Bhagat Jha and Others vs The State of Bihar

Mridula Mishra, J.—Both these appeals have been preferred against the judgment and order dated 21.9.2001, passed by 1st Additional Sessions Judge, Saharsa in Sessions Trial No. 33 of 1992 and the same are heard together and are being disposed of by this common judgment. Appellant in Cr. Appeal No. 47 of 2002 has been convicted u/s 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. He has further been convicted u/s 302/149 of the Indian Penal Code and Section 148 of the Indian Penal Code, but no separate sentence has been awarded u/s 302/149 of the Indian Penal Code, two years rigorous imprisonment has been awarded for offence u/s 148 of the Indian Penal Code.

Appellants in Cr. Appeal No. 490 of 2001 have been convicted u/s 302/149 of the Indian Penal Code and sentenced rigorous imprisonment for life. They further been convicted u/s 148 of the Indian Penal Code and awarded sentence for rigorous imprisonment for two years. Appellant Gaurishankar Mishra, Naresh Mishra, Devendra Jha have been convicted u/s 147 of the Indian Penal Code also and sentenced for six months. Appellant Lal Mishra and Gaurishankar Mishra have been convicted u/s 342 of the Indian Penal Code also but no separate sentence has been awarded.

On the basis of fardbeyan of Madan Jha (PW. 6) recorded by the A.S.I. Abdul Sattar (P.W. 1) at Lalit Gram out post on 15.11.1988 at 8.30 A.M. the case was instituted against eleven named accused persons. The prosecution story is that on 15.11.1988 in between 6-7 P.M. at village Lachminia Kumdanand Mishra who is the neighbour of Madan Jha started abusing his brother Tribhuwan Jha. Other accused persons were also present and they were exhorting Tribhuwan Jha. Tribhuwan Jha proceeded alongwith Hit Narain Jha and Sadan Jha for pacifying the accused persons. Madan Jha also after taking torch followed his brother and went in the backyard of his house. As soon as he reached in the backyard he heard shouting of his eider brother Tribhuwan Jha that he is being killed. Madan Jha runningly went there and in the flash of torch light he saw that his brother was lying on the ground. Kumdanand Mishra was sitting on the chest of his brother assaulting and inflicting injury with Gupti. Other accused persons were weilding lathi. Kumdanand Mishra, as soon as saw Madan Jha asked Devendra Jha to kill him. Madan Jha became apprehensive and raised alarm. His younger brother Sadan Jha proceeded to protect his elder brother Tribhuwan Jha but was assaulted with lathi and he fell down. The accused persons lifted the body of Tribhuwan Jha and proceeded towards their house. In the meantime Nityanand Jha (P.W. 2), Sachindra Jha (P.W. 1), Lalan Jha (P.W. 4) and other villagers came there. The accused persons left Tribhuwan Jha near the field and fled away. His brother Tribhuwan Jha was on the verge of death and there blood was oozing out from his abdomen. Madan Jha came near Tribhuwan Jha and enquired from him regarding the occurrence. Tribhuwan Jha repfied that accused Kumdanand Mishra by deceit called persons and assaulted him with Gupti. Madan Jha and other villagers brought Tribhuwan Jha from the cow shed on the verandah where he succumbed to his injury. Madan Jha stated that the occurrence took place because the accused persons are in habit of grazing crops in others field by the cattle. Tribhuwan Jha used to scold them for this. Two days prior to the occurrence there had been tussle between Krityanand Jha and Bhagwat Jha pertaining to right of way. In this dispute Tribhuwan Jha had declared Bhagwat Jha responsible for the dispute. This was also one of the reasons for the occurrence.

Fardbeyan of Madan Jha was recorded at his Darwaza in village Lachminia at 8.30 P.M. and a formal F.I.R. on that basis was instituted on 15.11.88 at 8.15 A.M. The Investigating Officer Abdul Sattar visited the place of occurrence in the night of the occurrence itself. He recorded the statement of the witnesses on the next day in the morning and on conclusion of investigation he submitted chargesheet against 11 persons who were put on trial. The trial court convicted six persons who are appellants in these two appeals and five persons were acquitted giving benefit of doubt.

Prosecution examined in all 8 witnesses. P.W. 1 Sachindra Jha, P.W. 2 Nityanand Jha, P.W. 4 Lalan Jha and P.W. 6 Madan Jha are eye witnesses to the second part of the occurrence and of oral dying declaration of the deceased but they have not seen the actual assault on deceased Tribhuwan Jha. P.W. 3 Bhogendra Jha and P.W. 5 Hit Narain Jha claimed to have seen assault being made by Kumdanand Mishra on deceased Tribhuwan Jha. P.W. 7 Birendra Mishra is a formal witness, who proved his signature on fardbeyan. P.W. 8 Dr. Navin Kuamr Das conducted post mortem on the dead body of the deceased. The I.O. of this case Abdul Sattar was examined as court witness No. 1.

The defence of the accused persons was complete denial of the prosecution case. Their plea was of false implication. The deceased being a man of criminal antecedent, had received injury at some other place but a false prosecution story was fabricated by the prosecution. The defence also examined three witnesses to prove their version. They are Ganesh Mishra, Sudhir Jha and Ganpat Ram. Ganesh Mishra has been examined on the point that some of the accused persons are from one family. Sudhir Jha has deposed on the point of distance of village Lachminia to police station and Ganpat Ram has been examined on the point of antecedent of the deceased. He has deposed that deceased was a man of criminal antecedent who used to indulge in assault and altercation.

P.W. 6 is the informant and brother of deceased Tribhuwan Jha. He has stated that on 15.11.1988 he along with his brothers Tribhuwan Jha, Sadan Jha and Hit Narain was at residence when heard alarm raised by Kumdanand Mishra abusing and exhorting Tribhuwan Jha. In order to pacify them Tribhuwan Jha alongwith Sadan Jha and Hit Narain Jha proceeded towards the backyard of the house from where Kumdanand Mishra was abusing him. P.W. 6 stayed for taking torch and he also followed them. As soon as he reached at the place of occurrence he heard alarm raised by his brother Tribhuwan Jha that he is being killed. In the flash of torch he saw Kumdanand Mishra sitting on the chest of his brother and inflicting injury by Gupti. Devendra Jha has caught hold of one arm of his brother and second arm was caught by Bhagwat Jha. Bhagwat was armed with farsa and Devendra had lathi in his hand. Kumdanand Mishra when noticed P.W. 6 he asked Devendra Jha to kill him and at that very time other accused persons were wielding lathi and abusing. He also saw that his brother Sadan Jha was lying on the ground sustaining assault made by lathi. Accused Gaurishankar and Lai Mishra had caught hold of Hit Narain Jha. Devendra Jha chased him to assault but out of fear he started raising alarm. The accused persons thereafter lifted his brother Tribhuwan Jha and started taking him towards their house. In the meantime several persons assembled there on his alarm. The accused persons when saw the assemblence of the villagers, they left Tribhuwan Jha on paddy stalks and fled away. In presence of villagers he asked Tribhuwan Jha about the assault and he said that by deceit Kumdanand Mishra called him and got him killed. Thribhuwan Jha was brought in the courtyard, where he died within few minutes. Sadan Jha was also brought at courtyard in an unconscious state.

P.W. 6 stated that his statement was recorded by A.S.I. at his Darwaza in the same night though no one had gone to inform at the police station. The dead body of Tribhuwan Jha was taken by the constable and no family members accompanied the dead body. Sadan Jha was also taken to hospital for treatment but he was also not accompanied by any family members. He admitted that P.W. 5 Hit Narain Jha is his own brother and P.W. 1, 2, 3 and 4 are also his cousins. The house of the deceased and witnesses are adjacent to the house of accused persons. Regarding the accused persons he said that Kumdanand Mishra and ail his sons are accused in this case and other accused persons Lai Mishra and Gauri Shankar Mishra are also brothers. P.W. 6 has also admitted close relations in between witnesses. He also admitted that accused persons are also coming from the same branch and they are also closely related. P.W. 6 admitted that he did not see the assault on Tribhuwan Jha by Kumdanand Mishra as when he reached there Tribhuwan Jha was lying on the ground and Kumdanand Mishra was sitting on his chest. The deceased had already received injury and blood was oozing out of his injury. He did not see assault on Sadan. He simply saw lifting of Tribhuwan Jha by the accused persons and carrying him towards their house. He is also a witness of oral dying declaration made in his presence by the deceased Tribhuwan Jha.

P.W. 1, 2 and 4 have also not witnessed the assault made by Kumdanand Mishra on Tribhuwan Jha. All these three witnesses have stated that they were sitting at Darwaja of Ram Babu Jha and they were warming themselves near the furnace at his Darwaza. They heard alarm and ran towards that direction. When they reached near the house of deceased Tribhuwan they saw accused persons present there. Kumdanand Mishra was armed with Gupti. Bhagwat Jha and Lal Mishra were armed with Farsa and others were armed with lathi. The accused persons were carrying Tribhuwan Jha towards the door of accused Kumdanand Mishra. Many persons had assembled and saw them. Accused persons threw Tribhuwan Jha on the paddy stalks and left the place. They reached near Tribhuwan Jha who was profusely bleeding from his injury near his chest. They enquired from him and he replied that accused Kumdanand Mishra collected other accused by deceit and assault him by means of Gupti. Tribhuwan Jha was brought to his courtyard where he succumbed to his injuries. Injured Sadan Jha was taken to Kumarkhand hospital for his treatment.

P.W. 3 Bhogendra Jha has stated that he was at his residence when he heard alarm. He went at the place of occurrence and saw Devendra Jha, Bhagwat Jha, Nawal Kishore Jha, Shyamal Kishore Jha, Kishore Jha, Kumdanand Mishra, Naresh Mishra, Sudhir Mishra, Ganganand Mishra, Gauri Shankar Mishra and Lal Mishra. Bhagwat Jha was armed with Farsa, Kumdanand Mishra was armed with Gupti and all other accused persons were armed with lathi. They were abusing Tribhuwan Jha. In the meantime Tribhuwan Jha alongwith Hit Narain Jha and Sadan reached there and wanted to pacify them on which Kumdanand Mishra, Devendra Jha and Bhagwat Jha pushed Tribhuwan Jha on the ground and Kumdanand Mishra sat on his chest. Sadan Jha wanted to save him but he was assaulted by Naresh Mishra with lathi and he fell down. Hit Narain Jha also proceeded to save Tribhuwan but he was caught by Gauri Shankar Mishra and Lai Mishra. Kumdanand Mishra inflicted Gupti in the body of Tribhuwan Jha. He shouted that he is being killed by the accused persons. Accused persons also chased Madan Jha for assaulting him. Madan Jha started raising alarm and the accused persons lifted the body of Tribhuwan and wanted to take it towards their house. Several persons assembled there they threw Tribhuwan Jha on the wheat stalk and fled away. He alongwith other persons came near Tribhuwan Jha and enquired from him about the occurrence and he said that Kumdanand Mishra and other persons by deceit killed him. He was taken to courtyard where his cousin Sheo Ballabh who is a private doctor treated him and stitched his wound but within 2-3 minutes Tribhuwan died. The reason behind this incident as disclosed by P.W. 3 is that the occurrence took place because the accused persons used to graze others crops by the catties. The deceased being influential person used to restrain and chastesise them. P.W 3 also stated that just before the occurrence no dispute was there in between accused and Tribhuwan Jha.

P.W. 5 Hit Narain Jha is own brother of deceased and he has also deposed in the same manner as P.W. 3 has deposed. This witness was also at his residence and he went alongwith Tribhuwan when alarm was raised. P.W. 5 had seen the real assault and he also witnessed oral dying declaration made by the deceased.

P.W. 8 is Dr. Navin Kumar Das who conducted post mortem on the dead body of the deceased. He has stated that on 15.11.88 at 3.40 P.M. he conducted post-mortem on the dead body of the deceased and he found following injuries:

(i) Penetrating wound 11 1/2 x 1/4 � 4" on the left hip in upper lateral part cutting through underlying substance face and muscle and other soft tissues with pointed and point and the wound having sharp margine the wound had stitches.

(ii) Penetrating wound 1" x 1/4" x deep to the vesticle column situated on the right eloc fessa and cutting through the caecin in a small intestine and at three places and one tissue, five tissues encluding abdominal corts about 5 litres of blood was present in the abdominal cavity.

In the opinion of the doctor the death was caused by haemorrhage and shock resulting from injury to the blood vessels inside the abdomen. The time elapsed since death was 36 hours. These injuries were sufficient to cause death in ordinary course of nature.

P.W. 8. had stated that he found three stitches on the person of the deceased which indicated that the deceased was earlier treated by some doctor. Considering the nature of injuries, usually there cannot be profused bleeding and the bleeding is mostly inside the abdomen.

I.O. who has investigated the case was examined as court witness No. 1. Since he could not appear for his deposition on the repeated notice and appeared after closure of the prosecution evidence. In his evidence he stated that he received information about the murder in village Lachminia and immediately proceeded for the village. There he recorded fardbeyan of Madan Jha at 8.30 P.M. which was read over to him and signature of P.W. 7 Birendra Misra was taken on the fardbeyan. He also prepared inquest report of the deceased. He prepared the dead body chalan and sent the dead body for post-mortem. He sent the fardbeyan to Balua Bajar police station for institution of formal F.I.R.-He also examined injuries on the person of Sadan Jha and referred him to doctor and obtained report of Dr. M.K. Jha. On 16.11.88 he visited the place of occurrence and found trampling marks in the field and blood mark. He prepared sketch map of place of occurrence with the help of Md. Azimuddin which has been marked as Ext. 9. He prepared seizure list of blood stained earth. He has stated that he did not find any stitch mark or bandage on the dead body of deceased. Madan Jha P.W. 6 had not stated before him that Devendra Jha and Bhagwat Jha had caught hold of arm of the deceased. He had also not stated that Gauri Shankar Mishra and Lal Mishra had also caught hold of the deceased. P.W. 1 admitted that he prepared the inquest report on 15.11.88 at 11 P.M. but denied that any P.S. case was mentioned in the inquest report which was prepared by him. He had searched the house of the accused persons but no arm was recovered by him from their house. He denied the suggestion that any interpolation ante dating was done in the case diary.

Learned Counsel for the appellants has argued that the date of occurrence, i.e. 15.11.88, according to P.W. 2 was date of Chath festival. It was month of November and occurrence took place in between 6-7 P.M. It definitely would have become dark which is apparent from the F.I.R. as well as from evidence of P.W. 6. In the F.I.R. it is said that Tribhuwan alongwith his two brothers went to the place of occurrence with torch in his hand. Further it has been said that P.W. 6 stayed back and he followed them after taking torch. In his evidence P.W. 6 stated that when he reached at the place of occurrence on hearing the cry of the deceased Tribhuwan he flashed his torch and saw Kumdanand Mishra sitting on the chest of the deceased and inflicting Gupti injury. Statement of P.W. 6 has been contradicted by P.W. 4, P.W. 3 and P.W. 5. The I.O. also did not seize any torch when he investigated the case. Since admittedly it was dark and there is contradiction in the evidence of witnesses that there was any means of identification, the identification by the prosecution witness becomes doubtful. This argument has no substance. Considering the evidence of P.W. 6 as well as his statement in the F.I.R. Even if it is believed that there was no means of identification in that case also the dying declaration of deceased Tribhuwan is there for proving the participation and presence of Kumdanand Mishra. The witnesses have not been cross examined by the defence on the point of dying declaration. The doctor P.W. 8 has also not been cross examined on this point that after receiving the injuries which were found on the person of deceased he would not have been in a position to disclose the name of any person. The dying declaration cannot be disbelieved as it is a cryptic one. Since there is no reason for disbelieving the dying declaration at least identification of Kumdanand Mishra as an accused is proved if the presence of other accused persons on account of there being no means of identification is accepted.

Much has been argued on the point of delay in lodging the F.I.R. The occurrence took place on 15.11.1988 in between 6-7 P.M. fardbeyan was recorded at 8.30 P.M. C.W. 1 in paragraph 4 of his evidence has stated that the dead body chalan (Ext. 4/1) alongwith the dead body was sent at 10 P.M. The inquest report was prepared at 11 hours 11 minutes and the fardbeyan was despatched on 16.11.1988 at 5 A.M. for institution of formal F.I.R. which was instituted at the police station on 16.11.88 at 8.15 P.M. This F.I.R. reached the court of A.C.J.M. on 18.11.1988 and no reason has been assigned as to why three days delay has been caused. Section 157 Cr. PC. is relevant which provides that if Officer-in-charge of a police station has reason to suspect the commission of offence which he is empowered u/s 156 to investigate, he shall forthwith send the report of the same to the Magistrate empowered to take cognizance of such offence upon police report. Sending of police report u/s 157 Cr. P.C. immediately after registering the case to the Magistrate is the statutory obligation of the police officer investigating the case. The Supreme Court and the High Court has also decided on this point. The reliance has been placed on AIR 1976 S.C. 2423, 1994 Suppl (2) S.C.C. 372 and 2002(1) S.C. 487. In these decisions the Apex Court has held that mere delay in sending the F.I.R. to the Magistrate is fatal to the prosecution case. No reason has been assigned for delay as C.W. 1 has stated that the distance between Balua Bajar P.S. and place of occurrence can be covered within two hours by bus or by train. In his evidence he has also admitted that there are vehicles available at the police station and no cause has been shown on which ground F.I.R. could not have been sent within two hours which is the time for covering the distance.

The State counsel has argued that simply delay in reaching the F.I.R. in court is not fatal to the prosecution story if it is shown that the F.I.R. was instituted immediately after the occurrence and investigation of the case started immediately thereafter. In the present case F.I.R. was instituted at 8.30 P.M. when the occurrence has taken place in between 6-7 P.M. Inquest report was prepared at 11 P.M. and the dead body was despatched for postmortem at 10 P.M. and next day in the morning the fard beyan was forwarded for institution of formal F.I.R. It shows that the investigation of the case started promptly and it cannot give any occasion to the prosecution for making any interpolation in the F.I.R. The delay in reaching the F.I.R. in court is held to be fatal for prosecution in those case where there is scope for making any interpolation in the F.I.R. on account of delay and also when it is shown that the investigation also started after much delay. Since in this case the investigation started promptly after the occurrence as such merely because the F.I.R. was presented before the A.C.J.M. on 18.11.1988 it cannot be taken to be fatal for the prosecution.

Another point raised by the appellants also is that from the evidence of the prosecution witness it is sufficiently proved that there is no eye witness to the actual assault on the deceased. P.W. 1, P.W. 2 and P.W. 4 have admitted that they were sitting near the furnace (Ghun) and they heard alarm and ran towards the place of occurrence and saw the accused persons taking away the body of Tribhuwan towards their house which they threw on the paddy stock near the cow shed. Thereafter they came near Tribhuwan and on query he said that by deceit Kumdanand got assembled persons and killed him. P.W. 3 was also at his residence. He heard the alarm and he also witnessed the occurrence from the same stage as it was witnessed by P.W. 6. The evidence of P.W. 3 has been disbelieved by the trial court as he came out with a new and different story of stitching of the injury by Sheo Balak, which was not found on the dead body in the inquest report nor such statement was made by him before C.W. 1. Except P.W. 5 there is no witness who has claimed to witness the actual assault. P.W. 5 is said to have accompanied the deceased when the accused persons were abusing and exhorting the deceased. Regarding this witness it has been argued that being own brother of the deceased he is interested witness. It is a fact that no other witness except P.W. 5 has claimed to seen the occurrence. In the F.I.R. as well as the evidence of witnesses it has consistently been said that Hit Narain P.W. 5 had accompanied the deceased when he went at the place of occurrence. In this circumstance the evidence of P.W. 4 as an eye witness cannot be disbelieved so far the assault on Tribhuwan by Kumdanand is concerned. For proving the charge against any accused it is not necessary that several witnesses should come and depose in favour of the prosecution story. Even solitary evidence of reliable and trustworthy witness is sufficient for proving the charge. Hit Narain P.W. 5 is the brother of the deceased and no suggestion wan given by the defence to this witness that he had any motive of falsely implicating the accused. In this circumstance so far assault on Tribhuwan by appellant Kumdanand is concerned there is no reason to disbelieve.

Another argument advanced by the appellants is that P.W. 8 the doctor found three stitches on the person of the deceased while conducting post-mortem and he has stated that from the stitches it can be inferred that the deceased was given a medical help before his death. The inquest report which was prepared by C.W.1 did not indicate that there was any bandage or stitch on the dead body of the deceased. P.W. 3 had come with a story of giving medical help by cousin of the deceased Sheo Balak just before the death of the deceased, but that story has not been supported by any other witness. The evidence of P.W. 3 so far this part is concerned has also been disbelieved by the trial court. In this circumstance there is wide gap in between the story of the prosecution and the post-mortem report in which P.W. 8 found stitches on the person of the deceased. This is also sufficient to indicate that the prosecution has not come out with a real story. The prosecution story is false and fabricated. A suggestion has been given to the witness regarding the antecedent of the deceased who used to involve in criminal activities, he must have received injury at some other place and after getting some treatment he died and in conspiracy with C.W. 1 a false case has been instituted. The post-mortem report also indicates that time elapsed since death was 36 hours when the post-mortem was done within 24 hours of the occurrence. This is also a circumstance showing that the prosecution story is not the real story. So far the stitches which has been found on the person of the deceased is concerned that has remained unexplained by the prosecution. The inquest report is also silent and C.W. 1 has also not been able to say anything how the stitches were found by P.W. 8. This may cause some doubt but this is not sufficient for disbelieving the entire prosecution story.

Counsel appearing for the appellants has emphatically argued that the case of appellant Kumdanand Mishra and the case of other appellants are on two different footings. The allegation has been made in the F.I.R. that Kumdanand was armed with Gupti, Bhagwat and Lal Mishra were armed with Farsa and all other accused persons were armed with lathi. In the evidence none of the prosecution witness have stated that Bhagwat and Lal Mishra who were armed with Farsa have inflicted any injury to any one with the Farsa. So far the assault made by Naresh on Sadan Jha is concerned that has not been proved as Sadan did not come to depose in court. His injury report has not been produced and Dr. M.K. Jha who examined him has also not been examined as witness. None of the witnesses have stated that who were the accused who lifted and carried the injured Tribhuwan from the place of occurrence up to the cow shed of Kumdanand Mishra.

P.W. 5 and 6 have said that Devendra Jha and Bhagwat Jha were catching hold of arms of the deceased but this evidence has not been supported by any other witness and it has not been mentioned in the F.I.R. The evidence if considered in its totality clearly indicates that P.W. 5 and 6 have tried to develop the prosecution case to show some participation of all these appellants in the occurrence. If the evidence which has been developed for the first time by P.W. 5 and P.W. 6 in court is left aside there is no evidence against these appellants showing their participation in the occurrence. This part of the evidence that other appellants were armed with Farsa or lathi also becomes doubtful as they did not use their arms. C.W. 1 has also stated in paragraph 20 of his evidence that informant did not state about the catching hold of arms of the deceased by Bhagwat and Devendra. From the evidence it is apparent that alleged overt act against these appellants have not been proved and therefore, their conviction is bad u/s 302/149 I.P.C.

It has also been argued that it cannot be perceived from the evidence as to whether these accused persons had any knowledge that the murder would be done by Kumdanand Mishra. Mere presence in an unlawful assembly cannot render a person liable for conviction unless there was common object and the persons actuated by that common object became the part of that unlawful assembly. The object must be one all those set out u/s 141 I.P.C. Where common object and unlawful assembly is not proved the accused persons cannot be convicted with the help of section 149.

The counsel appearing for the State has controverted the argument stating that an object is entertained in the human mind and it is a mental attitude as such no direct evidence can be available for the same. The object can be gathered from the act of the accused and the result thereof. If the submission made by the counsel for the State is accepted in that case the circumstance show that initially only Kumdanand Mishra was abusing and exhorting the deceased, no other accused persons have been named that either they abused or exhorted Tribhuwan. The assault was also made on the deceased by Kumdanand Mishra only. Hit Narain P.W. 5 and Sadan (not examined) were also present there. Hit Narain did not receive any injury and injury on the person of Sadan has not been proved. So far the catching arms of the deceased by Devendra and Bhagwat is concerned it has not been proved as in the F.I.R. there is no mentioning about it and C.W. 1 has specifically stated that it was not mentioned before him by P.W. 5 or P.W. 6 The story has been developed for the first time in court.

The evidence and the circumstances clearly indicate that the appellants Bhagwat Jha and Lal Mishra, Gauri Shankar Mishra, Naresh Mishra and Devendra Jha did not share the object of Kumdanand Mishra regarding the killing of Tribhuwan Jha. Initially the occurrence started merely by hot exchange of words in between Kumdanand Mishra and Tribhuwan Jha which resulted into the death of Tribhuwan on account of advancement of altercation on the spot. The appellants have not participated in the occurrence. They did not share the common object and as such their conviction u/s 302/149 cannot be upheld.

So far the conviction of Naresh Mishra u/s 323 I.P.C. is concerned it has not been proved as the injured Sadan Jha has not been examined. The doctor who examined him has also not come to depose and the injury report has also not been proved. Naresh is acquitted of his charge u/s 323 I.P.C. There is no evidence that Gauri Shankar Mishra and Devendra Jha have participated in the occurrence no specific overt act has been alleged against them that they used force or violence as a member of unlawful assembly in prosecution of the common object of such assembly as such their conviction u/s 147 I.P.C, cannot be sustained and they are acquitted of the charges. Similarly the conviction of Lal Mishra and Gauri Shankar Mishra cannot be sustained u/s 342 I.P.C. as P.W. 5 and P.W. 6 have developed a story of catching hold of P.W. 5 by these two appellants when he wanted to proceed to save his brother Tribhuwan. They were cross examined on this point and C.W. 1 specifically stated in his evidence that P.W. 5 and P.W. 6 in their statement u/s 161 Cr. P.C. did not allege such overt act against these appellants. Appellants Lal Mishra and Gauri Shankar Mishra are acquitted of charge u/s 342 I.P.C.

So far the conviction of appellant Kumdanand Mishra u/s 302/149 I.P.C, is concerned since the other appellants have not been found guilty u/s 302/149 I.P.C, the conviction of appellant Kumdanand Mishra u/s 302/ 149 I.P.C, is set aside. Appellant Kumdanand Mishra has been found guilty u/s 302 I.P.C. The evidence which has been brought by the prosecution has sufficiently proved the charge against this appellant u/s 302 I.P.C. The postmortem report Ext. 3 and the evidence of doctor P.W. 8 clearly indicates that the deceased died of injuries caused by sharp and penetrating weapons. P.W. 5 and P.W. 3 who are eye witnesses of the actual occurrence have stated that they saw Kumdanand Mishra inflicting Gupti injury on the person of the deceased. All prosecution witnesses consistently stated that deceased in his oral dying declaration named Kumdanand Mishra as his assaulter and killer. Neither P.W. 8 or any other witness were cross examined on this point that oral dying declaration was not probable considering the injury on the person of the deceased, as such there is no reason to disbelieve it. There is reliable and consistent evidence on record, sufficient to prove charge against Kumdanand Mishra u/s 302 I.P.C. In the facts and the circumstances the conviction of appellant Kumdanand Mishra u/s 302 of the I.P.C. is affirmed. Since other appellants have not been found guilty u/s 302/149 and 147 I.P.C, as such conviction of this appellant u/s 148 is set aside. Appellants Kumdanand Mishra is in jail and he will remain for serving remaining part of his sentence. Appellants Bhagwat Jha, Lal Mishra, Gauri Shankar Mishra, Naresh Mishra and Devendra Jha are acquitted of the charges levelled against them. They are on bail, their bail bonds are cancelled and they are discharged from the liability of their bail bonds.

Criminal Appeal No. 490 of 2001 is allowed and Cr. Appeal No. 47 of 2002 is dismissed.

P.N. Yadav, J.

I agree.