Chothi Yadav vs State of Bihar

N.K. Sinha, J.—Both the criminal appeals directed against one and the same judgment and order of conviction and sentence have been heard together and are being disposed of by this common judgment.

There is a small village known as ''Kurawa'' in Chandan Police Station of Banka district. Antu Yadav (deceased) and the Appellants are all residents of the said village. The three Appellants alongwith Bhoia Yadav (absconding) and two to three porsons unknown armed with Sword, Tangi and Sabal entered the house of the deceased in the early morning of 24.7.1990 and assaulted the deceased, his wife Kamli Devi (informant) and their son Birju Yadav. The deceased died on the spot. The miscreants entered into the house and removed a box containing certain articles. The three Appellants were put on trial. The learned Additional Sessions Judge by his judgment and order dated 13.1.1993 convicted all the three Appellants u/s 302 read with Section 34 of the Indian Penal Code and sentenced them to undergo imprisonment for life. They were also convicted and sentenced to undergo R.I. for six months u/s 148 of the Indian Penal Code and R.I. for two years each under Sections 380 and 452 I.P.C. Appellant No. 3 Surya Narain Yadav was further convicted u/s 342 I.P.C. and sentenced to undergo R.I. for six months. The sentences were, however, ordered to run concurrently. The Appellants have preferred the appeals for setting aside their convictions and sentences.

The prosecution story as unfolded in the Fardbeyan Ext. 2 of Kamli Devi P.W. 4 is that the deceased and the Appellants are Gotiyas. They lived in the same village which is a small settlement consisting of four houses of four families including those of the deceased and the Appellants. The parties are on litigating terms on account of land dispute since long. On the night intervening the 23rd and 24th July, 1990 Antu Yadav (deceased), his wife Kamli Devi P.W. 4 and their daughter-in-law Sobhawati Devi P.W. 3 were sleeping in their house. At about 3 a.m. there was a knock on the door and the Informant heard her son Birju Yadav cry. There was a call to open the door saying that Bara Babu of Chan-dan had come. The informant opened the door whereafter Chothi Yadav Appellant No. 1 his son Binod Yadav Appellant No. 2, Surya Narayan Yadav Appellant No. 3 and Bhola Yadav armed with Sword, Tangi and Sabal entered the house. There were, two to three other persons accompanying them. They started looking for the deceased and his son Mohan Yadav P.W. 5 who was not inside the house, on that night. When the deceased came out of the room, A-1 ordered for assault whereupon A-3 assaulted him by means of Tangi and A-2 by means of Sabal. When the deceased protested A-2 assaulted him by means of Sword. When the Informant (P.W. 4) went to rescue her husband A-3 assaulted her by means of Bhala. Meanwhile the deceased fell down and died. The Appellants then entered the house and removed a box saying that they have already killed Antu Yadav (deceased) and they shall now kill Mohan also one day. The box belonge''d to P.W. 3 and contained a Silver Hansuli weighing 20 Bhar, Rupees 50/- in each, two Sarees, two Sayas and some clothes of children besides some documents of land. The motive for the occurrence is said to be land dispute in connection with which a case was pending in Banka Court and on account of which the Appellants used to hold out threats to kill both the father and son. A-3 is also said to have threatened to kill them a few days prior to the occurrence when P.W. 5 was plucking some Jack fruits.

K.P. Keshri P.W. 2 was posted as O.C. of Chandan Police Station. On receiving the news about a murder having been committed he left the Police Station at 5 a.m. for the P.O. village. At about 7 a.m. he recorded the Fardbeyan Ext.-2 of P.W. 4 at her house in presence of P.W. 3 who gave her Thumb impression and P.W. 5 and Basudeo Yadav who put their signatures thereon. The I.O. inspected the place of occurrence as pointed out by P.W. 4, held an inquest on the body of the deceased which was lying in the Angan itself and prepared the inquest report Ext-3. He sent the dead body for post mortem examination which was conducted by Dr. Ashoke Kumar Chaterjee P.W. 6 at Sadar Hospital, Deoghar at 3.40 p.m. on that very day. The post mortem report is Ext-6. The I.O. referred P.W. 4 and Birju Yadav to the Hospital. Dr. Dineshwar Das P.W. 1 examined their injuries on the same day and issued Injury reports Exts-1 and 1/11 respectively. On returning to the Police Station the I.O. drew the formal First Information Report Ext-4 registering a case under Sections 147/148/149/448/324/307/ 302 and 380 of the Indian Penal Code. After completion of investigation the I.O. P.W. 2 submitted charge-sheet showing accused Bhola Yadav as an absconder.

The prosecution examined six witnesses in all to prove the case. They are the two doctors P.W. 1 and P.W. 6, the I.O. P.W. 2, the two eye witnesses P.W. 3 and P.W. 4 and P.W. 5 who is a hear-say witness. The defence case is that a dacoity had taken place in the house of the deceased in course of which the deceased was killed and the Appellants had been falsely implicated by the Informant on account of previous enmity. One Sukhdeo Tanti (D.W. 1) was examined who supported the plea of alibi on behalf of the Appellants that they were else where at the time of the alleged occurrence. The learned Additional Sessions Judge did not accept the defence case and after holding the prosecution case as proved convicted and sentenced the Appellants in the manner already indicated above.

Shri Braj Kishore Prasad, learned Senior Counsel appearing for the Appellants argued that there were a number of infirmities in the prosecution case and the trial Court was in error in convicting the Appellants. It was pointed out that both the eye-witnesses P.W. 3 and P.W. 4 were interested witnesses and close relation of the deceased and no independent witnesses had come forward to support the prosecution case. Even Birju Yadav said to be the son of the deceased who was according to the prosecution case present in the P.O. house at the time of the occurence and had also sustained injuries had not been examined for reasons best known to the prosecution. There was also unexplained delay in the receipt of the First Information Report in the Court of Chief Judicial Magistrate suggesting that the story mentioned in the First Information Report was itself doubtful. Moreover, even the eye-witnesses account of the occurrence was not corroborated by the medical evidence on the record. There was no means of identification and the eye-witnesses had themselves admitted that the night of the occurrence was dark. In view of all these the testimony of the eye-witnesses ought to have been rejected outright by the Court when enmity between the parties existed from before. It was also argued in the alternative that even if the trial court had accepted the prosecution case as proved by rejecting the plea of alibi supported by a defence witness, the Appellants could not have been convicted for an offence u/s 302/34 I.P.C. It was contended that on the evidence adduced no intention or knowledge on the part of the Appellants to cause death could be inferred and the offence, if any committed by the Appellants could be one u/s 304 pan (2) I.P.C. Shn Ganesh Prasad Jayswal, learned Counsel appearing tor the State, however, controverted the aforesaid contentions and submitted that the judgment of conviction and sentence passed against the Appellants are based on satisfactory and legal evidence on the record.

The case of the prosecution essentially rests on the evidence of the two eye-witnesses. namely, P.W. 3 the daughter-in-law and P.W. 4 the widow of the deceased. Both were sleeping inside the house on the date of the occurrence. Both were subjected to a lengthy and gruelling cross-examination. The major part of their cross-examination was in question and answer part. It was argued on behalf of the Appellants that testimony of the Informant P.W. 4 was not consistent with her statement contained in the Fardbeyan Ext-2. In her testimony P.W. 4 stated that Appellant No. 3 was carrying both Tangi and Sword whereas A-1 was armed with Siword and A-2 with Sabal. Accused Bhola Yadav was carrying Tangi and the other two to four unknown persons were armed with Lathi. As per Fardbeyan A-1, A-2 and A-3 were armed with Sword, Tangi and Sabal respectively, whereas rest were carrying Tangi and Lathi. According to P.W. 3 A-1 was carrying Sword A-2 Sabal and A-3 Tangi and Sword whereas accused Bhola Yadav was armed with Tangi. It is true that the description of the weapons carried by the Appellants as given by P.W. 4 in her testimony was some what different then what she had mentioned in the Fardbeyan. However, both P.W. 3 and P.W. 4 are consistent in their testimony before the Court thai A-1 was carrying Sword, A-2 Sabal and A-3 both Tangi and Sword.

In so far the description of the actual assault on the deceased is Concerned P.W. 4 stated that after her husband came out in the Courtyard A-1 ordered for assault whereupon A-3 assaulted him on his head by means of Tangi. Her husband sat down whereupon A-3 assaulted him by means of Sword. Thereafter A-1 assaulted her husband by means of Sword. A-3 assaulted the" deceased by means of Sabal on his leg. P.W. 4 further claimed that accused Bhola Yadav by means of Tangi and the other four by which she meant those not identified had assaulted her husband by means of Lathi. P.W. 4 claimed to have been assaulted by A-3 on her head when she had gone to the rescue of her husband. Almost similar is the testimony of P.W. 3. She stated that on the orders of A-1, A-3 assaulted the deceased on his head by means of Tangi, A-1 on the back of his head by means of Sword and A-2 on his leg by means of Sabal. She, too stated that accused Bhola Yadav by means of Tangi and rest by means of Lathi had assaulted the deceased and that her mother-in-law P.W. 4 was assaulted by A-3 by means of Tangi when she had gone to the rescue of the deceased. She further added that A-2 had assaulted P.W. 4 on her back by means of Sabal. P.W. 4 had also stated that she had also been assaulted by Lathi and Sabal but did not specifically name A-2 for having assaulted her by means of Sabal.

It was argued that the description of the assault on the deceased as given by P.W. 3 and P.W. 4 was not consistent with the medical evidence on the record and, hence, did not inspire confidence. The doctor P.W. 6 who held the autopsy found the following anti-mortem injuries on the body of the deceased.

(i) One incised wound 2" x 1/2" x bone deep in the middle of forehead.

(ii) One incised wound 1 1/2" x 1/3 x bone deep on right temporal region.

(iii) One bruise on left side of chest below clavical 1 1/2 "x 1/2".

(iv) One bruise 1 1/2 ''x 1/4" on right leg below knee.

(v) One haemetoma with bruise below left eye 1/4"x 1/2

Thus only two incised wounds, namely, Injury Nos. (i) and (ii) were found on the body of the deceased which in the opinion of the doctor had been caused by sharp cut weapons which may be Tangi and Sword. The rest of the injuries were caused by hard and blunt substance which could be Lathi and blunt portion of the Sabal. According to P.W. 4 A-1 had assaulted the deceased by means of Sword agd A-3 had assaulted the deceased both by means of Tangi and Sword. As per her testimony accused Bhola Yadav had assaulted the deceased by means of Tangi. It was argued that if the testimony of Informant P.W. 4 regarding the description of assault is accepted as true, there should have been at least four incised or cut injuries on the body of the deceased instead of two as found by the doctor. P.W. 3 had stated that A-3 assaulted the deceased on his head by means of Tangi and A-1 on the back portion of his head by means of Sword. She did not say that A-3 had also assaulted the deceased by means of Sword. However, P.W. 3 had also testified that accused Bhola Yadav had also assaulted the deceased by means of Tangi.

If the presence of accused Bhola Yadav who is not among the Appellants is ignored at the time of the occurrence, the description of the assault on the deceased given by P.W. 3 would be consistent with the medical evidence on the record. Injury No. (i) on the deceased would be attributed to A-3, injury No. (ii) to A-1 and injury No. (iv) on the leg to A-2.

Both P.W. 3 and P.W. 4 have stated that the night of the occurrence was dark. P.W. 3 also admitted that there was no electric light, in those circumstances if there are some discrepancies in the manner of assault given by the two eye-witnesses, it was quite understandable and it cannot be made the sole ground for rejecting their testimony. Both eye-witness were rustic village ladies and minor contradictions and discrepancies in their testimony in the facts and circumstances of the case ought to be ignored. Nonetheless there is consistent testimony of both the witnesses that A-3 was the author of injury No. (1), A-1 of injury No. (ii) and A-2 of injury No. (iv) and their testimony to that extent can be relied upon.

It was argued on behalf of the State that P.W. 4 had herself sustained injuries in course of the occurrence and her testimony being that of an injured witness could not be brushed aside. According to P.W. 4 she was assaulted on her head by means of Tangi by A-3 when she, had gone to rescue her husband. P.W. 3 had also corroborated this fact. According to P.W. 4 one person had assaulted her by means of Sabal and two to four other persons by means of Lathi, but she did not name A-2. P.W. 3, however, stated that A-2 had assaulted P.W. 4 by Sabal on her back. P.W. 4 was examined by the doctor-P.W. 1 and he found the following four injuries on her person:.

(i) one incised would 2"X1/8" x scalp deep on the left, antero medial part of the frontal region of the head.

(ii) one contusion 2 1/2" x 1/2" in the left upper lateral part of the back.

(iii) one contusion 3"x 1/2" x on the upper front part of the right arm.

(iv) one contusion 2 1/2"x 1/2" on the middle of the back of the right forearm.

In the opinion of the doctor whose injury report is Ext-1, Injury No. (i) was simple and had been caused by sharp cutting instruments which may be Tangi ana injury Nos. (ii) to (iv) were caused by hard and blunt substance which may be Lathi. Thus the manner of assault given by P.W. 4 on her person is consistent with the description given by the other eye-witness P.W. 3 as also the medical evidence on the record. It may be recalled that A-3 had been separately charged u/s 324 I.P.C. for causing hurt to P.W. 4 and had been convicted for the said offence by the trial Court. The nature of injury sustained by P.W. 4 is not such that they could have been easily manufactured. A suggestion was given to the doctor by the defence that the injuries might have been caused by fall. The doctor categorically stated that injury No. (i) was not possible by fall on a pointed stone. Injury Nos. (iii) and (iv) being in opposite directions were also not possible by one fall as opined by the doctor. P.W. 4 having sustained injuries in course of the occurrence her presence at the P.O. cannot be doubted and this gives more credibility to her testimony as an eye-witness.

Another infirmity pointed out in the prosecution case was that there was inordinate delay in the receipt of the F.I.R. by the Court and the prosecution had made no effort to explain the delay. The Fardbeyan Ext. 2 was recorded at 7 a.m. on 24.7.1990 by the I.O. P.W. 2. The I.O. had immediately taken up the investigation of the case in course of which he inspected the place of occurrence, held an inquest on the dead body, recorded the statement of the witnesses and took steps for sending the injured and the dead body to the Hospital. He recorded the formal F.I.R. Ext-4 only after he returned to the Police Station. There is an endorsement in the formal F.I.R. that it had been despatched from the Police Station by Special Messenger. It was argued that the F.I.R. was received by the Court on 27.7.1990 as is evident from the endorsement on the top margin of the F.I.R. under the initial dated 27.7.1990 of the A.C.J.M. It was argued that the parties were on inimical terms from before and P.W. 5 the son of the informant who was away from the P.O. house on the night of the occurrence had returned to his house at 4 a.m. and that there was ample time for him to get a false case instituted by his mother implicating the Appellants following a dacoity committed in the house in course of which the deceased was killed.

In support of his contention that the delay in the receipt of the F.I.R. by the Court was a suspicious circumstance creating serious doubt about the prosecution story mentioned therein, learned Counsel for the Appellants referred to a number of decisions of the Apex Court. In Dator Singh v. State of Punjab 1974 B.B.C.J. 192 the Apex Court was dealing with a case in which F.I.R. was neatly written soon after the occurrence but the date of despatch was not mentioned in the column. It was observed that the failure of the Police to enter the date of despatch to a Magistrate in the column of the F.I.R. seem to be quite significant, in the light of other facts indicating that the F.I.R. must have been drawn up much later than'' it is actually shown to have been. In Ishwar Singh Vs. State of U.P., the Apex Court had observed that the extraordinary delay, in sending the F.I.R. is a circumstance which provides a legitimate basis for suspecting that the F.I.R. was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellish merits and set up a distorted version of the occurrence. The Apex Court noticed in Arjun Wlarik and Ors. v. State of Bihar B.B.C.J. 1994 S.C. 116 that the F.I.R. was not recorded on the information received at the P.S. but subsequently at the place of occurrence and the F.I.R. was despatched to the Magistrate on the third day. The Court observed that Section 157 Code of Criminal Procedure mandates the Officer In-charge of the Police to send report forthwith to the Magistrate empowered to take cognizance on information received of commission of the offence and Section 159 of the Code envisages that on receiving such report the Magistrate may direct an investigation. The Court, therefore, emphasised that forwarding of the occurrence report is indispensibie and absolute and it has to be forwarded with earliest despatch. The practice prevailing in the State (Bihar) in not sending the F.I.R. on Sundays and Holidays was deplored and it was also observed that a mere note in the F.I.R. that report was despatched by Special Messenger is not enough. Learned Counsel for the Appellants had also referred to a Division Bench judgment of this Court in Sanjay Singh alias Pappu v. State of Bihar. 1993 B.B.C.J. 40. In that case the F.I.R. was recorded at 9.30 A.M. on 1.4.1989 and despatched through Special Messenger reaching the Magistrate on 3.4.1989. The Court had been pleased to observe that this was highly doubtful and delay appears to have been fully utilised in giving shape to the prosecution case. It was argued that the F.I.R. was being recorded within four hours of the alleged murder of trie deceased in the house itself when the dead body was lying in the courtyard and P.W. 4 the widow of the deceased could not have been in that mental state to describe the occurrence in such great detail as she had done in the F.I.R. This according to the Appellants, further supported the contention that the Fardbeyan was not recorded on the date and time as claimed by the prosecution.

Learned Counsel for the State argued that the delay in the receipt of the F.I.R. by the Court, in the fact and circumstances of the present case, could not lead to the drawing of the inference that the F.I.R. was drawn up later and a false case for implicating the Appellants had been instituted, it was pointed out that no question was put to the I.O. P.W. 2 in the cross examination that he had fabricated a false case in collusion with the informant. Moreover, the I.O. had taken up investigation of the case immediately after recording the Fardbeyan and before drawing the F.I.R. The inquest on the dead body was held on the very date of the occurrence. The injured including the informant P.W. 4 were medically examined by a doctor on that very date and even the autopsy on the dead body was �held on that very date. All this completely excluded the possibility that the F.I.R. was not drawn up on the date and time as claimed by the prosecution and was subsequently brought on the record. In support of his contention learned Counsel for the State referred to a judgment of the Supreme Court in State of U.P. Vs. Gokaran and Others, . I was observed therein that it is not that as if every delay in sending the special report to a District Magistrate u/s 157 Code of Criminal Procedure would necessarily lead to the inference that the F.I.R had not been lodged at the time stated or has been ante-timed and antedated or that the investigation is not fair and forthright. In" making the said observation the Court relied on an earlier decision of the Court reported in Pala Singh and Another Vs. State of Punjab, . learned Counsel invited particular attention to the observation of the Court made in course of para 13 of the judgment that in a case if it is found that the F.I.R. was recorded without delay and the investigation started on that F.I.R., then however improper or objectionable the delayed receipt of the report by the Magistrate concerned, that cannot by itself justify the conclusion that the investigation was tainted and the prosecution unsupportable. It was pointed out that in the instant case the investigation including inquest had immediately followed after lodging of the Fardbeyan at the P.O. itself. Another decision of the Supreme Court relied upon is The State of Karnataka Vs. Moin Patel and Others, . The Apex Court was hearing an appeal against the judgment of the High Court which had reversed the conviction and sentence recorded against the Respondents u/s 302/34. I.P.C. etc., The Court allowed the appeal and set aside the judgment of the High Court. In course of the judgment the Apex Court observed that where the F.I.R. was promptly lodged and the investigation started promptly on the basis of the F.I.R. the mere delay in despatch of the F..I.R. and for that matter in receipt thereof by the Magistrate could not make the prosecution case suspect. It was further observed that if in a given case it is found that F.I.R. was recorded without delay and the investigation started on that F.I.R then however, improper or objectionable the delayed receipt of the report by the Magistrate concerned, it cannot by itself justify the conclusion that the investigation was tainted and the prosecution unsupportable. A three Judge Bench of the Supreme Court in Madru Singh and others Vs. State of Madhya Pradesh, have been pleased to observe on the facts and circumstances of the case that merely because the copy of the First Information Report was received by the concerned Magistrate on 10th August, 1934, no conclusion could be drawn that the F.I.R. was not lodged on 7th August, 1984 at 6 p.m. The Apex Court was pleased to observe that the Courts below were right in rejecting the defence contention. In other words, the mere fact that the copy of the F.I.R. was received by the concerned Magistrate three days after the incidents, did not warrant the conclusion that the F.I.R. was not lodged on the same day alter the incidents or that it was antedated.

Having heard the submissions made on behalf of the parties. I am inclined to take a view that in the facts and circumstances of the present case the delay in the receipt of the F.I.R. in the Court of the learned A.C.J.M. does not create any doubt whatsoever that the F.I.R. was not recorded on the date time and place as claimed by the prosecution. In other words, there is no merit in the contention put forward on behalf of the Appellants'' that the contents of the F.I.R. were doubtful as it had been antedated and anti-timed with a view to fabricate a false case against the Appellants.

It was next argued that Birju Yadav son of the deceased was present in the house at the time of the alleged occurrence and had also sustained injuries. The Fardbeyan also refers to his presence and that he was reportedly sleeping outside the house on the might of the occurrence. The I.O. had found injuries on his person on the date of the occurrence and the doctor P.W. 1 had examined him on that very date. He had found two lacerated wounds on the scalp and two contusions which were all simple in nature and also issued Injury report Exts. 1/1. It was argued on behalf of the State that the prosecution has sought to examine Birju but the prayer was rejected by the trial Court by order-sheet dated 29.5.1992. The prayer was disallowed on the ground that Birju Yadav was not examined by the Investigating Officer u/s 167 of the Code of Criminal Procedure and copy of his statement had not been furnished to the accused u/s 207 Code of Criminal Procedure There is a suggestion in the prosecution evidence that Birju suffered from some kind of abnormality. Whatever be the reason, since the prosecution had sought to examine Birju as a witness but was not allowed by the trial Court to do so no inference against the prosecution can be drawn on that basis.

On behalf of the Appellants it was pointed out that no independent witness had come forward to support the prosecution case and the two eye-witnesses P.W. 3 and P.W. 4 are close relation of the deceased being the daughter-in-law and widow of the deceased. Even P.W. 5 who came to the P.O. house only after the alleged occurrence and had supported the case as a hear say witness was the son of the deceased. It was argued on behalf of the State that there were only four houses of the four families including the houses of the deceased and the Appellants. Admittedly the Appellants are the Gottiyas of the deceased and even the occupants of other two houses are related among themselves. In the circumstances there was no likelihood of any independent witness having witnessed the occurrence which took place inside the house. Moreover, the eye-witness account of P.W. 3 and P.W. 4 cannot be disbelieved only because they were interested in the fate of the prosecution for the reason that they were inside the house at the time of the occurrence and were therefore natural witnesses. All that is required is that their testimony should be strictly scrutinised before being relied upon. Thus, there is no question that the prosecution case should disbelieved on the ground, that no independent witness had been examined in support of the case.

Learned Counsel for the Appellants argued that the defence case that a dacoity took place in the house of the deceased on the night of the occurrence and in course of which the deceased was killed was much more probable and the trial Court had failed to correctly appreciate the evidence on the record while discarding the said story. Such a defence '' case was suggested in the cross-examination of the prosecution witnesses. D.W.1 has his shop in Kajhia Late which is on a road through which pilgrims passed on way to Deoghar. He claims that on the night of the occurrence he'' was present in his shop and A-1, A-3 and P.W. 5 were also running their shops at Kajhia Late. D.W.1 further testified that all the three Appellants were taking rest with him on the said night till 2.30- 3 a.m. In the morning they heard nullah that the deceased and his wife had been murdered by dacoits. He mentioned that the information had been given to Mohan Yadav P.W. 5 by his brother Birju Yadav and thereafter the witness (D.W. 1) alongwitn A-1 and A-3 and others had gone to the P.O. He saw the dead body of the deceased lying inside the Angan and P.W. 4 wailing. He also saw P.W. 3 wife of Mohan Yadav. According to the witness both A-1 and A-3 had accompanied him and had stayed at the P.O. for half an hour and during that period P.W. 3, P.W. 4 and P.W. 5 did not disclose the name of the assailants. The P.O. village is at a distance of one and half kilometres from Kajhia Late and no village falls in between them. According to P.W. 5 no-one had come to inform him about the incident at Kajhia Late and he had not as usual come home at 4 a.m. when he learnt about the occurrence. The tnai Court disbelieved D.W.1 and in my opinion, for good reasons. Admittedly D.W.1 did not make any statement before the Police. Though D.W.1 denied in the cross-examination that the cattle of P.W. 5 had grazed his bihan on 14.6.92 and this had led to a quarrel between them, he volunteered the information that Mohan Yadav P.W. 5 has a number of cattle which he did not keep tied and which damaged his crop also.

The testimony of D.W.1 is also significant for the reason that he had admitted in the cross-examination that the P.O. village is a village of only four houses, namely, those of the deceased and the rest of Chothi Yadav (A-1), Patru Mahto and Munna Lal. He also stated that both Patru and Munnu Lal are cousions of A-1. He also admitted that he was on visiting terms with A-1. The admission of D.W.1 lends support to the argument of the prosecution that it was not possible to examine any independent witness in support of the occurrence in the instant case. Since D.W.1 could not be trusted for reasons already mentioned above the plea of alibi that at the time of the alleged occurrence the Appellants were at Kajhia Late had also not been substantiated.

The Appellants made a grievance that the I.O. P.W. 2 made no investigation with regard to commission of dacoity in the house of the injured. The I.O. had gone to the P.O. on his own after receiving information from his own source. He denied in the cross-examination that anyone of the P.O. bouse had come to pass on the information on him. He left the Police Station at 5 a.m. reaching the P.O. village two hours later. As mentioned in the F.I.R. Ext.4 P.O. village is at distance of 7 kilometres from the P.O. He has given the description of the P.O. in detail and had also found the dead body lying in the courtyard to the south east. He also spoke about having found stone lying there and blood marks. The medical evidence and the other evidences on the record however, exclude the possibility of the deceased having sustained any injury on account of fall on the stone. The I.O. denied that he had made any investigation on the point of dacoity. The objective findings recorded by the I.O. after local inspection of the P.O. however does not support the theory of commission of dacoity. There is also no material on the record to suggest that a dacoity had taken place in the P.O. house in course of which the deceased was killed. Thus, the Appellants have failed to point out any legal evidence on the record suggesting that a dacoity was committed in the house of the deceased and the opportunity had been seized by the informant to falsely implicate the Appellants at the instance of P.W. 5 who was on inimical terms with them from before.

It was argued on behalf of the Appellants that the prosecution case deserved to be disbelieved on the ground that there was no means of identification. In this connection evidence of both P.W. 3 and P.W. 4 were referred to whereby they had admitted that the night of the occurrence was dark and there was no electricity. The incident had taken place in the courtyard that is an open space. The three Appellants were known to the eyewitnesses from before being their Got-tiyas. There is also evidence that the Appellants and the witnesses had exchanged words. The Appellants were not wearing any Galmocha. P.W. 3 made such a statement in reply to a question put to her in the cross-examination. It is significant that P.W. 3 in reply to a question put categorically stated that she had identified the three Appellants not by voice but by her own eyes. Since the occurrence had taken place in an open space and the identifying witnesses know the Appellants from before since they had taken no precaution to conceal their identity, their identification in the tacts and circumstances of the case cannot be doubted. Thus, there is no merit in the contention of the Appellants that the identification of the Appellants should have been disbelieved by the trial Court on account of absence of means of identification.

It was next argued that there are vital contradictions and omissions in the statement made by P.W. 3 and P.W. 4 before the I.O. The attention of the witness had been drawn to such omissions and contradictions and were legally brought on the record in the testimony of the I.O. P.W. 2. The contradictions and omissions were not such to create any doubt whatsoever that the two eye- witnesses had witnessed the occurrence. There are minor contradictions and discrepancies in the sense that they related to the nature of weapons carried by the Appellants. As a matter of fact both P.W. 3 and P.W. 4 were subjected to a lengthy cross-examination and most of the cross-examination was in question and answer form. Considering that both the eye-witnesses are rustic village ladies it must be said to their credit that they stood the test of cross-examination very well. In the circumstances the testimony of P.W. 3 and P.W. 4 in sofar it is consistent with each other and insofar it is supported by the medical evidence on the record go to prove that Injury No. (i) on the deceased was caused by A-3, Injury No. (ii) by A-1 and injury No. (iv) by A-2 by means of Tangi, Sword and Sabal respectively.

It was argued that on the evidence adduced no offence u/s 302/34 I.P.C. was made out against any of the Appellants, as the intention to commit murder or the knowledge to cause such bodily injuries sufficient to cause death were completely missing. As already noticed earlier each of the three Appellants had given one blow each on the deceased. In other words, none of them had repeated the blow. Injury No. (i) on the deceased was one incised wounds 2" x 1/2" bone deep in the middle forehead and on further dissection the doctor had found blood clot. Injury No. (ii) was also an incised wound 1 1/2" x 1/3 x bone deep on right temporal region and on further dissection the doctor had found blood clot. Injury Nos. (iii) and (iv) were bruises and Injury No. (v) was a haemetoma and they were all caused by hard and blunt substance. Injury No. (iv) which is a bruise 1 1/2" x 1/4" on right leg below knee is attributed to A-2. Though the doctor P.W. 6 opined that In-'' jury Nos. (i) and (ii) were sufficient to cause death in the ordinary course to the nature, the nature of the injury do not appear to support such an opinion Both injuries were only bone deep and since no fracturer had been caused, there is a strong probability that the blow which was not repeated had not been given with any considerable force.

Learned Counsel for the Appellants therefore argued that Appellants No. 1 and 3 could at best be held guilty u/s 304 part (2) of the Indian Penal Code. Section 304 reads as follows:

Punishment for, culpable homicide not amounting to murder.-Who ever commits culpable homicide not amounting to murder, shall be punished with imprisonment tor lite, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment ot either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death." In the facts and circumstances of the case, it is not possible to held that the assault was made by the Appellants in the furtherance of common intention of all to cause death or to cause such bodily injuries likely to cause death. However, since the weapons used were Tangi and Sword which are sharp cutting weapons and a vital part cf the body was hit, it appears that the assault was done with the knowledge that it is likely to cause death. I am, therefore, in agreement that the argument advanced on behalf of the Appellants that on the evidence adduced no offence u/s 302/34 I.P.C. is made out and the conviction of A-1 and A-3 for the said offence has got to be altered to one u/s 304 part (2) I.P.C. and that of A-2 to one u/s 323.

In so far the conviction u/s 324 I.P.C. of A-3 for assaulting P.W. 4 is concerned, the same has been proved by the evidence of both P.W. 3 and P.W. 4 as also the medical evidence of the doctor P.W. 1 and, hence, no legal flaw is found with the judgment and order of the trial Court convicting A-3 of the said offence.

The three Appellants have also been convicted u/s 380 I.P.C. On the evidence adduced only one box belonging to P.W. 3 was stolen in course of the alleged occurrence which contained jweliery, clothes, documents etc., since only one box had been removed, only one among the three Appellants and those accompanying them would have been involved in the actual removal of the box. P.W. 3 stated that the miscreants had taken one box. She did not name any one of the Appellants as responsible for �its removal. In her cross-examination also she did not name any one in particular for the same. P.W. 4 stated that the miscreants after assaulting her husband had entered the house in search of her son Mohan P.W. 5. She further stated that when they could not find Mohan they ran away with a box. In other words even P.W. 4 has not named any person in particular for removing the box. In the circumstances there is no satisfactory evidence to prove the charge u/s 380 I.P.C. and the learned trial Court was clearly in error in convicting the Appellants for the said offence.

The three Appellants have also been convicted u/s 148 I.P.C. The charge framed was that they were members of unlawful assembly and in prosecution of the common object of such assembly viz in committing the murder of the Antu Yadav (deceased) had committed the offence of rioting. On the evidence adduced the prosecution has miserably failed to prove that there was any assembly of five or more persons with such a common object. Even the trial Court had convicted the Appellants for the murder of the deceased with the help of Section 34 I.P.C. and not Section 140 I.P.C. Otherwise also there is complete" paucity of materials to prove that there was an unlawful assembly consisting of five or more persons with the common object of murdering the deceased. On the evidence adduced only two of the Appellants A-1 and A-3 have been found liable not for murder but for an offence u/s 304 (Part 2) I.P.C. for one injury each caused by the two. In view of this the conviction of the Appellants u/s 148 I.P.C. recorded by the trial Court can not be sustained and has got to be set aside.

Thus for the foregoing reasons the conviction of A-1 and A-3 u/s 302/34 I.P.C. and sentence of imprisonment for life cannot be sustained and are set aside and both are instead convicted u/s 304 (Part 2) I.P.C. and sentenced to undergo R.I. for seven years each. The conviction of A-2 u/s 302/34 I.P.C. and sentence of imprisonment for life is also set aside and he is instead convicted u/s 323 I.P.C. and sentenced to imprisonment for the period already undergone. The conviction of the Appellants u/s 452 I.P.C. is upheld but the sentence of R.I. for two years is reduced to the period of imprisonment already undergone. The conviction of the Appellants u/s 148 and 380 I.P.C. and sentences passed against them for the said offences are set aside. The conviction of A-3 u/s 324 I.P.C. and sentence of R.I. for six months passed against him is however upheld.

Subject to the modifications in the conviction and sentences passed by the trial Court both the criminal appeals are dismissed. Chothi Yadav A-1 is in custody. Binod Yadav A-2 and Surya Narayan Yadav A-3 are on bail. A-2 has been convicted under Sections 323 and 452 I.P.C. and sentenced to imprisonment for the period already undergone. Hence he is discharged from his bail bond. A-3 is directed to serve out the remaining portion of the sentences if any, under Sections 304 (Part 2) and 324 I.P.C. which shall run concurrently.

P.K. Sarin, J.

I agree.