H.K Sema, J.— Ten accused persons were put to trial for the offence punishable under Sections 302, 147, 148, 149 IPC and Section 27 of the Arms Act before the IInd Additional Sessions Judge, Arrah in Sessions Trial No. 366 of 1982. After conclusion of the trial, the trial court convicted Accused 2 Jagdish Singh Rai (the respondent herein) for the offences under Sections 302/148 IPC and under Section 27 of the Arms Act. He was sentenced to undergo RI for life under Section 302 IPC and two years' RI under Section 148 IPC. He was further sentenced to undergo RI for three years under Section 27 of the Arms Act. The remaining nine accused (not before us) were convicted under Section 302 with the aid of Section 149 and sentenced to undergo RI for life and two years' RI under Section 148 respectively. Their sentences were, however, directed to run concurrently.
2. Aggrieved thereby, two appeals have been preferred before the High Court of Patna. Criminal Appeal No. 596 of 1986 was preferred by nine accused and Criminal Appeal No. 46 of 1987 was preferred by Accused 2 Jagdish Singh alias Jagdish Rai, separately. By a common judgment, the High Court acquitted all the accused. Hence, the present appeal by special leave. The State has not filed any appeal. The present appeal has been filed by the brother of the deceased with permission to file the SLPs.
3. On 3-12-1999, this Court dismissed the SLPs against all the accused persons except the second accused Jagdish Singh. This is how the present appeal has survived against Accused 2 Jagdish Singh Rai.
4. We have heard the counsel for the parties. Briefly stated, the facts giving rise to the present appeal are as follows:
The Officer-in-charge, Dumraon PS recorded the fardbeyan of Ramashish Rai alias Gana Rai (PW 10) to the effect that on 21-3-1986 between 8 to 9 p.m when the informant was sitting along with his deceased brother Sudershan Rai, the FIR-named accused persons came hurling abuses carrying lethal weapons like gun, rifle, bhala, country-made gun, etc. and Accused 2 Jagdish Singh was shouting that the score would be settled today, whereafter the deceased proceeded towards the accused persons with a view to pacify them and requesting them not to indulge in violence, whereupon the accused Jagdish Singh Rai opened blank fire from his rifle twice. The accused Jagdish Singh also fired the third shot from his rifle which hit the deceased Sudershan Rai and he died on the spot. Then and there the informant snatched away his rifle and the said rifle was produced before the police officer who recorded fardbeyan. On hearing the hullah PWs 1, 2, 3, 5 and 8 also came in and witnessed the incident.
5. In course of the trial, the prosecution examined as many as 12 witnesses out of which PWs 1, 2, 3, 5, 8 and 10 were examined as eyewitnesses to the occurrence. The trial court, on threadbare discussion of the eyewitness account and medical evidence, convicted the accused as aforesaid.
6. The High Court, by its order impugned, discarded the eyewitnesses' account of the occurrence in para 20 of its judgment as under:
“From overall scrutiny of evidence of prosecution witnesses it is apparent that there was long-standing enmity between the two parties, for which civil as well as criminal cases were fought up to the High Court. Secondly, most of the eyewitnesses have admitted that in counter-case filed by the appellant Jagdish Singh either they or their sons and relatives were made accused. Thirdly, almost all the eyewitnesses have deliberately tried to improve the prosecution case by deposing something, which is not to be found either from the FIR or from the evidence of the informant himself. So far means of identification is concerned, there is contradictory statement. The IO also did not find any light near about the place of occurrence. Thus, in between 8.30 p.m to 9 p.m in a village lane it was difficult for the so-called eyewitnesses to identify the appellants. The evidence of the informant himself that on hearing hullah Kamakhya Rai, Ranjit Singh, Satyendra Narayan Singh, Murlidhar Sah, Ramdeni Singh came along with other villagers makes the very presence of the alleged eyewitnesses at the time of occurrence doubtful. However, there is also contradictory evidence regarding so-called happenings in the ration shop. No witness is consistent on the fact as to whether the happenings in the ration shop were in the morning of the day of occurrence or the previous day evening. Under these circumstances, it is very difficult to rely on the evidence of such witnesses, who were determined to implicate the appellants in the present case. Above all the conduct of the IO is also not above board. According to him on the basis of rumour he had proceeded to the village but he failed to enter the said fact in the station diary. He also admits that neither the chaukidar nor the dafadar had informed him about the alleged occurrence. Moreover, he did not enquire as to whether electric bulb was fused or not as the same was a relevant fact inasmuch as PW 8, the alleged eyewitness has categorically stated that no bulb was hanging either from the pole or electric wire. The sketch map Ext. 8 has also been prepared in a slipshod manner, which does not indicate as to whether place of occurrence as suggested by prosecution was believable.”
7. We are clearly of the view that the findings of the High Court were erroneous, resulting in grave miscarriage of justice. The eyewitnesses — PWs 1, 2, 3, 5, 8 and 10 consistently supported the case of the prosecution throughout. They were subjected to lengthy cross-examination but nothing could be elicited from their mouth so as to discard the creditworthiness of their statements. The ocular evidence of the eyewitnesses was corroborated in material particulars by the medical evidence. In our view, therefore, the acquittal recorded by the High Court on the aforesaid reasoning is perverse. The High Court discarded the eyewitness account, branded them as inimical witnesses. This is not the requirement of law. The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double-edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence. In the present case the High Court has rejected the otherwise creditworthy testimony of eyewitness account merely on the ground that there was enmity between the prosecution party and the accused party.
8. In the present case, the accused Jagdish admitted that the offending rifle belongs to him. In fact he had made an attempt to make a report to the police that his rifle was being snatched away by the prosecution party. There is also no dispute that he was present at the place of occurrence with the rifle. It is also undisputed that the shot was fired from the said rifle which killed the deceased. The defence set up by the accused before the trial court, before the High Court and before this Court is that the rifle went off accidentally when the prosecution party tried to snatch away the said rifle from his hands. Apart from this plea there is no evidence at all to substantiate his defence. It is the evidence on record that the rifle was snatched away by the informant after the fire was shot at the deceased. The statement of the informant, PW 10 is corroborated by other eyewitnesses including PW 8. The High Court also completely overlooked the testimony of PWs 8 and 10 with regard to the burning of electric light at the relevant time. Both PWs 8 and 10 categorically stated that there was electric light burning at the relevant time in the lane and they could identify the accused by the electric light. The High Court has also overlooked the fact that the prosecution party and the accused party were not strangers to each other. They are from the same village and there would be no difficulty to identify them even otherwise.
9. The plea of accidental fire has been rejected by the trial court in para 20 of the judgment:
“The defence version of the occurrence has not been proved by producing the complaint petition said to have been filed by the accused Jagdish Rai. However, the defence version as is gathered from Ext. A-1 does not appear to be probable at all for the simple reason that it is neither supported by any evidence worth the name nor from the facts and circumstances obtaining in the case. We have seen above that there is competent and satisfactory evidence of the prosecution towards proving the prosecution version of the occurrence. The defence version that when the accused Jagdish Rai was going along with his rifle, he was surrounded by the present prosecution witnesses and his rifle was snatched, does not appear to be probable also in view of the fact that no reasons have been assigned as to after all why the prosecution witnesses would have all of a sudden surrounded him and snatched away his rifle. Then the defence version that in process of snatching away the rifle, the trigger of the rifle was pressed resulting in accidental fire causing injury to some person also does not appear to be probable at all. The medical evidence regarding the nature of the injury also goes against the defence plea. Further, in view of the prosecution evidence discussed above, this defence version of accidental fire is rendered quite unbelievable in character and at no rate reliance can be placed on this. This defence plea seems to have been concocted with view to explain the seizure of the rifle from the possession of accused Jagdish Rai. We have seen above that there is positive evidence of the prosecution that the rifle in question was snatched away from the possession of the accused by witness Gana Rai and it was produced before the IO. It is difficult to believe the defence plea in view of this positive evidence of the prosecution.”
10. We entirely agree with the reasoning recorded by the trial court. The plea of accidental fire in the face of positive evidence was inherently improbable and justly rejected.
11. The contention of the counsel for the respondent that the prosecution has failed to establish the motive is also untenable. When the prosecution evidence is so strong and positive, as in the present case, the motive becomes inconsequential.
12. The further contention of the counsel for the respondent that the offending rifle was not sent to the ballistic expert and thereby caused prejudice to the accused, is of no avail. As already noticed, the firing from the offending rifle was not disputed, albeit accidentally. Counsel also argued that there are certain discrepancies in the prosecution witnesses. Every discrepancy in the prosecution witness cannot be treated as fatal. The discrepancy which does not affect the prosecution case materially does not create infirmity.
13. In the result, the appeal against Accused 2 Jagdish Singh Rai is allowed. The impugned order of the High Court under challenge is hereby set aside. The order of the trial court dated 16-12-1986, regarding the conviction of Accused 2 Jagdish Singh Rai, under Sections 302/148 IPC and under Section 27 of the Arms Act is restored.
14. The accused is on bail. His bail bonds shall stand cancelled. He is directed to be taken into custody forthwith.