JUDGMENT
N.N. Singh, J.
1. All these three appeals, arising out of judgment of conviction and order of sentence by 6th Additional Sessions Judge, Arrah on 30th April, 1986, in Seasons Trial No. 116 of 1984, are being disposed of together by this judgment. Appellant Raj Nath Rai of Criminal Appeal No. 262 of 1986 and appellants Kamla Rai and Ram Bali Rai of Criminal Appeal No. 265 of 1986 and appellants Ram Ashan Rai and Chandrika Rai of Criminal Appeal No. 276 of 1986 were convicted under Section 302 of the Indian Penal Code and appellant Hira Lal Rai of Criminal Appeal No. 276 of 1986 was convicted under Section 302/34 of the Indian Penal Code and each of them were sentenced to undergo life imprisonment. All six appellants were further convicted under Section 148 of the Indian Penal Code and were convicted to undergo rigorous imprisonment for three years each and appellant Hira Lal was further convicted under Section 27 of the Arms Act and was sentenced to undergo rigorous imprisonment for three years further with direction that all sentences would run concurrently.
2. Briefly stated the case of prosecution, as disclosed from the fardbeyan (Ext. 2) of Ram Chandra Rai (P.W. 7) recorded at Narayanpur, the P.O. village, at 7.30 a.m. on 27.11.1983, was that on the same day at about 6.30 a.m. when the informant along with his brother Keshwar Rai (deceased) and Badri Rai (P.W. 6) were going towards his Atta Chakki Mill from his house and they reached near the house of Sheo Govind Rai, the informant sat to make water and while Badri Rai was left behind, Keshwar Rai proceeded ahead. Further case of prosecution was that all six appellants who were armed with lethal weapons, caught hold of Keshwar Rai on the road near the house of Sheo Govind Rai and they took Keshwar Rai, virtually dragging, to their house, where appellant Ram Nath Rai felled Keshwar Rai down and then Kamla Rai, Ram Bali Rai and Rajnath Rai started assaulting him on his neck by means of Fasuli and appellants Chandrika Rai and Ram Ashan Rai inflicted dagger blows in his abdomen and appellant Hira Lal Rai had pressed the legs of Keshwar Rai to facilitate the assault. The head of Keshwar Rai was severed with Fasuli and when Sheo Govind Rai tried to intervene, he was threatened. The informant claimed to have seen the entire occurrence along with his brother Badri Rai and other witnesses and further claimed to have raised alarm but they could not go ahead as Hira Lal Rai fired to scare them away. It was further claimed that on hulla, the A.S.I. of Jamalpur Police Out Post reached there with police force and then the assailants closed themselves inside the house which as surrounded by A.S.I, and the police force and dead body of Keshwar Rai remained in the northern room of veranda.
3 On the basis of the aforesaid fardbeyan, Koilwar P.S. Case No. 229 of 1983 was registered under Sections 148, 149, 302 and 342 of the Indian Penal Code and Section 27 of the Arms Act against these appellants and the police after due investigation, submitted charge-sheet against them and after cognizance and commitment, all these six appellants were put on trial and were convicted as aforesaid.
4. The defence of the appellants, as is gathered from the suggestion put to P.Ws. the evidence of D.Ws. and the statement of accused persons under Section 313 of the Code of Criminal Procedure, was that they were falsely implicated in this case and that this case has been filed as a counter blast of their complaint Case No. 1129 of 1983 which was filed by appellants Ram Bali Rai against, the deceased and witnesses of this case which was dismissed by the Magistrate under Section 203 of the Code of Criminal Procedure and Criminal Revision No. 409 of 1986 has been filed (which was heard along with this appeal and is being disposed of separately). The defence version is that in the night of 26th/27th November, 1983, the deceased and the P.Ws. along with others committed dacoity in the house of Ram Bali Rai and that, on Hulla, villagers assembled there and that deceased Keshwar Rai fired his pistol towards the villagers whereupon he was over powered by the villagers and was killed by them. It was also claimed that the police was informed who came to P.O. and seized the dead body but did not institute any case of dacoity and hence a complaint case was subsequently Filed by Ram Bali Rai from jail custody. Apart from this, plea of alibi was also taken by appellant Hira Lal Rai in his statement under Section 313 of the Cr.P.C. that he had gone for Bedai of his daughter to Narayanpur where he was arrested by the police. A plea of alibi was also taken by appellant Chandrika Rai claiming that on the alleged date of occurrence he was at Danapur S.D.O’s Court, where he was employed as an orderly peon.
5. The prosecution examined altogether 10 witnesses in support of its case out of whom P.W, 10 Bindeshwari Pd. Singh is a formal witness who proved the post-mortem report (Ext. 8) which is in the pen of Dr. Birendra Pratap Singh. P.W. 7, the informant on (sic) in paragraph 8 of his evidence proved the endorsement (Ext. 7) on the back of summon sent to Dr. Birendra Pratap Singh according to which he was unable to attend the Court as he was unable to speak due to paralysis and he had also lost his vision. P.W. 4 Rameshwar Singh and P.W. 5 Birendra Singh were the seizure-list witnesses and P.W. 8 was Punit Lal Sah, the Investigating officer of this case witness P.W. 9 Bhawnath Manjhi is the A.S.I. who rushed to the place of occurrence and surrounded the house of accused-appellants where they were hiding themselves. The remaining five witnesses were eye-witnesses of the occurrence i.e. P.W. 7 Ram Chandra Rai, the informant, P.W. 6 Badri Narayan Rai, the brother of the informant, P.W. 1 Jadu Rai, P.W. 2 Vakil Rai and P.W. 3 Dina Nath Rai. The defence also examined two witnesses in support of the defence version of the occurrence. D.W. 1 is Baban Rai who said to have heard alarm of dacoits and firing. However, he did not allege to have seen the informant and others as dacoits. D.W. 2 is Satyendra Rai who stated about commission of dacoity in his house and about killing of Keshwar Rai by the villagers.
6. Death of Keshwar Rai is not a disputed fact, as even according to the defence version Keshwar Rai was killed at the P.O. by the villagers. Apart from the evidence of P.Ws. 7, 6, 1, 2 and 3 regarding commission of murder of Keshwar Rai in the Veranda of appellant Ram Bali Rai, the I.O. (P.W. 9) also found the dead body of Keshwar Rai in the northern room of the house of Ram Bali Rai with his head severed and injuries on his body. P.W. 9 proved the inquest report (Ext. 3) of the dead body of Keshwar Rai. According to the post-mortem report (Ext. 8) held on 27.11.83 at 1.30 p.m. the following ante mortem injuries were found on the person of Keshwar Rai:
1. Neck completely served at the base of neck.
2. Sharp cutting wound at the top of scalp 6″ × 4″ x cutting parietal bone of both sides.
3. Sharp cutting wound at the left temporal region cutting the ear pinna and left temporal bone.
4. Lacerated wound right shoulder 8″ × 4″ cutting the scapula.
5. lacerated wound left upper chest 4″ × 2″ × chest cavity deep.
6. Incised wound left side abdomen lower part 4″ × 2″ × abdominal cavity deep.
7. Incised wound right side of abdomen 2″ × 1″ × muscle deep.
8. Abrasion-both legs with wounds on it.
On dissections of the scalp, the parietal temporal bones were cut and the durameter was also cut and there was blood and blood-clot over all surface of the brain. On dissection of chest, there was wound on the pleura and left lung. There was blood and blood clot 4 oz. all over the pleural cavity. On dissection of the abdomen there was blood and blood clot about 4 oz. in parietal cavity. The doctor opined that injury Nos. 2,5,6 and 7 were caused by sharp cutting instrument, injury Nos. 4 and 5 were caused by blunt pointed weapon whereas injury No. 1 was caused by cutting instrument in which several marks of cut were present. It was further opined that the death was caused due to shock and hemorrhage as a result of the injuries described above and time elapsed since death was within 12 hours. The prosecution case finds corroboration from the postmortem report (Ext. 8). The factum of death of Keshwar Rai and injuries found on his person were not disputed by the learned advocate for the appellants in course of his argument.
7. The learned trial Judge discussed the evidence of eye-witnesses in detail. In paragraphs 16 and 17 of its judgment, the evidence of P.W. 7, the informant Ram Chandra Rai, was considered by the trial Court. In his evidence P.W. 7 claimed that the deceased was going 50 to 60 steps ahead of him and was followed by Badri Rai (P.W. 6). The trial Court further found that corroborating his fardbeyan (Ext. 2), P.W. 7 stated that all the accused persons came out of Rahar field from east and they pounced upon his brother Keshwar Rai and started dragging him towards their house whereupon Keshwar Rai raised alarm and when P.W. 7 and his brother rushed towards him they were prevented from going ahead by firing made by appellant Hira Lal Rai, P.W. 7 further stated that, on hulla, Jadu Rai (P.W. 1), Vakil Rai (P.W. 2) and Dinanath Rai (P.W. 3) came there sic Sheo Govind Rai (not examined) was also near the house of Jainath Rai. From perusal of sketch map (Ext. 5) it is clear that the dilapidated house of Jainath Rai was near the P.O. house of Ram Bali Rai, intervened by road. It has come in evidence of P.W. 7 Ram Chandra Rai that Jainath Rai was son or Ram Govind Rai and his dilapidated house is situated at a distance of 25 yards north of the house of Sheo Govind Rai. Thus it removed the ambiguity that the house of Sheo Govind and Ram Govind were different and where the deceased Keshwar Rai was caught near Sheo Govind’s house, the occurrence was seen by eye-witnesses, including P.W. 7 from near the house of Jainath, son of Ram Govind. P.W. 7 further stated about assault made by appellants on Keshwar Rai in his abdomen, chest and neck resulting in severing on the head of Keshwar Rai, P.W. 7 further stated that the appellants dragged the trunk of Keshwar Rai to the northern room and his head was also carried by Ram Bali Rai in the same room and meanwhile the police force from Jamalpur Out post reached there and surrounded the house of Ram Bali Rai but Chandrika Rai managed to escape and the Koilwar police reached there after some time and then his fardbeyan was recorded. The police recovered the dead body and arrested five accused persons from the house of Ram Bali Rai. In his cross-examination P.W. 7 stated that it took only ten minutes in completing the whole incident of dragging, assaulting and keeping the dead body in the room and within ten minutes the police force from Jamalpur out post had arrived there who surrounded the house. He denied the suggestion that they had gone there to commit dacoity. P.W. 7 was cross-examined at length an nothing has come cut in his cross-examination to disbelieve him. The trial Court discussed the evidence of P.W. 6 in para 18, of P.W. 1 in para 19, of P.W. 2 in paras 20 and 21 and of P.W. 3 in para 23 of its judgment and has rightly held that their evidence were consistent and that they fully corroborated the prosecution case. The trial Court rightly pointed out that even the D.W. 2 Satyendra Rai, while speaking about the defence version, admitted in paragraph-13 of his cross-examination that police had arrested accused Raj Nath Rai, Hira Lal Rai, Ram Bali Rai, Kamla Rai and Ram Ashan Rai from his house. D.W. 2 further supported prosecution case by stating that the dead body of Keshwar Rai with his severed head was seen by him in his house. He also supported the prosecution case by stating that police force and arrived and about 14 police personal had surrounded his house.
8. Apart from this oculars evidence of P.Ws., the trial Court discussed regarding circumstances which unfailingly go to establish the guilt of the appellants. Recovery of the dead body of Keshwar Rai from the house of the appellants is not disputed. The trial Court, has discussed this point in paragraph-25 of its judgment. Even the defence case was that Keshwar Rai was killed there by the villagers. However, why the defence version. The most important point is that in a room, the I.O. (P.W. 8) found the earth was dug in the south east corner of the house, and the ditch was freshly dug of the size 5″ × 2″ × 3″ indicating that preparation has been made to bury the dead body.
9. P.W. 8 Punit Lal Sah, the Investigation officer of this case, very promptly reached at the P.O. within one hour of the occurrence and after recording the fardbeyan (Ext. 2) inspected the place of occurrence, i.e. house of appellant Ram Bali Rai, which has been surrounded by police personnel headed by P.W. 9 Bhawanath Manjhi A.S.I and in-charge of nearby Jamalpur Police out post, who had reached there on hearing the sound of firing and alarm, within ten minutes of the occurrence and had surrounded the house of Ram Bali Rai giving them no opportunity to escape excepting appellant Chandrika Rai who had escaped. Remaining five appellants were arrested by P.W. 8 from inside the house where they were concealing themselves. P.W. 9 further stated that he found the hands and face of all five arrested accused persons freshly washed and that there was blood stains in their nails. The learned advocate for the appellants contended that since no hand pipe or well was found inside the house, it was not possible for the accused persons to wash off the blood stains on their person. It is strange to imagine as such as admittedly that house was being used as residence and even if there may not be any hand pipe inside the house, there is possibility of storage of water for obvious purposes like drinking, cooking etc. My attention was also drawn towards admission of P.W. 8 that in his diary he had mentioned about forwarding of three appellants only though actually five persons (appellants) were forwarded to police station and from there to the Court of Magistrate. Since five persons were produced before the Magistrate. I do not find any material contradiction in it, affecting the prosecution case and entry might have been made by mistake. P.W. 8 further stated to have found blood stains on two places in the veranda and also blood stains in the eastern well of northern room, where the headless body and the severed head of deceased Keshwar Rai was found. He further stated to have found the blood stained country made pistol at the elbow of the deceased but he did not find any blood in the hands of the deceased indicating that the pistol was subsequently planted there. P.W. 8 further found dragging mark near the house of Sheo Govind Rai where the deceased was cought and from there dragged up to the house as per statement of witnesses and dragging mark was also found in the Sahan of appellant Ram Bali Rai which continued up to Veranda. P.W. 8 stated to have recovered blood stained Ganjee, blood stained towel, blood-stained shirt and also empty cartridges smelling gun powder concealed in the phoos Palani in the north side of the Angan of Ram Bali Rai on which gourd plant was spreading. I have discussed above that P.W. 8 had found a ditch freshly dug in the south-east corner of the room and adjacent to the room, where earth was dug for burial purpose, in another room inside husk, he found two blood stained ‘fasulies’ concealed therein which were seized and seizure-lists (Ext. 4, 4/1 and 4/2) were prepared in presence of witnesses. P.Ws. 4 and 5. P.W. 8 further proved sketch map (Ext. 5) prepared by him and as it. was on the basis of the personal observation that was admissible. P.W. 8 stated to have recovered two blood stained ‘fasulies’ on pointing out by appellant Ram Bali Rai. The report of Director of Forensic Science Laboratory (Ext. 9) indicated that blood was found there on the articles sent for examination. The learned trial Court, has discussed the evidence of P.W. 8 in paragraph 3 and 4 of its judgment.
10. The defence has taken plea of alibi. The plea of alibi must be proved by exact and satisfactory evidence completely excluding the possibility of accused’s presence at the scane of occurrence at the relevant time, Appellant. Hira Lal Rai in his statement under Section 313 of the Code of Criminal Procedure had stated that he had gone for Rokshadi of his daughter to Narayanpur i.e. P.O. village. He has not elaborated as to in which family his daughter is married but this much is admitted by D.W. 2 that he along with other appellants, except Chandrika Rai, was arrested inside the house of Ram Bali Rai where they were concealing themselves. The plea of alibi of Chandrika Rai was that at the time, of occurrence he was in Danapur S.D.O’s Court. The learned trial Court has discussed the plea of alibi in paragraph -9 of its judgment where it was held that this appellant had taken different stand it. different places’4 and at one place he claimed to be present at the residence of second officer, he subsequently took the stand to be present in the Court of S.D.O., Danapur but at 6.30 a.m. when there was no court sitting, the plea of his presence in the Court of S.D.O. Danapur cannot be believed.
11. Sri Thakur, the learned Counsel for the appellants contended that though the occurrence took place on 27.11.83 at 6.30 a.m. the F.I.R. was received in the Court of Chief Judicial Magistrate on 28.11.83 indicating that there was delay in receipt of the F.I.R. He further contended that this part was indicative of the fact, that the I.O, waited for the post mortem report and only after receipt of the post-mortem report, the fardbeyan was recorded and anti-dated. In support of his contention he pointed out towards the entry in the inquest report (Ext. 3) where it was mentioned against column No. 9 that the deceased was reportedly killed by fire arm and Katta. No fire arm injury was found on the person of the deceased and perhaps the entry in the inquest report was made on the basis of reported statement. The death of the deceased was caused due to severing of the neck and witnesses might have been misguided as firing was also made by one of the appellant Hira Lal Rai. I find no merit in this contention as the inquest report (Ext. 3) was sent along with the dead body for post-mortem examination and it was not expected that same constable taking the dead body for post-mortem examination, would also take the F.I.R. and the arrested appellants along with him. Here in this case in which the investigation started promptly, delayed receipt of the fardbeyan by the Magistrate by one day is not very material. In the case of State of Karnataka v. Moin Patel reported at A.I.R. 1996 S.C. 3045, it was held that relying on the decision of the case of Pala Singh v. State of Punjab reported at 1972 S.C. 2679, where the F.I.R. was recorded promptly and the investigation started on that F.I.R. the delayed receipt by the Magistrate is, by itself cannot justify the conclusion that investigation was tainted and prosecution was unsupportable. Similar view was also taken in the case of Baleshwar Mandal v. The State of Bihar reported at 1997 (2) P.L.J.R. 126 (S.C). Reliance can be placed on decision reported at (para 10) where two days’ delay was held that clerk concerned was responsible for delayed placing before the Magistrate. My attention was also drawn by Sri Thakur, the learned Counsel for the appellants towards the seizure-list (Ext. 4 series) on which P.S. Case No. was mentioned and it was contended that this indicated ante-dating in preparation of the seizure-list. I have closely examined the three seizure-lists and I find that entry regarding P.S. case No. was made in different ink possibly subsequently to prevent its tagging with another case record. Thus, I find no merit in the point raised on behalf of the appellants.
12. Summing up the entire discussion made above, I find that besides the oral consistent and fully corroborated testimonies of P.Ws. 1, 2, 3, 6 and 7 supported by the post-mortem report (Ext. 8) there are other clinching circumstances against the appellants. The recovery of the dead body was made from the house of the accused-appellants. The defence plea of commission of dacoity was not found correct. Due to prompt action of the police the appellants, excepting appellant Chandrika Rai, were arrested from inside the house and I.O. had found their faces freshly washed and blood stains in their nails. They are arrested from the P.O. house was also supported by D.W. 2. Blood stained cloth and blood-stained Fasulies were recovered in and around the P.O. sic was also found freshly dug presumably for the burial of deceased Keshwar Rai and the report of the Forensic Science Laboratory (Ext. 9) was that blood stained were found on the article sent for examination. These go to show that a plan was made from before, when Keshwar Rai the accused in the case of murder of Jogendra Rai, the nephew of Ram Bali Rai, was released on bail, to kill him and for that a ditch was prepared from before. The circumstances shown above go to fasten the guilt of the appellants undoubtedly and flinchingly.
13. In the result, from the critical analysis of the materials on record from careful scrutiny of the evidence, I find no merit in these appeals and they are accordingly, dismissed. The bail bonds of all the appellants are hereby cancelled and they are directed to surrender in the Court below and the trial Court also directed to take step for their arrest to serve out remaining sentences.
S.K. Chattopadhyaya, J.
14. I Agree