JUDGMENT Uday Sinha J.- The death reference under section 366 (1) of the Code of Criminal Procedure and the appeals have been heald together as they arise out of common judgment. They shall be disposed of by this common Judgment. They were placed for hearing before me on difference of opinion in regard to some of the appellants between H.L. Agrawal, J. and Manoranjan Prasad, J. 2. Death Reference no.1 of 1980 relates to the sentence of death imposed by second Additional Sessions Judge, Patna, upon Parsuram Dhanuk and Mahabir Mahto under section 302 of the Indian Penal Code (hereinafter referred as 'the Code'). They have also been convicted under section 302/149 of the Code carrying a sentence of life imprisonment. Both of them were also convicted under section 27 of the Arms Act and section 148 of the Code. They were sentenced to undergo five years rigorous imprisonment under section 27 of the Arms Act and two years rigorous imprisonment under section 148 of the code. Mahbir Mahto in addition had been convicted under section 201 of the Code and sentenced to undergo rigorous imprisonment for two years. The sentences of imprisonment were directed to run concurrently. Both of them also filed Criminal appeal no. 154 of 1980 against their convictions and sentences. 3. In Criminal Appeal no. 218 of 1980 the only appellant was Nandeo Gope alias Nandlal Gupe. He had also been convicted under sections 302/149 and 147 of the Code. Both the Hon'ble Judges of this Court were agreed that his convictions could not be sustained. His appeal was, therefore, allowed and he has been set at liberty. 4. In Criminal appeal no. 217 of 1980 there were two appellants-Ramashray Mahto and Ramkishun Mahto Both the Hon'ble Judges were agreed that the appeal of Ramashray Mahto must be allowed. His appeal was accordingly, allowed and his convictions and sentences set aside. The two Hon'ble Judges, however, differed in regard to the conviction of appellant Ramkishun Mahto. He was convicted by the trial court under sections 302/149 and 147 of the Code. 5. There were seven appellants in Criminal appeal no. 218 of 1980. There was no difference of opinion between the two Hon'ble Judges in regard to the conviction of appellants Sitaram Mahto and Sadhu Mahto. He was convicted by the trial court under sections 302/149 and 147 of the Code. 5. There were seven appellants in Criminal appeal no. 218 of 1980. There was no difference of opinion between the two Hon'ble Judges in regard to the conviction of appellants Sitaram Mahto and Sadhu Mahto. The two Hon'ble Judges, however, differed in regard to the convictions of appellants Sri Mahto, Kailash Mahto, Keshav Mahto, Naresh Mahto and Ram Mahto alias Rama Mahto alias Rameshwar Mahto, Prasad, J. was of the view that their convictions were liable to be set aside, but in the view of Agrawal, J. their convictions were well maintained. These five appellants had been convicted by the trial court under sections 302/149 and 147 of the Code. They were sentenced to undergo life imprisonment under the former count, but no separate sentence was passed under the latter Count 6. There were five appellants in Criminal appeal no. 155 of 1980. All of them were convicted by the trial court under section 302/149 of the Code and sentenced to undergo life imprisonment. Besides that, appellants Baldeo Mahto and Kishori Mahto were convicted under section 147 of the Code while appellants Rajendra Mahto, Sioan Mahto and Nepali Mahto were convicted under section 148 of the Code. No separate sentence was imposed under section 147 or 148 of the Code. In regard to appeals of Rajendra Mahto, Siban Mahto and Nepali Mahto the Division Bench was agreed that their convictions be upheld and the appeals dismissed. There was difference, however, in regard to two other appellants Baldeo Mahto and Kishori Mahto. While Manoranjan Prasad, J. allowed the appeal of Baldeo Mahto and Kishori Mahto, Agrawal, J. dismissed the appeal. 7. To sum up the convictions and acquittals, the two Hon'ble Judges who heard the appeals agreed that the appeal of Nandeo Gope alias Nandlal Gope (appellant in Criminal Appeal no. 216 of 1980) and of Rameshray Mahto (appellant in Criminal appeal no. 217 of 1980) should be allowed. They were also agreed that appeal of Rajendra Mahto, Siban Mahto and Nepali Mahto (appellants in Criminal appeal no.155 of 1980) and of Sitaram Mahto and Sadhu Mahto (appellants in Criminal an peal no. 218 of 1980) should be dismissed, as they had been rightly convicted. 217 of 1980) should be allowed. They were also agreed that appeal of Rajendra Mahto, Siban Mahto and Nepali Mahto (appellants in Criminal appeal no.155 of 1980) and of Sitaram Mahto and Sadhu Mahto (appellants in Criminal an peal no. 218 of 1980) should be dismissed, as they had been rightly convicted. The appeals of these seven appellants do not, there fore, fall for consideration before me, as there was no difference of opinion between the two Hon'ble Judges in regard to their appeals. Learned counsel for appellants Sitaram Mahto and Sadhu Mahto contended that the whole matter being open to consideration before me (the third Judge) their convictions also could be assailed. If it is not open to me to review the acquittals. I fail to see how the agreed convictions can be revised by me. Mr. P.N. Pandey placed reliance upon State of Andhra Pradesh Vs. P.T. Appash and another for the proposition that the whole matter being before me, it was competent for me to consider the validity of the convictions of appellants Sitaram Mahto and Sadhu Mahto. I, regret, this case cannot be of any assistance to Mr. Pandey. That was a case where the Judges constituting the Division Bench had differed in regard to the provision of law under which they were liable. It was, therefore, open to the third Judge to differ with both the Judges of the Division Bench and acquit the appellants. In the instant case, both the learned judges are of the view that appellants Sitaram Mahto and Sadhu Mahto have been rightly convicted of the charges levelled against them. I, regret, there is no substance in this submissions. Although there are several appeals having one number the appeal of each individual must be taken to be separate appeals. There being no difference between the two learned Judges in regard to the convictions and sentences imposed upon these five appellants, their appeals must be deemed to have been disposed of. These appeals, therefore, do not fall for consideration before me. As there was no difference of opinion in regard to the seven appellants (two for acquittal and five for conviction), their cases must be deemed to have been disposed of. 8. That incidents out of which these appeals arise gained country wide, nay, International notoriety. A holocaust overtook village Belchi in which eleven persons were shot, killed and burnt. As there was no difference of opinion in regard to the seven appellants (two for acquittal and five for conviction), their cases must be deemed to have been disposed of. 8. That incidents out of which these appeals arise gained country wide, nay, International notoriety. A holocaust overtook village Belchi in which eleven persons were shot, killed and burnt. Three of them were Sonars (Goldsmiths) and the rest were paswans. Village Belchi is about 22 miles away by kacha Road from Barh police-station in the district of Patna. By all weather road via Bakhtiarpur the police Station is about 25 miles from Belchi. 9. On 27.5.1977 at about 2-20 P. M. Chaukidar Ganesh Paswan of village Belchi lodged information at the police station in regard to apprehension of riot. After entering the information in the station diary (Ext.3), Awadhesh Kumar Mishra (P.W. 18), the officer-in charge of the police station left for Belchi on a motor Van at 2.50 P.M. He reached the village at about 5.30 P. M. On reaching the village he found dead bodies burning in a maize field to the south of the village. He got the fire extinguished and took out eleven dead bodies. Thereafter, he recorded the fardbeyan (Ext.4) of Shayama Devi (P.W. 7), widow of Udai Sonar. This was done at about 6.30 P.M. The substance of the information given by Shyama Devi to the Officer-in charge was as hereinafter stated. She said that in the evening previous to the holocaust two or three persons came to Sidheshwar alias Singheshwar Paswan and suggested to him that parties should mutually settle the matter. They said that Parsuram Dhanuk had come to the south of the village across the river and that they should go and have a talk with him. They then went away. Shyama Devi asked her husband Udai Sonar not to go, as she aaprehended that he may be assaulted. Udai Sonar after taking his meal at night went to sleep in the Dalan of Parmeshwar Mahto and came home in the morning. On 27.5.77 one pahar after sun rise (45 minutes roughly make one pahar) which would mean between 6 and 6.30 A.M. Parsuram Dhanuk came near the house of Shyama Devi (P.W. 7) with a mob and started abusing Udai Sonar. When the latter came out of the house, he was caught hold by Parsuram Sonar and dragged away. On 27.5.77 one pahar after sun rise (45 minutes roughly make one pahar) which would mean between 6 and 6.30 A.M. Parsuram Dhanuk came near the house of Shyama Devi (P.W. 7) with a mob and started abusing Udai Sonar. When the latter came out of the house, he was caught hold by Parsuram Sonar and dragged away. When Kesho Sonar and Awadhesh Sonar tried to prevent Udai Sonar being taken away, they were also caught hold of by the mob which consisted of Mahabir Mahto, Rajendra Mahto Siban Mahto, Nepali Mahto, Tulsi Mahto, Sitaram Mahto, Sadhu Mahto and Bundela Dusadh besides Parsuram Dhanuk and about 50-60, others. They took away the three brothers-Kesho Sonar, Udai Sonar and Awadhesh Sonar to a Knalihan south of the village where Parsuram Dhanuk shot them dead. Some of the accused remained in the Khalihan while others entered the village armed with guns. They chased Singheshwar and seven other Paswans. The Paswans fled for life and closed themselves in the house of Rohan Mahto. The mob of Mahabir Mahto and others appellants forced themselves into the home of Rohan Mahto (P.W.12) and brought out Singheshwar Paswan, Sahdeo Paswan, Nawal Paswan, Rajaram Paswan, Bhattu Paswan, Deoki Paswan, Rama is Paswan and Siban Paswan. They were also taken to the Khalihan south of the village tied in a rope. In the field of Sahdeo Mahto of village Bagatilla all the eight Paswans were also shot and killed. Thereafter a pyre was lit up and all the eleven dead bodies were consigned to the flames. Mahabir Mahto has been convicted under section 201 of the Code for burning the dead bodies. The cause of occurrence according to Shyama Devi (P.W.7) was that there was dispute between Sidheshsar Paswan on the one hand and Mahabir Mahto on the other. The dispute was on account of the murder of Dhanpat Paswan which had taken place about 5-6 months prior to this occurrence. According to Shyama Devi, Mahabir Mahto and Parsuram Dhanuk suspected that Sidheshwar Paswan was responsible for the killing of Dhanpat Paswan. Parsuram Dhanuk and Mahabir Mahto also suspected that Udai Sonar supported Sidheshwar Paswan. Sidheshwar had also brought his men from Asthama and some of them had gone away the previous evening. Finding a suitable opportunity Parsuram Dhanuk and Mahabir Mahto came with a mob, caught hold of them and shot and killed all the eleven persons. Parsuram Dhanuk and Mahabir Mahto also suspected that Udai Sonar supported Sidheshwar Paswan. Sidheshwar had also brought his men from Asthama and some of them had gone away the previous evening. Finding a suitable opportunity Parsuram Dhanuk and Mahabir Mahto came with a mob, caught hold of them and shot and killed all the eleven persons. The fardbeyan (Ext.4) was thereafter sent by Officer-in-charge to the police station which formed the basis of Barh P.S. case no. 9(5) 77. That in a nut shell is the prosecution case. 10. After recording the fardbeyan, P.W.18 Awadhesh Kumar Mishra embarked upon investigation. He seized blood stained earth, a piece of blue lungi and another of red colour, a piece of burnt rope an empty tin and some ash from the place where the victims had been shot and burnt. This place has been described by the investigating officer as the place of occurrence. Accordingly I shall also refer to it as the place of occurrence although the occurrence took place in parts of several places. He prepared separate inquest reports for the eleven dead bodies in presence of Janki Praswan (P.W. 3) and Kalicharan Paswan (P.W.4). They were all in the field of Sahdeo Mahto of village Bagatilla. This spot was south of village Belchi. The spot where the dead bodies were burnt was according to the investigating officer, 125 yards south of the village. The investigating officer observed trampling marks in the field. Small maize plants bore signs of having been trampled. There were marks of dragging in the field. The investigating officer then directed his attention towards the house of Rohan Mahto (P.W.12). This was roughly about 100/150 yards away from the place of occurrence. The house of Rohan Mahto was double storied and faced north. The investigating officer found marks of breaking and cutting at several places on the door of the house of Rohan Mahto. He also found a hole at one place in the door. The investigating officer found marks of unsuccessful attempt to cut a sendh in the north western corner of the house. Above the entry door on the first floor there was a skylight. The investigating officer found marks of bricks having been removed from the upper skylight above the entry door on the first floor. At about mid-night the investigating officer examined Bal Govind Paswan (P.W.14). Above the entry door on the first floor there was a skylight. The investigating officer found marks of bricks having been removed from the upper skylight above the entry door on the first floor. At about mid-night the investigating officer examined Bal Govind Paswan (P.W.14). Shortly thereafter, which would be on 29.5.1977 he examined Ram Prasad Pas wan (P.W.1), Janki Paswan (P.W.3) and Kali Charan Paswan (P.W.4). He searched for the accused in their houses, but they had all absconded. The Investigating Officer also went to village Bakhara and Jaganpur in pursuit of Parsuram Dhanuk, but he also had disappeared. At 7 A.M. on 28.5.1977 he sent chunkidar Charitar Paswan with the Fardbeyan to the police-station to register a case on the basis of fardbeyan of Shayama Devi The half burnt dead bodies had been sent to Barh Hospital for post-mortem examination with another Chaukidar Hari Paswan. Thereafter, the investigating officer examined Shakuntala Devi (P.W. 8). Nathia Devi (P.W. 9), Girja Devi (P.W.1), Subhash Devi (P.W. 11), Rohan Mahto (P.W. 12), Mahendra Mahto (P.W. 13) and Sato Devi, widow of Nawal Paswan. At about 1.30 P.M. on 28.5.1977 the investigating officer left for Barh reaching there at 5 P.M. On reaching the police-station, he found that till then no case had been registered on the basis of the farbeyan, as there was no competent police-officer available at the police-station. Therefore the investigating officer registered the instant case at the police-station as case no. 35 dated 28.5.1977. At about 7 P.M. he examined P.W. 2 Anup Paswan, on 28.5.1977 the case was supervised by Senior Superintendent of Police-Patna. He did not, however, record the statement of witnesses examined by him. In Course of time some accused were arrested and some surrendered in court. On 16.6.1977 P.W. 18 handed over charge of the investigation to Sub-Inspector Lallan Mishra (P.W.15) under the orders of the Senior Superintendent of Police, Patna. On 30.7.1977 Lallan Mishra (P.W. 15) submitted charge sheet against 22 accused. A supplementary charge sheet was submitted on 15.7.1977 against Amerika Devi, wife of Mahabir Mahto & Arun Cbaudhary. 24 accused were committed to the court of Sessions and were put on trial. The trial Court acquitted seven of them. Seventeen accused filed appeals to the High Court. The Division Bench bearing the appeals in the first instance allowed the appeals of Nandu Mahto and Ram Ashray Mahto. 24 accused were committed to the court of Sessions and were put on trial. The trial Court acquitted seven of them. Seventeen accused filed appeals to the High Court. The Division Bench bearing the appeals in the first instance allowed the appeals of Nandu Mahto and Ram Ashray Mahto. The appeals of Sitaram Mahto, Sadhu Mahto, Siban Mahto Nepali Mahto and Rajendra Mahto were dismissed by the Division Bench. The appeals of ten accused now fall for consideration before me. 11. At the trial 19 witnesses were examined on behalf of the prosecution. Five witnesses were examined on behalf of the defence. The evidence of these defence witnesses, however, are no more of relevance, as their evidence had relevance to the case of accused Ram Swarath Singh only who was acquitted by the trial court. 12. The analysis of the witnesses examined at the trial shows that P.W. 1 Ram Prasad Paswan, P.W. 2 Anup Paswan, P.W. 3 Janki Paswan, P.W. 7 Shyama Devi. P.W 8 Shakuntala Devi, P.W. 9 Nathia Devi, P.W.10 Girija Devi, P.W.11 Subhash Devi, P.W. 12 Rohan Mahto, P.W. 13 Mahendra Prasad and P W. 14 Bal Govind Paswan deposed as eye witnesses to the occurrence. All of them were not eye witnesses to the entire episode, but they deposed to have seen parts of the occurrence at one place or the other. The other category of witnesses may be formed as official witnesses and they are P.Ws, 5, 6, 15, 16, 17, 18 and 19. Out of these officials witnesses, P.W 5, Dr. Shankar Prasad Deokuliar, P.W.6 Dr. Digamber Jha, and P.W. 19 Dr. Panchanan Das, Civil Assistant Surgeons deposed to have held the autopsy on the eleven dead bodies. P.W. 15 Lallan Mishra and P.W. 18 Awadhesh Kumar Mishra deposed to having investigated into the occurrence. P.W. 16 Hari Paswan was the Chaukidar. His evidence is of formal character. He only deposed to have taken eleven dead bodies to Barh for post-mortem examination from village Belchi. P.W. 17 Ganesh Paswan was also the chaukidar of village Belchi. He deposed to having lodged a Sanha (station diary entry) at Barh police-station P.W. 4 Kali Charan Paswan, father-in law of deceased Singheshwar Paswan was tendered at the trial. He only deposed to have taken eleven dead bodies to Barh for post-mortem examination from village Belchi. P.W. 17 Ganesh Paswan was also the chaukidar of village Belchi. He deposed to having lodged a Sanha (station diary entry) at Barh police-station P.W. 4 Kali Charan Paswan, father-in law of deceased Singheshwar Paswan was tendered at the trial. It would be relevant to state here that A.N. Trivedi, who was the Senior Superintendent of Police at Patna at the relevant time was examined as court witness at the trial. 13. The victims in the holocaust were Udai Sonar, Awadhesh Sonar, Kesho Sonar, Singeshwar Paswan, Nawal Paswan, Sahdeo Paswan, Siban Paswan, Deoki Paswan, Bhattu Paswan, Raja Ram Paswan and Ramasis Paswan. P.W. 7 Shyama Devi, the first informant was the wife of Udai Sonar deceased. Udai Sonar, Awadhesh Sonar, Kesho Sonar were brothers. Deceased Nawal Paswan was sala of deceased Singheshwar Paswan, deceased Sahdeo Paswan was brother of Singheshwar Paswan and Siban Paswan was Bhagina (sister's son) of Singheshwar Paswan. 14. The prosecution case, for a proper appraisal of the evidence, may be split into three parts. The incident at the house of Sonar brothers may be considered as the first part of the occurrence. The forcible taking away of eight paswan deceased from the house of Rohan Mahto may be taken as the second part and the shooting and burning of the dead bodies in the field or Khalihan of Sahdeo Mahto as the third part. Learned counsel for the appellants were at pains to emphasise that the prosecution had not produced any evidence to show that the appellants had any motive for killing the eleven deceased. It is true that no clear picture of the motive for the occurrence has emerged, but the record does show that there was serious differences between Mahabir Mahto and Parsuram Dhaunk on the one hand and Singheshwar Paswan on the other. Deceased Singheshwar alias Sidheshwar Paswan was son-in-law of P.W. 4 Kali Charan Paswan and had settled in the Village Belchi in the first information report Shayam Devi, wife of Udai Sonar is recorded as having stated that one Dhanpat Paswan a person of the group of accused Mahabir Mahto, had been murdered 5-6 months before this occurrence and that Mahabir Mahto suspected that deceased Singheshwar Paswan was responsible for his murder. It is difficult to come to any finding whether this occurrence took place on account of killing of Dhanpat Paswan or on that account for the persons who were in best position to throw light on this matter have all been killed. The motive for the occurrence, therefore, is a case, but the occurrence took place in broad day light in the presence of the entire village. The failure on the part of the prosecution to prove the motive for the occurrence cannot upset the prosecution case as the evidence in regard to the killings is clear and consistent. 15. The prosecution case, after collecting the various pieces of evidence appears to be that in the morning of the fateful day Parsuram Dhanuk accompanied by 10-20 persons was seen coming towards village Belchi from the south. The eight Paswan deceased were seen being chased by another group which consisted of accused Mahabir Mahto and several others. The two groups appear to have joined up in village Belchi. Some of them which included Parsusm Dhanuk went to the house of Udai Sonar and brought out forcibly Udai Sonar, Kesho Sonar and Awadheh Sonar and took them to the field of Sahdeo Mahto. The other group chased the Paswans deceased into the house of Rohan Mahto where they had taken shelter. The story is that the eight Paswans fled inside the house of Rohan Mahto (P.W. 12) and shut themselves up. When threats and coaxing were of no avail, the mob forced itself inside the house. Some persons entered the house of Rohan Mahto by removing some bricks in the skylight. Thereafter, all the eight were brought out, bound by rope and taken to the same field of Sahdeo Mahto were the three Sonars had been taken. There the three Sonars and the eight Paswans were shot and killed. They were later burnt beyond recognition. Parsuram Dhanuk and Mahabir Maho have been specifically charged and convicted under section 302 of the Code for some of the killings by the trial court. The two Hon'ble Judges of this Court have differed In regard to the conviction of these two appellants under section 302 of the Code while Prasad, J. has acquitted them of that charge. Agrawal, J. has convicted them and sentenced them to death. Appellant Mahabir Mahto has also been charged and convicted under section 302 of the Code. 16. Mr. The two Hon'ble Judges of this Court have differed In regard to the conviction of these two appellants under section 302 of the Code while Prasad, J. has acquitted them of that charge. Agrawal, J. has convicted them and sentenced them to death. Appellant Mahabir Mahto has also been charged and convicted under section 302 of the Code. 16. Mr. Prakash Narain Pandey, learned counsel for the appellants in Criminal appeal no 218 of 1980 submitted that the prosecution bas failed to prove by reliable evidence what happened on the fateful day of village Belchi. He has not disputed the occurrence of the prosecution evidence in regard to the forcible removal of eleven deceased from the houses of Udai Sonar and Rohan Mahto nor has he disputed the killings and burning of the dead bodies in the field of Sahdeo Mahto. His submissions is that probably there was confrontation on the day of occurrence between the groups of the accused and of Singheshwan Paswan. In support of this submission, he has relied upon three circumstances, firstly the recovery of dead body of Mathura Paswan, secondly, finding of pellet marks on the western wall of the house of Kesho Mahto and thirdly on the recovery of a gun from the house of Rohan Mahto. He has also drawn our attention to the evidence of A.K. Trivedi, Senior Superintendent of Police (C.W. 1) who deposed that when he was supervising the investigation of the case, witnesses and other assembled villagers had told him that a few rounds were fired by Singheshwar also. Upon the circumstances and evidence relied upon by Mr. Pandey, it is difficult to hold that the occurrence took place in some manner different from that projected by the prosecution, which might lead to rejection of the entire prosecution case. 17. So far as the circumstances relating to recovery of dead body of Mathura Paswan is concerned the evidence of the Investigating Officer (P.W. 18) Awadhesh Kumar Mishra in paragraphs 36 and 37 is that on 31.5.1977 i.e. four days after the occurrence in question before us, he heard a rumour that a dead body was lying on the boundary of village Meghani (or Moglanni) and village Belchi. Barh P.S. case no. Barh P.S. case no. 9(6)77 was registered in respect of that body, but the investigating officer got no proof that the dead body belonged to Mathura Paswan, brother of Dhanpat Paswan nor of the circumstances of his murder. The doctor who held postmortem examination on that unknown dead body found that death had been caused probably by gun shot wounds but no body having stated or asserted before the police whose dead body it was, it is difficult to hold that it was the dead body of Mathura Paswan, brother of Dhanpat Paswan. The dead body having been recovered four days after the occurrence in village Belchi, it is difficult hold that the death in relation to that dead body had been caused on 27.5.77 in some occurrence between the mubs of the accused and the group of Singhewar Paswan. 18. In regard to the finding of pellet marks on the wall of appellant Keshav Mahto, the Investigating Officer (P.W. 18) deposed in paragraph 34 that he did not see mark of gun fire on the wall of Kesho Mahto. In the map prepared by the Investigating Officer, however, on 7.6.1977 the house of Kesho Mahto has been shown as bearing pellet marks. I shall, therefore, despite the evidence of Investigating Officer in paragraph 34 hold that the wall of Keshav Mahto bore pellet marks. This circumstance, however, does not lead us anywhere in the absence of any evidence how, when and who shot on the wall. It is difficult to build any theory merely upon the presence of pellet marks on the wall of Kesho Mahto. 19. The recovery of a gun from the house of Rohan Mahto is also an innocuous circumstance. It is true that an unlicenced gun was recovered from the house of Rohan Mahto for which a regular case was instituted, but it was not recovered on the day of occurrence itself as on the following day. It is, therefore, difficult to hold that the gun belonged to Singheshwar or any body of his group. For ought one knows, that gun may have been brought by Rohan Mahto himself. Unlicenced guns are not such rarety in these far long villages, rarely visited by the police, as the authorities consider. Unlicenced guns are common articles now in villages. It is, therefore, difficult to hold that the gun belonged to Singheshwar or any body of his group. For ought one knows, that gun may have been brought by Rohan Mahto himself. Unlicenced guns are not such rarety in these far long villages, rarely visited by the police, as the authorities consider. Unlicenced guns are common articles now in villages. It is difficult to hold that this gun had anything to do with the occurrence that took place in village Belchi on 27.5.1977. 20. In my view, it is difficult to reconstruct a theory on the basis of submissions urged by Mr. Pandey. Even if, I were to hold that there had been some firing by deceased Singheshwar also as told to C.W.1 even then that would be no justification for rounding up eleven persons in the village and killing them even after the assistance had ceased. But it must be stated categorically that there is no evidence on the record to show that Singheshwar Paswan or any of his associates had fired at the accused or that there had been any clash between the two groups. The occurrence starts with a group of persons consisting of Mahabir Mahto and others Chasing Singheshwar Paswan. They bring out eight Paswans forcibly from the house of Rohan Mahto and another group tying and bringing the three sonars from their houses to the field of Sahdeo Mahto. The prosecution case has to be tested upon that basis whether what the prosecution alleges has been proved or not. 21. I shall now consider the credibility of the prosecution case that Parsuram Dhanuk and others went to the house of the Sonars and brought out three of the brothers, who were taken to the field of Sahdeo Mahto and shot dead. This part of the prosecution case has been proved by P.W.1 Ram Pd. Paswan, P.W. 2 Anup Paswan, P.W 3 Janki Paswan, P.W.7 Shyama Devi, P.W.9 Nathia Devi, P.W.10 Girija Devi, P.W.11 Subhas Devi, P.W.12 Rohan Mahto, P.W.13 Mahendra Pd. and P.W.14 Balgovind Paswan. P.W.7. Shyama Devi is the only witness who saw the entire episode from the stage of apprehending the three sonars by Parsuram Dhanuk and others down to their killings and burning the dead bodies. P.W. 7 is widow of deceased Udai Sonar. Awadhesh Sonar and Keshav Sonar were brothers of Udai Sonar. She deposed that in the morning of 27.5.1977. P.W.7. Shyama Devi is the only witness who saw the entire episode from the stage of apprehending the three sonars by Parsuram Dhanuk and others down to their killings and burning the dead bodies. P.W. 7 is widow of deceased Udai Sonar. Awadhesh Sonar and Keshav Sonar were brothers of Udai Sonar. She deposed that in the morning of 27.5.1977. Parsuram Dhanuk accompained by Mahabir, Nepali, Shiban, Sitaram, Sadhu Mahto, Tulsi Mahto and Bundela Paswan coming to her house. They were all armed with guns. On coming to her house they started abusing Udai Sonar. They caught hold of him and Awadhesh Sonar and took them away. Then Kesho Sonar objected, he was also caught hold of. All the three sonars were thereafter taken to a field via the house of Rohan Mahto and Kesho Mahto. Thereafter they were taken to the field of Sahdeo Mahto about 100 yards to the south of Village Belchi. In that field Parsuram Dhanuk shot the three dead. She was asked in cross examination why her husband and the two brothers had been shot on the fateful day and whether there was any dispute between Mahabir and Parsuram on the one hand and sonars on the other but she could give no answer why they were killed by the accused. It is true that there is no motive suggested nor is there any material on the record why they were killed, but the evidence in regard to their killings being clear, explicit and cogent, it is useless to look for motive. The mere fact that the prosecution has not suggested any motive for the occurrence cannot reduce the value of the oral evidence of the eye witnesses that on the day of occurrence these three brothers were also shot alongwith eight others. Nothing worth the name was elicited in Cross-examination which could throw any doubt upon her evidence that on that fateful day her husband and his two brothers were taken away by Parsuram Dhanuk, Mahabir Mahto and others to the field of Sahdeo Mahto where they were shot. In fact this part of the prosecution case does not seem to have been seriously challenged. In fact this part of the prosecution case does not seem to have been seriously challenged. The only suggestion to her in paragraph 21 has been that the three Sonars used to commit dacoity with Singheshwar and that on the fateful day Mahtura Paswan had come to the village to revenge his brother's death and that all incident occurred between the groups of Mathura and Singheshwar which resulted in killing of the three sonars. The suggestion remains a suggestion. Mere suggestion is no proof. There is no reason to doubt her testimony in regard to the forcible removal of the sonar brothers to the field of Sahdeo Mahto. According to her evidence it was appellant Parsuram Dhanuk, who shot and killed the three sonars and after all the eleven had been killed. Mahabir Mahto set fire to the dead bodies after a pyre had been set up. The defence appears to have tested her in regard to the specific act attributed to Parsuram Dhanuk and Mahabir Mahto. I shall advert to that aspect of the matter later, but suffice it to state here that her evidence in regard to the forcible removal of the three sonars to the field of Sahdeo Mahto and their killings remains unshaken. There is nothing to doubt her testimony. 22. P.W.1 Ram Prasad Paswan did not see Parsuram Dhanuk and others apprehending the three Sonars at their houses. He only deposed having seen them being taken to the field of Sahdeo Mahto. He saw that those eleven persons were shot in the field. He claimed to have seen the killings from behind a brick kiln, south of the house of Rohan Mahto which would be somewhere between the house of Sohan Mahto and the field of Sahdeo Mahto. 23. P.W. 2 Anup Paswan claimed to have seen the occurrence from the terrace of Janki paswan, He saw several of the accused going towards the house of Rohan Mahto. Out of them Prasuram Dhanuk and 5 to 7 others went to the house of Sonars and came back catching hold of them. At that time Parsuram and his associates were all armed with guns. Thereafter, be saw the three sonars in the field of Sahdeo Mahto. He also deposed to having seen the shooting of three sonars alongwith ethers. He, however, did not claim to have seen who shot these three sonars. 24. At that time Parsuram and his associates were all armed with guns. Thereafter, be saw the three sonars in the field of Sahdeo Mahto. He also deposed to having seen the shooting of three sonars alongwith ethers. He, however, did not claim to have seen who shot these three sonars. 24. P.W. 3 Janki Paswan deposed that in the morning of the day of occurrence, he was in his field west of the village when he saw 10 to 12 persons coming from the south making bulla and firing. Parsuram Dhanuk was one of them. He then went to his house. He was told by the females on his enquiry that the mob was coming from the south and that Singhehwar had gone to that very side alongwith his men. Deceased Singheshwar Paswan and his associates stood near the field of Kesho Mahto near the house of Kesho Mahto. Seeing them, appellant Pasruram Dhanuk and others retreated. Singheshwar Paswan also returned back. After some time he saw a mob coming from the side of Mahabir Mahto, This mob chased Singheshwar Paswan and seven other deceased. He is not a witness to the three sonars being apprehended by Parsuram and others at their house, but he only deposed that before the door of the house of Rohan Mahto had been opened, Mahabir Parsuram, Nepali, Rajendra, Sitaram and others unknown had already taken Kesho Sonar, Udai Sonar and Awadhesh Sonar to the Darwaza of Kesho Mahto. 25. P.W. 8 Shakuntla Devi has also deposed that she had seen the three sonar victims in Bagatilla field of Sahdeo Mahto. I will, however, not take into account her evidence, as she deposed in paragraph 16 that out of fear she remained in the house itself, as asked by her father Kalicharan (P.W.4). Her evidence may, therefore, safely be excluded. 26. P.W. 9 Nathia Devi did not see the three Sonars being apprehended at their houses, but she Saw them being taken to the east. P.W. 10 Girija Devi deposed that in the morning of the day of occurrence she was at her house. She heard hulla that people were being caught. On hearing hulla she went near the house of Rohan and saw Parsuram and 10 to 12 others taking the three sonars, after having taken them in their custody. Parsuram and all his associates were armed with guns. She heard hulla that people were being caught. On hearing hulla she went near the house of Rohan and saw Parsuram and 10 to 12 others taking the three sonars, after having taken them in their custody. Parsuram and all his associates were armed with guns. P.W. 11 Subhash Devi saw Parsuram and others taking the three sonars after tying them with a rope. She Saw them being taken when she was at the corner of the house of Kesho Mahto. P.W. 12 Rohan Mahto deposed to having seen the three sonars in the field where they were shot. He did not see the accused taking them from the village. P.W. 13 Mahendra Prasad, a boy of about ten years of age saw from the roof of the house of Rohan Mahto that Parsuram Dhanuk was keeping the three Sonars in his custody in the field of Sahdeo Mahto and that the three sonars and the eight paswans were shot in the field. P.W. 14 Bal Govind Paswan was at the shop of Lagan Sao in the village when he saw the three sonars being taken by Parsuram and others, all armed with guns. The house-cum-shop of Lagan Sao is in the very lane which passes in front of the house of Rohan Mahto only about 20-30 yards east of the house of Rohan Mahto. That sums up the evidence adduced by the prosecution in regard to the three sonar victims having been caught by Parsuram Dhanuk and others at the house of Udai Sonar, and that they were taken to the field of Sahdeo Mahto. The evidence is overwhelming. In fact, apart from stray attempts at testing the credibility of the eye witnesses there was no serious challenge on behalf of the defence to falsify the evidence that the three sonars were caught, tied in a rope and taken to the field of Sahdeo Mahto. The fact of their being caught at their houses by Parsuram Dhanuk and others, who were armed with guns has been deposed only by P.W. 7 Shayama Devi, but a large number of witnesses saw them being taken through the village to the field of Sahdeo Mahto where they were killed Further, all the eye witnesses deposed that the three sonars were also confined in the field and were later killed by shooting and burnt. I have, therefore, no hesitation in holding that three sonars were apprehended and killed on the day of the occurrence. 27. The next part of the prosecution story is the fact of eight Paswans having been caught in the house of Rohan Mahto and taken per force to the field of Sahdeo Mahto. The prosecution case in this behalf is that a mob consisting of Mahabir Mahto and several accused and other chased Singheshwar Paswan and seven others. Singheshwar and others fled to the east and took shelter in the house of Rohan Mahto. They shot themselves up in his house. Rohan Mahto having seen this happening moved west to the house of Parmeshwar Mahto. The mob of Mahabir and other accused came to the house of Rohan Mahto. They tried to break through eastern and western walls by forcing an opening but they did not succeed. The Investigating Officer deposed that he found some pellet marks on the eastern and western walls of Rohan Mahto. While the mob of the accused had besieged the house of Rohan Mahto, some of them were coaxing the reasons to come out for the purpose of effecting compromise. The evidence is that the door was opened and two to three persons of the mob went inside and thereafter the door was again closed. Parsuram Dhanuk and Mahabir Mahto were seen climbing upon a projection and after removing soke bricks from a window effecting entrance in the house. Thereafter, the main door down stairs, opened. The members of the mob went inside and came out with the eight paswans in their custody. The eight Paswan victims being herded away were seen bound, by mob of Parsuram, Mahabir and others and taken to the field of Sahdeo Mahto of Baghatilla. P.W. 1 Ram Parsad Paswan deposed to having seen eight Paswans fleeing away and taking shelter in the house of Rohan Mahto. In fact, he had also taken to his heels along with Singheshwar Paswan and others. This witness could not enter the house of Rohan. So he ran away and hid himself behind a brick kiln. He saw the gang of Mahabir, Parsuram etc. besieging the house of Rohan Mahto. At that very time he also saw the three sonars in custody. This witness could not enter the house of Rohan. So he ran away and hid himself behind a brick kiln. He saw the gang of Mahabir, Parsuram etc. besieging the house of Rohan Mahto. At that very time he also saw the three sonars in custody. His evidence certainly corroborates the prosecution story that eight Paswans, Singhashwar and others were apprehended in the house of Rohan Mahto and taken to the Baghatilla field. This part of the prosecution Case has been supported by P.Ws. 1, 2, 3, 9, 10, 11, 12, 13 and 14. The evidence of P.W. 8 however, has to be excluded as she deposed that she remained in her house and did not come out. There may be and there is some discrepancy in their evidence in regard to the participation of particular accused in the crime. But there is no reason to doubt the prosecution case that eight Paswans, Singheshwar and others were taken out of the house of Rohan Mahto where they had taken shelter after chase, and were taken to the field of Sahdeo Mahto bound in rope. The trial court did not consider it appropriate to place reliance upon the evidence of P.W.1 to the effect that he saw things happening at the house of Rohan Mahto and as to the killing of eleven deceased in the field of Sahdeo Mahto, as he had concealed himself at a spot from where probably he could neither see Rohan's house nor the field of Sahdeo Mahto. While the trial court may be justified in observing that during concealment he would not have been in a position to see the details of what happened in the house of Rohan Mahto, but I am unable to appreciate why his evidence that Singheshwar and others were chased by the gang of Mahabir, Parsuram etc. and that Singheshwar and others took shelter in the house of Rohan Mahto be not accepted. He deposed that he also had been chased and he himself fled to the brick-kiln of Budhan Mahto. Be that as it may, even if the evidence of PWs. 1 and 8 were to be left out of consideration, the evidence of other eyewitnesses leaves no reason to doubt the prosecution case regarding the catching of eight Paswans in the house of Rohan Mahto. The occurrence took place in broad day light. Be that as it may, even if the evidence of PWs. 1 and 8 were to be left out of consideration, the evidence of other eyewitnesses leaves no reason to doubt the prosecution case regarding the catching of eight Paswans in the house of Rohan Mahto. The occurrence took place in broad day light. The occurrence was not such that could have gone unnoticed. The witnesses who belong to the family of the deceased and are residents of the same village must have seen the occurrence. 28. The third part of the occurrence is killings of eight Paswans and three sonars in the filed of Sahdeo Mahto. The evidence of the eye-witnesses coupled with the evidence of the Investigating Officer and the objective findings in the field of Sahdeo Mahto conculsively establish that eleven persons were shot killed and burnt. The specific parts played by particular accused will be separate chapter and I shall have occasion to deal with it later, but the fact of killing and burning cannot be disputed. The Investigating Officer (P.W.18) deposed that when he arrived in the village, he saw dead bodies burning in a maize field south of village Belchi. The Investigating Officer got the pyre extinguished with water when it cooled down, he took out eleven dead bodies. They had all become charged beyond recognition. The Investigating Officer deposed in paragraph 12 that when he reached village Belchi, the pyre was burning, females were loudly crying and that it was a very pathetic scene. The Investigating Officer seized blood stained earth, burnt piece of a blue lungi, burnt piece of a lungi of Chinta cloth, burnt piece of rope and empty tin and some ashes from the field of occurrence. The field of Sahdeo Mahto had small plants which were found trampled marks of dragging in the field were found by the Investigating Officer. The Investigating Officer prepared eleven inquest reports which have been marked as Ext. 7 to 7/10. P.W. 16 Hari Paswan, a Chaukidar deposed that the officer incharge of the police-station had sent him to Barh hospital with eleven dead bodies which he took on a bullock-cart. The post mortem reports in regard to dead bodies have been marked as Ext. 2 to 2/10. All the dead bodies bore unmistakble signs of death having been caused by gun shot injuries and thereafter due to burn injuries. The post mortem reports in regard to dead bodies have been marked as Ext. 2 to 2/10. All the dead bodies bore unmistakble signs of death having been caused by gun shot injuries and thereafter due to burn injuries. Pellets were found in the chest or abdomen of all the dead bodies. In one of the dead bodies, no pellet was recovered but post mortem examination revealed a hole on the left side of the chest in the auxillary region. 5th to 7th ribs of the left side were fractured. In the opinion of the doctor, this death was also probably due to gun shot injury. The post-mortem examination of the dead bodies were held by P.W. 5 Dr. Shankar Prasad Deokuliar. P.W. 6 Dr. Digamber Jha and P.W. 19 Dr. Panchanan Dass, Civil Assistant Surgeons of Barh Hospital. These objective materials besides the evidence of the eye witnesses leave no scope for doubting the prosecution case that eleven persons were shot and killed on the day of the occurrence. According to the prosecution case, these dead bodies was of eight paswans and three sonars, whose names have been set out earlier in paragraph 13. The chain of events and circumstances in which the killings were done establish clearly that they were the dead bodies of these eleven persons as alleged by the prosecution. 29. Upon a resume of the entire evidence, it has been firmly established that on 27.5.1977 a mob consisting of Mahabir, Parsuram etc. caught hold of eight Paswans, after chasing them, in the house of Rohan Mahto (P.W. 12). Some of them which included Parsuram Dhanuk went to the house of Udai Sonar and came back with the three sonars. All these eleven persons were taken to the field of Sahdeo Mahto via Rohan's lane and by the side of house of Kesho Mahto. They were all taken to the field of Sahdeo Mahto where they were shot by the accused after set up and the signed to the flames. A pyre was thereafter set up and the dead bodies were consigned to the flames. 30. Question now remains as to the participants in the crime. I shall now consider the case of each of the accused individually. Parsuram Dhanuk He was charged under sections 148, 302, 302/149 and 201 of the Code and section 27 of the Arms Act. A pyre was thereafter set up and the dead bodies were consigned to the flames. 30. Question now remains as to the participants in the crime. I shall now consider the case of each of the accused individually. Parsuram Dhanuk He was charged under sections 148, 302, 302/149 and 201 of the Code and section 27 of the Arms Act. The trial court convicted him of all the charges. He was specifically charged for the murder of Udai Sonar, Awadhesh Sonar and Kesho Sonar. The learned Additional Sessions Judge found him guilty on all Counts. In regard to his conviction under section 302 of the Code, he was sentenced to death. On appeal while Agrawal, J. accepted the reference and dismissed his appeal as a whole, Prasad, J. acquitted him of the charge under section 302 of the Code. His convictions under other counts were upheld by both the Hon'ble Judges. Having gone through the entire record, I am in entire agreement with the convictions and sentences recorded and imposed upon him under sections 302/149 and 148 of the Code and section 27 of the Arms Act. The prosecution allegation that he along with others had gone to the house of Udai Sonar and caught hold of Udai Sonar, Awadhesh Sonar and Kesho Sonar has been proved by P.W. 7 Shyama Devi, widow of Udai Sonar. The occurrence took place in broad day light in the month of May. There could be no difficulty n identification. There is no reason on the record, for Shyama Devi to have falsely named him. Although she is widow of Udai Sonar and may be characterised as an interested witness, yet I have not the least hesitation in accepting her evidence. Her evidence that Parsuram Dhanuk forcibly took away the Sonar brothers is amply supported and corroborated by other witnesses the resume of which I have given earlier in paragraph 21 I have no desire to repeat them over again. 31. The conviction of appellant Parsuram Dhanuk under section 302 of the Code rests upon the sole testimony of Shyama Devi. She alone stated in court that Parsuram Dhanuk shot Udai Sonar, Kesho Sonar and Awadhesh Sonar Mr. Vinod Chandra appearing on behalf of Parsuram Dhanuk submitted that her evidence to the effect that Parsuram Dhanuk shot the three Sonars is not worthy of acceptance. Let us see how the evidence stands. She alone stated in court that Parsuram Dhanuk shot Udai Sonar, Kesho Sonar and Awadhesh Sonar Mr. Vinod Chandra appearing on behalf of Parsuram Dhanuk submitted that her evidence to the effect that Parsuram Dhanuk shot the three Sonars is not worthy of acceptance. Let us see how the evidence stands. She deposed in court that Parsuram Dhanuk shot the three sonars dead (see paragraph 1). She saw this from under a Mahua tree. This Mahua tree is in the south of the house of Rohan Mahto. She claimed to have seen the shooting of the three sonars from under a Mahua tree. Her evidence in paragraph 15 is that she went following the persons, who were holding and taking her husband and others. They were taken by the front side of Rohan's house but she went through the front portion of Parmeshar's Dalan and across south to the Mahua tree. In paragraph 17 she stated that she remained under the Mahua tree weeping till the dead bodies were burnt. In paragraph 18 she deposed that she had shown the Mahua tree to the Sub-Inspector of Police. The Investigating officer in paragraph 10 of the deposition stated that Shyama Devi did not show him the place from where she witnessed the occurrence. The cross-examination of P.W. 7 in paragraph 16 shows that the defence challenged her evidence that she had seen the occurrence from the Mahua tree. As the map prepared by the investigating officer did not show any Mahua tree, learned counsel for the appellant impressed upon the court the desirability of holding local inspection of the place of occurrence. A local inspection was, therefore, held in presence of counsel for the parties. Local Inspection showed that there was a full grown Mahua tree south of the house of Rohan Mahto. The size of the tree was such that it could not have been planted after the date of occurrence. Anything happening in the field of Sahdeo Mahto would be clearly visible, if any body stood near the Mahua tree. Shyama Devi categorically deposed in paragraph 16 that every thing was visible from under the Mahua tree. She also asserted that she saw Parsuram Dhanuk shooting all the three of them. Anything happening in the field of Sahdeo Mahto would be clearly visible, if any body stood near the Mahua tree. Shyama Devi categorically deposed in paragraph 16 that every thing was visible from under the Mahua tree. She also asserted that she saw Parsuram Dhanuk shooting all the three of them. Learned counsel for the appellant further submitted that P.W. 7 could not have seen from under the Mahua tree for the reason that it is not possible to come to the Mahua tree from the lane of Rohan Mahto except by coming through the house of Kesho Mahto. She clarified the matter in paragraph 14 of her evidence where she deposed as follows :- "I went following the persons who were holding and taking my husband and others. They took them by the front side of Rohan's house But I went through the front portion of Parmeshwar's Dalan." Local inspection fully supported her. It was possible to reach the Mahua tree from the passage by the side of Parmeshwar's Dalan. There was no challenge to P.W. 7 that it was not possible to identify any body from under the Mahua tree. As stated earlier, every thing was clearly visible from under the Mahua tree. Therefore, there could be no difficulty in seeing that Parsuram Dhanuk shot three sonars. The non-mention of seeing the killing from under the Mahua tree in the first information report is not such an omission as to impel us to discredit her evidence. 32. The defence tried to create a cloud by creating confusion between Khalihan and Maize field. Her evidence in paragraph 24 clearly demolished any attempt by the defence to create confusion in that behalf. The Khalihan was in the maize field itself. The marks of digging showed that after the shooting the dead bodies were dragged to the adjacent Khalihan where they were burnt. 33. Learned counsel for the appellant also submitted that in her fardbeyan Shyama Devi (P.W.7) had not stated that Parsuram Dhanuk shot the three sonars and therefore her evidence in court to that effect was doubtful. I regret, there is not much substance in this submission. The fardbeyan was recorded on the evening of 27.5.1977. The state of affairs has only to be imagined to realise the state of her mind. Her husband and two of his brothers had been shot before her eyes. I regret, there is not much substance in this submission. The fardbeyan was recorded on the evening of 27.5.1977. The state of affairs has only to be imagined to realise the state of her mind. Her husband and two of his brothers had been shot before her eyes. They were all burnt alongwith eight Paswans in front of her eyes. It is not surprising that when the Investigating Officer was recording the fardbeyan, only general outlines were told to the police and not the specific acts. If a court is allowed to use a little of common sense, the discrepancy pointed out by learned counsel for the appellant in regard to non-mention of Parsuram Dhanuk having shot the three sonars must be held of no consequence. 34. Learned counsel for Parsuram Dhanuk also submitted that there were some contradictions between her evidence, in regard to the shooting of Sonar brothers by this appellant, and of other witnesses. My attention was drawn to her evidence in paragraph I that her husband and his two brothers were shot in the field and that after short time eight person were caught and brought from Rohan's house, who were also shot dead but the evidence of the other eye witnesses to the occurrence was that all the eleven were taken to the maize field simultaneously and shot dead simultaneously, The apparent contradictions is not of much consequence All the eleven certainly bad been killed and within a short time. A short gap may be of 10 or 15 minutes between the shooting of three sonars and those of eight Paswans is not of such a consequence as to detract from the weight of her evidence. I am unable to hold that Shyama Devi did not see her husband Udai Sonar and his brothers Kesho and A wadhesh being shot. In common course of events, she must have followed the movement of the accused, who had forcibly taken the three sonars. Three sonars having been taken by a mob armed with guns, it is difficult to expect that she could have gone away somewhere else or would have remained in her house following her daily charges. Not much can be made of the evidence of some of the witnesses that all the eleven were shot simultaneously. The whole episode may well be described as one transaction. Not much can be made of the evidence of some of the witnesses that all the eleven were shot simultaneously. The whole episode may well be described as one transaction. The evidence of P.W. 3 Janki Pas wan in paragraph 8 is that Parsuram Dhanuk also fired and that all had fired supports the prosecution case that Parsuram Dhanuk was responsible for some of the killings. I have not the least doubt that Parsuram Dhanuk was responsible for the killing of the three sonars. The trial court was fully justified in convicting him under section 302 of the Code. In agreement with the views of Agrawal, J. the conviction of Parsuram Dhanuk under section 302 of the Code must be upheld. His appeal under that count also is dismissed accordingly. 35. There is yet another aspect of the matter. Even if it were difficult to hold that Parsuram Dhanuk was individually responsible for shooting down the three sonars, he can yet be found guilty under section 302/34 of the Code. Leaving out P.W. 7 Shyama Devi, the consistent evidence of all the eye witnesses is that Parsuram Dhannk also shot the eleven persons. This would be sufficient for his conviction under section 302/149 of the Code although no charge had been framed making him liable for murder under section 302/34 of the Code. It is well established that if a charge under section 302 of the Code is framed, it would be quite legal to convict an accused under section 302/34 of the Code, if there is evidence to that effect. It would not prejudice the accused in any manner, if the evidence led to that conclusion. 36. The question which remains in the sentence which should be imposed upon Parsuram Dhanuk. The murder of three sonars was cool, calculated and diabolic. In the first information report itself Shyama Devi stated that Parsuram Dhanuk was camping south of the river which flows south of village Bclchi and that she had asked her husband not to go there, as Parsuram Dhanuk and his associates might assault. As a matter of precaution Udai Sonar did not sleep in his own home on that night but he slept in the Dalan of Parmeshwar Mahto. Parsuram Dhanuk not succeeding in his game followed it up by visiting the house of Udai Sonar along with several persons fully armed. As a matter of precaution Udai Sonar did not sleep in his own home on that night but he slept in the Dalan of Parmeshwar Mahto. Parsuram Dhanuk not succeeding in his game followed it up by visiting the house of Udai Sonar along with several persons fully armed. He led the three sonars bound to the sacrificial alter in the field of Sahdeo Mahto where he shot the three sonars. Thereafter the dead bodies were burnt beyond recognition. In Joseph Peter versus State of Goa, Daman and Diu Krishna Iyer, J. observed that while it is true that there is an unmistakble shift in legislative emphasis on life imprisonment, for murder as the rule and the capital sentence, an exception, the judge is to draw his inspiration from consecrated principles. He is not however, expected to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordal necessity of order in the social life. His Lordship further observed as follows :- “The guidelines laid down by this court, in its precedents which bind us, tell us that if the offence has been perpetrated with attendant aggravating circumstances, if the perpetrator discloses an extremely depraved state of mind and diabolical trictery in committing the homicide, accompanied by brutal dealing with the cadaver, the court can hardly help in the present state of the law, avoiding infliction of the death penalty." The above I take as the law on the subject. Applying the principles enunciated above, I am of the view that the case of Parsuram Dhanuk is one of those rarest of cases where infliction of the maximum penalty is called for. He killed three brothers in broad day light before the eyes of the relations and several other persons present after bringing them from their house forcibly. Such a conduct, if not dealt with firmly will shah the very foundation of any civilery and original society. Even after the killings the dead bodies were dealt with in indecent manner in that they were burnt. No one can dispute that the acts of the accused were ghastly and henious in the extreme. He had no regard for human life. He must therefore, be visited with the extreme penalty of being hanged by the neck till he is dead. No one can dispute that the acts of the accused were ghastly and henious in the extreme. He had no regard for human life. He must therefore, be visited with the extreme penalty of being hanged by the neck till he is dead. The reference made by the learned Additional Sessions Judge, Patna in regard to Parsuram Dhanuk is, therefore, accepted. His appeal in that behalf is also dismissed. Mahabir Mahto ;- 37. Both the Hon'ble Judges, who heard the appeal in the first instance were agreed that his convictions under all counts except under section 302 of the Code were rightly recorded and the appeal to that extent must be dismissed. They, however, differed in regard to his conviction under section 302 of the Code. There can be not the least doubt that he was the most active participant in the whole ghastly episode He along with others chased the eight paswans, who took shelter in the house of Rohan Mahto. He forced himself into the house of Rohan Mahto and thereafter opened the door through which all members of the mob entered the house of Rohan Mahto. They were brought out of the house of Sahdeo Mahto and the dead bodies consigned to flames by him. He along with Rajendra Mahto and Nepali Mahto were specifically charged for killing the eight paswans. Having gone through the entire record, 1 am of the view that appellant Mahabir Mahto has been rightly convicted under sections 302/149, 148 and 201 of the Code and 27 of the Arms Act. Both the Judges constituting the Division Bench were agreed in this regard in respect of Mahabir Mahto. Since the whole matter is before me, I have also gone through the entire gamut of the allegations and the overwhelming and one guided evidence against Mahabir Mahto. I am in complete agreement with the conclusion of the two Judges, constituting the Division Bench in regard to his convictions under sections 302/149, 148, 201 of the Code and section 27 of the Arms Act. 38. The two Judges constituting the Division Bench differed in regard to the culpability of Mahabir Mahto under section 302 of the Code Agrawal, J, dismissed his appeal on that count as well, but Prasad J, set aside his conviction under section 302 of the Code. 38. The two Judges constituting the Division Bench differed in regard to the culpability of Mahabir Mahto under section 302 of the Code Agrawal, J, dismissed his appeal on that count as well, but Prasad J, set aside his conviction under section 302 of the Code. His conviction and sentences imposed upon by the trial court, therefore, also falls for consideration, before me. 39. The participation of Mahabir Mahto in the crime has been amply proved. The only question that remains to be considered is whether he shot and killed the Paswans, accused, Mahabir Mahto, Rajendra Mahto and Nepali Mahto were charged under section 302 of the Code for the murder of the eight Paswans. The Charge in that behalf reads as follows :- "I Om Prakash, Additional Sessions Judge II, Patna hereby charge you (i) Mahabir Mahto, (2) Rajendra Mahto, (3) Nepali Mahto as follows :- That you, on or about the 27th day of May, 1977 at village Belchi, P.S. Barh, district Patna, did commit murders by intentionally causing death of Singheshwar Paswan. Sahdeo Paswan, Nawal Paswan, Raja Paswan, Bhattu Paswan, Deoki Paswan, Ramasis Paswan and Siban Paswan. And thereby committed an offence punishable under section 302 of the Indian Penal Code, and within my cognizance. And I, hereby direct that you be tried on the said charge. The trial court acquitted Rajendra Mahto and Nepali Mahto of the charge under section 302 of the Code and convicted them only under section 302/149 of the Code, Mahabir Mahto was however, convicted under section 302 of the Code. In an earlier portion of my judgment, I have set out the eye-witnesses to the occurrence. In considering whether appellant Mahabir Mahto had been rightly convicted by the trial court and by Agrawal, J. I shall leave out of consideration P.W.1 Ram Prasad Paswan son of P.W.8 Shakuntala Devi. It is doubtful, if these two witnesses saw the mass killings in the field of Sahdeo Mahto. I am, therefore, leaving their evidence out of consideration. 40. The prosecution has placed implicit reliance upon the evidence of P.W. 2 Anup Paswan for proving the charge under section 302 of the Code against Mahabir Mahto He is son of Bal Govind Paswan, (P.W.14). I have stated earlier that Balgovind Paswan is brother of P.W. 4 Kalicharan Paswan. I am, therefore, leaving their evidence out of consideration. 40. The prosecution has placed implicit reliance upon the evidence of P.W. 2 Anup Paswan for proving the charge under section 302 of the Code against Mahabir Mahto He is son of Bal Govind Paswan, (P.W.14). I have stated earlier that Balgovind Paswan is brother of P.W. 4 Kalicharan Paswan. I have also stated earlier that deceased Singheshwar Pas wan was son-in-law of Kalicharan Paswan, In the mass killings the accused killed not only Singheshwar Paswan, the son-in-law of Kalicharan, but also Nawal Paswao, Sala of Singheshwar Paswan. In that sense P.W. 2 may be said to be an interested witness, but in an occurrence like this, only an interested witness would dare to depose in court. Independent persons would not have the courage to depose against persons like the accused in this case. An interested witness is not necessarily an untruthful witness. The evidence of P.W. 2 Anup Paswan is, therefore, to be tested on its intrinsic worth. 41. P.W. 2 deposed that on the day and at the time of occurrence he was at the house of Karan Mistry, a carpenter. At that time he heard gun fire report. Coming out of the house of Karan Mistry, he proceeded south towards the house of Rohan Mahto. He Saw Singheshwar and seven persons coming fleeing from the east chased by Mahabir Mahto and several others. He saw the Paswans shutting themselves up in the house of Rohan Mahto. Thereafter the witnesses entered the house of Janki Paswan and went up-stairs-may be impelled by the instinct of self protection as well as to see the fate of his relations in the lane of Rohan Mahto and near about. According to him, Mahabir Mahto and all his associates were armed with guns. He saw from the Kotha (Upper terrace) of Janki Paswan that out of that mob Parsuram Dhanuk and Mahabir Mahto along with 6 to 7 others went towards west of house of Rohan Mahto. Later they came back with three sonars in their custody. The witnesses deposed about having seen the besieging of the house of Rohan Mahto by Mahabir Mahto and others. He also deposed to having seen the eight paswans brought out in custody from the house of Rohan Mahto. He saw all the eight paswans being horded down Rohan Mahto's lane towards the house of Kesho Mahto. The witnesses deposed about having seen the besieging of the house of Rohan Mahto by Mahabir Mahto and others. He also deposed to having seen the eight paswans brought out in custody from the house of Rohan Mahto. He saw all the eight paswans being horded down Rohan Mahto's lane towards the house of Kesho Mahto. By that route they were taken to the field of Sahdeo Mahto to the south. There Mahabir Mahto shot dead Singheshwar Paswan and Nawal Paswan. He deposed that Mahabir and Rajendra Mahto shot dead all the eight Paswans. 42. Realising the vicious nature of the evidence given by Anup Paswan (P.W. 2), the defence went for him cons and Pincers but the witness remained unshaken. The defence challenged the claim of Anup Paswan to have gone to the shop of Karan Mistry, the carpenter. A mountain of a mole was attemped to be made out of his evidence in paragraph 9. The witness stated that on the day of occurrence he had gone for ploughing the field. It was submitted by learned counsel for Mahabir Mahto that having deposed that he had gone for ploughing, his claim in his examination-in-chief to have been at the shop of Karan Mistry was false and, therefore his evidence should be rejected. The evidence of this witness in paragraph 9 read as a whole clearly shows that the claim of the witness that he was at the house of Karan Mistry was not untrue. When the witness stated that he had gone to the field for ploughing in the very next sentence he said that he had gone to the carpenter for getting the plough repaired and as the occurrence took place, he could not go for ploughing the field. He deposed that the plough was lying un-repaired for two to four months prior to the occurrence and there had been rain fall the previous night, so the time of cultivation had come. He had, therefore, gone for getting the plough repaired for sowing maize. After getting the plough repaired he would have gone to the field. He deposed that the plough was lying un-repaired for two to four months prior to the occurrence and there had been rain fall the previous night, so the time of cultivation had come. He had, therefore, gone for getting the plough repaired for sowing maize. After getting the plough repaired he would have gone to the field. Reading the contents of paragraph 9 of his evidence, it is obvious that having rained the previous night the witness got out to plough the field, but it appears that some thing was defective in the plough and, therefore, he thought of going to plough the field after getting the plough repaired at the carpenter's place, There is, thus no contradictions between his evidence in paragraph 1 that he was at the house of Karan Mistry and his evidence in paragraph 9 that on the day of occurrence he had gone for ploughing the field. 43. The next comment levelled at P.W. 2 was based upon the evidence that he remained at the Kotha till evening. Learned counsel for the appellant Mahabir Mahto described this as incredible. I regret, I am unable to see the incredibiliy in his having remained at the Kotha till the evening. Evening is a loose expression. It may mean anything from 3 P.M. to 5.30 when the police came. There is no evidence till what time the accused kept on guarding the onflangration in the field of Sahdeo Mahto It may, therefore, well be that being afraid of himself being caught and killed he may have decided to remain on the terrace where he was safe. By the time police came to village Belehi, he had run away to Jofarchak. This would be quite natural. His conduct in not being available for giving his statement before the police on 27.5.1977 was seriously commented upon on behalf of the appellant, It was submitted that the story of having run away to Jafarchak a village about two miles from Belehi was a trumped up alibi. That a man placed in that position would think of running away from Belchi having seen such an occurrence can not be termed incredible. There was no reason for him to say falsely that he had gone away to Jafarchak. When he ran away from Belchi, he must have thought of taking shelter some where. That a man placed in that position would think of running away from Belchi having seen such an occurrence can not be termed incredible. There was no reason for him to say falsely that he had gone away to Jafarchak. When he ran away from Belchi, he must have thought of taking shelter some where. That place would be the village nearest to Belchi or in its close proximity. The fact that police had arrived at Belchi in the evening of 27.5.1977 may not have come within his knowledge. I wonder, if he would have been in his proper sense on 27.5.1977 to think as learned counsel for the appellant was speculating in court, Eight paswans had been shot dead. P.W. 2 Anup Paswan was also a Paswan and close relation of two of these killed. I am therefore, unable to find any inherent infirmity in his evidence in running away to Jafarchak. It is true that if he was unable to say the name of the person with whom he had, stayed for the night and who had provided him food and shelter. That is, however, a minor matter. It was suggested to the witness in paragraph 24 that after hearing gun fire report he had run away from the village in the morning and had not seen anything whatsoever. The suggestion is a mere suggestion and not worth taking much note of. Another criticism levelled against his evisdence was that before the police he had stated that accused Raghuni, Naresh, Sitaram and Ram Ashray had no weapons in their hand, but in court he had falsely attributed their being armed with guns. This discrepancy has bearing only on the individual culpability and not upon the witness in having seen the occurrence from beginning till the end. 44. One of the most important criticism levelled against the evidence of P.W.2 was that he could not have been in a position to see the shooting and the burning of the dead bodies from the terrace of Janki Paswan. Learned counsel appearing for Mahabir Mahto streneously argued this aspect of the matter and prayed for holding local inspection. 44. One of the most important criticism levelled against the evidence of P.W.2 was that he could not have been in a position to see the shooting and the burning of the dead bodies from the terrace of Janki Paswan. Learned counsel appearing for Mahabir Mahto streneously argued this aspect of the matter and prayed for holding local inspection. The map drawn by the Investigating Officer was of no assistance in regard to this comment on behalf of the appellant nor was there any direct challenge to the witness that the happenings in the field of Sahdeo Mahto could not be seen from the terrace of Janki Mahto. Therefore in the interest of justice the court condescended to hold local inspection. Local inspection showed that from the terrace of Janki Mahto everything was visible in the field of Sahdeo Mahto. The distance was not great. It could not be more than 100-150 yards as the crow flies. Therefore, there was no substance in the submissions urged on behalf of the appellant that P.W.2 could not have seen occurrence from the terrace of Janki Mahto. 45. It Was submitted that having fled away to Jafarchak, the witness should have come back to village Belchi instead of going away to Bath police station where he gave statements to the police. It was submitted that his claim of having gone to Barh was only a lame excuse to cover up the fact that he was not an eye witness and that he had run away on hearing the report of gun fire. There is nothing incredible if instead of coming back to Belchi he decided to go to Barh police station. He may well have thought that in trying to reach Belchi, he may be waylaid in the way and I for one would not call it a very fantastic process. The comment on behalf of the accused that his statement having been recorded by the police on 28.5.1977 and not on 27.5.1977 was delayed and must be rejected has no substance and must be rejected. 46. The evidence of P.W. 2 was also assailed on the ground that Shyama Devi (P.W. 7) wife of Udai Sonar had not attributed any part having played by Mahabir Mahto in the killings and, therefore, the evidence of P.W. 2 and the prosecution case in regard to killings by Mahabir Mahto should be rejected. 46. The evidence of P.W. 2 was also assailed on the ground that Shyama Devi (P.W. 7) wife of Udai Sonar had not attributed any part having played by Mahabir Mahto in the killings and, therefore, the evidence of P.W. 2 and the prosecution case in regard to killings by Mahabir Mahto should be rejected. The submission is not tenable for the reason that Shyama's attention may have been revolving on her husband and his brothers and what was passing with them and may not have taken note of what each of the accused was doing. To expect that every witness to observe all the specific acts committed by a large number of person is expecting too much from a rustic woman. The fact that other witnesses did not see Mahabir Mahto shooting cannot detract from the weight of evidence of P.W. 2 Anup Paswan when he deposed that Mahabir and others shot eight paswans. 47. P.W. 8 in paragraph 8 of his evidence also deposed that all the eleven were shot dead and that Mahabir Mahto also fired like Parsuram Dhanuk. It was submitted by learned counsel for Mahabir Mahto that P.W. 3 not having stated before the police that Mahabir had also fired gun, his evidence was insufficient to support the conviction of Mahabir Mahto under section 302 of the Code. As occurrence of serious magnitude had taken place the investigating officer could only record bare outlines of the incidents as given by the witnesses. He could not have recorded minute details. The discrepancy pointed out is a discrepancy of a minor detail. The evidence of P.W. 3 cannot be rejected on that score. The evidence of P.W. 3 provides ample corroboration to the evidence of P.W. 2. P.W. 9 Nathia Devi deposed in paragraph 2 that she saw Mahabir and others shooting the eleven dead. She claimed to have seen the shootings while standing at the well of Kesho Mahto. The well of Kesho Mahto would be direct north of the place of shooting with nothing to intercept the vision at a distance of about 100 yards. P.W. 10 Girija Devi, daughter of P.W. 3 Janki Paswan deposed in paragraph 2 that she recognised Mahabir Mahto and others as the shooters shooting with guns. Deceased Nawal Paswan was the nephew of husband of Girija Devi. P.W. 10 Girija Devi, daughter of P.W. 3 Janki Paswan deposed in paragraph 2 that she recognised Mahabir Mahto and others as the shooters shooting with guns. Deceased Nawal Paswan was the nephew of husband of Girija Devi. In paragraph 12 she deposed that she saw the killings while she was standing near the house and well of Kesho Mahto. She stated in paragraph 12 that she did run away on seeing the mob coming after apprehending the victims with other sight seers, but they were at some distance and that she could not give names of any public. There is nothing surprising in this that she could not say the names of other sight seers three years after the occurrence, in regard to the evidence of P.W. 10 it was submitted that her evidence that Mahabir was among the shooters should not he accepted, as she had not stated before the police that she identified Mahabir Mahto among the shooters. This submission was based upon her evidence in paragraph 16 and that of the Investigating Officer (P.W.18) at paragraph 116. Her evidence cannot be discounted for not having stated before the police the names of persons, who were shooting, An investigating officer recording statements of witnesses in terms of 161 of the Code of Criminal Procedure is required only to record the substance of the statements of the witnesses, whether P.W. 10 stated or not that Mahabir Mahto Was one of the shooters in a matter of detail. In regard to P.W. 10 the conclusion of Prasad J, in paragraph 41 also was that her evidence that Mahabir Mahto was armed with gun in the mob of shooters and that her evidence that after the eleven deceased were shot down, it was Mahabir Mahto who set fire to the dead bodies remained unshaken I am in complete agreement with Prasad, J. in regard to the credibility of P.W. 10. P.W 11 Subhash Devi also deposed that all the eleven deceased were taken to Baghatilla field where they were shot dead. In this connection, she identified Mahabir Mahto as one of the persons, who was armed with a gun. Her eleven years old son Raharam Paswan had been abducted and shot along with others. It is quite natural that she may have followed the accused upto the house of Kesho Mahto and had seen the shooting. In this connection, she identified Mahabir Mahto as one of the persons, who was armed with a gun. Her eleven years old son Raharam Paswan had been abducted and shot along with others. It is quite natural that she may have followed the accused upto the house of Kesho Mahto and had seen the shooting. There is no reason to doubt her testimony P.W. 14 Bal Govind Paswan deposed in paragraph 11 that he saw the persons, who fired. He only deposed that Mahabir and others were armed with guns. 48. The evidence of P.W. 2 Anup Paswan read with the evidence of Janki Paswan (P.W.3) Girija Devi P.W.10) and Subash Devi (P.W.11) fully prove the prosecution case that Mahabir Mahto had taken active part in the shooting of the eight Paswans. The fact that the trial court did not convict Rajendra Mahto and Nepali Mahto of the charge under section 302 of the Code cannot affect the clear evidence against Mahabir Mahto. I am therefore, firmly of the view that the conviction of appellant Mahabir Mahto be upheld. In agreement with the views of Agrawal, J. the appeal of appellant Mahabir Mahto in regard to his conviction under section 302 of the Code is upheld and the appeal to that extent also is dismissed. 49. In regard to the sentence to be imposed upon him, Mahabir Mahto was the leader and the prime mover of the entire ghastly carnage committed at village Belchi on 27.5.1977. He himself took active part in the entire episode. Killing of so many persons in broad day light cannot be taken lightly. The principles in regard to imposition of death sentence I have already stated in paragraph 34 of my judgment. The case of Mahabir Mahto is worse than that of Parsuram Dhanuk. He himself lighted the sacrifical pyre which burnt all the dead bodies beyond recognition. The cadever of the Paswans was dealt with in a very indecent manner. In my view, his case is also one in which the extreme penalty of death by hanging must be imposed. The reference by the trial court is accepted and the appeal of Mahabir Mahto to that extent is dismissed. Keshav Mahto, Naresh Mahto and Rama Mahto alias Rameshwar Mahto. 50. Appellants Naresh Mahto and Rama Mahto alias Rameshwar Mahto are sons of appellant Keshav Mahto. The submissions advanced on their behalf by Mr. The reference by the trial court is accepted and the appeal of Mahabir Mahto to that extent is dismissed. Keshav Mahto, Naresh Mahto and Rama Mahto alias Rameshwar Mahto. 50. Appellants Naresh Mahto and Rama Mahto alias Rameshwar Mahto are sons of appellant Keshav Mahto. The submissions advanced on their behalf by Mr. Prakash Narain Pandey were that the evidence, against them was omnibus in character, as having been seen in the mob. These three appellants belong to village Belchi itself. Their presence at the time of occurrence could not be sufficient to hold that they shared the common object of killing the eight paswans without any evidence of any overt-act committed by these appellants. My attention was drawn to the evidence of Janki Paswan (P.W. 5) in paragraph 23 where he stated that the persons whose houses were nearby in the lane had got mixed up with the rioters. Upon that evidence the submission was that commission of no overt-act having been alleged against these appellants, their conviction, for being members of an unlawful assembly with the charged common object was illegal and unwarranted. The proposition of law is unexceptionable. Let us see how far the facts sustain this submission. 51. The appellant Keshave Mahto was identified at the trial as being a member of the mob by P.W.2 Anup Paswan, P.W.3 Janki Paswan. P.W. 9 Nathia Devi, P.W. 11 Subhas Devi, P.W. 13 Mahendra Prasad and P.W. 14 Balgovind Paswan. Appellants Naresh Mahto and Rameshwar Mahto were identified by all those witnesses, who have identified Keshav Mahto except P.W. 13, P.W. 1 also identified appellant Keshav Mahto, but I have excluded his evidence for reasons which I have stated earlier. P.W. 2 Anup Paswan deposed that he saw that main door of the house of Roban Mahto was opened and 30-40 persons of the mob went inside and some of them remained outside. Thereafter, be saw the eight paswans brought out by the mob. He named sixteen out of them which included appellant Keshav Mahto as well. The investigating Officer (P.W. 18) stated in paragraph 105 that P.W. 2 Anup Paswan did not name before him Keshav Mahto in any connection much less in connection with bringing out the eight persons out of the house of Rohan Mahto. The evidence of P.W. 2 therefore, must be left out of account. The investigating Officer (P.W. 18) stated in paragraph 105 that P.W. 2 Anup Paswan did not name before him Keshav Mahto in any connection much less in connection with bringing out the eight persons out of the house of Rohan Mahto. The evidence of P.W. 2 therefore, must be left out of account. P.W.3 Janki Paswan deposed in paragraph 5 that the mob consisting of Mahabir Mahto and several others came to the Darwaza of Rohan Mahto. Among them he identified Keshav Mahto and his sons as well. No contradiction was taken from the Investigating Officers in regard to Keshav Mahto. Yet the evidence of this witness in regard to Keshav Mahto is omnibus in character. P.W.9 Nathia Devi deposed that a mob consisting of Keshav, Naresh and Rameshwar Mahto along with Mahabir Mahto and others shot dead eleven persons. This is certainly evidence of commission of overt-act by these three appellants. She did not however, name these three appellants before the Investigating Officer in any connection. Her evidence must, therefore, be left out of consideration. P.W. 11 Subhash Devi deposed in paragraph 1 that the mob took away all the eleven persons to Baghatilla field and that she identified Rama alias Rameshwar, Naresh and Keshav along with Mahabir, Parsuram etc. and that all of them were armed with guns. There is nothing to show that this witness had not stated before the police that Keshav, Naresh and Rameshwar were armed with guns. That is my conclusion because no question was asked from the Investigating Officer at paragraph 117 which would show that she did not state before the police that these three appellants were armed with guns. No cross-examination was directed to show that her statement that Keshav, Naresh and Rameshwar were armed with guns was false or untrue. P.W. 13 Mahendra Prasad was a boy of ten years at the time of occurrence and was in the very house in which the Paswans had taken shelter and from where they were taken out per force by the mob. He deposed in paragraph 3 that from inside they (the mob) took out the eight Paswans. He further deposed that among the persons who brought them tied, he identified Keshav Mahto. He did not name Naresh and Rameshwar in any connection. The evidence, if believed, does show that Keshav Mahto had taken part in tying the eight paswans. He deposed in paragraph 3 that from inside they (the mob) took out the eight Paswans. He further deposed that among the persons who brought them tied, he identified Keshav Mahto. He did not name Naresh and Rameshwar in any connection. The evidence, if believed, does show that Keshav Mahto had taken part in tying the eight paswans. The witness was put to severe test in cross-examination, but it must be said to his credit that he remained unshaken. Although he was a boy of ten years of age at the time of occurrence, I have not the least hesitation in holding that he was a witness of truth. No question was put to the Investigating Officer to show that what P.W. 13 said in court in regard to Keshav has not been stated earlier before the police. In that view of the matter, his evidence is also worthy of acceptance. P.W. 14 Bal Govind Pas wan deposed in paragraph 4 that besides Mahabir he identified Naresh Mahto, Keshav Mahto, Rama Mahto alias Rameshwar Mahto and ten others and that they were all armed with guns. In paragraph 11 of his evidence, which was in cross-examination, P.W. 14 stated that he saw the persons who fired and those who fired included Keshav Mahto, Rama Mahto and Naresh Mahto. In paragraph 23 he stated that he had seen these three appellants with guns and that he had stated to that effect to the Investigating Officer. The Investigating Officer, however, deposed in paragraph 73 that P.W. Balgovind did not tell specifically that accused Rama Mahto, Keshav Mahto and Naresh Mahto were armed with guns. In view of the statement of the Investigating Officer in paragraph 73 at page 141, I could exclude the evidence of P.W. 14 Bal Govind Paswan for the purpose of ascertaining the culpability of the three appellants. 52. The above sums up the evidence against the three appellants. From the above, it will be seen that they have not only been identified in the mob, but there is evidence to show their participation in the crime. P.W. 3 deposed that he had seen Rameshwar and Naresh with guns. Similarly P.W. 11 also deposed that Naresh and Rameshwar were armed with guns. P.W. 13 identified Keshav Mahto as one of the persons who brought out the eight Paswan from the home of Rohan Mahto. P.W. 3 deposed that he had seen Rameshwar and Naresh with guns. Similarly P.W. 11 also deposed that Naresh and Rameshwar were armed with guns. P.W. 13 identified Keshav Mahto as one of the persons who brought out the eight Paswan from the home of Rohan Mahto. Their being possessed of guns at the time of occurrence points unmistakbly towards their involvement in the crime. The unimpeachable evidence of P.Ws. 3, 11 and 13 shows that these three appellants were armed with guns. They had no animus against these three appellants. These are sufficient to show that they were parties to the mob of Mahabir Mahto and it must be held that they were actuated by the same object as Mahabir and others to kill the eleven deceased. In this state of evidence, the deposition of P.W. 3 that persons whose houses were nearby were mixed up by the rioters loses all significance. These three appellants were not mere spectators but were armed with guns and had taken active part in the occurrence. 53. It was also contended by Mr. Pandey that these three appellants were entitled to the benefit of doubt as their names were not mentioned in the first information report. I, regret, I can not condescend to accept this submission. The stratum of society of Shyama Devi and her mental condition, must always be kept in mind, in appreciating her evidence and the value to be attached to the first information report. She has seen her husband and his two brothers being shot before her own eyes and their dead bodies were burnt beyond recognition. I wonder if she was in a normal state of mind. She had not seen Keshav in the crowed and, therefore, she did not mention these three appellants, but the fact that she did not observe these three appellants can not take away the value of the positive statement of P.Ws. 3, 11 and 13 that these three appellants were armed with guns. Learned counsel for the appellants submitted that the fardbeyan was recorded at the Dalan of Keshav Mahto and, therefore, it would be difficult to accept that the names of these appellants could not have been mentioned in the first information report. This submission would have substance, if Shyama Devi had claimed to have identified these appellants. Learned counsel for the appellants submitted that the fardbeyan was recorded at the Dalan of Keshav Mahto and, therefore, it would be difficult to accept that the names of these appellants could not have been mentioned in the first information report. This submission would have substance, if Shyama Devi had claimed to have identified these appellants. The fact that the fardbeyan was recorded at the dalan of Keshav Mahto is not of much consequence. I am unable to hold that since Bal Govind and Kalicharan were in the village when the police I came, they must have told Shyam Devi about the accused whom they had identified. I regret I cannot condescend to accept this submission. 54. Learned counsel for the appellants submitted that the three appellants had been acquitted of the charge under section 148 of the Code upon the finding that there was no reliable evidence to prove that they were armed with guns. I regret the finding of the trial court in that behalf is not justified. Although I cannot convert their acquittal under section 148 of the Code and convict them, yet it is open to me to hold that they were armed with guns and that the finding of the trial court in that behalf was not Correct. In my view, all the three appellants, Keshav Mahto, Naresh Mahto and Rameshwar Mahto were armed with guns at the time of occurrence. There is evidence to show that these three appellants also shared the common object of the unlawful assembly to kill. Their convictions under sections 302/149 and 147 of the Code must, therefore, be upheld. Their appeals are dismissed accordingly in agreement with Agrawal J. Appellants Siri Mahto and Kailash Mahto Cr. Appeal No. 218 of 1980. 55. These appellants also have been convicted under section 302/149 and 147 of the Code. They also belong to village Belchi. They were not named in the first information report This circumstance coupled with the evidence of P.W. 3 Janki Paswan that the persons whose houses were nearby in the lane of Rohan Mahto had got mixed up with rioters impelled Prasad, J to give the benefit of doubt. 56. P.W. 2 Anup Paswan identified Kailash Mahto as one of them, who brought out the eight Paswans with tied up hands from the house of Rohan Mahto. 56. P.W. 2 Anup Paswan identified Kailash Mahto as one of them, who brought out the eight Paswans with tied up hands from the house of Rohan Mahto. P.W. 3 Janki Paswan identified both these appellants as those who took part in the occurrence. No question worth the name was asked of him challenging the participations of these two appellants in the occurrence. P.W.9 Nathia Devi also consistently named these two appellants as having taken part in the occurrence and killing the eleven deceased. P.W.11 Subhash Devi deposed that Kailash Mahto and Siri Mahto were armed with guns along with several others when the victims were taken to Baghtilla field. P.W.14 Bal Govind Paswan named Siri Mahto as one of the fourteen persons who were armed with guns. In evidence of other witnesses must be left out of account in considering the case of these two appellants as well. There is evidence, however, to show that these appellants had also taken active part in the occurrence which took place at village Belchi on 27.5.1977 I am unable to give them the benefit of doubt on account of non-mention of their names in the first information report for the reasons which I have explained while dealing with the case of Keshav Mahto, Naresh Mahto and Rameshwar Mahto. The same reasons hold good for these two appellants as well. Appellant Ram Kishun Mahto - Cr. Appeal no 217 of 1980. 57. The case of this appellant also stands on the same footing as that of Siri Mahto and Kailash Mahto. He was consistently identified by P.W.2 Anup Paswan, P.W.3 Janki Paswan, P.W.9 Nathia Devi, P.W.11 Subhash Devi P.W.13 Mehendra Prasad and P.W.14 Bal Govind Paswan, P.W.9 Nathia Devi went to the extent of deposing in paragraph 2 of her evidence that Ram kishun Mahto was one of those who shot the eleven persons dead. Although his name was not mentioned in the first information report but that circumstance cannot nullify the effect of the evidence of the eye witnesses mentioned above. In this regard his case must stand on the same footing as that of other appellants. In my view this appellant was rightly convicted by the trial court. His conviction, therefore, must be upheld. The appeal on his behalf is dismissed accordingly. Appellant Baldeo Mahto and Kishori Mahto – Cr. Appeal no. 155 of 1980. 58. In this regard his case must stand on the same footing as that of other appellants. In my view this appellant was rightly convicted by the trial court. His conviction, therefore, must be upheld. The appeal on his behalf is dismissed accordingly. Appellant Baldeo Mahto and Kishori Mahto – Cr. Appeal no. 155 of 1980. 58. Both these appellants are brothers and belong to village Belchi itself. Although they were not named in the first information report by Shyama Devi but they had been identified by several witnesses as having taken part in entering the house of Rohan Mahto and bringing them out from there, bound in rope. Appellant Baldeo Mahto has been identified consistently before police and the court by P.Ws. 3, 9, 11 and 14. Both of them belong to the same caste as Mahabir Mahto. The occurrence took place in broad day light. No evidence of animus with the witnesses has been brought to light on the record. The fact that their names were not mentioned in the first information report is of no moment as the first informant Shyama Devi (P.W.7) only named those who had taken part in catching hold of Udai Sonar and his brothers. All these witnesses were examined by the Investigating Officer on the very day of the occurrence i.e. 27.5.1977. In that view of the matter, there is sufficient evidence indicating their participation in the crime. I regret, I have not been able to agree to the view taken by Prasad, J. in this behalf. Both these appellants were rightly convicted by the trial court. There is no merit in their appeals which must be dismissed accordingly. 59. In regard to the occurrence, there can be no doubt that the occurrence as alleged by the prosecution took place. The only vital question to be considered in the appeals was the participation of each individual. While it is true that in a faction ridden village there is a tendency to falsely implicate individuals, yet as observed by the Supreme Court in Nasalti Versus the State of Uttar Pradesh, we cannot expect perfect witnesses. There is bound to be some infirmity here and there. The sum total of the evidence has to be considered, in considering whether a witness should be accepted or not. No human being is perfect. Perfection is not given to a man on earth. Perfection belong to God alone. There is bound to be some infirmity here and there. The sum total of the evidence has to be considered, in considering whether a witness should be accepted or not. No human being is perfect. Perfection is not given to a man on earth. Perfection belong to God alone. With these short-comings, it has to be seen whether the witnesses should be accepted or not. That is the standard I have applied. In Inder Singh and another-Versus-State, (Delhi Administration) Krishna Iyer, J. observed as follows :- "Credibility of testimony, oral circumstantial, depends considerably on a Judicial evaluation of the totality not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial: if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of fool proof concoction. Why fake up? Because the courts ask for manufacture to make truth look true? No we must be realistic. " I have endeavoured to adhere and act according to the principles enunciated above. By that touchstone, I am in agreement with the views expressed by Agrawal J. 60. I have stated earlier that the appeals of Appellants Sitaram Mahto, Sadhu Mahto, Rajendra Mahto, Siban Mahto and Nepali Mahto did not fall for consideration before me, as both the Hon'ble Judges were agreed that they were rightly convicted by the trial court. If the agreed acquittals of appellants Nandeo Gope alias Nand Lal Gope and Ramashay Mahto, their cases were not open to review before me. I am unable to accept how the agreed convictions could be reviewed by me. Yet, to obviate any technical difficulty and obviate any remand on the question. I have applied myself to the cases of the five appellants whose appeals had been dismissed by both the Hon'ble Judges. I am unable to accept how the agreed convictions could be reviewed by me. Yet, to obviate any technical difficulty and obviate any remand on the question. I have applied myself to the cases of the five appellants whose appeals had been dismissed by both the Hon'ble Judges. In my view, the convictions recorded against them by the trial court were amply merited. The names of appellants Rajendra Mahto, Siban Mahto and Nepali Mahto were mentioned in the first information report itself. Their complicity in the crime cannot be doubted. In court the witnesses consistently named these three appellants as having taken active part in the occurrence. Appellants Sitaram Mahto and Sadhu Mahto were not named in the first information report as accused. Yet, there is ample evidence showing their participation in the crime. In my view, therefore, the trial court rightly convicted them. Therefore, in agreement with the views of both the Hon'ble Judges I would also dismiss their appeals and uphold their convictions. 61. To sum up, the appeals of Nandeo Gope alias Nand Lal Gope and Ramashray Mahto have already been allowed by the Division Bench. The convictions of rest of the appellants under all counts are upheld. There is no merit, therefore, in any of the appeals which are dismissed accordingly. The references made by Additional Sessions Judge, Patna in regard to the sentence of death imposed upon Parsuram Dhanuk and Mahabir Mahto is accepted. Appeals dismissed.