- (1.) - Criminal Appeal No. 387 of 1985 on special leave is taken out by accused NO 10 Ram Sanjiwan Singh in Sessions Trial Case No. 195 of 1974 in the Court of 2nd Additional Sessions Judge, Hamshedpur while the companion Criminal Appeal No. 388 of 1985 also by special leave is taken out by accused No. 1 Motil Lal Tiwary, accused No. 4 Malkit Singh and accused No. 6 Ganesh Gwala who were co-accused in the same Sessions Case. Earlier accused Nos. 2,3 and 5 respectively in the same case had also joined in Criminal Appeal No. 388 of 1985 but as they have died pending this appeal now Criminal Appeal No. 388 of 1985 survives only for accused Nos. 1,4 and 6 respectively who are the remaining three appellants in this appeal. In these appeals a common judgment rendered by a Division Bench of the High Court of Judicature at Patna has been brought in challenge. The said common judgment was rendered in Criminal Appeal No. 15 of 1976 filed by appellant Ram Sanjiwan Singh, original accused No. 10 before the High Court against whom Criminal Revision Application No. 137 of 1976 was also filed by the first informant seeking conviction under Section 302 Indian Penal Code (in short 'IPC) and enhancement of his sentence as rendered by the trial Court. The High Court also issued notice for enhancement of his sentence in the appeal of accused No. 10. By the same common criminal appeals by other accused as well as the appeal against acquittal of concerned accused as filed by the State. The Criminal Appeal of Ram Sanjiwan Singh, accused No. 10 was dismissed by the High Court while the notice for enhancement was made absolute and the sentence of Ram Sanjiwan Singh under Section 304-A, IPC was enhanced up to life imprisonment. It is this order of the High Court which is challenged by accused No. 10 Ram Sanjiwan Singh in his Criminal Appeal No. 387 of 1985. So far as Criminal Appeal No. 388 of 1985 is concerned the surviving three appellant-accused Nos. 1,4 and 6 respectively who were convinced by the trial Court under Section 302 read with Section 34 IPC and were sentenced to undergo life imprisonment unsuccessfully challenged the said order of conviction and sentence before the High Court in their Criminal Appeal 28 of 1976 which came to be dismissed by the High Court by the very same common judgment. It is this judgment of the High Court that is brought in challenge by these three appellant-accused Nos. 1,4 and 6 respectively in their Criminal Appeal No. 388 of 1985. In order to appreciate the grievance voiced on their behalf by the learned senior counsel Shri Rajender Singh it is necessary to glance through a few introductory facts leading to these appeals.
(2.) In Sessions Trial No. 195 of 1974 in the Court of 2nd Additional Sessions Judge, Jamshedpur, 13 accused including the present four accused were tried under Section 302 IPC, Section 302 read with Section 149 IPC, Section 302 read with Section 109 IPC, Section 150 read with Section 302 IPC, Section 302 read with Section 120-B and Section 148 IPC and Sections 25(a) and 27 of the Arms Act. The prosecution case against these 13 accused including the present four accused ran as under : "That between 14th August 1971 to the 24th May 1972 at Mohalla Kasidih and Jail Compound, Jamshedpur they agreed to murder Ramchandra Singh in pursuance to which he was in fact murdered. Accused Pyara Singh, Siroman Singh and Dhurandhar Singh, have been further charged under Sections 150/302 I. P. C. that on 24-5-72 at Sakchi Bazar they engaged the remaining accused persons to murder the said Ramachandra Singh which was committed in pursuance to that engagement. These three accused have also been charged under Sections 302/109 I. P. C. for abetting the remaining accused persons for committing the murder. The remaining 10 accused persons have been charged under Section 148 I. P. C. for committing rioting armed with fire arms on 24-5-72 at Sakchi Bazar and also under Sections 25(a) and 27 Arms Act. The accused persons named under serial Nos. 1 to 6 in the judgment have been further charged under Section 302 I. P. C. that on 24-5-72 they committed the murder of the said Ramchandra Singh and the remaining accused persons 7 to 10 under Sections 302/149 I. P. C. for the same murder." It was the prosecution case that between 14th August 1971 and 24th May 1972 at Mohalla Kasidih and Jail Compound, Jamshedpur in State of Bihar these accused had agreed to murder one Ramchandra Singh and in pursuance of that criminal conspiracy he was in fact murdered. Original accused Nos. 11,12 and 13, namely, Pyara Singh, Siroman Singh and Dhurandhar Singh respectively had been further charged under Section 150 read with Section 302 IPC alleging that on 24th May 1972 at Sakchi Bazar they engaged the remaining 10 accused to murder said Ramchandra Singh. The aforesaid three accused were also charged under Section 302 read with Section 109 IPC for abetting the remaining accused for committing the murder while the remaining 10 accused including the present four accused were charged under Section 148 IPC for committing rioting armed with firearms on 24th May 1972 at Sakchi Bazar. They were also charged under Sections 25(a) and 27 of the Arms Act. Accused Nos. 1 to 6 were further charged under Section 302 IPC on the ground that on 24th May 1972 they committed the murder of said Ramchandra Singh and the remaining accused Nos. 7 to 10 were charged under Section 302 read with Section 149 IPC for committing the very same murder.
(3.) The prosecution case in its inception rested on the 'Fardbeyan', Exh.2 given by one one Sunil Singh, P.W. 5 and which was recorded on 24th May 1972 at 7.00 p.m.. The prosecution case was that deceased Ramchandra Singh was the Supervisor in the cooperative store, Sakchi. On 24th May 1972 at 6.15 p.m. he was getting himself shaved by a barber in the western portion of the verandah of that co-operative store sitting on a tin chair facing towards the eas. the informant Sunil Singh P.W. 5, one Rameshwar Prasad P. W. 1, Gazraj Singh P. W. 3 and Shankar Singh P. W. 4 were standing in the same verandah in its eastern portion. The coolies and the salesman of the co-operative store were also there.;