Supreme Court of India

RAJ KISHORE JHAversusSTATE OF BIHAR AND ORS.

Citation: 2003 INSC 525
Decided: 7 October 2003
Disposal: Appeal(s) allowed
Bench: DORAISWAMY RAJU

Holding

The High Court’s acquittal was erroneous; convictions under Section 304 Part II IPC and the Arms Act stand, while acquittals of those lacking sufficient evidence are confirmed.

Summary

The case concerns the murder of Nawal Kishore Jha on 9 April 1980, for which fifteen persons were originally charged. The trial court convicted several of them under sections of the IPC and the Arms Act, but the Patna High Court later acquitted all the convicted persons. The informant appealed, challenging the High Court’s acquittal on grounds that the judgment was based on conjecture, that non‑examination of the investigating officer did not prejudice the accused, and that witnesses not named in the FIR or who were accused in a counter‑case could not be dismissed. The Supreme Court held that the High Court’s decision was non‑reasoned, ignored material evidence, and misapplied legal principles, particularly regarding Section 145 of the Evidence Act and the applicability of Section 302 versus Section 304 IPC. It affirmed convictions of certain accused under Section 304 Part II IPC and Section 27 of the Arms Act, while confirming the acquittal of those against whom evidence was insufficient. The Court allowed the appeals to the extent indicated, directing the respondents to surrender to custody.

Issues considered

The High Court’s acquittal was based on insufficient reasoning and misinterpretation of evidence.
Whether non‑examination of the investigating officer vitiates the trial.
Whether witnesses not named in the FIR or who are accused in a counter‑case may be excluded.
The correct charge for a single shot fired from a distance – Section 302 or Section 304 IPC.
The applicability of Section 145 of the Evidence Act in contradicting a witness’s prior statement.

Legislation cited

Arms Act, 1959s. 27
Code of Criminal Procedure, 1973s. 313
Indian Evidence Act, 1872s. 145
Indian Penal Code, 1860s. 109, s. 147, s. 148, s. 149, s. 302, s. 304(Part II)

Subjects

murderacquittalevidenceSection 145witness credibilityinvestigating officerappellate reviewreasoned judgmentIPC 304Arms Act

Judgment

A '1t.
v.
STATE OF BIHAR AND ORS.
_,. ·..,, ·•r '· 'd • ;
' ' 'I.
•.1 ( ,,,,

B [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]
t,->fi!.;:Ut:JIH.>~n~.:tJ~,t _..fi,~U,1i"'" ~ff~-' f •• ,,~ sil. 1,,,' • ..:ti

'.- ' '•('Penal :oide 'J 860LSeeti<>iis 302, 304-11, ·109,' iiJ;• 'J 48'and·149_._
1

x;.;,;.s1'Aci;'1959LSehiio'n 27;!1.A')1,11 'heing a'pbli'of'a'tiiob s·k~t down iHe
dec~aseCl-Triat CouFI hcqlli1ied 15- Jilt 'of 15 acci1ie'd p'er~onl~Hi~h "coiirt
c iitqtitted '.aii coh'viCted persdn"l.:.!!6h"app'eai }li~a 'by 'info~~la/11, •lbg'Jinst
j -,~tquilt&J; H~Jd''.·hJ/igiVCou;P'dispos~i'Jfthe' cippeai'in ~ raiher' c'ajz;~l

manner "and inost corzclus;;,,~~ arrived 'at \i1ere per se' not on sound
footing-Non-reasoned conclusions by appellate courts are not appropri;;,te,
more so, ·when views of the lower court are differed jrom-Reas~n is th~
q heartbeat of every conclusion, whithout which it becomes lifeless.

Evidence Act, 1872-Section 145-Contradictin.g evidence-If a
witness is intended to be contradicted by his own writing, attention must
be called to those parts of his former state'!1erzt and the same must b~
E disowned by him-Held, his tesiimony in court would not be vitiated until
the cross-examiner proceeds to comply with the procedure prescribed ilJ
the second limb of Section 145.

According to the Prosecution, A-1, A-6, A-2, A-3, A-7, A-15,
A-14, A-4, A·8 and others, armed with weapons assembled near the
F door of one D to loot his Khalihan and an argument took place between
them, the deceased and the appellant, A-7 and A-6 ordered A-1 to shoot
down the deceased, which he did, thereafter they left the place of
occurrence. The deceased died on the way to the hospital. According
to the defence version, the deceased and the informant had actually
G formed an armeu mob of 5()..60 persons and went to the ~ouse of A-
7, asking him to withdraw certain litigation. They began looting wheat
and other articles and also pelted stones at the other villagers, who also
retaliated. D was also present there and he opened fire and one of the
gunshots hit the deceased. The trial court acquitted 5 out of the IS
H accused persons. The remaining accused were separately convicted
208
R.K. JHA v. ST ATE 209
under Sections 302, 109, 147 and 148 l.P.C. read with Section 27 of A
the Arms Act. :·

High Court acquitted ,all the convicte~ persons. Hence this appeal
by the informant.

The' app~llant contended that the ;l~p:ug~ed jud~m'~~'t ~as based 'B
on surmises and conjecture~ ~nd .n.o ~ea,~~n. was i11dic?tt;d to discard
the pla~sible an~; c,ogent prosec1;1ti<?n . testimony;., ~~~t non-examinatiqn
.~f the Im:estiga,ti~~· Pf~cer .d!~. ,not prej_~~ic.e.Jhe ~ccuse~; that th~r.e
1
is ~o inflexibl,e, rule 1 t~at w1le1\a•.wit~ess \s .not na!J?~d. i~ th~ f'.!:·~~.~\s ·1
~~rsion is :,~9 ~e ·discar~ed;. t~~( ~?..re~so.~~. were ip;dic~~~d as;to. ~hy C
1evidence led by some 'inportant prosecution witnesses was discarded;
and that they were accused persons in the counter-case did not make
them unreliable witnesses.

The respondent-accused persons contended that the impugned D
judgment indicated several reasons making the prosecution version
vulnerable; that the forensic laboratory report in their favourwas kept
out of consideration with ulterior motive; that the observation of the
Investigating Officer with regard to the place of occurrence strengthens
the defence version; that only one shot was fired even according to the
prosecution from a distance of 70-80 ft. which itself showed that death E
was not intended, even if the prosecution version was accepted in toto;
that non-examination of the Investigating Officer caused grant prejudice
to the accused persons; and that it being a fit case for acquittal there
should be no interference when the State did not prefer any appeal.
F
The respondent-State contended that though it did not prefer any
appeal, the judgment of acquittal could not be maintained.

Allowing the appeals, the Court

HELD : 1.1. A bare perusal of the judgment of the High Court G
shows that it disposed of the appeal in a rather casual manner. Most of
the conclusions arrived at are per se not on sound footing. The appellate
court will not abjure its duty to prevent miscarriage of justice by not
interfering where interference is imperative. Where doubt is based on
ir~elevant grounds or where the court allows itself to be deflected by the H
210 SUPREME COURT REPORTS (2003] SUPP. 4 S.C.R.
,
A red herrings drawn across the track, or where the evidence accepted by
the trial court is rejected by the High Court after a perfunctory
consideration or where the baneful approach of the court has resulted in
vital and crucial evidence being ignored or for any such adequate reason,
the court should feel obliged to secure the ends of justice, to appease the
B judicial conscience, as it were. (217-H, 218-A-C)

1.2. Non-reasoned conclusions by appellate courts are not
appropriate, more so, when views of the lower Court are differed from.
In case of concurrence, the need to again repeat reasons may not be
there. It is not so in case of reversal. Reason is the heartbeat of every
C conclusion. Without the same, it becomes lifeless. 1221-C, DJ

2. There is no requirement of mentioning the names of all
witnesses in the F.I.R. No reason has also been indicated as to why the
evidence of P.Ws. 3, 8, 11, 12 and 15 was to be obliterated merely
D because they were accused in the counter case. In a case of this nature,
when a counter case has been registered, the court hearing the same
has to scrutinize the evidence with greafar detail and even in such a
situation the evidence which is cogent, credible and trustworthy cannot
be totally wiped out because of the only circumstance that they were
accused in the counter case. P.Ws. 3, 6 and 9 have not been merely
E described in the· first information to have taken the deceased to the
hospital. A bare reading of the F.l.R. clearly shows that they were
described a~ eyewitnesses also. (218-D-F]

Bhagwan Singh & Ors. v. State of MP., J.T. (2002) 3 SC 387;
F Chittar Lal v. State of Rajasthan, (2003) A.I.R. SCW 3466 and State of
Madhya Pradesh v. Man Singh and Ors., (2003) 6 SC 202, relied upon.

3. Mere non-examination of Investigating Officer does not in
every case cause prejudice to the accused or affects the creditability
G of the prosecution version. Non-examination of the Investigating
Officer does not in any way create any dent in the prosecution case
much less affect the credibility of otherwise trustworthy testimony of
the eye witnesses. It is always desirable for the prosecution to examine
th Investigating Officer. Jn the present case after examination-in-chief
and partial cross-examination, the Investigating Officer died. This
H cannot be a case which can be stated to have caused any prejudice to
R.K. .IHA v. STATE 211

the accused on account of Investigating Officer's non-examination. A
The prosecution cannot be attributed with any lapse or ulterior
motives in such circumstances. Prejudice likely to be suffered mostly
depends upon facts of each case and no universal strait jacket formula
should be laid down that non-examination of Investigating Officer per
se vitiates the criminal trial. (218-G-H, 219-A, BJ B
Ram Dev and Anr. v. State of UP., (1995) Supp. (1) SCC 547;
Behari Prasad and Ors. v. State of Bihar, (1996) 2 SCC 317; Ambika
Prasad and Anr. v. State of (Delhi Administration), [2000J 2 SCC 646;
Bahadur Naik v. State of Bihar, [2000) 9 SCC 153 and Ram Gu/am
Chaudhury and Ors. v. State of Bihar, J.T. (2001) 8 SC 110, relied upon. C

4. The question of contradicting evidence and the requirements
of compliance with Section 145 of the Evidence Act is settled, while
examining the question as to when an omission in the former statement
can be held to be a contradiction and it has also been indicated as to D
how a witni:ss can be contradicted in respect of his former statement
by drawing particular attention to that portion of the former statement.
If it is intended to contradict him by the writing his attention must be
called to those parts of his former statement which are to be used for
the purpose of contradicting him. If the witness disowns to have made E
any statement which is inconsistent with his present stand, his testimony
in Court on that score would not be vitiated until the cross-examiner
proceeds to comply with the procedure prescribed in the second limb
of Section 145 of the Evidence Act. [219-D, E, G, HJ

Tahsildar Singh v. State of UP., A.I.R. (1959) SC 1012; Binay F
Kumar Singh v. State ofBihar, (1997] 1SCC283; Bhagwan Singh v. State
of Punjab, A.I.R. (1952) SC 214 and Rajender Singh and Ors. v. State
of Bihar, (2000) 4 SCC 298, relied upon.

5.1. Since the judgment of the High Court is practically non- G
reasoned, one course open is to remit the matter back to the High
Court to rehear the appeal and pass a reasoned judgment dealing with
all relevant aspects. But considering the long passage of time, it is
appropriate to decide the case by analyzing the evidence brought on
record. [220-B] H
212 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A 5.2. There was only one gunfire by A-1 from a considerable
distance as per the prosecution version. The High Court fell into an
error by observing that the firing was made from a close range as if
the prosecution version was that. On the contrary, right from the
beginning the prosecution version is that the gun was fired from about
B a distance of 70-80 ft. On that score also the High Court's conclusion
that the medical evidence varied with the ocular evidence suffers from
vulnerability. Taking into account the fact that the only shot was fired
from a considerable distance in this case application of Section 302
l.P.C. is ruled out, though there cannot be any· rule that whenever one
C shot is fired from a distance, Section 3021.P.C. would not be applicable.
It would depend upon the nature of the gun,. the position of the
assailant and the victim, obstructions from any intermediary object
which may cause deflection of the shot and several other relevant
factors. The appropriate applicable provision on the facts of the case
is Section 304 Part II I.P.C. so far as A-1 is concerned. Rest of the
D accused persons who were convicted by the Trial Court were implicated
by application of Section 149 l.P.C. (220-C-F)

5.3. Definite roles have been ascribed to A-1 the assailant with the
gun, A-2, A-4, A-6 and A-7, but the accusations have not been clearly
E established against rest of the accused persons. The acquittal as
directed by the High Court, so far as they are concerned is confirmed.
A-1 is convicted under Section 304 Part II l.P.C. and Section 27 of the
Arms Act with corresponding sentences of7 years R.I. and 5 years R.I.
respectively. A-6 and A-7 are guilty for offences punishable under
F Section 304 Part II read with Section 1091.P.C. with custodial sentence
of 7 years R.I. A-7, A 6, A-15, A-4 and A-2 are convicted under Section
304 Part II read with Section 149 l.P.C. with custodial sentence of 7
years. A-1, A-14, A-4 are guilty for the offence punishable under
Section 148 l.P.C. and sentenced to R.I. for 3 years. The sentences are
to run concurently. [220-G, H, 221-A-B)
CJ .i#
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
2000-2001 of 1996.

From the Judgment and Order dated 13.8.96 of the Patna High Court
H in Crl. A. Nos. 485 and 521 of 1989.
R:K. JHA v. STATE [PASAYAT, .I.] 213

- S.B. Sanyal, Shambhu Prasad Singh and R.D. Upadhyay for the A
Appellants.

Sushi! Kumar, Mrs. Manju Aggarwal, Satya Mitra Garg for the
Respondents No. 2 to 10.

B.B. Singh and Kumar Rajesh Singh for the State B

K.B. Sounder Rajan for the Respondent No. 11.

The Judgment of the Court was delivered by

ARIJIT PASA Y AT, J. : Questioning legality of the judgment
c
whereby Division Bench of Patna High Court directed acquittal of 9
respondents, this appeal has been filed by the informant. Originally there
were 15 accused persons and 5 of them were acquitted by the trial Court:
They were accused nos. 9 to 13. The convicted accused persons filed
appeals before the Patna High Court. Cr!. Appeal No. 485/89 was filed by D
9 accused persons, while Cr!. Appeal No. 521/89 was filed by one accused.

Accusations which formed foundation for the prosecution case are as
follows :
E
For Nawal Kishore Jha (hereinafter referred to as 'the deceased')
9 .4.1980 was the last day in this earth. He allegedly suffered homicidal
death at the hands of the accused persons. There was longstanding enmity
between Rajendra Jha (A-6) and one Deo Chandra Jha and there were
several rounds of litigations between them. Raj Kishore Jha (PW-15) was
going with the deceased for a walk in their village towards the chowk. They F
found Bundeo Jha (A-1), Bindeshwar Jha, Rajender Jha (A-6), Arjun Jha
(A-2), Lalo Jha (A-3), Daya Nand Jha (A-7), Pannanand Jha (A-15), Arjun
Jha (A-14), Gopal Tiia (A-4), Madnanand Jha (A-8) and others were anned
with various weapons and came to the Darwaja ofDeo Chandra Jha to loot
his Khalihan. The deceased protested as to why they were doing so. G
Hearing the protestations, Daya Nand Jha (A-7) and Rajender Jha (A-6)
ordered Bundeo Jha (A-1) to shoot down the deceased. Bundeo Jha
(A-1) fired ·at once from his gun. The pellets hit deceased on the forehead,
. front portion of the neck and chest and he fell down unconscious. Accused-
Daya Nand Jha (A-7) asked the other members !Jf the mob to leave as a H
214 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A murder had been committed Raj Kishore Jha-informant with the help of
Prem Chandra Jha and Kaushal Kishore Jha and others tried to take the
deceased to the hospital for treatment but on the way he breathed his last.
The informant, therefore, went"to the police station to lodge the report.
Investigation was undertaken and charge-sheet was placed on completion
B thereof. The accused persons took the plea as evident from the suggestions
given to the PWs and examination under Section 313 of the Code of
Criminal Procedure, I 973 (for short 'the Cr. P.C.') that on 9.4.1980 at
about 5.00 p.m. Sri Kant Jha, the informant along with Deo Chandra Jha,
Nawal Kishore Jha and some other PWs and others formed a mob of 50-
60 persons and were variously armed and they went to the house of
C accused-Daya Nand Jha. They asked him to withdraw the case instituted
against some of them and started looting wheat and other articles. Many
persons from the village assembled there and requested the members of
the mob to stop, but they did not listen to them and started pelting stones
upon the villagers. In retaliation the villagers all)o started pelting stones.
D Deo Chandra Jha who was armed with a gun opened fired. The villagers
forced the members of the mob to retreat and while they were doing so,
Deo Chandra Jha also retreated towards south-west while still firing.
Members of the mob committed theft of valuables and one of the gun fires
made by Deo Chandra Jha hit deceased which proved fatal. Total 20
E witnesses were examined to further the prosecution version. Out of them
Hardeo Jha, Chandra Shekhar Jha, Prem Chandra Jha, Bishwanath Jha,
Govind Kumar Jha, Deo Chandra Jha (PWs 1, 3, 6, 7, 8 and 12
respectively) claimed to be eye witnesses, in addition to the informant. To
substantiate its stand the defence also examined 15 witnesses. After
F considering the evidence on record, the Trial Court found the accusations
were not established against 5 persons. Accused-Bundeo Jha (A-1) was
convicted for offence punishable under Section 302 oflndian Penal Code,
1860 (in short the 'IPC') and sentenced to undergo imprisonment for life.
He is also sentenced to undergo RI for 5 years under section 27 of the Arms
Act, 1959 (for short the 'Arms Act'). Other convicted persons were
G directed to undergo imprisonment for life for offences punishable under
Section 302 IPC read with Section 149 IPC. Accused-Rajendra Jha and
Daya Nand Jha were further sentenced to undergo imripsonment for life
for offences punishable under section 302 read with Section 109 IPC.
Accused Bundeo Jha, Arjun Jha -and Parmanand Jha were sentenced to
H undergo RI for 3 years for commission of offence punishable under Section
R.K. JHA 1·. STATE [PASAYAT, J.] 215

- 148 IPC. Accused-Bishundeo Jha, Rajendra Jha, Daya Nand Jha, Arjun Jha A
(A-14 ), Lalo Jha and Madananand Jha were sentenced
to undergo RI for two years each for the offence relatable to Section 147
IPC.

In appeal, the primary stand of the appellant was that the prosecution B
had not come with clean hands. When on the night of occurrence the
Investigating Officer (PW-16) had inspected the place, he did not find any
blood. In the morning, however, when he visited the occurrence, he found
some blood like substance, but it was so scanty that it was not possible
to scrap and forensic examination was ruled out. He also stated that he had C
not seen any sign of looting the wheat etc. and there was no mark trampling
at the spot of occurence. He further stated that in the night of occurrence,
he had visited the house of Daya Nand Jha and had found brickbats there.
He further stated that he found trampling marks on the road near the house
of Daya Nand Jha. According to the accused, the Investigating Officer had
exposed the weakness in the prosecution version and probabilised the D
defence version. With reference to the post-mortem report, it was submitted
that according to prosecution the accused fired from a distance of 70-80
ft. The medical evidence was not consistent with the prosecution case as
disclosed in the FIR. The witnesses appeared to be not reliable because
names of some were not indicated in the FIR and some of the prosecution E
witnesses were accused in the counter case. It was pointed out that the
Investigating Officer had died during the pendency of the trial and the
accused persons were greatly prejudiced because they were denied the
opportunity of cross-examination. These factors weighed with the Hig1.
Court. It noted that the stand of explosion at the spot has been discarded F
by the Trial Court. Further more, names of the A-9 to A-13 were introduced
for the first time in Court. The distance between place from where the A-
l fired and the place where the deceased stood was very short and that was
a significant factor.

In view of the above conclusions the conviction was held to be bad G
by the impugned judgment and directed acquittal. It recorded the following
findings:

"(I) the Investigating Officer who died before completion of his
testimony had recorded objective findings; H
216 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A (2) the place of occurrence might be as has been suggested by the
defence;

(3) the medical evidenc<;: is not consistent with prosecution case
as the doctor has statecj.in his evidence'~at gun might h~ve been
fired from a distance of 70-80 ft while the first information report
B
reveals that it might have been fired from a close range;

(4) since the Investigating Officer had died, it had caused
prejudice due to non-examination of the Investigating Officer.

c (5) there were exaggerations made regarding explosion of bomb
and looting. It was demolished by the findings recorded by the
Trial Court who had acquitted te accused persons of the allegations;

(6) the names of PWs. 1, 7 and 8 were not there in FIR;
D
(7) PWs. 3, 8, 11, 12 and 15 were accused in the counter case;
and

(8) PWs. 3, 6 and 9 appeared to have helped the informant in
E accompanying PW 15 while he was taking injured to the hospital
and they were not eyewitnesses.

With these findings the accused persons were held to be not guilty
and acquittal was directed. It is to be noted that the appeal has been filed
F by the informant and no appeal has been filed by the State Government.

Learned counsel for the appellant submitted that judgment of the High
Court is based on surmises and conjectures and no reason has been
indicated to discard the plausible and cogent prosecution testimony. Non-
examination of the investigating Officer has not caused any prejudice to
G the accused. Further, there is no inflexible rule that when name of any
witness does not appear in the first information report his version is to be
discarded. The conclusion so far as PWs. 3, 6 and 9 that they had not
accompanied the informant and were not eye witnesses by referring to the
first information report is on a clear misreading of the first information
H report. No reason has also been indicated as to why the evidence of PWs.
R.K. JHA v. STATE [PASAYAT, J.] 217

3, 8, 11, 12 and 15 were to do discarded. It has been mentioned that they A
were accused persons in the counter case. That does not make them
unreliable witnesses.

Since the judgment is practically non-reasoned, the same has to be
upset and that of the Trial Court which is reasoned, has to be restored. B

In response, learned counsel for the accused persons submitted that
the High Court has indicated several reasons to find prosecution version
vulnerable. Merely because the judgment has not indicated the reasons in
an expressive way, that does not take away the effect of its conclusions
which are on terra firma. It has been submitted also that the forensic C
laboratory report which goes in favour of the accused has been kept out
of the consideration with ulterior motive. That is an additional factor which
would strengthen the order of acquittal passed by the High Court. The fact
that the Investigating Officer had recorded objective findings reading
presence of brickbats in the house of the accused strengthens the defence D
version and falsifies the place of occurrence as indicated by the prosecution.
The genesis of prosecution case as indicated by the prosecution has been
clearly demolished after findings recorded about the claim regarding
looting and throwing of bombs. The last limb of the occurrence as projected
by the prosecution is the alleged firing. When the major plunk of the E
version has been disbelieved, the residue cannot stand. It was also
submitted that only one shot was fired even according to the prosecution
version from a distance of.70-80 ft. That itself goes to show that the death
was not intended, even if the prosecution version is accepted in toto. With
reference to Section 145 of the Indian Evidence Act; 1872 (in short 'the
Evidence Act') it was submitted that since the Investigating Officer was F
not examined, that caused great prejudice as the accused could have
obtained clarifications on certain material aspects. Finally it was submitted
that this being a case of acquittal there should not be any interference when
the State has not preferred any appeal.

Learned counsel for the respondent-State submitted that though it has
G
not preferred any appeal, according to it the judgment of acquittal cannot
be maintained.

A bare perusal of the judgment of the High Court shows that it has
disposed of the appeal in a rather casual manner. Most of the conclusions H
218 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A arrived at the by the High Court are per se not on sound footing. The
appellate Court will not abjure its duty to prevent miscarriage of justice
,'
by interfering where interference is imperative. Where doubt is based on
irrelevant grounds or where the Court allows itself to be deflected by red
herrings drawn across the track, or where the evidence accepted by the
B Trial Court is rejected by the High Court after a perfunctory consideration
or where the baneful approach of the Court has resulted in vital and crucial
evidence being ignored or for any such adequate reason, the Court should
feel obliged to secure the ends of justice, to appease the judicial conscience,
as it were. The High Court has noted that the names of witnesses do not
C appear in the first information report. That by itself cannot be a ground
to doubt their evidence as noted by this Court in Bhagwan Singh and Ors.
v. State of MP., JT (2002) 3 SC 387, Chittar Lal v. State of Rajasthan,
(2003) AIR SCW 3466 and State of Mad/1ya Pradesh v. Man Singh and
/
Ors., (2003) 6 Supreme 202. There is no requirement of mentioning the
names of all witnesses in the first information report. No reason has also
D been indicated by the High Court as to why the evidence of PWs. 3, 8,
11, 12 and 15 was to be obliterated merely because they were accused in
the counter case. In a case of this nature, when counter case has 'been
registered, the Court hearing the same has to scrutinize the evidence with
greater detail and even in such a situation the evidence which is cogent,
E credible and trustworthy cannot be totally wiped out because of the only
circumstance that they were accused in the counter case. Additionally, we
find that PWs. 3, 6 and 9 have not been merely described in the first
information to have taken the deceased to the hospital, as observed by the
High Court. A bare reading of the first information report clearly shows
F that they were described as eyewitnesses also. Here again, the High Court
has committed error.

Mere non-examination oflnvestigating Officer does not in every case
cause prejudice to the accused or affects the creditability of the prosecution
version. In Ram Dev and Anr. v. State of UP., [1995] Supp. I SCC 547,
G it was noted that non-examination of the Investigating Officer does not in
any way create any dent in the prosecution case much less affect the
credibility of otherwise trustworthy testimony of the eye witnesses. It was,
however, indicated that it is always desirable for the prosecution to
examine the Investigating Officer. In the present case after examination-
H in-chief and partial cross-examination, the Investigating Officer had died.
R.K. JHA v. STATE [PASAYAT, .I.] 219

Therefore, this cannot be a case which can be stated to have caused any A
prejudice to the accused on account of Investigating Officer's non-
examination. The prosecution cannot be attributed with any lapse or
ulterior motives in such circumstances. In Behari Prasad and Ors. v. State
of Bihar, [1996] 2 SCC 317, it was held that case of prejudice likely to
be suffered mostly depends upon facts of each case and no universal B
straight Jacket formula should be laid down that non-examination of
Investigating Officer per se vitiates the criminal trial. The said view
has been found echoed in Ambika Prasad and Anr. v. State (Delhi
administration, [2000] 2 SCC 646, Bahadur Naik v. State of Bihar, [2000]
9 SCC 153 and, Ram Gulam Chaudhury and Ors. v. State of Bihar, JT C
(2001) 8 SC 110.

The requirement of compliance with Section 145 of the Evidence Act
was highlighted by learned counsel for the accused-respondents.

The question of contradicting evidence and the requirements of D
compliance with Section 145 of the Evidence Act has been considered by
this Court in the Constitution Bench decision in the case of Tahsildar Singh
v. State of U.P., AIR (1959) SC 1012. The Court in the aforesaid case
was examining the question as to when an omission in the former statement
can be held to be a contradiction and it has also been indicated as to how E
a witness can be contradicted in respect of his former statement by drawing
particular attention to that portion of the former statement. This question
has been recently considered in the case of Binay Kumar Singh v. State
of Bihar, [1997] 1 SCC 283 and the Court has taken note of the earlier
decision in Bhagwan Singh v. State of Punjab, AIR (1952) SC 214 and F
explained away the same with the observation that on the facts of that case
there cannot be a dispute with the proposition laid down therein. But in
elaborating the second limb of Section 145 of the Evidence Act it was held
that if it is intended to contradict him by the writing his attention must be
called to those parts of it which are to be used for the purpose of G
contradicting him. It has been further held that if the witness disowns to
have made any statement which is inconsistent with his present stand, his
testimony in Court on that score would not be vitiated until the cross-
examiner proceeds to comply with the procedure prescribed in the second
limb of section 145 of the Evidence Act. H
220 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A The aforesaid position was indicated in Rajender Singh and Ors. v.
State of Bihar, (2000] 4 SCC 298.

Since the judgment of the High Court is practically non-reasoned, one
course open is to remit the matter back to the High Court to rehear appeal
B and pass a reasoned judgment dealing with all relevant aspects. But
considering the long passage of time, we think it appropriate to decide the
case by analyzing the evidence brought on record.

One salient feature of the case is, there was only one gunfire by
Bundeo Jha (A-1) from a considerable distance as per the prosecution
C version. Here again, the High Court has fallen into an error by observing
that the fire was done from a close range as if the prosecution version was
that. On the contrary, right from the beginning the prosecution version is
that the gun was fired from about a distance of 70-80 ft. On that score also
the High Court's conclusion that the medical evidence varied with the
D ocular evidence suffers from vulnerability. Taking into account the fact that
the only shot was fired from a considerable distance in this case application
of Section 302 IPC, is ruled out, though there cannot be any rule that
whenever one shot is fired from a distance, Section 302. IPC would not be
applicable. It would depend upon the nature of the gun, the position ofthe
E' assailant and the victim, obstructions from any intermediary object which
may cause deflection of the shot and several other relevant factors. The
appropriate applicable provision on the facts of the case is Section 304 Part
II IPC so far as Bundeo Jha (A-1) is concerned. Rest of the accused persons
who wer-e convicted by the Trial Court were implicated by application of
F Section 149 IPC.
On a reading of the prosecution evidence as analysed in great detail
by the Trial Court, we find that definite roles have been ascribed to Bundeo
Jha (A-1), the assailant with the gun, Arjun Jha (A-2), Gopal Jha (A-4),
Rajendra Jha (A-6) and Daya Nand Jha (A-7). But the accusations have
G not been clearly established against rest of the accused persons. Therefore,
the acquittal as directed by the High Court, so far as they are concerned,
stands confirmed. Accused-Bundeo Jha (A-1) is convicted under Section
304 Part II IPC and Section 27 of the Arms Act with corresponding
sentences of7 years RI and 5 years RI respectively. Accused Rajendra Jha
H (A-6) and Daya Nand Jha (A-7) are guilty for offences punishable under
R.K . .IHA v. STATE [PASAYAT. J.] 221

Section 304 Part II read with Section 109 IPC with custodial sentence of A
7 years RI. Daya Nand "Jha (A-7), Rajendra Jha (A-6), Parmanand Jha (A-
15), Gopal Jha (A-4) and Arjun Jha (A-2) are convicted under Section 304
Part II read with section 149 IPC with custodial sentence of 7 years.
Accused-Bundeo Jha (A-1), Arjun Jha (A-14), Gopal Jha (A-4) are found·
guilty for offence punishable under Section 148 !PC and sentenced to RI B
for 3 years. The sentences are directed to run concurrently.

The appeals are allowed to the extent indicated. The respondents who
are on bail shall surrender to custody forthwith to serve the remainder of
their sentence, if any.
c
Before we part with the case, we feel it necessary to indicate that non-
reasoned conclusions by appellate Courts are not appropriate, more so,
when views of the lower Cou1t are differed from. In case of concurrence,
the need to again repeat reasons may not be there. It is not so in case of
reversal. Reason is the heartbeat of every conclusion. Without the same, D
it becomes lifeless.

A.Q. Appeals allowed.

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