S.K.Sharma, J. - (1.)Both the above appeals were heard earlier by a Division Bench of this Court and both the Honourable Judges recorded different findings and differed in their conclusion. One of the Honourable Judges found the appellants guilty and affirmed the judgment of the trial court regarding conviction and sentence but another Honourable Judge of the Division Bench found the appellants not guilty and hence the appellants were acquitted and ordered to be discharged from the liabilities of their bail bonds. In view the difference in opinion, the matter has come up before me. Both the appeals have arisen out of a judgment and order of conviction and sentence dated 19th April, 1988 passed by Ist Additional Sessions Judge, Motihari in Sessions Trial No. 134/17 of 1979/84. Appellant Gorakh Sahani (Cr.Appeal No. 200 of 1988) has been found guilty under Sec. 302/34 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life and other appellants, namely, Binda Sahni, Dasain Sahni, Ramashrey Sahni, Harihar Sahni and Suraj Sahni (Cr.Appeal No. 201 of 1988) along with appellant Gorakh Sahni have been found guilty under Sec. 201/34 of the Indian Penal Code for disappearing the dead body and they have been sentenced to undergo rigorous imprisonment for a period of five years. The sentences of appellant Gorakh Sahni under Sections 302/34 and 201/34 were ordered to run concurrently.
(2.)Before dealing with the matter, it is necessary to record certain facts. The deceased of the occurrence, Chameli Devi, was wife of convict Dasain Sahni and daughter-in-law of convict Gorakh Sahni. Fardbeyan of Gagandeo Sahni was recorded at 7.00 P.M. on 18.09.1978 at village Ekona, P.S.Chiraiya, District East Champaran. In the farbeyan it was stated that he left village for Motihari at 6.00 A.M. and reached at the assigned place at 10.00 A.M. on the date of occurrence. One Cobbler informed that his daughter married in the house of Gorakh Sahni of village Lalbegia has been murdered by the appellants and one Jagarnath Sahni and the dead body was made to disappear. The informant rushed for village Lalbegia and reached there in the afternoon. One Jaleshwar Sahni of Lalbegia told regarding death of Chameli Devi. Before leaving the village Lalbegia for paternal house, the informant met Punyadeo Sahni, Sarpanch (P.W.2), Maheshwar Sahni, Mukhiya (P.W.3), Ganja Sahni (P.W.7), Jodhan Sahni (P.W.8). All the aforesaid persons told him that Chameli Devi has been killed by all the accused persons whose names have been discussed above. The dead body of Chameli Devi was not traced out. Gorakh Sahni confessed before the informant regarding killing of Chameli Devi but refused the prayer of the informant regarding handing over the dead body of his daughter to him. The age of Chameli Devi as mentioned in the first information report is 20 to 26 years. She was issueless and her husband Dasain Sahni had illicit relationship with one of the daughter-in-laws of one Charaman Sahni of village Lalbegia. It was being objected by the wife of Dasain Sahni, so she was thrashed up repeatedly. Unholy relationship was within the knowledge of all the villagers including other appellants and the deceased. On the basis of said fardbeyan (Ext.2), first information report (Ext.1) was registered. After completing investigation, chargesheet was submitted under Sections 302 and 201 read with Sec. 34 of the Indian Penal Code. Cognizance was taken and the case was committed to the court of sessions for trial where charges were framed and explained to the accused persons. They pleaded innocence. Hence trial proceeded.
(3.)In order to prove its case, the prosecution examined altogether nine witnesses. P.W.1 Imtiaz Ahmad, a clerk of office of Public Prosecutor, was examined as a formal witness and he proved Exts. 1 and 2, namely, the first information report and the fardbeyan respectively. P.W.2 is Punyadeo Sahni, village Sarpanch of village Gram Panchayat. P.W.3 is Maheshwar Sahni, Mukhiya of the village Panchayat. P.W.4 is Mangal Sahni, a co-villager. P.W.5 is Jaleshwar Sahni. P.W.6 is Ekma Sahni. P.W.7 is Ganja Sahni.P.W.8 is Jodhan Sahni and P.W.9 is Mostt. Samundari Devi, the widow of the informant. The Investigating Officer was not examined. The informant was not examined because he died prior to his evidence. The dead body was not recovered, so neither any injury report nor post mortem report could be brought on record.