JUDGMENT
Ashok Kumar Verma, J.
1. Both these criminal appeals are disposed of by a common judgment as they arise out of the same judgment passed in Sessions Tr. Case No. 229/90/287/90 by the 6th Additional Sessions Judge, Shagalpur.
2. In Cr. Appeal No. 271 of 1994, there are three appellants : 1. Kunwa Mandal, 2. Ranjit Raj Mandal and 3. Etwari Mandal. In Criminal Appeal No. 224 of 1994, there are four appellants. 1. Ratan Mandal, 2. Bajo alias Shailendra Mandal, 3. Arbind Mandal and 4. Jharu Mandal. All the seven appellants of the two criminal appeals have been convicted under Sections 302/149 and 148 of the Indian Penal Code and sentenced to undergo R.I. for life under Section 302/149, I.P.C. No separate sentence has been passed for the offence under Section 148, I.P.C.
3. In short the case of the prosecution is that at 12 ‘Clock in the day of 19-4-89 deceased Ram Chandra Singh, brother-in-law (Dewar) of the informant Chando alias Chandri devi was sitting at his verandah after taking meal. In the mean time some one told him that children were taking out Puwal at his Khalihan and Ramchandra Singh went out to see it. The informant Chandri alias Chando Devi was returning from her field and Ramchandra Singh met her in the lane and asked her as to who were pulling out Gambhauri (Puwal) and she told him that there was none. Master Saheb (deceased Ramchandra Singh) moved forward and started looking about it and the informant sat in the Gohal and thereafter Master Saheb (Ramchandra Singh) also returned to the Gohal and his daughter Sohamani (P.W. 5) was also with him. At that time two carpenters were constructing frame (Chaukhat) of Almirah of the deceased Ramchandra Singh in the Gohal and he (Ramchandra Singh) started looking after it. In the mean time accused Nand Lal Mandal, entered into the Gohal and caught Master Saheb (deceased Ramchandra Singh) from behind and Ramchandra Singh tried to get himself released and Nand Lal Mandal called Ranjit by the name Ranjitwa and then accused Ranjit Raj Mandal, Etwari Mandal, Jharu Mandal, Arbind Mandal, Bajo Mandal alias Shailendra Mandal, Ratan Mandal, Umesh Mandal Kunwa Mandal armed with pistol and gun came there. The informant also ran towards Ramchandra Singh and asked Nand Lal Mandal to leave him. Ramchandra Singh and Nand Lal Mandal came out of the Gohal during scuffle, and then accused Ranjit Raj Mandal, Etwari Mandal, Kunwa Mandal and Umesh Mandal fired at Ramchandra Singh. The accused persons dragged Ramchandra Singh (Master Saheb) in front of Gathora of Kamta Prasad Mandal. On hulla, Machulata wife of Ramchandra Singh (deceased) and her daughter Manjushree, Rashmi and Prakash Singh and others came there. Some accused also hit. on the head of the informant by the gun causing her injury on her head. Deceased Ramchandra Singh had fallen on the ground. The informant also fell on him after the assault on her. On hulla many people of the village came and thereafter Madhulata and one another person took Ramchandra Singh inside the house. The informant along with her grand son Pankaj aged about 3 years also went inside the house, but by then Ramchandra Singh had died. Informant had also sustained injury in her finger. The reason of occurrence has been stated to be the land dispute between Ramchandra Singh and the accused persons and the accused persons had earlier also tried to murder Ramchandra Singh in which he had sustained injury and for which Sessions trial is pending. The fardbeyan of the Chando alias Chandri Devi (Ext. 8) was recorded by J.N. Sharma, Officer-in-charge of Sanhaula P.S. on the same day i.e. on 19-4-89 at 3.30 P.M. at Village Chandpur. On the basis of the fardbeyan formal F.I.R. (Ext. 2) was drawn in this case. After investigation police submitted chargesheet against nine accused persons including the seven accused appellants of the two criminal appeals. The two other accused persons against whom chargesheet had been submitted were Nandlal Mandal and Umesh Mandal. The learned Chief Judicial Magistrate took cognizance of the case and thereafter the case was committed to the Court of Sessions for trial. During the course of trial case of accused Nandlal Mandal and Umesh Mandal was separated and the above Sessions Trial proceeded against the aforesaid seven accused appellants.
4. The defence of the accused persons is that they have been falsely implicated in this case due to previous enmity. In addition to that the defence of accused appellant Etwari Mandal is that at the time and date of occurrence he was not present at the place of occurrence.
5. In this case 18 witnesses have been examined on behalf of the prosecution and five witnesses have been examined on behalf of the defence P.W. 3, Md. Shakur is a witness of formal nature, who has proved Ext. 2 the formal F.I.R. of this case. P.W. 6 Shambhu Mandal, P.W. 11, Bindu Devi. P.W. 13 Om Prakash Singh alias Prakash Singh and P.W. 14 Krishna Murari Singh have been tendered by the prosecution, P.W. 10 Chando alias Chandri Devi is the informant of this case. She has stated that Ramchandra Singh was her brother-in-law (Dewar), who was murdered and at 12’O clock in the day he (Ramchandra Singh) was sitting in the Verandah of the house after taking meal and then he went to see his Puwal and after returning from there he was sitting in the Gohal where Sonamani was playing and two carpenters were working and she (P.W. 10) was removing cow dung there. In the meantime accused Nandlal Mandal came there and caught Ramchandra Singh from behind and called Ranjitwa and thereafter Ranjitwa, Etwari, Umesh, Kunwa, Jharu, Arbind, Bajo and Ratan armed with gun and pistol came there. She has said that after dragging Ramchandra Singh, Ranjit fired bullet on him and then Etwari, Umesh and Kunwa also fired on him and she (P.W. 10) wanted to save him (Ramchandra Singh) and she sustained bullet injury in her hand. She has also said that Ranjit hit on her head by the butt of gun or pistol and she fell down and after hit by the bullet Ramchandra Singh had also fallen down and on hulla wife of Ramchandra Singh his daughter Manjushree and people of the village had reached there. According to her (P.W. 10) wife of deceased Ramchandra Singh her daughter and Jugal took Ramchandra Singh inside the Angan, where Ramchandra Singh died. She has said that Daroga came at 3 ‘O Clock in the day and recorded her statement and read it over to her and after finding it correct, she put her thumb impression. She has said that earlier there had been case for the land and Ranjit had assaulted Master Saheb (Ramchandra Singh) in which Ranjit was convicted and due to that enmity the accused persons had murdered Ramchandra Singh. She is an injured eye-witness and her evidence is corroborated by medical evidence of P.W. 15 Dr. H.I. Ansari and P.W. 17 Dr. M.A. Rashid.
6. P.W. 1 Madhulata Sinha, wife of the deceased Ramchandra Singh has also stated that the occurrence is of 19-4-89 at 12 ‘O Clock in the day and her husband after taking meal was sitting on the Verandah and some one told him that some lady was pulling out his Qambhauri (Puwal) and her husband went to see it and she went behind him and after scolding the person who was pulling out the Puwal, her husband returned to Gohal and on that day two carpenters were working in the Gohal. According to her, the sister-in-law (Bhaujai) Chando Devi (P.W. 10) of her husband and her daughter Sonamani (P.W. 5) were also there. She has said that in the mean time Nand Lal Mandal came in the Gohal and caught her husband from behind and her husband tried to get himself released and then Nandlal Mandal called Ranjit and thereafter Ranjit Raj Mandal, Etwari Mandal, Kunwa Mandal, Umesh Mandal, Jharu Mandal, Arbind Mandal. Ratan Mandal and Shilendra Mandal came there and accused Ranjit Raj Mandal, Etwari Mandal, Kunwa Mandal and Umesh Mandal fired on her husband. She has stated that bullet of Umesh Mandal and Kunwa Mandal did not hit her husband. According to her, the sister-in-law of her husband was protesting and she was hit by the bullet of Umesh Mandal in her finger and Umesh also assaulted Chando Devi with the butt of the gun on her head. Further according to her (P.W. 1) she, her daughter and Jugal Yadav brought her husband in the Angan, but soon after he died. She has said that the reason of occurrence is land dispute and before this occurrence also twice Ranjit Raj Mandal had tried to murder her husband. She has said in her cross examination that no one had immediately came there on the sound of firing. Whenever there is firing it is natural that people will take some time to reach there on the sound of firing. Murders are not committed with previous notice to witnesses soliciting their presence. Therefore, the evidence of P.W. 1 Madhulata Sinha, who is the wife of the deceased cannot be disbelieved on this ground.
7. P.W. 15, Dr. H.I. Ansari. who had conducted the post-mortem examination on the dead body of Ramchandra Singh, has stated that on 20-4-89 at about 12.30 P.M. he had performed the post-mortem examination on the dead body of Ramchandra Singh and on external examination there was early sign of decomposition and on further examination he found the following ante mortem injuries :-
(i) Fire arm wound of entry on right side anterior axilliary fold horizontally, size of the wound 1 1/4″ x 3/4″ x bone deep with black and inverted margin.
(ii) firearm wound of exist 3/4″ x 1/4″ on back of chest slightly right from the midline with inverted margin.
(iii) firearm wound of entry on left side upper abdomen 1/2 ” x 1/2″, circular in shape with tatooing around it.
(iv) firearm wound of exit 1/2″ x 1/2″ on left side back of chest.
On dissection of track of wound no. (iii) the projectile have entered through left 8th costal cartiledge then it passed through the diaphram, left lung, stomach and passed through the left side of 8th thoracic vertibrae and has come out through injury No. (iv) on tracing the track of injury No. (i) it had passed through the soft tissues of right side chest wall, fifth rib, right lung and then posteriorly came out through injury No. (ii). The track of the wounds were gradually becoming wider from entry to exit side and the passage was infiltrated with blood.
He has said that the stomach contained partly digested rice etc. and his opinion weapon used was fire arm and cause of death was hemorrhage and stock following above injuries. The post-mortem report written and signed by him (P.W. 15) is Ext. 3. He has also said that the injuries were sufficient to cause death. The fact that the doctor had found partly digested rice etc. in the stomach on the post-mortem, proves the case of the prosecution that the deceased Ramchandra Singh was murdered after some time of his taking meal.
8. It was submitted by the learned counsel appearing on behalf of the appellants that the doctor had found only two bullet injuries i.e. two wounds of entries and two wounds of exit, but according to the informant P.W. 10 Chando alias Chandri Devi and P.W. 1 Madhulata Sinha, wife of the deceased Ramchandra Singh, four persons had fired on Ramchandra Singh (deceased). The learned A.P.P. appearing on behalf of the State submitted that the prosecution case and the evidence of P.W. 10 Chando alias Chandri Devi and P.W. 1 Madhulata Sinha, who are eye-witnesses cannot be discarded on the ground that post-mortem examination shows only two Wounds of bullets. In support of his contention, the learned A.P.P. placed reliance on a decision of the Supreme Court Cr. Appeal No. 37 with 38 and 39 of 1996 (Mithilesh Upadhayaya v. The State of Bihar) (Dwarika Nath Tiwary v. The State of Bihar) and (Narbadeshwar Tiwary v. State of Bihar) reported in AIR 1997 SC 2457 in which it has been held that the evidence of eye-witnesses stating that each of the three accused fired at deceased and that each of shots hit him cannot be discarded on ground of postmortem examination showing only two wounds of entry when shots were fired in quick succession-if particular shot did not hit victim it could be due to misfiring or erratic aim. In the present case also the shots appeared to have been fired in quick succession.
9. P.W. 17 is another Medical Officer Dr. M.A. Rashid. He has stated that on 20-4-89, he was posted at Sanhaula as Medical Officer and on that day at 8 A.M, he had examined Chandri Devi alias Chando devi and found the following injuries on her persons :-
(i) bruise 1/4″ x 1/4″ x 1/4″ on head,
(ii) abrasion 1/4″ x 1/4″ x 1/4″ on the root of the ring finger of right hand.
He has stated that injury No. (i) was caused by blunt object which may be the butt of gun also and injury No. (ii) may be caused by fall on the ground or on any hard substance. According to him the nature of the injuries was simple. Ext. 5 is the injury report. Thus the evidence of P.W. 10 Chandri alias Chandri Devi the informant and P.W. 1 Madhulata Sinha wife of the deceased (Ramchandra Singh) is supported by the medical evidence of P.W. 15 Dr. H.I. Ansari and P.W. 17 Dr. M.A. Rashid.
10. There is nothing in the cross-examination of P.W. 10 Chando alias Chandri Devi, P.W. 1 Madhulata Sinha, P.W. 15 Dr. H.I. Ansari, who had conducted the post mortem Dr. M.A. Rashid who had examined Chadri Devi to disbelieve their evidence. Ext. 4 is statement of Chandri Devi under Section 164, Cr.P.C. and Ext. 4/1 is the statement of Madhulata Sinha under Section 164, Cr.P.C.
11. P.W. 16 is Ashok Kumar Singh ‘Ashok’ an Additional Munsif. He has stated that on 21-7-89 and 22-7-89 he was posted at Bhagalpur as Judicial Magistrate, 2nd Class and on 21-7-89 he has recorded the statement under Section 164, Cr.P.C. of Chandri Devi, Madhulata Sinha, Manjushree Rashmishree, Ajab Lal Singh and Sona Mani and on 22-7-89 he had recorded the statement of Yugal Yadav and Ram Pravesh Mandal under Section 164 Cr.P.C. in Sanhaula P.S. Case No. 29(4) 89. The statements under Section 164, Cr.P.C. are Exts. 4 to 4/7.
12. P.W. 5 is Sonamani, daughter of deceased Ramchandra Singh. According to the fardbeyan of informant Chando alias Chandri Devi (Ext. 6), this witness Sonamani daughter of deceased Ramchandra Singh was present in the Gohal at the time of occurrence. The trial Court has mentioned the age of this witness (P.W. 5 Sonamani) as to 101/2 years on 22-11-90. The date of occurrence of this case is 19-4-89. So this witness Sonamani was examined as a witness in the trial Court after about one and half years of the occurrence. The learned Additional Sessions Judge has mentioned in her deposition that he had put some common questions to the witness to which she had replied in a common way such as as to what was her name, where was her house, in which class she studies, which was this month, which was the year and which was the date etc. The learned Additional Sessions Judge has also mentioned in her deposition that it appeared from this that she can understand the question and can give reply and the witness could not tell her age, religion and nationality and the witness was not administered oath. She (P.W. 5 Sonamani) has stated that the occurrence is of one and half years back and it was 12’O Clock in the day and she was playing in the Gohal of Prakash and carpenter was working there. She has said that her father was sitting in the Verandah of the house after taking meal and some person told him that some one was pulling his Larua (Puwal) and her father went to see it and he returned after some time in the Gohal where she was playing and then Nandlal Mandal came there and caught her father from behind and Nandlal Mandal called Ranjitwa on which Ranjit Mandal, Etwari Mandal, Umesh Mandal and Kunwa Mandal came there and Ranjit Mandal fired first and second bullet was fired by Etwari and both the bullets had hit his father and thereafter Kunwa Mandal fired which hit her Bari Maa. She has also said that her father fell down. She has stated that there was no hulla, where P.W. 10 Chando alias Chandri Devi, the informant has said in her evidence that on hulla wife of Master Saheb (deceased Ramchandra Singh) his daughter Manjushree and people of village had come. It appears from the above facts that this witness P.W. 6 was aged about 9 years at the time of occurrence. In view of the facts and circumstances of the case her evidence cannot be disbelieved on such minor contradictions. According to her (P.W. 5), her father died after five minutes and before his death, her mother, Jugal Yadav and Manju had brought him in the house and put him on the cot. She has also said that Jharu Mandal, Bajo Mandal and Arbind Mandal were also there, where the occurrence had taken place and they were armed with small guns. Generally when an occurrence takes place with a person near his house, his family members are natural witnesses. There does not appear any reason to disbelive her evidence. Ext 4/5 is her statement under Section 164, Cr.P.C.
13. P.W. 2 is Rashmishree. The trial Court has estimated her age as 9 years. She was examined as a witness in the trial Court on 15-11-90 and the date of occurrence of this case is 19-4-1989. It appears that at the time of occurrence, she was aged about 7 1/2 years. She has stated that she was in her Khalihan at about 12 ‘O Clock in the day and she does not know as to where her father was at that time and nothing had happened on that day. In reply to the question as to whether anything had happened with her father on that day, she had replied as no. It cannot be inferred from her evidence that the accused persons have committed the offence as alleged. The evidence of P.W. 2 Rashmishree is of little help to the prosecution.
14. P.W. 18 is Jainandan Sharma, the I.O. of the case. He has stated that on 19-4-1989 he was Officer-in-charge of Sanhaula P.S. and on that day at 2 P.M. he heard that murder had been committed in village Chandpur and he went there. According to him he recorded the fardbeyan of Chando alias Chandri devi at 3.30 p.m. (Ext. 6) He had conducted the investigation of the case. According to him he had prepared inquest report of the dead body of deceased Ramchandra Singh in presence of Vijay Kumar Singh (P.W. 7) and Ajab Lal Singh (P.W. 4). Ext. 7 is the carbon copy of the inquest report of deceased Ramchandra Singh. He has stated that he inspected the place of occurrence and prepared its map and the place of occurrence is the joint land in front of the joint house of the deceased in village Chandpur which had Gohal heep of Puwal and Khalihan on it. The place of occurrence stated in the fardbeyan (Ext. 6) and stated by the informant P.W. 10 Chando alias Chandri Devi is her evidence is proved by the evidence of the I.O.P.W. 18, Jainandan Sharma. He (P.W. 18) Jainandan Sharma has said that sought to the joint house of the deceased there is joint house of Kamta Prasad Mandal, Shambhu Mandal and Dinesh Mandal and south to the Gathora of Kamta Prasad Mandal he had found blood on the earth and east to it a blood stained bullet and to the east of it a wood of the joint of the gun and he seized the blood soaked earth, blood stained bullet and the wood in presence of the witnesses Vijay Kumar Singh and Ajab Lal Singh and prepared its seizure list and the witnesses had also signed on it. Ext. 8 is the seizure list, which bears the signature of Vijay Kumar Singh (Ext. 1/5) and signature of Ajab Lal Singh (Ext. 1/6). The rough sketch map of the place of occurrence is Ext. 9. The above facts and materials found by the I.O. during the investigation of the case proves the place of occurrence and the prosecution case.
15. P.W. 4 Ajab Lal Singh, and P.W. 7 Vijay Kumar Singh have also supported the prosecution case and both of them are witnesses on the inquest report and the seizure list. P.W. 4 Ajab Lal Singh has stated that he went to the door of Ramchandra Singh (deceased) on hulla and he saw at the Gohal of Prakash Singh, which is at a distance of 10-16- cubits from the house of Master Saheb (Ramchandra Singh) that Nand Lal Mandal had caught Master Saheb and he was trying to get himself released and Nand Lal Mandal called Ranjit Raj Mandal on which Ranjit Raj Mandal, Umesh Mandal, Etwari Mandal, Kunwa Mandal, Arbind Mandal, Jharu Mandal, Shilendra Mandal and Ratan Mandal came there, who were armed with guns and pistols. He has said that Ranjit Raj Mandal fired, which hit in the abdomen of the deceased (Master Saheb Ramchandra Singh) and Etwari fired which hit in the armpit of the Master and Umesh Mandal fired pistol and the pellets had hit on the face of the master. According to him Kunwa Mandal had fired in the air and the sisters-in-law (Bhabi) Chando Devi of the Master, who was there was trying to save him. He has also said that the wife of the Master, Manjushree and Jugal Yadav had come there at that time. He has said in his cross examination that his house is after two houses from the house of the deceased. When the house of this witness (P.W. 4) is only after two houses of the house of the deceased it was natural for him to reach the place of occurrence soon after hulla. The evidene of this witness is corroborated by the evidence of P.W. 15 Dr. H.I. Ansari, who had conducted the postmortem examination on the dead body of the deceased and had found two wounds of fire arm entries and two wounds of fire arm exist on the body of the deceased.
16. P.W. 7 Vijay Kumar Singh has stated that on hulla he went to the Gohal of Prakash Singh and saw that Nandlal Mandal had caught Master Saheb (deceased Ramchandra Singh) and nine persons had surrounded him and Nandlal Mandal called Ranjit Raj Mandal and then Ranjit Raj Mandal came and fired at the Master Saheb and thereafter due to fear he (P.W. 7) fled away, raising hulla. According to him again he came to the Gohal and saw that the master was dead. He has stated that he had seen Nand Lal Mandal, Ranjit Mandal Etwari Mandal, Umesh Mandal, Arbind Mandal Shailendra Mandal, Ratan Mandal, Jharu Mandal and Kunwa Mandal running away and the Daroga had come on the same day and inspected the dead body before him (P.W. 7) and prepared the inquest report and he and Ajab Lal Singh had signed on it. Ext. 1/3 is his signature on the inquest report. He has also said that the Daroga had seized blood soaked earth, blood stained bullet and wood of the gun before him and Ajab Lal Singh and prepared the seizure list on which both of them (Vijay Kumar Singh and Ajab Lal Singh) had signed. Exts. 1/5 and 1/6 are their signatures on the seizure list. He has said in his cross examination that there is distance of 5 cubits (Panch Hanth) between his house and that of the deceased Ramchandra Singh and there is no other house in between their houses. As the house of this witness is close to the house of the deceased, it is natural for him to have reached there soon after the hulla. The evidence of P.W. 4 Ajab Lal Singh and P. W.7 Vijay Kumar Singh is supported by the evidence of P.W. 15 Dr H.I. Ansari and the I.O.P.W. 18 Jainandan Sharma.
17. P.W. 8 is Manjushree daughter of the deceased Rachandra Singh. She has stated that she was inside the house on 19-4-89 at 12′ O Clock in the day and she went out on hulla and saw that Nandlal Mandal had caught her father and Ranjit Mandal, Etwari Mandal and Umesh Mandal fired on her father and Umesh Mandal chased her and she went inside the house. She has said that her mother had also come out on hulla and she (P.W. 8) again went to Gohal after two minutes and she saw Ranjit Mandal, Etwari Mandal, Kunwa Mandal Umesh Mandal, Arbind Mandal, Bajo Mandal, Ratan Mandal in the Khalihan who were armed with guns. According to her she (Humlong) brought him (her father) inside the house and put him on the cot and after about five minutes he died. P.W. 9 is Jugal Yadav. According to him on hearing hulla he went to the door of Kantlal Mandal and saw that Ramchandra Singh had fallen down and he brought him inside the house. He has stated that he had seen Ranjit Mandal Etwari Mandal, Jharu Mandal, Kunwa Mandal, Shailendra Mandal alias Bajo Mandal, Umesh Mandal, Ratan Mandal and Nand Lal Mandal running away. According to him the wife of Ramchandra Singh and Manjushree were also with him in taking the body of Ramchandra Singh in the Aangan. His evidence is supported by P.W. 1 Madhulata Sinha, wife of the deceased Ramchandra Singh, who has said that she, her daughter and Jugal Yadav had brought her husband in the Aangan.
18. P.W. 12 is Sudha Devi, wife of Vijay Kumar Singh, she has also supported the prosecution case. According to her also Nandlal Mandal had caught Master Saheb, who was her uncle in law she has stated thai Nandlal called Ranjit and Ranjit Mandal, Etwari Mandal, Kunwa Mandal, Umesh Mandal, Bajo Mandal, Arbind Mandal and Ratan Mandal, who were armed with gun came there. According to her due to fear she, could not locate as, to which arms was in whose hand and she ran towards west raising hulla and she returned after 10-15 minutes and then she saw that Master Saheb was lying on the Verndah and he was dead. The evidence of these witnesses (P.Ws. 4, 7, 8, 9, 12 and 18) also proves the prosecution case.
19. Five witnesses have been examined on behalf of the defence D.W. 1 Mit Lal Mandal was stated that on 19-4-89 he was at his door till half past 10’O Clock in the day and thereafter he had gone to the pond to feed the cattle. He has said that the house of Ramchandra Singh is close to his house and on 19-4-89 Ramchandra Singh, was murdered and he had seen the assailants, who were to in number and they were not his village. Admittedly he had left his house after half past 10′ O Clock in the day. The occurrence is of after 12′ O Clock in the day. He has said in his cross examination that Etwari Mandal happens to be his nephew by village relation and Jharu Mandal is brother of Etwari Mandal. In view of the facts and circumstances of the case and in view of the above evidence adduced on behalf of the prosecution and in view of the materials found by the I.O. at the place of occurrence, it cannot be inferred from the evidence of D.W. 1 Mit lal Mandal that the accused persons have not committed the offences as alleged.
20. D.W. 2 is Dinesh Mandal. According to him his house is after two houses from the house of Ramchandra Singh and he had seen the assailant of Ramchandra Singh and on that day two carpenters were working at his door out of whom one was of Bhawanipur and he does not know about other carpenter. He has said that the assailants were not of his village. The case of the prosecution is that on the date of occurrence two carpenters were working at the place of the deceased Ramchandra Singh. P.W. 18 the I.O. of this case has said in his cross examination that he searched the carpenters, who were working in the Gohal and no one had told their names to him. This clearly shows that this witness D.W. 2 Dinesh Mandal had come to help the accused persons and to put up a carpenter as a defence witness. In view of the facts and circumstances of the case and the materials available on record the evidence of D.W. 2 Dinesh Mandal is not worthy of reliance.
21. D.W. 4 is Fugrim Sharma. He has stated that Gulabi Mistry had come to call him and he had gone to work at the place of Ramchandra Singh at 8 ‘O Clock and he was constructing the frame (Chaukhat) of Almirah and after two hours two criminals came and fired at Ramchandra Singh by dragging him and thereafter he and Gulabi fled away. Admittedly the occurrence had taken place after 12 ‘O Clock in the day, but according to this witness, the occurrence had take place at about 10 ‘O Clock in the day. He has said in his cross examination that on that day he had gone to work at the place of Ramchandra Singh for the first time and he had not gone to the village Chandpur before that and he had also not gone to that village after that day also to work. It is surprising that this witness had gone to the village Chandpur, where the occurrence had taken place only on the day of occurrence to work and he had neither gone there before the day of occurrence nor after the occurrence. It has already been mentioned that the I.O. P.W. 18 Jainandan Sharma has said in his cross examination that he had searched for the carpenters, who had worked in the Gohal, but no one had told their names. If this witness (D.W. 4) Fugrim Sharma had worked at the place of the deceased Ramchandra Singh, the I.O. must have learnt about his name when he had searched for the carpenters working in the Gohal. In view of the above facts and circumstances, the evidence of D.W. 4 Fugirm Sharma is not worthy of reliance.
22. D.W. 3 is Ram Charitar, Mandal, a moharrir, he has stated that he knows Etwari Mandal of Chandpur and he takes, steps on his behalf in a case under Section 107, Cr.P.C. and on 19-4-89 was the date fixed in that case and the court had morning sitting on that day and at 6.30 A.M. Etwari Mandal had come to court of S.D.O. and remained there till 12.30 p.m. and he was present at the time of call in the court. No copy of the order of the case under Section 107, Cr.P.C. or any material has been produced on behalf of the defence to show that the accused Etwari Mandal was present in the court of S.D.O., Bhagalpur on the day of occurrence from 6.30 a.m. to 12.30 p.m. He has said in his cross examination that he has never gone to Chandpur and due to work in that case only he was acquainted with Etwari Mandal. He has also said in his cross-examination that he does not remember as to which client had come to him on which day and when he had returned. When he does not remember that which client had come to him on which day and when he had returned it cannot be accepted from his (D.W. 3) evidence that on that date Etwari Mandal Was present in court of S.D.O., Bhagalpur from 6.30 a.m. to 12.30 p.m. D.W. 5 is Nand Kumar Jha, a Pleader’s clerk. According to him he used to take steps on behalf of the second party in the case Pradeep Poddar v. Ranjit Raj Mandal and Ors. under Section 107, Cr.P.C. and on 19-4-1989 he had filed attendance of Etwari Mandal on behalf of the second party and Etwari Mandal was present in the Court from 6.30 a.m. to 12. noon. He has proved Ext. A, the attendance of 19-4-89 written by him. He has said in his cross examination that it does not bear the signature or thumb impresssion of Etwari Mandal. It has already been mentioned above that no copy of the order of the case under Section 107, Cr.P.C. or any material has been produced on behalf of the defence to show that the accused Etwari Mandal was present in the court of S.D.O., Bhagalpur on the date of occurrence from 6.30 a.m. to 12.30 p.m. In view of the facts and circumstances of the case and in view of the above facts, no reliance can be placed on the evidence of D.W. 3. Ram Charitar Mandal and D.W. 5 Nand Kumar Jha, Exhibit B is certified copy of F.I.R. of Sanhaula P.S. case No. 33 dated 31-3-87 under Section 302/34, I.P.C. and under Section 27 Arms Act instituted by Etwari Mandal against Ramchandra Prasad Singh, Bhagwat Singh, Ajablal Singh, Shambhu Nath Mandal, Vijay Singh, Prakash Singh and Yugal Yadav for the murder of his brother. In view of the facts and circumstances of the present case and the above evidence adduced on behalf of the prosecution and the fact and materials found at the place of occurrence by the I.O. P.W. 18 Jainandan Sharma during investigation of case and medical evidence of P.W. 15 Dr. H.I. Ansari and P.W. 17 Dr. M.A. Rashid, it cannot be inferrd from Exhibit B that the accused persons have not committed the offences.
23. It cannot be inferred from the evidence of D.W. 1 Mit Lal Mandal, D.W. 2 Dinesh Mandal D.W. 4 Fugrim Sharma D.W. 3 Ramcharita Mandal and D.W. 5 Nand Kumar Jha and Exts. A and B that that accused persons have not committed the offences as alleged. It cannot be inferred that the accused Etwari Mandal was not present at the place of occurrence at the time of commission of the offence.
24. The above evidence adduced on behalf of the prosecution proves beyond all reasonable doubts that the accused appellants have committed the offence as alleged. The order of conviction and sentence passed by the 6th Additional Sessions Judge, Bhagalpur against the accused-appellant is maintained. There is no merit in these criminal appeals. Both these criminal appeals are accordingly dismissed.
25. The appellants Kunwa Mandal, Ratan Mandal, Bajo alias Shailendra Mandal, Arbind Mandal and Jharu Mandal are on bail. Their bail is cancelled and they are directed to surrender forthwith in the court 6th Additional Sessions Judge, Bhagalpur to serve out the remainder of their sentences. The 6th Additional Sessions Judge, Bhagalpur will also take all necessary steps in this regard. Accused Ranjit Raj Mandal and Etwari Mandal are in jail custody.
Nagendra Rai, J.
26. I agree.