Ramesh Singh and Others etc. etc. vs The State of Bihar

B.K. Jha, J.—All the three appeals arise out of the common judgment of conviction and sentence passed by the learned Additional Sessions Judge 9th, Patna on 10.9.1987 in Sessions Trial No. 195/81 under Sections 302 and 302/149 of the I.P.C. and Section 27 of the Arms Act so, they were heard together and are being disposed of by this common judgment.

In Cr. Appeal No. 541 of 1987 the Appellants, Ashwini Kumar. Pankaj Singh and Indra Deo Singh, have been convicted u/s 302 of the I.P.C. and sentenced to rigorous imprisonment for life. In Cr. Appeal No. 481 of 1987 Laxman Singh and in Cr. Appeal No. 460 of 1987 Appellants, Ramesh Singh, Umesh Singh, Sukhari Singh @ Dudheshwar Prasad Singh and Brajendra Kumar Sinha (sic) Yogendra Singh, have been convicted under Sections 302/149 of I.P.C. and sentenced to undergo rigorous imprisonment for life. Further five Appellants Ashwini Kumar, Sukharu @ Dudheshwar Prasad Singh, Pankaj Singh, Indra Deo Singh and Yogia @ Brajendra Singh, have been convicted u/s 27 of the Arms Act and sentenced to rigorous imprisonment for three years. However, the sentences awarded to the five Appellants have been ordered to run concurrently.

The case of the prosecution is that on 14.3.1979 being Holi festival, the people of the P.O. village-Dhanauti, P.S. Massaurhi, District-Patna had collected at Mahadeo Sthan, at 3.15 P.M. for participating in Holi Songs. The Appellant Ramesh Singh snatched drum from the hands of Shailesh Singh whereupon hot altercation followed in between them. At this Birja Nand Singh @ Rajan Singh, the informant P.W. 3, and Lakhan Singh, deceased, decided to inform the police about the prevailing tense situation and so they returned to their houses for the purpose of going to the police station. Thereafter, at about 3.45 P.M., when the informant came out from his house for going to the police Station, he found Lakhan Singh proceeding ahead towards station through school road. When Lakhan Singh was at a distance of 50 yards away from the school, the accused Ashok Singh with rifle, Appellants Ashwini Kumar Singh with gun, Ramesh Singh with gun, Laxman Singh with fasuli, Umesh Singh with something in Jhola and Sukhari Singh with gun caught Lakhan Singh and got him sitted near the northern wall of the house of the Appellant, Indradeo Singh. Then the informant alongwith Deo Narain Singh went near the house of Appellant Indradeo Singh and requested the accused persons to release Lakhan Singh but of no effect. ln the mean time, the Appellant Umesh Singh threatened the informant and hurled bomb at him as a result of which he sustained injuries on his head and waist and he returned back to his house. Thereafter he alongwith his brothers, Dharmanand Singh and Shatrughan Singh went to the Massaurhi police station for lodging F.I.R. The witnesses to the occurrence, Awadh Singh and Deo Narain Singh, also accompanied them up to the police station. The Sub Inspector Girja Nand Singh of Massaurhi Police Station recorded the statement of Birja Nand Singh @ Rajan Singh, inform ant P.W. 3 on the same day, i.e. 14.3.1979 at 5.20 p.m. The informant further alleged that on account of chronic land dispute in between Lakhan and Appellant Laxman, the situation was tense in the village with a danger to the life of Lakhan Singh. The later part of the prosecution case about the murder of Lakhan Singh has emerged from the evidence of RW. 4, Mahendra Singh, P.W. 7 Bhutan Singh, P.W. 8 Ram Chandra Singh and P.W. 9 Kunti Devi.

On the basis of the statement of Brijanand Singh @ Rajan Singh, informant P.W. 3, a formal First Information Report was drawn up (Ext. 5) and a case was registered against six accused persons, namely, Ashok Singh, Ashwini Kumar Singh, Ramesh Singh, Laxman Singh, Sukhari Singh and Umesh Singh, under Sections 148, 342, 307 and 324 of the I.P.C. and 3/5 of Explosive Substance Act. The S.I., Girja Nand Singh, alongwith the Circle Officer and the police party proceeded to the P.O. Village-Dhanauti. He found the dead body of Lakhan Singh lying near the School. He prepared the inquest report of the dead body of the deceased Lakhan Singh (Ext. 6). He seized and prepared seizure list of bloodstained earth and one empty cartridge (Ext. 7). He sent the dead body of the deceased, Lakhan Singh, for postmortem examination. Dr. R.P. Srivastava, P.W. 6, conducted autopsy on the dead body of the deceased, Lakhan Singh and submitted the postmortem report (Ext. 3). The S.I., Girja Nand Singh, inspected the P.O., prepared the sketch map of the place of occurrence and recorded the statement of the witnesses. From the statement of the eye witnesses to the occurrence, the S.I, Girja Nand Singh, also found the complicity of the Appellants, Pankaj Kumar Sinha, Indradeo Singh and Yogendra @ Brijendra Singh, in the commisison of the offence alleged in this case. On completion of the investigation chargesheet was submitted against the aforesaid eight Appellants and one Ashok Singh (killed in the counter case of Sessions Trial No. 235/79) under Sections 148, 149, 342 and 302 of the I.P.C. and Section 27 of the Arms Act. Accordingly, cognizance was taken and the case of the Appellants was committed to the Court of Sessions for trial. The Appellants were put on trial before the learned Additional Sessions Judge-IX, Patna which ended in their conviction and sentence as mentioned above.

The defence or the Appellants as emerged out of the suggestions given to the prosecution witnesses, their statements recorded u/s 313 of Code of Criminal Procedure fardbeyan/ F.I.R. (Exts. C and B) of the counter Sessions Case No. 235/81 supervision note of A.S.P., Patna (Ext. A) is that they are quite innocent and have been falsely implicated in this case out of animosity of the counter case in which four persons including Ashok Singh of their side were killed by the prosecution side. According to their defence due to land dispute in between Lakhan Singh (deceased) and Laxman Singh (Appellant) the situation was tense in the village and two factions of Awadh Kurmi came into existence. Shailesh Singh belonged to the group of Lakhan Singh and the Appellant Ramesh Singh belonged to the group of Laxman Singh. When the Appellant Ramesh Singh snatched the drum from Shailesh Singh, one Raj Govind Singh a group man of Lakhan Singh, ordered to assault. On his order the group men of Lakhan Singh variously armed committed murder of Ashok Singh at the School, raided the house of Laxman Singh and committed murder of three ladies. Their further specific defence is that after the commission of murder of four persons of their side by the prosecution party they fled away and in their absence unknown persons com mitted murder of Lakhan Singh. By taking the advantage of this situation they were falsely made acoused in this case. On behalf of defence one witness, Ram Narayan Prasad was examined.

An appraisal of the F.I.R. (Ext. 5) of the present case and the F.I.R. (Ext. B) of the counter Session Case No. 235/81 revealed some admitted facts that on the alleged date of occurrence, i.e., 14.3.1979 there was an occurrence of assaults with murders on both sides. One Lakhan Singh of the prosecution side and four persons including Ashok Singh and three ladies of the Appellants side were murdered for which there was a case and counter case. The defence has also not denied the murder of Lakhan Singh, a member of the prosecution party. The only denial is their participation in the commission of his murder. The specific defence is that after the murder of four persons of the Appellants side they fled away from the P.O. village and in their absence unknown persons committed murder of Lakhan Singh, but the prosecution side encashed the situation and falsely implicated them in this case.

In the circumstance, it deems necessary to examine the evidence on record to find out, if the Appellants were responsible for the commission of murder of Lakhan Singh, as alleged by the prosecution.

At trial the prosecution examined 12 witnesses P.W. 1 is Babu Nand Singh, P.W. 2 is Shahdeo Singh, P.W. 3 is Brijnand Singh, informant, P.W. 4 is Mahendra Singh, P.W. 5 is Dharmanand Singh, P.W. 6 is the Dr. R.R Srivastava who conducted autopsy on the dead body of Lakhan Singh, P.W. 7 is Bhulan Singh, P.W. 8 is Ram Chandra Singh, P.W. 9 is Kunti Devi, the wife of the deceased Lakhan Singh, P.W. 10 is also a doctor, namely, Dr. D.D. Kalwar who examined the injuries of the injured informant Brijanand Singh. P.W. 11 is Shailesh Kumar and P.W. 12 is Ramashray Singh. Due to death of the I.O. Girjanand Singh during trial he could not be examined. Out of them P.W. 1, Babu Nand Singh and P.W. 2 Shahdeo Singh are the witnesses to the inquest report (Ext. 6) and have proved their signatures thereon (Ext. 1 and Ext. 1/1 respectively). They are also witnesses of the seizurelist and have proved their signatures thereon (Ext. 1/2 and Ext. 1/3 respectively). In cross examination they have stated that on the alleged date of occurrence three ladies and two males altogether five persons were murdered in the village. P.W. 1 has further stated that he also figured one of the accused in the counter case. P.W. 2 has further stated in his cross examination that his five cousin brothers, namely, Mahendera, Jagendra Singh, Ram Chandra Singh, Jamuna Singh and Jageshwar Singh are the accused in the counter case. P.W. 12, Ramashray Singh is a formal witness and has proved the formal F.I.R. (Ext. 5), inquest report (Ext. 6), Seizurelist (Ext. 7) and a case diary of Massaurhi P.S. Case No. 335/81 running from page No. 1 to 74 (Ext. 8) P.W. 10 is Dr. D.D. Kalwar, who examined the injured informant Brijanand Singh on 16.3.79 in the Bankipur Central Jail.

P.W. 3 Brijanand Singh, informant, and P.W. 5 Dharmanand Singh, his brother, are not the eye witness to the commission of murder of Lakhan Singh because they had left village while Lakhan Singh was in the custody of accused persons in the Khand of the Appellant Indradeo Singh. The informant has in toto supported his statement given in the F.I.R. He has proved his signature on the F.I.R. (Ext. No. 2). He has stated that after recording his statement the Officer-in-Charge examined his injuries and sent him to the hospital. The officer-in-Charge immediately proceeded for the P.O. village-Dhanauti and returned back from there at about 12/1 A.M. The Officer-in-Charge recorded his further statement and arrested him on the following day. ln areas examination his evidence in that he is one of the accused in Sessions Case No. 235/81 in which the occurrence of murder of four persons including three females and one Ashok Singh was alleged to have happened at 4 P.M. The dead body of Lakhan Singh, the accused of his case, was found lying in the north and that of Ashok Singh in the south of the Primary School. At paragraph 26 he has admitted enmity existing in between the prosecution side and the Appellant Laxman Singh due to land dispute for which there was proceeding under Sections 144 and 107 of the Code of Criminal Procedure P.W. 5, Dharmanand Singh, had also accompanied the informant to the police station and has supported his evidence. His evidence is that from the police station he returned to the village alongwith the Officer-in-Charge and found the dead body of Lakhan Singh lying below terrace of the Primary School. In cross examination he also admitted to be one of the accused of the counter case in which Ashok Singh and three females were murdered. P.W. 11 Sriailesh Kumar is also not an eye witness to the commission of the murder of Lakhan Singh. His evidence is that on 14.3.79 the people had assembled at Mahadeo Sthan for participating in the Holi songs. The accused Ashok Singh Appellant Umesh Singh, Laxman, Ashwini, Sukhari and Indradeo Singh were also present. A drum was in his hand which was snatched by the Appellant Ramesh Singh whereupon there was hot altercation. On this Lakhan and Brijanand Singh, the informant, proceeded for lodging information to the police station. Thereafter he returned back to his house. In cross examination he has stated that his father, Rajendra Singh, has also figured as ac cused in the counter case. On the following day of the occurrence he left the village and went to the house of his relation. On third day of the occurrence he gave his statement before the police on return to the village. At paragraph 4 of his cross examination he has clearly stated the he had not seen the occurrence of murder.

Now out of the remaining five witnesses, the witnesses P.W. 4, Mahendra Singh P.W. 7, Bhulan Singh, P.W. 8 Ram Chandra Singh P.W. 9 Kunti Devi, the wife of the deceased, P.W. 9 are the witnesses to the commission of murder of Lakhan Singh, P.W. 6 is Dr. R.P. Shrivastava, who held Postmortem examination on the dead body of Lakhan Singh.

P.W. 6 is Dr. R.P. Shrivastava. His evidence is that on 15.3.79 while he was posted as Tutor in F. Medicine in P.M.C.H. he conducted autopsy on the dead body of Lakhan Singh and found the following antemortem injuries on his person:

I. Circular lacerated wound 1" diameter with inverted charred margin and brain cavity deep of left temple in front of left ear directed backward and upward and towards right. Soft part underneath were lacerated and charred. There was communicating fracture of left temporal bone and the base of skull. There were lineal fracture of left temporal parietal and occipital bone of Skull 8" long. Brain along with meanings were lacerated. Multiferousing bullet was found lying on the inner table of right side of occipital bone. Seven metallic pieces were recovered from the brain tissues.

II. Almost circular lacerated wound 1/2" in diameter with inverted charred margin. Chest cavity deep on left side back of chest directed forward, upward and medially towards right.

III. Lacerated wound 1" x 1" with inverted margin and chest capacity deep on right side front of chest just upon the right nipple.

IV. Almost circular lacerated wound 1/2" in diameter into bone deep with inverted Charred margin on with three side of right arm 3" above elbow directed laterality.

V. Almost circular lacerated wound 3/4" diameter into bone deep with inverted margin on the outer side of right arm.

On the dissection, underneath injury No. 4 soft tissues were lacerated. There was communicating fracture of right arm bone. lnjury Nos. 4 and 5 were communicated with each other. 300 c.c. of blood with blood clots in right chest cavity and 100 c.c. of blood and blood clot in left chest cavity was found. Lacerated wound 1/4" x 1/4" on posterior surface on lower lobe of left lung and medial surface of left lung communicating with each other. The heart along with pericardium was lacerated wound 1/4" x 1/4" on medial surface of right lung and interior surface of upper lobe of right lung communicating with each other. Injury Nos. 2 and 3 and at the left and right lung were in one straight line the plura injury Nos. 2 and 3 and the injury of lungs were lacerated.

According to him all the above injuries were caused by firearm and the time elapsed since the death was 24 hours. He proved the post mortem report (Ext. 7). Further according to him the injuries were sufficient in the ordinary course of nature to cause death. In cross examination his evidence is that on the same day, i.e., 15.3.79 he conducted postmortem examination on the dead bodies of Ashok Singh, Sarswati Devi, Sunita Kumari daughter of Appellant, Laxman Sinigh, and Sonpan Devi.

The evidence of P.W. 4, Mahendra Singh, is that on 14.3.79 at about 3.15 P.M. while he was in his house he heard that there was some dispute over playing of drum at Mahadeo Sthan and when Lakhan was going to inform the police he was caught by the accused Ashok Singh and kept confined in the north of the house of the Appellant indradeo Singh. On this Information he went there and noticed Ashok Singh with rifle, Ashwini with rifle, Pankaj with rifle, Indradeo with rifle, Yogendra Singh with gun, Laxman with gun, Sukhari with gun, Ramesh with fasuli and Umesh with bomb, who had got Lakhan Singh sitted there. Rajan @ Girjanand Singh, P.W. 3 the informant, Deo Narain Singh and Awadh Singh were requesting Ashok Singh for avoiding any confrontation on the day of Holi festival. But the Appellant Umesh threatened and hurled a bomb at Rajan, the informant and injured him. He returned back to his house. Thereafter Ashok Singh wrapped towel round the waist of Lakhan and took him dragging up to the school. He also followed them and at the school Lakhan Singh was shot dead by the accused persons and he fled away to his house. In cross examination his evidence is that in the Sessions Case No. 235/81 he alongwith his four brothers have been arrayed as accused. At paragraph 9 of his cross examination his evidence is that out of nine accused persons some were dragging Lakhan Singh after catching hold of towel wrapped round his waist and 3/4 accused persons were pushing him from his back. He has further stated that he heard three firing sounds but had not seen the dead body of Lakhan Singh. On the same day Ashok Singh was murdered by Naxalites and his dead body was Found lying near the school (paragraph 11). The evidence of P.W. 7 Bhutan Singh is that while he was in his house, he heard about some dispute at about 4.15 P.M. at Mahadeo Sthan arid he proceeded towards that place. He noticed Lakhan Singh in the custody of accused persons near the house of Appellant Indradeo Singh. The accused Appellant Ashok, Pankaj, Ashwini and Indradeo with rifle, Yogendra Singh, Laxman and Sukhari with gun and Ramesh and Umesh with Fasuli. They took Lakhan Singh to the school and he alongwith the wife of Lakhan, Ram Chandra Singh P.W. 8 and Mahendra Singh P.W. 4, also followed them. On the Veramdah of the school the Appellant Ashwini, Pankaj and Indradeo fired from their rifle at Lakhan Singh and he fell down on the ground and died. The Officerin-Charge came and also took down his statement. In cross examination he has stated that his son also figured as one of the accused in the counter case. P.W. 8 Ram Chandra Singh has deposed that on 14.3.79 at about 3.15 P.M. he and others had assembled at Mahadeo Sthan for participating in the Holi Songs. Brijanand Singh, Lakhan Singh, Ram Chandra Singh, Shailesh, Yogendra, Ashok, Pankaj, Laxman and Sukhari were also there. There was a drum in the hands of Shailesh which was snatched away by the Appellant Ramesh whereupon there was hot altercation. Then Rajan, Brijanand Singh, the informant P.W. 3 and the deceased Lakhan decided to inform the police and they returned back to their house then he heard that when Lakhan came out of his house to inform the police station the accused persons caught him in the south of the school. On this information he went there and noticed the Appellants Yogendra with gun, Ashok with rifle, Ashwini with rifle, Pankaj with rifle, Indradeo with rifle, Umesh with bomb, Ramesh with fasuli, Laxman and Sukhari with gun catching hold of Lakhan took him to khand of Appellant Indradeo Singh. Rajan @ Brijanand Singh, the informant, Deo Narain Singh were impressing upon to avoid confrontation but in the meantime the Appellant Umesh threatened and threw a bomb at the informant and injured him. Thereafter the accused Appellants took Lakhan Singh to the school and there the Appellant Ashwini, Pankaj and Indradeo shot him dead. In cross examination he also admits to be one of the accused in counter-case in which four persons were murdered. The evidence of P.W. 9 Kunti Devi, wife of the deceased, Lakhan Singh is that due to some dispute at Mahadeo Sthan when her husband was going to lodge information with the police station he was caught by the accused persons. On receipt of the information she came out of her house and heard loud sound then she went near the house of Appellant Indradeo Singh and found her husband in the custody of the accused and was fastened by them. The Appellants Indradeo, Pankaj, Ashwini and Ashok (since killed in counter case) were armed with rifle, Yogendra Laxman and Sukhari with Banduk, Umesh with bomb and Ramesh with fasuli. She whimpered before the accused persons requested them to release him but they pushed her. Thereafter the accused persons took him dragging up to the school. She also followed them and stood by the side of Tubewell near the school. Thereafter when the accused persons took her husband on the veramdah of the school she stumbled with him and started fawning for the release of her husband but she was pushed by them. Then the Appellant Ashwini, Pankaj and Indradeo fired from their rifles at Lakhan Singh and he died. In cross examination she has admitted to have stated before the police that when she came out of her house she heard loud sound. She has also admitted to have stated before the police that her husband, Lakhan Singh was fastened by all the nine accused persons. She volenteered that on being bribed the Superintendent of Police did not correctly record her statement. She has also admitted to have named all the accused persons before the police. She has also also admitted to have stated before the police about the murder of her husband.

On the other hand, one defence witness, Ram Nagina Prasad, A.S.P., C.I.D., (D.W. 1) was examined on behalf of the Appellants, He had supervised the present case and has proved his supervision note (Ext. A). It appears from his evidence that, in course of supervision of this case, he had recorded the statement of P.W. 9, Kunti Devi, the wife of the deceased, Lakhan Singh. According to him, she had not disclosed before him about the cofinement of her deceased husband by all nine accused persons near the house of the Appellant, Indra Deo Singh. She had also not stated before him that when her husband was being taken by them she followed them and thereafter he was shot dead. His further evidence is that there was a counter case bearing No. 11(3)79. He had supervised the alleged counter case in course of which he spotted three dead bodies of females inside the house of Appellant Laxman Singh and one of male in the wheat field near the school. He also found blood on the ground in the angan of Laxman Singh and bloodstains on the door and other parts of his house. He has proved his supervision note (Ext. A). This witness has admitted in his evidence that, in course of supervision usually only a brief statement of witness is recorded and not the entire details. It shows that he recorded the statement of witness Kunti Devi, P.W. 9, in brief. In such a situation, it cannot be inferred from his evidence that P.W. 9, Kunti Devi, the wife of the deceased Lakhan Singh, had not stated before him about the occurrence with all details. This being the position the defence cannot take a favourable stock from the evidence of this witness. In addition the defence has also brought on record a certified copy of the F.I.R. (Ext. B) and of fardbeyan of the alleged counter case (Ext. C).

Thus, the evidence led at trial indicates that on account of land dispute in between the deceased, Lakhan Singh, and the Appellant, Laxman Singh, there were two groups in village and the situation was tense. The tense situation prevailing in the village blazed upon on the date of the occurrence, i.e., 14.3.1989. At Mahadeo Sthan over snatching the drum by the Appellant, Ramesh Singh, a group man of the Appellant, Laxman Singh, from the hands of Shailendra Singh, a group man of the deceased Lakhan Singh, exchange of hot words followed. At this, Brijanand Singh @ Rajan, the informant (P.W. 3), find the deceased, Lakhan Singh, decided to inform the police about the tense situation in the village and so, they came back to their house for the purpose of going to the police station. Thereafter at about 3.45 P.M. when the informant came out from his house for going to the police station he poticed Lakhan Singh proceeding ahead towards the police station through school road. When Lakhan Singh was at a distance of 50 yards, away from the school the accused Ashok Singh with rifle, the Appellant Ashwini Singh with gun, Ramesh Singh with gun, Laxman Singh with fasuli, Umesh Singh with Jhola and Sukhari Singh with gun caught Lakhan Singh and got him sitted in the khand of the Appellant Indra Deo Singh. The informant alongwith Deo Narain Singh went there and requested them to free Lakhan Singh but the same did not bring any positive result. After that the informant alongwith his brother, Dharmanand Singh (P.W. 5), Shatrughan Singh went to the Mashaurhi Police Station and lodged F.I.R. (Ext. 5). The remaining part of the prosecution case about the murder of Lakhan Singh has come out from the evidence of P.W. 4, Mahendra singh, P.W. 7, Bhulan Singh, P.W. 8, Ram Chandra Singh and P.W. 9, Kunti Devi. Their evidence reflects that when they went near the house of the Appellant, Indradeo Singh, they noticed Lakhan Singh in the custody of accused persons and they were armed with the weapons as indicated above. P.W. 9, Kunti Devi, the wife of the deceased Lakhan Singh, also went there and requested them to set her husband free but they pushed her. Thereafter the accused persons took him dragging up to the school. She also followed them and stood by the side of Tubewell near the school. When her husband was taken on the veramdah of the school, she stumbled with him and started fawning for his release but they again pushed her and Lakhan Singh was shot dead. The evidence of P.W. 7, Bhulan Singh, P.W. 8, Ram Chandra Singh and P.W. 9, Kunti Devi, further suggests that the Appellant Ashwini Kumar Singh, Pankaj Kumar Sinha and Indradeo Singh fired from their rifle at Lakhan Singh and he died. From the medical evidence of P.W. 6, Dr. R.P. Shrivastava, it is conclusively established that the deceased Lakhan Singh died of fire arm injury which were sufficient to cause death in ordinary course of nature. The post mortem examination was held on 15.3.89 on 10.45 A.M. and the occurrence is alleged to have taken place on 14.3.89 after 4 P.M. So, the time elapsed between death and post mortem examination held at 22.45 hours and according to the Doctor, it was within 24 hours. Thus, the opinion of the doctor is consistent with the prosecution case. The statements of material witnesses have been fully corroborated by the medical evidence and their detailed cross examination did not reflect any vital contradiction to touch the core of the prosecution case. Thus, we have no reason to discard their testimony and disbelieve the prosecution version of the occurrence.

Learned Counsel for the Appellants contended that the Court below failed to appreciate material contradiction in the evidence of the witnesses in respect of the genesis, manner, place and the time of the occurrence and wrongly convicted them.

Learned Counsel could not from the evidence of the eye witness referred to any part of their evidence to indicate that the evidence is such on which reliance could not be placed on any of the grounds referred by him. It was further contended on behalf of the Appellants that the prosecution has failed to explain the murder of four persons on the Appellants'' side, so, the prosecution witness should be disbelieved.

Admittedly it has been established by the prosecution witness that on the day of the occurrence four persons; one male and three females, were murdered on the Appellants'' side. P.W. 6, Dr. R.P. Shrivastava, had also conducted autopsy on the dead bodies of all the four deceased persons. His evidence suggests that they were murdered approximately at the same time. But it is not proved from the ocular evidence that the murder of the Appellants'' side had taken place in the same occurrence. Even if, it is taken that murder on the Appellants'' side had taken place in the same occurrence, the prosecution was not bound to explain it. In this context, I refer the case of Hare Krishna Singh and Others Vs. State of Bihar, It has been held that:

The obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable that the prosecution has to explain the injuries sustained by the accused in the same occurrence. The burden of proving the guilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything in defence. The prosecution has to prove the guilt of the accused beyond all reasonable doubts. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of the guilt of the accused beyond reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not aries, When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused.

The same principle will apply in a case of murder of the accused side.

On behalf of the Appellant it was again contended that the Appellants, Ramesh Singh, Umesh Singh, Sukhari Singh @ Dudheshwar Prasad Singh, Brajendra Singh @ Brajendra Kumar Singh @ Yogendra Singh and Laxman Singh, have been wrongly convicted under Sections 302/149 of the I.P.C. because no specific allegation or overt act has been alleged against any of them.

It is apparent from the evidence of the witnesses on occurrence that Lakhan Singh was first kept confined in the khand of Appellant, Indradeo Singh. They were armed with firearms, bombs and fasuli. Thereafter Lakhan Singh was taken dragging up to the school where the Appellants Ashwini Kumar, Pankaj Singh and Indradeo Singh fired from their rifles at him and he died. In this connection, a reference may be made to the case of Rameshwar Dayal and Ors. v. State of Madhya Pradesh and Anr. reported in AIR 2002 SCW 396 wherein it has been held that-

The provisions of Section 149, IPC, will be attracted whenever any offence is found committed by any member of an unlawful assembly in prosecution of the common object of that assembly or when the members of that assembly knew to be likely to be committed in prosecution of that object, so that every person, who at the time of committing of that offence is a member, will be also vicariously held liable and guilty of that offence. Previous enmity coupled with the joining in a group constituting an unlawful assembly going to the scene of occurrence armed with lethal weapons and participating in the attack by mercilessly beating the deceased after surrounding him, will sufficiently establish that the common object was nothing but to kill the deceased.

In the light of the discussions above we find no substance in any of the contentions advanced by the learned Counsel for the Appellants. The prosecution has succeeded to bring home the guilt against the Appellants beyond all shadow of doubts. We do not find any scope to interfere with the findings of conviction and sentence recorded by the Court below against the Appellants.

In the result, all the three appeals (sic) and the order of conviction and sentence passed against the Appellants is affirmed. All the eight Appellants are on (sic)all, so, their bail bonds are cancelled with direction to surrender before the Court below to serve out the sentences imposed upon them.

M.L. Visa, J.

I agree.