JUDGMENT (Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL) 1. Cr. Appeal No. 557 of 2005 (D.B.) has been preferred by the sole appellant Bharosha Mistri against judgment of conviction dated 8.7.2005 and order of sentence dated 12.7.2005 passed by the learned Additional Sessions Judge, F. T. C., III, Jehanabad in Sessions Trial No. 197 of 2004 / 199 of 2004 and split up record 408 of 2004/ 221 of 2004 by which the appellant has been convicted and sentenced to rigorous imprisonment for life and a fine of Rs.10,000/- under Sections 302, 149 IPC, 27 of the Arms Act and 17 of Criminal Law (Amendment) Act and in default of payment of fine further rigorous imprisonment for two years. No separate sentence has been passed under Section 149 IPC, 27 of the Arms Act and 17 of Criminal Law (Amendment) Act. 2. The prosecution case, in brief, is that on 9.4.2003 at about 8 p.m. the informant Lorik Paswan was gossiping with his brother Bhorik Paswan. Asha Devi (pregnant wife of the informant) slept on the cot, his son Manoj Paswan aged about 10 years and his daughter Leela Kumari aged about 8 years slept on the blanket. In the meantime, a group of 50 persons of Ranbir Sena armed with weapons came towards the north side and surrounded his house. They were flashing torch on each other. In the light of torch the informant identified some of them. They started indiscriminate firing which caused death of his wife Asha, son Manoj Paswan and daughter Leela Kumari by firearms. They succumbed to the injuries on the place of occurrence itself. Informant escaped from there. The informant identified altogether 29 persons including the appellant who was armed with firearms. After making firing and killing wife, son and daughter of the informant, the members of mob went towards Nirakhpur and also made firing there. They were also making slogan “Ranbir Sena Jindabad”. Due to fear he could not go to the police picket to inform about the occurrence. The fard beyan (Ext. 1) of the informant has been recorded by S. I., G. P. Thakur (not examined) of Kinjar Police Station on 10.4.2003 at 5 a.m. at village Azad Nagar at the house of the informant, Police Station Kinjar, district Arwal. 3. Due to fear he could not go to the police picket to inform about the occurrence. The fard beyan (Ext. 1) of the informant has been recorded by S. I., G. P. Thakur (not examined) of Kinjar Police Station on 10.4.2003 at 5 a.m. at village Azad Nagar at the house of the informant, Police Station Kinjar, district Arwal. 3. On the basis of Fard beyan of the informant Kinjar P. S. Case No. 21 of 2003 dated 10.4.2003 was instituted against 29 persons named therein and 20-25 against unknown persons. After investigation charge-sheet was submitted, cognizance was taken and the case was committed to the Court of Sessions. The charges were framed against the co-accused Dayanand Sharma, Amit Sharma and Ashok Sharma on 28th July 2004 for the offence punishable under Sections 302, 149 IPC, 27 of the Arms and 17 Criminal Law (Amendment) Act. The charge against the appellant was framed on 11th December 2004 under the aforesaid sections in Sessions Trial No. 221 of 2004 on 23.12.2004. Sessions Trial No. 221 of 2004 was amalgamated with Sessions Trial No. 199 of 2004 as both the Session Trials arise out of Kinjar P. S. Case No. 21 of 2003; G. R. No. 597 of 2003 and no witness had been examined at that time. Since the accused denied the charge against them, the trial proceeded. After trial other accused Daya Nand Sharma, Amit Sharma and Ashok Sharma (in Sessions Trial No. 197 of 2004) have been acquitted by giving them the benefit of doubt and the appellant (in Sessions Trial No. 408 of 2004/221 of 2004) has been convicted and sentenced as aforesaid 4. The defence of the accused is that they have been falsely implicated in this case due to group rivalry which was prevailing in the district of Arwal such as P.W. G. (People’s War Group) and Ranbir Sena. It was also their defence that they have no concern either with P.W. G. or Ranbir Sena. 5. This Court is required to reappraise the prosecution evidence and to consider as to whether the prosecution has been able to substantiate its charge beyond shadow of all reasonable doubts. 6. The prosecution has examined the following witnesses to substantiate its charge:- P.W. 1 Dr. Deepak Kumar who has held autopsy on the dead body of Asha Devi, P.W. 2 Dr. 6. The prosecution has examined the following witnesses to substantiate its charge:- P.W. 1 Dr. Deepak Kumar who has held autopsy on the dead body of Asha Devi, P.W. 2 Dr. Dhirendra Prasad Singh, who has held the autopsy on the dead boy of Leela Kumari and Manoj Paswan, P.W. 3 Fula Devi is the mother of the informant, P.W. 4 Nathun Paswan is the father of the informant, P.W. 5 Gulab Chand Sah, P.W. 6 Shaligram Paswan, who has not supported the prosecution case and has been declared hostile. P.W. 7 is Manju Devi, the daughter of the informant. P.W. 8 is Budhan Paswan, who has also not supported the prosecution case and has been declared hostile. P.W. 9 is Chandradeo Paswan, who has also not supported the prosecution case and has been declared hostile by the prosecution. C. W. 1 Rajendra Prasad has proved the fard beyan (Ext. C/1). He has not stated anything about the occurrence, C. W. 2 Sri Ganesh Prasad Thakur is the investigating Officer of this case, and C W. 3 Asharfi Majhi is the police officer, who has submitted charge-sheet in this case and has not examined any witness. He has stated that charge-sheet was submitted in this case after 10 to 11 months of the date of occurrence. He has also stated that the informant and his brother Bhorik Paswan are accused in Kinjar P. S. Case No. 76 of 2003 dated 21.10.2003 under Section 302/34 IPC. Raid was made for the arrest of the accused Bhorik Paswan and Lorik Paswan who are witnesses in this case but they were found absconding. This report has been marked as Ext. C-2. 7. No defence witness has been examined on behalf of the appellant. 8. P.W. 1 Dr. Deepak Kumar while posted as Assistant Civil Surgeon, Jehanabad Sadar Hospital held autopsy on the dead body of Asha Devi aged about 35 years on 10.4.2003 at 4.20 P.M. and found the following anti-mortem injury on her person:- (i) lacerated wound ½” x ½” x abdominal cavity deep inverted margin on left back entry wound. (ii) lacerated wound 3” x 2” x abdominal cavity deep everted margin in epigah -region. Injury Nos. (i) and (ii) communicate with each other. On dissection Skull-brain matter intact and pale. Chest heart both chambers empty. Stomach full of gas and food materials present. (ii) lacerated wound 3” x 2” x abdominal cavity deep everted margin in epigah -region. Injury Nos. (i) and (ii) communicate with each other. On dissection Skull-brain matter intact and pale. Chest heart both chambers empty. Stomach full of gas and food materials present. Loop of small intestine lacerated at several places. Uterus raptured gravid-dead foetus (all organs developed). Urinary bladder-empty. Time elapsed since death 24 to 48 hours. Cause of death is haemorrhage and shock due to above injuries caused by firearm. The post-mortem report is Ext. 1. 9. P.W. 2 while posted as Assistant Civil Surgeon, Civil Hospital Jehanabad held post-mortem on the dead body of Leela Kumari aged about 9 years on 10.4.2003 at 3.30 P.M. and found the following ante mortem injuries on her person:- (i) lacerated wound ½” x ½” thoracic cavity deep on right lower part of back of chest margin inverted. (ii) lacerated wound 7” x 5” x abdominal cavity deep at right upper part of anterior wall of abdomen and margin everted. Wound shows liver coils of intestine and part of stomach- all visualized from outside. Injury no. (i) communicates with injury no. (ii). On dissection- chest right lower lung is intact and lacerated. Left lung is pale. Heart-both chambers empty and abdomen is distended and distended coils and air is gushed out. Liver is lacerated and pale. Spleen and kidneys pale. Stomach contains food materials. Bladder empty. Uterus is non-gravit. Cause of death is haemorrhage and shock due to above injuries caused by fire arms. Time elapsed since death was within 48 hours. The post-mortem report has been marked as Ext. 1/1. He has also held post-mortem examination on the dead body of Manoj Paswan 12 years male child on the same date at 3.50 p.m. and found the following ante-mortem injuries:- (i) Lacerated wound 1” x ½” x muscle deep at left inguinal region in middle and margin inverted and blackening around. (ii) Lacerated wound 4” x 3” x muscle deep at lt. buttock region with margin everted. Injury No. (i) communicates with injury no. (ii). On dissection- there is fracture of left hip joint clotted blood. Abdomen is distuded and removing out of gas and dilated coils and intestine. Stomach contains food material, Liver pale, spleen, Kidney pale, Bladder empty. Cause of death is haemorrhage and shock due to above injuries caused by firearms. Injury No. (i) communicates with injury no. (ii). On dissection- there is fracture of left hip joint clotted blood. Abdomen is distuded and removing out of gas and dilated coils and intestine. Stomach contains food material, Liver pale, spleen, Kidney pale, Bladder empty. Cause of death is haemorrhage and shock due to above injuries caused by firearms. Time elapsed since death was within 48 hours. Post-mortem report has been marked as Ext. 1 / 2. 10. P.W. 3 has stated that on the date and time of occurrence she was serving food to her husband. The accused came to the house of Manoj Paswan (deceased). She heard the noise of firing. She hid herself and saw that Bharosa Mistri (appellant) shot fire at Asha Devi, Manoj Paswan and Leela. She also saw Bara Sharma, Parmanand Paswan, Pannu Sharma. There were also 50 other persons to whom she did not identify. After killing the victims they raised slogan “Ranbir Sena Jindabad”. She has identified all the accused. In her cross-examination, she has stated that it was moonlit-night. Her house is 20 cubits from the house of Manoj. She was serving food to her husband. Small children were also present in the house. She has further stated that her statement was taken by the police. She also stated that the noise of firing was also coming from the palm tree which is near the house of Manoj. 11. P.W. 4 has also supported the prosecution case and has stated that at the time of occurrence he was taking meal. The noise of firing was coming out from the house of Lorik Paswan. He came to know that Asha Devi, Leela and Manoj were killed. Bharosa Mistri, Jitendra Singh, Parma Paswan, Yugesh, Pawan Singh, Bara were identified by him. In his cross-examination, he has stated that the noise of firing was coming from northern side of his house which continued for about an hour. He has further stated that his village is affected by extremists. Lorik is his son. He lives separate from him having different way of living. Sidheswar Sharma was murdered. It is not a fact that Lorik is an accused in several cases of murder. 12. P.W. 5 is Gulab Chand Sah. He has stated that at the time of occurrence there was firing. Lorik is his son. He lives separate from him having different way of living. Sidheswar Sharma was murdered. It is not a fact that Lorik is an accused in several cases of murder. 12. P.W. 5 is Gulab Chand Sah. He has stated that at the time of occurrence there was firing. He came out from his house and saw that the grand daughter of Nathan (P.W. 4) was escaping towards him. He hid himself. There was hulla that Manoj Paswan, Asha Devi and Leela were murdered. He did not identify any accused. He heard that Ranbir Sena has killed them. In his cross-examination, he has stated that in his village there are 150 houses. He has only supported the factum of murder of the convicts. 13. P.W. 7 has stated that she was in her Naihar at village Azad Nagar. 50 persons came there. She identified Bharosi, Putal Sharma, Bare Sharma, Parma Paswan, Jitendra Sharma and Rajendra Sharma. There was indiscriminate firing. Bharosa Mistri (appellant) chased her. Rahul Sharma pulled the hairlock of Asha Devi. Bharosa Mistri killed Asha Devi by firing who succumbed to her injuries in half an hour. Bharosa also killed Manoj Paswan and his sister Leela by firing. The demeanour of the witnesses has been noticed by the learned trial court and after looking at the appellant Bharosa in the dock this witness began to weep. In her cross-examination, she has stated that at the time of firing she was at the handpump. She had gone to take water. She heard the noise of firing for the first time from the palm tree. After hearing the noise of firing she came to her courtyard and she took her three children and hid them. In the meantime, 50 persons entered into the house. The place of killing is at a distance of 200-300 yards from her house. When the criminals went away, she went to the place of occurrence and saw all the three dead. 14. It has been submitted on behalf of the appellant that neither the informant in this case has been examined nor the information report has been proved. According to fard beyan only the informant and his brother Bhorik Paswan were present at the place of occurrence but during trial both have not been examined in this case. 14. It has been submitted on behalf of the appellant that neither the informant in this case has been examined nor the information report has been proved. According to fard beyan only the informant and his brother Bhorik Paswan were present at the place of occurrence but during trial both have not been examined in this case. According to the version of the informant, P.W. 3, P.W. 4, P.W. 7 are not the eye witnesses. It has been further submitted that the learned trial court has not considered that P.W. 3 has not identified the accused. 15. Learned counsel for the State has submitted that non-examination of the informant is not fatal to the prosecution case. Other eye witnesses have supported the prosecution case. P. Ws. 3, 4 and 7 have supported the prosecution case and they have clearly stated that the appellant has caused the death of three persons; pregnant wife, minor daughter and minor son of the informant due to rivalry between Peoples War Group and Ranbir Sena. The occurrence has taken place by the members of Ranbir Sena who all were armed with lethal weapons. Some of them have been identified by the witnesses. 16. After hearing the submissions on behalf of the appellant and the State and on perusal of the evidence on record, it appears that P.W. 3, P.W. 4 and P.W. 7 have supported the prosecution case. It appears from the evidence of C.W.-2 Ganesh Prasad Thakur, Investigating Officer that Fard Beyan is in his writing and signature which has already been marked Ext. C-1, as such it is not a fact that Fard beyan has not been proved. After getting information about the occurrence from the Chaukidar, he went to the place of occurrence, the house of the informant, and saw three dead bodies, namely, Asha Devi, wife of the informant, Manoj Paswan, minor son of the informant and Leela Kumari, minor daughter of the informant. The inquest report was prepared. An empty cartridge was also found from the place of occurrence. There was also blood stained on the place of occurrence (courtyard). He has examined the witnesses, namely, Nathun (P.W. 4), Manju Devi (P.W. 7), Fula Devi (P.W. 3) and Shaligram Paswan (P.W. 6). In his cross-examination he has stated that Fula Devi had not stated before him that Bharosa Mistri had murdered Asha Devi and Manoj. There was also blood stained on the place of occurrence (courtyard). He has examined the witnesses, namely, Nathun (P.W. 4), Manju Devi (P.W. 7), Fula Devi (P.W. 3) and Shaligram Paswan (P.W. 6). In his cross-examination he has stated that Fula Devi had not stated before him that Bharosa Mistri had murdered Asha Devi and Manoj. She had not stated that She had identified Bara Sharma, Parmanand Paswan and Pannu Sharma. Manju Devi (P.W. 7) has stated before him regarding the identification of Bharosa Mistri and some other witnesses. It appears that P.W. 3 is not an eye witness to the occurrence but she has also supported the prosecution case to the extent that the deceased were killed by the members of the mob. P.W. 4 and P.W. 7 have fully supported the prosecution case and it appears from their evidence that both of them have seen the occurrence and have also stated that the appellant has killed pregnant wife, minor daughter and minor son of the informant. It also appears that the informant is also an accused in murder case as such the enmity cannot be ruled out. It also appears that the informant and his brother have disappeared from their house due to barbaric scene created by the members of the mob in which three innocent members of their family have been killed while they were sleeping in their courtyard. The whereabouts of the informant and his brothers have not been traced out and as such they could not be examined, who could have unfolded the prosecution case in detail. Due to their non-examination the entire prosecution case cannot be falsified. The evidence of ocular evidence stands corroborated by the medical evidence of P.Ws. 1 and 2. In support of this view reliance may be placed upon a decision of the Hon’ble Supreme Court in case of Kunhayippu vs. State of Kerala reported in 2000 SCC (Cri)1374. 17. It appears from the fard beyan that at the time of occurrence the informant and his brother Bhorik Paswan were gossiping in the courtyard, as such the informant cannot be expected that other persons outside the courtyard were observing the occurrence or not. 17. It appears from the fard beyan that at the time of occurrence the informant and his brother Bhorik Paswan were gossiping in the courtyard, as such the informant cannot be expected that other persons outside the courtyard were observing the occurrence or not. The evidence of P.W. 4 and P.W. 7 appears to be convincing as they were out of their house and after seeing the members of mob they hid themselves and identified some of the members of mob including the appellant. Maju Devi (P.W. 7) is also an eye witness. She has specifically stated that she was also chased by Bharosa Mistri. She has given complete description about the occurrence and has specifically stated that it is apparent who had shot fire at Asha Devi, Manoj and Leela who succumbed to the injuries at the place of occurrence itself. Asha Devi died after half an hour of the occurrence. Learned trial court has also noticed the demeanour of this witness who began to weep after seeing the appellant in the dock. The ocular evidence gets corroborated with the medical evidence of the doctors. P. Ws. 1 and 2 who have performed the autopsy of the deceased and opined that death of deceased was due to firearm injuries. It is a case of brutal murder which has caused the death of a pregnant lady, her minor daughter and minor son at the same time. 18. Considering the facts and circumstances stated above, we do not find any ground to interfere with the impugned judgment of conviction and order of sentence. Learned trial court has already taken a lenient view in awarding the sentence to the appellant. 19. In the result, this appeal is dismissed. 20. Let a copy of the first and last page of the judgment be handed over to the appointed Amicus Curiae Ms Jahan Ara, who has assisted the Court satisfactorily and she will get the prescribed fees from the High Court Legal Services Committee, Patna. I agree