JUDGMENT
Lakshman Uraon, J.
1. Appellants have preferred this appeal against the order of conviction dated 14-3-1995 and sentence dated 21-3-1995 passed by learned 3rd Additional Sessions Judge, Deoghar in Sessions Trial No. .240 of 1993 whereby and whereunder the appellants have been convicted under Sections 302/149 and 147, 148, 201, IPC and sentenced to undergo Rule I. for life under Section 302/149, IPC, whereas no separate sentence was passed for the offence punishable under Sections 147, 148, 201, IPC acquitting them for the offence under Section 27 of the Arms Act.
2. The prosecution has arisen on the fardbeyan (Ext. 2) of the informant Bimla Devi (PW-3) recorded on 8-6-1993 at 20.00 hours at her door of village Bhikhanadih, PS-Madhupur, District-Deoghar by S.I., B.D. Singh (PW-6). Informant PW-3 Bimla Devi, wife of deceased Sahdeo Mahara, has alleged that on 8-6-1993 at about 11.00 a.m. her husband Sahdeo Mahara was sitting under a Mango tree at a distance of 250 yards south from her house. At that time, she heard commotion and alarm raised by her husband to save his life. She and her mother-in-law (PW-4) Malo Mahrain rushed there and saw Dukhi Mahara (appellant No. 3) catching hold of her husband. Wakil Mahara (not appellant), Babu Lal Mahra (appellant No. 2), Panchu Mahara (appellant No. 1), Bideshi Mahara (appellant No. 4), Jai Kumar Mahara (not appellant), Laxmi Mahara (appellant No. 5), Kamdeo Mahara (appellant No. 6), Mahangu Mahara (appellant No. 7) and Chamtu Mahara (not appellant here as he was juvenile) had surrounded her husband and were stabbing with knives. She saw Bideshi Mahara who fired with pistol once causing injury on the abdomen of her husband. Appellant Babu Lal Mahara also fired with pistol causing injury on the back of her husband. When her husband did not fall down on being fired twice by pistol, then Dukhi Mahara (appellant No. 3) gave Chhura blow on his shoulder and also assaulted with the butt end of pistol. Her husband fell down and was tossing and fumbling about. Chamtu Mahara (not appellant) shot five arrows on the abdomen of Sahdeo Mahara and one arrow on his thigh. Informant and her mother-in-law rushed there to save, but appellants Mahangu Mahara, Kamdeo Mahara and Jai Kumar Mahara (not appellant) pushed them and fell them. When her husband died at the spot, she and her mother-in-law began to cry. They took the dead body under the shadow of Mango tree. She brought one cot and kept the dead body on the cot under the shadow of mango tree, but all the appellants by force took away the dead body with cot towards east and on the bank of river Patro they burnt the dead body. When the dead body was taken by the appellants, two persons namely Dukhi Mahara (appellant) and Jai Kumar Mahara (not appellant) remained at the P/O, washed the blood fallen there by pouring water through buckets. They threatened the villagers not to go there otherwise they will meet with dire consequences. After washing the bloods. Dukhi Mahara and Jai Kumar Mahara also went to the river where the dead body of Sahdeo Mahara was being burnt. After burning the dead body, all the appellants returned back to the P/O. The place where the blood was washed was ploughed with plough of Laxmi Mahara. The motive to cause the murder of her husband was that Kamdeo Mahara (appellant No. 6) had sustained firearm injury on his leg. Kamdeo Mahara had lodged a case against Ratan Mahara. Deceased Sahdeo Mahara was assisting Ratan Mahara for which he was threatened four days prior to the alleged occurrence. There was also altercation and quarrel in between her husband on one side and, Kamdeo Mahara, Mahangu Mahara, Jai Kumar Mahara and Dukhi Mahara on the other. They had threatened to kill Sahdeo Mahara and on the day of alleged occurrence after forming unlawful assembly assaulted her husband resulting his death at the spot.
3. The prosecution in order to substantiate the charges levelled against the appellants, has examined altogether seven witnesses. Out of them PW-6 Vishnu Dayal Singh is the I.O. and PW-7 Krishna Kr. Srivastava is the Judicial Magistrate who recorded the statements of PW-1, PW-2 and PW-3 under Section 164, Cr.P.C. (Exts. 5, 5/1 and 5/2 respectively). PW-1 Baleshwar Mahara and PW-2 Tiket Mahara were informed by PW-5 Suma Devi about the alleged occurrence where they were working at Karnpura warning them not go to the village otherwise the appellants, who caused murder of Sahdeo Mahara, may also commit their murders. PW-1 Baleshwar Mahara is the husband of PW-5 and PW-2 Tiket Mahara is the Bhaisur who have heard regarding causing murder by all these appellants and rushed to the P/O and are witnesses of the second part of the occurrence i.e. burning of dead body of Sahdeo Mahara. Bimla Devi (PW-3) is the wife of the deceased and is the eye-witness. She along with her mother-in-law Malo Devi rushed to the P/O on hearing the alarm raised by Sahdeo Mahara and saw the entire occurrence regarding causing murder of Sahdeo Mahara by these appellants.
4. The defence has not examined any witness, but has brought on record Exts. A, B and C to prove that Sahdeo Mahara was a veteran criminal, case was pending, charge-sheet was submitted and was facing trial. He was dacoit and in course of committing dacoity, he was murdered somewhere else. These appellants have falsely been implicated In this case due to enmity taking advantage of the murder of Sahdeo Mahara who was murdered somewhere else while committing dacoity by unknown assailants.
5. The learned 3rd Additional Sessions Judge, Deoghar relied the evidence of PW-1, PW-2, PW-3, PW-4 and PW-5 that they are although closely related witnesses, but have corroborated the prosecution case univocally without any contradiction about the manner of the alleged occurrence, place of occurrence which gets supported by the evidence of PW-6 (I.O.) who found objecting finding at the first place of occurrence and also at the second place of occurrence which are; place under the mango tree south from the house of the informant at a distance of 250 yards and the second place being the bank of river Patro where the dead body of Sahdeo Mahara was burnt. The learned Court below was unable to discard the evidence of closely related witnesses, out of them statement of PW-1, PW-2 and PW-3 were also recorded under Section 164, Cr.P.C. by Magistrate Shri Krishna Kumar Srivastava (PW-7). There is no contradiction in their oral statement recorded under Section 164, Cr.P.C. with the evidence deposed in course of trial in the Court. Considering meticulously the evidence of the witnesses, learned 3rd Additional Sessions Judge, Deoghar convicted all these appellants sentencing them only for the offence punishable under Section 302/149, IPC and no separate sentence was passed for the offence punishable under Sections 147, 148 and 201, IPC while acquitting appellant Babu Lal Mahara for the charge framed under Section 27 of the Arms Act.
6. Learned counsel for the appellants assailing the order of conviction and sentence passed by the learned Court below has submitted that all the PWs-1, 2, 3, 4 and 5 are family members who are interested, hence their evidence is doubtful. The alleged occurrence took place at 11.00 a.m. on 8-6-1993, but not a single independent village witness has been examined by the prosecution. There is vital contradiction In the statement recorded under Section 164, Cr.P.C. and the evidence deposed in Court by the witnesses. Chaukidar has not been examined who informed the police, nor the S.D. Entry made at the police station on his statement was brought on record. It was argued that Sahdeo Mahara was a veteran dacoit against whom cases were pending and has drawn my attention of Exts. A, B and C. It was argued that Sahdeo Mahara was murdered in committing dacoity somewhere else, but these appellants have falsely been implicated in this case due to enmity.
7. It was submitted that the learned Court below has not considered the statements of PWs-1, 2 and 3 which is contradictory to their statements recorded under’ Section 164, Cr.P.C. (Exts. 5 series). Hence the conviction on the basis of the evidence of these witnesses is not sufficient to convict these appellants. It was also submitted that several independent village witnesses of the nearby houses had assembled, but none of them have been examined to corroborate the evidence of the independent witnesses. The I.O. (PW-6) reached at the place of occurrence at 4.30 p.m., but the statement of the informant was recorded at 8.00 p.m. which is sufficient to prove that the entire investigation was trained to falsely implicate these appellants. There was delay only to form improvement and embellishment in the prosecution case by the interested witnesses in connivance with the I.O. (PW-6) I.O. seized some burnt pieces of woods, bones, but no such seizure-list was produced. On these grounds. It was argued that the appellants deserve acquittal.
8. Learned A. P. P. has argued that all the witnesses PWs-1, 2, 3, 4 and 5, although closely related but they have deposed that out of fear the villagers did not go to the place of occurrence. These witnesses who are closely related have corroborated the prosecution case without any contradiction. There is omission in the statement recorded under Section 164, Cr.P.C. which does not amount to be a contradictory. As the dead body was burnt in the ashes, hence the manner of the alleged occurrence as deposed by the witnesses, is consistent without any contradiction. Had the dead body been found and post mortem examination been, done, their ocular evidence must have been corroborated by the medical evidence. In this present case, the I.O. found at the place of occurrence blood fallen down. Dead body was tarried upto river Patro. The I.O. found trail mark of blood from the first P/O i.e. Mango tree upto Patro river where the dead body was burnt. When considered all these evidence, the defence version that Sahdeo Mahara was murdered somewhere else while committing dacoity, has no leg to stand. On these submissions, learned A.P.P. has argued that the learned Court below has considered all these evidence carefully taking into consideration that five witnesses are closely related and have convicted the appellants as he did not find any cogent and valid reason to discard their evidence.
9. All the seven appellants have been convicted and sentenced for the offence punishable under Section 302/149, IPC. Informant Bimla Devi (PW-3) and her mother-in-law Malo Devi (PW-4) were at home on 8-6-1993 at about 11.00 a.m. while husband of PW-3 (deceased Sahdeo Mahara) was sitting towards south of his house at a distance of 250 yards under a Mango tree. Due to previous enmity that Ratan Mahara had fired causing injury on the leg of Kamdeo Mahara and the husband of the deceased was helping and assisting Ratan Mahara, hence he was threatened to be murdered by these appellants. They were armed with pistol, knives, bows and arrows, went to the mango tree where Sahdeo Mahara was sitting. On the alarm raised by Sahdeo Mahara, PW-3 and PW-4 rushed there and saw all these appellants including others who are facing trial by the Juvenile Justice Court had surrounded, armed with knives and were assaulting her husband. Appellant Bideshi Mahara fired with pistol causing injures on the abdomen. Appellant Babulal Mahara also fired with pistol on the back and also assaulted on the head with butt end of pistol. Appellant Dukhi Mahara gave knife-blow on the shoulder of the deceased. When Sahdeo Mahara fell down, then also Chamtu Mahara shot six arrows – five on the abdomen and one on the thigh. When Sahdeo Mahara died, then the appellants fled away. PWs-3, 4 and 5 brought a cot and kept the dead body on the cot under the shadow of mango tree, but all these appellants went there and by force threatening the villagers and these witnesses, took the dead body towards river Patro where they burnt it. The evidence of PW-3 Bimla Devi and PW-4 Malo Mahrain is consistent in respect of the statement made in the fardbeyan. Bimla Devi (PW-3) has deposed that Mango tree is towards south at a distance of 250 yards from her house. Appellant Dukhi Mahara had caught hold of her husband and gave one knife-blow on the left shoulder near the neck. Appellant Babulal Mahara caused pistol injury on the back and appellant Bideshi Mahara caused pistol injury on the abdomen. The others Chamtu and Wakil shot arrows causing injuries on the abdomen and thigh of Sahdeo Mahara. Thereafter the dead body which was kept under the mango tree, was taken away towards Patro river by the appellants and was burnt. Out of fear, none of the villagers were allowed to go near the P/O. All the witnesses – PWs-1, 2, 3, 4 and 5 have stated that there were cases for committing dacoity against Sahdeo Mahara and he had also been sent to jail. The appellants had threatened the villagers also to cause their murder. Hence, out of fear they did not go to the place of occurrence. The fardbeyan of PW-3 was recorded by the I.O. on which she gave L.T.I, in presence of PW-2 who also signed on it. The police has seized pistol, cartridges, blows, arrows, la this and seized it and prepared seizure-list on which she also gave her L.T.I. PW-4 Malo Mahrain has fully supported the evidence of PW-3 in toto without any contradiction. PW-1 and PW-2 have deposed that they were working at Karnpur which is 1 k.m. away from the village as Mazdoors. Both of them were informed by PW-5 Suma Devi alias Anar Devi that appellants caused murder of Sahdeo Mahara. She warned them not to go to village otherwise they would also be murdered. She had also named all these seven appellants besides Chamtu Mahara and Wakil Mahara in committing murder of Sahdeo Mahara. She has also narrated the entire occurrence to them as she is the eyewitness of the alleged occurrence. PW-1 and PW-2 have deposed that they were informed while they were working at Karnpur by PW-5 Suma Devi alias Anar Devi. They were also informed about the assailants named in the fardbeyan who are all these appellants besides two juveniles – Chamtu and Wakil. PW-1 Baleshwar Mahara, uncle of the deceased went to village Burhai to inform Chaukidar Ganesh Ram. He along with Chaukidar went to river Patro. From the western bank of the river, he saw all the appellants burning the dead body. Out of fear, they did not go near the burning Ghat. They were standing towards the eastern bank, whereas the dead body was being burnt on the western bank of Patro river. He along with Chaukidar returned back to village Burhai and was going to inform the police. By that time, the police arrived and they went along with the police to the burning place. The dead body was burnt completely. The I.O. found empty cartridges and bloodstained soil. He also seized burnt pieces of woods, coal and bones from the burning Ghat and prepared seizure-list on which PW-1 gave his L.T.I. The dead body was burnt at that place which is not the burning Ghat of the village. PW-2 when informed by PW-5 while working as Mazdoor along with PW-1 at Karnpur, came to know that all these appellants including Chamtu Mahara and Wakil murdered Sahdeo Mahara. PW-5 also disclosed that Dukhi Mahara stabbed with knife and Bideshi Mahara fired with pistol. So also Babulal Mahara. Jaikumar and Kamdeo had bombs in their hands .who were threatening the villagers, whereas Wakil and Chamtu shot arrows at Sahdeo Mahara. Thereafter, she informed that the dead body was taken by the appellants. She also informed them not to go to village otherwise they would also be murdered. PW-1 went to inform Chaukidar, whereas he (PW-2) concealing himself went to the burning Ghat and from a distance of 50 yards, saw all these appellants burning the dead body. There he saw uncle PW-1 and Chaukidar who also saw the burning of dead body. Thereafter PW-2 and PW-1 along with Chaukidar went to the village. This witness is also the witness regarding seizure-list of the burnt woods, bones which were seized by the police and prepared seizure-list.
10. PW-6 Vishnu Dayal Singh on 8-6-1993 at 6.00 p.m. heard rumour that at village Bhikhnadih one person was murdered. He entered S. D. Entry (Ext. 5) and left for Bhikhnadih and reached there at 8.00 p.m. He recorded the fardbeyan (Ext. 1) of Bimla Devi. He went 150 yards south of the house of the informant under the orchard where Sahdeo Mahara was assaulted. He found blood fallen there and also one empty cartridges. He found mango tree at a distance of 20 yards from there. He found bloodstained soil also under the mango tree which is the field of Samar Mian. He found the field ploughed and water was poured there. From there at a distance of 100 yards there is river Patro. From the mango tree upto river Patro he found trail of blood and also the field ploughed only to cause disappearance of the blood drops. He went to Patro river where dead body was burnt. Burnt woods ash, piece of bones were seized and seizure-list (Ext. 4) was prepared. Chaukidar was along with him in course of investigation. PW-2 Tiket Sahdeo Mahara has stated that Sahdeo Mahara was in the company of dacoits 1 1/2 years ago, but presently he had left their accompany. Exts. 5 series are the statement of Bimla Devi. Tiket Mahara and Baleshwar Mahara recorded under Section 164 by PW-7 Krishna Kumar Srivastava, Judicial Magistrate, Deoghar. Their evidence is consistent with the statements recorded under Section 164. Cr.P.C. I find that no vital contradiction, rather there is omission in the statement recorded under Section 164, Cr.P.C. which is not in detail as stated in the fardbeyan and evidence.
11. The prosecution witnesses have deposed that Sahdeo Mahara was alleged by appellant Kamdeo Mahara that he was helping Ratan Mahara who had shot at him causing injuries on his leg. Sahdeo Mahara was threatened to be murdered. On the alleged date of occurrence, all these appellants along with two others with an intention to cause murder, forming an unlawful assembly with a common object, went to Sahdeo Mahara who was sitting under the mango tree at a distance of 250 yards south of his house. All the appellants surrounded him. Appellant Dukhi Mahara caught hold of Sahdeo Mahara and stabbed on his shoulder near the neck. Appellant Bideshi Mahara fired with pistol causing injuries on the abdomen and Babu Lal Mahara injured by firing pistol on the back of Sahdeo Mahara Chamtu Mahara (not appellant) shot arrows causing injuries, five on the abdomen and one on the thigh. The others had surrounded Sahdeo Mahara. His dead body was also taken towards river Patro and was burnt. PW-3 and PW-4 are the eye-witnesses about the manner of the alleged occurrence till the death of Sahdeo Mahara. They also saw all the appellants carrying the dead body of Sahdeo Mahara towards river Patrol. Two appellants remained at the P/O, washed the bloodstained earth with water and also ploughed it to demolish the objective material exhibits. PW-1 and PW-2 when informed they went to the burning Ghat and saw all these appellants at the burning Ghat. Although they are hearsay witnesses regarding the first part of the occurrence regarding manner of the alleged occurrence and carrying the dead body. Their evidence is admissible as PW-5 informed them and these two witnesses have also deposed that they were informed by PW-5 in detail about the manner of the alleged occurrence. I.O. (PW-6) found blood fallen at the orchard under the mango tree and trail of blood from the mango tree upto the river Patro where the dead body was burnt. He also found the place ploughed and washed with water to cause disappearance of blood fallen there. However, he found trail of blood from first place of occurrence upto the second place of occurrence where the dead body was burnt. He seized bloodstained soil burnt woods, ash and bones and prepared seizure-list (Ext. 4) in presence of the witnesses. When all these evidence are concerned in totality, I find that there is no contradiction in any manner. The plea taken by the defence that Sahdeo Mahara was a dacoit and he was murdered anywhere else could not be proved in view of the evidence available on record as deposed by PW-3 and PW-4 that after causing murder at the mango tree, 250 yards south from the house of the informant and from there, the dead body was carried upto burning Ghat. The I.O. found trail of blood which shows that Sahdeo Mahara was not murdered somewhere else while committing dacoity but he was murdered while he was under the shadow of mango tree and from there dead body was carried leaving trail of blood upto Patro river burning Ghat. PW-1 and PW-2 had seen the burning of the dead body. The I.O. (PW-6) seized the remnants of the body burnt including woods ash and bones and seized and prepared seizure-list. Thus, the evidence of the prosecution is intact to lead only to the hypothesis that these appellants and none else are the persons responsible to cause murder of Sahdeo Mahara. The learned Court below has considered meticulously all these evidence and has convicted these appellants under Section 302/149 IPC and sentenced thereunder. I find clinching of evidence against these appellants to form the only conclusion that they have formed an unlawful assembly with an object to cause murder of Sahdeo Mahara. Only on the ground that the witnesses are closely related, their evidence cannot be discarded in view of the fact that the appellants had threatened the other villagers that if they go to the P/O, they would be murdered. This led to the fact that no village independent witness had come forward to depose against the appellants. When considered all these facts and circumstances and the evidence In totality, I do not find any legal Infirmity in the order of conviction and sentence passed by the learned Court below against these appellants.
12. In the result, this criminal appeal is dismissed and the order of conviction and sentence passed by the learned Court below in Sessions Trial No. 240 of 1993 is hereby confirmed. As the appellants Panchu Mahara, Laxmi Mahara, Kamdeo Mahara, Mahangu Mahara and Dukhi Mahara are on ball, their bail bonds stand cancelled and they are directed to surrender in the Court below to serve their sentences. The learned Court below is also directed to take every coercive step to apprehend these appellants who are on ball to serve their sentences.
S.J. Mukhopadhaya, J.
13. I agree.