Judgment LOKNATH PRASAD and O.N.ASTHANA JJ. 1. This appeal is directed against the order of conviction recorded by Shri Mishri Lal Choudhary, 1st Additional District Judge, Muzaffarpur, vide his judgment dated 27th August, 1992, passed in Session Trial No. 125/91, 12/91 through which he convicted and sentenced these appellants and one Maulvi Mian to undergo imprisonment for life under Section 302/34 of the Indian Penal Code. 2. The fact in short giving rise to this appeal is that at about 4.10 p.m. or so on 5-12-1989 the appellant Sobrati Mian had gone to Kurhani Police Station and lodged a Sanha alleging therein that one of the deceased was apprhended by them in suspicious circumstances and the other escaped away and he was kept in front of his house. The officer incharge immediately proceeded to the place of occurrence village Phakuli and reached there at about 5.15 p.m. and found the deadbody of two persons i.e. of Satyanand Bhagat, who was lying on the ground just in front of house of appellants and that of one Phool Mohammad alias Mahesh Bhagat whose body was hanging on a Gullar tree and villagers were present there and fardbeyan of Choukidar Doman Rai was recorded on the spot. He had alleged that at about 4 p.m. or 80 on 5-10-1989 he heard rumour in the village that these appellants and their father have appehended two persons and they are assaulting them and so he rushed to the house of the appellants and Sobrati Mian was found absent and he had gone to place of occurrence and deceased Mahesh was found hanging in Gullar tree and another deceased Satyanand was lying on the ground and on interrogation from the villagers assembled there he learnt that these appellants apprehended the deceased Mahesh and other deceased Satyanand who was close friend of Mahesh Bhagat was brought by Sobrati Mian on some pretext and they committed their murder. It has been alleged that Mahesh was coming to the village and so he was apprehended by these appellants and Satyanand was brought on a motor cycle by Sobrati Mian and there was enmity between these appellants and both the deceased for the reason that a dacoity case was instituted by the appellants as against Mahesh Bhagat and recently he was released on bail and so the murder of Mahesh and his close friend Satyanand were committed by these appellants. The Choukidar also alleged that he learnt that Chanarik Roy, Sidheshwar Mishra, Ram Sohag Rai, Bishundayal Rai and some others had seen the occurrence and actually they will narate about the occurrence. 3. On the basis of this Fardbeyan recorded at a out 5-15 p. m. on 5-12-1989 this case was instituted as against these appellants and their father. 4. The police recorded the statement of the witnesses and seized incriminating articles i.e. country made pistol, oil rusted knife and rope through which one of the deceased was hanged on the tree and dead bodies of both the deceased were sent for post-mortem examination after preparation of the inquest report. 5. After investigation charge-sheet was submitted as against these appellants and their father and all the four faced trial in the Court below and their defence appears from the cross-examination of the witnesses that the deceased Mahesh prior to occurrence brought a Muslim girl, namely, Marina Khatoon and kept her as his wife and he also convorted to Muslim faith and for that purpose and as a Muslim girl was brought by Hindu so the Hindu community was annoyed and on the date of occurrence they committed murder of Mahesh and his associate the other deceased and in order to save their skin they have been implicated in this case. 6. The trial Court vide his judgment dated 27th August, 1992 found these appellants and their father guilt under Section 302/34, IPC and convicted and sentenced them in the manner indicated above and against that order of conviction these appellants preferred this appeal. On the other hand, the father of these appellants Mauivi Mian preferred a separate appeal bearing Criminal Appeal No. 362 of 92 but Maulvi Mian died during the pendency of the appeal, so Criminal Appeal No. 362 of ;992 preferred by him stands abated and necessary order was recorded in that very appeal. 7. It is admitted fact that this occurrence took place in the afternoon of 5-12-1989 at about 4 p.m. or so or even prior to that in village Phakuli and the murder of Mahesh Bhagat and Satyanand Bhagat was committed and the investigating officer and other villagers also found the dead bodies of both the deceased just infront of the house of all these appellants who are full brothers liying jointly in village Phakuli. 8. 8. Admittedly according to the evidence of the investigating officer and other witnessed the deadbody of Mahesh Bhagat was found hanging on a Gullar tree from reverse side that means the deadbody was tied from the leg side and head was on the bottom and the deadbody of other deceased was lying on the ground in front of the house of all the appellants and as such inquest i.e. Exts 5 and 5/1 were prepared by the investigating officer in presence of PW 1 Abdul Hamid and PW 4 Bharat Rai. 9. Now the main question for consideration before us is whether these appellants and their father in furtherance of their common intention actutally committed the murder of both the deceased in the manner alleged in from of their house in the afternoon of 5-12-1989. 10. On the point of occurrence i.e. actual assault of the deceased the prosecution could examine PW 2 Chanarika Rai, PW 3 Sideshwar Mishra, PW 7 Dhodhai Bhagat, PW 8 Ram Sohag Rai and PW 10 Karaleshwar Paswan. 11. Admittedly PW 2 had not stated anything about the occurrence and he had also claimed that he had not given any statement to the investigating officer and so he has been declared hostile. 12. PW 3 Sidheshwar Mishra is an important witness of the occurrence and he belongs to contiguous village Keshrawa and had claimed that at the time of occurrence he was in his paddy field which is near to the place of occurrence village intervened by a road. It is also his evidence that he came to place of occurrence i.e. infront of the house of the appellants on alarm raised by the ladies and found these appellants and their father asauling the deceased Mahesh by Lathi and iron rod and then after that they tied the leg and neck of this deceased and hanged an a Gullar tree from the leg side and they also committed the murder of Satyanand inside the house and brought his deadbody near the Gullar tree in front of their house. Satyanand was a resident of village Chakias but he opened a dispensary in the house of deceased Mahesh Bhagat as they were very close friends and prior to this occurrence appellant Sobrati Mian instituted a criminal case of dacoity as against deceased Mahesh Bhagat and from that there was enmity between them. Satyanand was a resident of village Chakias but he opened a dispensary in the house of deceased Mahesh Bhagat as they were very close friends and prior to this occurrence appellant Sobrati Mian instituted a criminal case of dacoity as against deceased Mahesh Bhagat and from that there was enmity between them. PW 3 is a school teacher and his land is very close to the place of occurrence land, so naturally he appears to be a competent and reliable witness. 13. Admittedly there was no prior enmity between the appellants and this witness and only suggestion was given to this witness in the cross-examination that he hatched up a case as against the appellants and he instigated Hindu community to commit the murder of the deceased Mahesh Bhagat brought a Muslim girl and he himself converted into Muslim faith. This suggestion has got no force and practically no evidence was adduced on this point which will be apparent from other circumstances and evidence to be discussed hereinafter. 14. The other witnesses of the occurrence i.e. PW 7 Dhodhoi Bhagat, PW 8 Ram Sohag Rai and of PW 10 Kamleshwar Paswan and they also consistently supported the prosecution case as stated by PW 3. 15. From their evidence it is also clear that at about 4 p.m. or prior to that these accused persons committed the murder of the deceased and the deadbody of Mahesh was hanging in the Gullar tree because of the enmity and they have further stated that appellant Sobrati Mian was the leader of the Muslim community and he too was annoyed for the reason that Mahesh Bhagat brought a Muslim girl and kept her as his wife and for that a criminal case was instituted and so this heneous murder was committed. 16. Admittedly these witnesses are competent because some of them are the men of the same village and some are of contiguous village having their lands near the place of occurrences land as claimed by them and further practically there was no suggestion to show that these witnesses got any animus whatsoever with the appellants. 17. 16. Admittedly these witnesses are competent because some of them are the men of the same village and some are of contiguous village having their lands near the place of occurrences land as claimed by them and further practically there was no suggestion to show that these witnesses got any animus whatsoever with the appellants. 17. No doubt the counsel for the defence assailed the evidence of all these witnesses on the point of occurrence mainly on the ground that the I.O. had admitted in his cross-examination that when he came to the place of occurrence several persons were present but none of them came forward to lodge the FIR claiming himself to be a witness of the occurrence and so he recorded the Fardbeyan of village Choukidar Doman Rai, who died during the pendency of the trial, so he could not be examined. So it was contended that if at all those witnesses had seen the occurrence they should have lodged the FIR but this argument has got no force at all because the name of these witnesses to be the witnesses of the occurrence had already been disclosed in the Fardbeyan lodged by the Choukidar and in the Fardbeyan it has been mentioned that these witnesses had seen the occurrence and they will disclose every details as to how the occurrence took place and also regarding the apprehension of both the deceased by the appellants. 17-A. Further more, from the evidence of the witnesses and that of the investigating officer it can be said that PW 3 Sidheshwar Mishra, and PW 8 Ram Sohag Rai were examined by the investigating officer after lodging of the Fardbeyan in the same evening and after preparation of the inquest report and other witnesses were examined on the next morning itself, so the name of these witnesses were disclosed in the FIR and their statements were also recorded by the investigating officer immediately after the occurrence. 18. In that view of the matter it cannot be said that these witnesses were subsequently set up to be the witnesses of the occurrence. 19. The evidence of these witnesses also find support from the evidence of PW 5 Bishundayal Rai, PW 9 Sarjug Bhagat, PW 11 Ram Bahadur Bhagat and PW 12 Rajendra Bhagat. 18. In that view of the matter it cannot be said that these witnesses were subsequently set up to be the witnesses of the occurrence. 19. The evidence of these witnesses also find support from the evidence of PW 5 Bishundayal Rai, PW 9 Sarjug Bhagat, PW 11 Ram Bahadur Bhagat and PW 12 Rajendra Bhagat. According to these witnesses they came to the place of occurrence immeddiately after the occurrence and found the deadbodies of the deceased in the manner indicated above out side the house of the appellants and they learnt from other witnesses of the occurrence that the deceased Mahesh was apprehended by the appellants and other deceased Satyanand who was in his house was brought by the appellant Sobrati Mian and Habib Mian in their motor cycle on the pretext that he is required for the treatment of some person belonging to their family and all the appellants in furtherance of their common intention committed the murder of both the deceased for the reason that Mahesh Bhagat was involved in a dacoity case instituted by the appellant Sobrati Mian prior to the occurrence and at that time he was released on bail whereas the other deceased was a close friend of Mahesh Bhagat and was running a dispensary in the house of said Mahesh Bhagat and further Mahesh Bhagat also brought a Muslim girl and kept her in his house and the appellant Sobrati Mian being the leader of the minority community became annoyed with the conduct of Mahesh Bhagat and was biased. 20. PW 16, who is the father of the deceased Satyanand also claimed that in the afternoon of 5-12-1989 appellant Sobrati Mian and one other came in their motor cycle and took has son on the pretext that he is required for treatment and after that he learnt that he was murdered along with his friend Mahesh Bhagat, so he instituted a case under Section 364 IPC before Goroul police station; because his house situate under that police station. Ext. 11 is the Fardbeyan lodged by this very witness that this son was kidnapped by appellant Sobrati Mian in the afternoon of 5-12-1989 and Ext 12 is the chargesheet showing that the police after investigation submitted the charge-sheet in this very case. 21. Ext. 11 is the Fardbeyan lodged by this very witness that this son was kidnapped by appellant Sobrati Mian in the afternoon of 5-12-1989 and Ext 12 is the chargesheet showing that the police after investigation submitted the charge-sheet in this very case. 21. The evidence of the prosecution witnesses also find support from the evidence of the doctor, who has figured as PW 6. PW 6 Dr. Manoranjan Kumar Srivastava held post-mortem examination on the deadbody of deceased Satyanand on 6-12-1989 and found as many as fiteen injuries. All injuries were ante-mortem and hard and blunt substance and found all ribs duly fractured. Liver was also ruptured and he prepared post-mortem report i.e. Ext. 2. Post-mortem examination of other deceased was also conducted by the same doctor and on his bodv as many as eight injuries were found. All the injuries were bruise and ail the ribs were duly fractured and it is the opinion of the doctor that the iniuries as found by the doctor on both the deceased, had caused the death in ordinary course of nature, so the evidence of the doctor also indicate that both the deceased were subjected to several assaults by hard and blunt substance and some of the PWs claimed that some of the appellants gotup on the chest of the deceased, so the ribs of both the deceased were found duly fractured All these injuries clearly indicate that all the appellants gave several blows and so they shared common intention to commit the murder of the deceased. 22. The prosecution case further finds support from the evidence of the investigating officer, who has figured as PW 13. PW 13 came to the place of occurrence at about 5- 5 p.m. and it is also his evidence that he came to place of occurrence because the appellant Sobrati Mian gave a Sanha on the same day which was recorded at 4 in pm. i.e. Ext 8 and found the deadbody of the deceased Mahesh Bhagat hanged on a Gullar tree outside the house of the appellants with several injuries and deceased Satyanand was also found lying on the ground in front of the house of the appellants with several injuries and near the dead body a country made piostol i.e. material Ext. 1, a knife material Ext.II and one cartridge material Ext. 1, a knife material Ext.II and one cartridge material Ext. Ill were found and he also seized a rone and motor cycle bearing No. BPF 8924 through which one of the deceased was brought. 23. By lodging a Sanha and by filing a report in the police station i.e. Ext. 8 by the appellant Sobrati Mian it can be said that he himself admitted that these two deceased were found in suspicious circumstances in front of their house in a field and one of them i.e. Mahesh Bhagat was annrehend and other escaped away and so he kept Mahesh in his house This is a strong circumstance to show that both the deceased were apprehended by these appellants in view of the enmity between them and when the investgating officer came to the place of occurrence practically no evidence was adduced or any statement was made on behalf of these accused inciluding that of Sobrati Mianshow that both the deceased were apprehended by them in suspicious circumstance. Moreover, so-called country made pistol i.e. material Ext. I and a knife i.e. material Ext. II which were found near the deadbody appears to have been planted by these appellants themselves to give colour that the deceased came with mala fide intention with arms From the evidence ot the investigating officer and also from the seizure list it is clear that the pistol which was found near the deadbody was a damaged pistol and unusable. Similarly the knife was rusted and cannot be used as a weapon for Committing any offence. This is a strong circumstance to indicate that these discriminating articles were planted near the deadbody to give colour that both the deceased were men of questionable character and apprehended in suspicious circumstances. 24. Admittedly the deadbody of both the deceased were found in front of the housei of the appellants with multiple injuries. One of the appellant rushed to police station for lodging the Sanha and claimed that the deceased were apprehended by them but surprisingly when the I.O. came to the place of occurrence he found both the deceased dead and practically no evidence has come; to show that they were apprehended in suspicious circumstances and villagers might have committed their murder. 25. 25. Moreover, during the trial, for the first time, defence was set up by these appellants by giving suggestions to the PWs that members of the Hindu community Were annoyed with both the deceased for the reason that the deceased Mahesh Bhagat brought a Muslim girl and kept her in his house as his wife and thus they committed the murder of both the deceased. If at all this was the case then this fact should have been mentioned in Ext. 8 i.e. the written report about the apprehension of the deceased was made by appellant Sobrati Mian. None disclosure of this fact clearly indicate that no such occurrence took place. Moreover it does not stand to reason that Hindu community will be annoyed with these deceased for the reason that they brought Muslim girl. Further more it is clear from Exts. 9 and 9/1 that prior to this occurrence i.e. in April, 1989 a case was registered from the appellant side as against the deceased Mahesh Bhagat and others to show that Mahesh Bhagat took part in the dacoity committed in the house of the appellant Sobrati Mian and his family and at that time he was released on bail, so admittedly there was enmity with Mahesh Bhagat and the other deceased who jwas close friend of Mahesh as indicated above. 26. However, during the course of submission learned counsel for the appellants submitted that at least Sobrati Mian it entitled for order of acquittal because hejhimself had gone to police station at about 3-30 p.m. or so and PW 3 has also admitted in his cross-examination that when he came to place of occurrence he had seen apnellant Sobrati Mian there till the police arrived. 27. On consideration of the entire evidence on the record and surrounding circumstances there is no two opinion that this appellant also played a leading role in commission of murder of both the deceased because a plan was also hatched up and he himself gone to police station after apprehension of both the deceased including commission of their murder and lodged a false Sanha. Moreover the stray statement of PW 3 that when he came to place of occurrence then he found this appellant present all along will not help this appellant for the reason that the evidence on record clearly indicate that both the deceased were murdered prior to 4 p.m. on 5-12-1989 and Sobrati came to place of occurrence after lodging of the Sanha and by that time the investigating officer also arrived. 28. In that view of the matter Sobrati Mian is equally responsible in commission of this offence along with other appellants. 29. On a careful consideration of entire evidence on the record and surrounding circumstances as stated above, we are satisfied that these appellants and their father in furtherence of their common intention apprehended both the deceased and committed their murder in front of their house on 5-12-1989 and thus these appellants are definitely guilty under Section 302/34, IPC and the Court below had rightly convicted and sentenced them to undergo imprisonment for life and it does not fequite any interference. 30. In the result, there is no merit in this appeal and as such it is dismissed and the order of conviction and sentence as recorded by Shri Mishri Lal Choudhary, 1st Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 125/91, 12/91 is hereby confirmed and maintained.