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TMI Blog2017 (2) TMI 1544X X X X Extracts X X X X X X X X Extracts X X X X ..... two years prior to the date of the incident which was still pending. It is seen in the instant case that the witnesses have vividly deposed about the genesis of the occurrence, the participation and involvement of the Accused persons in the crime. The non-examination of the witnesses, who might have been there on the way to hospital or the hospital itself when deceased narrated the incident, would not make the prosecution case unacceptable - prosecution case has been proved by the testimony of the eye-witness since corroborated by the other witnesses of the occurrence. In the instant case, the witnesses, as the High Court has found and there are no reason to differ, are reliable and have stood embedded in their version and remained unshaken. They have vividly deposed about the genesis of occurrence, the participation and involvement of the Accused persons in the crime and the injuries inflicted on the deceased, and on each of them. The present appeals are devoid of merits and the judgment passed by the High Court does not warrant interference - Appeal dismissed. - Hon'ble Judges Pinaki Chandra Ghose and Ashok Bhushan, JJ. For the Appellant : Huzefa Ahmadi, Sr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. The FIR was registered as C.R. No. I-69 of 2009. The post-mortem of the deceased was performed by Dr. H.I. Ansari (PW13). Looking to the post-mortem note of deceased Mohd. Askari, marked Annexure A-13, there were found explosive blast injuries on chest cavity deep, face; both lungs and hear were lacerated. As per the Post-mortem Report of deceased Mohd. Asad, there were found blast explosive injury on abdominal cavity; lacerated and bruise skin and lever. Both the deceased died due to injuries caused by powerful bomb blast as per above stated post-mortem reports marked Ext. 13 and 13/13. 5. Upon completion of investigation and submission of the charge sheet, Sessions Case No. 309/22 of 1993/1999 was registered against the accused. Thereafter, the Court of 1st Additional District Sessions Judge, Bhagalpur, framed charges against the Accused persons for the offences punishable Under Sections 302 read with Section 149 of Indian Penal Code, Sections 3, 4 of the Explosive Substances Act, and Section 27 of the Arms Act. After they denied the said charges in their statements, the evidence of prosecution witnesses was recorded. 6. After recording the evidence of the prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and circumstances of the case. 10. In the present case, there are concurrent findings of both the Courts below as to the guilt of the Accused persons. The High Court has discussed basically four issues in its judgment, viz. (a) interpretation of Section 172 of Code of Criminal Procedure, 1973; (b) veracity of the evidence adduced; (c) relevance of overt act in conviction Under Section 149 of the Penal Code; and (d) rarest of the rare cases theory for confirming death sentence. 11. On the first issue, the High Court has observed that police dairy cannot be used as evidence in the case but to aid it in such inquiry or trial, while relying upon the judgment of this Court in Habeeb Mohammad v. State of Hyderabad AIR 1954 SC 51 : 1954 SCR 475, wherein it was held that when attention of a witness is not drawn to his previous statement during the course of investigation, same cannot be looked into in exercise of powers Under Section 172(2) of the Code of Criminal Procedure. Apropos second issue, it was observed by the High Court that failure of witness to go to police station and lodge the report on time without delay, and minor contradictions pertaining to presence of customers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecific role has been attributed to the present Appellants. But after careful analysis of the fardbeyan (Ext. 7), we have an entirely different opinion. It is true that deposition is somewhere literally larger than the fardbeyan, however, it is no where contrary to it. It may rightly be said that the deposition of PW14 is merely elaborated form of statement recorded before the police, with minor contradictions. Oral evidence of a witness could be looked with suspicion only if it contradicts the previous statement. 16. He further submitted that narration of the incident by the deceased Asad to PW3, as stated by PW3, is only to falsely implicate the present Appellants. According to him, such deposition is improbable since PW15-Investigating Officer of the case and PW12 did not narrate that deceased had regained consciousness and named the Accused and no other witness was examined to prove the fact that deceased regained consciousness and most importantly no recovery of gun has been made. Thus, the prosecution case is shrouded with reasonable doubt. It was further argued that in the light of judgment of this Court in the case of K.M. Ravi and Ors. v. State of Karnataka (2009) 16 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the Appellants at the most these Appellants will be liable to be punished for sharing the original common object which is only to assault the deceased, therefore, they can be held guilty of an offence punishable Under Section 352 read with Section 149 only. 19. Mr. Ravi Bhushan, learned Counsel appearing for the Respondent-State, on the other hand, supported the order of conviction and sentence passed by both the Courts below. He submitted that judgments cited by the counsel for Appellants have no point relevant to the present case. The judgment given in the case of K.M. Ravi (supra), is not relevant in whatsoever manner to the present case, as in the present case, there was facilitating the act of hurling of bombs by the other Accused persons as well as captivating the relatives of the deceased so as to prevent them to come to his rescue. This shows their active participation in the crime though having overt act of merely holding guns outside the place of occurrence. 20. It was further argued that the position cited in Bhim Rao's case (supra) is different from that of the present case. PW14 and other witnesses present with him were prevented from saving the victim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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