JUDGEMENT Dharnidhar Jha and Rakesh Kumar JJ. 1. The solitary appellant, Munna Bhagat was tried by the Additional Sessions Judge, Fast Track Court, Bhojpur, Ara in Sessions Trial No.200 of 2004 for charges under Section 302 of the Penal Code and 27 of the Arms Act. By judgement dated 20th September, 2007 the appellant was held guilty of committing the above two offences and after being heard on sentence on the 20th September, 2007 the appellant was directed to suffer rigorous imprisonment for life as also to pay a fine of Rs.5,000/- under Section 302 of the Penal Code. It was directed that in case of default in paying the fine he shall have to suffer rigorous imprisonment for an additional period of two years. As regards the conviction of the appellant under Section 27 of the Arms Act, the learned trial Judge directed him to suffer rigorous imprisonment for seven years and also to pay a fine of Rs.2,000/- and in case of default in making the payment, he was directed to undergo rigorous imprisonment for an additional period of one year. The sentences were directed to run concurrently. The appellant brings his conviction into question through the present appeal. 2. It was a day of Holi and as per the informant P.W.4, he and his son Brajesh Kumar Singh, the deceased, along with his two villagers, Shanker Prasad and Vijay Singh (both not examined) were taking meals after the celebrations of the festival. The informant stated that while he and others were amidst their meals, his co-villager, Harendra Singh (not examined) came there and wanted to take the deceased Brajesh Kumar Singh with him which was objected to by the informant by pointing out to the deceased that on that particular day, he should not venture out of his house. But the said Harendra Singh insisted upon and requested the informant to allow the deceased to accompany him so that he could have some recipes at his house also. The informant gave in. The deceased, Brajesh Kumar Singh started with the said Harendra Singh and both were followed by the informant Shanker Prasad. But the said Harendra Singh insisted upon and requested the informant to allow the deceased to accompany him so that he could have some recipes at his house also. The informant gave in. The deceased, Brajesh Kumar Singh started with the said Harendra Singh and both were followed by the informant Shanker Prasad. When the informant and others had come to the shop of one Triloki Sao and were at the distance of about 10 steps from the shop, they saw that the present appellant alongwith four others were having a heated exchange of words with one Keshwar Yadav and at that particular time the present appellant, as per the informant, was armed with country made pistol. So was co-accused, Tunna Bhagat and both the appellant and Tunna Bhagat is said to have started assaulting the said Keshwar Yadav. 3. It is alleged that the deceased intervened into the scuffle and forbade the appellant and Tunna Bhagat to assault the said Keshwar Yadav as a result of which this appellant fired a shot at the deceased while co-accused Tunna Bhagat fired at Keshwar Bhagat. The shot fired by the present appellant hit the deceased Brajesh Kumar Singh somewhere in the rib cage on the back side and Keshwar Yadav was hit by the shot in his chest. Both Keshwar Yadav and the deceased Brajesh Kumar Singh fell down on the ground. The informant started raising hulla. It is said that in the meantime other companion accused of the appellant stated that another shot should be fired but the informant and others rushed towards the scene of occurrence as a result of which the accused persons ran away from there. 4. The informant stated that he with the help of others brought Brajesh Kumar Singh and Keshwar Yadav to Sadar hospital, Ara where his son died and Keshwar Yadav was referred to Patna Medical College Hospital for further treatment. The informant stated that he did not have enmity with any one and simply because the deceased wanted to save Keshwar Yadav from being assaulted, as such, he was targeted with Keshwar Yadav and injured by fire arm. 5. It appears from the evidence of P.W.6 Prashant Kr. The informant stated that he did not have enmity with any one and simply because the deceased wanted to save Keshwar Yadav from being assaulted, as such, he was targeted with Keshwar Yadav and injured by fire arm. 5. It appears from the evidence of P.W.6 Prashant Kr. Viswa, the officer-in-charge of Ara Mufassil P.S. on 2nd June, 2000, that he had recorded the fardbeyan of the informant which has been marked Ext-3 in the case and on that basis the FIR of the case, i.e., Ext-5 was drawn up by the writer constable posted in the Police Station. P.W.6, thereafter, prepared the dead body challan after having held inquest on the dead body and sent the dead body for postmortem examination. The inquest report has been marked Ext-4 in the case. P.W.6, thereafter, recorded the further statement of the informant and statements of other witnesses, like, P.Ws.2 and 3. He inspected the place of occurrence which was a place in the lane passing in front of the shop of the said Triloki Saw which was running from east to west and blood was found at two places in the lane out of which one was found quite copious. He obtained the postmortem examination report and, finding the materials sufficient, sent the accused persons for trial. 6. The defence of the appellant was of innocence. It was further suggested by the appellant that the deceased Brajesh Kumar Singh was a person of criminal antecedent being accused in some cases as may appear from Ext-A and 1/2 and probably some of his staunch enemies killed him for any particular personal reason. Finding the opportunity, the appellant and others were falsely implicated. 7. In support of the charges the prosecution examined as many as seven witnesses out of whom P.W.7 Amar Nath Pandey is a witness of formal character who proved the writings of the FIR on account of identifying it as that of the writer constable, posted on the relevant date in Ara Mufassil Police Station. 7. In support of the charges the prosecution examined as many as seven witnesses out of whom P.W.7 Amar Nath Pandey is a witness of formal character who proved the writings of the FIR on account of identifying it as that of the writer constable, posted on the relevant date in Ara Mufassil Police Station. P.W.1, Bimla Devi is the mother of the deceased and the wife of the informant and she had given evidence that while the deceased and her husband were taking some Pakwans, one Harendra Singh came there and took his son, Brajesh Kumar Singh for feeding him Pua and, accordingly, the deceased left his house who was followed by P.W.4, the informant and when they had reached around the shop of Triloki Saw, one Shanker Prasad accompanied P.W.4, the informant. The lady heard the sound of gun shot and rushed out of her house and found her son and Keshwar Yadav lying injured. She stated that she was told by P.W.4, her husband that it was the present appellant who had shot and injured his son while co- accused Tunnu Bhagat had shot and injured Keshwar Yadav. P.W.2 Ajeet Kumar Singh is a witness who has also supported the fact that the deceased and Keshwar Yadav were found lying injured at the place of occurrence and some persons were seen by him running away towards east, out of whom he could identify the present appellant and accused Tunnu Bhagat, Butai Yadav, Shambhu Yadav and Lala Bhagat, out of whom the present appellant and Tunnu Bhagat were armed with pistols. The informant was found by P.W.2 near the injured who told him that this appellant, Munna Bhagat fired while co-accused, Tunnu Bhagat had fired and injured Keshwar Yadav. P.W.3, Sunil Singh is an eye witness to the occurrence and he has supported in its all aspects stating that on the remonstration of co-accused Lala Bhagat, the deceased was shot at by this appellant while Keshwar Yadav was injured of co-accused Tunnu Bhagat, when the deceased attempted to intervene in the quarrel which had ensued between the accused persons and the said Keshwar Yadav. Both injured were shifted to the hospital. P.W.4 Nirmal Singh is the informant. P.W.5 Dr. Arshad Ekram is the doctor who held postmortem examination on the dead body of the deceased and prepared the report Ext-2. Both injured were shifted to the hospital. P.W.4 Nirmal Singh is the informant. P.W.5 Dr. Arshad Ekram is the doctor who held postmortem examination on the dead body of the deceased and prepared the report Ext-2. P.W.6, as pointed out above, is the Investigating Officer of the case. 8. The defence tendered three documents. Ext-A is the written statement of Keshwar Yadav who was allegedly injured in the same occurrence. Ext-A/1 is the certified copy of the chargesheet of Ara Town P.S.Case No.306 of 1998 whereas Ext-A/2 is the chargesheet of Ara Town P.S.Case No.159 of 1999. 9. After considering the evidence, both of the prosecution and the defence, the learned trial Judge passed the judgment. 10. We have heard Sri Amish Kumar, the learned counsel appearing for the appellant and he has taken us through the evidence of witnesses and has submitted that it does not appeal to reason as to why the informant Nirmal Singh could follow his son ieaving his meals. It was further contended that Sunil Singh was the eye witness to the occurrence and had really seen the occurrence, it appears doubtful inasmuch as he was not cited as a witness in the fardbeyan. Likewise, P.W.2 also does not appear an acceptable witness on the post occurrence running away of the appellant and other accused persons. It was contended that the deceased, a man of criminal behaviour, must have many enemies and any of them could have come out on the Holi-day to kill the deceased. It was lastly contended that the evidence of Keshwar Yadav was very material for the proof of charges, but he was not produced in Court and his non-examination seriously affected the proof of charges. 11. Sri Ashwini Kumar Sinha, the learned A.P.P. has countered the above arguments by submitting that, why the present appellant Munna Bhagat will be named by the set of witnesses so as to implicate him in such a serious charge, has not been indicated by bringing the necessary facts on record. It was contended that the witnesses appear inspiring confidence and telling the truth. There might be various reason for non-examination of Keshwar Yadav including that he might have been won over and his non-examination does not appear affecting the proof of charges. It was contended that the witnesses appear inspiring confidence and telling the truth. There might be various reason for non-examination of Keshwar Yadav including that he might have been won over and his non-examination does not appear affecting the proof of charges. It was contended by Sri Sinha that the initial look of the fact may give an impression that it might be a case under Section 304 IPC but that also appear vanishing as soon as some core facts were reconsidered in that behalf. 12. The credibility of the witnesses we do not doubt, more so, in the background of a complete absence of an ill-will or a motive in them to state falsehood against the appellant. There is a complete lack of any record and as such evidence, that the witnesses were so inimically disposed towards the appellant as to be inclined always to make false statement against him ensuring that he is convicted and the sentence passed. It is true that the witnesses like P.Ws.2 and 3 might not be named in the FIR. But the absence of their name to us does not appear material. It was the day of Holi. Things must have been under some sort of turmoil. In addition to that, after the occurrence had occurred, the minds of the informant or witnesses must also be in quite some turmoil. Their attention must have remained focused on the occurrence and its ultimate result of two persons falling injured on account of being hit by two shots fired by two accused persons. Their first instinct could be to collect the injured persons comfortably and to shift them, as they appear going to a hospital. It could not be a reasonable expectation from persons put them under such tumultuous situation to make statements in the FIR containing all details,as to how the occurrence had occurred and how and by whom and from where the same was witnessed. From the description of the place of occurrence what is found is that the occurrence was on a lane passing in front of the shop of one Triloki Sao. P.W.3, Sunil Singh who is the only eye witness besides the informant, has stated that after having celebrated the festival of Holi and after having washed himself he was going to his house for taking meals. P.W.3, Sunil Singh who is the only eye witness besides the informant, has stated that after having celebrated the festival of Holi and after having washed himself he was going to his house for taking meals. He supported near the shop of Triloki Sao finding some sort of scuffle or quarrel having ensued suit between the said Keshwar Yadav on the one side and the five accused persons on the other. This is not an unusual conduct. We do not see any unusual thing happening if the witness P.W.3 was stopping at the shop and was seeing the occurrence. 13. As regards P.Ws.1 and 2 their evidence also appears acceptable to us inasmuch as P.W.1 has stated that after having picked up the sound of a gun fire, she rushed out of her house sensing some tragedy. This conduct of P.W.1 appears in consonance of that of a mother and further appears compatible with the statement made in the fardbeyan that the couple, i.e., P.Ws.1 and 4 were alarmed on that particular day and, as such, when Harendra Singh came to take the deceased to his house they were not initially inclined to allow their son to go with him and when the deceased was allowed to go, it was a decision taken in deep reluctance. As such, the witness could be rushing out of the house, appears a natural conduct to us. She was a mother. She was sensing some tragedy out of the incident and it was all natural for her to go out so as to satisfying herself about the reason behind the shot as also about the safety of her son. She states that she was told about the incident and act of the appellant by her husband. If we refer to the evidence of P.W.4 the informant in paragraph 1, especially the last line of that paragraph, we find that the informant stated that when his wife came at the place of occurrence he narrated the incident to her. This also appears natural to us and this could be the reason that the defence was not challenging in cross-examination that P.W.4 had not stated anything to his wife. 14. This also appears natural to us and this could be the reason that the defence was not challenging in cross-examination that P.W.4 had not stated anything to his wife. 14. Similar could be the reason for us to accept the evidence of P.W.2 Ajeet Kumar Singh, he has also stated that he rushed out of his bath to the scene of occurrence and after hearing the gun shot. When he came in front of the shop of Triloki Sao, found the accused persons running away towards east and that the informant stated to him as to how the occurrence had taken place. These are some of the features which make the witnesses competent and acceptable. In addition to the above, what we have found is that the witnesses, as pointed out at a bit earlier, were coming to depose against the appellant not for any particular reason. We do not also find any reason for the witnesses to implicate falsely the accused persons who were innocence. 15. While considering the evidence of P.W.3 Sunil Singh, we came across the cross- examination made in paragraph 5 of his evidence at page 17 of the paper book in which the attention of the witnesses was drawn to certain statements which he had made while deposing in Court and it was suggested that he had not made those statements earlier before the Investigating Officer. Those statements which are contained in paragraph 5 are really material statements and if those had not been made by P.W.3 before the I.O. then he could not be held to be an eye witness. But what we find is that P.W.6, the Investigation Officer of the case was not cross-examined on those facts as required to be done under Section 157 of the Evidence Act and those facts go unproved as required by Sections 145 and 157 of the Evidence Act, compelling us to record that those statements had been made at the earliest opportunity by the witness before the Investigation Officer as well. While considering the evidence of P.W.4 Nirmal Singh we found that his attention was also drawn to some of the statements he made while giving his evidence in Court and those statements related to his statements made in the fardbeyan. While considering the evidence of P.W.4 Nirmal Singh we found that his attention was also drawn to some of the statements he made while giving his evidence in Court and those statements related to his statements made in the fardbeyan. We find from the comparison of those statements which appear in paragraph 19(at page 13 of the paper book) that those were appearing in the fardbeyan but on consideration of those statements what we found is that either they are supplemental to earlier statements or were completing them. Some of the statements might be missing altogether from the fardbeyan but it may not be proper to appreciate the evidence of P.W.4 keeping in our mind that he was the father who had himself seen his son being shot and seriously injured so as to die. Could it be possible under the above mental state of the father, i.e., the informant to recapitulate each and every fact correctly and restate them in the fardbeyan? Firstly in the fardbeyan and then in Court, there is bound to be some additions at the fringes. What is required to be seen is whether the evidence of P.W.4 Nirmal Singh was an embellishment upon his earlier version which was stated by him in Ext-3, the fardbeyan. We may note that there is nothing like that which could materially affect the prosecution charges and the evidence of the prosecution witnesses. The omissions could be there which might have been stated by P.W.4, the informant while reproducing the case so as to expanding the details. His evidence also, as such, appears to us inspiring our confidence. 16. The evidence of P.W.5 Dr. Arshad Ekram lends credence to the evidence of P.Ws.3 and 4 who have clearly stated as to how the appellant on account of being remonstrated by co-accused, Lala Bhagat fired a shot at the deceased as soon as he intervened into the quarrel to disengage the fighting groups. The doctor found the lacerated wound under left lower aspect of back at the level of 12th rib of size ½"x 3/4"x abdominal cavity deep. Shape of wound was oval. Margin of the wound was inverted. He found another lacerated wound over right iliac fossa measuring 1½"x1"x abdominal cavity deep. The margin was everted and red. The doctor found the lacerated wound under left lower aspect of back at the level of 12th rib of size ½"x 3/4"x abdominal cavity deep. Shape of wound was oval. Margin of the wound was inverted. He found another lacerated wound over right iliac fossa measuring 1½"x1"x abdominal cavity deep. The margin was everted and red. The two wounds were found communicating to each other and had caused the rupture of the spleen, tearing off of the large gut and had been caused by fire arm and the death has occurred on account of shock and haemorrhage. 17. We find after considering the evidence of P.W.5 that the situs of the wound almost exactly fits in the situs as was alleged by the prosecution in its earliest version. 18. While cross-examining the informant P.W.4 Nirmal Singh, he was suggested that his son was accused in a few cases as may appear from paragraph 4 of his evidence. He has clearly stated that his son had been made accused or had been suspected to have committed an offence but all cases ended in favour of him on account of being dismissed or on account of the accused not being sent up. 19. The defence did not take any step except bringing on record Exts-A/1 and A/2 as to what happened of those cases in the face of the fact that P.W.4 had made a categorical statement that his son had been exonerated or not sent up. As such, we are of the opinion that it could be not for us to record that the deceased was a man of criminal antecedent and he had enemies around him to kill the deceased. 20. As regards the non-examination of Keshwar Yadav his statement in the form of a letter said to be written by Keshwar Yadav has been brought on record as Ext-A. But, we are not sure that indeed it was written by the same person who was injured in course of the same transaction which resulted in the death of Brajesh Kumar Singh. Moreover, the contents of this document can never be utilized even in defence of the accused, unless the writer of the document was produced and examined by the defence. The prosecution might not have examined Keshwar Yadav. Moreover, the contents of this document can never be utilized even in defence of the accused, unless the writer of the document was produced and examined by the defence. The prosecution might not have examined Keshwar Yadav. He might be a material witness but as regards the acts of the present appellant of causing the death by shooting the deceased dead, his non-examination to us does not appear material inasmuch as the complicity of the present appellant in commission of the offence is duly established by the evidence of witnesses examined during trial. 21. An attempt was made by the learned counsel appearing for the appellant to get the appellant from the ambit of Section 302 to that of Section 304 of the IPC. His contention was that it could be a case fully covered by clause 4thly of Section 300. Reliance has been placed on a decision of the Supreme Court reported in 2009 (3) BBCJ 153 Posuram Deshmukh V/s. State of Chhattisgarh and (2000) 4 SCC 298 : 2000 (1) PCCR 317 (SC) Rajendra Singh V/s. State of Bihar. On consideration of the two decisions, we find that the facts of those two cases were completely different and the law laid down by the Supreme Court in the two cases may not be applicable to the facts of the present case. There is clear evidence that Lala Bhagat remonstrated after the deceased had intervened into the quarrel and upon that the present appellant fired a shot and killed the deceased Brajesh Kumar Singh. The remon- stration was clear that Brajesh Kumar Singh be killed. The weapon which was used was a fire arm and the shot was devastatingly fatal. The very use of a weapon like the fire arm to us imparts clear intention and knowledge as to what could be the ultimate result out of the use of the weapon. To us, it is a clear case under Section 302 IPC and also of unlawful use of illegal arms for committing murder. 22. We find on appreciation of the evidence that the judgement of conviction and the sentences passed upon the appellant did not suffer from any illegality requiring any interference from this Court. 23. In the result, the appeal fails and the same is hereby dismissed.