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2000 DIGILAW 1218 (PAT)

Rajju Mahton (Dead) v. State Of Bihar

2000-11-01

ASHOK KUMAR VERMA, B.N.SINGH

body2000
Judgment B.N.SINGH "NEELAM", J. 1. This criminal appeal arises out of the judgment of conviction so passed by the learned Additional Sessions Judge, XIII, Patna, in Sessions Trial 322 of 1986 dated 18th of May, 1987, by virtue of which all the abovenamed seven accused-appellants have been convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life; whereas accused-appellant Harangi Mahton and Ramchandra Mahton also stood convicted under Section 148, IPC and sentenced to undergo R.I. for two years; whereas others, namely, Shyamdeo Mahton, Kishori Mahton, Suresh Mahton son of Mahabir Mahton and Suresh Mahton son of Bale Mahton and furthermore convicted under Section 147, IPC and sentenced to undergo R.I. for one year. It will, however, not be out of place to mention that accused-appellant Rajju Mahton, who was also convicted by the judgment under challenge under Sections 148, 302/34, IPC and 27 of the Arms Act but because of. his death taking place on 12.6.2000 vide order dated 17.8.2000 so passed in this criminal appeal as against Rajju Mahton one of the accused-appellant the present criminal appeal stood abated. The sentences, however, so passed by the learned Court below are directed to run concurrently. 2. It will be pertinent to note that in course of trial altogether fourteen accused-persons faced the trial; out of whom seven persons got acquitted of committing offence and the accused-persons acquitted are Rajendra Mahton, Sheo Mahton, Bharat Mahton, Gaya Mahton, Raghubir Mahton, Kewal Mahton and Briksh Mahton alias Ram Briksh Mahton. 3. The first informant in this case is Makhiya Devi (PW 9) wife of deceased Kailash Pasv n. According to her, as detailed in the fardbeyan (Ext. 3. The first informant in this case is Makhiya Devi (PW 9) wife of deceased Kailash Pasv n. According to her, as detailed in the fardbeyan (Ext. 2), she along with her husband Kailash Paswan, daughter Sudha Kumari (PW 5) while packing the bundles of paddy sidlings in the field of Bisheshwar Mahto (not examined) in village Badlu Chak, P.S. Bhadaur, district Patna, on the 10th of September, 1985 at about sixteen hours when the accused- persons variously armed came to the field of Bisheshwar Mahto where the bundles of the paddy sidlings were in process of packing by the first informant, her husband and daughter and on seeing the accused-persons, Kailash Paswan (since deceased) wanted to flee away towards sbuth but at that time Rajju Mahton one of the accused, who had died in course of the pendency of this criminal appeal, fired from his pistol hitting the left calf of Kailash Paswan. It is the further case of the prosecution that even after receiving the pellet injuries Kailash Paswan continued to move further towards south as to escape future assault and could see accused Rajendra Mahto and Sheo Mahton who are not the appellants here and who have been acquitted, armed with rifle and even started threatening him as a result of which out of fear Kailash Paswan fell down in the field of one Lala Babu and at that time, as per the first informant (PW 9), she being confined and her movement was so restrained by accused Raghubir Mahton, Brij Mahton and Kewal Mahton, who are not the appellants here, because of they being acquitted. Bharat Mahton and Gaya Mahton, the accused who being acquitted are also said to have been keeping a watch having rifle in their hands at that time. When Kailash Paswan is said to have fallen down in the field of Lala Babu, as per the prosecution case, accused-appellant Harangi Mahton, who was carrying bhala, inflicted bhala injuries on the person of Kailash Paswan hitting his right leg. Accused-appellant Ramchandra Mahton, who was carrying saif at that time is said to have inflicted injuries on Kailash Paswan hitting his head, hand and the portion of forehead. Accused-appellant Ramchandra Mahton, who was carrying saif at that time is said to have inflicted injuries on Kailash Paswan hitting his head, hand and the portion of forehead. Other accused-appellants, namely, Shyamdeo Mahton, Kishbri Mahton, Suresh Mahton son of Mahabir Mahton and Suresh Mahton son of Balo Mahton, who are said to have been carrying lathis in their hands also, as per the first informant, assaulted her husband Kailash Paswan (since deceased) hitting the thighs of her husband as a result of which fracture was so caused. This is also incorporated in the fardbeyan so recorded by PW 10, Sugnath Ram/the investigating officer of this case, that Sudha Kumari, the daughter of the first informant, made hue and cry as a result of which Sheo Balak Paswan (PW 2) and Barho Paswan (PW 8) also arrived at the place of occurrence, who had also an occasion to see the occurrence, particularly, the assault so inflicted by the accused-appellants on her father Kailash Paswan. The accused-persons are said to have fled towards north-east. Makhiya Devi also incorporated that there was enmity coming on between the members of the prosecution side and the accused- persons as a result of which her husband was so done to death. It is because of the cumulative effect of the injuries so inflicted and sustained as per the prosecution story Kailash Paswan breathed his last in the field of Lala Babu itself. PW 5 has also given the cause of delay in reporting the matter by going to the police station because of the accused-persons not allowing her or any of her family members to report the matter at the police station. 4. This will not be out of place to mention that fardbeyan (Ext. 2) was so recorded by PW 10 next day, i.e. on 11.9.1985 at 11 a.m. After the completion of the investigation it transpires that the charge-sheet was so submitted against the accused-persons facing trial, cognizance of the offence was so taken and after the commitment of the case record to the Court of sessions charges on different heads were so framed against the accused-persons including the appellants on 4.7.1986. The accused-persons including the accused-appellants denied of committing any offence and claimed to be tried. In course of trial altogether twelve prosecution witnesses are so examined. On behalf of the prosecution Bindeshwar Prasad Gupta is examined as Court witness. The accused-persons including the accused-appellants denied of committing any offence and claimed to be tried. In course of trial altogether twelve prosecution witnesses are so examined. On behalf of the prosecution Bindeshwar Prasad Gupta is examined as Court witness. Out of the twelve witnesses so examined on behalf of the prosecution Haso Paswan and Ram Ratan Paswan, who are the chowkidars of the Halka, were actually not present at the time of occurrence. PW 2, Sheo Balak Paswan and PW 3, Balmiki Paswan son of Kailash Paswan, PW 5 Sudha Kumari, daughter of Kailash Paswan (since deceased), PW 8 Barho Paswan are cited as eye-witnesses to the scene, over and above the first informant Mukhiya Devi, the wife of the deceased figuring as PW 9, PW 6, Shatrughan Paswan and PW 12 Rajendra Paswan are formal witnesses. PW 7, Murtja Hassan, is the police personnel submitting charge-sheet; whereas PW 10, Sugnath Ram, happens to be the main investigating officer of the present case recording 161, Cr PC statements of the material witnesses. Medical Officer, who conducted post mortem examination on the dead body of Kailash Paswan figures as PW 11. No DW is examined in connection with this case. The important documents so proved and exhibit are fardbeyan (Ext. 2). The formal FIR (Ext. 3), sketch map so prepared by the I.O. (PW 5), post-mortem report (Ext. 6), inquest report (Ext. 4) and Court exhibit No. 1 is the Sanha entry Nos. 1 to 10, dated 10.9.1985 said to have been given by Ram Ratan Paswan, chowkidar, figuring as PW 4, which is treated as the FIR by the learned Court below and the fardbeyan (Ext. 2) is treated as the statement of the deceased with the wife Makhiya Devi said to have been so given under Section 161, Cr PC. Certain documents so filed being marked as Exts. A, B and C. The lower Court order-sheet dated 13.9.1985 by which the defence lawyer has tried to impress upon with regard to the requisition so sent for the arrest of the accused- appellants on 14.9.1985 but such orders being passed, as claimed, one day prior and also with regard to some of the documents as to discredit the claim of the prosecution side that Kailash Paswan was given the plot in question where he was packing the bundles of his paddy sidlings by Bisheshwar Mahton. 5. 5. After evaluating the evidence available on the records it transpires that out of the fourteen accused-persons facial trial the learned Court below found seven accused-persons guilty of committing the offences for which they stood convicted and sentenced, as detailed above, which need not be repeated and other seven persons also got acquitted. Out of the seven accused- persons convicted, Rajju Mahton, who was also one of the persons convicted and had also joined the hands in preferring this criminal appeal along with other appellants, had died during the pendency of the hearing of this criminal appeal. That being the position now, six accused-appellants, above named, remain challenging the impugned judgment of conviction with a prayer that the impugned judgment of conviction and sentence so passed against them rather be set aside and they be also acquitted. 6. The learned counsel for the appellants has submitted that the impugned judgment of conviction and sentence so passed against the accused-appellants is bad in law as well as on facts. It further pointed out that, as a matter of fact, the accused- appellants are falsely implicated at the instance of one Ram Balak Paswan with whom the accused-appellants were having enmity from before as also accepted by the wife of the deceased figuring as PW 9 and it is at his instance that the fardbeyan was so given and Ram Balak Paswan was very much present at the time of recording of the fardbeyan who is also one of the witnesses to the fardbeyan so giving his signature on the same being marked as Ext. 1/1. It is also pointed out that the learned Court below has disbelieved the evidence of PWs 2 and 8 even to a great extent of PW 9, the first informant of this case, and has banked upon the evidence of PW 3, Balmiki Paswan, who happened to be a child witness and his evidence, in such circumstance, would not have been so easily accepted when by the plain reading of Ext. 2 it will transpire that Makhiya Devi had not even named her son Balmiki Paswan to be present and joining her husband at the time of the process of packing of the bundles of paddy sidlings in the field of Bisheshwar Mahton; rather she had stated at that time that she along with her husband and daughter, Sudha Kumari, were present when the accused- persons had surrounded them. In support of his this contention that the learned Court below has, thus, erred in relying upon the evidence of PW 3 as child witness, the learned counsel appearing for the appellants claimed himself to be fortified by some of the reported cases so cited and, in this connection, reference is made to 1997 Cr LJ 1788, Narayan Kannu Datte Wale and others V/s. State of Maharashtra by, particularly, referring to its para 12, it is pointed out that the testimony of the child witness could be accepted with great caution. On this point itself, on behalf of the appellants reference is also made to 1985 Cr LJ 645, Gunduchi Patnaik and another V/s. State of Orissa (paras 8 and 16 cited), 1992 Cr LJ 2192, State of Punjab V/s. Narendra Kumar (paras 9, 10 and 12 cited) and 1978 Cr LJ NOC 113 Mahendra Singh V/s. State of Rajasthan and it is pointed out that in absence of any material simply on surmises and conjectures convictions can not be based. On behalf of the appellants it is also pointed out that when fourteen persons faced the trial on the same material, surprisingly enough, when seven of the accused-persons got acquitted, without assigning any cogent reason and, particularly, when the -material so available or the allegations so put were similar it was dangerous on the part of the learned Court below as to acquit seven persons out of fourteen persons and to convict another seven persons. In support of his this contention, the learned counsel has banked upon a reported case, 1975 Cr LJ 1734, Balka Singh V/s. State of Punjab. In support of his this contention, the learned counsel has banked upon a reported case, 1975 Cr LJ 1734, Balka Singh V/s. State of Punjab. It is also pointed out that by plain reading of the evidence of PW18, it will transpire that he could know about the occurrence from the wife of one Ramu Mahton, Ramu Mahtons wife being not examined and Ramu Mahtons wife, as per the evidence of PW 8, delivering him with regard to Kailash Paswan done to death and, thereafter, he rushing towards the P.O. is a sufficient indication that before PW 8 arrived at the P.O. occurrence had already taken place and, in such circumstance, he could not have been said to be the eyewitness. PW 8 has also come forward to say that PW 2 Sheo Balak Paswan was behind him. That being the question, as submitted by the learned counsel for the appellants, PW 2 had also no occasion to see the assault or the accused-persons and thus, it has been submitted that rightly the learned Court below has disbelieved the evidence of PWs 2 and 8. Attention is also drawn to the variance of the statement of PW 8, Sudha Kumari and it is also pointed out that by looking into the post-mortem report it will transpire that, as regards the injury No. ligature mark so found on the neck of the deceased the prosecution had utterly failed to give any cogent reason for such injury sustained because, as per the prosecution story, no such injury was caused causing any ligature mark on the neck of the deceased. On these grounds and also on other grounds so detailed in this memo of appeal, hence, the prayer is that the impugned judgment of conviction and sentence so passed against the accused-appellants solely rather basing upon the evidence of PW 3, who was a child witness, is liable to be set aside as to meet the ends of justice because by the plain reading of the judgment under challenge it will transpire that the learned Court below has tried to make out a third case based on conjectures and surmise which could not have been so done by the trial Court. It is also submitted that some of the witnesses, who claimed themselves to be the eye-witnesses have also come forward to say that though after seeing the persons assaulting Kailash Paswan they did never speak about it to the villagers or chowkidars which on the very face of it seems ridiculous and, in normal course, it was accepted by the eye-witnesses, if any, as to vomit the names of the appellants to the persons arriving at the spot after the retreat of the accused-persons or revealing those names to their family members or neighbours at the earliest moment which is not so done in the present case making the whole prosecution case suspicious. It is also pointed out that the Sanha entry so made on 10.9.1985 at 7 p.m. marked as (Court Ext. 1) by chowkidar, Ram Ratan Paswan has rightly been taken as the FIR by the learned Court below and, in such circumstance, when such information was so given at 7 p.m. on 10.9.1985 itself the whole investigation may be said to be tainted because of the police moving to the P.O. next day at 11 a.m. That being the position, lastly, it is contended that the impugned judgment of conviction and sentence so passed requires interference and the accused-appellants rather be also acquitted and the judgment of conviction and sentence against them so passed be set aside. 7. The learned APP representing the State, on the other hand, has submitted that there is nothing wrong in the impugned judgment of conviction and sentence so passed, and since this criminal appeal so preferred by the accused-appellant has no leg to stand, the same rather be dismissed. It is also submitted that the learned Court below has rather erred by accepting Sanha entry as the FIR. This Sanha entry marked as (Court Ext. It is also submitted that the learned Court below has rather erred by accepting Sanha entry as the FIR. This Sanha entry marked as (Court Ext. 1) on no account can be said to be the FIR because of the same which is also quoted in vernacular in the impugned judgment was so flimsy that it could reveal nothing specific on the point of murdera cognizable offence taking place; rather the contents of the Sanha entry with regard to Kailash Paswan in injured condition being carried over to Shamiyagarh Rajkiya Hospital is completely falsified when Rain Ratan Paswan (PW 4) in his evidence in course of trial has denied of giving any such statement which was a base for Sanha entry and, furthermore, Bisheshwar Prasad Gupta (Court witness No. 1) completely denying of any such admission of Kailash Paswan on that day as a patient in the said Shamiyagarh Rajkiya Hospital. Not only this, the learned APP emphatically argued that by going through the evidence of, particularly, PW 2 Sheo Balak Paswan, PW 5 Sudha Kumari, daughter of the deceased, PW 8 Barho Paswan and the deceaseds wife, the first informant of this case, it would transpire that there is much of consistence in their evidence on the point of occurrence so taking place and because of their standing the test of cross-examination their testimony can safely be said to be trustworthy to be relied upon and because of the overwhelming material so pouring in, in course of trial, against the accused- appellants committing the offence coming under the purview of Section 302 read with Section 34 of the IPC they have been rightly convicted for their committing offence of causing intentionally the death of the informants husband Kailash Paswan in furtherance of their common intention. Those persons carrying bhala, saif have also rightly been convicted under Section 148, IPC, those carrying lathis have also rightly been convicted under Section 149, IPC. As regards the medical report, it is pointed out that in the evidence of PW 11, the doctor conducting the post-mortem examination he has detailed with regard to the injuries so found on the person of the deceased, over the leg, head, thigh etc. which are the parts of the body said to have been hit, as detailed in Ext. 2, the fardbeyan, so recorded by PW 10 so given by the deceaseds wife. which are the parts of the body said to have been hit, as detailed in Ext. 2, the fardbeyan, so recorded by PW 10 so given by the deceaseds wife. The oral eviden so coming from the mouth of the eye-witnesses, thus, it is pointed out, finds full support with the evidence of the medical officer and, in this connection, a detailed reference is made to the post-mortem report and the details of the injury so finding place therein which was so -marked in course of trial as Ext. 6. With regard to the motive, it is pointed out that, in the fardbeyan (Ext. 2) itself the deceaseds wife, has detailed with regard to the enmity so coming on and, in the background of the overwhelming material so pouring in, good number of witness even coming forward to say with regard to the accused-appellant brutally assaulting Kailash Paswan in furtherance of their common-intention. The motive behind the occurrence is also attributed in instant case. Sanha entry bearing No. 129 dated 10.9.1989 being vague and not reflecting on anything relating to murder taking place that could not have been the basis for treating the same as the FIR and rightly the I.O. on such information preferred to proceed to the P.O. and recorded the fardbeyan of the family members which was so done and the I.O. in his evidence has also assigned reasons for his not proceeding to the P.O. in the night hours of 10.9.1985. The learned APP has also pointed out that there is no discrepancy, in the order-sheets as it might have inadvertently been mistaken given the date but the order- sheet dated 13.9.1989 is very clear and points so raised that when the requisition was so raised on 14.9.1985 how the warrant of arrest was so issued on 13.9.1985 in a case like this on no account can be a base as to dismantle the prosecution case as to prove fatal, in the background of the overwhelming material so pouring in, good number of witnesses claiming themselves to be the eye-witnesses to the scene. It is also pointed out that some of the persons acquitted stood charged under Section 143 of the IPC and no specific overt acts were attributed against them. It is also pointed out that some of the persons acquitted stood charged under Section 143 of the IPC and no specific overt acts were attributed against them. Therefore, it has wrongly been submitted by the learned counsel appearing for the appellants that the allegations so put or the evidence so adduced in the course of trial was not several and, in the present circumstances, the learned Court below was in a position as to acquit some of the persons and to convict the other said persons against whom specific over act it so attributed being duly proved in course of trial by the material prosecution witnesses so examined also the same being supported by the post-mortem report marked as Ext. 5. On these grounds, hence, the prayer is that there is nothing wrong in the impugned judgment of conviction and sentence so passed against accused-appellants and, since there is no merit in this criminal appeal, the same rather be dismissed. 8. After hearing both side lawyers, we have carefully gone through the evidence oral and documentary available on the record. Out of twelve prosecution witnesses examined, PWs 2, 3, 5, 8 and 9 were present at the time of occurrence claiming themselves of having an opportunity to see the occurrence detailing the weapons carried by the accused-appellants and the overt acts so committed by them as a result of which Kailash Paswan, the informants husband succumbed to the injuries. In Court of trial, in the background of the evidence of PW 3 Balmiki Paswan, the learned Court below has found the evidence of PWs 2 and 8 not to be trustworthy. The learned Court below has also accepted the Sanha entry Nos. so given on 10.9.1985 in the evening hours by PW 4 to be the FIR and fardbeyan (Ext. 2) given by PW 9 is treated by him to be the statement so given by the deceaseds wife under Section 161 of the Cr PC. After acquitting seven of the accused-persons; other seven accused-persons got so convicted and sentenced, who had . preferred the appeal, out of whom, as detailed above, appellant Rajju Mahton has expired. 2) given by PW 9 is treated by him to be the statement so given by the deceaseds wife under Section 161 of the Cr PC. After acquitting seven of the accused-persons; other seven accused-persons got so convicted and sentenced, who had . preferred the appeal, out of whom, as detailed above, appellant Rajju Mahton has expired. In course of argument while hearing this criminal appeal on behalf of the appellants it is pointed out that since the evidence of PWs 2 and 8 are found to be doubtful by the learned Court below on the point, of their being eye-witnesses also major contradictions so cropping up the evidence of PW 5, Sudha Kumari. and in the background of the evidence of PW 3, the learned Court below also not wholly finding the evidence of PW 9 to be trustworthy and the only witness left, who was, thus, relied upon by the learned Court below, i.e. PW 3 was a child witness whose evidence can well be said to be tutored, that way, the judgment under challenge is fit to be set aside. In the background of the submissions made on behalf of the appellants, the evidence so available on the record is looked into. As far as PW 1, Haso Paswan, one of the chowkidars is concerned, at the relevant time he was at the darwaza of one Ram Swarup Chowdhary (not examined) and on hearing the sound of firing he proceeded towards Bhitri Khandha and located twelve to fourteen persons fleeing away. This witness is very specific in saying that he could not identify any one of them and had also no occasion to see Maar-Peet. That being the position, he is not an eye-witness to the scene but after the retreat of the miscreants when he arrived at the P.O. he found Kailash Paswan died which falsifies the contents of the station diary entry with regard to Kailash Paswan being carried over to the hospital which was also so denied by Ram Ratan Paswan (PW 4) said to have made such station diary entry; that being so, it has rightly been submitted on behalf of the learned APP that, in such circumstance, when the station diary also does not reveal with regard to murder taking place the learned Court below could not have accepted the said entry to be the FIR. PW 2, Sheo Balak Paswan, is one of the persons cited as eye-witness in the FIR so given marked as Ext. 2. In his evidence PW 2 is specific in saying that he happened to be the nephew of the first informant, i.e., the deceaseds wife Makhiya Devi. He claims to have seen the occurrence at a distance of 5/6 bamboos. In his evidence he has named all the accused-appellants giving the details of the weapons carried by them also giving the details with regard to the assault inflicted by them upon Kailash Paswan. It finds full corroboration with the details so given with regard to the sequence of events in Ext. 2 which can well be treated to be the fardbeyan on the basis of which formal FIR was so drawn up marked as Ext. 3. This witness is transpires has fully supported the prosecution case and has well-stood the test of cross-examination. As regards another eye-witness, PW 5, Sudha Kumari, who happens to be the daughter of the deceased even in the fardbeyan (Ext. 2) she is said to be along with her parents at the time of packing the bundles of paddy sidlings and is cited as eye-witness. She has also given the details of the occurrence naming the accused-appellants weapons carried by them and overt act so committed by them as a result of which Kailash Paswan breathed his last at the place of occurrence itself. It also comes in light that at one occasion one witness claims with regard to the arrival of PWs 2 and 8 in course of the accused-appellants retreating but in the background of the direct evidence of PWs 2 and 8, it has been specifically stated by them at the place of occurrence of being present hereby having an opportunity to see the assault going on. In the background of the facts and circumstances, it will not be out of place to mention here that the time of occurrence is sixteen hours, i.e. day time. The occurrence is said to have taken place in the open field so there was no obstruction by any house etc. In the background of the facts and circumstances, it will not be out of place to mention here that the time of occurrence is sixteen hours, i.e. day time. The occurrence is said to have taken place in the open field so there was no obstruction by any house etc. That being the position, even if PWs 2 and 8 were at a nearby distance at the time of occurrence not actually present at the spot, they had the opportunity to see the occurrence from away and by that time they could reach the place of occurrence could have seen the accused-appellants not present at the P.O. and managed to flee away, thus, the statement of PW 5 at para 3, in such circumstance, cannot be said to be fatal to the prosecution case, rather it transpires that PW 5 has also fully supported the prosecution version on the sequence of events taking place also detailing the manner of assault on Kailash Paswan. So is the case with PW 8, Barho Paswan that, though he was at a distance but because of the occurrence taking place in day time, and that too, in a field which was open from all side and there was no obstruction, it was very much possible for even PW 8, as detailed, to see the occurrence identifying the accused-appellants detailing the weapons carried by them and also detailing the overt act committed by the accused-appellants. In that way, the learned Court below not relying on the evidence of PWs 2 and 8, in the background of the facts and circumstances, without even assigning any cogent reason same can well be said to be a case in which the learned Court below rather had not looked into their evidence with right perspective and misconstrued to hold that the evidence of PWs 2 and 8 could not be said to be trustworthy. PW 9, the deceaseds wife, is very specific in saying with regard to the accused-appellants committing the offence and that there was meeting of the minor prior to the occurrence taking place because just after surrounding Kailash Paswan the accused-appellants started assaulting him variously armed which was nothing but an act which was so committed in furtherance of the common-intention as to intentionally cause the death of Kailash Paswan in which they succeeded. On more statement of PW 3 that he detailed the names of the accused to his mother cannot be basis as to hold that PW 9 was. not present at the spot. When an occurrence takes place after the occurrence the members of the family talk among themselves giving the names of the miscreants located and identified by them and, that being the position, PW 3 when has given the names of the accused-appellants to his mother it on, no account be said that his mother was not present at the place of occurrence. In this context, the evidence of PW 3 is closely looked into and at one stage when questioned by the Court that at the time his father was assaulted where was her mother, PW 9, this witness is specific in replying this question that she was very much there and, that way, the evidence of PW 9 can very well be said to be trustworthy. 9. Now coming to the evidence of PW 3. Barho Paswan, which has been relied upon by the learned Court below and even by citing some of the reported cases on behalf of the appellants it is submitted that this witness being a child witness his testimony would not have been blindly relied upon, in this background, the evidence of this witness is looked into. First of all, the name of this witness does not find place in thefardbeyan to be present along with his parents in the field while packing the bundles of the paddy sidlings. Secondly, through his statement under Section 161,. Cr PC was so recorded in course of trial this witness has denied of giving any such statement. Other witnesses in course of trial naming this witness to be present have also not detailed with regard to his presence in their 161, Cr PC statement at the time of occurrence. This witness was hardly aged about three to four years at the relevant time. Other witnesses in course of trial naming this witness to be present have also not detailed with regard to his presence in their 161, Cr PC statement at the time of occurrence. This witness was hardly aged about three to four years at the relevant time. That being the position, and also in the background of some of the reported cases cited claiming that the testimony of the child witness is to be looked into after great caution and circumspection, his evidence, in such circumstance, thus, cannot be treated to be wholly reliable but leaving aside the testimony of PW 3 in instant case there is consistencies in the evidence of other eye-witnesses such as PWs 2, 5, 8 and 9 also being wholly corroborated by the evidence of PW 11, the medical officer. which leaves no doubt as to hold that the accused-appellants had committed the offences under which they got convicted. By looking into the evidence of PW 11 it transpires that good number of injuries were so found on the person of the deceased which was possible to be caused by lathi, bhala, saif etc. so used by the accused-appellants at the time of occurrence and the parts of the body said to have been hit as coming from the mouth of witnesses were found injured having different sorts of injuries by the medical officer conducting post-mortem examination and the injuries so caused in the ordinary course were sufficient as to cause the death. 10. Consequently, even accepting that the evidence of PW 3 (child witness) may not be so much trustworthy but other eye- witnesses in instant case by going through the oral and documentary evidence available had fully supported the prosecution case with regard to the accused-appellants intentionally causing the death of Kailash Paswan in furtherance of their common-intention and in instant case even the ingredients of Section 34 of the IPC also being met with, there was, thus, sufficient material before the learned Court below as to hold them guilty of committing such offences and the learned Court below was, thus, justified in convicting them thereunder and sentencing them under Section 302/34 of the IPC as well as convicting and sentencing them under Sections 147 and 148, IPC, as detailed above.. The evidence of PWs 2 and 8 can well also be said to be refiable and trustworthy and the learned Court below rather has misconstrued by holding that PWs 2 and 8 might not have seen the occurrence. The learned Court below would have also accepted Ext. 2 as the fardbeyan on the basis of which formal FIR (Ext. 3) was so drawn up and, in the background of the facts and circumstances, station diary entry (Court Ext. 1) would not have been treated as FIR. 11. It is needless to give the details of the injuries sustained by Kailash Paswan good number of injuries so sustained by him on the vital part of the body which is so detailed in the post mortem report as well as in the judgment under challenge at para 15. 12. Consequently, finding that in course of trial the prosecution had succeeded to bring home the charges so levelled against the accused-appellants under which they are convicted and sentenced to undergo imprisonment as detailed above, which need not be repeated, this criminal appeal so preferred by the accused-appellants has got no merit and, since the judgment under challenge with regard to the accused-appellants being conviction and sentence do not require any interference, the same stands affirmed and the present appeal stands dismissed. The accused-appellants, it transpires, were given the privilege of bail by this Court on 21.5.1987 during the pendency of the hearing of this criminal appeal. Since this criminal appeal has, thus, been dismissed, their bail-bonds stand so cancelled and the accused-appellants, named above, are hereby directed to surrender forthwith as to meet the sentence so imposed. However, as directed by the learned Court below, the sentence so imposed as to run concurrently. This criminal appeal, thus, stands disposed of accordingly. A.K.Verma, J. 13 I agree. Disposed of accordingly.