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2003 DIGILAW 969 (PAT)

Biru Mahto v. State Of Bihar

2003-09-05

ANIL KUMAR SINHA, B.K.JHA

body2003
Judgment Bal Krishna Jha, J. 1. These three appeals have been preferred against the common Judgment and Order passed on 25th/26th of May, 1999 in Sessions Trial No. 56/96 by the then learned Additional Sessions Judge I. Nalanda at Bihar Sharif. 2. The appellant, Suresh Prasad and Sudhir Mahto have been convicted and sentenced to R.I. for life under Section 302 of the Indian Penal Code and R.I. for five years under Section 27 of the Arms Act. They have further been convicted under Sections 302/149 of the Indian Penal Code but no separate sentence was passed on this count. The sentences awarded to both the appellants have been ordered to run concurrently. The appellants, Biru Mahto, Ram Nandan Prasad alias Ramnand Prasad and Ram Itar Mahto have been convicted under Sections 302/149 of the Indian Penal Code and sentenced to R.I. for life. 3. Briefly the case of the prosecution is that on 18.6.1995 at 7 a.m., Surendra Prasad, the husband of the informant, Kaushalya Devi, PW 7, watered the wall of his house under construction and was keeping the pipe. In the mean time the accused, Suresh Prasad, Biru Mahto, Sudhir Prasad and Khemajeet Mahto (since died) having pistols in their hands alongwith 8/10 unknown persons appeared at the darwaja of the informant. The accused, Suresh Prasad, fired from his pistol at Surendra Prasad which hit on the right side of his chest and he fell down died on the ground. The accused, Sudhir Prasad fired from his pistol at Virendra Prasad, the dewar of the informant which hit above his waist and he died on way to hospital. The further case of the prosecution is that they also committed the murder of Sudama Prasad. the bhaisur of the informant while he was coming to the village with a tractor loaded with sand and wood-logs. The witnesses, Bhagiya Devi. PW 3, the wife. Dhanajay Kumar, PW 4. Sanjay Kumar. PW 1, the sons of the deceased, Sudama Prasad and many others villagers witnessed the occurrence but out of fear they left the place. The motive alleged for the occurrence was the dispute with regard to Gairmazarua land situated in front of the house of the informant. The prosecution case further revealed that the accused. Ram Nandan and Ram Itar also participated in the commission of the crime. 4. The motive alleged for the occurrence was the dispute with regard to Gairmazarua land situated in front of the house of the informant. The prosecution case further revealed that the accused. Ram Nandan and Ram Itar also participated in the commission of the crime. 4. On 19.6.1995 at 5.30 a.m., S.I., U.S. Prasad, O/C of Noorsarai Police Station, the I.O. of this case, PW 9, recorded the fardbeyan (Ext. No. 4) of the informant, Kaushalya Devi in P.O. Village Horil Bigha, P.s. Noorsarai, District Nalanda. On the basis of her fardbeyan a formal FIR (Ext. No. 5) was drawn up and a case was registered .:nder Section 302 of the Indian Penal Code and Section 27 of the Arms Act against the six accused persons, namely, Suresh Prasad, Sudhir Prasad, Biru Mahto, Khemajeet Mahto, Ram Nandan and Ram Itar and Police switched over to the investigation of the case. PW 9, Uday Shankar Prasad, the I.O. of this case visited the P.O., prepared inquest report of the dead bodies of Sudama Prasad (Ext. No. 6) , Surendra Prasad (Ext. No. 6/1) and Virendra Prasad (Ext. No. 6/2) and sent them for post-mortem examination, he recorded the statements of the witnesses, obtained the postmortem reports and charge-sheeted all the six accused persons for trial. After cognizance and commitment of the case all the six accused persons were put on trial for the charges under Sections 302/149 of the Indian Penal Code and Section 27 of the Arms Act. In course of trial the accused, Khemajeet Mahto died and so the proceeding against him was dropped. The trial ultimately culminated in the conviction and sentence of the five accused-appellants as discussed above. 5. The defence case is that the appellants are quite innocent and have not committed any offence. The further defence of the appellants is that on the alleged date at 5 p.m. a panchayatee was being held in P.O. village in which the appellants, Sudhir Prasad and Biru Mahto. were also present. At about 7 p.m. the dacoits attacked the village and in course of dacoity they coinmitted the murder of all the three brothers, Surendra Prasad, Birdenra Prasad and Sudama Prasad. The informant encashed the situation and falsely implicated the appellants in this case. The defence examined four witnesses in support of its case. They. were also present. At about 7 p.m. the dacoits attacked the village and in course of dacoity they coinmitted the murder of all the three brothers, Surendra Prasad, Birdenra Prasad and Sudama Prasad. The informant encashed the situation and falsely implicated the appellants in this case. The defence examined four witnesses in support of its case. They. are Kameshwar Prasad, DW 1, Anil Kumar, DW 2, Ashok Kumar, DW 3 and Shital Mahto, DW 4. 6. The prosecution examined altogether nine witnesses to substantiate the charges against the appellants. PW 1, Sanjay Kumar, PW 4, Dhanajay Kumar are the sons and PW 3, Bhagiya Devi is the wife of the deceased, Sudama Prasad. PW 5, Suchitra Kumari is the daughter, PW 7, Kaushalya Devi, the informant is the wife and PW 8, Jitendra Kumar is the son of the deceased, Surendra Prasad. PW 2 is Dr. Ram Kumar Prasad who conducted autopsy on the dead body of the deceased, Surendra Prasad and Sudama Prasad. PW 6 is Dr. Daya Nand Prasad who onducted autopsy on the dead body of the deceased, Birendra Prasad and PW 9, Uday Shankar Prasad, is the I.O. of this case. 7. The defence has also not challenged the fact that Surendra Prasad, Birendra Prasad and Sudama Prasad died homicidal death after sustaining fire arm injuries on their persons. The ocular evidence coupled with the medical evidence let in by the prosecution also shows that they died homicidal death. 8. The evidence of PW 2, Dr. Ram Kumar Prasad is that on 19.6.1995 at 12.30 p.m. he conducted autopsy on the dead body of Sudama Prasad and found the following ante-mortem injuries : (i) On lacerated wound with black inverted margin of size 1/2" x 1/2" x muscle deepover right lateral and lower neck (wound of entry). (ii) One lacerated wound with everted margin over left back of shoulder of size 3/4" x 1" x muscle deep (wound of exit). On dissection both the wounds were found communicating to each other. Rigor mortis was found present on both upper and lower limbs. In his opinion the death was caused due to haemorrhage as a result of above noted injuries caused by fire arm such as pistol. The above injuries were dangerous to life and were sufficient for instantaneous death. The time elapsed since death and post-mortem examination held was found within 12 hours. In his opinion the death was caused due to haemorrhage as a result of above noted injuries caused by fire arm such as pistol. The above injuries were dangerous to life and were sufficient for instantaneous death. The time elapsed since death and post-mortem examination held was found within 12 hours. He proved the post-mortem report (Ext. No. 1). On the same day, i.e., 19.6.1995 at 1.15 p.m. he conducted autopsy on the dead body of the deceased, Surendra Prasad and found the following ante-mortem injuries on his person : (i) One lacerated wound with black and inverted margin over right side of chest at the level of nipple 1" x 3/4" x cavity deep (wound of entry). (ii) One lacerated wound with overted margin over the left posterrior auxiliary line below the angle of the left scapula of size 1" x 1" x cavity deep (wound of exit). On dissection both the lungs and heart were found lacerated. There was fracture on right interrior 5th rib and fracture on 7th rib left posterrior. In his opinion the death was caused due to shock and haemorrhage due to the above noted injuries caused by fire arm such as pistol. The time elapsed since death and postmortem examination held was found within 24 hours. He proved the post- mortem report (Ext. No. 1/1). The above injuries were fatal to life and were sufficient to cause instantaneous death. In cross-examiantion he has stated that the did not find any foreign element in the dead body of both the deceased. PW 6 is Dr. Daya Nand Prasan. On 19.6.1995 at 12.45 p.m. he conducted autopsy on the dead body of Birendra Prasad and found the following ante-mortem injuries : External.1/2" x 1/2" x cavity deep lacerated charred margin inverted over back near waist over lower lumbar area (wound of entry). On internal examination he found blood and blood clots in abdominal cavity and left side pelvic structure was found lacerated. According to him the cause of death was shock and haemorrhage due to above noted injuries caused by fire arm. The injuries were sufficient to cause death in ordinary course. The time elapsed since death and post-mortem examiantion held was found within 24 horus. One meltalic bullet was recovered from the pelvic s truclure which was sealed and handed over to the accompanying constable. He proved the post-mortem report (Ext.No. 1/2). The injuries were sufficient to cause death in ordinary course. The time elapsed since death and post-mortem examiantion held was found within 24 horus. One meltalic bullet was recovered from the pelvic s truclure which was sealed and handed over to the accompanying constable. He proved the post-mortem report (Ext.No. 1/2). In cross examiantion he has stated that charred injury suggested that shot had been fired from close range possibly within a feet. 9 Now coming to the ocular evidence I find that the prosecution has examined six witnesses. Out of them PW 1, Sanjay Kumar, the son of the deceased, Sudama Prasad has claimed to be an eye-witness to the actual occurrence. He has stated that at the alleged time while he was at the handpipe by the side of his house, he heard the sound of two firing shots. In the mean time he noticed all the six accused persons with pistols alongwith 2/4 unknowns appeared at the house of Surenda Prasad. The appellant, Suresh Prasad, shot dead Surendra Prasad and the appellant. Sudhir Kumar, shot dead Virendra Prasad. They also chased him for committing murder but he fled away and in the following morning returned to the P.O. village Horil Bigha. He found the dead body of his father lying on the tractor in between village Horil Bigha and Ajaipur. In cross-examination at para 14 he has clearly stated that he had not seen any person firing their fire arms. In such a situation he does not appear to be an eye-witness to the actual occurrence of commission of murder of Surendra Prasad and Virendra Prasad. The Court below also rejected his direct evidence on the ground that at the alleged time he was washing his mouth at the hand-pump situated towards east across the lane running north to east opposite to his house. The house of Surendra Prasad was situated adjacent west to the house of Sudama having 18 feets high walls, so this witness could not have seen the accused persons committing the crime. PW 3, Bhagiya Devi, the wife of the deceased, Sudama Prasad is also not an eye-witness to the occurrence. Her evidence is that on hearing the sound of firing when she came out of her house she heard from the deceased Surendra and Brind (Birendra) that they were shot at by the accused-appellants, Suresh and Sudhir respectively. PW 3, Bhagiya Devi, the wife of the deceased, Sudama Prasad is also not an eye-witness to the occurrence. Her evidence is that on hearing the sound of firing when she came out of her house she heard from the deceased Surendra and Brind (Birendra) that they were shot at by the accused-appellants, Suresh and Sudhir respectively. She saw injury on the chest of Surendra and on the waist of Birendra. When she went to Ahra of Village Ajaipur she found the dead body of her husband lying on tractor having fire arm injury on his neck. She also found all the six accused persons armed with pistols alongwith others present there. PW 4, Dhanajay Kumar, the son of the deceased, Sudama Prasad is also not an eye-witness to the occurrence. His evidence is that on hearing the sound of firing he came out of his house. He found that all the six accused persons having pistols in their hands alongwith 3/4 unknowns were fleeing towards south after coming out of the house of his uncle, Surendra Prasad. He went at the house of his uncle, Surendra Prasad and heard from him that he was shot at by the accused, Suresh. Surendra Prasad was lying injured on the ground having fire arm injuries on his chest. He also heard from Birendra that he was shot at by the accused, Sudhir. He saw fire arm injury on his waist. He also learnt from his mother,. Bhagiya Devi, PW 3 that his father was also murdered by the accused persons and then found the dead body of his father near the tractor. PW 5, Suchita Kumari, is the daughter of the deceased, Surendra Prasad. On the day of her evidence she was aged 9 years, so she the ground that her evidence lacks credibility because at trial she could not identify her uncle-appellant, Suresh Prasad, present in dock. It may be mentioned here that PW 5, Suchita Kuamri. being a child witness the trial Court should have taken more than ordinary care in the matter of identification of the appellant, Suresh Prasad by this witness. Admitted position is that the appellant, Suresh Prasad, is the own uncle of this child witness, so, his non-identification in Court by her was only mistaken in view of her clear evidence that her father was murdered by her uncle, appellant Suresh. Admitted position is that the appellant, Suresh Prasad, is the own uncle of this child witness, so, his non-identification in Court by her was only mistaken in view of her clear evidence that her father was murdered by her uncle, appellant Suresh. This witness appears to be a star witness of the prosecution. It has to be borne in mind that the deceased was her father and his murderer, Suresh Prasad, one of the accused, happened to be her uncle. This witness has no hostility to speak the murder of her father by the appellant. Therefore, there is no reason for this witness to falsely implicate her own uncle and connect him to the brutal murder of her father. Thus, this witness is an eye-witness to the occurrence, PW 7, Kaushalya Devi, is the informant. Her evidence is that in the evening of 18.6.1995 she alongwith her husband, Surendra Prasad, dewar Birnedra Prasad, daughter, Suchita Kumari, PW 5, sons Jitendra Kumar PW 7 and Manish Kumar, was in the house under construction. Her husband watered the walls of the house and was keeping the pipe in the courtyard. In the meantime the accused Suresh Mahto, Biro Mahto, Sudhir Mahto, Khemajit Mahto, Ramnandan Mahto and Ram Itar Mahto having pistols in their hands came there. The accused Suresh Mahto shot her husband dead. The accused, Sudhir Mahto fired at her dewar, Birendra Prasad which hit on his waist and he fell down on the ground. In no time, Bhagiya Devi, PW 3, also came there and informed her that accused persons also committed murder of her husband, Sudama Prasad. Birendra Prasad died while he was taken to the hospital. She has further stated that the accused persons committed the crime because of the land dispute. In the following morning police came, recorded her fardbeyan and she put her signature thereon, Ext. 2. In cross-examination she has stated that the accused had fired from a distance of one cubit and blood had fallen on the ground. She also found one cartridge near the dead body of her husband. On hulla villagers, namely, Bijendra Prasad, Krishnandan Mahto, Kameshwar Mahto, Mathura Singh, his wife and sister, arrived there. She further stated that she had handed over the cartridge to the police and was seized. She had also shown the police her blood-stained saree, petti cot, blause etc. She also found one cartridge near the dead body of her husband. On hulla villagers, namely, Bijendra Prasad, Krishnandan Mahto, Kameshwar Mahto, Mathura Singh, his wife and sister, arrived there. She further stated that she had handed over the cartridge to the police and was seized. She had also shown the police her blood-stained saree, petti cot, blause etc. She has further stated that accused Ram Itar Mahto and Ram Nandan Mahto are the sallas of accused Suresh. The house of deceased, Sudama was also under construction adjacent to her house. PW 8 Jitendra Kumar is the son of the deceased, Surendra Passed. He has stated that at the alleged time he was sitting alongwith his mother in his new house. His father and uncle Birendra Prasad were keeping the iron pipe in the courtyard. In the meantime, his uncles, Suresh Prasad and Sudhir Prasad, alongwith 5/6 persons came and Suresh Prasad shot dead his father. Then, the accused Sudhir Prasad fired shot at Birendra Prasad which hit on his waist and he fell down on the ground. On the outcry raised by him and his mother, Sanjay, Dhananjay and many other villagers came there. The injured, Birendra was moved to hospital but he died. He also came to know that his uncle, Sudama was murdered by his uncle Suresh Prasad. In cross-examination he has stated that in the following morning the police came and recorded his statement. He has admitted to have stated before the police that the accused Suresh and Sudhir both had come together at the place of occurrence. He has further stated that he had seen the empty cartridges near the dead body of his father. Darogaji seized the cartridges and prepared the seizure list. 10. PW 9, Uday Shankar Prasad is the Investigating Officer of this case. His evidence is that in the relevant night while he was on patrolling duty he heard about the occurrence of murder in P.O. Village Horilbigha. On the basis of this information he had Sanaha Entry No. 329, dated 19.6.1995 and he alongwith police party proceeded to the P.O. village. He proved the S.D. Entry No. 329, dated 19.6.1996 (Ext. No. 3). On 19.6.1995 he arrived at the P.O. village at 5.30 a.m. and recorded the fardbeyan of the informant, Kaushalya Devi, PW 7. Oh the basis of her fardbeyan, a formal FIR was drawn up (Ext. He proved the S.D. Entry No. 329, dated 19.6.1996 (Ext. No. 3). On 19.6.1995 he arrived at the P.O. village at 5.30 a.m. and recorded the fardbeyan of the informant, Kaushalya Devi, PW 7. Oh the basis of her fardbeyan, a formal FIR was drawn up (Ext. No. 5) and he took up the investigation of this case. He found the dead body of Sudama Prasad lying on a Kachchi Road of Ajaipur Horil Bigha Village and prepared the inquest report. He proved the inquest report (Ext. No. 6). He also found the dead body of Surendra Prasad lying in the angan of his new house under construction and prepared the inquest report (Ext. No. 6/1). He also found sufficient quantity of blood near the dead body of the deceased. He also found blood on the wall of the house under construction of the deceased, Surendra Prasad. At the P.O. he found the new houses of the three deceased brothers under construction which were adjacent to each other. He also found sufficient quantity of blood near the dead body of the deceased Sudama Prasad and on the baramadah of the deceased, Birendra Prasad. He seized the blood stained earth of all the three places and prepared a seizure list. The dead bodies of Surendra Prasad and Sudama Prasad were sent to Sadar Hospital for post-mortem examination. In course of investigation he came to know about the death of Birendra Prasad and then he went to the Hospital and prepared the inquest report of his dead body (Ext. No. 6/2). His dead body was also sent for post mortem examination. He examined the witnesses, Sanjay Kumar, Dhanajay Kumar and other witnesses. He obtained the post-mortem reports and after completing the investigation submitted charge-sheet. In cross examination his evidence is that he had not found any cartridges at the places from where he seized the blood stained earth. His attention was drawn to the statements of the witnesses recorded by him in course of investigation under Section 161, Cr PC. The witness, Bhagiya Devi, PW 3, had not stated before him that she heard from Birendra Prasad about his assault by the appellant, Sudhir. She voluntarily stated that Sudhir fired shot at Birendra Prasad. The informant, Kaushalya Devi, PW 7 had not produced her blood stained clothes like saree, blouse, petticote etc. before him. The witness, Bhagiya Devi, PW 3, had not stated before him that she heard from Birendra Prasad about his assault by the appellant, Sudhir. She voluntarily stated that Sudhir fired shot at Birendra Prasad. The informant, Kaushalya Devi, PW 7 had not produced her blood stained clothes like saree, blouse, petticote etc. before him. She had not named the appellants, Ram Nandan Prasad and Ram ltar Prasad with pistols in their hands either in her fardbeyan or in her further statement. 11. On the other hand, the defence case is that on the alleged date DW 1, Kameshwr Prasad, the Mukhiya of the Ajnaura Gram Panchayat alongwith Dalpati and Anil Prasad, DW 2 came to the P.O. village Horil Bigha for holding a panchayatee to settle the dispute in between Dhaka Mahto, the father of the appellant, Biru Mahto and his son, Ashok Mahto, DW 3. Panchayatee was started at 5 p.m. in which the appellants, Sudhir and Biru were also present. At 7 p.m. there was sound of firing and dacoits attacked the village. In course of commission of dacotiy they committed the murder of Surendra Prasad, Sudama Prasad and injured Birendra Prasad who subsequently died and not by the appellants. DW 2, Anil Kumar, DW 3, Ashok Kumar and DW 4, Shital Mahto, have come forward to support the defence version. 12. The learned counsel for the appellant, Suresh Prasad in Criminal Appeal No. 268 of 1999 submitted that out of the nine witnesses examined by the prosecution, three witnesses, PW 5, Suchita Kumari, PW 7, Kaushalya Devi, the informant and PW 8, Jitendra Kumar, are the eye-witnesses to the occurrence. PW 5, Suchita Kumari, failed to identify the appellant, Suresh Prasad in dock and the evidence of rest two eye-witnesses suffers from serious infirmities, so the trial Court should not have accepted their evidence for the conviction of the appellant. The learned counsel for the appellants, Biru Mahto and Sudhir Prasad @ Sudhir Mahto in Criminal Appeal No. 230 of 1999 argued that the trial Court failed to consider the defence case that at the time of panchayatee both the appellants were present and in course of which the sound of firing was heard. Sudama Prasad and Surendra Prasad were murdered and Birendra Prasad was injured by the dacotis and not by the appellants. Sudama Prasad and Surendra Prasad were murdered and Birendra Prasad was injured by the dacotis and not by the appellants. In this context a reliance has been piaced on the case of Dudhnath Pandey, Appellant v. The State of U.P., Respondent, Reported in AIR 1981 SC 911 . In this case it has been held that "defence witnesses are entitled to equal treatment with those of the prosecution. And, Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses." An appraisal of the above cited case reveals that the plea of alibi of the accused was found true and was accepted by the Court. This is not the position in the present case. The evidence of DW 1, Kameshwar Prasad, the Mukhiya, indicates that he informed all the matter to the police but neither any documentary evidence nor his statement before the police was brought on the record. If there was dacotiy in P.O. village, Dw 1, Kameshwr Prasad, the Mukhiya, should have informed the matter to any police officials, District Magistrate or any other responsible authority which is lacking in this case. This being the position the plea of alibi of these two appellants cannot be at par with the plea of alibi of the accused in the above referred case. The trial Judge was rightly justified in not accepting the plea of alibi. Learned counsel for the appellants, Ram Nandan Prasad and Ram Itar Prasad, in Criminal Appeal No. 274 of 1999, contended that their names were added in this case because of their relationships with the appellant, Suresh Prasad as brother-in- law. Their presence have been shown in the FIR without weapon but it was developed at the stage of trial. There is no evidence to show that they were at any time members of the unlawful assembly and had shared the common object of committing murder of Surendra Prasad and Birendra Prasad. Both these appellants were introduced at the stage of trial with fire arms to make them members of unlawful assembly without any overt act. 13. There is no evidence to show that they were at any time members of the unlawful assembly and had shared the common object of committing murder of Surendra Prasad and Birendra Prasad. Both these appellants were introduced at the stage of trial with fire arms to make them members of unlawful assembly without any overt act. 13. On the other hand, learned counsel for the State contended that it is clearly established from the prosecution evidence that both these appellants were the member of unlawful assembly throughout the entire incidents, so the trial Court rightly convicted them under Section 302 with the aid of Section 149, IPC. A reliance has been placed on the case of Yunis alias Kariya, Appellant v. The State of Madhya Pradesh Reported in (2003) 1 SCC 425 , wherein it has been held that "absence of overtact on the part of one of the accused is immaterial when his presence as part of unlawful assembly is established." Learned counsel for the State further contended that the evidence of all the eye witnesses is consistent on all particulars and the prosecution has fully proved its case against all the five appellants. 14. In the light of the above discussed evidence and rival contentions of the parties now it is to be determined whether the prosecution has been able to prove its case against all the appellants beyond all reasonable doubts. In this case, incident took place on 18.6.1995 at 7 p.m. in which there was a brutal murder of three brothers, Surendra Prasad, Birendra Prasad and Sudama Prasad at the hands of their own brother- appellant, Suresh Prasad and others. The appellants. Suresh Prasad. Biru Mahto, Sudhir Prasad with pistols in their hands alongwith the appellants, Ram Nandan Prasad and Ram Itar Prasad and 8/10 unknowns appeared at the Darwaja of the informant, Kausahalya Devi, the informant. The appellant, Suresh Prasad, shot dead Surendra Prasad and the appellant, Sudhir Prasad fired from his pistol at Birendra Prasad which hit above his waist and he died on way to hospital. They also committed the murder of Sudama Prasad, the bhisur of the informant. The other two eye-witnesses, PW 5, Suchita Kumari and PW 8, Jitendra Kumar also saw the entire occurrence and fully corroborated the evidence of the informant. They also committed the murder of Sudama Prasad, the bhisur of the informant. The other two eye-witnesses, PW 5, Suchita Kumari and PW 8, Jitendra Kumar also saw the entire occurrence and fully corroborated the evidence of the informant. PW 5, Suchita Kumari, the daughter of the deceased, Surendra Prasad clearly stated that her uncle, Suresh Prasad, the appellant committed the murder of her father. So there is no ground to reject her testimony because of non-identification of the appellant, Suresh Prasad by her in dock. PW 8, Jitendra Kumar, has categorically stated that at the alleged time he was sitting alongwith his mother in his new house. His father and uncle, Birendra Prasad were keeping the iron pipe in the court yard. In the mean time his uncle, Suresh Prasad and Sudhir Prasad alongwith 5/6 persons came and Suresh Prasad shot dead his father. The accused Sudhir Prasad fired at Birendra Kumar causing injury on his waist and he subsequently died. He also came to know that his uncle Sudama Prasad was murdered by the accused persons. The medical evidence suggests that all the three deceased died of the injuries caused by fire arm such as pistol. On visit of the P.O., the I.O., Uday Shankar Prasad, PW 9, found sufficient quantity of blood fallen at the place of occurrence. He seized the blood stained earth but no seizure list was produced in this case. Non-production of the seizure list will not affect the prosecution case. All these witnesses have been crossed examined at length and they have remained unshaken. The discussed evidence any circumstances pointed out by. the defence does not shake the root of the prosecution case. It is very difficult to believe that the dacoits would select only three brothers and committed their murder in course of commission of dacoity. 15. A perusal of the FIR clearly reveals that the names of the appellants, Ram Nandan Prasad and Ram Itar Prasad were added. Their presence in the FIR has been shown without any weapon in their hands but at the stage of trial they were introduced having pistols in their hands. 15. A perusal of the FIR clearly reveals that the names of the appellants, Ram Nandan Prasad and Ram Itar Prasad were added. Their presence in the FIR has been shown without any weapon in their hands but at the stage of trial they were introduced having pistols in their hands. In the FIR, the informant clearly stated at first that the accused Sudhir, Suresh, Biru with pistols appeared at the darwaja of the informant and committed the murder of Surendra and Birendra was injured, Later on he stated that the appellants, Ram Nandan Prasad and Ram Itar Prasad were also present. Thus, it is apparent that these two appellants never constituted any unlawful assembly and shared the common object for committing the murder of the deceased. In this context, I refer the case of Musakhan and others, Appellants v. The State of Maharashtra, Respondent, reported in AIR 1976 SC 2566 wherein it has been held that "it must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stage, but at all the crucial stage and shared the common object of the assembly at all these stages." In such a situation, the appellants, Ram Nandan Prasad and Ram Itar Prasad, are entitled to get the benefit of doubt and I acquit them of the charges under Sections 302/149 of the IPC. The appellant Biru Mahto has been convicted under Sections 302/149 of the IPC. On account of acquittal of the appellants, Ram Nandan Prasad and Ram Itar Prasad, of the charge under Sections 302/ 149 of the IPC the constitution of the unlawful assembly by them fails. Now the question is whether the appellant Biru Mahto can be convicted under Section 302/34 of the IPC. The FIR coupled with the ocular evidence indicates that this appellants, Biru Mahto, was present alongwith the main assailants Sudhir Prasad and Suresh Prasad at the relevant hour of the occurrence. No overtact whatsoever, has been attributed to this appellant. At the same time, there is nothing on the record to suggest that the appellant Biru Mahto shared any common intention with the assailants of the deceased. In the circumstance, this appellant Biru Mahto cannot also beheld guilty for the charges under Section 302/ 34 of the IPC and he is acquitted of the charges framed against him. 16. At the same time, there is nothing on the record to suggest that the appellant Biru Mahto shared any common intention with the assailants of the deceased. In the circumstance, this appellant Biru Mahto cannot also beheld guilty for the charges under Section 302/ 34 of the IPC and he is acquitted of the charges framed against him. 16. On the basis of the discussions I find that the prosecution has proved its case against appellants, Sudhir Prasad @ Sudhir Mahto and Suresh Prasad beyond all reasonable doubts. The conviction recorded by the Court below against both these two appellants requires no intererence by this Court. 17. In the result, Cr. Appeal No. 274/ 99 is allowed. The order of conviction and sentence passed against the appellants Ram Nandan Prasad and Ram Itar Prasad is set aside. They are on bail, so, they are ordered to be discharged from the liability of their executed bail bonds. Cr. Appeal No. 230/99 is allowed in part. The order of conviction and sentence passed against the appellant, Biru Mahto, is set aside. He is on bail, so, he is ordered to be discharged from the liability of his executed bail bond. As regards the appellant, Sudhir Prasad @ Sudhir Mahto, the order of conviction and sentence passed against him is confirmed. He is in custody, so he will serve out the imposed sentence. Cr. Appeal No. 268/99 is dismissed. The order of conviction and sentence passed against the appellant, Suresh Prasad, is confirmed. He is in custody, so, he will serve out the sentence imposed upon him. Decided accordingly.