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2004 DIGILAW 188 (ALL)

STATE OF U P v. MATA PRASAD DUBEY

2004-01-30

M.C.JAIN, ONKARESHWAR BHATT

body2004
M. C. JAIN, J. Three accused respondents Mata Prasad Dubey,kripa Shankar Dubey and Pankaj Rai faced trial before the 1st Additional Sessions Judge, Azamgarh in S. T. No. 212 of 1986 under Section 302 read with Section 34 I. P. C. for the double murder of Babu Ram Rai and Ajit Kumar Rai. The trial having resulted in acquittal, the State has come up in appeal against the impugned judgment 20. 8. 1994, passed by Sri Shital Singh. 2. The incident occurred in between the night of 15/16th December, 1985 at about 11 p. m. in village Haraiya, Police Station Jeanpur, district Azamgarh and the F. I. R was lodged on 16. 12. 1985 at 1. 50 a. m. by Ram Pyare Rai son of the deceased Babu Ram Rai. Ajit Kumar Rai, the other victim, was the son of the informant. Babu Ram had died at the spot whereas Ajit Kumar Rai died on 27. 12. 1985 at 10. 30 p. m. in B. H. U. Hospital. The two victims were sleeping on a cot covering themselves by a guilt on their tube-well near their house and the door of the tube-well was open. The three accused respondents reached there. They sprinkled petrol over them and set them afire. Catching fire, the two victims tried to run away, but the accused Mata Prasad Dubey gave Lathi blow on the head of Babu Ram Rai due to which he fell down. The other victim Ajit Kumar Rai was also pushed and felled down. The cries of the two victims attracted the informant Ram Pyare Rai PW 1 his brother-in-law Hriday Narain Singh who was staying there, Ram Shabad Rai, Sita Ram Rai and informants wife Smt. Sushila Devi as also Smt. Sharda Devi PW 2 wife of Musafir Singh who had also stayed there in the night. These persons and few others reached there flashing their torches and recognised the accused respondents when they were coming out of the tube-well. They unsuccessfully chased them. The two victims had been burnt severely. The informant and witnesses extinguished the fire and were also shouting aloud the names of the accused respondents as the perpetrators of the crime. The two victims crying with pain, were also naming the three accused as the culprits. They unsuccessfully chased them. The two victims had been burnt severely. The informant and witnesses extinguished the fire and were also shouting aloud the names of the accused respondents as the perpetrators of the crime. The two victims crying with pain, were also naming the three accused as the culprits. Ram Pyare Rai PW 1 wrote down the F. I. R. and went to the Police Station where he lodged it. The two victims were also taken to the Police Station. Both of them were sent to the District Hospital, Azamgarh but soon on arrival, Babu Ram Rai succumbed to his burn injuries. The other victim Ajit Kumar Rai was examined by Dr. M. N. Pandey PW 4 on 16-12-1985 at 3-10 a. m. There were 1st, 2nd and 3rd degree burns over his chest, face, abdomen, arms, hands, back, legs and feet over about 70% of the body. The clothes were smelling kerosene. Skin was peeled at places and blisters scattered all over. The injuries could possibly by caused in between the night of 15/16th December, 1985 at about 11 p. m. 3. Autopsy on the dead body of Babu Ram Rai was conducted by Dr. Kuldeep Sagar on 16-12-1985 at 3- 30 p. m. He was aged about 70 years and had died in District Hospital, Azamgarh on 16-12-1985 at 3-10 a. m. There were 5 lacerated wounds including on above left ear with underlying bone fractured, on left parietal bone with underlying bone fractured, besides 2nd and 3rd degree burns. The cause of death was shock as a result of excessive burns and fracture of skull bones. 4. Ajit Kumar Rai having died in University Hospital, B. H. U. at 10-30 p. m. on 27-12-1985, post mortem over his dead body was conducted by Dr. C. B. Tripathi PW 7 on 28-12-1985 at 3 p. m. There were dermo epidermal burns over back and both sides of trunk, right side abdomen and chest, both shoulders, both upper limbs (except for few patches), both buttock and both lower limbs (except for few patches ). The death had occurred due to septicemia as a result of burn wounds. He was aged about 10 years. 5. The investigation in the case was conducted by Chhedi Lal Yadav PW 5. 6. The defence was of denial. 7. The death had occurred due to septicemia as a result of burn wounds. He was aged about 10 years. 5. The investigation in the case was conducted by Chhedi Lal Yadav PW 5. 6. The defence was of denial. 7. In support of its case, the prosecution in all examined 10 witnesses out of whom Ram Pyare Rai PW 1 and Smt. Sharda Devi PW 2 wife of Musafir Singh were claimed to be the eye-witnesses having reached the spot on the shouts of the victims and having recognised the accused respondents coming out of the tube-well after perpetrating this crime. The prosecution also relied upon the dying declaration of the deceased Ajit Kumar Rai recorded by Executive Magistrate Lal Ji Singh PW 6 on 16-12-1985 at 4-45 p. m. The accused respondents also examined 8 witnesses in defence. The defence was two fold: Firstly,they tried to prove that there was no electricity in the village at the time of occurrence and as such there was no opportunity or occasion to anyone to recognise the accused respondents at the scene of occurrence. Secondly, the accused Kripashanker tried to prove that he was hospitalized earlier to the incident and had undergone an operation of hernia and was not present at the spot. 8. The learned trial Judge disbelieved the eye-witness account as well as dying declaration of the Ajit Kumar Rai and acquitted the accused respondents, causing grievance to the State. 9. We have heard Sri M. C. Joshi, learned A. G. A. from the side of State in support of the appeal and Sri G. S. Chaturvedi, learned Counsel for the respondents in opposition thereof. We have also carefully scrutinized the evidence on record. The learned trial Judge disbelieved the informant Ram Pyare Rai PW 1 and Sharda Devi PW 2 in toto as also the dying declaration of the deceased Ajit Kumar Rai. We have also carefully scrutinized the evidence on record. The learned trial Judge disbelieved the informant Ram Pyare Rai PW 1 and Sharda Devi PW 2 in toto as also the dying declaration of the deceased Ajit Kumar Rai. The reason assigned for discarding the testimony of the said two witnesses recorded in the impugned judgment is that thought they were not present at the tube-well since before the start of the incident, but before the court their version was also to the effect that when they reached the door of the tube-well on hearing shrieks, they saw that the accused respondents Kripa Shankar Rai and Pankaj @ Kamla Kant were standing there with lathis and Mata Prasad Dubey was hurting Babu Ram Rai with lathi inside the Kothari of the tube-well who was burning and fluttering with pain. It was also stated by them that Ajit Kumar Rai wanted to run away but Kripa Shankar pushed him inside. The statement of Sharda Devi PW 2 was criticized that she, too, stated that Babu Ram and Ajit Kumar Rai were writhing and screaming with pain while burning. Kripa Shankar and Pankaj accused respondents were exhorting and Mata Prasad was striking lathi blows on Babu Ram inside the Kothari of the tube-well. The learned trial Judge observed that their version was based on conjectures and surmises. Such statements were allegedly afterthought improvements to prove their presence at the scene of occurrence. Since both of them had reached together at the scene of occurrence, none of them could be believed because of the facts spoken by them on the basis of conjectures and surmises. Their presence, according to him, at the spot was highly doubtful because the accused respondents would not have been fools enough to remain present at the scene of occurrence after committing the crime to be seen and recognised by the witnesses. 10. Their presence, according to him, at the spot was highly doubtful because the accused respondents would not have been fools enough to remain present at the scene of occurrence after committing the crime to be seen and recognised by the witnesses. 10. The dying declaration of the deceased recorded by the Executive Magistrate Sri Lal Ji Singh PW 6 on 16-12-1985 was discarded on the ground that the Doctor who had allegedly given certificate regarding his fit medical condition to make dying declaration was not produced; that after the incident and before the recording of dying declaration the said Ajit Kumar Rai injured remained in constant company of his father, mother and other prosecution witnesses as also many other persons and it was only at the time of recording his dying declaration by Sri Lal Ji Singh PW 6 that they were asked to go out of the room. So, the chances of tutoring could not be ruled out altogether. 11. The dying declaration was also criticized on the ground that he was fast asleep in the winter month of December when inflammable was poured on him and his grand-father and they were set ablaze. He awoke only after flames caught him but he stated that the accused respondents had poured kerosene on them and set them afire. He inferred thereby that this part of his dying declaration was based on imagination and the same could not be safely relied upon. 12. On careful consideration, we are of firm opinion that the trial Judge proceeded with wrong approach in appreciating the evidence of Ram Pyare Rai PW 1 and Sharda Devi PW 2 as he was determined to discard their testimonial assertions in toto on flimsy grounds. It appears as if he was searching for imaginary flaws to discard them in entirety. It has to be kept in mind that the incident took place on a wintry night in the immediate neighbourhood of the dwelling house of Ram Pyare Rai PW 1. The tube- well the scene of occurrence, where two unfortunate persons were sleeping was situated nearby at stone throwing distance. Ram Pyare Rai PW 1 was the most natural witness who could very well reach the spot on hearing the screams of his father and son which were naturally bound to come out from them while burning. The tube- well the scene of occurrence, where two unfortunate persons were sleeping was situated nearby at stone throwing distance. Ram Pyare Rai PW 1 was the most natural witness who could very well reach the spot on hearing the screams of his father and son which were naturally bound to come out from them while burning. Smt. Sharda Devi PW 2 also gave a plausible explanation for her presence at the spot as that night she had gone to give wool to Sadhna Rai daughter of Ram Pyare Rai PW 1 and stayed at the house Ram Pyare Rai PW 1. She stated before the Court that her own village was at a distance of 3 Kms. from the village of occurrence. There was nothing surprising if she had stayed in the night at the house of the complainant where she had gone to hand over certain quantity of wool to his daughter Sadhna Rai. She had no enmity with the accused respondents and could not be imputed any motive to make a false statement against them. The reaching of these two witnesses at the spot on hearing the shrieks of the victims while burning was natural and quite probable. 13. It has to be kept in mind that brain does not have separate compartments for storing actual observations and imaginary impressions. It has also to be observed that the principle of falsus in uno falsus in omnibus is not applicable in India. In each case, it is the duty of the court to appreciate the evidence to see as to what extent it is worthy of acceptance and merely because in one respect the court considers it insufficient to rely on the testimony of a witness, it does not necessarily follow as a matter of law that it must be discarded in all respects. True,the statement of the two witnesses named above to the effect other than that they had seen the accused persons coming out of the tube well and running away could not be safely relied upon because they were not there right from the start of the incident with the pouring of inflammable liquid on the victims and setting them afire by the accused respondents. But it did not justify the rejection of their testimony in toto. But it did not justify the rejection of their testimony in toto. The court was duty bound to separate the chaff from the grain to see as to what extent it was worthy of acceptance. It was a fact that they had reached the spot on hearing the screams of the victims and found them ablaze while accused respondents were leaving the tube-well. Naturally, the flames would have produced flood of light facilitating the recognition of the accused respondents by them. Since they saw the accused respondents coming out of the tube-well and running away, they also stated before the court that they had set the victims ablaze. It was a fact established by the dying declaration of the deceased. Narration of the incident also depends on the power of description of a man which differs from individual to individual. Some are capable to make use of more appropriate phraseology and selective words than others. It was for this reason that these witnesses happened to make statement in respect of certain facts which they had not observed with their own eyes. Taking the worst, one hardly comes across a witness whose evidence does not contain a grain of untruth, exaggeration, improbabilities or embellishments, but that does not relieve the court from its duty to separate the acceptable truth from the rest and to act on the former while rejecting the latter. The court is not supposed to adopt the convenient and easy course to discard the testimony of the witnesses by examining the same in a pedantic manner to find justification for recording acquittal as has been done in the instant case by the trial court. We, therefore, accept this part of the testimony of Ram Pyare Rai PW 1 and Smt. Sharda Devi PW 2 that when they had reached the tube-well immediately on hearing the screams of the burning victims (which must have been instantaneous on their catching fire), they had very well seen them running from the tube-well. It was an important piece of evidence pointing to their guilt that actually it were they who had set ablaze the two unfortunate victims. 14. Leaving aside the statement of Ajit Kumar Rai recorded under Section 161 Cr. It was an important piece of evidence pointing to their guilt that actually it were they who had set ablaze the two unfortunate victims. 14. Leaving aside the statement of Ajit Kumar Rai recorded under Section 161 Cr. P. C. by the Investigating Officer, there was no justification for throwing over board his dying declaration recorded by the Executive Magistrate Sri Lal Ji Singh PW 6 on 16- 12-1985 between 4-15 p. m. and 4-45 p. m. At the time of recording of dying declaration, a Doctor had certified that he was fully conscious and capable of making the dying declaration. A certificate to this effect was recorded on the dying declaration before recording it and after it was recorded. True, the Doctor could not be examined at the trial and Sri Lal Ji Singh PW 6 admitted that he did not write the Doctors name on the dying declaration, but he categorically stated that the Doctor was present at that time and had given that certificate. It did not make any difference that due to oversight or carelessness, the name of the Doctor was not written either by him or by the Doctor himself below his signature on the dying declaration. That might be the reason for the prosecution having been unable to produce him at the trial. The statement of Executive Magistrate is there in emphatic terms that the declarant was fully conscious when he made the declaration. Indeed, he was an uninterested person who could hardly have any motive to be a party to concoct a fictitious dying declaration. In the case of Ram Bai v. State of Chhatisgarh, 2003 (1) JIC 93 (SC) : JT 2002 (8) SC 3, the dying declaration was not accompanied by the Doctors certificate. The Supreme Court held that the dying declaration could not be deemed to be invalid on this ground alone when the person recording the dying declaration was satisfied that the declarant was in a fit mental condition. In an earlier case of Koli Chuni Lal Savji and another v. State of Gujarat, 1999 (39) ACC (SC) 835, the Supreme Court relied upon the dying declaration recorded by a Magistrate on which certification by Doctor was absent and the Doctor was also not present when dying declaration was recorded. In an earlier case of Koli Chuni Lal Savji and another v. State of Gujarat, 1999 (39) ACC (SC) 835, the Supreme Court relied upon the dying declaration recorded by a Magistrate on which certification by Doctor was absent and the Doctor was also not present when dying declaration was recorded. The present cast stands on a better footing because here as per the statement of the Executive Magistrate Sri Lal Ji Singh PW 6, the Doctor was very much present throughout the recording of dying declaration and even recorded certificate to this effect that the declarant was in perfect mental condition before and during recording of the same. The Magistrate himself was also satisfied that the declarant was mentally fit to make the dying declaration. 15. The reasoning adopted by the trial Judge to discard it on another ground that the declarant remained in constant company of his family members and others since after the incident and before making the dying declaration and the possibility of tutoring was there,is not acceptable. The mere possibility did not mean that he was actually tutored. At the time of actual recording of the dying declaration, all others had been asked to go outside as is borne out from the testimony of Executive Magistrate Sri Lal Ji Singh PW 6. Ajit Kumar Rai actually died on 27-12-1985. The incident took place in between night of 15/16th December, 1985 and the dying declaration was recorded on 16-12- 1985 during 4-15 p. m. and 4-45 p. m. Naturally, at that time, he was in precarious condition and nobody knew at that time whether he would remain alive or die. The attention of his family members and all around would have naturally been concentrated in his proper treatment to save his life, if possible. It would be preposterous to surmise that at that critical juncture his family members and relatives, ignoring this important aspect of his best treatment, had concentrated on tutoring him to make a false dying declaration against the accused respondents. We are not prepared to believe that the dying declaration, made by the deceased Ajit Kumar Rai was attributable to his alleged tutoring. The learned trial Judge fell in error in so surmising. 16. The learned counsel for accused respondents assailed the dying declaration with the reasoning that at the time of his medical examination by Dr. We are not prepared to believe that the dying declaration, made by the deceased Ajit Kumar Rai was attributable to his alleged tutoring. The learned trial Judge fell in error in so surmising. 16. The learned counsel for accused respondents assailed the dying declaration with the reasoning that at the time of his medical examination by Dr. M. N. Pandey PW 4 on 16-12-1985 at 3-10 a. m. he was found in semi-conscious condition. Sri G. S. Chaturvedi arguing for accused respondents to the statement of the said Doctor that because of semi conscious condition, at that time he was not in a position to make a statement and for that reason, he had not recorded his dying declaration. It is to be pointed out at the risk of repetition that the dying declaration was recorded by Sri Lal Ji Singh PW 6 on 16-12-1985 between 4-15 p. m. and 4-45 p. m. The boy ultimately died on 27-12-1985. The semi conscious condition of the boy could turn into consciousness with the passage of time after the lapse of few hours. At the time of his first medical examination by Dr. M. N. Pandey PW 4 on 16-12- 1985 at 3-10 a. m. his agony was at the peak. The categorical statement of an independent witness, i. e. , the Executive Magistrate Sri Lal Ji Singh PW 6 has to be believed that the boy was fully conscious and in a fit mental condition when he made the dying declaration to him. We, therefore,reject the argument advanced by Sri Chaturvedi in an attempt to assail the dying declaration of the boy in question. 17. Sri Chaturvedi then attacked the dying declaration on the ground that the flames had caught him even on the book including buttocks and that he would not have been in a position to get up from the cot where he was lying at the time of the alleged incident of burning. He reasoned that in this view of the matter, there could be no possibility of his being able to see and recognize the perpetrators of the crime. He also urged that part of his dying declaration was based on his imagination and the spontaneity thereof was, therefore, under cloud. He reasoned that in this view of the matter, there could be no possibility of his being able to see and recognize the perpetrators of the crime. He also urged that part of his dying declaration was based on his imagination and the spontaneity thereof was, therefore, under cloud. He urged that at the start of the dying declaration he stated that at about 11 p. m. when he and his grand-father were sleeping on a cot, the accused respondents, Kripa Shankar, Matul alias Mata Prasad and Pankaj came there; that they first sprinkled kerosene over them and then set them afire. He then stated that he and his grand-father woke up when the flames caught them with the burning of guilt and then both of them got up and tried to run away and Matul accused respondent pushed hid grand-father into fire again and hit him with a lathi. He also stated that he gave a lathi blow on his hand also and pushed him in the fire. Sri Chaturvedi argued that since he was fast asleep and woke up only when the flames touched his body with the burning of guilt, this part of his statement was based on imagination only that the accused respondents had gone over there and had set him and his grand-father afire after sprinkling kerosene on them. We are not at all impressed by the reasoning suggested by the learned counsel for the respondents. The instinct of self-preservation is strongest in all living beings, what to say of human beings. With the pouring of inflammable liquid by the accused respondents, the same could trickle down to the backside also of the boy in no time and the flames resulting from the fire set by the accused respondents could cause burn injuries on the back side also. But that does not mean that the boy was pinned down to the cot or wholly incapacitated to get up raising shouts as a natural reaction to the burning in which he was suddenly engulfed. So far as the alleged imaginary statement in the dying declaration is concerned, it would be pertinent to state that immediately on getting up, the boy saw the accused respondents to be there and he, therefore, conceived them to be the perpetrators of the crime. So far as the alleged imaginary statement in the dying declaration is concerned, it would be pertinent to state that immediately on getting up, the boy saw the accused respondents to be there and he, therefore, conceived them to be the perpetrators of the crime. In this light, this part of his statement cannot be made the subject matter of criticism that they had sprinkled kerosene on him and his grand-father and set them ablaze. His conviction and impression in this behalf was fortified by the subsequent conduct also of the accused respondents that one of them had hit his grand-father with lathi and had pushed him in fire again. All the three accused respondents kept both of them surrounding to make sure that they were not able to escape. The dying declaration has to be read and interpreted as a whole in a logical and reasonable manner and not in hypertechnical way to find fault with it seeking justification to reject it so as to give clean chit to the accused respondents. 18. Sri Chaturvedi then urged that after accomplishing their job, the accused respondents would not have stayed at the spot to provide an opportunity either to the victims or to the witnesses to recognize them. We do not find any force in this submission. After pouring inflammable liquid on the victims and setting them afire, the accused respondents were to ensure that their mission or object had materialized and the victims were not able to get away. They were also to be there to experience a sadistic pleasure of their beastly act of setting ablaze the victims. 19. The getting up of the boy from the cot on catching flames was instantaneous and so was the arrival of Ram Pyare Rai PW 1 and Smt. Sharda Devi PW 2 from the house of Ram Pyare Rai PW 1 which was quite close by. These witnesses could reach the spot in no time on hearing the painful screams of the two victims. Maximum damage had by then been done by the accused respondents and they made their escape good so as not to be apprehended by the approaching witnesses. 20. These witnesses could reach the spot in no time on hearing the painful screams of the two victims. Maximum damage had by then been done by the accused respondents and they made their escape good so as not to be apprehended by the approaching witnesses. 20. We should also make a short discussion that the defence evidence about the absence of electricity light at the time of the incident and as regards the plea of alibi raised by the accused respondent Kripa Shanker was not worthy of belief. The statements of Ram Pyare Rai PW 1 and Smt. Sharda Devi PW 2 were there that a bulb was glowing inside the tubewell and another one outside. The Investigating Officer had also taken two bulbs in his possession which were so glowing at the spot, vide Fard Ex Ka-6. Though the accused respondents examined a number of witnesses to question the availability of light, but the original log book maintained by S. O at Electricity Sub- station was not produced before the Court for the alleged reason that it was lost or misplaced. There was no proof regarding non- supply of electricity in the village of the informant at the relevant time. The loss of the original log book had also not been proved according to law. The statements of the two witnesses, namely Ram Pyare Rai PW 1 and Smt. Sharda Devi PW 2 were perfectly believable that two electric bulbs bulbs were glowing inside and outside the tube-well room at the time of the incident. It is usual for the villagers to keep such places lighted during night to guard against untoward incidents. Otherwise also, flood of light came to be produced by the flames resulting from the fire set by the accused respondents. Therefore, there was no dearth of light at the spot to facilitate the recognition of the accused respondents by Ram Pyare Rai PW 1 and Smt. Sharda Devi PW 2 as also by the unfortunate boy Ajit Kumar Rai who happened to die after making the dying declaration. 21. Alibi, by its very nature, is of weak character. Accused respondent Kripa Shankar relied upon the testimony of DW 1 Diwakar Prasad, DW 2 Dr. K. K. Mal, DW 4 Qaifulbara Siddiqi and DW 5 Dr. R. S. Yadav to back his plea of alibi. It was there in the statement of DW 5 Dr. 21. Alibi, by its very nature, is of weak character. Accused respondent Kripa Shankar relied upon the testimony of DW 1 Diwakar Prasad, DW 2 Dr. K. K. Mal, DW 4 Qaifulbara Siddiqi and DW 5 Dr. R. S. Yadav to back his plea of alibi. It was there in the statement of DW 5 Dr. R. S. Yadav that Kripa Shankar was admitted in the District Hospital Deoria on 21-11-1985 and discharged on 29-11-1985. However, bed head ticket and indoor register relating to him were never produced before the court. DW 2 Dr. K. K. Mal stated that the accused respondent Kripa Shankar was admitted in P. H. C. Fazil Nagar, District Deoria on 7-12-1985 and discharged on 17-12-1985 and during this period he was under his watch and supervision. However, it could not be accepted on the basis of his testimony that he was keeping watch over him inside the ward throughout the night of 15-12-1985 and was constantly watching his movements. Earlier, he was allegedly operated for hernia whereafter he was allegedly discharged on 29- 11-1985. He was only aged about 35 years at the time of making statement under Section 313 Cr. P. C. on 18-11-1992. Hernia is not very complicated disease and it could not be accepted that after being discharged on 29-11-1985 he developed such serious complications that he became completely immobile and remained admitted in P. H. C. from 7-12-1985 to 17-12- 1985 i. e. for ten days. Even if it is accepted for the sake of argument that after allegedly undergoing hernia operation and being discharged on 29-11-1985, some post operational problem had arisen (though we do not believe it to be that in the absence of evidence), he would have consulted the Doctor of the District Hospital where he had been operated upon instead of getting confined in P. H. C. for unduly long period of 10 days. We have not the slightest hesitation to say that, in our opinion, he was banking upon a fictitious plea of alibi to get away from the consequences of the serious heinous crime committed by him by participating in burning two persons alive, both of whom happened to die. 22. We have not the slightest hesitation to say that, in our opinion, he was banking upon a fictitious plea of alibi to get away from the consequences of the serious heinous crime committed by him by participating in burning two persons alive, both of whom happened to die. 22. To come to a close, our conclusion based on the above discussion is that the learned trial Judge discarded the evidence of Ram Pyare Rai PW 1 and Smt. Sharda Devi PW 2 with a cursory approach without an in-depth analysis. He was unnecessarily and excessively obsessed by the aspect of doubt. On exaggerated devotion to this aspect giving free flight to whims, he recorded the erroneous finding of acquittal in favour of the accused respondents which cannot at all be sustained on a proper, judicious and dispassionate scrutiny of the evidence adduced by the prosecution, particularly the testimonial assertions of Ram Pyare Rai PW 1 and Smt. Sharda Devi PW 2 coupled by the dying declaration of the deceased Ajit Kumar Rai with which no fault could be found. It was proved to the hilt that the three accused respondents were the actual perpetrators of this crime. The offence was committed with deliberation in furtherance of their common intention by the accused respondents in which all of them actively participated. 23. Resultantly, we allow this appeal and reverse the finding of acquittal recorded by the learned trial Judge. We hold the accused respondents Mata Prasad Dubey, Kripa Shankar Dubey and Pankaj Rai guilty of the offence punishable under Section 302 I. P. C. read with Section 34 I. P. C. for committing double murder of Babu Ram Rai and Ajit Kumar Rai @ Bablu in a brutal way by burning them. We sentence each of them to undergo life imprisonment which is lesser of the two alternative punishments provided for the said offence. They are on bail. Their bail bonds are cancelled. They shall be taken into custody and lodged in jail to serve out the sentence awarded to them. 24. A certified copy of this order alongwith the record of the case be sent to the court below for compliance. Compliance report be submitted by the Chief Judicial Magistrate concerned to this Court within two months. Appeal allowed. .