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2002 DIGILAW 1262 (PAT)

Surju Manji @ Birju v. State Of Bihar

2002-11-22

P.N.YADAV, SACHCHIDANAND JHA

body2002
Judgment P.N.Yadav, J. 1. These appeals are directed against the judgment and order dated 13.6.1996 passed by the 7th Additional Sessions Judge, Munger whereby and whereunder he convicted the sole appellant of Cr. Appeal No. 263 of 1996 and sentenced him to under rigorous imprisonment for life under Section 302 of the Indian Penal Code (hereinafter to bereferred to as the Code) and he further convicted all the appellants of both the appeals under Section 302 read with Section 149 and also under Section 148 of the Code and sentenced them to undergo rigorous imprisonment for life each and rigorous imprisonment for one year each under each of the two counts, the sentences having been ordered to run concurrently, acquitting the appellant of Cr. Appeal No. 263 of 1996 of the charge under Section 324 and the appellants of Cr. Appeal No. 226 of 1996 of the charge under Section 323 of the Code. 2. We have heard the learned counsel representing the appellants as well as the learned counsel representing the State. 3. It would be relevant and convenient to reproduce the facts of the case which lay within a narrow compass. While in the fateful night at about 10 p.m. on 12.5.1984 the deceased Lalji Choudhary was aslept in front of his house the appellants having armed themselves with various lethal weapons such as garasa, pajauna and lathi and forming an unlawful assembly went there and they started assaulting the deceased with their weapons, the appellant Baudhu Choudhary inflicted a garasa blow on the head of the deceased. Nunnu Lal Choudhary (PW 4), Surendra Choudhary (PW 1) and Kailash Choudhary (PW 2) rushed to save him but to their utter dismay and surprise they were also assaulted by the appellants with garasa and lathi as a result of which they sustained injuries the deceased succumbed to injuries in course of treatment 4-5 days after the date of incident. The appellants retreated after the witnesses arrived and intervened. 4. The genesis of the occurrence and the motive impelling the appellants to commit the crime may also be referred to. One Baso Mahto @ Basdeo Yadav (PW 3) had toddy bearing palm trees. He had been settling the trees with the appellant Baudhu Choudhary for several years. He was not prompt in making payment to PW 3 for scrapping toddy from his trees. One Baso Mahto @ Basdeo Yadav (PW 3) had toddy bearing palm trees. He had been settling the trees with the appellant Baudhu Choudhary for several years. He was not prompt in making payment to PW 3 for scrapping toddy from his trees. Payment for settlement of the trees fell in arrears and the appellant Baudhu Choudhary was not ready and willing to clear the arrears. Ultimately, the deceased got the trees settled with him by PW 3 after making payment for the same. This infuriated and enraged the appellant Baudhu Choudhary. The appellants nourished grudge and anger against the deceased on account of his obtaining palm trees from PW 3 Basdeo Yadav. Anger, annoyance and grudge cherished by the appellants culminated in their putting upto the incident leading to the commission of murder of the deceased. 5. The fardbeyan of PW 4 Nunu Lal Choudhary was recorded by P.N. Pathak, Assistant Sub Inspector of Police at 9.30 a.m. on 13.5.1984 at Ariari Hospital on the basis of which Ariari P.S. Case No. 16 of 1984 was initially registered under Sections 147, 323 and 324 of the Code. After the death of the deceased Section 302 of the Code was added. Investigation was taken up by the aforesaid Assistant Sub-Inspector of Police P.N. Pathak and after completion thereof the charge-sheet was submitted against the appellants by Naresh Prasad Sub Inspector of Police (PW 8) and finally the trial commenced after commitment of the case to the Court of sessions. 6. In order to bring home the charges levelled against the appellants the prosecution examined eight witnesses PW 1 Surendra Choudhary PW 2 Kailash Choudhary, PW 3 Basdeo Yadav, Pw 4 Nunu Lal Choudhary, the informant, PW 5 Babulal Choudhary, PW 6 Jago Choudhary, PW 7 Dr. Rana Pratap Singh, who conducted autopsy on the dead body of the deceased and PW 8 Naresh Prasad Sharma, the Investigating Officer, who merely submitted charge-sheet. PW 1, PW 2 and PW 4 are injured and eye-witnesses, PW 5 and PW 6 were also claimed by the prosecution to be the eye-witnesses. PW 3 is the owner of palm trees which were earlier settled with the appellant Baudhu Choudhary, but later on given to the informant. He also claims to have witnesses assault inflicted on PWs 1, 2 and 4. PW 3 is the owner of palm trees which were earlier settled with the appellant Baudhu Choudhary, but later on given to the informant. He also claims to have witnesses assault inflicted on PWs 1, 2 and 4. PW 1, PW 2, PW 5, PW 6 and Ishwar Mahto (not examined) were cited in the first information report, PWs 4, 5 and 6 are brothers. The deceased was their uncle. PW 2 and PW 1 are the brother-in-law and the son respectively of PW 4. P.N. Pathak who recorded the fardbey an of Pw 4 and investigated into the case was not examined. 7. The appellants did not enter into defence. However, from the trend of cross-examination of the prosecution witnesses the defence seems to be that of total denial and false implication. It has been contended that none witnessed the incident leading to the death of the deceased and as a matter of fact the deceased was inflicted fatal blow by certain miscreants in dark night and none could see and identify the assailants and the witnesses claimed by the prosecution to be the eye-witnesses cannot be believed and accepted as such and the appellants have been falsely implicated out of sheer enmity and also that medical evidence is not in consonance with the eye-witness account of the occurrence. It has also been contended that witnesses examined in the case are interested in and related to each other and hence their evidence cannot form the basis of conviction. Apart that inconsistent defence sought to be set up by putting suggestion to certain witnesses is that the deceased in course of scrapping toddy fell down from the palm tree and he died. 8. It is to be considered whether there is ample, cogent and reliable evidence on records to warrant a conviction of the appellants. We shall first take up the evidence of ocular witnesses. The informant Nunu Lal Choudhary has stated that while he, Surendra (PW 1), Kailash (PW 2) and the deceased Lalji Choudhary were at about 10 P.M. in the fateful night sleeping in front of their house, the appellants went there and they started assaulting the deceased and on protest being made by him (PW 4) and PWs 1 and 2 the appellants assaulted them as well. It is in his evidence that the appellants Baudhu Choudhary and Sarju Manjhi were armed with gransa while the appellant Jageshwar Choudhary was having pajauna and the other two appellants were armed with lathi. PW 1 and PW 2 stated that they along with PW 4 and the deceased were sleeping at Sahan land in front of the house and at about 10 p.m. all the appellants with their respective weapons as stated above arrived there and they started assaulting the deceased and in the process the appellant Baudhu inflicted a gransa blow on his head and when they (PWs 1, 2 and 4) rushed to save him they were also variously assaulted by the appellants. 9. PW 3 Basdeo Yadav stated that on nulla he rushed to the place of occurrence where he saw the deceased lying in injured condition. He added that the appellants were assaulting PWs 1, 2 and 4 and on intervention by witnesses the appellants retreated. PW 3 is thus eye-witness to a part of the incident. He was not suggested that he reached the place of occurrence after the deceased and the injured persons were assaulted and the appellants fled away. PW 3 is an independent witness not at all inimical to the appellants. 10. PW 5 Babulal Choudhary and PW 6 Jago Choudhary claiming themselves to be the eye-witnesses stated that on hearing alarm they rushed to the place of occurrence and saw that the appellants were assaulting the deceased and PWs 1, 2 and 4 specifying that the appellant Baudhu choudhary inflicted a garasa blow on the head of the deceased. PW 2 stated that on alarm raised by him PWs 5 and 6 along with Sohrab and Ishwar had arrived at the place of occurrence. PW 3 stated in his cross examination that PW 6 and Sohrab and others reached the place of occurrence later on. Almost identical is the evidence of PW 1 on this point. In view of statements of PWs 1, 2 and 3, PW 5 and PW 6 cannot be said to be the eye-witness to the incident. PW 3 stated in his cross examination that PW 6 and Sohrab and others reached the place of occurrence later on. Almost identical is the evidence of PW 1 on this point. In view of statements of PWs 1, 2 and 3, PW 5 and PW 6 cannot be said to be the eye-witness to the incident. PW 5 and Pw 6 arrived at the scene of occurrence after infliction of assault and they merely saw the deceased and PWs 1, 2 and 4 in injured condition and the appellants retreating from the scene of incident, however, all this would constitute a very strong piece of circumstantial evidence pointing to the involvement and participation of the appellants in the commission of crime leading to the death of the deceased. 11. It has been contended that the incident took place in the night at about 10 p.m. and every body was expected to be in slumber at that time and as such the occurrence went unseen and PWs 1, 2 and 4 cannot be believed to be the eye-witnesses to the assault inflicted on the deceased. The contention is non- meritorious. The occurrence leading to the murder of the deceased took place during summer season in the night intervening between the 12th and the 13th May when days are longer than nights and people generally do not go to sleep at early hours. During the relevant period of time at 10 p.m. is not very late hour of the night and moreover, PW 2 specifically stated in his cross examination that he along with PW 1 and PW 4 and the deceased were sleeping at Sahan land and by the time the occurrence took place he was not aslept. PW 4 said that he was just lying at Sahan land in front of the house. His statement that he was sleeping may be interpreted to mean that he had not as yet gone into slumber and he was very much wide awake. PW 1 was 19-20 year old young man and he might have gone into slumber and that is why he said he woke up after hearing hue and cry. He was sleeping by the side of PW 2 and PW 4 and the deceased and he could have waken up on the spur of the moment and witnessed part of the occurrence. He was sleeping by the side of PW 2 and PW 4 and the deceased and he could have waken up on the spur of the moment and witnessed part of the occurrence. PW 2 said in his cross examination that he was just lying and was not aslept. There is consistent evidence of PWs 1, 2 and 4 that they were assaulted by the appellants and they sustained injuries. They were corroborated by PWs 3, 5 and 6 and as such their evidence that they were assaulted and injured cannot be rejected merely because no medical report was brought on records. PWs 1, 2 and 4 must be accepted to be eye-witnesses to the incident particularly when their evidence does not suffer from any inherent infirmity and lacuna. 12. The criticism levelled against the evidence of PWs 1, 2 and 4 that Pw 1 stated in the cross-examination that the deceased was taken to local Mukhiya who prepared report giving therein full details of the occurrence and that report along with the deceased was taken and handed over to the Police at the Police Station and from the police station the deceased was taken to the hospital whereas PW 2 and PW 4 stated that the deceased was first taken to Ariari Hospital where fardbeyan of PW 4 was recorded and all this instills doubt in the prosecution can must be over ruled. 13. From the evidence of PW 1 and PW 4 it would transpire that in respect of murder of one Kamo Choudhary, brother of the appellant Baudhu Choudhary, a case was registered and PW 4, PW 5 and PW 6 were also arrayed as accused in that case in 1978, however, after investigation, final report was submitted against them. Institution of such case against the witnesses cannot constitute motive for false implication of the appellants and no inference can be drawn that they have been falsely implicated by the informant and the witnesses out of enmity emanating from registration of the case referred to above. There is no material at all on records to suggest that there existed animosity between the appellants on the one hand and the deceased or the informant on the other. PW 3 who is an independent witness stated that there had been no enmity between the deceased and the appellant Baudhu Choudhary. 14. There is no material at all on records to suggest that there existed animosity between the appellants on the one hand and the deceased or the informant on the other. PW 3 who is an independent witness stated that there had been no enmity between the deceased and the appellant Baudhu Choudhary. 14. The ocular witnesses stated that the deceased succumbed to injury in course of treatment in the hospital 4-5 days after the occurrence. They stated that the deceased was dealt a garasa blow on his head by the appellant Baudhu Choudhary. The Police Officer who prepared the inquest report also found a sharp cut injury on his head as would be evident from the contents of the inquest report. PW 7 Dr. Rana Pratap Singh conducted autopsy on the dead body of the deceased at about 10.35 A.M. on 17.5.1984. He found a bandaged wound on the head. On removal of the bandage a stitched wound vertically placed in the middle part of the skull, 8" in length was found. On dissection blood and blood clots were found over both the parietal lobes of brain substance with some laceration. Blood and blood were also found under the scalp. Blood clot is possible even if heavy blow is inflicted with force. 15. The doctor opined that the injury found on the person of the deceased might have been caused by garasa and the cause of the death was shock and hemorrhage due to the injury referred to above. The doctor further stated that the injury was sufficient in the ordinary course of nature to cause death. The medical evidence would thus also support the prosecution version that the deceased was inflicted garasa blow causing injury of dimension of 8" in length which was sufficient to cause death. 16. It would appear that the doctor (PW 7) was examined on 20.2.1988. Surprisingly enough, PW 7 was recalled and cross-examined on 15.5.1996, that is, after more than eight years from the date of his examination in chief. In his cross- examination, PW 7 stated that over and above, the solitary head injury there was no injury, laceration or bruise on the person of the deceased. Surprisingly enough, PW 7 was recalled and cross-examined on 15.5.1996, that is, after more than eight years from the date of his examination in chief. In his cross- examination, PW 7 stated that over and above, the solitary head injury there was no injury, laceration or bruise on the person of the deceased. After lapse of such a long period of time the doctor appears to have made a pulpably false and wrong statement that the head injury on the person of the deceased might be possible by fall from palm tree though in his examination in chief he stated that the injury was possible by sharp cutting weapon like garasa. In view of direct and cogent evidence of eye- witnesses to the effect that the appellant Baudhu dealt garasa blow on the head of the deceased and the evidence of Pw 7 that the head injury on the person of the deceased was caused by sharp cutting instrument like garasa his statement in his cross-examination made after lapse of more than eight years that the said head injury might be caused by fall from palm tree does not inspire confidence and the same must be discarded outright. The doctor appears to have bade a good bye to all norms and decency and to have stated that the injury was possible by fall from palm tree just to help the appellants. 17. There is consistent and corroborative evidence of the eyewitnesses that it was the appellant Baudhu who dealt garasa blow on the head of the deceased. The witnesses also stated that all the appellants assaulted the deceased and PWs 1, 2 and 4. In his cross-examination, PW 2 admitted that the appellant Sarju Manjhi dealt a blow with reversed side of garasa on the person of the deceased. He did not say which part of the body was hit by reversed side of garasa. It is to be stated that the doctor did not find injury except the one on the head of the deceased which was caused by garasa blow inflicted by the appellant Baudhu. He did not say which part of the body was hit by reversed side of garasa. It is to be stated that the doctor did not find injury except the one on the head of the deceased which was caused by garasa blow inflicted by the appellant Baudhu. It is just possible that the other injury even if inflicted on other parts of the body of the deceased might have vanished by the time the postmortem examination was conducted or the witnesses might have given exaggerated version that all the appellants including Sarju Manjhi had assaulted the deceased as well as PWs 1, 2 and 4. The state- ments of the witnesses that all the appellants dealt lathi blows or blow with the reversed side of garasa on the person of the deceased and non finding of any such injuries by the doctor on the person of the deceased cannot in the least instill doubt in the prosecution case for, a witness very often when asked about details of incident ventures to give some answer which is not necessarily true for fear that his evidence on the main incident which he witnessed may not be disbelieved but such embellishment or exaggeration in evidence of such witness cannot pave the ground for discarding his entire evidence. 18. It has been vehemently urged that the witnesses are admittedly relatives and interested and as such it would not be just and proper to base conviction on their evidence. The contention is devoid of merit and force and the same cannot be accepted. The settled principle of law is that evidence of witnesses closely related to an interested in the victim cannot be rejected outright and what is required is that evidence of such witnesses should be closely scrutinised and if on such scrutiny their evidence is found to be reliable it can be accepted without corroboration by some independent witnesses. In the case at hand the eye witnesses (PWs 1, 2 and 4) along with the deceased were sleeping at the same place at Sahan land in front of the house they are quite natural and not chance witnesses the incident leading to infliction of fatal blow took place in the night and hence none else than the said witnesses were expected to have rushed to the scene of incident and witnessed the occurrence. On a close and cautious scrutiny of the evidence of PWs 1, 2 and 4 who are relatives and interested witnesses has been found to be above board and wholly reliable. Moreover they were corroborated by Pw 3 who is an independent witness by stating on oath that he witnessed PWs 1, 2 and 4 being assaulted by the appellants. The statements of PWs 5 and 6 also lent support and corroboration to eye-witness account of the incident. Medical evidence as noticed earlier is also supportive of infliction of fatal blow on the deceased in the manner alleged by the prosecution. 19. The learned counsel has also contended that identification of the appellants in the night is not free from doubt. PW 2 stated that it was dark night while PW 3 said that it was moonlit night at the time of occurrence. A perusal of relevant Hindi Calandar (PANCHANG) revealed that it was full moon day on 15.5.1984 and accordingly it was obviously moonlit night on 12.5.1984 on which day the occurrence took place at about 10 p.m. the appellants could have very well been identified in the moonlight besides the fact is that the appellants and the witnesses are co-villagers and some of them are even neighbours and they were well known to and conversant with each other and hence the appellants could have easily been identified by the witnesses at the time and place of occurrence even if there was no other source of light. 20. The contention that the witnesses though accompanied the deceased to the hospital where fard- beyan was recorded they did not put their signatures/LTIs on the fardbeyan and that has Instilled suspicion in their evidence has also no substance. The witnesses are rustic and illiterate villagers residing in remote corner of the countryside and they are not at all aware of intricacy of law. Such witnesses would seldom dare say that they would put signatures/LTIs on fardbeyan. It was the duty of the police officer recording the fardbeyan to ask the witnesses present there to put their signatures or LTIs thereon. Moreover, absence of signatures/LTIs of witnesses on fardbeyan is not very material. It is merely an irregularity and it must be ignored. 21. The genesis or the origin of the occurrence and the motive motivating the appellants to commit the offence also stood well proved. Moreover, absence of signatures/LTIs of witnesses on fardbeyan is not very material. It is merely an irregularity and it must be ignored. 21. The genesis or the origin of the occurrence and the motive motivating the appellants to commit the offence also stood well proved. All the witnesses have stated that the appellant Baudhu had been scrapping toddy from palm trees belonging to PW 3 for several years but subsequently as he stopped making payment for the trees he settled the same with the informant, nephew of the deceased on account of which the appellant Baudhu was very much aggrieved and annoyed and hence he with aid and assistance of other appellants committed murder of the deceased. PW 3 who is not at all inimical to the appellants supporting the prosecution case has stated that he has got several toddy bearing palm trees and he had been settling the same on payment of rent with the appellant Baudhu since long and he was not agreeable to enhancement of rent which was fixed long ago and not only that he even stopped payment of rent as a result of which there accumulated arrears against him and hence the trees were settled with the informant and on that account the appellant Baudhu got infuriated and enraged and he started cherishing grudge, anger and annoyance which cultimated in commission of murder of the deceased by the appellant Baudhu and his associates. Nothing has been elicited in the cross examination of PW 3 to demolish his. veracity on the point of genesis of occurrence and motive. The evidence of other witnesses is identical to that of PW 3 on this point. 22. PW 8 Naresh Prasad Sharma, Sub Inspector of Police took up investigation after transfer of P.N. Pathak, Assistant Sub-Inspector of Police who recorded the fardbeyan of the informant and carried out investigation almost to a conclusive stage. PW 8 merely submitted charge-sheet. P.N. Pathak, Investigating Officer was not examined despite strenuous efforts made by the Court. The learned counsel has submitted that on account of non examination of the Investigating Officer the place of occurrence could not be said to have been established. There is no merit and force in the submission. All the witnesses stated that the place of occurrence situated at Sahan land in front of the house of the deceased. The learned counsel has submitted that on account of non examination of the Investigating Officer the place of occurrence could not be said to have been established. There is no merit and force in the submission. All the witnesses stated that the place of occurrence situated at Sahan land in front of the house of the deceased. On a perusal of the case diary, it would transpire that P.N. Pathak, Assistant Sub-Inspector of Police did not properly investigate into the case. The informant (PW 4) stated that the said Assistant Sub-Inspector of Police was in collusion with the appellants and after accepting illegal gratification he directed investigation against the interest of the prosecution and that is why he was suspended by the Superintendent of Police. Be that as it may the entire prosecution case cannot be thrown over board on account of non-examination of the Investigating Officer. 23. The learned counsel has further pointed out that the occurrence took place at about 10 p.m. in the night on 12.5.1984, the doctor (PW 7) found a solitary injury on his head, he died at about 3 p.m. on 17.5.1984 and as such the offence committed by the appellants would amount to culpable homicide and not murder and their conviction under Section 302 of the code is not justified. In view of a catena of decisions of Apex Court and High Courts, it is wrong to contend that when death is caused by a single blow clause (3) of Section 300 of the Code would not be attracted and hence the offence committed would not amount to mur- der. Culpable homicide has been defined in Section 299 and murder in Section 300 of the code. A perusal of the aforesaid two sections of the code would reveal that culpable homicide will not amount to murder only if the offence committed comes within any of the five exceptions provided for therein. 24. In the case of Virsa Singh V/s. State of Punjab, AIR 1958 SC 465 the accused Virsa Singh inflicted a solitary injury on the deceased with spear and the doctor stated it was punctured wound 2" x 1" on the left side abdominal wall and the injury was sufficient to cause death in the ordinary course of nature. 24. In the case of Virsa Singh V/s. State of Punjab, AIR 1958 SC 465 the accused Virsa Singh inflicted a solitary injury on the deceased with spear and the doctor stated it was punctured wound 2" x 1" on the left side abdominal wall and the injury was sufficient to cause death in the ordinary course of nature. It was held that the accused had intended to cause the particular injury which was found on the person of the deceased causing his death and clause (3) of Section 300 was wholly attracted. Similar view was taken in the cases of Jay Prakash V/s. State (Delhi Administration), 1991 BBCJ (SC) 139, Sannappa Rayappa Jadge V/s. State of Karnataka, 1994 SCC (Cri) 1167 and Dina Nath Yadav and another V/s. State of Bihar, 2001 (3) PLJR 334 . 25. Applying the ratio decidende of the cases referred to above to the present case and considering the provisions of law enshrined in Section 300 of the Code it would appear that it is knowledge or intention with which the act is done that makes difference in arriving at a conclusion whether the offence is culpable homicide or murder. Knowledge or intention is to be gathered from the facts and attending circumstances. In the case, we are in seisin of the deceased was brutally assaulted while he was aslept at 10 p.m. in the night as a result of which he sustained injury of dimension of 8" in length on his skull caused by garasa. The assailant stroke the head a vital and dangerous spot. The force with which garasa blow was inflicted seemed to be sufficient and violent to cause the aforesaid injury. Head injury was obviously caused with a deadly weapon like garasa. Medical evidence does not show that the deceased had developed some other disease or even infection or septicaemia which might have contributed to his death rather the doctor opined that the injury found on the person of the deceased was sufficient in the ordinary course of nature to cause death. Besides there is nothing on the records to show that assault was inflicted due to sudden fight and upon hit of passion. In the facts and circumstances, the assailant must be said to have intention to inflict that particular bodily injury which was actually found on the person of the deceased and it was not accidental and intentional. Besides there is nothing on the records to show that assault was inflicted due to sudden fight and upon hit of passion. In the facts and circumstances, the assailant must be said to have intention to inflict that particular bodily injury which was actually found on the person of the deceased and it was not accidental and intentional. No evidence or explanation has been given for infliction of such injury. There is nothing on record to suggest that the appellants only intended a superficial injury and by accident fatal injury was sustained by the deceased. 26. On the basis of the materials available on records, it is to be held that the appellant Baudhu Choudhary had intention to cause bodily injury to the deceased and the injury intended to be inflicted was sufficient in the ordinary course of nature to causedeath and the offence committed by he offender is not covered by any of the five exceptions and hence the offence would come within the purview of clause (3) of Section 300 of the Code. 27. All the appellants were convicted under Section 302 read with Section 149 besides the appellant Baudhu Choudhary having been convicted under Section 302 of the Code as well. In order to attract the provisions of Section 149 of the Code, the prosecution must establish that there was an unlawful assembly and that the crime was committed in prosecution of the common, object of such assembly. Under Section 141 of the Code, an assembly of five or more persons is an unlawful assembly if the common object of its members is to do certain act by means of criminal force or show of criminal force to any person. In the present case, all the appellants having armed themselves with various lethal weapons went to the place of occurrence and they variously assaulted the deceased and the witnesses as a result of which they sustained injuries and the deceased succumbed to head injury caused by the appellant Baudhu Choudhary. They committed the crime at about 10 p.m. in the night while the deceased was aslept. Certain overt act was committed by each and every member of the unlawful assembly. They committed the crime at about 10 p.m. in the night while the deceased was aslept. Certain overt act was committed by each and every member of the unlawful assembly. These facts would go to suggest that the assembly comprised by the appellants was obviously an unlawful assembly the common object of which was to kill the deceased and murder was committed in prosecution of the common object of the unlawful assembly. 28. The defence version that the deceased was done away with by some unknown miscreants in the night and commission of his murder went unseen and the alternative and inconsistent defence that the deceased fell down from palm tree while snapping toddy and he died and the appellants have been falsely implicated out of sheer enmity seemed to be far from probable and the same could not be accepted. Had the deceased died of falling from tree the appellants could have adduced evidence in this regard but nothing of the sort was done. 29. In view of the facts, circumstances and evidence discussed and the observations made above it is to be held that the prosecution has brought home the charges levelled against the appellants beyond the reasonable doubt. All the appellants have rightly been convicted under Section 302 read with Section 149 besides the appellant Baudhu Choudhary having been convicted under Section 302 of the Code. The impugned judgment and order of conviction and sentence does npt on the basis of materials on records warrant Mterference by this Court. 30. In the result, both the appeals fail and they are accordingly. dismissed. Baudhu Choudhary @ Bachan Caudhary, the appellant in Cr. Appeal No. 263 of 1996 is already in jail. Surju Manjhi @ Birju, Par- meshwar Manjhi, Mauji Manjhi and Jageshwar Choudhary are on bail. Let their bail bonds be cancelled with a direction to them to surrender themselves to the Court within four weeks to serve out the sentence. In case they do not surrender within the aforesaid period of time the Court below shall take coercive steps for procuring their surrender. SACHCHIDANAND JHA, J. 31 I agree.