Santosh Hegde, J. - (1.)The appellants in these two appeals were accused Nos. 1, 2 and 5 in the Court of VI Additional Sessions Judge, at Sasaram in Sessions Trial No. 356 of 1991. Originally, along with the appellants, two other persons were charged for an offence under S. 396 and 436, IPC as also under S. 27 of the Arms Act, and all the said accused persons were sentenced to life imprisonment under S. 396, IPC, for 10 years under S. 436 read with 34, IPC and for 5 years under S. 27 of the Arms Act, and the sentences were directed to run concurrently. During the course of the trial, learned Sessions Judge felt that there was sufficient material to try 3 other persons, namely, Brij Lal, Parash Singh and Hari Shankar Singh, accordingly invoking the provisions of S. 319 of the Cr. P.C. They were also directed to face trial under the abovesaid charges. The prosecution case in brief is that on the intervening night of 27th and 28th May, 1990, the appellants along with other named accused persons and some others barged into the house of Kapil Muni Singh with an intention of causing dacoity and in the said process, caused the death of Kapil Muni Singh and his son Sheo Mandir Singh by assaulting them and ultimately setting fire to the Dalan in which the deceased were sleeping. On receiving a message of the crime, the Investigating Officer, Narendra Paswan, PW-7, who was then the Sub-Inspector of Police in the Police Station, Kargahar, came to the spot and recorded the complaint made by Urmila Devi, wife of deceased Sheo Mandir Singh at about 3.30 or 4 in the morning of 28-5-1990 which is marked as Ex. 1 and thereafter proceeded to hold the spot Mahazar. In Ex. 1, the names of A-1 to A-5 were specifically mentioned while others' names were not mentioned. After investigation, as stated above, a charge-sheet as against A-1 to A-5 was filed for the offences already referred to hereinabove and thereafter the Court on its own invoking the power under S. 319 included A-6 to A-8 as the persons against whom there was material to make them face trial. The prosecution during the course of trial, has relied upon the evidence of PW-6, wife of the deceased Sheo Mandir Singh as the sole eye-witness to the incident while it relied upon PW-1, Devender Singh, the brother of the deceased Kapil Muni Singh and Ram Charitra Paswan, PW-5 among others as corroborating witnesses. After considering the evidence on record, the trial Court placing reliance on the evidence of PW-6 convicted A-1 to A-5 of the offences stated above and acquitted A-6 to A-8. In this process, though the trial Court relied upon the evidence of PW-1, Deoraj Singh and Ram Charitra Paswan in regard to the involvement of A-1 to A-5 did not accept the same evidence in regard to A-6 to A-8. It also relied on the fact that some of the accused persons were absconding and accordingly based its conviction. The appeal filed against the said judgment by the convicted accused persons came to be dismissed by the High Court of Judicature at Patna in Criminal Appeal No. 335/94 confirming the conviction and sentence imposed on these accused.
(2.)From amongst the 5 convicted accused persons, only 3 of them have chosen to prefer appeal; they are A-1 Bal Keshwar Lal, A-4 Jiut Lal (who are appellants in Cri. A. No. 182/2000) and A-5 Sumesh Lal (who is appellant in Cri. A. No. 181/2000).
(3.)We have heard Mr. Abhay Prakash Sahay; learned counsel for appellant in Cri. A. No. 181/2000 and Ms. Minakshi Vij, learned counsel appearing as an amicus curiae in Cri. A. No.182/2000. It was contended on behalf of the appellants that the Courts below erred in placing reliance on the evidence led on behalf of the prosecution inasmuch as the incident in quetion had occurred in the dead of night without there being any light to identify the assailants and the appellants as well as the other convicted accused persons being the neighbours of Kapil Muni Singh, the deceased, and who were not on good terms, were falsely implicated in the murder because of some ill-will between them. It was also stated that on the very same day, there was a dacoity in the village which took place not only in the house of the deceased but also in the house of the convicted accused persons and the prosecution witnesses though have not witnessed the incident in question have falsely implicated almost all members of the family though some of the accused persons were not even residing in the same village. It is also contended that there is material to show that PW-6 could not have identified the accused persons and that she admittedly being a person who is mentally disabled, could not have identified these assailants either at the time of the incident or at the time of the trial and on her own could not have given the evidence without she being tutored to say so. It is also contended that the first information report reached the Court only on 29-5-1990 i.e. nearly a day and a half after the incident and that there has been no explanation whatsoever in regard to this delay. It was further contended that the superiors of PW-7 had initiated departmental proceedings against him on the ground that he had not conducted proper investigation in this case, therefore, the Courts below could not have placed any reliance on the prosecution case to base a conviction.