JUDGMENT
R.N. Sahay, J.
1. In Sessions trial No. 63/81/6/82 on the file of 2nd Addl. Sessions Judge, Madhubani, 17 persons were placed on trial having been charged under Sections 302/34 and 148 of the Indian Penal Code for having intentionally and knowingly causing the death of three persons, namely, Ram Sewak Singh, Sheetal Singh and Santosh Singh in furtherance of their common intention. The incident which led to the trial and conviction of the accused-persons happened on 10-9-1980 at village Chhatauni, P.S. Basopatti in the district of Madhubani. The accused-persons were further charged under Sections 449 and 380 of the Indian Penal Code. Appellant Israil Kabari was separately charged under Section 302, I.P.C. simpliciter for having committed murder of Shital Singh while Dipan Singh @ Deep Narain Singh was also separately charged for the murder of Ram Sewak Singh. Three persons, namely, Bhikhar Raut, Tahir Kabari and Terni Prasad Singh were charged under Section 302/34 of the Indian Penal Code for committing murder of Santosh Kumar Singh son of Khattar Singh aged about three years. Two persons were acquitted. All the appellants have been convicted under Section 302/34, I.P.C. and sentenced to imprisonment for life. They have also been convicted under Sections 148 and 449, I.P.C. and sentenced to three years mad ten years’ imprisonment respectively. Appellants Bhikhar Raut, Tahir Kabari and Tarni Prasad Singh have further been convicted under Section 364, I.P.C. and sentenced to ten years’ imprisonment. All the sentences were to run concurrently.
2. In Cr. Appeal No. 85 of 1985, there are five appellants. The appellant No. 1 Nirsu Narayan Singh is dead. So this appeal stands abated so far appellant No. 1 is concerned. In Cr. Appeal No. 173 of 1985, the sole appellant Dip Narayan Singh @ Dipari Singh died on 12-11-1990. Hence, this appeal stands abated.
3. The prosecution story has been accurately narrated by the learned trial Judge as follows:
2. The lamentable incident ending in three lives took place at about raid-day on 10-9-1980 at village Chhatauni, P.S. Basopatti within the District of Madhubani. The case of the prosecution is that on the day of the occurrence in the fore-noon at about 10 to 10.30 a.m. there was a murder of Nasib Kabari. The accused-persons and some other persons of the village got into their heads that in that murder, Ram Sewak Singh and Shital Singh (both deceased) and Khattar Singh had their active hands and as such at about 11 to 11.30 a.m. the accused-persons forming an unlawful assembly of about fifty to sixty persons came armed with deadly weapons like Gun, Bhala, Garasa and Farsa towards the house of Ram Sewak Singh and Shital Singh having a common Angan and Khattar Singh having his house close to them. Khattar Singh was not present and had got out for purchasing the buffaloes while both the deceased Ram Sewak Singh and Shital Singh (cousin brothers) were sitting at their darwaja and the informant Ramadhar Singh son of Shital Singh was sitting there. They heard a sound of gunfire and the unlawful assembly. Out of fear both the deceased entered into their house and from the rear door of their Angan, they went into the Angan. of their neighbour Sarjug Singh situated contiguous south of their house and entered and concealed themselves in the western room facing east and closed the door of the room from within. In the meantime, the unlawful assembly consisting of the accused-persons came inside the Angan of Sarjug Singh. Accused Tarni Prasad Singh and Mod Narayan Singh being armed with Gun and accused Dineshwar Raut, Israil Kabari, Bhola Singh and Jhapsa Kabari being armed with Farsa and Bhala climbed on the roof of the room in which both the deceased had concealed themselves and after removing the straw, accused Tarni Prasad Singh fired from his gun inside the room and accused Thapa Thakur pierced his Bhala from the roof inside the room Accused Mod Narain Singh also fired from his gun. The rest of the accused-persons were trying to break and push open the door of the room and finally they succeeded in breaking open the door of the room. Thereafter, both Ram Sewak Singh and Shital Singh were dragged out of the room and brought in the Angan. Accused Deepan Singh sat 011 the chest of Ram Sewak Singh and cut the neck by means of a Hasua (Sickle). Accused Bhikhar Raut who was holding a gun handed over his gun to accused Nirsu Narain Singh and took Farsa from him and gave several Farsa blows to both Ram Sewak Singh and Shital Singh. Accused Israil Kabari who had climbed on the roof of the room came down with his Bhala and have a deadly blow by piercing Bhala on the abdomen of Shital Singh. Both Ram Sewak Singh and Shital Singh died instantaneously. Thereafter, the members of the unlawful assembly including the accused-persons looted articles from the house of both the deceased persons and Sarjug Singh. Thereafter, they came out and went at the house of Khattar Singh. The wife of Khattar Singh named Nandini Devi was in the Angan holding her only son, Santosh Kumar Singh in her lap and Pawan Devi was also in the Angan. Alter entering inside the house, the accused-persons looted her articles, assaulted Nandini Devi and accused Bhikhar Raut, Tarni Prasad Singh and Tahir Kabari snatched the child Santosh Kumar Singh and went away.
4. The Officer-in-charge Basopatti P.S. had come to Mahinathpur in connection with investigation of another case being 2(9)80 and there he got. the vague information regarding the murders at Chatauni and thus he rushed to village Chhatauni and reached the house of the informant at about 1 p.m. and enquired about ass to what had happened and the informant told about the incident and the dead bodies lying in the Courtyard of Sarjug Singh. While the informant was relating to him about the occurrence, the Officer-in-charge went inside the Courtyard of Sarjug Singh and took charge of the dead bodies of Ram Sewak Singh and Shital Singh and held inquest over the dead bodies and prepared inquest report. He again prepared challan for sending the dead bodies to Madhubani for post-mortem. Thereafter, he recorded in full the statement of Ramadhar Singh and sent the same for drawing up a formal F.I.R. which was subsequently drawn up. He, thereafter, took up investigations. He made investigations at the place of occurrence, seized blood-stained earth from near the dead bodies and. the room where both the deceased had concealed themselves He examined witnesses. The dead body of Santosh Kumar Singh was found hurried in a paddy field west of the village mosque and the Investigating Officer on 11-9-1980 in the fore-noon recovered it with the help of the Block Development Officer and prepared a seizure list. He thereafter, made an inquest over the dead body of Santosh Kumar Singh, aged about three years bearing neck cut by means of sharp weapon. On the same day, the house of Tahir Kabari was searched and a Chhura bearing blood stains was recovered.
4. Ramadhar Singh (P.W. 8) son of deceased Shital Singh was aged only 14 years at the time of occurrence. He was student of Class-IX in Jatulia High School, which was located about one kilometre from village Chatauni. This witness, according to his fardbeyan and evidence in Court was sitting at, his Darwaja with his father and uncle. He heard hulla from south and then noticed a mob consisting 40 to 50 persons approaching his house coming from southern direction. He identified the persons named by him in his fardbeyan. The persons named by him were armed with deadly weapons. Ram Sewak Singh and Shital Singh naturally became apprehensive to the danger of their lives. They fled in the Angan of Sarjug Singh and entered in one of the rooms of Sarjug Singh and closed the door from within. Ramadhar Singh fled to the southern Bari of Sarjug Singh from where he witnessed the events that followed. He saw appellants Dineshwar Raut, Israil Kabari, Thapa Thakur and Deep Narayan Singh climbing on the roof of the room in which his father and uncle had taken shelter. Appellant Israil Kabari removed straw from the roof and appellant Thapa Thakur pierced Bhala inside the room and appellant Tarni Prasad Singh fired from his gun inside the room. Appellants Nirsu Narayan Singh, Ram Babu Singh, Bhikhar Raut, Bhulla Bind, Manchit Bind, Deepan Singh, Jhapsa Kabari and Tahir broke open the door of the room and dragged out both the deceased from the room. Appellant Israil Kabari came down from the roof and gave a Bhala blow on the abdomen of Shital Singh. Appellant Bhikhar Raut took farsa from Nirsu Narain Singh’ and assaulted with farsa on both the deceased persons. Appellant Deepan Singh cut the neck of Ram Sewak Singh. Both the deceased died on the spot. Later he came to know about second incident from Nandini Devi regarding snatching of Santosh Kumar Singh.
5. Learned trial Judge accepted the evidence of this witness as reliable and trustworthy despite serious attack on his evidence by the defence. Learned trial Judge has considered the criticism of this witness in paragraphs 11 and 12 of the judgment as extracted hereinunder:
11. The evidence of the informant P.W. 8 was put to serious criticism. Firstly, it, was tried to show that at the time of occurrence he had been in his school at Jatulia situated at a. distance of one mile and hence he could not have seen the occurrence but P.W. 8 has denied it and there is nothing to show that he had gone to school on that date. On the contrary, P.W. 8 has stated that he was sitting at his Darwaja where both the deceased were sitting.
12. He has also given the details in cross-examination as to how he had seen the occurrence. There is Bari south of the house of Sarjug Singh and both the deceased had entered inside the western room facing east in the Angan of Sarjug Singh. P.W. 8 has stated that out of fear of being killed, he went in Bari contiguous south of the house of Sarjug Singh and under a mango tree some bundles of harvested Rahar plants were kept and after concealing behind the same, he had seen the entire occurrence in the Angan of Sarjug Singh. He has further stated in the cross-examination that there was a dislapidated Tati about nine feet long and from four to five feet high which was broken at several places and from the broken portion, he had seen the occurrence. The witness has given the entire particulars of the place from where he had witnessed the occurrence and has also stated that he has shown the place to the Investigating Officer. P.W. 8 has also stated in his evidence that P.W. 1 the widow of the deceased Ram Sewak Singh along with Ram Dulari daughter of Sarjug Singh were standing north east in the Angan and both were weeping and imploring but they were not allowed to go near the deceased persons.
6. The informant, had not shown to the Investigating Officer the place from where he had seen the occurrence. The Investigating Officer has. however, investigated the place of occurrence. The Bari has not been shown in the sketch-map prepared by the Investigating Officer but according to the learned trial Judge the vacant land to the south of the house of Sarjug Singh was his Bari. Learned trial Judge has observed that this witness has established his presence in the southern Bari of Sarjug Singh from where he could have seen the occurrence in the Angan of Sarjug Singh,
7. The reliability of the evidence of this witness has to be tested in the light of the evidence of Deopari Devi (P.W. 1) and other eye-witnesses of the occurrence. She is widow of Ram Sewak Singh. Ram Sewak Singh and Shital Singh were cousin. Angan of Ram Sewak Singh and Shital Singh was common. Angan of Sarjug Singh was close south to the Angan of deceased persons. Deopari Devi was cooking food in her kitchen. Time was about 11.00 a.m. She heard sound of gun fire and came out of her house. Her husband and Shital Singh without speaking anything fled to the Angan of Sarjug Singh followed by this witness. She was bold enough to stand in the Angan of Sarjug Singh to watch the entire occurrence. She was not subjected to any injury. At this time the mob reached the Angan of Sarjug Singh. She identified fourteen persons. Ram Babu, Tarni Singh, Mod Narain Singh, Bhikhar Raut and Tahir Kabari were armed with gun and rest of the accused-persons were armed with Bhala and Farsa. Appellants Thana Thakur, Israil Kabari and Tarni Prasad Singh had climbed up the roof of the room in which both the deceased persons had concealed themselves. She saw Israil Kabari piercing Bhala inside the room after removing straw from the roof. Tarni Prasad Singh tired inside the room from his gun. Rest of the accused-persons broke open the door and Tati of the room. They entered inside and dragged out Ram Sewak Singh and Shital Singh. Deepan Singh cut the neck of her husband by Hasua. Israil Kabari came down from the roof and pierced bhala in the abdomen of Shital Singh. Bhikhar Raut indiscriminately assaulted both the deceased persons with farsa. Thus, there is a specific evidence of assault against Deepan Singh, Israil Kabari and Bhikhar Raut. There is no specific allegation against rest of the accused.
8. Learned trial Judge found the evidence of these two eye-witnesses consistent with the material particulars. Deopari Devi has not been named by the informant as a witness in the Fardbeyan which invited criticism from the defence side. This criticism has been discussed in para-21 of the judgment as extracted hereunder:
On an analysis of the evidence of P.W. 1, it appears that she is not only a competent witness but also a natural witness to have seen the occurrence. I have already discussed above that the Angan in which the occurrence leading to the death of her husband and cousin brother of her husband was caused was situated contiguous south. At that time when the unlawful assembly came, she was cooking her food in her Angan and it is not expected that, being a Hindu wife she would not have gone at the place of the occurrence situated contiguous to her Angan having an approach there by the rear gate of her Angan, where the husband and his cousin brother were being done to death and she would not have cried and implored. Her evidence on the other hand is quite natural and consistent with the conduct of an ordinary Hindu wife under the circumstances. Simply because P.W.
8. the informant, did not name her to have seen the occurrence in the fardbeyan Ext. 7, her evidence cannot be rejected. I have already stated above that at that time P.W. 8 was himself aged about fourteen years only and was also under an impact of mental unbalance because of the brutal murder of his father and uncle, the phantom of which must have been haunting his mind when the fardbeyan was recorded and it is not possible to pin him down with the statements made in it under the above exceptional circumstances.
9. The second significant fact which has not been noticed by the learned trial Judge is that Ramadhar Singh in his evidence has not spoken a word about the presence of Deopari Devi in the Angan of Sarjug Singh at the time of occurrence. Ramadhar Singh had a clear view of the Angan where the entire occurrence took place but he failed to notice the presence of his aunt Deopari Devi. Deopari Devi has not spoken a word about the presence of the informant in the house at the time when Shital Singh and Ram Sewak Singh fled to the Angan of Sarjug Singh. This witness has not stated that Ramadhar Singh was also sitting at the Dalan with Ram Sewak Singh and Shital Singh. The prosecution has not reconciled this patent lacuna in their evidence. In my view, it is quite probable that this witness was not present at the time of occurrence. He was a school-going student, and no evidence has been led to show that he was absent from school at that day. Learned trial Judge, however, rightly, relied on the testimony of Deopari Devi. She was most natural witness. Her presence in the house cannot be doubted. There is no reason to disbelieve this witness.
10. The connected occurrence took place in the house of Khattar Singh. In this occurrence, Santosh Kumar Singh aged three years was snatched from the tap of his mother. There are three witnesses of the second occurrence, namely, Pawan Devi (P.W. 2), Nandini Devi (P.W. 4) and Ramashish Singh (P.W. 5). Santosh Kumar Singh was the only child of Khattar Singh. He was way to Nepal on the fateful day. There was no male member in his house. Pawan Devi is the widow of Late Maheshwar Singh, Nandini Devi is the wife of Khattar Singh. At the time of second occurrence, Nandini Devi was in her Angan with her son Santosh Kumar Singh in her lap. Pawan Devi was also in the Angan. The same mob raided the house of Khattar Singh. Both these witnesses had identified the persons in the mob. It is alleged by these two witnesses that Tarni Prasad Singh, Tahir Kabari and Bhikhar Raut had snatched Santosh Kumar Singh from her lap and went away. Deceased Naseeb Kabari was father of appellant Tahir Kabari. Khattar Singh was one of the accused in Naseeb Kabari murder case.
11. Ramashish Singh (P.W. 5) is cousin of Khattar Singh. He and Khattar Singh had common Angan. At about 11.30 a.m. he had gone to answer the call of nature in a field when he heard hulla. The house of Billat Jha is east of the house of this witness at about 4 or 5 laggis. There is a road in between the two houses. Ramashish Singh on hearing hulla came near the house of Billat Jha and saw a mob coming from east He saw the mob first going towards the house of Shital Singh and Ram Sewak Singh and then going to the house of Khattar Singh. This witness did not move and saw the accused-persons. The after one and a half hours returned from the house of Khattar Singh. He saw Bhikhar Raut holding Santosh Kumar Singh. After the mob departed, this witness on hearing the sound of weeping, went to the house of Sarjug Singh where he saw the dead bodies of Shital Singh and Ram Sewak Singh. He heard about the murder of Naseeb Kabari and there was rumour that Ram Sewak Singh, Shital Singh and Khattar Singh had hand in the murder of Naseeb Kabari. The murder of Naseeb Kabari had occurred at 10.00 a.m. This witness has not spoken about the presence of Ramadhar Singh when he reached the Angan. of Sarjug Singh.
12. Lachhman Jha (P.W. 6) has deposed that his house was invaded by the mob. The mob ran sacked his house and carried away money and ornaments. He identified Bhikhar Raut, Manchit Bind and Dineshwar Raut and others. There is no reference of this incident in the fardbeyan. There is no charge against the appellants with respect to the alleged occurrence which took place in the house of this witness. 1 am unable to appreciate how the evidence of this witness is relevant.
13. Lila Jha (P.W. 7) has deposed that at 11.00 a.m. when he was at his Darwaja, he saw a mob consisting of 60 to 65 persons armed with Bhala etc. He identified seven persons.
14. Mahendra Prasad Singh (P.W. 10) was clerk in the local Sanskrit College. He learnt about the murder of Ram Sewak Singh and Shital Singh at about 4.30 p.m. This witness went to the house of Ram Sewak Singh. The occurrence was narrated to him by Deopari Devi, Pawan Devi, Nandini Devi and other witnesses. The witnesses named by him gave statements which were recorded by this witness the statements recorded by this witness was exhibited vide Ext. 3 series.
15. Dr. F.A. Khan, Civil Assistant Surgeon, Madhubani Sadar Hospital had conducted autopsy on the dead bodies of three deceased. Following injuries were found on the person of Ram Sewak Singh:
i) Incised wound 2″ x l/2″ x 1/2″ over the right eye-brow.
ii) Incised wound 4″ x 1/2″ x bone deep over the fore-head with fracture of right parietal and pivotal bones.
iii) Incised wound 1-1/2″ x 1/2″ x 1/2″ over the cheek below right eye.
iv) Incised wound 1″ x 1/4″ x 1/4″ below left eye.
v) Incised wound 1/2″ x 1/4″ x 1/4″ over the bridge of nose.
vi) Incised wound 1″ x 1/4″ x 1/4″ over left cheek.
vii) Incised punctured wound 1″ x l/2″ x chest cavity deep on the left side.
viii) Incised wound 6″ x 1″ x bone deep on the vertebral column severing all the vessels and nerves on both sides on the neck, tracia and aesophegous.
ix) Incised wound l” x 1/2″ x 1/2″ over the abdomen above ambicus.
x) Incised wound 1-1/2″ x 1/2″ x 1/2″ over the abdomen, above injury No. ix.
xi) Incised deep with coils of intestines coming out of the wound over left side of the abdomen.
xii) Incised wound 1-1/2″ x 1/2″ x 1/2″ over the back of the left forearm.
xiii) Incised wound 5″ x 1″ x 1″ over the left hip.
xiv) Incised wound 2-l/2″ x 1-1/2″ x 1/2 “over the upper portion of the left thigh.
On dissection, following injuries were found:
i) Fracture of pivotal right parital bones of the scalp.
ii) Chest cavity contained blood about four ounces and left lung was punctured. All the injuries were grievous in nature.
16. Following injuries were found on the dead body of Shital Singh:
i) Incised wound 6″ x 1/2″ x bone deep over the back of scalp with fracture of the occipital bone and the brain matter had come out.
ii) Incised wound 3″ x 1/2″ x bone deep with fracture of the right parital bone.
iii) Incised wound 2″ x 1/2″ x bone deep with fracture of left partial bone.
iv) Incised wound 2″ x l/2″ x 1/2″ over right shoulder.
v) Incised wound 1-1/2″ x 1/2″ x 1/2″ over left shoulder.
vi) Incised punctured wound 1″ x 1/2″ x chest cavity deep over the left, side of the chest.
vii) Incised wound 3″ x 1/2″ x 1/2″ over left side of the neck.
viii) Incised punctured wound 1-1/2″ x 1/4″ x abdominal cavity deep in the coils of intestines coming out of it on the left side of the abdomen.
ix) Incised wound 1-1/2″ x 1/2″ x 1/2″ over the right arm. On dissection, following injuries were found:
i) Fracture of the occipital, right parietal, left parietal bones of the scalp with injuries in the menengite.
ii) Left lung punctured.
Injuries No. i to iii could have been caused by farsa and were sufficient to cause death in ordinary course of nature. Injuries No, vi and viii could have been caused by bhala and were dangerous to life.
17. Following injuries were found on the person of Santosh Kumar Singh:
i) Incised wound 3-1/2″ x 1″ x vertebral column deep over the front of neck severing trachea, assephegus, vessels and nerves. The above injury could have been caused by dagger.
18. The injuries found on the person of Ram Sewak Singh and Shital Singh show that they were assaulted by several persons as is the prosecution case.
19. Learned trial Judge rejecting the defence submission that the occurrence had not taken place inside the Angan of Sarjug Singh and dead bodies were kept after the occurrence, held that the finding of the Investigating Officer amply corroborated the story of the prosecution that both the deceased Ram Sewak Singh and Shital Singh had concealed themselves in the western room and the door of that room was broken. Ram Sewak Singh and Shital Singh were dragged in the Angan where they were brutally killed. Learned trial Judge relying the evidence of Pawan Devi (P.W. 2), Nandini Devi (P.W. 4) and Ramashish Singh (P.W. 5) held that Santosh Singh was forcibly taken away and later his dead body was recovered near a local Masjid.
20. Learned trial Judge has summed up the entire evidence in paragraphs 46, 47 and 48 of the judgment as extracted hereunder:
46. Thus, on consideration of the entire evidence and the circumstances, it has been manifestly proved that on the day of the occurrence, at about 10 a.m. there was murder of Naseeb Kabari in the village and due to the above, the accused-persons in an unlawful assembly of about fifty persons armed with deadly weapons like Gun, Bhala, Farsa, and Garasa, in prosecution of the common object to assault and cause death of Shital Singh and Ram Sewak Singh at their house and when both Shital Singh and Ram Sewak Singh, out of fear, went in the Angan of his neighbour Sarjug Singh and concealed themselves in his western room and closed the door from within the unlawful assembly went inside the Angan of Sarjug Singh. Some of the accused-persons climbed on the roof of the room and after removing straw, pierced Bhala inside the room and fired one round from the gun. Some accused-persons broke open the door of the room in which both deceased Ram Sewak Singh and Shital Singh had concealed themselves and both of them were dragged in the Angan. Both of them were assaulted by means of Farsa by accused Bhikhar Raut and accused Deep Narain Singh cut the neck of deceased Ram Sewak Singh by Hasua while accused Israil Kabari assaulted with Bhala on the abdomen of Shital Singh as a result of which both of them died.
47. Thereafter, the unlawful assembly went inside the house of Khattar Singh and accused Tarni Prasad Singh, Bhikhar Raut and Tahir Kabari snatched his son Santosh Kumar Singh from the lap of his wife P.W. 4 and took him away and on the next day Santosh was found murdered and his dead body was hurried in a paddy field near the village mosque from where it was recovered by the Investigating Officer.
48. On behalf of the defence, it has been urged that no independent witness has at all been examined in the present case except the relations of the deceased persons, inasmuch as, P.W. 8 and P.W. 1 have been examined on the point of murder of Ram Sewak Singh and Shital Singh while on the point of snatching and taking away of deceased Santosh Kumar Singh, his mother and aunt (P.W. 4 and P.W. 2) and also uncle (P.W. 5) have been examined. I have already stated above that apart from the fact that they are relations of the deceased, they are natural witnesses and their presence is also established by both evidence and the circumstances and on a deep scrutiny of their evidence, their evidence is acceptable and cannot be brushed aside. Before the occurrence of the present case, it is evident from the evidence of P.Ws. 9, 11 and other witnesses that there had been several murders in the village and the village is divided in factions and hence in this background, it is not. expected that independent persons will come and depose for the prosecution. It has been held in 1975 Criminal Law Journal, page 1739, para-6 that when the village is riddled in factions, it is difficult to expect, independent witnesses. It is due to that Ram Dulari Devi an inmate of the house of Sarjug Singh, where the occurrence took place and who is said to be present at that time has not come to depose.
21. Four of the appellants, namely, Mod Narain Singh, Deep Narain Singh, Tarni Prasad Singh and Nirsu Narain Singh had pleaded alibi. Since Deep Narain Singh and Nirsu Narain Singh are dead, now it would be considered whether the plea of alibi advanced on behalf of Mod Narain Singh and Tarni Prasad Singh was rejected by the trial Judge on proper consideration. Mod Narain Singh was a teacher at Lauthwa High School. He led documentary and oral evidence that on that day, he was present in the school from 10.15 a.m. to 4.00 p.m. If this was so, he could not be aware of the murder of Naseeb Kabari which had taken place at about 10.00 a.m. The school is about six miles from the village. The Investigating Officer during investigation visited the school and examined the attendance register. Ext.-G is a petition dated 27-11- 1980 or the students and teachers of the school to the Chief Minister to the effect that Mod Narain Singh was present, in school. The attendance register of the school was produced in Court which revealed that he attended the class at 10.15 a.m. Learned trial Judge rejected the plea of alibi because the prosecution witnesses in their evidence had spoken that he had taken active part in the occurrence. However, according to Deopari Devi (P.W. 1), this appellant had not climbed on the roof of the room. In my view. Mod Narain Singh can be given benefit of doubt.
22. So for as plea of Tarni Prasad Singh is concerned, he examined Dr, Vikas Chandra Sahai Verma. who stated that Tarni Prasad Singh was suffering from kidney disease and was under his treatment from 9-9-1980 to 19-9-1980 The Certificate and prescriptions (Exts H/10 and H/11) were filed in support of this fact. The doctor, however, stated that he was capable to follow the ordinary pursuits of his life. Dr. Verma was Head of Department in the Forensic Medicine. This appellant had appeared before the doctor on 9-9-1980 a day before the occurrence. Learned trial Judge held that the evidence of the doctor does not show that this appellant was physically incapable to take part in the occurrence. Active role has been attributed to this appellant by Deopari Devi (P.W. 1). According to the testimony of Deopari Devi and Ramadhar Singh, this appellant climbed on the roof of the room where Ram Sewak Singh and Shital Singh had concealed themselves. Learned trial Judge rightly rejected the plea of alibi of this appellant.
23. In my opinion, the evidence of Deopari Devi, who appears to be natural witness, and was in the house cannot be doubted. However, it is doubtful that Ramadhar Singh was present in the house. He is a school student and Deopari Devi has not been spoken a word about this witness being present. It is true that there is no other direct evidence except circumstantial evidence deposed by Ramadhar Singh but the conviction can be based on the testimony of solitary evidence. Learned trial Judge has rightly accepted the evidence with regard to snatching of Santosh Kumar Singh from the lap of his mother. Ramashish Singh (P.W. 5) had seen the boy being carried away and had seen one of the appellants namely Bhikhar Raut with the child followed by the mob.
24. In the result. Cr. Appeal No. 85 of 1985 stands abated so far as appellant No. 1 Nirsu Narain Singh is concerned. Cr. Appeal No. 173 of 1985 also stands abated since the sole appellant in this appeal Deep Narain Singh @ Dipan Singh is dead. Appellant No. 2 Mod Narayan Singh of Cr. Appeal No. 85 of 1985 is given benefit of doubt and he is acquitted of the charges. This appeal so far as other appellants namely, appellant Nos. 3 to S are concerned is dismissed. Cr. Appeal No. 64 of 1985 and Cr, Appeal No. 115 of 1985 is also dismissed, and their conviction and sentence is confirmed. The appellants are directed to surrender in the Court below to serve out the remaining period of sentence, failing which the trial Court shall take steps for their arrest.
25. All the four appeals are disposed of accordingly.
P.K. Sarkar, J.
26. I agree.