JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) 1. When the appeals were called out repeatedly then nobody has appeared on behalf of the appellant Raj Ballam Yadav @ Bijli Yadav. The appeal is of the year 1990. The appellant was properly noticed despite that he has not appeared, so this Court had no other way out than by appointing Amicus Curiae on behalf of the appellant. Shri Alok Ranjan, Advocate is present in the Court and volunteers to assist the Court as Amicus Curiae. Considering his willingness, Shri Alok Ranjan is appointed as Amicus Curiae to assist the Court on behalf of the appellant. Let a copy of the brief of the appeal be handed over to newly appointed Amicus Curiae. The appeal is being passed over and it shall be taken up after lunch. 2. Criminal Appeal No. 197 (DB) of 1990 by Raj Ballam Yadav @ Bijli Yadav and Government Appeal No. 45 (DB) of 1990 on behalf of State of Bihar have arisen out of one common judgment passed on 25th of April, 1990 by the learned Sessions Judge, Nalanda at Bihar Sharif in Sessions Trial No. 276 of 1989, arising out of Bihar P.S. Case No. 519 of 1987 holding the appellant Raj Ballam Yadav @ Bijli Yadav guilty under Section 302 of the IPC and Section 27 of the Arms Act and sentencing him to undergo RI for life and three years respectively. The sentences have been ordered to run concurrently. 3. The State of Bihar has challenged the acquittal of respondents Bhim Yadav, Sri Ballam Yadav, Chhotey Yadav, Anandi Yadav and Deo Nandan Yadav. 4. On 7th December, 1987 at 5.00 P.M., Deonandan Pd. Sinha (the deceased) carrying a packet of Urea fertilizer was going upon the rickshaw being plied by P.W. 7 Bijendra Paswan. Deonandan Pd. Sinha (the deceased) was a School Teacher. While they were towards their houses from Bihar Sharif then the informant P.W. 3 Krishna Chandra Prasad noted that some other persons were negotiating through the same way. The informant along with his nephew Nand Kishore Prasad P.W.6, Mahesh Prasad P.W. 2, Ashok Kumar P.W. 1 was also negotiating through the same route in near vicinity of the rickshaw being plied by P.W. 7. As soon as the rickshaw of P.W. 7 carrying Deonandan Pd. The informant along with his nephew Nand Kishore Prasad P.W.6, Mahesh Prasad P.W. 2, Ashok Kumar P.W. 1 was also negotiating through the same route in near vicinity of the rickshaw being plied by P.W. 7. As soon as the rickshaw of P.W. 7 carrying Deonandan Pd. Sinha (the deceased) reached near a tree of Dumarao Road at 5.00 P.M., then Raj Ballam Yadav @ Bijli Yadav, Chhotey Yadav, Bhim Yadav, Sri Ballam Yadav and Deonandan Yadav variously armed intercepted the rickshaw which was carrying Deonandan Pd. Sinha (the deceased) and at the behest of Bhim Yadav, Deonandan Pd. Sinha was fired upon by Raj Ballam Yadav @ Bijli Yadav who received firearm injury and succumbed to that injury on the rickshaw itself. On cry Binod Kumar P.W. 4, Umesh Kumar P.W. 5 and others also came and witnessed the occurrence. The reason for the ghastly murder was that Surjyanandan Prasad, son of Bhim Prasad – a military man had greedy eyes upon the land of the informant for which he had applied for settlement before the Collector, Nalanda. The proceeding with regard to his application was terminated. The land was in the process of being encircled and for that bricks were stacked. The killing was with the aim of restraining construction of the boundary upon the land. The fardbeyan (Ext. 1) witnessed by Nand Kishore Prasad P.W. 6 and Ramchandra Pd. (not examined) resulted into formal FIR (Ext. 6) under Sections 148, 149, 302 of the Indian Penal Code and Section 27 of the Arms Act. The occurrence of 5.00 P.M. was recorded just within an hour at 6.00 P.M. on 07.12.1987, it was sent to court on 08.12.1987. In course of investigation, the inquest report (Ext. 2) was prepared, seizure list (Ext. 3) was also made, post-mortem report (Ext. 7) was obtained. Statement of the witnesses under Section 161 of the Cr.P.C. was taken and the place of occurrence was investigated. The informant was not satisfied with the pace and manner of investigation so he protested it by filing protest petitions. Charge sheet against Raj Ballam Yadav @ Bijli Yadav was submitted ultimately cognizance was taken against all the accused persons who were put on trial. The informant was not satisfied with the pace and manner of investigation so he protested it by filing protest petitions. Charge sheet against Raj Ballam Yadav @ Bijli Yadav was submitted ultimately cognizance was taken against all the accused persons who were put on trial. The trial court of Sessions Judge, Nalanda framed charge under Section 302/149 of the IPC against Bhim Yadav, Sri Ballam Yadav, Chhotey Yadav, Anandi Yadav and Deonandan Yadav, charge under Section 109/114 and 302 of the IPC was framed against Bhim Yadav and charge under Section 302 of the IPC and Section 27 of the Arms Act was framed against Raj Ballam Yadav @ Bijli Yadav. Statement of the accused under Section 313 of the Cr.P.C. was taken in which they claimed false implication. The trial court after analyzing the evidence opined that the prosecution has succeeded in proving the charge under Section 302 of the IPC and Section 27 of the Arms Act against Raj Ballam Yadav @ Bijli Yadav and no charge was found to be proved against others so they were acquitted. 5. The State of Bihar by filing the Government Appeal has assailed the judgment impugned and it has been submitted that in view of the consistent evidence the trial court should have convicted the acquitted accused also whereas the learned Amicus Curiae appearing on behalf of convicted accused has submitted that once other accused persons were acquitted then the entire manner of occurrence stood falsified and so Raj Ballam Yadav @ Bijli Yadav should also have been acquitted. The trial court has erred in convicting the Raj Ballam Yadav @ Bijli Yadav on the same evidence upon which others have been acquitted. 6. This Court has to see as to whether the trial court has correctly proceeded or not. 7. In order to prove its case, the prosecution has examined Ashok Kumar as P.W. 1, Mahesh Prasad as P.W. 2, Krishna Chandra Prasad as P.W. 3, Binod Kumar as P.W. 4, Umesh Kumar as P.W. 5, Nand Kishor Prasad as P.W. 6, Bijendra Paswan as P.W. 7, Jay Narain Singh as P.W. 8 the investigating officer and Dr. R.B.P. Rukheriyar as P.W. 9. P.Ws. 1, 2, 3, 4, 5, 6 and 7 are named witnesses of the fardbeyan. R.B.P. Rukheriyar as P.W. 9. P.Ws. 1, 2, 3, 4, 5, 6 and 7 are named witnesses of the fardbeyan. P.W. 3 is the informant of the case and P.W. 7 is the person who was carrying the deceased when he was fired upon. 8. The post-mortem was performed by P.W. 9 while he was posted as Civil Assistant Surgeon in Bihar Sharif, Sadar Hospital on 08.12.1987 at 8.45 A.M. and he found the following injuries: (I). ¼” diameter oval lacerated inverted wound with charring and blackening present on the middle of sternum – blood stains present. This was wound of entry. (II). ½” diameter lacerated wound on the left side of the back ¼” below the anterior angle of scapula. This is wound of exit. 9. The doctor’s evidence notes that the death was 12 – 14 hours prior to the time of examination. From the cross-examination it also appears that death of Deonandan Pd. Sinha is not under challenge considering the evidence of the doctor we hold that Deonandan Pd. Sinha was killed on account of firearm injury in the evening of 07.12.1987, and this version of the death has been supported by the inquest examination also. The inquest (Ext. 2) of the dead body was prepared at 6.45 P.M. on 07.12.1987 near the place of occurrence and the inquest report mentions that the body was having firearm through and through injury. The inquest report coupled with post-mortem report has conclusively proved that it was a case of killing on account of use of single firearm shot. 10. Once factum of killing is established then the prosecution is required to establish the case on the basis of ocular or substantial evidence. The prosecution has examined the witnesses and they have been named as witness in the fardbeyan itself. The fardbeyan was recorded after one hour of occurrence and it contains the name of all the witnesses. P.W. 7 who is the person who was carrying the victim when he was fired upon. P.W. 7 has stated that when he was carrying Master Saheb then some person encircled him and he was fired and Master was fired upon by one person which proved fatal. With regard to identification of the accused he has not supported the prosecution case and was declared hostile. The factum of killing of Deonandan Pd. P.W. 7 has stated that when he was carrying Master Saheb then some person encircled him and he was fired and Master was fired upon by one person which proved fatal. With regard to identification of the accused he has not supported the prosecution case and was declared hostile. The factum of killing of Deonandan Pd. Sinha has been narrated by rickshaw puller also although he has become hostile so this aspect cannot go in favour of prosecution or the defence. In a case of enmity it would be difficult for a poor person to name a person as accused and survive thereafter. Hence, non-naming of the accused by rickshaw puller cannot falsify the prosecution version with regard to manner of occurrence. 11. P.Ws. 2 and 5 have been tendered by the prosecution. The informant of the case while deposing as P.W. 3 has described that on 07.12.1987 at 5.00 P.M., he was returning to his village along with Nand Kishor Prasad – brother of the deceased on a rickshaw. Deonandan Pd. Sinha (the deceased) was proceeding 100 meters ahead of P.W.3. The informant noticed that Mahesh Prasad P.W. 2 and Ashok Kumar P.W. 1 had overtaken through cycle. As soon as the informant reached near a tree then he noticed that Deonandan Pd. Sinha was encircled by some persons out of whom the informant could identify Raj Ballam Yadav @ Bijli Yadav, Bhim Yadav, Chhotey Yadav, Sriballam Yadav, Anandi Yadav and Deonandan Yadav. Raj Ballam Yadav @ Bijli Yadav, Anandi Yadav and Chhotey Yadav were having pistols and Bhim Yadav and Krishnaballabh were having Bhala, whereas, Deonandan Yadav was having Lathi. The informant wanted to know as to why they were encircling the rickshaw but in the meanwhile at the behest of Bhim Yadav, Raj Ballam Yadav @ Bijli Yadav fired fatally upon Deonandan Pd. Sinha’s chest and the accused escaped thereafter. The victim was found unconscious on the rickshaw and blood was coming out from the chest. The informant’s cry resulted in assemblage of Binod Kumar P.W. 4 and Umesh Kumar P.W. 5. Deonandan Pd. Sinha was taken to the clinic of the Dr. Rajendra Prasad but he was pronounced dead. The informant knew there that the officer-in-charge was on by-pass crossing. The informant, therefore, gave his fardbeyan which become the basis of the prosecution case. Inquest was prepared, the clothes of the deceased containing currency of Rs. Deonandan Pd. Sinha was taken to the clinic of the Dr. Rajendra Prasad but he was pronounced dead. The informant knew there that the officer-in-charge was on by-pass crossing. The informant, therefore, gave his fardbeyan which become the basis of the prosecution case. Inquest was prepared, the clothes of the deceased containing currency of Rs. 20/- and Rs. 2/- and a ball pen were seized (Ext. 3). The motive of the occurrence was given that Surjyanandan Pd. – son of Bhim Yadav - an Army man has claimed settlement of Plot No. 2587 area 42 decimals. His application was forwarded to Anchaladhikari, Bihar Sharif it was objected to by the deceased claiming the land to be his own. The claim of settlement was negatived which has invited wrath of the accused persons. Though the informant has been cross-examined on all aspects of the case but he remained constant in his evidence that shot given by Raj Ballam Yadav @ Bijli Yadav proved fatal for Deonandan Pd. Sinha. Other persons have been named by him but no overt act of any assault has been attributed to others and evidence of killing of the victim has been attributed solely against the convicted accused. The informant has been supported by P.Ws. 1 and 6. So far as manner of causing overt act which led to killing is concerned P.W. 4 had reached immediately at the place of occurrence after hearing gun shot firing when the accused persons were escaping and Deonandan Pd. Sinha having firearm injury upon his chest. P.W.4 is not a witness of the occurrence but he has seen the accused persons reiterating from the place of occurrence. P.W. 6 has supported P.W. 3. P.W. 7 has described the place of occurrence to be a lonely place it was a road and it was not possible to make seizure of blood from there. He has stated that after completion of the investigation he has submitted the charge sheet and he has found Urea fertilizer on the rickshaw and he has found blood also at two adjoining places. He has stated that statements of Lagan Yadav, Chhotan Yadav, Sharan Yadav and Dhurubsen Yadav were also taken but allegation could only be found substantially against Raj Ballam Yadav @ Bijli Yadav so on the basis of direction of the S.P. he submitted charge sheet against Raj Ballam Yadav @ Bijli Yadav. He has stated that statements of Lagan Yadav, Chhotan Yadav, Sharan Yadav and Dhurubsen Yadav were also taken but allegation could only be found substantially against Raj Ballam Yadav @ Bijli Yadav so on the basis of direction of the S.P. he submitted charge sheet against Raj Ballam Yadav @ Bijli Yadav. No doubt he has not sent clothes of the deceased for forensic examination but non-sending of the clothes to forensic science examination cannot be said to be circumstance which could go against the prosecution. 12. The delay between the occurrence and the report is not too long. No doubt in a case of enmity between the parties the evidence has to be looked into in that perspective and the evidence would be analyzed so that it could rule out the implication of innocent but the occurrence of this case was immediately reported to police. When a person was lying shot dead and blood was there then it cannot be said that a fictitious person can be implicated and real offender should be let off. The time of span between the occurrence and report is not long enough which could give any steps to informant and his supporters to fabricate a false case. The proximity of time has to be looked into to rule out possibilities. If the time between the occurrence and report is long then it can be seen that the interested witnesses might have conspired together to create a false case that their enemies are wrecked but the situation would be otherwise when the matter is reported without unnecessary delay. The precaution has also to be taken to see that the matter is reported to the court as early as possible. In the present case, the FIR has been recorded on 07.12.1987 and it has been forwarded to the court on the day following i.e. on 08.12.1987, therefore, the gap between time of occurrence and between time of fardbeyan to recording FIR and sending it out to the court is not long which could have given space to the informant and his persons to fabricate out an out a false case so that he could properly wreck vengeance with the accused. The death of Deonandan Pd. Sinha due to use of firearm is not under dispute. The death of Deonandan Pd. Sinha due to use of firearm is not under dispute. The consistent evidence that firing was only by Raj Ballam Yadav @ Bijli Yadav has been claimed by the witnesses and others have not been attributed any overt act of causing any injury though it has come that other accused persons were having firearm or traditional weapons. It has come that Chhotey Yadav and Anandi Yadav were also having firearms. Sri Ballam Yadav was having Garasa and others were also having some traditional weapons but neither any injury has been found which could be attributed to acquitted accused nor any evidence has come that any of them had tried to hurt either to the victim or to any of the witnesses. Therefore, the trial court has rightly distinguished the cases of Bhim Yadav, Sri Ballam Yadav, Chhotey Yadav, Deo Nandan Yadav and Anandi Yadav at one side and case and evidence of Raj Ballam Yadav @ Bijli Yadav on another side. The onus upon the court is to pick and separate truth and give definite conclusion about the manner of occurrence that has been done by the trial court. 13. The prosecution has succeeded beyond shadow of all reasonable doubt that firing of Raj Ballam Yadav @ Bijli Yadav has proved fatal to Deonandan Pd. Sinha on 07.12.1987 and thus charge under Section 302 of the IPC and 27 of the Arms Act against him has been proved to the end. There is no evidence which could link the acquitted persons with the offence or any part of the offence. In the result the acquittal of Bhim Yadav, Sri Ballam Yadav, Chhotey Yadav, Deo Nandan Yadav and Anandi Yadav are found to be correct and does not require to be disturbed. 14. In the result, this Court finds Raj Ballam Yadav @ Bijli Yadav guilty under Section 302 of the IPC and 27 of the Arms Act. The Criminal Appeal (DB) No. 197 of 1990 is dismissed. The Government Appeal (DB) 45 of 1990 is also without merit and it is dismissed. 15. Raj Ballam Yadav @ Bijli Yadav is on bail, his bail bond is cancelled. He is directed to surrender before the court below to serve out the remaining sentence. The Criminal Appeal (DB) No. 197 of 1990 is dismissed. The Government Appeal (DB) 45 of 1990 is also without merit and it is dismissed. 15. Raj Ballam Yadav @ Bijli Yadav is on bail, his bail bond is cancelled. He is directed to surrender before the court below to serve out the remaining sentence. If he does not surrender then the trial court will see that he is taken into custody for undergoing the remaining part of the sentence. 16. Both the appeals are dismissed. 17. This Court appreciates the able assistance of the learned Amicus Curiae. Let a copy of the first and the last page of the judgment be given to him to the needful. Appeals dismissed.