Sushil Kumar Pandey, Bishram Pandey @APPELLANT@Hash STATE OF BIHAR

S. KUMAR

1.Heard parties.

Both these Criminal Appeals have been filed against the judgment of conviction dated 14.07.2011 and order of sentence dated 16.07.2011 passed

by A.D.J. F.T.C-1st, Saran at Chapra in Sessions Trial No. 07 of 1992 arising out of Manjhi P.S. Case No. 126 of 1990, by which appellants have

been convicted for the offence punishable under Section 302/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment

for life.

Prosecution case is based upon fardbeyan of Informant Manoj Kumar (PW-5), who is the son of Dudhnath Mishra (deceased), which was

recorded by PW-9 Harendra Kumar (I.O.) on the instruction of Amar Nath Tiwari, O/C, Police Station (DW-3) in Manjhi Police Station at 8:30 am in

presence of villagers Ram Shingar Yadav (PW-4), Dinesh Kumar Pandey, Kamla Yadav (PW-1), Ram Das Pandey, Shreeram Pandey and Ors.,

who has stated in the FIR that on 24.08.1990 at about 7:00 am, he was returning to his house after seeing his paddy field along with his father Dudh

Nath Mishra (deceased) and had reached Jai Chapra Chatti on brick built road in front of house of Durga Lohar when Bishram Pandey, Sunil Pandey

and Satish Pandey (all appellants) surrounded his father and his father wanted to flee away when Bishram Pandey (appellant) caught hold of him and

stabbed by Chura and Sushil Pandey and Satish Pandey (appellants) also started stabbing him by Chura. His father and he raised alarm when Ram

Shringar Yadav (PW-4), Dinesh Pandey, Kamla Yadav (PW1) and Ram Das Pandey and many other villagers who were coming on said road came

running and all the three accused fled away and then all above named villagers and others put his father on Cot and thereafter took a vehicle and

proceeded towards police station but in midway before reaching Tazpur he died. All the persons as named above has seen the occurrence and on said

fardbeyan Kamla Yadav (PW-1) and Shailesh Kumar Pandey became the witness. On the basis of said fardbeyan FIR was instituted on 24.08.1990

at 8:30 am and case was entrusted to Sub Inspector Harendra Kumar (PW-9) for investigation. After completing the investigation chargesheet against

the appellants under Section 302 r/w Section 34 of IPC was submitted and cognizance was taken by the court below and case was committed to the

Court of Sessions and charges were framed under Section 302/34 of the IPC and appellants pleaded not guilty and claimed to be tried.

In support of prosecution case 11 witnesses were examined and 14 documents were marked as exhibits on behalf of prosecution whereas 8

witnesses were examined and 15documents were marked as exhibits on behalf of defence.

PW-5 is Manoj Kumar Mishra, who is the Informant and son of the deceased. He has stated in his deposition that his house is in village Jai Chapra.

His father was President of Congress Party of Panchayat and Bishram Pandey (appellant) was the Mukhiya of the Panchayat. On 24.08.1990 Friday

at about 7:00 am he was returning from Jai Chapra brick built road alongwith his father after seeing the paddy crops. The road is North-South. They

were moving from North towards South. When they reached near the house of Durga Lohar on the West of brick built road Bishram Pandey, Sushil

Pandey and Satish Pandey (appellants) were standing there. His father was ahead of him and when he reached there they surrounded him. His father

wanted to flee away but Bishram Pandey (appellant) inflicted knife blow and thereafter Sushil and Satish (appellants) also started inflicting knife blow.

On receiving the knife blow by Bishram Pandey (appellant) his father sat down holding his Stomach, Sushil and Satish (appellants) thereafter assaulted

by Knife and his father fell down. Bishram Pandey (appellant) said to eliminate him. Bishram Pandey (appellant) inflicted knife blow on his neck.

Sushil and Satish (appellants) fled towards North and Bishram Pandey (appellant) towards South brandishing the knife.

Apart from him, Kamla Yadav (PW-1), Ram Shingar Yadav(PW-4), Kaushal Pandey(PW-2), Sri Ram Pandey, Dilip Pandey, Dinesh Pandey and

others had seen the occurrence. Kamla Yadav(PW-1) brought the Cot from the house of Bishram Lohar and put his father on it. They went to Jai

Chapra Chatti and after calling Jeep went to Manjhi Hospital. Kamla Yadav(PW-1), Ram Shingar Yadav(PW-4), Ram Das Pandey, Sri Ram Pandey,

Dilip Pandey, Dinesh Pandey, Shailesh Pandey, Bishwamitra Chaubey and Baleshwar Yadav (PW-3) were accompanying him, as they reached

Tazpur, he felt that his father has died. They went to Manjhi Hospital and Doctor declared him brought dead and said to go to police station and

thereafter they went to police station.

It was 8:30 am and Daroga recorded his statement. He said and Daroga recorded it and thereafter was read over to him and he put his signature

which has been marked as Exhibit-1/2. Thereafter, Daroga went near the dead body of his father and prepared inquest report (Exhibit-9) upon which

there is signature of Shailesh Pandey and Bishwamitra Chaubey. Daroga recorded the statement of other persons who had accompanied him. Daroga

send the body for post mortem to Chapra after calling a vehicle. Two constables, he, Kamla Yadav (PW-1), Dinesh Pandey, Dilip Pandey and Ram

Dayal Pandey, had gone to Chapra with him.

The reason for occurrence is that his father protested against Bishram Pandey (appellant) for misappropriation committed by him in Jawahar Rojgar

Yojana. Bishram Pandey (appellant) was Mukhiya of Gram Panchayat and there was political rivalry between them. After institution of this case, the

father of Satish Pandey (appellant) Parmanand Pandey, instituted a case against 17 persons in 1991 in Siswan Police Station, which is in Siwan

district. The case is pending in Siwan being Sessions Case No. 174 of 1992. In that case witnesses Kaushal Pandey (P.W.-2), Harendra Pandey, Dilip

Pandey, Dinesh Pandey, Adalat Yadav, Dudhnath Yadav, Sri Ram Pandey and Shailesh Pandey were made accused. Witness Fulena Pandey

became hostile. His statement has been marked as Exhibit-3. Witness Saket Pandey statement has been marked as Exhibit-4. Remaining 16 witnesses

refused to depose. He has further deposed that witness Indradeo Pandey, Shri Ram Pandey, Ram Lakhan Mishra, the chargesheet witnesses have

died. Accused have terrorized 16 witnesses, as such on 02.12.1998, a petition was filed that their examination is not to be done.

In his cross-examination, he has stated that Bishram Pandey (appellant) and he are of same village. Bishram Pandey (appellant) is the Mukhiya of

the village. There are two paths to reach his house from his field. One is North-South and other is East West. His village Jai Chapra is located

towards East-South corner from his land. North-South road meets the Jai Chapra Chatti. Occurrence took place before the house of Durga Sharma

on the street. House of Durga Sharma is North facing. 100 Gaj South is Jai Chapra Chatti. Chatti means market. His house is 150 to 200 Gaj East-

South from Chatti. Houses of Kamla Yadav (PW-1), Ram Briksh Yadav, Ram Shingar Yadav(PW-4) and Baleshwar Yadav(PW-3) are there of

whom three persons are witnesses in this case. House of Bishram Pandey (appellant) is in his Tola. He had not seen Tarkeshwar (DW-1) and Sheo

Jee Sharma (DW-4) at the place of occurrence. On the day of occurrence, it was Teej. He and his father had gone to paddy field on foot between

6:00 to 6:30 am. It was rainy season. They were empty handed. He had not met the accused while going. They reached Paddy field in half an hour

and stayed there for 15 minutes. On that day at a distance of 15 to 16 Laggi, people were in market. It took 15 to 20 minutes to reach the place of

occurrence from the Paddy field. For the first time, he saw the accused 20 to 25 steps towards North. He had no suspicion against them. When

accused caught hold of this father he was 4 to 5 steps behind him. He was aged about 15 to 16 years. When accused caught hold his father he fled

and retreated 5 to 6 steps back. No one tried to catch or kill him. At the time when accused were assaulting his father he did not go near his father.

His father was assaulted upto 8 to 10 minutes and thereafter corrected as 9 to 10 seconds. They fled away then he went near his father. He had no

talk with him. Occurrence took place before the house of Durga Sharma on the street. House of Durga Sharma is North facing.

His father was wearing dhoti in lungi style and khadi silk kurta. After accused fled away, 20 to 25 persons assembled there. Kamla Yadav(PW-1),

Ram Shingar Yadav(PW-4), Baleshwar Yadav(PW-3), Dinesh Pandey, Sri Ram Pandey etc. had assembled there. He had no talk with them. Blood

stained clothes were given to police. He had given an application in the court that some of the witnesses have been gained over by the accused as

such they are not required to be examined on behalf of prosecution.

His statement was recorded by the police. The accused in this case are of different family and live in separate houses. It takes about 2 to 2:30

hours to reach Chapra from his village. From police station the body for post mortem was sent between 12:00 to 1:00 pm, in midway there was

breakdown of vehicle. To conduct post mortem, Daroga had send another vehicle. Post mortem of his father was conducted next day from 8:00 to

9:00 am and thereafter they received the dead body at about 9:30 am. He has denied that he was not present on the date of occurrence in his village

and had gone to matrimonial house of his married sister at Rakhauli on the occasion of Teej. He had been to Chapra with dead body of his father for

post mortem. No other family member had gone there. He had not informed any of his relatives prior to post mortem about the incident. No one of his

relation was with him at the time of post mortem. Seven to Eight villagers of Jai Chapra were there among them Kamla Yadav (PW-1), Ram Dayal

Pandey, Dilip Pandey, Indradeo Singh and Chaukidar and Havildar and Ors were there. At the time of cremation, all villagers were present. The Jeep

on which they had proceeded to Chapra for post mortem was a different Jeep brought by the Police. In police station the dead body of his father was

kept for 2½ to 3 hours. There was no bed on the Cot upon which his father was being carried. Blood was dropping from the Cot throughout while

being taken to Jai Chapra Chatti. He had not lifted the Cot nor he helped to lay his father on the Cot. Kamla Yadav (PW-1), and Ram Shingar

Yadav(PW-4) had put his father on the Cot and they had carried the Cot up to Jai Chapra Chatti.

PW-1 Kamla Yadav is FIR witness and eye witness of the occurrence, who in his deposition stated that on said date at 7:00 am he was going to

the house of Anirudh Lohar for repair of his Khurpi and he was 50 yrds. South of place of occurrence when he saw that Bishram Pandey, Sunil

Pandey and Satish Pandey (appellants) were standing in front of house of Durga Lohar. Dudh Nath Mishra (decd) and Manoj Mishra (infmt) were

coming from North and when they reached near the house of Durga Lohar, Bishram Pandey (appellant) inflicted Chura blow on the Stomach of Dudh

Nath Mishra (decd.) and he sat down holding his Stomach and thereafter all the accused started stabbing on different parts of the body and he fell

straight on the ground. Bishram Pandey (appellant) then inflicted Chura blow on his neck and thereafter Sushil Pandey and Satish Pandey (appellants)

fled towards North and Bishram Pandey (appellant) fled towards South brandishing the Knife. He tried to catch Bishram Pandey (appellant) but he

threatened that he will kill him and thereafter he took the side. At the place of occurrence Ram Das Pandey, Shri Ram Pandey, Ram Shingar Yadav

(PW-4), Dilip Pandey and Dinesh Pandey had reached there. They lifted and put Dudh Nath Mishra (decd) on Cot and brought him to Jai Chapra

Chatti and from there they carried him on a Jeep to Manjhi Hospital, however, by the time they were about to reach Tazpur, Dudh Nath Mishra, died.

They took him to Manjhi Hospital where Doctor declared him brought dead. From there they went to Manjhi Police Station where fardbeyan of Manoj

Mishra (PW-5) was recorded by Daroga and he and Shailesh Pandey put their signature as witness on the FIR which has been marked as Exhibit-1

and Exhibit-1/1. Fardbeyan (Exhbit-1/3) was read over by the Daroga and thereafter Manoj Mishra (PW-5) put his signature on the fardbeyan. Which

has been marked as Exhibit ½. The reasons for killing is that Dudh Nath Mishra was becoming popular in the area where Bishram Pandey

(appellant) was elected Mukhiya. Bishram Pandey (appellant) had threatened Dudh Nath Mishra (decd.) 2-3 days earlier also.

In his cross-examination he has denied that Dudh Nath Mishra (decd.) was of bad character. He has stated that Jai Chapra Chatti is about 100

yrds. South from the place of occurrence. The residence of Bishram Pandey (appellant) is 500 to 600 yrds. South from Jai Chapra Chatti whereas

residence of Satish Pandey and Sushil Pandey (appellants) is 400-500 yrds towards North. His house is 150 to 200 yrds. towards South. House of

Durga Lohar is 5 to 7 yrds. towards North-East corner from the place of occurrence. The accused were 40-50 yrds. North of him at that time. He

had Khurpi in his hand for repair. Dudh Nath Mishra (decd.) and Manoj Mishra (P.W. 5) were 70 yrds. away from him. Accused were towards

South of them at that point of time. When accused caught Dudh Nath Mishra (decd.) and Manoj Mishra (P.W. 5) he was at a distance of 50 yrds.

from the place of occurrence. It took 8-9 seconds and two accused ran towards North and one towards South to their home. First Bishram Pandey

(appellant) inflicted Chura blow. Dudh Nath Mishra (decd.) was wearing a kurta and dhoti in lungi style. His clothes were cut and stained with blood.

Sushil Pandey and Satish Pandey (appellants) inflicted Chura blow after Bishram Pandey (appellant). At that time Manoj Mishra was screaming. 8-9

persons assembled at the place of occurrence and on reaching Chatti (small market) 25-26 persons assembled. Before he was put on Cot he remained

lying on the ground for 15 to 20 minutes. Cot was kept outside the House of Bishram Lohar and he and Ram Shringar (PW-4) brought it. He and Ram

Shringar (PW-4) lifted the Cot. They stayed at Chatti for 15 to 20 minutes. From Tazpur, Manjhi Police Station is 12 Kms East. They reached

Hospital at about quarter to eight and remained in Hospital for five minutes.

PW-2 Kaushal Pandey is an eye witness of the occurrence. He has deposed that on said date at about 7:00 am he was coming after taking

medicine from Chapra Chatti and reached near the house of Durga Lohar he saw Bishram Pandey, Sushil Pandey and Satish Pandey (appellants)

standing there in front of house of Durga Lohar. Dudh Nath Mishra (decd.) and Manoj Mishra (P.W.5) were coming from North. Bishram Pandey

(appellant) took out Chura and inflicted in the Stomach of Dudh Nath Mishra (decd.). Dudh Nath Mishra sat down holding his Stomach and thereafter

Satish Pandey and Sushil Pandey (appellants) started stabbing by Chura and Dudh Nath Mishra (decd.) fell on the ground in straight position and

Bishram Pandey (appellant) inflicted Chura blow on his Neck. Bishram Pandey (appellant) fled towards South whereas Sushil Pandey and Satish

Pandey (appellants) fled towards North. Manoj Mishra (P.W.5) was screaming 10-20 steps from there. Apart from him, the incident was seen by

Ram Das Pandey, Kamla Yadav (P.W.1), Ram Shingar Yadav (P.W. 4), Ram Dayal Pandey, Baleshwar Yadav (P.W.-3), Dilip Pandey and others.

Kamla Yadav (P.W.-1) brought the Cot from the house of Bishram Lohar and Kamla Yadav (P.W.-1) and Ram Shingar Yadav (P.W.-4) brought

Dudh Nath Mishra on Cot to Jai Chapra Chatti from where he was carried on Jeep to Manjhi. In his cross-examination he has stated that his Mother

was ill and on advice of Doctor he had gone to the Medicine shop with prescription. His Mother was examined by the Doctor at about 4:00 am in the

morning on the date of occurrence. The road is West to house of Durga Lohar and West to the road is the house of Bishram Lohar. The house of

Sheo Jee Sharma is 100 to 120 steps East of Bishram Sharma. The accused were standing 12 to 15 steps South of house of Durga Lohar, at that time

there was nothing in their hand. Manoj Mishra (P.W.5.) and Dudh Nath Mishra (decd.) were at a distance of 8 to 9 steps from them. First Bishram

Pandey (appellant) had caught him and stabbed in his Stomach. All the three surrounded him. Bishram Pandey (appellant) had inflicted Chura blow on

his Neck and Chest also. Kamla Yadav (P.W.-1) had tried to catch Bishram Pandey. At the place of occurrence there were two to four persons at

that time. Blood was spread at the place of occurrence. He had not seen Bishram Sharma at that place. No one had come from the family of Bishram

Sharma. Manoj had fled away 10 to 15 steps towards West and was screaming. Accused did not made any attempt to assault him. The hands of Ram

Shingar (P.W.4) and Kamla (P.W.-1) were stained with blood at the time of lifting the Cot. The Cot was lifted by Kamla Yadav (P.W.-1) and Ram

Shingar Yadav (P.W.-4) and two other persons who were not there from before. He had also accompanied Dudh Nath Mishra, (decd.) on the Jeep.

He has denied the suggestion that at the time of occurrence Manoj Mishra (P.W.5) was not there and he was called subsequently.

PW-4 Ram Shingar Yadav is an eye witness of the occurrence and in the FIR also he has been shown as an eye witness and in his presence FIR

was recorded in the Police Station. He has stated that it was Friday at about 7:00 am, he was going to the house of Ram Nama Pandey, to purchase

Straw whose house is in the North corner of the village. He was standing on the North side of the Middle School when he saw Dudh Nath Mishra

(decd.) and Manoj Mishra (infmt.) coming and Bishram Pandey, Sushil Pandey and Satish Pandey (appellants) were standing in front of house of

Durga Sharma on the road. Bishram Pandey, Sushil Pandey and Satish Pandey (appellants) surrounded Dudh Nath Mishra (decd.) and Manoj Mishra

(P.W.5) was two to four steps behind him. Bishram Pandey (appellant) inflicted chura blow on the Stomach of Dudh Nath Mishra (decd.) and he sat

down holding his Stomach thereafter Sushil and Satish (appellants) started inflicting chura blow on him. Dudh Nath Mishra (decd.) fell on the ground.

Bishram Pandey (appellant) then told to eliminate him and inflicted chura blow on his Neck. Bishram Pandey (appellant) fled toward South, Sushil and

Satish (appellants) fled towards North. They fled away with brandishing chura on the same brick built road. Kamla Yadav (P.W.-1) was ahead of him

and tried to catch him but he threatened that he will attack him by Chura as such he took the side. The incident was witnessed by Kamla Yadav (PW-

1), Kaushal Pandey, (P.W.-2) Ram Das Pandey and Dinesh Pandey.The Cot was brought from the house of Bishram Sharma. He was laid on the

Cot and carried to Jai Chapra Chatti and from there he was carried on Jeep to Manjhi Hospital and when they were about to reach Tazpur they felt

that he has died. He was taken to Manjhi Hospital where Doctor declared him brought dead and thereafter they went to Police station. Manoj Mishra

(P.W.5) was with them. Both the houses of Kamla Yadav (P.W.1) is in Jai Chapra. His house is 300 to 350 Gaz West of him. Jai Chapra village

consist of 100 to 200 houses. Bishram Pandey (appellant) is of Jai Chapra. Towards North and South of the place of occurrence is road. On East

corner is house of Durga Lohar and on West is the house of Bishram Pandey (appellant). Bishram Pandey (appellant) is Mukhiya from last 18 to 19

years. Incident happened on the brick built road North of Middle School.

PW-3 Baleshwar Yadav is not an eye witness of the occurrence but is an eye witness to subsequent event just after occurrence, who has

deposed that it was Friday at about 7:00 am morning he had reached near the middle school at Jai Chapra Chatti with Curd when he saw Bishram

Pandey (appellant) with knife in his hand was fleeing away, his clothes were stained with blood. There was outcry that Bishram Pandey, Sushil

Pandey and Satish Pandey (appellants) have killed Dudh Nath Mishra (decd.). When he proceeded ahead he saw Dudh Nath Mishra (decd.) lying on

the ground in an injured condition and was unconscious. Before he reached the place of occurrence, Dinesh Pandey, Kamla Yadav (PW-1), Ram

Shingar Yadav (PW-4), Kaushal Pandey (PW-2) were present at the place of occurrence. From the house of Bishram Lohar, Cot was brought on

which Dudh Nath Mishra (decd.) was laid and carried to Jai Chapra Chatti and was thereafter taken by Jeep. He was carrying Curd on his head. He

did nothing. He was carried to Manjhi Hospital where he was declared brought dead and thereafter villagers went to police station where Manoj

Mishra (infmt P.W. 5) instituted the case. He was also standing outside the police station. Middle School is 100 steps South of Chatti and at that time

people were busy on the road. Bishram Pandey (appellant) went from his front. People carried Dudh Nath Mishra (decd.) on Cot five minutes after

his arrival. Cot was lifted by Kamla Yadav (PW-1), Ram Shingar Yadav (PW-4), Dinesh and Kaushal Pandey (PW-2). Dudh Nath Mishra (decd.)

had a ration shop.

PW-6 Bipin Kumar Mishra, who is son of deceased Dudhnath Mishra has been tendered by prosecution.

PW-7 is Ram Pravesh Bhagat, who has stated that on 24.08.1990 Manoj Mishra (infmt.) had not gone to the house of his married sister whose

house is situated adjacent to his house. Sister of Manoj Mishra (infmt.) is married to Sheo Shankar Tiwary. Daroga had enquired from him in this

case. He is not on visiting terms with Brother-in-Law of Manoj Mishra.

PW-8 is Ram Eqbal Prasad, who is the Doctor who conducted post mortem examination of dead body of Dudhnath Mishra and has found 9 ante

mortem injuries on the person of deceased-Dudh Nath Mishra in which Injury Nos. 2, 4, 6 and 9 were grievous in nature and has opined that each is

sufficient to cause death. Wounds were punctured and caused by sharp pointed weapon like chura. He has proved the post mortem report which has

been marked as Exhibit-5.

PW-9 Harendra Kumar is the Investigating Officer and has stated in his deposition that on 24.08.1990 he was posted in Manjhi Police Station and

on said date at about 8:30 Informant Manoj Kumar Mishra (P.W.5) came into police station with dead body of his father. The statement of Informant

was immediately recorded by Officer-in-Charge of Police Station Amarnath Tiwari (D.W. 3) and on the basis of which Manjhi Police Station Case

No. 126 of 1990 was instituted and thereafter he was handed over the investigation of this case. Officer-in-Charge read the contents of FIR to the

Informant and thereafter Informant put his signature on it and he has proved the FIR which has been marked as Exhibit-1/3. Alongwith Informant

Ram Shingar Yadav (PW-4), Dinesh Kumar Pandey, Kamla Yadav (PW-1), Ram Das Pandey, Shri Ram Pandey and others had also come. Among

them Kamla Yadav (PW-1) and Shailesh Kumar Pandey had put their signature on the FIR as witness. In his presence the Officer-in-Charge had

prepared the inquest report and send the body for post mortem. He recorded the restatement of Informant in para 6 of case diary. He recorded the

Statement of witnesses Kamla Yadav (PW-1), Ram Shingar Yadav (PW-4), Dinesh Kumar Pandey, Ram Das Pandey, Shri Ram Pandey, Kaushal

Pandey (PW-2), Ram Dayal Pandey, Dilip Pandey and Baleshwar Yadav (PW-3) in the police station.

On the same day at 10:00 am, he proceeded towards the place of occurrence from police station and reached there at 11:45 am. He has prepared

a map of the place of occurrence which has been marked as Exhibit-6. In the case diary he has recorded that he found blood spread on the place of

occurrence and trace of blood was found till Jai Chapra Chatti and seized the blood stained earth and prepared seizure list in presence of witnesses.

He has proved the seizure list upon which there is signature of Dharmnath Choudhary as witness and L.T.I of witness Bundi Lal Kurmi, and has

proved seizure list, which has been marked as Exhibit-7.

He received the Dhoti, Kurta, Ganji of the deceased from the Havildar who had taken the dead body for post mortem and thereafter corrected

that he received from Officer-in-Charge. During investigation, it came to his notice that the supporters of Mukhiya were terrorizing the

witnesses.Thereafter he was transferred and he handed over the charge of investigation to the Officer-in-charge who undertook further investigation.

The statement from para no. 1 to 117 has been recorded in his writing upon which there is his signature and same has been proved and marked as

Exhibit-8.

In his cross-examination he says that he does not remember as to between inquest report and fardbeyan, which was recorded prior. Both were

written in his presence. It took about 20 to 25 minutes in recording the fardbeyan. Shailesh Kumar Pandey is witness in both the documents. Cot was

brought in police station but same was not recorded in the case diary. He has not recorded stain of blood found on the body of Ram Shingar (PW-4)

and Kamla Yadav (PW-1). He was a probationer. He did not find Chura near the place of occurrence.

On the West side of the place of occurrence is house of Anirudh Sharma. House of Durga Lohar is 15 to 20 yrds. East from the place of

occurrence. 16 hand away towards West is Dalan of Bishram Lohar and house is 15 to 20 yrds. North and is East-West and South facing from the

road and 30 yrds. West of the place of occurrence. House of Ram Chander Singh is 25 yrds. away South-West. House of Ramayan Lal is 50 yrds.

South-West and Jai Chapra Middle School is 125 yrds. South from the place of occurrence. House of accused Bishram Pandey is half kilometer South

from place of occurrence. House of remaining accused is 400 yrds. North from the place of occurrence. He has not recorded the distance of Jai

Chapra Chatti from the place of occurrence. He had recorded the statement of Bishram Lohar (PW-10) in which it was stated that at the place of

occurrence Tarkeshwar Lal (DW-1) and Sheo Jee Sharma (DW-4), were present. They have stated that they had not seen the accused. Statement of

Ram Chandra Prasad was recorded. He searched Tarkeshwar Lal (DW-1) and Sheo Jee Sharma (DW-4) but they were not found. He had seen the

Cot. He had not sent the deceased blood stained earth for examination.

PW-10 Bishram Sharma and P.W. 11 Bhagwan Singh were illegally examined even after evidence of prosecution was closed and without

obtaining permission of court at the instance of accused only to favour them. Such witnesses are treated as hostile witness.

Defence had taken a plea of false implication, alibi by accused Bishram Pandey and Manoj Mishra (informant) was not present at the time of

occurrence on place of occurrence and had gone to village Rakhauli in the matrimonial house of his married sister on Teej.

The defence has examined D.W.-5, D.W.-6 and D.W.- 7 to prove that Manoj Mishra (informant) was present in the village Rakhauli in the

matrimonial house of his sister on Teej but D.W. 5 and D.W. 6 have stated that on 24.08.1990 when they went there they heard sound of weeping

and crying from the house and one motorcycle was standing there and it was told that Dudh Nath Mishra was killed and they have come to take back

Manoj Mishra, however, none of them had seen Manoj Mishra going back as such D.W. 5 and D.W. 6 are hearsay witnesses and are not trustworthy

and reliable further their statement was taken by the police after two months. D.W. 7 has stated that he had seen Manoj Mishra returning back from

the village alongwith two persons who had come on motorcycle to take him back as his father was killed. His statement was also recorded after two

months of occurrence. His statement is not trustworthy and reliable. D.W. 3 Amar Nath Tiwari who was the Officer-in-charge of police station and

2nd I.O. of this case has been examined on behalf of defence has also stated that on direction of S.P., Chapra that he had gone to Rakhauli village but

could not get any witness who stated that Manoj Mishra was present there on the date of occurrence. D.W.-3 has further stated that on 22.08.1990

he was posted as Officer-in-charge, Manjhi police station and on said date Manoj Mishra had come to police station at 8.30 AM with dead body of his

father which completely falsifies the defence of accused that Manoj Mishra was not present at the time and place of occurrence on said date.

Plea of alibi has been taken by accused Bishram Pandey and D.W.-2 Dr. Hira Lal Prasad Gupta has deposed that he was posted as Medical

Officer in Primary Health Centre, Raxaul and treated Bishram Pandey for stomach pain and vomiting on 22.08.1990 in OPD and had discharged him

on 24.08.1990. He has proved OPD register which has been marked as Exhibit- A. Medical prescriptions issued on 22.08.1990, 23.08.1990 which

contains name of medicines has been marked as Exhibit-B and B/1. Discharged slip issued on 24.08.1990 which shows date of admission as

22.08.1990 and date of discharge as 24.08.90 has been marked as Exhibit-C. Name of medicine has been written on discharge slip which is in writing

of D.W.2 but date of admission/date of discharge is not in his writing. In his cross-examination he has stated that outdoor patient if required to be

admitted then patient is admitted and same is entered in admission register and bed ticket is prepared which is primary document of treatment and stay

of patient and both were not produced as such plea of alibi becomes doubtful. He further stated that he does not know Bishram Pandey prior to

22.08.1990 and does not remember him and cannot say if person whom he had treated was Bishram Pandey. D.W.-3 had also stated that at the

direction of S.P., Chapra he had gone to the house of Bishram Pandey but he was not there and his father told that at the time of occurrence he was

in the house which demolishes the plea of alibi taken by Bishram Pandey. Plea of alibi is to be establish on unimpeachable evidence which cannot be

contradicted or doubted. The trial court as discussed in detail and rejected the plea of alibi giving cogent reasons for it and this Court also concurs with

the finding of trial court.

Defence has also examined D.W.-1 Tarkeshwar Prasad @ Tarkeshwar Lal, D.W. 4 Shivji Sharma and D.W. 8 Bishwanath Choudhary to

establish that appellants-accused have not committed the crime and has been falsely implicated in this case. D.W. 1 has stated that he was posted as

Head Clerk in Siswan Referal Hospital and used to go to hospital and on the date of occurrence while going to Siswan Hospital he saw Dudhnath

Mishra lying in injured condition and no one was present there and thereafter Bishram Pandey (PW10) and Shivji Sharma (D.W. 4 ) came and he

thereafter went to hospital for his duty. D.W. 4 Shivji Sharma has stated that on date of occurrence he was in the house of Bishram Sharma and

heard some noise outside and when came out saw Dudhnath Mishra lying in injured condition and Tarkeshwar Lal was present there and thereafter

Bishram Sharma came there. No one had seen the assailants. Manoj Mishra had gone to matrimonial house of his elder sister. D.W. 8 has stated that

he was cultivating his field and went to the place of occurrence and when he reached there Shivji Sharma, Bishram Sharma, Janak Sah, Arjun Sah

and many others were present. No one was present from the family of Dudhnath Mishra. The evidences of these witnesses on behalf of defence is

not consistent as such are not reliable and trustworthy but are full of contradiction hence discarded.

After hearing the parties and considering the evidence and materials available on record this Court finds that prosecution on the basis of ocular as

well as documentary evidence adduced before the Trial Court has been able to establish charges against accused-appellants beyond shadow of doubts

whereas defence has miserably failed to establish alibi of Bishram Pandey (appellant) and Manoj Mishra (infmt.) had gone to village Rakauli in the

matrimonial house of his married sister on TeeJ and was not present at the place and time of occurrence. P.W.-5 Manoj Mishra (infmt.) who is son of

deceased Dudh Nath Mishra and was accompanying his father has given a graphic description of the sequence of the events prior to killing and

subsequent to killing by accused-appellants and same has been fully supported by the ocular evidence of P.W.1 Kamla Yadav, P.W. 2 Kaushal

Pandey, P.W. 3 Baleshwar Yadav, P.W.4 Ram Shingar Yadav who are eye witnesses of the occurrence and they have been cross-examined by the

defence at length on all points i.e. place of occurrence, time of occurrence and manner of occurrence and they have stood the test of cross-

examination and their testimony is reliable and trustworthy and without any doubt as such there is no reason to disbelieve them and same also finds

support from the medical evidence. The I.O. had also prepared sketch map of the place of occurrence which has been marked as Exhibit-6 and had

also found blood to be spread at the place of occurrence which was seized by him and seizure list was prepared which has been marked as Exhibit- 6

and was also found trace of blood from the place of occurrence upto Jai Chapra Chatti which fully supports the prosecution version. P.W.-1, P.W.-2,

P.W.-3 and P.W.4 are natural witnesses and their presence at the place of occurrence cannot be doubted.

Criminal appeals i.e. Cr. Appeal (DB) No. 839 of 2011 filed by Bishram Pandey @ Bisharam Pandey and Cr. Appeal (DB) No. 775 of 2011 filed

by Sushil Kumar Pandey @ Butan Pandey @ Sushil Pandey and Satish Kumar Pandey @ Satish Pandey are dismissed. Since appellant Bishram

Pandey @ Bisharam Pandey in Cr. Appeal (DB) No. 839 of 2011 is on bail, his bail bond is cancelled and he is directed to be taken in custody

forthwith to serve the remaining part of sentence. However, Sushil Kumar Pandey @ Butan Pandey @ Sushil Pandey and Satish Kumar Pandey @

Satish Pandey in Cr. Appeal (DB) No. 775 of 2011 are in custody. They will serve remaining part of sentence in prison.

Both the appeals are dismissed.