Lalo Chaudhary and Others vs The State of Bihar

Aditya Kumar Trivedi, J.—Appellants Lalo Chaudhary, Upendra Chaudhary, Rajo Chaudhary, Maheshwar Chaudhary, Sachidanand Chaudhary, Debo Chaudhary, Yogendra Chaudhary who have been found guilty for an offence punishable u/s 302/34 of the IPC, directing each of them to under go R.I. for life, u/s 148 IPC where for each of them independently directed to undergo RI for one year. Appellant Lalo Chaudhary held guilty for an offence punishable u/s 323 of the IPC and directed to undergo RI for six month with a direction to run the sentences concurrently vide judgment dated 27th March, 1990 passed by Sessions Judge, Saharsa in Sessions Trial No. 49 of 1986 have preferred instant appeal.

Daso Mehta (P.W. 6) recorded First Information Report on 19.06.1985 at 09:00 AM at Police Station disclosing therein that yesterday while his son Rajendra Mehta was harvesting maize crop from a field which they have taken on Batai from Sheo Ratan Bhagat along with his wife while wife of Upendra Chaudhary, wife of Darpu Mehta, daughter and grand daughter (Natani) of Amrit Poddar, wife of Bhuto Mehta were engaged as labourers and during course thereof, wife of Upendra Chaudhary had stealthily collected one bag of maize which was detected by his son and for that he had scolded wife of Upendra Chaudhary. In the aforesaid background, wife of Upendra Chaudhary had disclosed to her family members that Rajendra Mehta had misbehaved with her and for that, at about 11:00 A.M. Yogendra Chaudhary, Dano Chaudhary, Upendra Chaudhary, Maheshwar Chaudhary, Sachidanand Chaudhary, Ram Baran Chodhary, Satyadeo Chaudhary, Lalo Chaudhary, Debo Chaudhary armed variously came at his house. His co-villager Tapsi Bhagat, Hajari Rai, Suresh Pandit, Mishra Pandit, Kamal Mahto anyhow got the matter pacified and averted the untoward incident. He under the notion that matter has been pacified, did not inform anywhere. In the night while he along with his son was sleeping at Varanda of his house, all of a sudden all the accused persons variously armed came at about 11:00 PM whom he identified in the light of lamp. They all began to assault his son Rajendra Mehta and thereafter took him away. He, after raising alarm, followed them to save his son over which Ram Baran Chaudhary assaulted him with back of Tengari. While Lalo Chaudhary assaulted him with lathi. They have taken away his son towards western direction. Birchi Mehta, Rasu Mehta, Guni Mehta and others have come on his alarm who also have seen the accused persons having indulged in such criminal activity. All the accused persons took his son to a maize field where they have committed murder of his son. He had gone to Kash Nagar outpost and as per instruction he came to Police Station.

On the basis of the aforesaid, First Information Report, Sonebarsa P.S. Case No. 43 of 1985 was registered whereupon investigation commenced and after completing the same charge sheet was submitted. Consequent thereupon, cognizance was taken and the accused persons were put on trial who ultimately faced the rigor of judgment under challenge.

The defence case as is evident from mode of cross-examination as well as from the statement recorded u/s 313 of the Cr.P.C. is of innocence as well as complete denial of occurrence. They have further pleaded that the deceased himself was of bad repute and was done to death in different manner by the unknown criminals and to support the same examined three DWs as well as also exhibited series of documents.

In order to substantiate its case, the prosecution had examined altogether nine PWs out of whom P.W.-1 is Darpi Mehta, P.W.-2 is Dhanik Lal Mehta, P.W.-3 is Jay Nandan Prasad Mehta, P.W.-4 is Guni Mehta, P.W.-5 is Surji Devi, P.W.-6 is Daso Mehta, P.W.-7 is Jatti Devi, P.W.-8 is Vishwanath Sharama and P.W.-9 is Dr. J.B. Singh. Side by side had also exhibited Exhibit-1 Series, Signature of respective witness, informant over the relevant documents, Exhibit-2 FIR, Exhibit-3 Injury Report, Exhibit-4 carbon copy of inquest report, Exhibit-5 Requisition sent by Chief Judicial Magistrate to Director Forensic Laboratory, Exhibit-6 postmortem report. Three DWs have also been adduced and examined on behalf of defence who are Raghav Chandra Rai (D.W.-1), Md. Swev Rizvi (D.W.-2), Chandra Bhushan Jha (D.W.-3) as well as also exhibited Exhibit-A Series Sanha entries, Exhibit-B FIR of Sessions Trial No. 108/1986, Exhibit-C Fardbeyan, Exhibit-D Charge sheet, Exhibit-E, Fardbeyan written report by Ramashish Rai, Exhibit-F FIR, Exhibit-G Charge Sheet, Exhibit-H Voter list, Exhibit-I Judgment of Sessions Trial No. 111 of 1986.

Learned counsel for the appellant while challenging the verdict laid down by the trial court submitted that the judgment impugned suffers from conjecture and surmises. It has further been submitted that the learned trial court had deflected from the settled norms while appreciating the evidence of the witnesses. On this score, it has been submitted that none of the prosecution witnesses including the informant himself was an eyewitness to occurrence as there was no source of identification available and that happens to be reason behind presence of inconsistent version amongst the PWs on this very score. Further elaborating the plea, it has been submitted that the I.O. had not seized the lamp as well as torch and in absence thereof, story of identification with the help of lamp light as well as torch light could be accepted. The improbability on the score of identification has further been highlighted in a manner suggesting that when there happens to be large number of accused persons then in that event identification in a manner as suggested by the prosecution that too of dead of night was not at all feasible and probable. Therefore, identification of accused persons as claimed by the prosecution has got no substance at all.

This part finds further strengthen from Exhibit-A Series which happens to be the Sanha given by the informant himself regarding the occurrence wherein none of the appellants were named. Again the aforesaid slip is indicative of the fact that prosecution could not be able to identify the assailant in a manner as deposed by the witnesses during course of trial.

It has further been submitted that there happens to be lot of exaggeration as well as embellishment in the evidence of PWs apart from the fact that they happens to be inconsistent on each and every material aspect and on the ground aforesaid, their evidence became worthless and are fit to be rejected. In an alternative, it has also been submitted that when evidence of PW-9 the doctor is gone through, it does not support the version of the prosecution with regard to manner of assault. Not only this, the objective finding of the I.O. to the extent of first part of alleged occurrence claimed to have at the Darwaja of the informant, no where supports the same and again, when the first part of occurrence has become suspicious, the ultimate result of the prosecution case should be found to be not proved at all, consequent thereupon appeal is fit to be allowed.

At the other hand, the learned Additional Public Prosecutor refuted the submissions whatsoever been made on behalf of appellants and submitted that there happens to be genuine and natural conduct of the prosecution right from beginning when the appellants have come at day time variously armed at the house of informant as well as informing the local police outpost while his son was being carried to maize field by the accused persons. Because of the fact that at the relevant time no police officials were present at the outpost and as only sepoy was there who was not at all legally entitled to entertain the fardbeyan, therefore non-mentioning of names of assailant in the Sanha is not going to affect adversely to the prosecution. The informant had subsequently gone to the P.S. and got First Information Report recorded without having undue delay then in that event the prosecution version cannot be doubted. The witnesses whoever been examined are found to be credible, consistent, reliable and their presence even at such wee hour cannot be doubted because of the fact that they have categorically stated that they reached at the place of occurrence hearing the alarm raised by the informant and further, have seen the occurrence.

With regard to source of identification, that is itself found to be properly explained right from First Information Report. Seizure/non-seizure is the part and parcel of investigation and for that I.O. is accountable. More so, the prosecution version cannot be doubted because of the lapses on the part of Investigating Authority during conduction of investigation. So submitted that instant appeal is fit to be dismissed.

After giving our patient hearing to the rival submission as well as after going through the L.C. record in consonance with the judgment impugned is of considered view that the learned trial court had committed gross error of law during conduction of trial, consequent thereupon needs retrial without adverting to merit of the case.

The legal infirmity which I have perceived from the lower court record sprout right from framing of charge. All the appellants have been charged for an offence punishable u/s 148 of the IPC, simultaneously they have also been charged u/s 302 with the aid of Section 34 of the IPC. One of the appellant Lalo Chaudhary was individually charged u/s 323 of the IPC. That means to say at one stroke the learned lower court found Section 148 IPC applicable in the facts and circumstances of the case simultaneously also found applicability of Section 34 IPC, on the same nature of material collected by the police during course of investigation. Whether both two sections could be found to be applicable at same stoke when there happens to be no indisposition during commission of occurrence. For better appreciation let have a look over relevant section.

Section 34 of the IPC reads as follows:-

[34. Acts done by several persons in furtherance of common intention.

When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.]

The basic ingredients of Section 34 happens to be with regard to sharing of common intention by the accused persons during commission of the occurrence which could be facilitated only after premeditation of the mind. That means to say, it happens to be the ultimate aim followed with result of the assailant for that their active involvement is found to be necessary bounded by pre-meeting of mind. Pre-meeting of mind even could be at the crucial time of occurrence, and could be perceived by the activity of the accused during commission of crime.

Now coming to the other aspect which has visualized on account of framing of charge u/s 148 of the IPC, its application could be seen in light of definition so prescribed under IPC.

Rioting.

Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.

Unlawful assembly has been defined u/s 141 of the IPC are reads as follows:

Unlawful assembly.

An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is -

First.-To overawe by criminal force or show of criminal force, A[the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or

Second.-To resist the execution of any law, or of any legal process; or

Third.-To commit any mischief or criminal trespass, or other offence; or

Fourth.-By means of criminal force or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

Fifth.-By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Explanation.-An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.

Now Section 148 IPC should also be seen which reads as follows:

Rioting, armed with deadly weapon.-Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

So after having parallel scrutiny of Section 34 read with Section 141, 146 of the IPC, it is evident that both two commands, two distinct spheres. So far applicability of Section 34 is concerned, as discussed above, premeeting of mind for forming common intention to commit a crime is found to be there which should in ordinary course of nature extend to limit the number of culprit up to five. There should be conjoint effort of all the accused be different action to facilitate the crime for attracting application of later part. After having plain reading of Section, it could very well be construed that there should be presence of an unlawful assembly and for that the counting of number should be five or more than five in order to show of criminal force for the purpose of commission of an occurrence (unlawful object) and for that each member of an unlawful assembly sharing common object which happens to be unlawful that means to say the ultimate goal but by different methodology to be adopted by each and every member of an unlawful assembly during commission of the crime and while being so armed with deadly weapon, would attract Section 148 IPC. So, when there happens to be applicability of Section 148 IPC impliedly meaning presence of an unlawful assembly with unlawful object then in that happens to be no scope left for application of Section 34 IPC. As the present moment, one should not lost sight of Section 149 IPC which again, like 34 IPC imposes vicarious liability upon the members of the unlawful assembly when they share common object to facilitate the crime with an exception even without having active involvement. Therefore, its presence is found totally different in its application and consideration as with regard to Section 34 IPC, wherein active involvement with premeeting of mind even at the spur of moment would be the basic ingredient. For better appreciation, Section 149 of the IPC is incorporated hereinafter:

Every member of unlawful assembly guilty of offence committed in prosecution of common object.

If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.

The aforesaid event was considered by the Constitutional Bench of the Hon''ble Apex Court in a case Willie (William) Slaney Vs. The State of Madhya Pradesh, .

This conflict does not arise in the case before charged against two brothers, William and Ronnie for the murder of Donald was u/s 302, read with section 34 of the Indian Penal Code. Ronnie was acquitted. But William was found guilty and sentenced to transportation for life. As pointed out by Lord Summer in his classic judgment in- AIR 1925 1 (Privy Council) , there is much difference in the scope and applicability of sections 34 and 149 though they have some resemblance and are to some extent overlapping.

The two sections are again compared and contrasted in Karnail Singh and Another Vs. The State of Punjab, . Section 34 does not by itself create any offence, whereas it has been held that section 149 does. In a charge u/s 34, there is active participation in the commission of the criminal act; u/s 149, the liability arises by reason of the membership of the unlawful assembly with a common object, and there may be no active participation at all in the perpetration or commission of the crime.

The overlapping arises in those cases where two or more persons commit a murder in furtherance of the common intention, but it is not possible to say which of them was responsible for the fatal injury, or whether any; one injury by itself was responsible for the death. There may also be a case where it is known that out of the assailants one in particular was responsible for the fatal injury and the others are sought to be made liable for the result owing to the common intention involved.

But whereas in this case, the appellant has been individually charged with murder and there is proof that his hand caused the injury, the fact that his brother was also sought to be made liable owing to the existence of a common intention, is neither here nor there, so far as the legality of the conviction is concerned, as there has been no prejudice by way of failure of justice.

Sections 34, 114 and 149 of the Indian Penal Code provide for criminal liability viewed from different angles as regards actual participants, accessories and men actuated by a common object or a common intention; ''and the charge is a rolled-up one involving the direct liability and the constructive liability'' without specifying who are directly liable and who are sought to be made constructively liable.

In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence; without a charge can be set aside, prejudice will have to be made out. In most of the cases of this kind, evidence is normally given from the outset as to who was primarily responsible for the act which brought about the offence and such evidence is of course relevant.

After all, in our considering whether the defect is illegal or merely irregular, we shall have to take into account several factors, such as the form and the language of the mandatory provisions, the scheme and the object to be achieved, the nature of the violation, etc. Dealing with the question whether a provision in a statute is mandatory or directory, Lord Penzance observed in -''Howard v. Bondington'', 1877-2 PD 203 (N).

There may be many provisions in Acts of Parliament which, although they are not strictly obeyed, yet do not appear to the court to be of that material importance to the subject-matter to which they refer, as that the legislature could have intended that the non-observance of them should be followed by a total failure of the whole proceedings. On the other hand, there are some provisions in respect of which the court would take an opposite view, and would feel that they are matters which must be strictly obeyed, otherwise the whole proceedings that subsequently follow must come to an end.

These words can be applied ''mutatis matandis'' to cases where there is no charge at all. The gravity of the defect will have to be considered to determine if it falls within one mistake in procedure or is it substantial and vital? The answer will depend largely on the facts and circumstances of each case.

If it is so grave that prejudice will necessarily be implied or imported, it may be described as an illegality. If the seriousness of the omission is of a lessor degree, it will be an irregularity and prejudice by way of failure of justice will have to be established.

Ambit and scope of Section 34 IPC has been identified by the Apex Court in Suresh Sakharam Nangare Vs. The State of Maharashtra, .

Since the conviction of the appellant is based only with the aid of Section 34 IPC, it is useful to refer the same:

Acts done by several persons in furtherance of common intention.-When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

A reading of the above provision makes it clear that to apply Section 34, apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of the accused in the commission of an offence. It further makes clear that if common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked. In other words, it requires a prearranged plan and presupposes prior concert, therefore, there must be prior meeting of minds.

Now reverting back to present case, after having a charge u/s 148 IPC side by side application of Section 34 IPC to aid supplement major Section of 302 IPC, made the situation more confused. At one stage by having application of Section 148, the assembly has been identified as well as classified as an unlawful assembly having unlawful common object and during course thereof stood armed with deadly weapon, side by side the appellant have also been identified to have actively participated during commission of crime sharing common intention.

For this purpose, when the materials collected during course of investigation, and having incorporated in the case diary have been gone through, it is abundantly clear that no way support applicability of Section 34 of the IPC rather take care about Section 149 IPC. In likewise manner, the prosecution had laid evidence during course of trial attracting ingredients of Section 149 IPC in stead of Section 34 IPC. It has found further cemented when the learned trial court had charged and convicted the appellant u/s 148 of the IPC. Therefore, the finding of the trial court convicting the appellant u/s 302 IPC with the aid of Section 34 IPC itself incarcerates.

There is no controversy with regard to the fact that conviction could be recorded vice-versa, that means to say even in absence of charged u/s 149 IPC, the accused could be convicted in case there happens to be assemblage of more than five persons possessing unlawful common object as has been held in Nethala Pothuraju and others Vs. State of Andhra Pradesh, . However while accepting so, the basic concept of proposition of law should not be over sighted to the effect that accused should not feel prejudiced by such action. The charge was there, allegation was there, evidence was laid in his presence so whatever acquisition against him was at the side of prosecution, the accused was already perceiving the same stage by stage, even then whether during course of alteration of conviction, right of accused to fair trial, a basic ingredient of Article 21 of the Constitution, is found to be encroached. That means to say, by having such alteration, accused found himself deprived of theme of fair trial.

I would not have opined like so, had I not minutely gone through the statement recorded, in terms of Section 313 Cr.P.C. of the accused. As per Section 313(1) Cr.P.C. it is mandatory for the court to put all kinds of incriminating material having on record brought by the prosecution against the accused, before the accused so that the accused should know about the same and if he so desires, may explain the same. In a case of Mannu Sao Vs. State of Bihar, it has been held:

Let us examine the essential features of this Section 313 Cr.P.C. and the principles of law as enunciated by judgments, which are the guiding factors for proper application and consequences which shall flow from the provisions of Section 313 of the Code.

As already noticed, the object of recording the statement of the accused u/s 313 of the Code is to put all incriminating evidence against the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also to permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the court and besides ensuring the compliance therewith the court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simpliciter denial or in the alternative to explain his version and reasons for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the court and the accused and to put to the accused every important incriminating piece of evidence and grant him an opportunity to answer and explain. Once such a statement is recorded, the next question that has to be considered by the court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence.

The statement of the accused can be used to test the veracity of the exculpatory nature of the admission, if any, made by the accused. It can be taken into consideration in any enquiry or trial but still it is not strictly evidence in the case. The provisions of Section 313(4) explicitly provides that the answers given by the accused may be taken into consideration in such enquiry or trial and put in evidence against the accused in any other enquiry or trial for any other offence for which such answers may tend to show he has committed. In other words, the use is permissible as per the provisions of the Code but has its own limitations. The courts may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution, however, such statements made under this section should not be considered in isolation but in conjunction with evidence adduced by the prosecution.

From the statement having on the record, it is found that all the incriminating materials visualizing from the record with regard to satisfying ingredients of Section 149 IPC have not been confronted to the accused and on account there of, if conviction as inflicted is analyzed with aid of Section 149 IPC, it will certainly exhale the fragrance of fair trial. To retain the conduit of fair trial no other option is advisable save and except having the matter remitted to the lower court. From the LC record it is further apparent that learned lower court was very much confused and that happens to be reason behind that relevant materials could not be confronted with the accused at the stage of 313 IPC. The nature of question so put forward clearly suggest that the learned lower court was lour large in between ingredients of Section 34 as well as 149 IPC on account of presence of charge u/s 148 IPC. The ultimate result, in my view, having erroneous approach at that stage could not justify its adherence.

The effect of error, irregularity, omission, misjoinder of charge has been taken into account by the Apex Court in Sanichar Sahni Vs. The State of Bihar, and after discussing and considering earlier judgments it has been concluded under Para-27.

Therefore,.........unless the convict is able to establish that defect in framing the charges has caused real prejudice to him and that he was not informed as to what was the real case against him and that he could not defend himself properly, no interference is required on mere technicalities. Conviction order in fact is to be tested on the touchstone of prejudice theory.

Presence of Section 464 as well as 465 Cr.P.C. dealing with the issue of error, omission, irregularity, misjoinder along with the theme of prejudice theory has been considered by the Apex Court in a case Darbara Singh Vs. State of Punjab, and culled in following way.

The defect in framing of the charges must be so serious that it cannot be covered under Sections 464/465 CrPC, which provide that, an order of sentence or conviction shall not be deemed to be invalid only on the ground that no charge was framed, or that there was some irregularity or omission or misjoinder of charges, unless the court comes to the conclusion that there was also, as a consequence, a failure of justice. In determining whether any error, omission or irregularity in framing the relevant charges, has led to a failure of justice, the court must have regard to whether an objection could have been raised at an earlier stage during the proceedings or not. While judging the question of prejudice or guilt, the court must bear in mind that every accused has a right to a fair trial, where he is aware of what he is being tried for and where the facts sought to be established against him, are explained to him fairly and clearly, and further, where he is given a full and fair chance to defend himself against the said charge(s).

"Failure of justice" is an extremely pliable or facile expression, which can be made to fit into any situation in any case. The court must endeavour to find the truth. There would be "failure of justice"; not only by unjust conviction, but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and also safeguarded, but they should not be overemphasised to the extent of forgetting that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in respect of the protections available to him under the Indian criminal jurisprudence. "Prejudice" is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial, and not with respect to matters falling outside their scope. Once the accused is able to show that there has been serious prejudice caused to him, with respect to either of these aspects, and that the same has defeated the rights available to him under criminal jurisprudence, then the accused can seek benefit under the orders of the court. (Vide Rafiq Ahmed @ Rafi Vs. State of U.P., ; Rattiram and Others Vs. State of M.P., and Bhimanna Vs. State of Karnataka, .)

In Bhimanna Vs. State of Karnataka, it has been held:

Further, the defect must be so serious that it cannot be covered under Sections 464/465 CrPC, which provide that, an order of sentence or conviction shall not be deemed to be invalid only on the ground that no charge was framed, or that there was some irregularity or omission or misjoinder of charges, unless the court comes to the conclusion that there was also, as a consequence, a failure of justice. In determining whether any error, omission or irregularity in framing the charges has led to a failure of justice, this Court must have regard to whether an objection could have been raised at an earlier stage during the proceedings or not. While judging the question of prejudice or guilt, the court must bear in mind that every accused has a right to a fair trial, where he is aware of what he is being tried for and where the facts sought to be established against him, are explained to him fairly and clearly, and further, where he is given a full and fair chance to defend himself against the said charge(s).

In Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577 this Court explained the meaning of the phrase "failure of justice" observing that the superior court must examine whether the issue raised regarding failure of justice is really a failure of justice or whether it is only a camouflage. The court must further examine whether the said aspect is of such a nature, that non-explanation of it has contributed to penalising an individual, and if the same is true then the court may say, that since he was not given an opportunity to explain such aspect, there was "failure of justice" on account of non-compliance with the principles of natural justice. The expression "failure of justice" is an extremely pliable or facile an expression which can be made to fit into any situation of a case.

The court must endeavour to find the truth. There would be "failure of justice" not only by unjust conviction but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and safeguarded but they should not be overemphasised to the extent of forgetting that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in the protections available to him under the Indian criminal jurisprudence. "Prejudice", is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial and not matters falling beyond their scope. Once the accused is able to show that there has been serious prejudice caused to him with respect to either of these aspects, and that the same has defeated the rights available to him under jurisprudence, then the accused can seek benefit under the orders of the court. (Vide Nageshwar Shri Krishna Ghobe Vs. State of Maharashtra, , State by Police Inspector Vs. Sri T. Venkatesh Murthy, , Rafiq Ahmed @ Rafi Vs. State of U.P., and Rattiram and Others Vs. State of M.P., )

At the present juncture, the intervening period has also to be noted down. From the record it transpires that the occurrence is of the year 1985 and at least twenty eight year have passed to sail up to this stage. Speedy trial happens to be back bone of the criminal trial simultaneously it should be fair trial. Delay should not be allowed to over shadow the soul of criminal prosecution by having fair trial. Delay cannot be allowed to sterile criminal trial. Delay in its legal as well as logical meaning has been taken into account by the Apex Court after considering all earlier decisions along with power of appellate court prescribed u/s 386 Cr.P.C. and ultimately dormoused the same. In Mohd. Hussain @ Julfikar Ali Vs. The State (Govt. of NCT) Delhi, it has been held:-

"Speedy trial" and "fair trial" to a person accused of a crime are integral part of Article 21. There is, however, qualitative difference between the right to speedy trial and the accused''s right of fair trial. Unlike the accused''s right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances. Each case of delay in conclusion of a criminal trial has to be seen in the facts and circumstances of such case. Mere lapse of several years since the commencement of prosecution by itself may not justify the discontinuance of prosecution or dismissal of indictment. The factors concerning the accused''s right to speedy trial have to be weighed vis-�-vis the impact of the crime on society and the confidence of the people in judicial system. Speedy trial secures rights to an accused but it does not preclude the rights of public justice. The nature and gravity of crime, persons involved, social impact and societal needs must be weighed along with the right of the accused to speedy trial and if the balance tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the right of the accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end. These principles must apply as well when the appeal court is confronted with the question whether or not retrial of an accused should be ordered.

The appellate court hearing a criminal appeal from a judgment of conviction has power to order the retrial of the accused u/s 386 of the Code. That is clear from the bare language of Section 386(6). Though such power exists, it should not be exercised in a routine manner. A de novo trial or retrial of the accused should be ordered by the appellate court in exceptional and rare cases and only when in the opinion of the appellate court such course becomes indispensable to avert failure of justice. Surely this power cannot be used to allow the prosecution to improve upon its case or fill up the lacuna. A retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice. Obviously, the exercise of power of retrial u/s 386(6) of the Code, will depend on the facts and circumstances of each case for which no straitjacket formula can be formulated but the appeal court must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seek protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked.

We have to consider now, whether the matter requires to be remanded for a de novo trial in the facts and the circumstances of the present case. The incident is of 1997. It occurred in a public transport bus when that bus was carrying passengers and stopped at a bus-stand. The moment the bus stopped an explosion took place inside the bus that ultimately resulted in death of four persons and injury to twenty-four persons. The nature of the incident and the circumstances in which it occurred speak volume about the very grave nature of offence. As a matter of fact, the appellant has been charged for the offences under Sections 302/307 IPC and Section 3 and, in the alternative, Section 4(b) of the ES Act. It is true that the appellant has been in jail since 9-3-1998 and it is more than 14 years since he was arrested and he has passed through mental agony of death sentence and the retrial at this distance of time shall prolong the culmination of the criminal case but the question is whether these factors are sufficient for the appellant''s acquittal and dismissal of indictment. We think not.

It cannot be ignored that the offences with which the appellant has been charged are of very serious nature and if the prosecution succeeds and the appellant is convicted u/s 302 IPC on retrial, the sentence could be death or life imprisonment. Section 302 IPC authorises the court to punish the offender of murder with death or life imprisonment. Gravity of the offences and the criminality with which the appellant is charged are important factors that need to be kept in mind, though it is a fact that in the first instance the accused has been denied due process. While having due consideration to the appellant''s right, the nature of the offence and its gravity, the impact of crime on the society, more particularly the crime that has shaken the public and resulted in death of four persons in a public transport bus cannot be ignored and overlooked. It is desirable that punishment should follow offence as closely as possible. In an extremely serious criminal case of the exceptional nature like the present one, it would occasion in failure of justice if the prosecution is not taken to the logical conclusion. Justice is supreme. The retrial of the appellant, in our opinion, in the facts and circumstances, is indispensable. It is imperative that justice is secured after providing the appellant with the legal practitioner if he does not engage a lawyer of his choice.

As such, the judgment of conviction and sentence recorded by the learned lower is set aside. The matter is remitted back to the learned lower court to proceed afresh right at least from the stage of recording of statement of accused as provided u/s 313 of the Cr.P.C. and on ward in accordance with law. With the aforesaid modification/direction instant appeal is disposed of. Bail bond of all the appellants are hereby cancelled with a direction to surrender before the learned lower court with a prayer of bail if so advised and the learned lower court will consider the same in accordance with law.

Mihir Kumar Jha, J.

I had the advantage of going through the judgment prepared by my learned brother. I however, with great respect to him have not been able to persuade myself to agree with the reasoning and the conclusion arrived by him and as such, I am recording my dissenting judgment.

There can be no two views in law that in any criminal trial, framing of charge is the most significant event and if the charges are not framed properly, it may vitiate the trial. In the present case, when the trial court had framed charges against the appellants u/s 302/34 I.P.C. without even noticing the allegation much less confronting them to the accused persons as with regard to the formation of unlawful assembly for committing the murder of the deceased Rajendra Mahto, a serious lacuna was created by the trial court, inasmuch as, the charge u/s 302/149 of the I.P.C. though clearly made from the allegations in F.I.R. was not framed. The trial court in fact had framed the charge u/s 302/34 I.P.C. as would be evidenced from the following extract of the order dated 16.7.1986 framing charge against the appellants.

I N.N. Sinha, Sessions Judge, Saharsa hereby charge you as follows:-

Yogendra Choudhary, 2. Rago Chaudhary, 3. Upendra Choudhary, 4. Maheshwar Chaudhary, 5. Sachidanand Chaudhary, 6. Lalo Choudhary (Lallo Choudhary), 7. Debo Chaudhary

Firstly.- That you, on or about the 18th day of June 1985 at village Kashnagar Lokna P.S. Sonbarsa, District Saharsa, committed murder by intentionally and knowingly causing the death of Rajendra Mehta in furtherance of the common intention.

And thereby committed an offence Punishable u/s 302/34 of the Indian Penal Code and within my cognizance.

Secondly.- That you, on or about the same day of at same place were member of an unlawful assembly and did in prosecution of the common object to cause the death of Rajendra Mehta, commit an offence of rioting and at that time you were armed with Bhala, Tengari and other deadly weapons and thereby committed an offence punishable u/s 148 of the Indian Penal Code, and within my cognizance.

And I hereby direct that you be tried by me on the said charge charges read over and explained with accused in Hindi to which they pleaded not guilty and claimed to be tried.

Sd./- Sessions Judge

Date this 16th day of July 1986

Having regard to the aforesaid charge and the material on record, I will have no difficulty in holding that the trial court had committed a gross error in not framing the charge u/s 302/149 I.P.C. and thus it was quite easy for me to take the same view as has been taken by my learned brother that retrial from the stage of framing of charge would be necessary. I, however, having found that the occurrence had taken place nearly 29 years back on 18.6.1985 and the appeal has remained pending before this Court for nearly 24 years, am not inclined to direct for retrial in view of law laid down by the Apex Court in the case of S. Guin and Others Vs. Grindlays Bank Ltd., wherein it was held as follows;-

After going through the judgment of the magistrate and of the High Court we feel that whatever might have been the error committed by the Magistrate, in the circumstances of the case, it was not just and proper for the High Court to have remanded the case for fresh trial, when the order of acquittal had been passed nearly six years before the judgment of the High Court. The pendency of the criminal appeal for six years before the High Court is itself a regrettable feature of this case. In addition to it, the order directing retrial has result in serious prejudice to the appellants. We are of the view that having regard to the nature of the acts alleged to have been committed by the appellants and other attendant circumstances, this was a case in which the High Court should have directed the dropping of the proceedings in exercise of its inherent powers u/s 482, Criminal Procedure Code even if for some reason it came to the conclusion that the acquittal was wrong. A fresh trial nearly seven years after the alleged incident is bound to result in harassment and abuse of judicial process.--------

For taking such a view that retrial after almost three decades would itself negate the concept of speedy trial and further would lead to failure of justice as explained by the Apex Court in the case of Rattiram and Others Vs. State of M.P., , this Court has minutely perused the evidence on record which conclusively demonstrate the basic inherent infirmities in the prosecution case going the root of the matter and thus would make little difference even if now the charge is altered in course of retrial by substituting it u/s 302/149 I.P.C. in place of Section 302/34 I.P.C.

Ms. Fauzia Shakil, learned counsel for the appellants had also correctly laid stress on the aspect that in the present case, the First Information Report is itself not only wholly unreliable and unauthentic but is also hit by the provision of Section 162 Cr.P.C., inasmuch as, the alleged First Information Report as contained in Exbt.-2 is not the earliest version of the occurrence to the police on which it had allegedly rolled into action. According to the learned counsel for the appellants, the police was already giving information of the alleged occurrence which had taken place at 11 PM on 18.6.1985 within 45 minutes wherein the informant P.W. 6 had gone to Kashnagar Police Out Post and had disclosed the facts which had constituted the ingredient of cognizable offence and on receipt of which, the Kashnagar police had also rolled into action.

I would find merit in her such submission for more than one reason. It is beyond controversy and in fact stand admitted from the evidence of P.W. 6, the informant and P.W. 8 the investigating officer that the earliest information of the occurrence was given by the informant at Kashnagar police station out post at 11.45 PM in the night of 18.6.1985 for which Sanha Entry No. 213 was recorded in the station diary in the following words:-

The aforesaid station diary has been proven as Exbt.-A/2 and its authenticity is not in question. A bare reading of the aforesaid station diary would go to show that the informant had not only stated about the commission of cognizable offence as with regard to dragging out the son Rajendra Mehta, the deceased from his house but also an apprehension of his being murdered. In fact, all other ingredients of the First Information Report was fulfilled by this station diary entry and, therefore, if the informant did not name any of the assailants whom he had already identified as per his later First Information Report and in his earliest version had only said that unknown and unnamed villagers had dragged away his son from his house and could have murdered him, two things become very clear, namely, P.W. 6 the informant had not identified any person who had taken away his son or even had assaulted the informant by lathi. Secondly, at that point of time i.e. at 11.45 PM, his son was not murdered and, therefore, he had sought police assistance for saving his son. Had the informant already witnessed the entire occurrence as has been narrated him on the next day at 9 AM while giving his alleged First Information Report at Sonbarsa police station, there was no need for him to seek police assistance and, therefore, this Sanha Entry would also put a question mark on the credibility of the informant of his being even an eyewitness at all to the alleged occurrence.

It is not that the said Sanha Entry had remained unattended by the police at Kashnagar out post, inasmuch as, when the Investigating Officer of this case after recording the First Information Report at 9 AM on 19.6.1985 had taken up the investigation and had gone to the place of occurrence, he had found the police already present over there. This is evident from the cross-examination wherein in paragraph no. 9, he had stated as follows:-

This part of the admission on the part of the investigating officer regarding presence of police coupled with the fact that in the station diary entry itself, the presence regarding the Sanha, namely, Chandeshwar Singh, the police constable, had immediately left for the place of occurrence with the police force along with the informant by itself would pose a serious question mark as with regard to giving the later detailed statement by the informant P.W. 6 in Sonbarsa police station at 9 AM on 19.6.1985 wherein not only the informant had named the assailants but also had given the detailed manner of occurrence including the assault on his son as well as on his own person.

This fact relating to the arrival of Kashnagar police at the place of occurrence after recording of Sanha is also clearly admitted by P.W. 1 in paragraph no. 11 of his cross-examination as also by P.W. 4 in paragraph no. 9 of his cross-examination wherein they had not only stated that the informant P.W. 6 had gone to the Kashnagar police out post but also accepted that the police force from Kashnagar outpost had arrived at the place of occurrence much earlier to the arrival of Investigating Officer (P.W. 9).

Learned APP also was not in a position to dislodge the recording of the aforesaid Sanha Exbt.-A/2 which stands proved by examination of three defence witnesses all of them being the police officials, namely, D.W. 1 Raghav Chandra Rai, D.W. 2 Md. Swev Rizvi, the then in-charge of Kashnagar police station and D.W. 3 Chandra Bhushan Jha. She, however, had submitted that in absence of signature of the P.W. 6 on the said Sanha entry, it could not be said that whatever was recorded by the police constable Chandeshwar Singh in Sanha was correct. She has also submitted that when the defence did not examine Chandeshwar Singh, the author of the Sanah entry (Exbt. A/2), the same would not inspire confidence.

In the considered opinion of this Court, the provision made u/s 154 Cr.P.C. do not necessarily in all cases require signature of person giving information in order to treat the same as a First Information Report. Once a formal First Information Report is recorded in the police station, the maker of such oral statement has to put his signature but if such statement has been orally given and reduced into station diary entry, the same cannot be held to be non-admissible in evidence only because the P.W. 6, the maker of such oral statement before the Kashnagar O.P. had not put his signature in the station diary entry. As a matter of fact, the station diary entry is a record of the police for maintaining hour to hour events taking place at the police station.

On perusal of the station diary entry of Kashnagar Police Station, I would find it to be properly maintained, inasmuch as, the entries was made at 8 AM, 12 Noon, 2 PM, 4 PM, 6 PM, 10 PM and 11.45 PM and again at 6 AM on 19.6.1985 wherein Chandeshwar Singh, a constable, upon return to the police out post had written that the dead body of the deceased Rajendra Mehta was kept under guard of the armed force and he had sent the informant as also Chaukidar Deo Narayan Paswan to report the matter to Sonbarsha police station for necessary further action. In view of above aforesaid clear evidence as with regard to the informant disclosing to the nearest police out post taking place in the night within 45 minutes of his son being allegedly taken away by unknown villagers, a question would arise as to whether the subsequent detailed version as disclosed in the First Information Report recorded by the office-in-charge P.W. 8 at Sonbarsha police station could be actually treated as a First Information Report.

By now, it is well settled that if an information given to the police even on telephone which is not cryptic and on the basis of that information, the police is prima facie satisfied about the commission of a cognizable offence and the police proceeds from the police station after recoding such information to investigate such offence, then any statement made by any person in respect of the said offence including about the participants shall be deemed to be statement made by a person to the police officer in course of investigation covered by Section 162 of the Cr.P.C. Reference in this connection may be usefully made to the judgment of the Apex Court in the case of Damodar Vs. State of Rajasthan, .

It is here that the evidence of P.W. 6, the informant itself throws sufficient light as with regard to his going to the Kasnagar police out post immediately after the occurrence of his son being taken away by unknown villagers. P.W. 6 who had stated in his statement before the police officer at Sonbarsa police station that in the night, he had gone to Kasnagar out post where he was advised to report the matter at Sonbarsa police station in his examination in chief, in paragraph no. 4, had stated that after the occurrence, he had gone to the Kasnagar police out post where he did not find the Sub-Inspector of Police and the constable present over there had asked him to go to the Sonbarsa police station whereafter he had returned back from the out post to his house and in the next morning, he had gone to the Sonbarsa police station where the statement was recorded. In his cross-examination, he had infact stated that:-

The aforesaid admission of the P.W. 6 completely synchronized with the station diary entry Exbt.-A/2, the only difference being that he omits the police Kasnagar out post immediately had swung into action on such information but then he had in no uncertain terms himself admitted the presence of police and Chaukidar near the dead body which again is in complete conformity with the statement of the Investigating Officer whose relevant portion of evidence in this regard has already been quoted above.

In view of the aforementioned discussions, I would proceed further to scan the evidence of all the prosecution witnesses including the informant with great care and caution because the informant at the earliest point of time having gone to the Kasnagar out post and not disclosing the name of any of the appellants or any other assailants whom he had later on in his statement at Sonbarsa police station claimed to have identified by both face and name would require an independent corroboration. For the time being, I am not in a position to accept that P.W. 6 is an eyewitness to the occurrence in the manner he had given the detailed account either in his statement before the Officer-in-charge of the Sonbarsa police station on 19.6.1985 at 9 AM or even in the court.

The prosecution in fact has also not proven the injury on the informant, inasmuch as, the doctor who had allegedly examined the informant after recording of the First Information Report by Sonbarsa police station has not been examined. The mystery gets even deeper because the Investigating Officer was later on told at the time of inspection of the place of occurrence by the wife of the informant that she too had received injury in the hands of the assailants but in her case, even injury was not prepared and when the attention of the Investigating Officer over this aspect was invited, he had given no explanation whatsoever for not even noting down the injury of Surji Devi, the wife of the informant and in this regard, his evidence in the court was as follows:-

It has to be noted that the wife of the informant who was not even named in the First Information Report as a eyewitness or to have received injury in the hands of the assailants while her son was being dragged away has been examined as P.W. 5 but surprisingly even when the prosecution had produced her as a witness, she was tendered and thus leaving her evidence of no use and help.

In fact, as per the First Information Report recorded at Sonbarsa police station, the case of the informant was that he alone was sleeping with his son, Rajendra Mehta (deceased) in the outer Varandah of his house when the appellants along with Ram Baran Choudhary and Satyadeo Chaudhary having arrived over there had indiscriminately assaulted and taken away his son and when he also had followed them, he too was assaulted by Ram Baran Choudhary with axe (Tangari). It has to be however kept in mind that this part of the assault at Varanda or from the house of the informant has not at all been found to be substantiated by the Investigating Officer at the time of his inspection of the place of occurrence. In paragraph no. 13 on his cross-examination, the Investigating Officer in this regard had stated as follows:-

A question, therefore, arise as to whether there are any eyewitness to the occurrence except the informant P.W. 6 who could lend support to the prosecution case?

The prosecution in this case in fact has examined in all nine witnesses out of whom P.W. 5 Surji Devi, wife of the informant and P.W. 7 Jatti Devi the wife of the deceased have been tendered and, therefore, when the informant himself had not named them as an eyewitness to the occurrence, their being merely produced by way of tendered witness is of no help. P.W. 2 Dhanik Lal Mehta the labourer of the informant who also not named by the informant in the First Information Report much less as eyewitness. Similarly, P.W. 3 Jay Nandan Prasad Mehta @ Deonandan Prasad Mehta is also not named as an eyewitness by the informant in the First Information Report lodged at Sonbarsa police station which leaves the prosecution with two First Information Report named eyewitnesses, namely, P.W. 1 Darpi Mehta and P.W. 4 Guni Mehta.

If, however, P.W. 1 Darpi Mehta is to be believed, only three persons had reached at the place of occurrence including himself as would be evident from paragraph no. 7 of the cross-examination wherein he had named himself Birchi Mehta (not examined) and Dhanik Lal Mehta (P.W. 2). P.W. 1, therefore, having eliminated the presence of P.W. 4 who was named by the informant in his First Information Report as an eyewitness has stood fully exposed when he has claimed to have identified the appellants in torch light and when the police officer has also contradicted that P.W. 1 had not produced any torch before him nor had in his earliest statement before police had disclosed about lantern, his being an eyewitness and identifying these appellants becomes doubtful specially when he had categorically stated that he had also not seen the accused persons arriving over the Varanda of the house of the informant. As a matter of fact, the evidence of P.W. 1 who is also a labourer of P.W. 6 and has his separate house where he had claimed to be sleeping at the time of occurrence will leave nothing for speculation that he is not an eyewitness to the occurrence.

That would leave me to examine the evidence P.W. 4 Guni Mehta who is the brother of the informant and though he has been named in the First Information Report as an eyewitness but his presence has been eliminated by P.W. 1, the other eyewitness. Moreover, P.W. 4 has also claimed identification of the appellants in a torch held by him in his hand which he had also claimed to have given to the police before it was again returned back to him by the police. His such claim of being an eyewitness however becomes doubtful, inasmuch as, the Investigating Officer had categorically denied P.W. 4 to have either handed over a torch to him or even claimed to have identified the assailants including the appellants in torch light.

What makes the status of P.W. 4 as an eyewitness further doubtful is that he has stated that the deceased was severely assaulted while he was sleeping on Varanda of the informant and as a result of such assault, his three teeth were completely uprooted but as noted above, the Investigating Officer had found no trace of such assault taking place at Varanda. Moreover, he too had supported not only the informant''s going to Kasnagar police outpost but also arrival of the Kasnagar police at the place of occurrence. Thus, his following statement in cross-examination:-

would leave nothing more for this Court but to hold that P.W. 4 is also not a truthful witness much less an eyewitness.

The last knell in the coffin in this case has been given by the Investigating Officer P.W. 8 himself inasmuch as when the Investigating Officer was already informed by the informant in the First Information Report itself that the informant had gone to Kashnagar police outpost immediately after the occurrence and on being advised by the constable at the police outpost, he had come to the Sonbarsa police station for recording the First Information Report only next morning his conduct of not even questioning the police personnel of Kashnagar outpost about the alleged information/version given by the informant would raise a serious question on a fair and impartial investigation.

What makes the conduct of the Investigating Officer further reprehensible is that when he reached at the place of occurrence at about 11 AM on 19.6.1985 after recording of the First Information Report at about 9 AM on 19.6.1985 at the police station and had prepared the inquest report at 11.30 AM, he did not make any enquiry from the police personnel of Kashnagar outpost who were already present while guarding the dead body of the deceased. Surprisingly, the police officer had also omitted to examine Kamal Mehta who even as per the Informant was the main person to the genesis of occurrence, namely, alleged rape of the wife of Upendra Chaudhary leading to outburst of anger of the appellants and its pacification by Tapsi Bhagat, Hajari Rai, Suresh Pandit, Misir Pandit and Kamal Mehta. Para-8 of his cross-examination as with regard to non-examination by him of Kamal Mehta, Tapsi Bhagat, Suresh Pandit and Misir Pandit with an explanation that he did not find it necessary to record their statement will only go to show that the story of rape of the wife of Upendra Chaudhry being root cause and genesis of the occurrence was left totally unattended.

The failure on the part of the Investigating Officer to seize the lantern which he is said to have noticed in the house of the informant as admitted by him in paragraph no. 10 would further go to show that he had also failed to conduct the investigation in an efficient manner. As a matter of fact, when he did not examine even the wife of the deceased namely Jatti Devi in course of investigation, it has necessarily to be held that most of the relevant persons including the police personnel of Kasnagar outpost who could have unfolded the prosecution case have been left over only on account of the faulty investigation conducted by the Investigating Officer.

It is this background that this Court will have to look into the defence case of the appellants of their being falsely implicated which is based on documentary evidence. The defence through D.W. 3 had exhibited not only the crucial Sanha Entry Exbt.-A/2 but also proved the Fardbeyan, the formal first information and charge-sheet of Sonbarsa P.S. Case No. 62 of 1981 and Sonbarsa P.S. Case No. 16 of 1985 and also the judgment of Sessions Trial No. 111 of 1986 which would go to show that the appellant Yogendra Choudhary and Rajo Choudhary were witnesses against Parmanand Mehta, Parmod Mehta and others and it is out of this group rivalry that the appellants whose names were not even mentioned in the earliest version of the Informant at Kasnagar police outpost were later on introduced in a well thought over First Information Report given at Sonbarsa police station after almost ten hours of the occurrence and upon meeting of minds. Enmity between the party in fact his admitted and, therefore, the naming of the appellants and two others by the informant at a subsequent stage in course of investigation would not only make the informant unreliable but even the evidence of his two eyewitnesses, namely, P.W. 1 and P.W. 4 also wholly unsafe for convicting the appellants.

To top it all, when the appellants were also not confronted with all the material circumstances emanating from the evidence u/s 313 Cr.P.C., an aspect which has been dealt and explained by my learned brother in his judgment at length, its benefit has to go to the appellants.

Thus, for the reasons recorded above, I would hold that the prosecution has failed to prove its case beyond reasonable doubt against any of the appellants.

I would, accordingly, allow this appeal and set aside the impugned judgment of their conviction and sentence.

The appellants are already on bail and as such, they would now stand also absolved/discharged of liabilities of their respective bail bonds.

In view of our difference of opinion let the records of this appeal be placed before the Hon''ble the Chief Justice for its being placed before an appropriate Bench.