Jagdish Mahto and ors. Vs. State of Bihar - Court Judgment

Excerpt:
- - at that time informant was also in the 'dalan'.an electric bulb was lighting on the boring house situate adjacent to the 'dalan' towards north east corner. pw-16 has said that at the time of occurrence he was at his 'darwaja' which is in front of the 'darwaja' of the deceased and at that time the deceased was sitting in his own verandah on a 'chouki' and at that time an electric bulb was lighting in the boring house situate towards east-northern corner of the house of the deceased. ii). he has further-stated that in the north-east corner adjacent to the place of occurrence he found a boring house on which an electric of 200 watt, was hanging with a bamboo. besides this, nothing has been elicited from them in their cross-examination to make their evidence unreliable. but at the same..... m.l. visa, j. 1. both these appeals are being disposed of by this common judgment as they arise out of the same judgment and order dated 15th april, 1994 passed in sessions trial no. 110 of 1987/1992 convicting and sentencing ram deo mahto to life imprisonment under section 302, i.p.c. r.i. for 2 years each under section 148, i.p.c. and section 27 of the arms act, and rajendra mahto to life imprisonment under section 302/149, i.p.c. and r.i. for 2 years each under section 140, i.p.c. and section 27 of the arms act, who both are appellants in cr. appeal no. 268 of 1994 and convicting and sentencing jagdish mahto, anup lal mahto, duniya lal mahto and subelal mahto, who are appellants in cr. appeal no. 204 of 1994, to life imprisonment under section 302/149, i.p.c. and r.i. for 1 year under.....

Judgment:

M.L. Visa, J.

1. Both these appeals are being disposed of by this common judgment as they arise out of the same judgment and order dated 15th April, 1994 passed in Sessions Trial No. 110 of 1987/1992 convicting and sentencing Ram Deo Mahto to life imprisonment under Section 302, I.P.C. R.I. for 2 years each under Section 148, I.P.C. and Section 27 of the Arms Act, and Rajendra Mahto to life imprisonment under Section 302/149, I.P.C. and R.I. for 2 years each under Section 140, I.P.C. and Section 27 of the Arms Act, who both are appellants in Cr. Appeal No. 268 of 1994 and convicting and sentencing Jagdish Mahto, Anup Lal Mahto, Duniya Lal Mahto and Subelal Mahto, who are appellants in Cr. Appeal No. 204 of 1994, to life imprisonment under Section 302/149, I.P.C. and R.I. for 1 year under Section 147, I.P.C. Anup Lal Mahto has further been convicted and sentenced to undergo R.I. for 3 months under Section 323, I.P.C. All the sentences in respect of appellants have, however, been ordered to run concurrently.

2. The prosecution case, in short, is that there was litigation between the family of informant Bauelal Daha (PW-13) and the family of appellant Anup Lal Mahto. On 5-11-1985 in the evening father of informant was sitting on a 'Chouki' in his 'dalan.' At about 7 p.m. all the appellants along with Ramdeo Mahto son of Anup Lal Mahto (since dead and hereinafter referred as co-accused Ramdeo Mahto) came at 'darwaja' of the informant and started abusing Khedan Daha, father of the informant, and they also gave out: that father of informant was a veteran litigant, therefore, they would finish him. At that time informant was also in the 'dalan'. An electric bulb was lighting on the boring house situate adjacent to the 'dalan' towards north east corner. Appellants Ramdeo Mahto son of Ram Khelwan Mahto (hereinafter referred as appellant Ramdeo Mahto), Rajendra Mahto and co-accused Ramdeo Mahto were carrying pistols, appellants Anup Lal Mahto and Subelal Mahto were carrying brick-bats and appellant Duniya. Lal Mahto was carrying a bag. When Khedan Daha protested on the abuses given to him by the appellants, appellant Jagdish Mahto ordered to kill him and on his order co-accused Ramdeo Mahto fired from his pistol at him hitting on his chest. Thereafter appellants Ramdeo Mahto and Rajendra Mahto also fired from their pistols causing injuries on the rib cage and chest of Khedan Daha who fell down in the dalan. The informant out of fear went beneath the cot. Appellants Anup Lal Mahto and Subelal Mahto started hurling brick-bats causing injuries to Krishnadeo Daha (PW-11), consin of informant. The occurrence was witnessed by Krishnadeo Daha (PW-11), Lal Babu Daha (PW-5), Yogendra Daha (not examined), besides female members and children of the family of the informant and his neighbours. The appellants were telling for, taking away the dead body of Khedan Daha and they remained at the 'darwaja' of the informant for about 5 minutes and when Khedan Daha succumbed to injuries, they left the place and while going they also fired in air. Shri Krishna Singh (PW-18) at that time was posted as Sub Inspector of Police at Bibhutipur Police Station under the jurisdiction of which the village of informant lies. On 5-11-1985 at about 8.10 p.m. he received information about firing in the village of informant and he then after recording this fact in the Station Diary Entry proceeded along with police force to the village of informant and reached there and saw the dead body of Khedan Daha and found that the members of family of informant were wepping. He recorded Fardbeyan (Ext. 2) of the informant, prepared inquest report (Ext. 5), recorded the statements of informant and Krishnadeo Daha (PW-11) and because thereafter the electric power went off he returned to the Police Station where he drew FIR (Ext. 1) and again on the next day in the morning he went to the place of occurrence, seized blood stained earth, front portions of 303 cartridges a pair of shoes with blood stains from the place of occurrence, prepared seizure list (Ext. 6), recorded statements of witnesses and after completion of investigation submitted charge sheet against the appellants and co-accused Ramdeo Mahto under Sections 148, 149, 302, I.P.C. and 27 of the Arms Act. After taking cognizance when the case was pending for commitment to the Court of Session, co-accused Ramdeo Mahto died and proceeding was dropped against him. The case of appellants were committed to the Court of Session where charges under Sections 302, 148, I.P.C. and 27 of the Arms Act were framed against appellants Ramdeo Mahto and Rajendra Mahto, and charges under Sections 147, 302/149 and 323, I.P.C. were framed against the remaining four appellants.

3. The case of the appellants before the Court below, as it appears from the examination of witnesses on their behalf and from the trend of cross examination of the prosecution witnesses, was that they have been falsely implicated in this case on account of enmity and at the time of alleged occurrence appellant Jagdish Mahto was admitted in Government T.B. Hospital at Darbhanga. The Court below after trial found the appellant Ramdeo Mahto guilty under Section 149, 302, I.P.C. and 27 of the Arms Act. Appellant Rajendra Mahto has been found guilty under Sections 148, 302/149, I.P.C. and 27 of the Arms Act and the remaining appellants have been found guilty tinder Sections 147 and 302/149, I.P.C. and appellant Anup Lal Mahto has further been found guilty under Section 323,.I.P.C. and the appellants have been convicted and sentenced accordingly as indicated above.

4. Altogether 19 witnesses have been examined on behalf of the prosecution. Ram Sagar Singh (PW-4), Arvind Daha (PW-8), Rambati Devi (PW-10), Tara Devi (PW-12) and Sumitra Devi (PW-15) have been tendered by the prosecution, Krishna Mohan Jha (PW-1), Ganga Pd Sah (PW-2), Rajeshwar Pd Singh (PW-3), Mohan Prasad (PW-6), Kusheshwar Pd Verma (PW-9) and Laxmi Nr Lal (PW-19) are formal witnesses who have proved formal FIR (Ex. 1), a vakalatnama (Ext. 3) executed by informant in favour of Shri Parmeshwar Pd Singh, advocate, inquest report (Ext. 5) prepared for the dead body of deceased Khedan Daha, seizure list (Ext. 6) prepared after collection of blood stained soil, parts of a cartridge and a pair of shoe from the place of occurrence, injury report (Ext. 7) in respect of injured Krishnadeo Daha (PW-11) and Fardbeyan (Ext.9) of Chandra Shekhar Singh, the then Officer-in-charge of Bibhutipur Police Station in Bibhutipur P.S. Case No. 3 dated 18-1-1983. Ram Shankar Ojha (PW-14) is the doctor who had examined injured Krishnadeo Daha (PW-11). Manindra Bhatt (PW-17) is the doctor who had conducted autopsy, on the dead body of the deceased Khedan Daha. Baue Lal Daha (PW-13) is the informant. Ramesh Daha (PW-7), Krishnadeo Daha (PW-11) and Bishnudeo Daha (PW-16) are the eye witnesses to the occurrence. Lalbabu Daha (PW-5) had reached the place of occurrence after hearing the sound of firing and had seen the appellants running away from the place of occurrence and had also found that deceased Khedan Daha was lying at the 'darwaja' in a pool of blood. Shri Krishna Singh (PW-18) is the I.O.

5. Dr. Manindra Bhatt (PW-17) has stated that on 7-11-1985 he was posted at Samastipur Sadar Hospital as Civil Assistant Surgeon. He on that day at 10.30 a.m. held postmortem examination on the dead body of deceased Khedan Daha and found the following ante mortem injuries:

(i) one lacerated wound on the right side of chest lateral to the sternum at the level of 6th right coastal cartilage l' x 3/4' x deep into thoracie cavity.

(ii) Lacerated wound 2' x 1 3/4' on the left side of chest just medial to upper portion of left axillary fold.

On deep dissection it was found that upper portion of the liver was lacerated, right lung was lacerated about 1' in diameter, the left atrium was lacerated. Both the plural cavities were full of blood. Plura and pericardium were lacerated. On further dissection injury No. (i) was found connected with injury No. (ii). The injury No. (i) had blackened margin.

(iii) one lacerated wound on the right lumber region 1/3' x 1/3' x 1/3'.

On dissection the wound was found superficial. Peritoneum was intact.

According to him all the aforesaid three injuries were caused by a fire arm which may be a country made pistol and the cause of death was shock and haemorrhage caused by injury Nos. (i) and (ii), which were sufficient in ordinary course to cause death. The time of death elapsed was within 48 hours. The postmortem examination report proved by him is marked Ext. 8. His evidence proves the case of prosecution that death of deceased Khedan Daha was due to injuries caused to him by fire arm which may be country made pistol and it was homicidal. The time of death also corresponds to the time of occurrence as alleged by the prosecution. Now it has to be seen what evidence has been led by the prosecution against the appellants for making them responsible for the injuries caused to the deceased which resulted into his death.

6. Bauelal Daha (PW-13), the informant, has stated that at the time of occurrence he was at his 'drawaja' when all the appellants along with co-accused Ramdeo Mahto came there and started abusing his father saying that his father was a litigant and they would finish him. At that time his father was sitting on a 'chouki' (wooden cot) in the verandah and after hearing the abuses by appellants he went towards northern end of verandah and asked the appellants why they were abusing him. On this, appellant Jagdish Mahto ordered to kill him and co-accused Ramdeo Mahto then fired at him from his pistol and shot him on the chest. Thereafter appellant Ramdeo Mahto also fired shot from his pistol hitting on the left side of the chest below the shoulder of his father and appellant Rajendra Mahto fired from his pistol hitting on right rib cage of his father. Appellants Anup Lal Mahto and Subelal Mahto started throwing brick bats which caused injury on the mouth of Krishnadeo Daha (PW-11) breaking his tooth. Appellant Duniya Lal Mahto was carrying a bag containing bomb and was giving threatening that he would explode the bomb. Father of informant after receiving injuries fell down on the verandah and died and the appellants thereafter fled away. He has proved his fardbeyan (Ext. 2).

7. Ramesh Daha (PW-7), Krishnadeo Daha (PW-11) and Bishnudeo Daha (PW-16), the eye-witnesses to the occurrence, in their evidence have supported the case of the prosecution. PW-7 who is the brother of the informant, has stated that at the time of occurrence he was reading with his brother Arvind at his 'darwaja.' 'At that time there was electric light. Thereafter all the appellants along with co-accused Ramdeo Mahto came there and started abusing his father and when his father protested co-accused Ramdeo Mahto fired at him from his revolver. Appellant Ramdeo Mahto fired on the chest of his father and appellant Rajendra Mahto fired from his pistol causing injuries on the rib cage of his father and his father fell down in the verandah and died. Appellants Anup Lal Mahto and Subelal Mahto started throwing brickbats and one brickbat hit Krishnadeo Daha (PW-11) breaking his tooth and appellant Duniyalal Mahto was carrying a bag and was giving threatening for exploding bomb. Krishnadeo Daha (PW-11) has stated that at the time of occurrence he was at his 'darwaja' which is near the 'darwaja' of the deceased and all the appellant along with co-accused Ramdeo Mahto came there. Appellants Ramdeo Mahto, Rajendra Mahto and co-accused Ramdeo Mahto were armed with pistols appellants Anup Lal Mahto, Jagdish Mahto and Subelal Mahto were carrying brickbats and appellant Duniyalal Mahto was carrying a bag. All the appellants started abusing the deceased Khedan Daha who at that time was sitting on a 'chouki' and when the deceased protested appellant Jagdish Mahto ordered for killing him on which appellants Ramdeo Mahto and Rajendra Mahto and co-accused Ramdeo Mahto fired shots from their pistols hitting on the chest and rib cage of deceased and the deceased after receiving injuries fell down and died. He has further stated that a brickbat thrown by appellant Anup Lal Mahto hit his lips on right side as a result of which half of his tooth broke. PW-16 has said that at the time of occurrence he was at his 'darwaja' which is in front of the 'darwaja' of the deceased and at that time the deceased was sitting in his own verandah on a 'chouki' and at that time an electric bulb was lighting in the boring house situate towards east-northern corner of the house of the deceased. All the appellants along with co-accused Ramdeo Mahto came at the darwaja of the deceased. Appellants Ramdeo Mahto, Rajendra Mahto and co-accused Ramdeo Mahto were carrying pistols, appellant Duniyalal Mahto was carrying a bag and appellants Anup Lal Mahto and Subelal Mahto were carrying brickbats. All the appellants started abusing the deceased saying that the deceased was a veteran litigant and had to be finished. When the deceased asked why they were abusing him appellant Jagdish Mahto ordered for his killing, on which appellants Ramdeo Mahto and Rajendra Mahto and co-accused Ramdeo Mahto fired from the pistols at the deceased who after receiving injuries fell down and instantaneously died. Appellants Anup Lal Mahto and Subelal Mahto started picketing brickbats as a result of which one tooth of Krishnadeo Daha was broken and he received injures on his lips. Lal Bahadur Daha (PW-5) has stated that at the time of occurrence he was in his 'angan' and after hearing sound of firing he came out and saw all the appellants and co-accused Ramdeo Mahto fleeing away. Appellants Ramdeo Mahto and Rajendra Mahto and co-accused Ramdeo Mahto were armed with pistols, appellants Duniyalal Mahto was carrying a bag and appellants Anup Lal and Subelal Mahto were carrying brickbats. He also found the deceased Khedan Daha lying at the darwaja in a pool of blood and at that time electric light was there in which he identified the appellants. In cross-examination he has admitted that he is the son of Shaukhi who was brother of deceased.

8. Shri Krishna Singh (PW-18), the I.O., in his evidence has said that on 5-11-1985 he was posted as S.I. at Bibhutipur Police Station and on that day at 8 pm he received information that there had been a firing in village Sindhia Bujurg and he then along with police force went to that village where he found the family member of the deceased weeping in front of their house and the dead body of deceased was lying there. He then recorded fardbeyan of the informant, prepared inquest report, sent the dead body for post mortem examination and re-examined the informant and recorded statements of PW-11 Krishnadeo Daha. Thereafter electric light went off so he came back to police station, drew formal FIR (Ext. 1) and on the next day in the morning he again went to the village inspected the place of occurrence and recorded the statements of witnesses. He also found blood in abundant quantity in the Sahan (open land) in front of verandah of 'dalan' of deceased, blood stained front portions of two cartridges of 303, a pair of shoes with blood stains, brickbats, all at the place of occurrence and seized these articles and prepared seizure list (Ext. 6). He has proved the portions of cartridges (material Exts. I and I/I) and packet of brickbats (material Ext.II). He has further-stated that in the north-east corner adjacent to the place of occurrence he found a boring house on which an electric of 200 watt, was hanging with a bamboo.

9. During cross-examination' of Lalbabu Daha (PW-5) a suggestion was given to him by the defence that in his earlier statements he had not stated that appellants Ramdeo Mahto and Rajendra Mahto and co-accused Ramdeo Mahto were carrying pistols, appellant Duniyalal Mahto was carrying a bag and appellants Anup Lal Mahto and Subelal Mahto were carrying brickbats and he had identified the appellants in the light of the bulb. Although this witness has denied this suggestion but the I.O. (PW-18) in his evidence has stated that this witness had not stated before him that he had identified the appellants in the electric light and about appellants Ramdeo Mahto and Rajendra Mahto carrying pistols, appellant Duniyalal Mahto carrying a bag, and appellant Anup Lal Mahto and Subelal Mahto carrying brickbats. Similarly, suggestion by defence to Ramesh Daha (PW-7) during his cross-examination was also given that in his earlier statements he had not stated that he was reading with his brother Arvind at his darwaja and at that time there was electric light and appellant Ramdeo Mahto fired from his pistol hitting on the left chest of deceased and appellant Rajendra fired from his pistol hitting right rib cage of deceased and appellant Duniyalal Mahto was carrying a bag and was giving threatenings for exploding bomb and appellants Anup Lal Mahto and Subelal Mahto were hurling brickbats which caused injuries to PW-11. PW-18 the I.O. in his evidence has stated that aforesaid statements were not given by Ramesh Daha. From the evidence of the I.O. it appears that there are contradictions in the earlier statements and evidence of PW-5 and PW-7, but so far the evidence of PW-13 and other two witnesses, namely, Krishnadeo Daha (PW-11) and Bishnudeo Daha (PW-16) is concerned, no such contradictions have been brought on record. Besides this, nothing has been elicited from them in their cross-examination to make their evidence unreliable.

10. Learned counsel appearing on behalf of the appellants have submitted that the case of the prosecution is that at the time of occurrence an electric bulb was lighting in the light of which the prosecution witnesses witnessed the occurrence and identified the appellants but the I.O. (PW-18) in his evidence has stated that when he reached the place of occurrence there was no electric light there and he has admitted that in para-13 of the case diary he mentioned that till 12 O'clock in the night there was no electricity and therefore further steps would be taken tomorrow. Besides this, the I.O. has stated that PW-11 had not stated before him that at the time of occurrence an electric bulb was lighting. According to the defence, this admission by the I.O. makes the case of prosecution doubtful on the point of availability of electric light at the time of occurrence as has been deposed by the prosecution witnesses. On scrutiny of evidence of I.O. we find that the I.p. first stated that on the night of the date of occurrence he reached the place of occurrence he recorded the further statement of informant and PW-11 Krishnadeo Daha and thereafter electric power went off due to load shedding. Again in his subsequent statements he has said that he recorded the fardbeyan in the light of a lantern. But at the same time he has stated that he found an electric blub hanging with a bamboo on boring house situate at north east corner adjacent to the place of occurrence. The defence has given suggestion to PW-16 that at the time of occurrence there was load shedding. This suggestion has been denied by this witneSections The defence has not disputed the fact that an electric bulb was hanging at the boring house'situate adjacent to the place of occurrence. The suggestion by defence to PW-16 that at the time of occurrence there was load shedding at least admits that there was electric connection in the boring house adjacent to the place of occurrence. Learned counsel appearing on behalf of the appellants have submitted that because the prosecution has not proved that at the time of occurrence there was no load shedding, therefore its case that electric bulb was lighting at the time of occurrence cannot be believed. We are unable to accept this argument. Once the existence of electric connection in a house is admitted, it is presumed that there will be supply of electric power unless it is proved that at a particular time there was load shedding or the electric connection had been disconnected on any account. Because the defence has not disputed that there was electric connection it was for the defence to prove that at the time of occurrence there was load shedding. The defence has not led any such evidence in this case and it has merely given suggestion to this effect to PW-13 and PW-16 which has been denied. On the other hand it is the evidence of prosecution witnesses that at the time of occurrence an electric bulb was lighting. The existence of electric bulb has been supported by the evidence of the I.O. Even if the evidence of PW-11 on account of his failure to state before the I.O. that an electric bulb was lighting is discarded, the evidence of other prosecution witnesses remains unshaken that at the time of occurrence in the light of an electric bulb they witnessed the occurrence. The next question raised on behalf of the appellants is about the place of occurrence. Learned counsel for the appellants have argued that it is the case of the prosecution that the deceased after receiving injuries by pistols fell down in the verandah and instantaneously died there. This has been stated by all prosecution witnesses who are said to be eye witnesses to the occurrence as well as by PW-5 who is said to have reached the place of occurrence after hearing the sound of fire, but the I.O. (PW-18) in his evidence has stated that he found the dead body of the deceased lying in a Sahan from where he seized blood stained earth, blood stained portions of cartridge and blood stained pair of shoes and the place of occurrence, as alleged by the prosecution, therefore, does not tally with the place of occurrence as stated by the I.O. It is true that the prosecution witnesses have stated that the deceased after receiving injuries fell down in his verandah but the informant in his evidence has stated that dalan is facing towards north and Sahan of this dalan is about 5-6 cubits in length from north to south and 15-16 cubits from east to west. He has further stated that at the time of occurrence the appellants were standing in the Sahan adjacent to north to the verandah of dalan and his father after rising from the chowki had gone to the north end of verandah and when his father was standing below the verandah, he received injuries. PW-11 has also stated that the dalan and verandah are facing towards north and there are three rooms, all in one line facing towards north and all the three rooms open in the verandah situate north from the rooms. According to him the verandah is about 15-16 cubits in length from east to west and 4 cubits from north to south. The I.O. in his evidence has said that the dead body of the deceased was found in the Sahan in front of dalan. According to him, the place of occurrence is dalan and verandah of the deceased. If the evidence of the aforesaid witnesses is taken together, it shows that the dalan of deceased consists of three rooms facing north and all rooms are in one line and are also facing north and all the rooms open in a verandah towards north of the rooms and after verandah which is 4 cubics in breadth, there is Sahan. In villages open lands is called 'Sahan'. As per the evidence on record at the time of occurrence the deceased after rising from the chowki on which he was sitting went to the northern end of verandah and there he received injuries and fell down. In these circumstances, if he fell on verandah or in Sahan which is adjacent to verandah hardly makes any difference. We do not find that it is a case of not establishing the place of occurrence as alleged because it is manifest from the evidence of prosecution witnesses that verandah is very narrow having a width of 4 cubits and thereafter there is Sahan, adjacent to it. On the basis of this minor contradiction especially when at the time of receiving injuries the deceased was standing on the northern edge of verandah it cannot be said that it is a case in which place of occurrence has not been established by the prosecution.

11. It has also been argued on behalf of the appellants that all prosecution witnesses in this case are related to each other and are interested witnesses and no independent witness has been examined on behalf of the prosecution. It is true that PW-7 is the brother of informant, PW-11 is cousin of informant, PW-16 is the nephew of the deceased and PW-5 is cousin of deceased. But then they being relations of the deceased living with him or near his house are natural witnesses who have witnessed the occurrence. Because they are related to each other, their evidence cannot be disbelieved only on this score. From the evidence of these witnesses, we find that they have consistently supported the case of the prosecution and have stood the test of cross examination and we find no reason to disbelieve them.

12. The next point argued on behalf of the appellants is that in absence of any proof that the appellants had any common object to commit murder of the deceased and in view of the evidence of PW-17, Dr. Manindra Bhatt, who held autopsy on the dead body of the deceased, that the deceased had received only one injury which was fatal and according to the prosecution witnesses, co-accused Ramdeo Mahto was the author of this injury, the appellants cannot be said to have committed any offence because they did not commit any overt Act. In support of this submission the learned counsel appearing on behalf of the appellants have drawn the attention of the Court towards the evidence of Manindra Bhatt (PW-17) the doctor, who held the autopsy, in Para 11 where he has stated that injury No. (ii) found, on the dead body of the deceased was an exit injury. In other words, the defence has tried to make out a case that the doctor had found only two injuries because injury No. (ii) was an exit injury and the second remaining injury which has been numbered as injury No. (iii) was lacerated injury and on dissection it was found to be superficial and PW-17 in his evidence has said that this injury may also be caused by any hard and pointed substance. So In this view of the matter there was only one injury which was on the chest of the deceased which proved fatal and which, according to the prosecution, was caused by co-accused Ramdeo Mahto, who is now dead.

13. So far the question of having common object by the appellants is concerned, we find that the appellants along with co-accused Ramdeo Mahto formed an assembly, three of the members of this assembly were carrying pistols and two, brickbats. They all went to the house of deceased with whom they were on inimical terms and started abusing him and thereafter three of them fired at him by their pistols, two of them started throwing brickbats and when the deceased after receiving injuries fell down and died, they fled away. These facts prove that the appellants had common object to commit murder of the deceased. At least they must be knowing before proceeding to the house of deceased that murder may take place because three of them were armed with pistols. We do not find that anything more is required to prove that the assembly formed by appellants at the time of occurrence was an unlawful assembly and its common object was to commit murder of deceased Khedan Daha. About the deceased having only one injury we find that FW-17, the doctor, first stated that he found three ante mortem injuries on the dead body of the deceased out of which injury No. (1) which was lacerated wound, was on the left side of the chest lateral to the sternum at the level of sixth right coastal cartilage and injury No. (ii) which was lacerated wound was on the left side of chest just medial to upper portion of left axillary fold. He also stated that both the injuries were caused by fire arms and cause of death was shock and haemorrhage caused by these two injuries and these two injuries were sufficient in ordinary course to cause death. But in cross-examination he has stated that injury No. (ii) was exit injury. No doubt, in his examination-in-chief he has stated that injury No. (i) was found connected with injury No. (ii) but then his evidence in cross-examination that injury No. (ii) was an exit injury does not appear to be convicting in view of his earlier statements that injury Nos. (i) and (ii) were two separate injuries. In the post. mortem examination report (Ext. 8) also which has been proved by him, it is not mentioned that injury Nos. (i) and (ii) were, in fact, only one injury and one was exit of the other. The Court below has rightly rejected this piece of evidence and its finding is correct that injury Nos. (i) and (ii) were on such portions of the body of the deceased that commonly it. cannot be said that one was the exit of the other. On the other hand, it is the consistent evidence of the prosecution witnesses that co-accused Ramdeo Mahto and appellants Ramdeo Mahto and Rajendra Mahto fired at the deceased causing injuries and injury caused by appellant Ramdeo was on the left side of chest below the shoulder and this injury has been described as injury No. (ii) in the evidence of PW-17 who found this injury along with injury No. (i) sufficient in ordinary course to cause death. Because the doctor has not stated that injury No. (ii) alone was sufficient to cause death in ordinary course, we find that charge under Section 302, I.P.C. is not proved against the appellant Ramdeo Mahto but then he was a member of unlawful assembly having common object to commit murder of the deceased and he also fired at the deceased, therefore, he cannot escape from the liability of his conviction under Section 302 read with Section 149, I.P.C. In this view of the matter, if the argument advanced on behalf of the learned counsel for the appellants that only one fatal injury was caused to the deceased the author of which was co-accused Ramdeo, who is dead now, is accepted, after believing the evidence of PW-17 in his cross-examination that injury No. (ii) was an exit injury, it will not extend any help to the appellants because they were the members of unlawful assembly and one of them co-accused Ramdeo Mahto gave a fatal shot to the deceased in prosecution of the common object of the assembly and therefore they all will be held liable under Section 302 read with Section 149, I.P.C.

14. The last point raised on behalf of the appellants is the plea of alibi of the of appellant Jagdish Mahto. No doubt DW-1, Krishna Nand Lal has proved an entry in the indoor register (Ext. A) in order to show that appellant Jagdish Mahto was admitted in Government T.B. Centre on 10 10-101985 and he remained in the hospital till 6-12-1985. The Court below has rightly rejected this piece of evidence considering the other entries (Ext. 14 and 14/1) proved by the same witness in the same register which show that at the same time some other pallcuis were also allotted the same bed which, according to the Entry (Ext. A) was allotted to appellants Jagdish Mahto. Abed in a hospital cannot be allotted to different persons at the same time. About documentary evidence (Ext. B. C.D. series and Ext. E) brought on record showing that brother of appellant Rajendra and father of appellant Ramdeo Mahto had deposed against the deceased, deceased and his father were accused in a case in which appellant Rajendra Mahto, his father and his brother had deposed against them do not help the appellants because these documents have been filed only to show that appellants had enmity with the members of the prosecution party and they have been falsely implicated in this case on this score. The fact that appellants had enmity with prosecution party is admitted in the fardbeyan itself. The enmity between the parties reminds us the old age saying that enmity cuts in both the ways.

15. In this case appellants Anup Lal Mahto has been found guilty under Section 323, I.P.C. and accordingly he has been convicted and sentenced to R.I. for 3 months for causing injury to PW-11, Krishnadeo Daha on his lips. According to the case of the prosecution, at the time of occurrence Anup Lal Mahto and Subelal Mahto started throwing brickbats and a brick thrown by appellant Anup Lal Mahto caused injury on the lips of PW-11 Krishnadeo Daha and broke his one tooth. No doubt Ram Shankar Ojha (PW-14), the doctor, in his evidence, has stated that on 6-11 -1985 he examined PW-11 and found one abrasion over the middle of lower lip l/4'xl/10' and half of the right lower canine tooth was broken. But then the case of prosecution is that appellants Anup lal Mahto and Subelal Mahto both started throwing brickbats and evidence of PW 11 Krishna Deo Daha, the injured, is that they were continuously throwing brickbats after the interval of every second. In this view of the matter, it is not probable that he would have marked a particular brickbat which hit him, thrown by a particular appellant. Besides this, in his evidence he has stated that he had not stated in his earlier statements that it was the brickbat thrown by appellant Anup Lal which hit him. In this view of the matter, we find that the charge under Section 323, I.P.C. against the appellant Anup Lal Mahto is not well proved.

16. Considering the entire evidence on record we find that the prosecution has proved its case beyond all reasonable doubts that the appellants at the time of occurrence were members of the unlawful assembly and in prosecution of the common object of that, assembly the deceased was killed. But since it has not been proved by the medical evidence that injury caused by appellant Ramdeo Mahto was alone sufficient to cause death of the deceased, the conviction of the appellant Ramdeo Mahto under Section 302, I.P.C. is converted into one under Section 302 read with Section 149, I.P.C. The sentences of life imprisonment awarded to him will remain the same under Section 302/ 149, I.P.C. Because charge under Section 323, I.P.C. against appellant Anup Lal Mahto has not been proved, the appellant Anup Lal Mahto is acquitted for this charge and his conviction and sentence under Section 323, I.P.C. awarded by the Court below is set aside. Appellants Ramdeo Mahto and Rajendra Mahto have been found guilty under Section 148, I.P.C. also and the remaining appellants, namely. Duniya Lal Mahto, Anup Lal Mahto, Jagdish Mahto and Subelal Mahto have been found guilty under Section 147, I.P.C. and they have been convicted and sentenced accordingly. Retaining the conviction of appellants Ramdeo Mahto and Rajendra Mahto under Section 148, I.P.C. and of remaining appellants under Section 147, I.P.C. we do not consider the necessity of passing separate sentences under these heads.

17. Summing up, the sentence of appellant Ramdeo Mahto for life imprisonment under Section 302, I.P.C. is converted into sentence of life imprisonment under Section 302 read with Section 149, I.P.C. The sentences of remaining appellants, namely, Rajendra Mahto, Duniya Lal Mahto, Anup Lal Mahto, Jagdish Mahto and Subelal Mahto for life imprisonment under Section 302 read with Section 149, I.P.C. is confirmed. The further sentence of appellants Ramdeo Mahto and Rajendra Mahto of R.I. for two years under Section 27 of the Arms Act is confirmed but sentences passed against them will run concurrently.

18. In the, result, with the aforesaid modification the judgment and order of the Court below is hereby confirmed and both the appeals are dismissed. The bail bonds of appellants namely Duniya Lal Mahto, Anup Lal Mahto Jagdish Mahto and Subelal Mahto, who are on bail, are cancelled and they are directed to surrender before the Court below to serve out the sentence passed against them.

B.P. Sharma, J.

19. I agree.