieve the testimony and no infirmity has been found. It is true that there is some delay, however, the occurrence took place on 25.09.1990, fardbeyan was recorded at 05.50 p. m. at the place of occurrence and, thereafter, it was sent to the Police Station on the basis of which the first information report was drawn at 06.45 p. m. , which ought to have been sent to the Chief Judicial Magistrate on 26.09.1990 only instead it had been sent on 27.09.1990 and so there is delay of only one day merely because this it can not be a ground to disbelieve the prosecution story unless some infirmity is found to the contrary or some irregularity has been pointed out in the evidence about the manner of investigation and the mere ground that there is only delay in sending the first information report to the Chief Judicial Magistrate, itself, can not be a ground to disbelieve the evidence of P. W.2. So far the improbability pointed out is not as such to disbelieve the prosecution story in the background of facts and circumstance their evidence is reliable and nothing in evidence pointed out to disbelieve the testimony of the witnesses. 26. The learned counsel for the appellants, however, contends that none of the witnesses come forward to support the prosecution case. However, in the particular facts and circumstances of this case, since, the informant and the deceased, both, reside together there is proximity as it has come in the evidence of P. Ws.2 and 3 that the accused persons also reside at a distance of 100-150 yards from the shop of the informant and they used to visit bazar even it has come that they sell milk and, hence, in such a circumstance the witnesses are reluctant to name the appellants. P. W.4, who is owner of the tailoring shop, has not supported the prosecution case about the identification of the accused. However, he has stated that on seeing the occurrence he went inside the dressing room and he shown that he is reluctant to name the accused. It is the general tendency that witness do not want to involve themselves to depose against the accused in criminal case as they think it is case between the parties and it is not their business to depose and this tendency is increasing more and more not only in village, but, also in city area. 27. The accused persons have also adduced evidence. D. W.1 has stated that he heard the sound of firing, but, he did not identify the person. This witness stated that Deep Narain Rai, Kuldip Rai, Bira Rai and Raghubansh Rai were not there, however, this witness claim to be eye witness, but, has not come to support the prosecution case before the police and has come to depose that the accused persons were not there. He has not stated who were there and he is an owner of betel shop and his shop is at a distance of 30-35 yards from the shop of Supreme Tailor, but, he can not say that at the time of occurrence there was a stampede. The evidence of this witness is not reliable. This witness is in service in a factory at Muzaffarpur. 28. D. W.2 has come and stated that the time of occurrence is 05.00 p. m. in which Laxman was killed and only one person killed him, Deep Narain Rai, Kuldip Rai, Bira Rai and Raghubansh Rai were not the persons who killed Laxman. In his cross examination he stated that the wife of the accused persons used to come at his shop. Similarly D. W.3 has stated that his village is about 4-5 K. M. away from Patna town and the Ganga river is in between and the accused, Deep Narain Rai, Kuldip Rai, Bira Rai and Raghubansh Rai, are residents of his village and they have cut maize crop and he was harvesting maize crop and all the accused persons were also harvesting maize crop and their fields are by the side of the field of this witness and they were in the field from morning to evening. However, this witness states that he can not say the plot number, khata number of the field of accused persons and he did not remember that that in the year 1990 on which date he harvested the crop. 29. D. W.4 has also come to support the alibi that the accused persons were come to harvest the maize crop. However, he has stated that he can not say the plot number or the boundary of the field of the accused persons and, hence, evidence of this witness does not inspire the confidence of alibi as he is unable to say even the boundary of the said field in which the accused persons were harvesting maize crop, hence, the defence witnesses have come to show only that at the time of occurrence these persons were not amongst the shooter. If they claim to have seen the occurrence they could have made their statement before the police, if interested. 30. The learned counsel for the appellants, however, contends that P. Ws.2 and 3 are chance witnesses and their story about the presence at the place of occurrence is not believable. However, the shop of the witnesses is in the same locality in which place of occurrence exist at a distance of 150 yards of the shop of the informant. All the appellants and the witnesses have their shops and residences within close vicinity of place of occurrence. The informant has given reason for being there at the place of occurrence and there was enmity with the accused persons and since the accused persons, while passing through, steered at him causing suspicion. There is nothing to disbelieve the presence of witnesses at the site of occurrence and their presence neither improbable nor appear to be repugnant to normal common sense. 31. Having regard to the fact that though in the prosecution story four accused persons were going steering at the informant and, thereafter, it is stated that Bira Rai and Deep Narain Rai said that this is Laxmanwa, there is no occasion for calling that he is Laxmanwa when the prosecution case, itself, that there was prior enmity with the accused persons, who were known to each other and no role has been attributed to Bira Rai and Raghubansh Rai at all except that they were seen together going. It has been stated that Kuldip fired after getting over the ota of the shop, but, there is no allegation against Bira Rai and Raghubansh Rai attributing them any role in firing upon the deceased. There is no evidence about any conspiracy and any material in the entire evidence about their involvement in the crime. 32. Having regarding to the facts and circumstances, I find and hold that the prosecution has been able to prove the charges beyond reasonable doubts against accused, Kuldip Rai and Deep Narain Rai for offence under Sections 302/34 of the Penal Code and 27 of the Arms Act for alleged murder of Laxman Kumar @ Nepali and, hence, the conviction and sentence recorded by the learned lower Court against them is hereby confirmed. 33. So far Bira Rai and Raghubansh Rai are concerned, there is only allegation that they said that this is Laxman and no role has been attributed either to Bira Rai or Raghubansh Rai and allegation against them is omni bus of having calling the deceased, Laxman Kumar @ Nepali. Under the facts and circumstances they are entitled for benefit of doubt as well as there is no cogent and reliable evidence against them for their involvement in the crime. The learned lower Court misdirected itself in convicting them for offence under Sections 302/34 of the Penal Code and 27 of the Arms Act without considering their case separately from the case of Deep Narain Rai and Kuldip Rai. Hence, they are order to be acquitted of the charge for offence under Sections 302/34 of the Penal Code and 27 of the Arms Act. The conviction and sentence recorded against Bira Rai and Raghubansh Rai, is set aside. They are directed to be released on bail forthwith, if not required in any other case. They are discharged from the liabilities of bail bonds. 34. The Appeals are allowed in part.