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2008 DIGILAW 857 (CAL)

Kanai Mardi v. STATE OF WEST BENGAL

2008-08-22

G.C.Gupta, P.S.Datta

body2008
JUDGMENT: 1. THIS appeal is directed against a judgment dated 2nd January 1995 passed by the learned Additional Sessions Judge, Raiganj, Uttar Dinajpur, in Sessions Trial No. 12 of 1994 arising out of Sessions Case No. 80 of 1993 by which the appellants were convicted for the offences punishable under sections 148, 302 read with section 149 IPC as also under section 326 read with section 149 of the IPC and were sentenced by an order dated 6th January 1995 to imprisonment for three years for the offences punishable under section 148 of the IPC. They were also sentenced to suffer imprisonment for life as also to pay a fine of Rs. 2000/- each, in default to suffer rigorous imprisonment for two years each for the offences punishable under section 302 IPC and were also sentenced to suffer rigorous imprisonment for 10 years as also to pay a fine of rs. 1000/- each, in default to suffer rigorous imprisonment for one year each for the offence punishable under section 326 IPC. All these sentences were directed to run concurrently. The amount of fine, if realized, was directed to be paid to the heirs of the deceased Dhirendra Nath Mondal. 2. BRIEFLY stated the facts and circumstances of the case are as follows:-On 11th January 1989 at about 4 P. M. Dhirendra Nath Mondal was assaulted in the house of his uncle Mahadeb Mondal. In order to save his life he ran from the house of Mahadeb. He entered the house which previously belonged to him but of-late had been sold by him. He was chased and killed thereafter. A written complaint was lodged by Ananda Mohan Roy, a witness, within less than 5 hours. The distance of the police station is about 17 kilometers from the place of occurrence. The eyewitnesses examined in this case claimed to have unsuccessfully tried to rescue the deceased. They could not save him but got beaten up in the process. The written complaint was lodged against 12 accused persons specifying their names. Reference was also made to others meaning thereby that besides those 12 persons there were others who had participated in the assault. 15 persons were charged. Out of them 8 persons were acquitted and the rest 7 were convicted, as more fully indicated above, who have come up in appeal. Reference was also made to others meaning thereby that besides those 12 persons there were others who had participated in the assault. 15 persons were charged. Out of them 8 persons were acquitted and the rest 7 were convicted, as more fully indicated above, who have come up in appeal. From the evidence of the Autopsy Surgeon, it appears that the deceased was most cruelly put to death. Following injuries, according to him, the deceased had suffered:- "1) One lacerated wound 1"" X "" bone fracture in two pieces over right jaw with 2" lateral to midline. 2) One lacerated wound "" X 1/8" muscle deep 1" above. 3) One lacerated would 1x "" bone fracture on the right side of the face over zygoma. 4) Incised would 1"x "" muscle deep on the lateral side of the right eye. 5) One echymosis 1"x "" on the palmer surface of left hand near wrist. 6) One lacerated wound longitudinal like 2" " X "" bone deep on the head about 4" and behind the left ear. 7) 1" incise injury wound 3" X "" into muscle deep on the back of lower part of right ankle cutting large vain. 8) Fracture of almost all teeth with laceration of gum. 9) One echymosis 3"x1" on the left side of abdomen along coastal margin. Extravasion of blood seen in the soft tissues, chest wall and abdomen. It is the wound incised 3"x ""x muscle deep on the back of lower part of right side of chest. This injury I saw is the injury on the back side. I have special training in postmortem is the training for 6 months. I have no special degree for postmortem" p. Ws. 1,2,3,5 and 7 were the eyewitnesses. From the suggestions given to the prosecution witnesses it appears that a tank known as Bokapukur was claimed by the assailants to have been in their possession whereas the deceased had also staked claim with regard thereto. He had also prevented the assailants from fishing in that pond. The assault it appears commenced in the house of P. W. 2 Mahadeb. The victim ran for his life, entered the courtyard of the house which he previously owned and had lately sold out which has commonly been referred to as Dhiren's house. He had also prevented the assailants from fishing in that pond. The assault it appears commenced in the house of P. W. 2 Mahadeb. The victim ran for his life, entered the courtyard of the house which he previously owned and had lately sold out which has commonly been referred to as Dhiren's house. His dead body was found in the courtyard of that house under a jackfruit tree where the inquest took place. The exact location is illustrated by the sketch map marked ext. 10 which read with the inquest report, marked ext. 5, makes it clear that from the house of Mahadeb the deceased had run for life in the northeast corner of his house which he had lately sold out. In the courtyard he was put to death. 3. MR. Dastoor, learned Advocate, appearing in support of the appeal, submitted that during the pendency of the appeal the fourth appellant Madan, 6th appellant Rengta and the 7th appellant Renza died. The records reveal that on 4th September an order was passed directing an enquiry into the matter and a report with regard thereto was called for. From the report furnished by the learned CJM, Uttar Dinajpur, it appears that the police had confirmed the death of those three appellants after an enquiry. As regards the merits of the matter the learned Counsel appearing in support of the appeal made the following submissions:- a) First he submitted that the first place of occurrence which is the house of mahadeb (P. W. 2) has not been mentioned in the written complaint which according to him is an omission of an important fact and casts serious doubt as regards the veracity of the case of the prosecution. We are not impressed by this submission. The written complaint contains a fair account of what happened. The written complaint is not an encyclopaedia. Mr. Dastoor in support of this submission cited the decision in the case of ram Kumar Pandey vs. State of M. P. reported in 1975 (3) SCC 815 . In this case in the FIR Joginder was alleged to be the eyewitnesses whereas he was not. The name of the assailant Harbinder was also not mentioned in the FIR. The other witnesses examined by the prosecution as eyewitnesses to the incident were also not referred to in the FIR. In this case in the FIR Joginder was alleged to be the eyewitnesses whereas he was not. The name of the assailant Harbinder was also not mentioned in the FIR. The other witnesses examined by the prosecution as eyewitnesses to the incident were also not referred to in the FIR. It is in those circumstances that Their Lordships held that "omission of such important fact affecting the probabilities of the case are relevant under section 11 of the Evidence Act in judging the veracity of the prosecution case". It may at once be pointed out that in the case before us the assailants have duly been mentioned in the FIR and the names of the eyewitnesses have also been disclosed. Therefore this case is clearly distinguishable and has no manner of application to the case before us. In the case of State of U. P. vs. Ballav Das reported in AIR 1985 SC 1384 it was held that "fir is not intended to be a very detailed document and is meant to give only the substance of evidence made and therefore the absence of the mention of a lathi would not put the prosecution case out of Court". In the case of Baldev Singh and Anr vs. State of Punjab reported in JT 1995 (SC) 286 the following view was taken:- stated briefly, the FIR is not a substantive piece of evidence, it is only relevant in judging the veracity of prosecution case and the value to be attached to it depends on the facts of each case. Only the essential or broad picture need be stated in the FIR and all minute details need not be mentioned therein. It is not a verbatim summary of the prosecution case. It need not contain details of the occurrence as if it were an "encyclopaedia" of the occurrence. It may not be even necessary to catalogue the overtact acts therein. Non-mentioning of some facts or vague reference to some others are not fatal. b) The second submission advanced by Mr. Dastoor was that the FIR was antedated. The FIR appears to have been lodged on 11th January 1989 at 20. 45 hrs. but the defacto complainant the P. W. 1 in his evidence deposed that on 11th january 1989 he accompanied by other injured persons went to the Itahar Public health Center and there from he was referred to the Raiganj hospital. The FIR appears to have been lodged on 11th January 1989 at 20. 45 hrs. but the defacto complainant the P. W. 1 in his evidence deposed that on 11th january 1989 he accompanied by other injured persons went to the Itahar Public health Center and there from he was referred to the Raiganj hospital. On the next day he took leave of the hospital authority and went to Itahar P. S. to make his Ijahar at about 8 A. M. The written complaint, on the basis of which the formal FIR was drawn, it appears was scribed by Brojendra Kr. Biswas (P. W. 10). The written complaint was filed by Ananda Mohan Roy (P. W. 1 ). It is surprising that not one question with regard to this discrepancy was put to the P. W. 1 ananda. The formal FIR was drawn by the P. W. 11. He deposed that the written ijahar was received by him on 11th January 1989. He thereafter set out for the place of occurrence. Even he was not asked any question in this regard. The written complaint is, in fact, dated 11th January 1989. The cross-examination of the P. W. 10 was declined. We are under the circumstances of the view that the p. W. 1/defacto complainant may have made a mistake as to the date when the written complaint was lodged by him or he may have called to the P. S. on the following day for his examination under section 161 Crpc which he referred to as the purpose of lodging the written complaint. c) The third submission made by Mr. Dastoor was really a development upon the second submission. According to him the police reached the place of occurrence in the evening of 11th January 1989 that is to say on the day of occurrence itself but no statement was recorded. What Mr. Dastoor meant was that the statement of the defacto complainant was recorded by the police on 12th January 1989 whereas the police had been to the place of occurrence on 11th January 1989. There was thus enough scope for the police to record the statement of the defacto complainant. The police instead chose to record the statement of the defacto complainant on 12th January 1989 and deliberately ante-dated the same. We are unable to accept this submission. There was thus enough scope for the police to record the statement of the defacto complainant. The police instead chose to record the statement of the defacto complainant on 12th January 1989 and deliberately ante-dated the same. We are unable to accept this submission. The written complaint contains an endorsement that it was received at 20. 45 hrs. on 11th January 1989. On that basis a formal FIR was drawn, PS Case No. 10 dated 11th January 1989 was started which has also been reflected in the seizure list prepared on 11th January 1989 itself. Neither the defacto complainant nor the scribe P. W. 10 was asked a single question with regard to this anomaly now sought to be capitalised by the learned counsel. Even the I. O. (P. W. 11) who received the written complaint was not cross-examined on this aspect of the matter. The fact that the police reached the place of occurrence instantaneously lends assurance to the Court that the written complaint was lodged on 11th January 1989. Our attention was not drawn to any other information on the basis of which police had reached the P. O. with a definite case number which is reflected in the seizure list prepared on 11th January 1989. 4. MR. Dastoor in support of his submission cited a judgment in the case of sevi and Anr. Vs. State of Tamil Nadu reported in AIR 1981 SC 1230 which is clearly distinguishable. In this case the Trial Court had acquitted 8 accused persons. In an appeal by the State the High Court maintained the acquittal of three accused persons but convicted rest 5 persons acquitted by the Trial Court. The case of the defence was that the original FIR had been substituted by a new one which the defence proved under section 114 (g) of the Evidence Act. There were other infirmities seriously eroding the case of the prosecution. It is in those circumstances that Their Lordships held as follows:- "the First Information Report book is supposed to be at the Police station House all the time. There were other infirmities seriously eroding the case of the prosecution. It is in those circumstances that Their Lordships held as follows:- "the First Information Report book is supposed to be at the Police station House all the time. If the Sub-Inspector is not satisfied on the information received by him that a cognizable offence has been committed and wants to verify the information his duty is to make an entry in the general diary, proceed to the village and take a complaint at the village from someone who is in a position to give a report about the commission of a cognizable offence. Thereafter, the ordinary procedure is to send the report to the Police Station to be registered at the Police Station by the Officer Incharge of the Police Station. But, indeed, we have never come across a case where the Station House Officer has taken the First Information Report Book with him to the scene of occurrence. According to the suggestion of defence the original First Information report which was registered was something altogether different from what has now been put forward as the First Information Report and that the present report is one which has been substituted in the place of another which was destroyed. To substantiate their suggestion the defence requested the Sessions judge to direct the Sub-Inspector to produce the First Information Report Book in the Court so that the counterfoils might be examined. The Sub-Inspector was unable to produce the relevant FIR Book in Court notwithstanding the directions of the Court. The FIR book, if produced, would have contained the necessary counterfoils corresponding to the FIR produced in Court. The Sub-Inspector when questioned stated that he searched for the counterfoil book but was unable to find it, an explanation which we find impossible to accept. We cannot imagine how any FIR Book, can disappear from a Police Station. Though he claimed that relevant entries had been made in the general diary at the Station the Sub-Inspector did not also produce the general diary in Court. The production of the general diary would have certainly dispelled suspicion. In the circumstances we think that there is great force in the submission of the learned counsel for the accused that the original FIR has been suppressed and, in its place some other document has been substituted. If that is so, the entire prosecution case becomes suspect. The production of the general diary would have certainly dispelled suspicion. In the circumstances we think that there is great force in the submission of the learned counsel for the accused that the original FIR has been suppressed and, in its place some other document has been substituted. If that is so, the entire prosecution case becomes suspect. All the eyewitnesses are partisan witnesses and notwithstanding the fact that four of them were injured we are unable to accept their evidence in the peculiar circumstances of the case. Where the entire evidence is of a partisan character impartial investigation can lend assurance to the Court to enable it to accept such partisan evidence. But where the investigation itself is found to be tainted the task of the Court to sift the evidence becomes very difficult indeed. Another feature of the case which makes us doubt the credibility of the witnesses is the photographic and somewhat dramatic account which they gave of the incident with minute details of the attack on each of the victims. According to the account of the witnesses it was as if each of the victims of the attack came upon the stage one after the other to be attacked by different accused in succession, each victim and his assailant being followed by the next victim and the next assailant. Surely the account of the witnesses is too dramatic and sounds obviously invented to allow each witness to give evidence of the entire attack. But the witnesses themselves admit in cross-examination that they were all attacked simultaneously. If so, it was impossible for each of them to have noticed the attack on everyone else. One other important feature of the case which remains unexplained by the prosecution witnesses is the injrues found on a4. According to A4 the prosecution party came to his house and attacked him and the prosecution party were injured in that incident, suggesting thereby that he acted in exercise of his right of private defence. He, however, excludes the presence of the other accused. Whether his version is true or not, the fact remains that he did sustain some injuries which have remained unexplained. Having regard to all these special features of this case we do not think that the High court was justified in setting aside the acquittal of the appellants and convicting them. " d) The fourth submission made by Mr. Whether his version is true or not, the fact remains that he did sustain some injuries which have remained unexplained. Having regard to all these special features of this case we do not think that the High court was justified in setting aside the acquittal of the appellants and convicting them. " d) The fourth submission made by Mr. Dastoor was that the inquest report suggests that the inquest was conducted on 12th January 1989 in the morning at 7 A. M. whereas the shoes, socks and wearing apparels of the deceased appear to have been already seized on 11th January 1989 by the seizure list marked ext. 3/2. This submission of Mr. Dastoor appears to be factually correct. The P. W. 11 in his cross-examination admitted this fact which reads as follows:-"i seized the canvas shoes of deceased and his shockings from the P. O. I seized the same on 11. 1. 89 at about 22. 35 hrs. In the inquest report it is mentioned that the deceased had the shoes on his feet and shockings also. I seized lungies at P. O. but it is mentioned that this belonged to the deceased. " In the case of H. N. Rishad vs. State of Delhi reported in AIR 1955 SC 196 Their lordships relying on the decision of the Privy Council held as follows:- "if, therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the court for trial is well settled as appears from the cases in " "prabhu v. Emperor", AIR 1944 PC 73" and ""lalbhardar Zutshi v. The King", AIR 1950 PC 26 (D ). " 5. MR. Dastoor added that the P. Ws. 3 and 5 both deposed that the inquest was held on the date of occurrence and they too were at the place of occurrence itself and thereafter the dead body was taken to the police station whereas the inquest report being ext. " 5. MR. Dastoor added that the P. Ws. 3 and 5 both deposed that the inquest was held on the date of occurrence and they too were at the place of occurrence itself and thereafter the dead body was taken to the police station whereas the inquest report being ext. 4 goes to suggest that the inquest was held at the place of occurrence on 12th January 1989 at 7 A. M. Mr. Dastoor submitted that the apparent anomaly is irreconcilable rendering the case of the prosecution seriously doubtful. It is true that both the P. Ws. 3 and 5 deposed that the body of the deceased Dhiren was shifted to the police station on the date of occurrence itself. They did not depose anything as to when was the inquest was held. But we are inclined to think that the inquest was, in fact, held on 11th January 1989 itself. The P. W. 11 who held the inquest, as a matter of fact, in his evidence stated that "inquest was held on 11. 30 p. M. on 11th January 1989". He however corrected himself by saying that the inquest was held on 12th January 1989 at 6. 4 A. M. Why was the inquest report dated 12th january 1989 is however a mystery. The I. O. initially told the truth that the inquest was held on 11th January 1989 at 11. 30 P. M. but realizing that the inquest report was dated 12th January 1989 he corrected himself. After the inquest was held the wearing apparel of the deceased were seized by the police on 11th January 1989. We have not been given any clue by the learned counsel as to how does this fact render the case of prosecution unbelievable. We are trying to ascertain whether the crime was committed by the convicts. This inquiry is not in the least affected either way by the fact that inquest held on 11th January 1989 was shown by the police to have been held on 12th January 1989. This irregularity does not tend to establish or probabilise that the conviction is bad. Reference in this regard may also be made to the decision in the case of State of U. P. vs. Bhagwat Kishore reported in AIR 1964 SC 221 . f) The fifth submission made by Mr. This irregularity does not tend to establish or probabilise that the conviction is bad. Reference in this regard may also be made to the decision in the case of State of U. P. vs. Bhagwat Kishore reported in AIR 1964 SC 221 . f) The fifth submission made by Mr. Dastoor was that the P. W. 5 Kartick Mondal deposed that the deceased Dhiren had sold out the house where his mortal remains were lying. Mahendra and his wife then were residing thereat. Mr. Dastoor contended that Mahendra and his wife would have been the natural witnesses to this occurrence but neither of them was called to give evidence. It is true that Mahendra and his wife would have been the natural witnesses to the incident provided they were present at the time of occurrence, at home and had witnessed the incident. There is nothing on the record to show that Mahendra and his wife or anyone of them was present during the occurrence and therefore the mere fact that they were not called by the prosecution to depose in this case cannot be viewed with any amount of seriousness. No such suggestion was given to any of the witnesses of the prosecution either. Mr. Dastoor in support of his submission cited a decision in the case of iswar Singh vs. State of U. P. reported in 1976 (4) SCC 355 . In this case 9 eyewitnesses were named in the FIR but at the trial only 4 of them were examined. Ghanashyam who had played a very important role was not at all examined. Nahar, an independent witness, was also held back. It is in those circumstances that the Court held that "witnesses essential to the unfolding of the narrative on which the prosecution is based must be examined". In the present case there is no knowing whether Birendra, Mahendra and the wife of Mahendra were actually present in their house when the incident took place. There is thus no scope to apply the ratio in the case of Iswar Singh to the case in hand. g) The sixth submission made by Mr. Dastoor was that although four eyewitnesses were claimed to have been grievously hurt in the same transaction in which the deceased died but no medical evidence with regard thereto was tendered. It is true that no medical evidence with regard thereto was tendered. g) The sixth submission made by Mr. Dastoor was that although four eyewitnesses were claimed to have been grievously hurt in the same transaction in which the deceased died but no medical evidence with regard thereto was tendered. It is true that no medical evidence with regard thereto was tendered. We are, as a matter of fact, wholly in the dark as to the nature of the injury suffered by the four eyewitnesses. This is a lacuna insofar as the conviction of the accused persons under section 326 of the Indian Penal Code is concerned. h) The seventh submission advanced by Mr. Dastoor was that two of the accused persons were also injured but the prosecution has not explained as to how did the accused persons suffer the injury. Mr. Dastoor wanted us to draw an inference that the place of incident must have been somewhere else. This by no means is a natural inference. Mr. Dastoor relied on the evidence of the prosecution witnesses when he submitted that two of the accused persons were injured. There is no independent or other evidence with regard thereto. The injury which two of the accused persons received, in our opinion, establishes the case of the prosecution because the evidence is that the P. W. 1 Ananda, P. W. 2 Mahadeb, p. W. 3 Suresh and the P. W. 5 Kartick ran to rescue the victim Dhiren. They could not rescue him but were wounded in the process. It is therefore likely that in their attempt to rescue the victim they had inflicted the injuries on the accused persons. 6. MR. Dastoor in support of his submission cited a judgment in the case of laxmi Singh vs. State of Bihar reported in AIR 1976 SC 2263 . In this case the injuries suffered by the accused were not explained by the prosecution witnesses. The accused persons took the defence that they had acted in exercise of the right of private defence. It is in those circumstances that Their Lordships applied the views taken in the case of Mohar Rai reported in AIR 1968 SC 1281 where in the following view was taken:- "in our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate wholly true. Further those injuries probablise the plea taken by the appellant". In that judgment Their Lordships also referred to the judgment in the case of State of Gujarat vs. Bifathima reported in AIR 1975 SC 1478 wherein it was held that there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case at all. It would therefore appear that omission to explain the injuries found on the person of the accused is a circumstance which could be pressed into service provided it probabilies the case of the defence. In the present case the accused persons have not taken any such or other plea except that they were not guilty. Even the circumstances of the case do not show that any right of private defence was exercised. The circumstances in the present case go to show that the accused persons armed with lethal weapons broke in upon the unarmed victim and killed him. i) The eighth submission advanced by Mr. Dastoor was that the charge framed against the accused persons does not identify the place of occurrence. Mr. Dastoor however did not indicate any prejudice which may have been suffered by the accused persons arising out of the omission highlighted by him. It is now well settled that a defect in the charge in the absence of prejudice is not of much significance. j) The ninth submission advanced by Mr. Dastoor was that the defacto complainant the P. W. 1 although in the written complaint disclosed names of 12 accused persons but during his deposition he failed to identify some of them by name. According to the learned Counsels this goes to show that the evidence of the p. W. 1 and the written complaint filed by him might not be true. We are unable to accept this submission. The P. W. 1 at the time of giving evidence might not have recollected names of all the accused persons but he identified all of them. He did not identify anyone who was not named by him in the written complaint. We are under the circumstances unable to attach any importance to this submission. k) The tenth submission of Mr. Dastoor was that the FIR, the seizure list, the inquest report are all doubtful documents. He did not identify anyone who was not named by him in the written complaint. We are under the circumstances unable to attach any importance to this submission. k) The tenth submission of Mr. Dastoor was that the FIR, the seizure list, the inquest report are all doubtful documents. There is no certainty as to whether they were prepared on the date and time on which they purport to have been prepared. We already have dealt with this submission of Mr. Dastoor and need not reiterate. l) Commenting upon delay in the production of the FIR before the learned magistrate for signature Mr. Dastoor relied upon the case of Balaka Singh and Ors. Vs. State of Punjab reported in 1975 SCC (Cri) 601 and submitted that the appellants may have been falsely implicated. In the case of Balaka Singh the court was satisfied as regards the false implication of at least 4 persons who had been acquitted by the High Court. It is in this backdrop of the matter that the delay in sending the FIR to the Illaka Magistrate was held to be a circumstance reinforcing the weakness of the case of the prosecution. Mr. Dastoor has not been able to highlight any such circumstance in the case in hand and therefore the mere delay of about 24 hrs. in sending the FIR to the concerned Magistrate cannot be become material. Reference in this regard may also be made to the judgment in the case of AN Venkatesh and Anr. Vs. State of Karnataka reported in 2005 SCC (Cri) 1938 wherein the following view was expressed:- "while it is true that section 157 Crpc makes it obligatory on the Officer-in-Charge of the police station to send the information to the Magistrate forthwith but that does not mean an imply to denounce and discard an otherwise positive and trustworthy evidence on record". Moreover in the present case the FIR goes to show that it was forwarded to the learned Magistrate's Court with utmost promptness. Why was the same signed by the learned Magistrate on the following day is certainly not a circumstance which could have been explained by the investigating officer. Mr. Moreover in the present case the FIR goes to show that it was forwarded to the learned Magistrate's Court with utmost promptness. Why was the same signed by the learned Magistrate on the following day is certainly not a circumstance which could have been explained by the investigating officer. Mr. Dastoor also relied on the judgment in the case of Balaka Singh for the proposition that omission on the part of the investigating agency to send the bloodstained earth to the FSL for chemical examination goes to weaken the case of the prosecution. In this judgment no such proposition was laid down. The omission to send the bloodstained earth was pressed into service to show that the defence version could be true. Before us there is no defence version. Moreover in the case of Raghunandan vs. State of U. P. reported in AIR 1974 SC 463 it was held that omission to send the blood sample for chemical analysis is not fatal if the evidence is sufficient and reliable. 7. LASTLY Mr. Dastoor cited a judgment in the case of Ram Charan vs. State of u. P. reported in AIR 1968 SC 1270 wherein the following view of the Nagpur high Court was upheld. "we are of the opinion that if a statement of a witness is previously recorded under section 164, Criminal Procedure Code, it leads to an inference that there was a time when the police thought the witness may change but if the witness sticks to the statement made by him throughout, the mere fact that his statement was previously recorded under section 164 will not be sufficient to discard it. The Court, however, ought to receive it with caution and if there are other circumstances on record which lend support to the truth of the evidence of such witness, it can be acted upon. " We fail to see how does this judgment have any manner of application to the facts and circumstances of the case in hand. It is true that most of the witnesses examined by the prosecution had made a statement under section 164 of the Code of criminal Procedure. Not one example was cited before us wherein the witnesses examined in Court may have deviated from their statement under section 164 Crpc contemporaneously made. We have thus dealt with all the submissions of Mr. Dastoor. Not one example was cited before us wherein the witnesses examined in Court may have deviated from their statement under section 164 Crpc contemporaneously made. We have thus dealt with all the submissions of Mr. Dastoor. After scanning the evidence in great detail we are of the view that the learned Trial Court took detail a reasonable view in the facts and circumstances of the case and there is no scope for interference. The appeal is as such dismissed. 8. THE appellants were enlarged on bail by an order dated 19th April 1995. The surviving appellants are directed to surrender to the bail at once and to serve out the rest of the sentence passed by the learned Trial Court. The estate of the deceased appellants is liable for payment of the amount of fine for recovery of which the learned Trial Court is directed to take steps unless the amount of fine is deposited within 6 weeks from date. The surviving appellants are notified of this order through their counsel. The learned trial Court is directed to take steps for apprehension of the surviving appellants at once and to report back compliance. Lower Court Records with a copy of this judgment be sent down forthwith to the learned Trial Court for information and necessary action. Urgent xerox certified copy of this judgment, if applied for, be delivered to the learned Counsel for the parties, upon compliance of all formalities.