Manoj Singh and Dharma Mahato @ Dharam Nath Mahato and ors. Vs. State of West Bengal - Court Judgment

P.N. Sinha, J.

1. The appellants being convicted by the learned Additional Sessions Judge, 13th Court, Alipore in Sessions Trial Case No. 3(1) of 2000 under Sections 302 and 302/34 of Indian Penal Code (in short IPC) and sentenced to suffer rigorous imprisonment for life and further sentence of payment of fine of Rs. 10,000/- each, in default, R.I. for three months each have preferred the above stated two separate appeals challenging the judgment and order of conviction and sentence imposed on them. The appellant Manoj Singh who was convicted and sentenced by the Trial Court for the offence under Section 302/34 of the IPC has preferred the appeal being CRA No. 221 of 2001. Appellant Dharma Mahato alias Dharam Nath Mahato who was convicted and sentenced under Section 302 of IPC and the rest four appellants who were convicted and sentenced under Section 302/34 of IPC jointly have preferred the appeal being CRA No. 224 of 2001. Though the accused appellants have preferred two separate appeals challenging the same judgment and order of conviction we intend to dispose of both the appeals by this common judgment and order.

2. The appellants were charged for the offence under Section 364/34 of IPC for causing abduction of one Rajesh Rai with intention to cause his murder and separately for the offence under Section 302/34 of IPC for causing murder of Dinanath Dubey in furtherance of their common intention.

3. Two separate First Information Reports (in short FIR) were lodged for the two distinct offences. Concerning murder of Dianna Dubey the statement of Aloke Chandra Pandit (P.W. 1) given in Oria reduced into writing by the police officer at 11.15 p.m. on 2.10.98 and this statement was treated as FIR and it was registered as Metiaburuz P.S. Case No. 157 dated 2.10.98 under Section 302/34 of IPC and Section 25/27 of the Arms Act against Dharma and 5/6 others. The prosecution story according to FIR, in short, is that on the said date at about 10.30 p.m. Rajan and Dinanath Dubey arrived in front of house of P.W. 1 after immersing the deity of Goddess 'Durga' and thereafter Rajan left for his home. Dinanath Dubey asked for 'prasad' from P.W. I and he went towards Dubeji for giving the 'prasad'. At that time P.W. I found Dharma had caught hold of Dinanath Dubey from behind armed with revolver and Dharma took away Dinanath Dubey in front of Shiv temple on the opposite side of the road and fired at Dinanath Dubey. Dinanath Dubey fell down in front of the Shiv temple with profuse bleeding and died instantly. 5/6 other persons were with Dharma and they were armed with bombs in their hands. They raised hue and cry and also exploded bomb for which everybody moved away to safer place out of fear. Later on P.W. I learnt that Tarak, Manoj, Rahis, Rabi and others were with Dharma.

4. Concerning the other incident of abduction and murder of Rajesh Rai the statement of Dilip Kumar Sarkar (P.W. 5) a Habildar of Calcutta Armed Police was treated as FIR giving rise to S.P.P.S. Case No. 314 dated 3.10.98. Subsequently, by the order of the learned Sub-Divisional Judicial Magistrate, Alipore the said case was transferred to the Metiaburuz P.S. as the incident occurred within the area of Metiaburuz P.S. The prosecution story as it transpires from the statement of Dilip Kumar Sarkar, in short, is that on 2.10.98 he was on duty along with others at Brooklyne FCI Godown for patrolling duty from 8.30 p.m. to 6.30 a.m. of 3.10.98. He was performing patrol duty with Faring, Babulal and Tarun in and around the vicinity of Brooklyne FCI Godown. At about 10.30 p.m. they learnt from two local people that an incident had taken place at Moila depot within the jurisdiction of Metiaburuz P.S. While they were performing patrolling duty at about 00.45 hours they found one unknown person aged about 28/30 years smeared with blood lying in between the FCI Godown numbers 4 and 5. The victim was found having gun shot injuries on his head and also other sharp-cutting bleeding injuries on his person. P.W. 5 Dilip Sarkar called him and touched him, but received no response and he detected that the said person was dead. P.W. 5 transmitted news of this matter to his company office through walkie talkie. Thereafter, officers of S.P.P.S. arrived at the spot and on the basis of it the aforesaid S.P.P.S. Case was started and subsequently the same was transferred to the Metiaburuz P.S. for investigation.

5. P.W. 15, the Investigating Officer (in short I.O.) of Metiaburuz P.S. conducted investigation in both the cases and after completing investigation submitted chargesheet against these accused persons under Sections 302/34 and 364 of the IPC read with Sections 25 and 27 of the Arms Act. During investigation it was transpired that the unknown person whose deadbody was detected by P.W. 5 Dilip Kumar Sarkar was one Rajesh Kumar Roy @ Rai. We have already mentioned about the charges framed by the learned Trial Court and the trial that followed ended in conviction and sentence of the appellants as mentioned above.

6. We find that the prosecution examined as many as 15 witnesses to prove its case namely, P.W. 1 Aloke Chandra Pandit, P.W. 2 Rajendra Singh, P.W. 3 Ajoy Roy Chowdhury, P.W. 4 Dayananda Shaw, P.W. 5 Dilip Kumar Sarkar, P.W. 6 Sitesh Chandra Karmakar, P.W. 7 Binod Kumar Rajbhar, P.W. 8 Chandra Bahadur Sonar, P.W. 9 Firoz A. Khan, P.W. 10 Uttam Kumar Mukherjee, P.W. 11 Dr. Pran Gopal Bhattacharya (post-mortem surgeon), P.W. 12 Swapan Bagchi, P.W. 13 S.K. Saha, P.W. 14 Chottu Lal Shaw and P.W. 15 Ashok Kumar Chakraborty (I.O.).

7. Out of the aforesaid 15 witnesses P.W. 1 is the informant concerning murder of Dinanath Dubey and P.W. 5 is the informant concerning abduction and murder of Rajesh Rai. P.W. 2 and P.W. 4 in their evidence stated nothing concerning the incident and accordingly their evidence is left out of our consideration. P.W. I according to FIR was an eye-witness of the incident of murder of Dinanath Dubey, but the said witness in his evidence did not state anything in support of the prosecution case. His evidence only reveals that Dinanath Dubey asked for 'prasad' and this witness entered inside the temple for fetching 'prasad' and at that time he heard sound of bomb bursting followed by hue and cry and out of fear he did not come out of the temple and thereby exposed himself as a witness who did not see murder of Dinanath Dubey. Surprisingly enough the Public Prosecutor-in-Charge of the case did not declare this witness a hostile witness and did not confront him about his narration of incident in FIR and we are amazed at this conduct of the Public Prosecutor.

8. We find that P.W. 3 Ajoy Roy Chowdhury, P.W. 7 Binod Kumar Rajbhar and P.W. 8 Chandra Bahadur Sonar were the three eye-witnesses of incident of murder of Dinanath Dubey and we would enter into discussion of their evidence later on. The evidence of post-mortem surgeon (P.W. 11) and the I.O. (P.W. 15) are also important for the prosecution so also the evidence of P.W. 12 Swapan Bagchi another police officer who was at the relevant time Inspector-in Charge of Metiaburuz P.S.

9. Evidence of P.W. 5 do not reveal anything in favour of prosecution as he simply detected deadbody of Rajesh Rai lying between FCI Godown Nos. 4 and 5. P.W. 14 is a home guard who carried deadbody of Dinanath Dubey to Kantapukur morgue by challan prepared by ASI S.K. Saha (P.W. 13) and identified the deadbody of Dinanath Dubey before the autopsy surgeon. P.W. 13 is the ASI of Police who prepared inquest on the deadbody of Dinanath Dubey at M.R. Bangur Hospital in presence of witnesses and prepared inquest report (Ext. 12) and thereafter through challan sent deadbody to morgue through home guard Chottu Lai Shaw.

10. P.W. 6 is ASI of Police who received the complaint forwarded by P.W. 12 Swapan Bagchi and started the Metiaburuz P.S Case No. 157 dated 2.10.98 against Dharma Mahato and 5/6 others over that complaint. His evidence reveals that while he was on duty at the police station on 2.10.98 he received one information over telephone which he entered into general diary No. 92 dated 2.10.98 at 10.25 p.m. (Ext. 2).

11. P.W. 9 is an executive of a private security organisation and on the eventful night when he was returning to home from a party he was asked by police to identify one deadbody, but he failed to identify the body. He was made a witness of seizure of wearing apparels, sandal and other articles concerning that deadbody which was later on known as body of Rajesh Roy.

12. P.W. 10 is another police officer who was on duty at S.P.P.S. on 2.10.98 and he received one information from O.C. Control Room, Lalbazar to the effect that a deadbody was lying on Brooklyne FCI Godown. Receiving the information he rushed to that place and found one deadbody lying there and he also found police personnel on duty there and he reduced into writing the statement of Dilip Kumar Sarkar (P.W. 5) which was marked as Ext. 8 and on the basis of it the aforesaid S.P.P.S. Case was started. He also held inquest on the deadbody of the said person in presence of witnesses which was marked Ext. 9. He also prepared three seizure lists seizing controlled blood, cotton stained with blood, one key, one pair of chappal, diary, cash memo, one red coloured belt, bunch of hair etc. During investigation he found that the incident occurred within Metiaburuz P.S. and accordingly he filed an application before the learned Magistrate and thereafter the case was transferred to Metiaburuz P.S. for further investigation. His cross-examination do not reveal anything important either for prosecution or the defence.

13. Evidence of P.W. 3 gives us the story that the incident took place on 2nd October, 1998 near Shiv temple on T.G. Road at about 10 p.m. On that day after the immersion ceremony of the Goddess Durga they came to the Kali Temple for taking 'prasad'. They noticed Dinanath Dubey and five others also assembled at Kali Temple for taking 'prasad'. After taking 'prasad' they were waiting outside of the temple in front of a medicine shop. At that time turning back they found that Dharma and five others were dragging Dubeji along the road and took away him near Shiv temple and shot him there. They then approached towards that place but the miscreants hurled bomb. Accused Dharam, Manoj Singh, Tarak Singh, Ashok, Rahis and Monoj Chowdhury fled away after hurling bomb. They then rushed to Dubeji who was lying with bullet injury. In the meantime police van came there. He stated specifically that accused Dharam shot Dubeji by revolver. He was a witness of seizure in two seizure lists by which blood-stained earth and dry earth from place of occurrence, Durga puja bill book, one dot pen, blank used cartridges and some remnants of used bomb and two live bombs were seized and the seizure lists were marked Exts. 3 and 4.

14. His cross-examination reveals that he did not see Aloke Pandit and Raj an Singh at the time of the incident though he saw them when they came back after immersing the image of Goddess Durga. The police stayed there at the place of occurrence upto 3.00 a.m. night. He denied the defence suggestion that he was involved in criminal cases and criminal cases are pending against him.

15. P.W. 7 and P.W. 8 fully corroborated evidence of P.W. 3. These two witnesses in their evidence stated that the incident took place on 2.10.98 at about 10 p.m. at night near Shiv temple on T.G. Road. They came to the temple after immersion ceremony of Goddess Durga and at temple they took 'shantijal' and 'prasad' from the priest Aloke Pandit. After taking 'prasad' they were gossiping in front of shops of jewellery and medicine and at that time they saw the accused persons approaching towards Dubeji. Accused Dharma caught hold of Dubeji, from behind and placed a revolver on his head and dragged him away to the Shiv temple and fired 2/3 shots from his revolver. Seeing the incident they tried to approach towards Dubeji but the other accused persons hurled bomb. The accused persons fled away after murdering Dubeji. P.W. 7 identified the accused persons in Court though in his evidence he did not utter names of all accused persons. P.W. 8 in his evidence stated the names of accused persons as Dharma, Manoj Singh, Manoj Chowdhury, Ashok, Tarak and Rahis. P.W. 8 was specific in his evidence by stating that accused Dharma dragged Dubeji by pulling him from back side and thereafter Dharma shot Dubeji on his head by a revolver' and they heard two consecutive sounds after the shooting of Dubeji by Dharma. Accused persons fled away from the spot by hurling bomb. He saw Dubeji lying on ground having bill book and pen in his hand. The deadbody of Dubeji was lifted in police vehicle and the police took away Dubeji to hospital for treatment. P.W. 8 was also the witness of seizure like P.W. 3 in both the seizure lists marked Exts. 3 and 4.

16. Cross-examination of P.W. 7 reveals that suggestion was given to him of his being involved in three murder cases and two case numbers were suggested to him but he denied the defence suggestion of his involvement in the murder cases. He denied the suggestion that he was a stock witness of the police.

17. Cross-examination of P.W. 8 reveals that only one bomb was exploded. Suggestion was also given to him alleging his involvement in two murder cases which he denied. He also denied the defence suggestion that WPA is pending against him. He stated categorically that he did not see Aloke Pandit (P.W. 1) and Rajen Singh (P.W. 2) at the time of alleged incident. He was at the place of occurrence from 9.45 p.m. to 3 a.m. and police came there at about 10.15 p.m. and police stayed there throughout the night and they were interrogated by police on that night. He failed to state who informed the police about the incident over telephone. His cross-examination reveals that the Kali temple is opposite to the Shiv temple. There are shops of medicine, tea, jewellery etc. near the place of occurrence. When he first saw Dharma the said accused was at a distance of more than 15 cubits from him. He shouted when he saw the accused persons approaching the Dubeji. After receiving gun shots Dubeji fell down and lay supine against the wall of the temple putting his knee on the earth. The family members of Dubeji came to the place of occurrence and they were present when police arrived there.

18. Evidence of P.W. 11, the autopsy surgeon reveals that on 3rd October, 1998 he held post-mortem examination over the deadbody of one Dinanath Dubey in connection with Jadavpur P.S. U.D. Case No. 398 dated 3.10.98 being brought by home guard Chottu Lal Shaw.

19. On examination he found the following:

(1) One gun-shot injury of entry on the left side of upper part of abdomen 1' inch x 3/4' inch oval in shape, 21/2' inch left lateral side of the ubilicus with the evidence of burning, singeing and blackening.

On dissection and tracing the track it is found to pierce corresponding intestinal coils passing obliquely backward penetrating the liver and lost in the liver penetrating.

(2) Another gun shot injury of entry on the starnel notch 3/4' inch x 1/2' inch x 3/4' inch with the evidence of burning, singeing and blackening more or less oval in shape.

(3) Another gun-shot injury of entry on the right temporal region of the head 1/3' inch x 3/4' inch oval in shape with the evidence of burning, singeing and blackening just behind the right ear. Then passed through and through and obliquely pierce the brain substances making a wound of exit on the left parietal region of the head with lacerated wound 2' inch x 11/2' inch with everted margins.

20. He opined that the death was due to the effect of the gun-shot injuries stated above, ante-mortem and homicidal in nature. The above type of injuries may be caused by the bullets.

21. He stated that on the same day he held another post-mortem examination over deadbody of one unknown Hindu male aged about 30 years later on known as Rajesh Kumar Roy in connection with S.P. P.S. inquest report No. 11 dated 3.10.98. On examination he found the following injuries:

(1) Incised wound on the left ankle of the left eye to the medial of the forehead in flap, 6' inches x 4' inches x 1/4'inches.

(2) One gun-shot injury of entrance 1' inch x 3/4' inch oval in shape with the evidence of burning, singeing and blackening on the back of Ms' inch lateral to the 10th, 11th thorasic vertebra and it passed through and through after perforating spleen, stomach, intestinal coils and pellet found in the peritoneum.

(3) Another gun-shot injury of entrance 1' inch x 3/4' inch oval in shape on the forehead 13/4' inch above the nose and passed through and through piercing skull bones and brain substances by producing lacerated wound on the occipital region of the head with everted margins. Profuse intracranial haemorrhage.

(4) Cut laceration on the left side of cheek 4' inch x 1' inch.

(5) Abrasion on the right leg 2' inch x 1' inch below the right thigh.

(6) Abrasion 1' inch x 1/2' inch on the left ankle.

22. He opined that the death was due to the effect of the gun-shot injuries and other injuries as stated above, ante-mortem and homicidal in nature.

23. The autopsy surgeon was cross-examined at length and his cross-examination reveals that he found rigor mortis already started was present in the lower limb of the body of Dinanath Dubey. He stated that death might have occurred within 30 hours of performing the post-mortem examination. He did not note the area of singeing and blackening of the gun-shot injury. He admitted that the distance from where it was fired can be ascertained from the area of singeing and blackening. Of course, he stated that it cannot be stated perfectly from what distance it was fired but rough assessment was made. He did not mention circumference of singeing, burning and blackening of the area affected by alleged gun shot. The third gun-shot injury might have been caused from the back side. Any injury frontal, occipital, right temporal has its corresponding effect.

24. He stated in cross-examination that a man cannot stand even for a moment after sustaining injury No. 3. He used ordinary scale in determining the measurement of the injury though he was aware that an autopsy surgeon must use the business scale for ascertaining the actual measurement of the injury.

25. He stated that deceased Rajesh Kumar Roy received gun-shot injury within 24 hours of performing the post-mortem examination. He found all the injuries on the person of deceased Dinanath Dubey were oblique in nature. He could not say exactly whether the direction of the muscles was downward in course of shooting. He failed to state whether the assailant was on the higher level than that of the victim. He stated that if a person is dragged touching the heal or any portion of the body there must be a laceration.

26. P.W. 12 in his evidence stated that on 2.10.98 he was the Inspector-in-Charge of Metiaburuz P.S. On that day while he was on immersion duty he received one R.T. message from duty officer ASI Section Karmakar to the effect that Dharma Mahato and his men had entered into T.G. Road and gunned down one person dead. He also received the message that local person who were there tried to resist but Dharma and his men charged bombs and therefore left the place. He received the message at about 10 p.m. Receiving the message he went to the spot with available force and reaching there he found a man identified as Dinanath Dubey lying with pool of blood with gun-shot injuries. He recorded the statement of Aloke Chandra Pandit (P.W. 1), a priest of the temple in front of the place of occurrence who was the eye-witness of the occurrence and the statement of P.W. 1 recorded by him was treated as written complaint (Ext. 1) and after it was read over and explained to Sri Pandit he put his signature on it in Oria. The complaint was forwarded to the Duty Officer of the police station for starting specific case. He entrusted Ashok Chakraborty (P.W. 15) to investigate the case.

27. His cross-examination gives us the evidence that at about 10.30 p.m. he received the message from ASI Section Karmakar. He made it clear that he had no personal knowledge about Ajoy Roy Chowdhury (P.W. 3), Binod Rajbhar (P.W. 7) and Chandra Bahadur Sonar (P.W. 8). He could not remember whether several cases including murder, dacoity etc. are pending against the aforesaid three witnesses. He stated that without going through the records he cannot state whether he was asked to show cause by the learned Magistrate of Alipore for non-production of case diary in connection with Metiaburuz P.S. Case No. 379 dated 19.12.96 against Binod Rajbhar and others under Section 302/34 of IPC. He also stated that without going to the records he cannot state whether proclamation and attachment were issued against Binod Rajbhar and Chandra Bahadur Sonar in connection with the aforesaid Metiaburuz P.S. Case No. 379. He denied the defence suggestion that under pressure of the notorious criminals assembled at place of occurrence he obtained signature of Aloke Pandit in a blank paper in Oria script. He also denied the defence suggestion that Aloke Pandit did not make the statement as recorded by him and that the statement of Aloke Pandit recorded by him was manufactured for the purpose of this case.

28. The I.O., P.W. 15 in his evidence disclosed that on 2.10.98 while he was on duty at the police station he received one telephonic message from one Dhananjoy Singh (not examined as a witness) to the effect that Dharma and five others were hurling bombs in the puja pandal on T.G. Road and after murdering one person they were fleeing away. Receiving the telephonic message he rushed to the spot with force and found a deadbody lying in pool of blood near a Shiv temple on T.G. Road. He informed the matter to his superior officer over R.T. message and the superior officer rushed to the spot. From local people he learnt that it was the deadbody of one Dinanath Dubey who was murdered by Dharma and five others. He sent the dead-body to the M.R. Bangur Hospital for treatment and also for ascertainment whether the said person was dead or alive. His superior officer Swapan Bagchi (P.W. 12) recorded the statement of Aloke Pandit which was treated as the written complaint and the complaint was sent to the police station for starting specific case and he was entrusted with the investigation. He prepared sketch map (Ext. 4) of the place of occurrence and also examined witnesses available at the place of occurrence. He seized blood-stained earth, dry earth, one subscription book of Belpukur Sarbojonin Durgotsav Committee containing blood-stain at page 47, one dot pen of deep blue colour, two used bullets bearing No. KF-94 and KF-95. The seizure list prepared by him at the place of occurrence in presence of witnesses was marked Ext. 3. He also seized remnants of exploded bomb including burnt jute having smell of explosive substance, some pieces of small sticks, some small nails having smell of explosive substance and two live bombs by preparing a seizure list (Ext. 4). During investigation he received one case docket from S.P.P.S. and he also started investigation of that case and during investigation he could realise that the said incident also happened in the same transaction.

29. He did not examine the wife and the children of deceased Dinanath Dubey. He was not aware of whether P.W. 3, P.W. 7 and P.W. 8 were wanted in several murder cases and stated that those witnesses were not the pocket witnesses of the police department. He examined the eye-witnesses whose names he got at the time of investigation. After completing investigation he submitted chargesheet against these accused persons under Section 302/34/364 of the IPC and Sections 25 and 27 of the Arms Act.

30. His cross-examination reveals that he did not verify the antecedents, profession of the witnesses examined by him during investigation. It did not transpire during investigation that the star witness Binod Rajbhar @ Kalia (P.W. 7) is wanted in connection with Metiaburuz P.S. Case Nos. 379 dated 19.12.96 and 388 dated 29.12.96. He did not submit any prayer before the learned Magistrate at Alipore for placing the accused persons in the T.I. Parade in respect of the murder committed within the jurisdiction of S.P. P.S. He did not send the spent/used bullets to the ballistic expert for examination. He did not send the used bullet for comparison recovered from the body of deceased Dinanath Dubey to any expert. He did not take assistance of any serologist to ascertain whether it as human blood or not. He did not meet Madan Singh, the local Councillor who was a witness to the inquest in respect of deadbody of Dinanath Dubey. He denied the defence suggestion that the accused persons were falsely implicated in this case.

31. Mr. Sekhar Basu, the learned senior Counsel for the appellants submitted that it was like a story of 'Ramayana' which was written before the birth of the Lord Rama. The G.D. Entry No. 92 dated 2.10.98 of Metiaburuz P.S. was recorded at 10.25 p.m. P.W. I stated that the incident took place at about 10.30 p.m. P.W. 2 also stated that the incident took place at about 10/10.30 p.m. P.W. 12, the police officer stated that he received the messagefat about 10 p.m. and in cross-examination the same witness stated that he received the message at about 10.35 p.m. These discrepancies show that G.D. Entry was made before the actual incident and the substratum of the prosecution case has become defective.

32. On the contrary, Mr. Kazi Safiullah, the learned Public Prosecutor submitted that the incident of murder of Dinanath Dubey took place before 10 p.m. and the police officer received message regarding the incident at about 10 p.m. The discrepancy of 10/15 minutes should always be ignored as watch of everybody does not give identical time.

33. After considering the submissions of the learned Advocates of both parties we are of opinion that the contention of Mr. Basu is not acceptable and this submission has no foundation. P.W. 1 and P.W. 2 in their evidence did not claim themselves as eye-witnesses though P.W. 1 in the FIR (Ext. 1) gave his version in a manner as if he was the eye-witness. We have already indicated the mistake made by the learned Public Prosecutor-in-Charge of the case by not declaring P.W. 1 a hostile witness. The witnesses, who in their evidence did not state about witnessing the incident and did not show their presence at the place of occurrence cannot at all state about the exact or probable time of incident. Naturally, we would place reliance on the evidence of the eye-witnesses who actually saw the incident. Evidence of P.Ws. 3, 7, and 8 reveal that the incident took place at about 10 p.m. thereby indicating that the actual incident might have taken place 2/3 minutes before 10 p.m. or at 10 p.m. or 1/2 minutes after the knock of 10 in the clock at night. P.W. 6 was the duty officer at Metiaburuz P.S. on 2.10.98 and he received one information over telephone in general diary book as G.D. Entry No. 92 dated. 2.10.98 at 10.25 p.m. The 1.0. (P.W. 15) in his evidence stated that he received the telephonic message at about 10.35 p.m. P.W. 12, the Inspector-in-Charge of Metiabuuz P.S. stated that he received the message at about 10 p.m. while in cross-examination he stated that he received the message at 10.35 p.m. This discrepancy of few minutes concerning receipt of message over telephone is not at all vital and does not destroy the prosecution case as from evidence of the eye-witnesses it is clear that the incident took place around 10 p.m. The time mentioned in written complaint (Ext. 1) as 10.30 p.m. when the incident occurred cannot be regarded as exact time of occurrence when P.W. I himself did not support the story revealed in the complaint in his evidence in Court. There is no dispute that the incident took place around 10 p.m. and the fact of death of Dinanath Dubey cannot be ignored and there is no way out from this fact. Accordingly, G.D. Entry was not recorded before the incident and this story was not like 'Ramayana' allegedly written before birth of the Lord Rama. In this matter, neither the FIR nor the G.D. Entry No. 92 dated 2.10.98 was recorded before incident and information was given to police station over telephone after the incident.

34. Next contention of Mr. Basu was that the incident was on 2.10.98 and the FIR was lodged on the same date but the complaint was sent to the learned Magistrate on 5.10-98 and no explanation was given for the delay and it shows that prosecution case lost its foundation. The FIR was antedated and names of appellants in it were falsely inserted. We find no force at all in this submission and there was no cross-examination to I.O. as to why the complaint/FIR was not sent to the learned Magistrate before 5.10.98. The I.O. received the written complaint recorded by P.W. 12 at 10.50 p.m. which appears from his evidence though Ext. 1 reveals that it was recorded at 11.15 p.m. Accused Dharma was named in FIR and it was also mentioned that 5/6 other miscreants accompanied Dharma. Statement of the eyewitnesses were recorded immediately after incident on that night at place of occurrence. Accordingly, question of false implication of accused persons does not arise at all. As we find no possibility at all for false implication of accused in this case the mere delay in sending the FIR to the Magistrate is not at all fatal. There are several decisions of the Supreme Court over this point and we just refer one decision which is State of Jammu & Kashmir v. Mohan Singh reported in 2006 Cr. LJ 1691 wherein the Supreme Court held that,-

It is well-settled that mere delay in sending the First Information Report to a Magistrate cannot be a ground to throw out prosecution case if the evidence adduced is otherwise found credible and trustworthy.

35. Mr. Basu further submitted that the local Councillor and the relatives of the deceased were not examined though the local Councillor was present at the time of inquest on the body of Dinanath Dubey and the relatives of deceased came to place of occurrence soon after the incident. Dhananjoy Singh who allegedly gave information first over telephone was also not examined. The best witnesses were withheld by the prosecution purposefully and adverse presumption should be drawn against the prosecution. It proves that the FIR was not recorded on 2.10.98.

36. We are not convinced with this submission and legal principle lays down that the quality of evidence that requires consideration and not the quantity of evidence. If any witness of inquest who was not witness of incident is not examined in Court that cannot be a ground to doubt the prosecution case. In this case, the wife, children and other relatives of the deceased Dinanath Dubey are not witnesses of the occurrence and naturally no adverse presumption could be drawn against the prosecution under Section 114(g) of the Evidence Act for non-examination of relatives of deceased. Dhananjay Singh as it appears only gave a cryptic information relating to the incident and it was not disclosed who was the person murdered and who were the other assailants. Non-examination of Dhananjay Singh also cannot be a ground to draw adverse presumption when the police officers in their evidence stated that receiving one telephonic message they entered the said message into General Diary No. 92 dated 2.10.98. It is well-settled that a telephonic message which is cryptic and does not contain all the essential requirements of FIR cannot be regarded as FIR. In this connection the decision cited by Mr. Safiullah for the State is important. The Supreme Court in Ramsinh Bavaji Jadeja v. State of Gujarat reported in 1994 Cr. LJ 3067, held that every telephonic information about commission of a cognizable offence irrespective of nature and details of such information cannot be treated as FIR.

37. Mr. Basu on behalf of the appellants also submitted that P.W. 3, P.W. 7 and P.W. 8 cannot see the incident from the place where they were standing which was at medicine shop, as transpired in their evidence. The sketch map of the place of occurrence (Ext. 14) prepared by the 1.0. reveals that there was curve of the road and after the Kali temple the road hag curved and Shiv temple was on the bent or curve of the road. It was not possible for a man standing in front of medicine shop near Kali temple to see the incident which took place in front of Shiv temple.

38. Mr. Safiullah on behalf of the State concerning this point submitted that there was no cross-examination made either to these witnesses or to the 1.0. to establish that the road was curve and it was not possible to see the Siva temple from the Kali temple. Accordingly, it cannot be doubted that the eye-witnesses did not see the incident.

39. After carefully considering the submissions of the learned Advocates for the parties and perusing the oral evidence of P.Ws. 3, 7, 8 and 15 (I.O.) we find that from the evidence of these witnesses either in chief or in cross-examination it did not transpire that road was so curve or bent between Kali temple and Shiv temple that it was not possible for a man to see any incident taking place in front of Shiv temple standing near Kali temple. We have carefully inspected and perused the sketch map marked as Ext. 14. It is true that the sketch map shows a curve sufficiently ahead of the Kali temple but the Shiv temple was not after the curve. From the sketch map it is transparent that Kali temple and Shiv temple are almost face to face intervened by a road. The place of occurrence as it appearing from the sketch map i.e. front of the Shiv temple is easily visible from the Kali temple. It was possible for a man standing in front of medicine shop near Kali temple to see the Shiv temple and front of Shiv temple and it was possible for such a man to see any incident taking place in front of Shiv temple standing near the Kali temple. Over this matter we find no ground to disbelieve the evidence of the eye-witnesses and it was possible for them to see the incident from the place where they were standing.

40. Mr. Basu also submitted that in the charge framed against the appellants time of the incident was not mentioned. According to Section 212 of the Cr.P.C. the charge shall contain such particulars as to the time and place of the alleged offence. Due to non-mention of time of incident in the charge the appellants were seriously prejudiced and it has vitiated the trial. The appellants are entitled to the benefit of the defective charge and trial.

41. We are not convinced with this submission of Mr. Basu as in our opinion, failure of the Trial Court to mention time of incident in the charge has not vitiated the trial nor the same has caused any prejudice to the appellants. The appellants from the trend of evidence of prosecution witnesses were well aware what were the charges against them and what was evidence that was laid relating to time, place and date of murder of Dinanath Dubey. The appellants have cross-examined the prosecution witnesses at length, and not only that, they have cross-examined the police officers relating to time of recording general diary on the basis of telephonic message, time of arrival of police officers at place of occurrence, time of seizure etc. In the 313 Cr. PC examination of the appellants in question No. 11 it was specifically mentioned to them that P.Ws. 3, 7 and 8 stated about happening of the incident on 2nd October, 1998 near Shiv temple at 10 p.m. Besides that, Section 464 of the Cr.P.C. makes it clear that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of Appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. It is abundantly clear from our discussion that there was no confusion at all relating to time of incident and the accused persons knowing well the time, place and date of incident cross-examined the witnesses including the police officers. There was no defect in the trial and the trial was not vitiated nor the accused persons suffered any prejudice.

42. Mr. Basu also submitted that the spent bullets were not sent to the ballistic expert. The seized articles, the blood-stained earth, wearing apparel etc. were not sent to the FSL for chemical examination and report for ascertaining as to whether there were traces of human blood on such articles. The report of ballistic expert could have revealed whether the bullet which was recovered had in fact caused the death of Dinanath Dubey. If the used bullets, wearing apparels stained with blood are not sent to the ballstic expert and chemical analyst respectively it affects the creditworthiness of the prosecution case to a great extent. In support of his contention Mr. Basu cited the decision in Sukhwant Singh v. State of Punjab reported in : AIR1995SC1601 .

43. On the contrary, Mr. Safiullah, the learned Public Prosecutor submitted that no firearm was recovered either from Dharma or from any other accused. It is not a case that the deceased did not die out of gun-shot injuries. Sending of empty bullet to ballistic expert would have revealed nothing either for prosecution or for the defence when firearm was not seized. The ballistic expert in such a situation only would have reported that the used bullets contain materials of explosive substance and some amount of gun shot residue. Non-sending of blood-stained earth for chemical examination and pellets for ballistic examination is not fatal in this case. In support of his contention Mr. Safiullah cited the decision in Dhanaj Singh @ Shara v. State of Punjab reported in 2004 SCC (Cri) 851.

44. In our opinion, in this case non-sending of blood-stained earth and wearing apparels with stains of blood to FSL for chemical examination and used pellets for examination to ballistic expert is not fatal. The decision in Sukhwant Singh v. State of Punjab (supra) cited by Mr. Basu for the appellants is not applicable in this case. In the reported decision the firearm was recovered along with cartridges from the possession of accused and those were not sent to ballistic expert for examination and report. For that reason, the Supreme Court observed that when firearm and cartridges recovered from possession of accused were not sent to ballistic expert it effected creditworthiness of the prosecution case. In the present case before us, nothing was recovered from the possession of accused Dharma Mahato or other accused persons. The firearm used in committing murder of Dinanath Dubey was not recovered. Only two used pellets were recovered which were not sent to ballistic expert. Only used bullets if were sent to the ballistic expert they would have revealed nothing in this case except the report that the used pellets contain sufficient amount of gun-shot residue. If the firearm was recovered then report of ballistic expert had a role to play and opinion of expert would have revealed whether from such firearm those two used bullets/pellets were fired or not. It is undisputed that Dinanath Dubey was murdered by gun-shot injuries. In this case, therefore, non-sending of blood-stained earth and blood-stained wearing apparel and other articles stained with blood to the FSL for chemical examination and pellets to the ballistic expert for examination was not fatal. The decision in Dhanaj Singh v. State of Punjab (supra) is quite apposite in this case as in this decision the Supreme Court observed that non-sending of blood-stained earth for chemical examination and weapons of assault and pellets for ballistic examination on facts was not fatal for the prosecution.

45. Mr. Basu for the appellants further submitted that in the complaint/ FIR there was no whisper that P.Ws. 3, 7 and 8 were present at the temple and they were the eye-witnesses. P.W. 1, the de facto complainant or the FIR maker in his evidence did not support the prosecution case, but he was not declared a hostile witness. His evidence reveals that he did not see who were the eye-witnesses of the incident and he also did not utter name of any accused. When he was not declared a hostile witness the defence can take advantage of such evidence and rely on his evidence. In support of his contention Mr. Basu cited the decisions in Mukhtiar Ahmed Ansari v. State (NCT of Delhi) reported in 2005 SCC (Cri) 1037, Raja Ram v. State of Rajasthan reported in 2005 SCC (Cri) 1050 and Bhimappa Jinnappa Naganur v. State of Karnataka reported in AIR 1993 SC 1469.

46. We find that in Mukhtiar Ahmed Ansari v. State (NCT of Delhi) (supra) and Raja Ram v. State of Rajasthan (supra) the Supreme Court held that prosecution witness was not declared hostile witness though he did not support the prosecution case. The defence can rely upon evidence of such witness and it would be binding, on the prosecution. We accept this principle of law laid down by the Supreme Court, but we are to consider whether this principle of law is sufficient to throw the prosecution case out of Court. In our opinion, complaint/FIR need not be encyclopaedia or 'Mahabharata'. It is not necessary that the FIR should contain minutest details of the incident and would contain names of all the eye-witnesses and vivid description of appearance of eye-witnesses and what were seen by them, vivid description of arms and weapons in hand of different accused persons and different parts played by accused persons etc. The FIR even may be sufficient within 2/3 lines if it fulfils disclosure of happening of cognizable offence inviting police to register the same and to start investigation. A Division Bench of this Court in Calcutta Metropolitan Development Authority v. S.K. Bose reported in 1983 Cr. LJ 1661 observed, it is not necessary that FIR should disclose all ingredients of cognizable offence. In Ram Udgar Jha v. State of Bihar reported in 1987 Cr. LJ 113 it was held that stating minutest details in FIR is neither expected nor possible. Omission in FIR does not discredit informant or other witnesses. The Supreme Court in Bishna @ Bhiswadeb Mahato v. State of West Bengal reported in 2006 (1) SCC (Cri) 696 observed that FIR need not be encyclopaedia i.e. need not contain all details of incident.

47. In our opinion, non-mention of name of eye-witness in FIR is not always fatal. It would be a matter of care and caution if the FIR was lodged 2/3 days after the incident without proper explanation of delay in lodging FIR. In this connection we place our reliance on a decision of the Supreme Court in Dhirajbhai Gorakhbhai Nayak v. State of Gujarat reported in : 2003CriLJ3723 . The facts of the reported decision show that according to medical records death took place at about 4.45 a.m. The FIR was lodged at 5.15 a.m. Name of one of the prosecution witnesses was not found in the FIR. Over this matter the Supreme Court observed that absence of name of a witness in FIR is not a suspicious circumstance. While delivering this decision the Supreme Court relied upon another decision namely Bhagwan v. State of Rajasthan reported in : 2001CriLJ2925 .

48. In view of the principles of law stated above the decision cited by Mr. Basu for the appellant namely Bhimappa Jinnappa Naganur v. State of Karnataka (supra) is not properly applicable in this case as the facts and circumstances of this case are different and there is no inconsistency of the statement of eye-witnesses with medical evidence. In the present case we find that the incident of murder of Dinanath Dubey took place on 2.10.98 at about 10 p.m. and within 30 minutes of the incident the police received the message concerning the incident and immediately police force came to the place of occurrence. One of the police officers recorded the statement of P.W. 1 at 11.15 p.m. The I.O. recorded statement of the eye-witnesses on that very night at place of occurrence. Out of the three eye-witnesses P.W. 3 and P.W. 8 were also witnesses of seizure of articles which were seized by the I.O. from place of occurrence on that very night between 1.15 a.m. to 1.50 a.m. through two seizure lists (Exts. 3 and 4). There is no ground at all to doubt or suspect the presence of the eye-witnesses at place of occurrence and no question of embellishment arises in this case. That P.W. 1 did not support the prosecution case and did not mention presence of eye-witnesses in complaint is not a ground to doubt the presence of the eye-witnesses at place of occurrence. Whether evidence of the eye-witnesses are reliable or trustworthy is a different matter which we like to consider now.

49. Mr. Basu finally submitted that P.Ws. 3, 7 and 8, the alleged eyewitnesses are not reliable and trustworthy witnesses. They are the antisocials and criminals of that area and several criminal cases including murder cases are pending against them. In the cross-examination of such witnesses it was specifically stated to them that Metiaburuz P.S. Case No. 379 dated 19.12.96, Metiaburuz P.S. Case No. 388 of 1996, Metiaburuz P.S. Case No. 159 of 1999 and Taratolla P.S. Case No. 469 dated 8.9.1988 and other cases were pending against such witnesses. There are serious discrepancies also in the evidence of these witnesses as P.W. 3 stated that Dinanath Dubey-was the Secretary of the club whereas, P.W. 7 stated that Dubeji was the President of the club. P.Ws. 3, 7 and 8 failed to state whether P.W. 1 and P.W. 2 were present at the temple for taking 'prasad'. P.W. 7 is a man of Titagarh and he has no ration card to show that he resides at Moila depot. He does not know the address of witness Ajoy Roy Chowdhury (P.W. 3). These discrepancies prove that these witnesses were not men of that locality and they were introduced only to develop the prosecution case being stock witnesses of police. N~ reliance can be placed on the evidence of such witnesses and their evidence should be discarded. If their evidence goes practically there remains no evidence at all against the appellants and as such the appellants are entitled to be acquitted.

50. Mr. Safiullah, the learned Public Prosecutor submitted that there is no ground at all to disbelieve the evidence of P.Ws. 3, 7 and 8. They are not only the eye-witnesses of the incident but out of these three, two witnesses namely, P.W. 3 and P.W. 8 are witnesses of seizure also. The suggestion given from the side of defence to show that criminal cases are pending against them are not proof of pendency of criminal cases against them. Suggestion cannot be equated with proof. No paper or document was produced in Court and no oral and documentary evidence was adduced by the defence to establish that criminal cases were pending against the aforenamed three eye-witnesses. From evidence it did not transpire at all that these witnesses had any grudge or enmity against the appellants. Practically there was no cross-examination of P.W. 3 and P.W. 8 regarding their presence and regarding witnessing the incident by them. The evidence of these three witnesses gets full corroboration from the evidence of autopsy surgeon relating to places of injury found on the body of Dinanath Dubey. It proves that these witnesses, in fact, saw the incident and also saw in which places of the body of Dinanath Dubey the gun-shot injuries were inflicted. Accordingly, there is no ground to disbelieve the evidence of P.Ws. 3, 7 and 8 and prosecution case has been well-established from their evidence.

51. After carefully scrutinising the evidence of P.Ws. 3, 7 and 8 including their cross-examination we do not find any serious defect or lacuna or improbability which can impair value of their evidence. We have earlier observed that merely non-mention of names of the eye-witnesses in the complaint/FIR is not sufficient to disbelieve the evidence of the eye-witnesses. In the cross-examination from the side of defence it was suggested to these witnesses that they are the-criminals of that area and several criminal cases including murder cases are pending against them. Reference of some cases of Metiaburuz P.S. and one case of Taratolla P.S. was also suggested to them in cross-examination which were denied by these witnesses. When the witnesses denied pendency of criminal cases including murder cases against them the defence should have led proper evidence including oral and documentary to prove that in fact such criminal cases were pending against them. The defence took the specific plea that criminal cases were pending against the witnesses and burden of proof rested on defence to establish the same which the defence failed miserably. Even the police officers in their evidence did not admit pendency of criminal cases against these witnesses. In our opinion, even if criminal cases were pending against them that by itself as not a ground to discard their testimony unless it was established in evidence that P.Ws. 3, 7 and 8 belonged to a group hostile to the appellants or that these witnesses had animosity, grudge or longstanding dispute with the appellants for which there was possibility of falsely implicating the accused persons.

52. From evidence of P.Ws. 3, 7 and 8 we find that they in their evidence stated that after taking 'prasad' they were waiting near a medicine shop and at that time they found accused Dharma Mahato and others were dragging Dinanath Dubey after Dharma Mahato caught hold of Dubeji from behind. Mr. Basu raised the point that if Dihunath Dubey was dragged away there would have been abrasion or laceration on his ankle, knees and other parts of body. We do not find any evidence that Dinanath Dubey was dragged away through the ground and so question of abrasion or laceration on the body of Dinanath Dubey does not arise. It is clear from evidence of these witnesses that after catching hold of Dinanath Dubey from behind they took away Dinanath Dubey towards Shiv temple by using force and thereafter Dharma shot him there. The evidence clearly gives indication that deceased was not dragged through the ground, but he was taken away on foot by force and so abrasion or laceration was impossible. All the three witnesses stated clearly that accused Dharma shot Dubeji from his revolver and P.W. 7 and P.W. 8 are more specific relating to number of shots and the places where Dharma shot on the body of Dinanath. Evidence of P.W. 7 reveals that near Shiv temple Dharma fired 2/3 shots from his revolver and P.W. 8 stated that accused Dharma shot on head of Dubeji from his revolver. They tried to resist but the other accused persons hurled bomb and so they could not go forward and thereafter the accused persons escaped.

53. The evidence of the autopsy surgeon reveals that he found one gunshot injury on the left side of upper part of abdomen, another gun-shot injury with entry on starnel notch and another gun-shot injury with entry on the right temporal region of the head just behind the right ear and passing through and through and obliquely piercing the brain substances making a wound of exit on the left parietal region of the head. The gun-shot injuries as found by the autopsy surgeon on the parts of body of deceased Dinanath Dubey is perfectly matched with the evidence of the eye-witnesses concerning the places where the accused Dharma Mahato shot from his firearm. It proves that P.Ws. 3, 7 and 8 were present at the place of occurrence and they saw the incident and we find no ground at all to disbelieve the evidence of these three witnesses.

54. Considering the entire evidence, materials on record and' circumstances we are firm in our opinion that prosecution was able to bring home the charge under Section 302/34 of IPC against the appellants. The principal accused was Dharma Mahato, but the names of other accused persons transpires from the evidence of these three eye-witnesses and they stated that accused Manoj Singh, Tarak Singh, Ashok, Rahis and Manoj Chowdhury and others were associates of Dharma and they hurled bomb at the time of fleeing away. The evidence of the witnesses clearly proves that these appellants had prior meeting of mind and they participated in the assault and were carrying incriminating materials i.e. bombs and it is clear from evidence that they shared the common intention to cause murder of Dinanath Dubey. Accordingly, the prosecution was able to bring home the charge under Section 302/34 of IPC against all the appellants. All of them had the same intention and for that purpose they in a body having same mind, aim and sharing same liability dragged the deceased from Kali temple to Shiv temple and one of them in furtherance of their common intention punched three bullets on the body of deceased and murdered him. The witnesses tried to resist but other accused persons raised hue and cry and hurled bomb to desist the witnesses from proceeding ahead to rescue Dinanath Dubey from their clutches. All the appellants are guilty under Section 302/34 of IPC and we affirm their conviction under Section 302/34 of IPC after converting conviction of Dharma Mahato from 302 IPC simpliciter to 302/34 IPC.

55. Mr. Basu for the appellants submitted that it was not a judgment in terms of Section 354 of Cr.P.C. as the learned Trial Court did not give any finding in respect of the other charge under Section 364/34 of IPC for allegedly abducting one Rajesh Rai with the intention that he might be murdered. In fact, deadbody of that person was also recovered subsequently but the learned Trial Court did not give any finding in his judgment concerning that incident though the accused persons were charged for that offence. The judgment of the Trial Court is defective and its benefit should be given to the appellants and they should be acquitted of the charge under Section 364/34 of IPC and also for the charge under Section 302 and 302/34 IPC for the alleged murder of Dinanath Dubey as it was the prosecution case that the incident of abduction of Rajesh Rai was sequence of same transaction.

56. Mr. Kazi Safiullah, learned Public Prosecutor submitted that there. was no evidence concerning the second incident of abduction of Rajesh Rai and involvement of the appellants with the incident. It is true that the second charge was under Section 364/34 of IPC but the learned Trial Court did not record any finding either of acquittal or of conviction of the appellants for the said charge. When there was no evidence against the appellants in respect of offence under Section 364/34 of IPC and the learned Trial Court also remained silent concerning that charge the natural conclusion would be that the said charge against the appellants was not established and in effect they were acquitted of the said charge.

57. Considering the submissions of the learned Advocates for the parties over this matter we are of opinion that concerning that matter the appellants are not entitled to the benefit of doctrine of autrefois acquit. In our opinion, the second charge concerning abduction and murder of Rajesh Rai cannot be regarded as closely connected with the incident of murder of Dinanath Dubey. Out of the 15 witnesses examined by the prosecution not a single witness stated about involvement of the appellant concerning abduction and murder of Rajesh Kumar Roy @ Rajesh Rai. P.W. 5 only found his deadbody and P.W. 9 was a witness of seizure and inquest concerning the incident of murder of Rajesh Rai. The I.O. investigated both the cases concerning murder of Dinanath Dubey and Rajesh Rai, but he did not state anything in his evidence concerning materials collected by him during investigation in connection with abduction and murder of Rajesh Rai. When there was no evidence at all concerning the charge under Section 364/34 of IPC and no evidence at all to show that the incident concerning Rajesh Rai had any connection with the incident of murder of Dinanath Dubey the appellants are not entitled to the benefit of doctrine of autrefois acquit.

58. The learned Trial Court in his judgment in fact did not discuss at all on the charge framed against the appellants under Section 364/34 of the IPC concerning abduction and murder of Rajesh Kumar Roy @ Rajesh Rai. Failure of the Trial Court to mention in his judgment as to whether the said charge was established or not does not make the judgment of the Trial Court illegal. This, on the other way, cannot become a ground of remanding the matter back to the Trial Court for fresh trial and fresh judgment. In our opinion, it was an omission on the part of the Trial Court. When there was no evidence concerning the charge under Section 364/34 of IPC and evidence to connect the appellants with that offence, the learned Trial Court could have recorded the order of acquittal on this charge. This Court being Court of Appeal under the provisions of Sections 385 and 386 of Cr.P.C. is empowered to remove such defect. This Court is also competent to enter into facts and appreciation of evidence that was adduced in the Trial Court. Section 386 of Cr. PC empowers the High Court to pass appropriate order in an appeal from conviction and this Court can reverse the finding and sentence and acquit or discharge the accused. The incident was in the year 1998 and after so many years we find no ground at all to send the matter back on remand to the Trial Court which would amount to harassment of the accused appellants and wastage of valuable time of Court as well as money from Government exchequer. This Court is accordingly competent enough to remove that defect in the judgment of the Trial Court and for this reason the matter cannot be remitted back to the Trial Court. After going through the entire evidence we find that there was no evidence at all against the appellants to connect them with the alleged offence under Section 364/34 of IPC concerning abduction of Rajesh Rai in order to commit his murder. The prosecution did not lead evidence at all to establish the charge under Section 364/34 of the IPC against the appellants. Accordingly, we record that the prosecution has failed to bring home the charge under Section 364/34 of IPC against the appellants and the appellants are acquitted of this charge. In view of our earlier discussion the appellants are not entitled to the benefit of doctrine of autrefois acquit in respect of the charge under Section 302/34 of IPC due to the failure of the prosecution to establish the charge under Section 364/34 of the IPC.

59. The discussion made above brings the result that both the appeals fail and we accordingly dismiss the appeals. The appellants are found guilty under Section 302/34 of the IPC and we affirm the conviction and sentence imposed on the appellants. The appellant of CRA No. 221 of 2001 namely Manoj Singh and the appellant Nos. 2 to 5 of the appeal bearing No. CRA 224 of 2001 who were enlarged on bail during pendency of the appeals are directed to surrender before the Trial Court within 30 days from the date of this order to serve out the sentence failing which the Trial Court would take steps in accordance with law for bringing them into custody and sending them to serve out the sentence.

60. This judgment and order will govern both the appeals being CRA No. 221 of 2001 and CRA No. 224 of 2001.

61. Criminal Section is directed into send down the Lower Court Records along with copy of judgment an order to the Trial Court for information and necessary action.

P.S. Datta, J.

62. I agree.