Banerjee, J. - (1.)It is trite to record that in the normal course of events the Apex Court would not re-appreciate or effect a further scrutiny of the evidence on record. We, however, hasten to add here that this is not a rule steadfast or an inevitable practice - flexibility in the administration of justice stands out to be the hall-mark in our justice delivery system. The requirement of the situation stands out to be a basic tenet in the Indian jurisprudential system and the approach being justice oriented the interest of justice would prompt this Court to rise to the occasion and thus there being a rule steadfast of not appreciating the evidence would not arise - miscarriage of justice or perversity would prompt even the Apex Court to go into the matter since technicality ought not to outweigh the course of justice.
(2.)The issue in the contextual facts falls for determination is whether in fact there has been such a miscarriage warranting intervention of this Court and as contended to alter the sentence of 302 read with Section 149, IPC to 304 Part II read with Section 149, IPC - the issue no doubt needs a detail scrutiny of evidence on record but the nature of injuries, the medical evidence and the eye-witnesses account do not however, lend much credence to such a submission in the matter under consideration.
(3.)Let us however, at this juncture briefly advert to the factual backdrop. The facts reveal the prosecution case as below : On 8-5-1984 at about 11.30 p.m. informant Munar Mahto (PW 8) went to Tariyani Chowk Police Station within the district of Sitamarhi and lodged an FIR (Ext. 3) stating therein that on the same day at about 3.00 p.m. he along with his father Gajar Mahto, uncle Bitin Mahto, Ram Bilas Mahto (PW 4) and Ram Chandra Mahto (PW 2) had gone to Turki Bazar. Appellants Jiva Lal Sah and Gagandeo Sah had also gone to Turki Bazar and in the market where even the informant and his men went they both kept watch on them after staying at some distance. After marketing when the informant and his men started for their house, appellants Jiya Lal Sah and Gagandeo Sah proceeded ahead of them. When the informant and his men reached a village footpath, going towards Ladaura Mahinwara near the field of one Bharat Singh in Nandna Sareh situated at village Kumhrar, all of a sudden all the appellants came from a maize crop field and started assaulting the father of the informant who was going ahead of the informant and his remaining companions. Appellant Gagandeo Sah and Mahadeo Sahni ordered their companion to kill all even if their lands were sold and on this instigation appellant Rajendra Sahni started assaulting the father of the informant with a lathi and appellant Naga Sahni with a Dabiya (a sharp cutting weapon). When Bitin Mahto, uncle of the informant, tried to rescue the father of the informant he was assaulted by appellant Gagandeo Sahni with a Garasa and he, after receiving injuries, fell down. Appellant Bachu Sahni thereupon started assaulting the father and uncle of the informant with a "Phatha" (bamboo stick) and appellant Shyam Nandan Sahni started assaulting the uncle of the informant with a dagger. Appellant Rajan Sahni and Binod Sahni by putting lathis on both sides of the neck of the father of the informant pressed their lathis and remaining appellants started indiscriminately assaulting the father and uncle of informant with lathis saying that when they had identified them they would finish them. Informant, Ram Chandra Mahto (PW 2) and Ram Bilas Mahto (PW 4) out of fear were watching the occurrence from some distance. It was a moonlit night. When the informant raised hulla villagers namely, Mitan Mahto, Phul Shankar Mahto (none of them examined), Ram Ekbal Mahto (PW 6) and Mohan Mahto (PW 5) replied that they were coming and after hearing their replies the appellants fled away but appellant Musafir Sahni was caught and he was assaulted by the mob who had caught him. The informant found that his father and uncle had died.