N.N.TIWARI, J. - (1.) BOTH these appeals arise out of the same judgment and, therefore, both these appeals have been heard together and are being disposed of by this common judgment.
(2.) THE appellants of both the appeals have been convicted under Section 396 IPC and each of them has been sentenced to undergo R.I. for life. The prosecution was launched on the basis of the fardbeyan dated 1.11.97 given by Rupbanti Devi PW -2. The prosecution case in brief was that in the previous night, after taking meal, she was sleeping with her husband and her daughter Pushpa Kumari in the. inner room of the west facing house. The door of the room was closed. On hearing the sound of beating of winnowing fan (Soop), she got up (as it is a customary ritual observed in the next following morning of Deepawali night) and she came out of the house but did not find anybody outside. The time was about 12 P. M. She then closed the door and returned to her bed. After 15 minutes she heard sound of knocking at her outer door and thereafter somebody called her husband by name and asked him to open the door. The informant and her husband suspecting the arrival of terrorists hid themselves in the inner room. After sometimes the miscreants broke open the door with the help of Sabal threatening that her husband has connived in getting Lalua arrested and they will not spare him. The terrorist had then broke open the door of main gate connecting the courtyard 'Angan and 5 -6 of them entered into the room where her husband was hiding. Then they caught hold of him and assaulted. Thereafter they took her husband out and also removed Rs.2,000/ - from her husband 's 'Bandi ' (Jacket) and a watch from the room. The informant followed them and begged before the terrorists to leave her husband, but they turned deaf ears and hit her by butt of the gun. The terrorists were 15 -20 in number and were clad in Khaki uniform and variously armed with weapons. The terrorists thereafter took her husband to the nearby culvert and assaulted him till he became unconscious, muttering that the arrest of Lalua could be possible due to his connivance. The informant who was still following them was asked by the terrorist to give her husband hot water to drink, lest he would die. Thereafter the informant with the help of her nephew Baleshwar Pd. Yadav, Hirdayanand Yadav and her daughter brought her husband home and applied paste of lime and turmeric on the injuries and also gave Desi Ghee to drink. At about 5 A.M. in the next morning her husband died. She claimed to have identified the appellant Anil Ram, Lalman Ram @ Lalan Ram, Sarju Dusadh and Laxman Baitha amongst the said terrorists in the electric bulb light. According to the informant, the motive of the occurrence was to wreak vengeance of the arrest of Lalu Ram which according to the terrorists could be possible with the connivance of her husband.
(3.) ON the said fardbeyan the police registered a case under Section 396 IPC and started investigation after completion of the investigation, a charge sheet was submitted against the appellants. The appellants denied the charges. The appellants were then put on trial. Thirteen witnesses were examined on behalf of the prosecution. PW -1 Chandrakesh Prasad Yadav proved the inquest report (Ext.1). PW -2 Rupbanti Devi (informant) tried to support her statement given in the fardbeyan, but there are contradictions in the statements regarding the motive and the source of light and mode of identification. In the fardbeyan she had stated that she identified the appellants in the light of electric bulb but in paragraph 5 of her deposition she deviated from the same and stated that Lantern was burning and electric bulb was also on and she identified in that light. PW -3 Sanjay Kr. Yadav is a formal witness who proved signature on the inquest report. PW -4 is Pushpa Kumari, daughter of the informant. In paragraph 1 of her deposition she specifically stated that she identified the appellants in the light of the Lantern. She also said that it was a moonlit night. However, she did not name the persons who entered inside the house. PW -5 Ram Pyare Chandrabanshi stated in his evidence that on the date of the occurrence he heard screaming and shouting and got up but out of fear did not go out. The sound was coming from the house of Baijnath Babu. In the morning he went there and saw the dead body of Baijnath. He was informed by the inmates that terrorists murdered him. PW -6 Ramdeo Pd. Yadav is an agnatic relation of the deceased Baijnath. He deposed that in the morning the police came and recorded the fardbeyan and he put his signature on the same. He stated that nobody told the names of the terrorists to him. PW -7 Hirdayanand Yadav stated that he heard the sound of weeping and shouting in the night near culvert. When he followed the sound, he saw that Baijnath Yadav is lying in injured condition. He then with the help of others brought Baijnath home and thereafter he died. In the morning the police came and seized the broken lock and wooden latches (Bera) and prepared seizure list in his presence. He also proved the seizure list (Ext.3). He has stated that the village is extremists infested. PW -8 Brijbilas Singh proved the charge sheet (Ext.4). He has taken charge of the case when the investigation was complete on all points. He then submitted charge sheet (Ext. 4). PW -9 Baleshwar Pd. Yadav is the FIR witness. In Paragraph 4 he has stated that the village is extremists infested but they come from outside. PW -10 Kunj Bihari Pd. Jaiswal only stated that he saw the dead body of Baijnath with injury of Lathi. PW -11 Akshaibar Baitha stated that Baijnath Yadav was murdered by the Naxalites and that one Salimji is the leader of the Naxalites. He also stated that he has not seen the occurrence. PW -12 Dr. Braj Kishore Mundari conducted postmortem examination on the dead body of the deceased Baijnath. He proved the postmortem examination report (Ext.5). Referring the same he stated that he found as many as 12 antemortem injuries on the person of the deceased. He opined that the death was caused due to shock and haemorrhage resulting from antemortem injuries. He also found stomach of the deceased empty. PW -13 Gurudayal Ram is the I.O. He proved the FIR (Ext.6). He has stated that he has found the doors broken. While referring the contents of the FIR he has stated that he had not seized the cloth from which Rs.2,000/ - was taken away. He also stated that he had not inquired whether there was electric connection in the house of the informant.;