Kailash Prasad Deo - (1.) Heard, learned counsel for the appellants, Mr. B. M. Tripathi, Sr. Advocate assisted by Mr. Naveen Kumar Jaiswal, Advocate and learned counsel for the State, Mr. Ram Prakash Singh, learned Additional Public Prosecutor.
(2.) The instant criminal appeal has been preferred against the judgment of conviction dated 01.10.1996 and order of sentence dated 04.10.1996, passed by learned 1st Additional Sessions Judge, Godda, in Sessions Case No. 342 of 1986/111 of 1988, whereby all these six appellants along with one Manoj Mandal have been convicted for the offence committed and punishable under Section 302/34 of the Indian Penal Code and awarded imprisonment for life. During pendency of the appeal, case of Manoj Mandal has been separated vide order dated 31.07.2018 passed in I. A. No.3984 of 2018 by co-ordinate Bench of this Court whereby Manoj Mandal has been sent to Juvenile Justice Board, Godda for needful.
(3.) The prosecution case is based upon fardbyan of Chetan Mandal (P.W.4) S/o Suman Mandal of village - Bhartikitta, P.S.- Godda(M), District - Godda recorded by S.I. Md. Idrish Khan (P.W.5), Officer-In-Charge, Godda (M) P.S. at Bhartikitta on 15.08.1985 at 18.15 Hours, whereby the informant has alleged inter-alia as follows:- The informant has alleged that today i.e. on 15.08.1985 at 3.30 P.M. when he was cutting grass at his courtyard, he heard brawl raised by his brother Bulaki Mandal, upon which the informant came out of his house in the passage and saw Shiv Prasad Mandal son of Kali Mandal having garasa in his hand, Dindayal Mandal son of Kali Mandal having garasa in his hand, Anirudha Mandal son of Kali Mandal having sword in his hand, all residents of village - Bhartikitta, P.S.- Godda(M), were entering into the courtyard of his brother Bulaki Mandal by raising the slogan 'Jai Bajrang Bali'. Shiv Prasad Mandal asked them to kill him. The informant under fear fled towards the West and turned towards South and reached to the back side of the house of his brother. The informant has further stated that as soon as he reached near the house of Sheo Shankar Purbey, he saw that his brother Bulaki Mandal and nephew Hriday Mandal were dragged out of the house near the house of Most. Jahazi in the passage by (1) Shiv Prasad Mandal, (2) Dindayal Mandal, (3) Anirudha Mandal, all sons of Kali Mandal having above mentioned weapons in their hands, (4) Ghanshyam Mandal, son of Kali Mandal having Pistol and Gupti in his hand, (5) Manoj Mandal (now referred to Juvenile Justice Board) son of Shiv Prasad Mandal having axe (tanga), (6) Vijay Mandal son of Anirudh Mandal having farsa, (7) Sanjay Mandal son of Anirudha Mandal having bhala, all residents of village - Bhartikitta, P.S.- Godda(M). It is also stated that (8) Nakul Mandal resident of Khatnai, P.S.- Godda(M) was also there, who was instigating the accused persons to assault. The informant has further stated that all the above named accused persons having deadly weapon in their hand started assaulting his brother Bulaki Mandal and nephew Hriday Mandal due to which both fell down on the ground and started writhing. It is further stated that Ghanshyam Mandal fired two rounds from his pistol in the air and after both the victim fell down, all the accused persons assaulted them up to the extent that both died at the spot. The informant has stated that the occurrence has been witnessed by the female members namely, Bhutaki Devi (P.W.3), Gujo Devi (not examined), Jaikant Mandal (P.W.2), Rajendra Mandal (P.W.1) and other villagers. The accused persons after assaulting fled away towards the East. The informant has disclosed that occurrence took place as in the morning at 6.00 A.M. two she goats of Shiv Prasad Mandal have grazed the crops (Bajra) of Bulaki Mandal for which an altercation has taken place between Shiv Prasad Mandal and brother of the informant i.e. Bulaki Mandal. At that time Shiv Prasad Mandal has given a threatening of dire consequences. The informant has further stated that they have previous enmity with respect to a case of murder with the accused persons. ;