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2000 DIGILAW 655 (PAT)

Sudama Pandey v. State of Bihar

2000-04-28

ASHOK KUMAR VERMA, NARBDESHWAR PANDEY

body2000
JUDGMENT ASHOK KUMAR VERMA, J. :- Death Reference No.2 of 1999 with Cr. Appeal No. 200 of 1999 and Cr. Appeal No. 202 of 1999 arise out of the same judgment and order of conviction and sentence dated 1st May, 1999, passed in Sessions Case no. 127 of 1997 by 3rd Additional Sessions Judge, Bhojpur, at Ara. Therefore, the two criminal appeals and the death reference are disposed of by this common judgment. 2. In Cr. Appeal No. 200 of 1999 there are two appellants namely; Sudama Pandey and Anil Deka. In Cr. Appeal No. 202 of 1999 there are three appellants namely; 1. Shushan Mahto alias Kumar Chandra BIlushan, 2. Madan Pandey and 3. Buchai alias Vinod Kushwaha. All the five appellants have been convicted under Sections 302/34 I.PC., 376/511 I.P.C. and 201 I.P.C. by the learned 3rd Additional Sessions Judge, Bhojpur at Arrah and all of them have been sentenced to death for the offence under Sections 302/34 I.PC. No separate sentence has been passed for the offences punishable under Sections 376/511 and 201 I.PC. 3. In short the case of the prosecution is that on 6.11.1996, deceased Gudia Kumari aged about 12 years niece of the informant Dadan Singh had left her house for Karisath Middle School at 9.30 A.M. She was a student of Class-VII and when she did not return home till 4'0 clock in the evening, the informant and his family members started search for her and they enquired about her (Gudia Kumari) from her friends and they also searched her in the school, but no information could be gathered till night. Then in the following morning they again started searching Gudia Kumari since 5 A.M. and during search they also went through the passage leading to the schools and to the west of the passage on the way to school, the dead body of Gudia Kumari drenched with blood was found in the field of Ravi Shankar Pandey of village Amarpur. On hearing about the occurrence, the people of nearby place assembled there. According to the informant the house of accused Shushan Mahto lies in the way to the school and accused Madan Pandey and Buchai Mahto, who are the associates of accused Bhusan Mahto and accused Bhushan Mahto himself are of wayward nature who used to look on the niece (deceased Gudiya Kumari) of the informant with bad intention. According to the informant the house of accused Shushan Mahto lies in the way to the school and accused Madan Pandey and Buchai Mahto, who are the associates of accused Bhusan Mahto and accused Bhushan Mahto himself are of wayward nature who used to look on the niece (deceased Gudiya Kumari) of the informant with bad intention. There were bitterness in the village from before and due to that the informant had also bitterness with those persons. During the search of his niece the informant learnt from people who were working in the nearby fields that those persons had been seen in suspicious circumstances and they had also seen his (informant's) niece while going to school. 4. The fard beyan of the informant Dadan Singh was recorded by Vikash Kumar Dy. S.P. (Probationer) who was the Officer incharge of Arrah Mufassil P.S. in the field of Ravi Shanker Pandey of Amarpur Marwatia on 7.11.1996 at 8.45 A.M. when the dead body of the deceased Gudia Kumari was recovered in the morning of 7.11.1996, it was natural that the fard beyan of informant was recorded on 7.11.1996, and so there was no delay in the lodging of the F.I.R. On the basis of the fard beyan (Ext.5), the formal F.I.R. (Ext.5/1) was drawn in this case. After investigation police submitted charge-sheet in this case and the learned C.J.M. took cognizance of the case. Thereafter the case was committed to the court of Sessions for trial. 5. The defence of the accused as set out in the cross examination of witnesses and the statement of accused persons u/s 313 Cr.P.C. is that they have been falsely implicated in this case due to enmity. Accused Buchhai alias Vinod Kushwaha had also taken the plea of alibi and his further defence is that he was appearing at the test examination of matriculation at Chhota Sasaram High School and he was not present at the place of occurrence. In the cross examination of the prosecution witnesses questions had been put to them on behalf of the defence to show the enmity between the accused persons and them. Even if there is enmity, it cuts both ways. So the prosecution case cannot be disbelieved on the ground of enmity between the parties. 6. In the cross examination of the prosecution witnesses questions had been put to them on behalf of the defence to show the enmity between the accused persons and them. Even if there is enmity, it cuts both ways. So the prosecution case cannot be disbelieved on the ground of enmity between the parties. 6. It was argued by the learned lawyer appearing on behalf of the appellants that there is no eye witness to the occurrence in this case and on the basis of circumstantial evidence all the accused appellants have been awarded death penalty under Section 302/34 I.P.C. by the learned Additional Sessions Judge. There is no rule of law that if there be no eye witnesses to a murder, the accused should not be sentenced to death. Murders are not committed with previous notice to witnesses soliciting their presence. Of course in the case of circumstantial evidence, the circumstances relied upon must be fully established. Therefore, the accused can be sentenced to death even if there is no eye witness to the murder. 7. P.W.8 is Dadan Singh, the informant of this case and uncle of deceased Gudia Kumari. He has stated that on 6.11.96 at 9:30 A.M. his niece Gudia had left the house for school where she was a student of Class VII and she was aged about 12 years. When she did not return till 4 O clock in the evening, he (P.W.8.) and his nephew Satyendra Singh (P.W.1) went in search of her. According to him when they reached the school, it had already closed and then they enquired about her from the girls of the village, who were studying with Gudiya and he (P.W.8) returned to his house at 9 P.M. In the next morning this witness (P.W.8) along with his nephew again went in search of Gudia and when they reached near the field of Ravishankar Pandey, they found her dead body in that filled and there was Arhar and Masuria crops in that field and then the people of village and neighburhood assembled there. Almost similar statement has been made by this witness (P.W.8) Dadan Singh in his fard beyan recorded by the police. Almost similar statement has been made by this witness (P.W.8) Dadan Singh in his fard beyan recorded by the police. He has stated that on the way to school the house of accused Bhushan Mahto lies and about two days before the occurrence his wife had told him that Gudia was complaining that Bhushan, Sudama, Jhingur and Asamia had passed remarks on her on the way. He has also said that alias name of Asamia is Anil Deka. He has stated that the cloth on the upper part of the dead body of Gudiya had been raised and her Paijama had been thrown at some distance and her panty was in one leg only and her both eyes had been taken out and her nose had been cut and there was injury near her right ear and on her abdomen and a piece (Danti) of Arhar plant had been inserted on her back, and blood was found on the ground. He has said that Daroga had come to the place of occurrence and recorded the fard beyan (Ext.A) and he had inspected the place of occurrence and prepared the inquest report (Ext.6) of the dead body. According to this witness (PW8) the Daroga had seized blood stained earth, blood stained chappal, books and copy and prepared seizure list (Ext.7). 8. P.W8 Dadan Singh had also filed protest petition in this case and his signature on the protest petition is Ext. 4/3. According to him (P.W8) in the night of 7.11.96 he learnt from Saban Singh that on the date of occurrence i.e. 6.11.96 Madan Pandey, Suctlai Mahto, Asamia alias Anil Deka were sitting by the side of the place of occurrence and he (Saban Singh) had also told him (PW.8) that Gudia had met him in the way. Further according to him (PW8) Saban Singh had also told him that Sudama Pandey, Shushan Mahto, Jhingur Pandey were going behind her. Further according to him (PW8) Saban Singh had also told him that Sudama Pandey, Shushan Mahto, Jhingur Pandey were going behind her. The I.O. (PW9 Ganesh Paswan) has said in his evidence that he had inspected the place of occurrence, which is the Arhar and Masuria field of Ravi Shanker Pandey and which is a lonely place and in the middle of the field the dead body of Gudia Kumari was found and her both eyes had been taken out and her nose been cut and there was knife injury on the right side of the neck and the dead body was drenched with blood and he seized the blood stained earth, blood stained Chappal, books and copy from the place of occurrence. During his evidence in trial court this witness (P.W9) who is I.O. of the case had produced the seized blood stained earth and two blood stained chappals and copy before the trial Court, which had been marked as material Exts. 1, 2 and 2/1 and 3 respectively. According to him he had inspected the dead body of the deceased at the place of occurrence and prepared the inquest report in carbon processes (Ext.6). Ext.6 which is the inquest report of the deceased Gudia Kumari shows that her dead body was found in the field of Ravi Shankar Pandey in which Arhar and Masuria had been grown and her both eyes had been taken out and she had Chhura injury on the right side of her neck and her nose had been chopped off and she had injury below her navel and by the side of her right ear and in her left hand. The above; "juries including the injury below her navel and chopping of her nose and taking out of her both eyes show the brutality of the crime committed by the assailants. The above facts prove and establish the place of occurrence and the manner of occurrence of this case beyond all reasonable doubts. 9. The above; "juries including the injury below her navel and chopping of her nose and taking out of her both eyes show the brutality of the crime committed by the assailants. The above facts prove and establish the place of occurrence and the manner of occurrence of this case beyond all reasonable doubts. 9. P.WS Dadan Singh has said in his cross examination that the father and mother of Gudiya Kumari had come after four days of the occurrence and they were residing in Orissa and the father of Gudiya was also a witness, but the Daroga who is in collusion with the accused persons did not record his statement in the case diary and after receipt of diary, he learnt that the Daroga had not recorded the statement of father of Gudiya in the case diary. He (P.W8) has further said in his cross examination that in case of murder of Nageshwar Pandey all the accused had been convicted, which had taken place before this occurrence and Balmiki Pandey was brother of Nageshwar Pandey and he (P.WS) is in jail custody in the case of murder of Balmiki Pandey and the witnesses of this case Baban Singh and Suryadeo Pandey are also accused in that case and accused Sudama Pandey is full brother of Nageshwar Pandey and Balmiki Pandey. When there is enmity, it cuts both ways. So the evidence of this witness (P.W8 Dadan Singh) who is the informant of this case cannot be discarded on the ground of enmity between the parties. There is nothing in his cross examination to disbelieve his evidence. 10. P.W.2 is Dr. Mahendra Nath Goswami, who had conducted the post mortem examination on the dead body of Gudia Kumari. He has stated that on 7.11.1996 he was posted at Sadar Hospital, Arrah as District T.B., Officer and on that day at about 2.10 P.M, he had, held post mortem on the dead body of Gudia Kumari and found rigor mortis in all the four limbs and on external examination; (1) Both eyes missing from orbital cavity having lacerated wound filled with clotted blood and maggots was present in both orbital cavity. (2) Incised wound was present on right side of the neck below the angle of right mandable. Size of the wound 2" x 1" x 2" oblique direction margin inverted Right carotid artery and vein was found cut. (2) Incised wound was present on right side of the neck below the angle of right mandable. Size of the wound 2" x 1" x 2" oblique direction margin inverted Right carotid artery and vein was found cut. (3) Incised wound on the skull behind the right ear Penna size 1" x ½" x 1". (4) Two scratch present at the left knee joint size (A) ¼" x ¼" (B) ¾" x ¼" (5) Lacerated wound on the abdomen left side 2" below the umblicus. Size 1½ x 1" x skin deep. (6) Incised wound on the left palm below the little finger root size 1" x ¼" x skin deep margin inverted. (7) Two lacerated wound on the dorsem of right hand. Size (A) ¾" x ½” x ¼ (B) 1" x ½” x ¼”. (8) Scratch on the right flank. Size 2" x ¼". (9) External examination of the private parts :- Pubic Hair and axillary hair present. Breast well developed. (A) Pubic hair swallowed with clotted dry blood. Hymen entirely ruptured. Lacerated wound measuring 2-½” x ¾" x ¾" extending from posterior wall of the vagina up to anterior margin of the anus. Nature simple caused by hard blunt objects. (B) On dissection: Opening the skull brain matter found pale, chest cavity on opening both lung pale. Heart: All chamber empty and pale. Abdominal cavity: Spleen, liver and Kidney pale. Stomach: Digested food material present about 3 ounce. Urinary Bladder : Empty Uterus and ovary : Normal size. (C) Time elapsed since death 24 to 76 hours. (D) Cause of death Due to circulative failure causing severe haemmorhage and shock, injury mentioned above. (E) Injury no.1 can be caused by means of pointed weapon may be Chhura. Injury no.2 can also be caused by sharp cutting/sharp pointed weapon, may be by chhura. Injury no.3 can be caused by sharp cutting weapon may be by chhura. Injury no.4 can be caused by hard blunt substance, may be falling on earth. Injury no.5 can be caused by hard blunt substance may be by fall on earth. Injury no.6 can be caused by sharp cutting weapon, may be by chhura. Injury no.7 can be caused by hard blunt substance may be caused while the deceased was caught hold and dragged. Injury no.5 can be caused by hard blunt substance may be by fall on earth. Injury no.6 can be caused by sharp cutting weapon, may be by chhura. Injury no.7 can be caused by hard blunt substance may be caused while the deceased was caught hold and dragged. Injury no.8 can be caused by Hard blunt and may be caused in a manner in which suggested regarding injury no.9 can be caused by hard blunt substance may be rale, if it is over size. The injury report (Post mortem report) of Gudia Kumari is Ext.1 in this case. 11. It was argued by the learned lawyers of the appellants that the time of death as given in F.I.R is not supported by medical evidence as rigor mortis was found by the Doctor who had conducted the Post-mortem examination. The Doctor (PW.2) has said in his cross examination that rigor mortis begins to appear within 3 to 6 hours after death and its disappearance begins in summer season after 36 hours and in winter season after 48 hours. He has stated in his examination in chief that he had conducted the post mortem examination at 2.10 P.M. on 7.11.96 and has found rigor mortis in all the four limbs. There is nothing in the cross examination of P.W.2 to disbelieve his evidence. According to the case of the prosecution, the occurrence had taken place at about 10 A.M on 6.11.96 and so the post mortem on the dead body of Gudia Kumari had been conducted after about 28 hours of her death. According to the doctor the rigor mortis begins to appear within 3 to 6 hours after death and its disappearance beings in summer season after 36 hours and in winter after 48 hours. So admittedly in any case the rigor mortis remains in all limbs of the body after six hours of the death till within 36 hours of the death. In this case, the post mortem, examination had been done only after 28 hours of the occurrence and, therefore, it was natural for the doctor to find rigor mortis in all the four limbs. The medical evidence of P.W.2 Dr. Mahendra Nath Goswami conclusively proves the time and cause of death of deceased Gudia Kumari. Therefore the above argument of learned lawyer of the appellants is not tenable. 12. P. W.3 is Dr. The medical evidence of P.W.2 Dr. Mahendra Nath Goswami conclusively proves the time and cause of death of deceased Gudia Kumari. Therefore the above argument of learned lawyer of the appellants is not tenable. 12. P. W.3 is Dr. Vijoy Laxmi Sharma, a lady Medical Officer. She has stated that she had submitted her opinion on 18.11.96 in compliance of the requisition submitted by Officer-in-charge of Arrah Mufassil P.S. through which her opinion was sought on two points:- The points on which her opinion was sought was: – 1. In report it is mentioned that the hymen is completely ruptured if possible please opine whether hymen was ruptured before rape or after rape. 2. In report time since death is 24 hours to 76 hours, while on the basis of F.I.R. investigation and witness, the girl was last seen on 6.11.96 at 9.30 A.M. while she was going to school. The dead body of that girl was recovered in early morning of 7th November and the post mortem was done on 7th November, at P.M. Hence total time spell is around 30 hours. She (P.W.3) has opined that the hymen was ruptured due to injury caused on perennial region, but it is difficult to say whether the injury was caused due to rape or due to some other object. According to her on question time elapsed since death, a period of 24 to 76 hours has been given and according to question the period between the girl last seen and her post mortem is about 31 hours and so there is no contradiction in the finding and post mortem report. Ext.2 is her report. She has said in her cross examination that she was also a member of doctors, who held post mortem and she has not put her signature in mark of her presence on the post mortem report. The evidence of P.W.2 Dr. Mahendra Nath Goswami, who has conducted the post mortem examination has already been discussed above. P.W.3 Dr. Vijay Laxmi Sharma has said in his cross examination that she has given her opinion on the basis of the post mortem report. She (PW.3) has said that in the question no.2 it has been mentioned 1993 but this case is of the year 1996. 13. P.W.3 Dr. Vijay Laxmi Sharma has said in his cross examination that she has given her opinion on the basis of the post mortem report. She (PW.3) has said that in the question no.2 it has been mentioned 1993 but this case is of the year 1996. 13. P.W 9 Ganesh Paswan, the I.O. of the case has stated that on 7.11.96 he has posted at Arrah Mufassil P.S. as Sub Inspector of Police. On that day at about 6.30 A.M. he heard rumour that the dead body of a girl was found in village Amarpur Marbatia and he entered a Sanha and proceeded for the place of occurrence with Dy. S.P Vikash Kumar and armed force and reached there at 8.45 and fard beyan of Dadan Singh was recorded by Dy. S.P. Vikash Kumar. Ext.5 is fard beyan. On the basis of the fard beyan, formal F.I.R. was drawn in this case. According to him on 7.11.96 at 8.45 A.M. after recording of the fard beyan the Dy. S.P Vikash Kumar had entrusted the investigation of this case to him. His evidence has been discussed above. 14. P.W.1 is Satyendra Singh, brother of deceased Gudia. He has said that on 6.11.196 at 9.30. A.M. she had gone to Middle School Karisath, where she was studying in Class VII and on that day she did not return till 4 P.M. and then he along with his uncle Dadan Singh (informant P W.8) went in search of her, but she could not be traced on that day and they waited for Gudia for the whole night and in the morning he and his uncle were going in search of her through the way to the school and when they reached near the land of Aavi Shanker Pandey, he saw books and copies about 3 to 4 steps away from the way and Arhar and Masuria crop has been grown in that field. He has said that he went inside the field and saw that his sister Gudia was lying dead and she was naked and her clothes were at a distance of about 10 ft. from her and the crop In the area of about 10 ft had been damaged and nose of Gudia had been cut from one side and she had injuries on neck and her both hands and on the entire body. from her and the crop In the area of about 10 ft had been damaged and nose of Gudia had been cut from one side and she had injuries on neck and her both hands and on the entire body. He has also said that one week before her death his sister had told that Sudama Pandey, Madan Pandey, Jhingur Pandey, Rangnath Pandey Buchai Mahto Bhushan Mahto and Anil Deka used to tease her on her way to school and due to his (P.W.1) prestige he did not put pressure on that matter and there are many cases on them from before and they have a group and due to fear the people of village do not speak. His statement that the dead body of his sister Gudia was found in the field of Ravi Shankar Pandey is supported by the evidence of I.O. (P.W.9) The evidence of P.W.1 Satendra Singh shows that the Gudia had gone to her school on 6.11.96 at 9.30 A.M. i.e. on the date of occurrence and she did not return home on that day and on the next morning her dead body was found in the field of Ravi Shanker Pandey. His evidence that accused persons used to lease her on her way to school. His evidence also shows that his sister had complained about a week before the occurrence that accused persons used to tease her on her way to school. P.W.6 Ram Singari Devi, grand mother of deceased Gudia has stated that her grand daughter Gudia aged about 13 to 14 years had gone to Karisath school for study and she did not return on that day and in the evening Salyendra and Dadan went in search of her in the village and to the school and they returned back at about 10 O clock in the night and Gudia could not be traced on that day. She has also said that Gudia had told before the occurrence that Jhingur, Sudama and Asamia used to tease her. According to her n the next morning Dadan, Satyendra and some boys of the village went in search of Gudia and the dead body of Gudia was found. She has also said that Gudia had told before the occurrence that Jhingur, Sudama and Asamia used to tease her. According to her n the next morning Dadan, Satyendra and some boys of the village went in search of Gudia and the dead body of Gudia was found. She has said that in the field where the dead body of Gudla was found, Arhar and Masuria crop had been grown and eyes of Gudia had been taken out and her nose had been cut and she had injuries on the neck, and Peru. Her evidence also shows that Gudia had left the house at 9.30 A.M. for the school and she did not return on that day and her dead body had been found in the j next morning with multiple injuries and her eyes had been taken out. Her evidence also shows the factum of brutal murder. 15. P W.4 Ekram Singh has stated that he was coming to his house from bus stand and he had left the bus stand as about 10 A.M. and when he reached near the field of Ravi Shankr Pandey, he saw Bhushan Mahto, Sudama Pandey, Madan Pandey, Buchai Mahto and Anil Deka coming out of the Arhar field and he (PW.4) went to his house. He has said that the grand mother of Gudia told him in the evening of the same day that Dudia had not returned from school and Dadan Singh and Satyendra Singh had gone in search f her, but Gudia could not be traced and on the next day, during the search the dead body of Gudia was found in the field of Ravi Shanker Pandey and then he (P.W.4) also went there. He (P.W.4) had seen injuries on the dead body of Gudia and her both eyes had been taken out and nose had been cut and there was injury of knife on the neck and near navel. He has stated that the Daroga came at the place of occurrence and' inspected the dead body and prepared its paper and he (Daroga) seized the books and copies of Gudia and blood stained earth and prepared its paper and both papers were prepared before him (P.W.4) and he and put his signature on it. Nothing has been elicited in his cross examination to disbelieve his evidence. Nothing has been elicited in his cross examination to disbelieve his evidence. According to the prosecution, the occurrence had taken place at about 10 A.M. on 6.11.96. This witness P.W.4 Ekram Singh had left the bus stand for his home at 10 A M. and when he had reached near the land of Ravi Shankar Pandey, which had Arhar crop and which is the place of occurrence a this case and from where the dead body a the deceased Gudia had been recovered, he (P.W.4) had seen the five accused appellants coming out of that Arhar field. When he had left the bus stand at 10 A.M. he must have reached near the place of occurrence some time after 10 A.M. i.e. after the occurrence. It has already come in evidence that the place of occurrence is a lonely place. The fact that all the five accused appellants were seen coming out of the Arhar field i.e. the place of occurrence after the time of occurrence lead to the conclusion that these accused appellants had committed the murder of deceased Gudia Kumari. 16. P.W.5 Suryadeo Pandey has stated that on 6.11.96 he had gone to see the field towards south and it was about 9.30 A.M. and when he was returning he saw that Madan Pandey and Anil were sitting on the ridge near the place of occurrence and he (P.W.5) proceeded towards the village and in the way he saw Gudia who was going to school and behind her Sudama Pandey, Kanhaiya alias Jhingur Pandey and Shushan Mahto were following her and he (P.W.5) went to his house. He has said that in the evening he learnt that Gudia had not returned and on the next day he learnt that the dead body of Gudia was found in the field of Ravi Shanker Pandey and he went to the place of occurrence and saw that Gudia was dead and her nose and ear had been cut and her eyes had been taken out and there was cut injury on her neck and blood had fallen on earth. The evidence of this witness (P.W.5) shows that near the place of occurrence accused Madan Pandey and Anil Deka were sitting on a ridge of field and Gudia was going to school and accused Sudama Pandey, Shushan Mahto and Jhingur Pande were following her. The evidence of this witness (P.W.5) shows that near the place of occurrence accused Madan Pandey and Anil Deka were sitting on a ridge of field and Gudia was going to school and accused Sudama Pandey, Shushan Mahto and Jhingur Pande were following her. PW.7 Baban Singh has stated that it was about 9.30 A.M. and he was coming to his house from Karisath and when he proceeded beyond the boundary of Marwatia Karisath he saw that Ram Nath Pandey was ploughing his field and when he further proceeded he saw Buchchai Mahto, Asamia and Mandan Pandey sitting there. They were talking amongst themselves and when he (P.W.7) reached near them they became silent and when he (P.W.7) proceeded further he met Gudia who was going to school and when he (P.W.7) further proceeded towards his house he met Bhushan Mahto, Sudama Pandey and Kanhaiya Pandey and thereafter he went to his house. According to him after taking meal he had gone to his relative and he returned after three days. He has said in his cross examination that the police had recorded his statement after 7-8 days at the police station. When he had gone to his relative and he had returned after three days it was natural that his statement was recorded by the police after a few days. His evidence shows that he had met accused Buchai Mahto, Madan Pandey, Asamia. Bhushan Mahto and Sudama Pandey and deceased Gudia in the way when he was returning from Karisath to his home at about 9.30 A.M. This witness had seen the accused persons and deceased at about 9.30 P.M. and the time of occurrence of this case is about 10 A.M. There is nothing in the cross examination of these witnesses (P.W. 4, 5 and 7) to disbelieve their evidence. 17. It was contended by the learned lawyer of the appellants that in a case of murder based on circumstantial evidence. the court should adopt cautious approach for basing conviction, on circumstantial evidence and in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. In support of his contention the learned lawyer of the appellants placed reliance on two decisions of the Supreme Court one in Cr. In support of his contention the learned lawyer of the appellants placed reliance on two decisions of the Supreme Court one in Cr. Appeal No. 445 of 1980 (State of Haryana Vs. Ved Prakash) reported in AIR 1994 SC 468 and another in Cr. Appeal No. 19) of 1985 (Balwinder Singh Vs. State of Punjab) reported in AIR 1996 SC 607 . The evidence of P.W.5 Suryadeo Pandey and P.W. 7 Baban Singh clearly show that all the accused persons and the deceased were near the place of occurrence a little before the time of occurrence. The evidence of PW. 4 Ekram Singr shows that all the five accused appellants wee seen coming out of the Arhar field of Ravi Shanker Pandey, which is the place of occurrence. The fact that all the accused appellants and the deceased were seen near the place of occurrence just before the occurrence and all the accused appellants were seen coming out of the Arhar field which is the place of occurrence after the occurrence and earlier the accused used to tease the deceased giri Gudia on her way to school are complete chain of circumstances which conclusively prove the guilt of accused appellants. The above circumstances and facts lead to the only conclusion that all these five accused appellants had committed the brutal murder of deceased Gudia Kumari and committed the offences as alleged. 18. Three witnesses have been examined on behalf of the defence. The plea of accused Buchai alias Vinod Kushwaha is that at the time of occurrence, he was 3ppearing at the test examination of matriculation at Chhota Sasaram High School and he was not present at the place of occurrence at the time of occurrence. D.W.1 is Aditya Narain Tiwary, who is a clerk of K.V.M. School, Chhota Sasaram. He has staled that the headmaster of the school had sent the admission register from 1994 to 1997 and the register of Class-XA of 1997. The order of headmaster is Ext.A which shows that Tiwary was directed to appear in court with papers. He has also said that he had brought the controller of examination register of 1996. He has stated that the copies of the examination of both the sittings of 6.11.96 are not available in the school as the copies are sold after six months of the examination. He has also said that he had brought the controller of examination register of 1996. He has stated that the copies of the examination of both the sittings of 6.11.96 are not available in the school as the copies are sold after six months of the examination. The date of occurrence of this case is 6.11.96 and this witness (D.W.1) has said that the copies of examination of both the sittings of 6.11.96 are not available in the school. So it cannot be known as to who had appeared at the examination on 6.11.96. In the circumstances. It cannot be inferred from the evidence of D.W.1 Aditya Narain Tiwary that the accused Buchai alias Vinod Kushwaha was appearing at the test examination of matriculation at the school on the date and at the time of occurrence of this case. D.W.2 is Raj Bali Prasad, an Assistant Teacher. He has stated that Vinod Kushwaha was admitted in Class-VIII on 25.1.94 and according to the register is date of birth is 18.1.1981. He has said that the entries which the has stated after looking into the register were not written before him and he has no personal knowledge about it. He has further said that the test examination of matric was held in his school in November, 1996 and he can say after looking into papers as to when the examination had started. The evidence of this witness D.W.2 Raj Bali Prasad does not show that the accused Buchai alias Vinod Kushwaha was not present at the place of occurrence on the day and time of occurrence. D.W.3 is Tarkeshwar Prasad, an Advocate's clerk. He is a witness of formal nature, who had proved Ext. F, G and H Ext. F is letter of Raj Bali Prasad, Headmaster of K.V.M. High School, Chhota Sasarnm addressed to the C.J.M. Arroh in which it has been written that Vinod Kumar Kushwaha was present in the school on 6.11.1996 and he had appeared in the examination of both the sittings and the first sitting starts from 10 A.M. He (D.W.3) has said in his cross examination that Exts. were not written before him and he has no personal knowledge of the facts stated in the exhibits D.W.1 Aditya Narain Tiwary, a clerk of K.V.M. High School, Chhota Sasaram has said in his evidence that the copy of examination of both the sittings of 6.11.96 are not avaiiable in the school. In view of the facts and circumstances of the case and in view of the discussion made above, it cannot be inferred from the evidence of D.W.1, D.W.2 and D.W.3 and the exhibits filed on behalf of defence that the accused Buchai alias Vinod Kushwaha was not present at the place of occurrence on the date and time of occurrence. It cannot be inferred from the evidence adduced on behalf of defence that the accused persons have not committed the offences as alleged. 19. The facts and circumstances of the case and the above evidence adduced on behalf of the prosecution conclusively proves beyond all reasonable doubts that the accused appellants Sudama Pandey, Anil Deka, Shushan Mahto alias Kumar Chandra Shushan, Madan Pandey and Suchai alias Vinod Kushwaha have committed the brutal murder of a minor girl Gudia Kumari and the offences as alleged. The conviction of all the appellants under Sections 302/34 I.P.C. and 376/511 I.P.C. and 201 I.P.C. is justified. 20. The above evidence adduced on behalf of the prosecution proves beyond all reasonable doubts that all the five accused appellants have committed the offences as alleged, but their extent of participation in the crime is not clear from the materials on the record: Some of them might have played major role and some of them minor role in the commission of crime Therefore, it does not appear justified to award all the accused appellants the extreme punishment of death. In this view of the matter imprisonment for life to all the appellants will meet the ends of justice. Therefore, punishment of death awarded to the accused appellants by the learned Additional Sessions Judge is commuted into the imprisonment for life to all the accused appellants under Section 302/34 I.P.C. 21. With the above modification in the order of sentence, these two criminal appeals are dismissed and the death reference no.2 of 1999 is disposed of accordingly.