Anjani Choudhary, Bhimsen Choudhary and Kinkin Choudhary vs The State of Bihar

A.K. Sinha, J.—The Appellants have been convicted u/s 302/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 15,000/- each or in default, to undergo rigorous imprisonment for a period of one year. The trial Court further ordered that if the amount of fine is realised, the same will be paid to P.W. 14 Tarawati Devi.

The prosecution story, in brief, is that on 6.2.89 at about 2.45 p.m. the Informant Ram Pukar Choudhary (P.W. 2) had gone to ease in the back of his ''Bathaan", when he heard the sound of ''falafat'' on which he rushed towards ''Bathaan'' and saw that his own nephew Anjani Choudhary, Kinkin Choudhary and Bhimsen Choudhary were assaulting his Brother Prem Kumar Chaudhary (deceased) with lathi and farsa. The Appellant Anjani Choudhary was armed with Pistol and lathi, Bhimsen Choudhary was armed (sic) farsa and Kinkin Choudhary was armed with Bhala. Seeing the informant, the Appellants fled away towards west. The informant''s brother succumbed to the injuries inflicted upon him by the Appellants. On alarm, Satyadeo Choudhary (P.W. 1), Madan Pd. Choudhary (P.W. 5), (sic)sharfi Choudhary (P.W. 4) came and saw the alleged occurrence. The motive for the occurrence as alleged in the fardbayan of the informant is that a partition had taken (sic)ce between the brothers and all the four brothers started living seperately as per their share allotted in the family partition in which the mother of the informant was also allotted some land but the mother used to live with the deceased and the informant after partition. It is further stated that the mother of the informant executed a deed of gift in respect of her land in favour of informant''s wife, on account of which, the informant''s brother, namely, Mukti Choudhary and Ram Pukar Choudhary as well as the Appellants raised dispute and due to that reason the Appellants committed the murder of the deceased.

The fardbayan (Exhibit-3) of the informant was recorded on the same day at his ''Bathaan'' at 4.30 p.m. by the I.O. and a case u/s 302/34 of the Indian Penal Code was instituted against the Appellants. After completing the investigation, the I.O. submitted chargesheet against the Appellants u/s 302/ 34 of the Indian Penal Code, on the basis of which cognizance was taken and the case was committed to the Court of Sessions. The Appellants were charged u/s 302/34 of the Indian Penal Code, to which they pleaded not guilty and the case of the defence is that the Appellants have been falsely implicated in the case due to enmity and the occurrence did not take place in the manner as alleged in the F.I.R.

In order to prove the charges, the prosecution examined as many as fifteen witnesses, out of whom, P.W. 3 Ramadhaar Choudhary has proved the formal F.I.R (Exhibit-2), P.W. 7 Md. Israrul Haque is also a formal witness who proved the post mortem register brought from the office of Civil Surgeon and proved the post mortem report (Exhibit-4) which relates to the deceased, namely, Prem Kumar Choudhary P.W. 8. Yogendra Prasad is another formal witness, who has proved the inquest report (Exhibit-5), P.W. 10 Arbind Kumar Mishra has proved the information petition dated 28.7.87 (Exhibit-6), P.W. 11 Gopal Pd. Singh has proved the report of S.I. Feku Rai u/s 107 Code of Criminal Procedure (Ex-hibit-7), P.W. 12 Ramakant Choudhary has proved the typing of the protest petition (Exhibit-8) and P.W. 15 Ram Bhushan Jha has formally proved the injury report (Ex-hibit-9). C.W. 1 Pawan Kumar Choudhary has proved the signatures of the S.D.O. (Exhibits-10 to 10/1) on the notice u/s 107 Code of Criminal Procedure. C.W. 2 Sikan Sahani has proved the deed of gift dated 15.12.87 executed by-Most. Suhagwati Chaudharain in favour of Dharmsheela Devi. There is nothing worth comment in the testimony of the above named witnesses, who are formal in nature. P.W. 4 Asharfi Choudhary and P.W. 5 Madan Pd. Choudhary have been named as witnesses in the fardbayan but they have turned volte face. P.W. 4 has deposed that on hearing halla, he went to the Dalian of the deceased and his dead body lying there but he did not see the assailants. In cross-examination, he has stated that before him about 200 people had assembled near the place of occurrence. P.W. 5 has expressed his ignorance about the alleged occurrence and denied to have made any statement before the police. In cross-examination, he has, however, admitted that on hearing halla, he went to the P.O. and found that Prem Kumar Choudhary had died and he also noticed that the deceased was lying in pool of blood. He also admitted that dispute was going on between the deceased and the Appellants for the share of land. He has stated that the deceased was his cousin brother, whereas, the Appellants are the sons of his cousin brother. Although, P.Ws. 4 and 5 have turned volte face but from their evidence it is atleast established that soon after the occurrence when they reached at the P.O., they found the deceased lying dead and it is also clear from their evidence that land dispute was going on between the Appellants and the deceased.

In this case, P.W. 1 Satyadeo Choudhary, P.W. 2 Ram Pukar Choudhary (informant), P.W. 13 Ram Padarath Choudhary and P.W. 14 (Tarawati Devi), who is the wife of the deceased, claimed to be the eye witnesses to the alleged occurrence.

P.W. 13 Ram Padarath Choudhary is a man of different village situated at a distance of about eight miles from the place of occurrence and is related to P.W. 1 Satyadeo Choudhary. He has admitted that he came to depose in the case for the first time in Court. He has not been named as a witness in the fardbayan and the I.O. (P.W. 6) has stated that this witness had not made any statement before him. As such, it would appear that for the first time P.W. 13 has come to depose in the case. So, no reliance can be placed on his testimony.

P.W. 14 Tarawati Devi is the widow of the deceased, who claimed to have seen the alleged occurrence and has stated that while she was in her house, she saw the assailants being armed with Farsa, Bhala and lathi going towards ''Bathaan'' and they were announcing to kill their uncle, so, she followed them. She further stated that her husband was sleeping on a cot at the ''Bathaan'' where Bhimsen Choudhary assaulted him with Farsa and gave 10-11 blows, Kinkin Choudhary assaulted with ''Bhala'' and Anjani Choudhary assaulted with lathi. She has stated that her house is situated at a distance of about 50-60 laggis towards the east. When her attention was drawn to the statement made by her before the I.O., she reiterated that she had made statement before the as stated by her in the examination-in-(sic) ef but the I.O., (P.W. 6) denied that she (sic)de such statement before him. In other (sic)rds, the I.O. has contradicted her statement and stated that she did not claim to the eye witness to the alleged occurence (sic) had supported the allegation in the (sic)R. According to the I.O., P.W. 14 had (sic)en hear say account of the alleged occurrence. I find that P.W. 14 has not been (sic)ned as a witness in the fardbayan which (sic) recorded at 4.30 p.m. i.e. one hour (sic)rty five minutes of the alleged occurence. Had she been a real witness to the (sic)ged occurrence, her name must have (sic)en mentioned as a witness in the (sic)bayan which was recorded so promptly, therefore, the evidence of P.W. 14 on the (sic)nt of manner of occurrence and her (sic)m that she had witnessed the occurence falls short of belief and I am of the (sic) that she is not a real eye witness to alleged occurrence.

The next witness is Satyadeo Choudhary (P.W. 1). He does not belong to village of the decased, rather, he be(sic)gs to village Bhadaiya, which is situated a distance of four Kos (eight miles) but has deposed that he was present in the age of the informant because he had (sic)e for the Bidagari of his sister, who opens to be the wife of the deceased, (sic)s witness has been named in the (sic)bayan as one who had witnessed the (sic)re occurrence. P.W. 1 has deposed that soon as he reached at the ''Bathaan'' of (sic)m Pukar Choudhary, he saw that Kinkin Choudhary was assaulting the deceased (sic)h Bhala, Bhimsen Choudhary was armed (sic) farsa and Anjani Choudhary was (sic)ned with lathi and at that time his brother-in-law Prem Kumar Choudhary was sleep(sic) I on a cot. He has further stated that (sic)ala injury was caused near the ''Panjra'' (sic)d the deceased was assaulted on his ck, head, right hand and palm (dorsem), chest, ear with farsa which is attributed to Bhimsen Choudhary. He has not stated specifically about the location where the lathi injury was caused. According to him, 10-11 injuries were caused to the deceased, as a result of the assault by the assailants. He further stated that the assailants fled away towards west after he reached at the place of occurrence and his brother-in-law died within 5-7 minutes. He has also named Ram Pukar Choudhary (P.W. 2), Asharfi Choudhary (P.W. 4), Madan Choudhary (P.W. 5) as witnesses to the alleged occurrence. According to him, assailant Anjani Kumar Choudhary was holding a revolver in his hand. In cross-examination, this witness has stated that he always used to visit the village Kewta. As per his version, he used to visit atleast 2-4 times in a month and used to return back to his village after meeting his sister and on the alleged date of occurrence, he had reached to village Kewta at about 12 noon. According to him, there was a function of Janeu in his house for which he had gone to village Kewta to take his sister for attending the function. He has stated that when he reached near the place of occurrence all the three Appellants were assaulting the deceased from three sides and at that time the deceased was wearing Lungi, Ganjee and underwear and a Gamcha was kept on the cot. He has stated that there was a Dari and pillow on the cot on which he noticed the mark of blood. This witness has stated that the police had recorded his statement on the day of occurrence itself at about 5.00 p.m. which has not been contradicted by drawing the attention of the I.O., who has stated that this witness had fully supported the occurrence. The I.O. has no doubt stated that P.W. 1 had not stated before him that Bhala injury was caused on the Panjra and farsa injuries were caused on neck, right hand, palm, ear but it appears that P.W. 1 had fully supported the occurrence. It was canvassed at the Bar that P.W. 1 has falsely deposed in the case because he happens to be the own brother-in-law of the deceased and, as a matter of fact, he was not present at the place of occurrence when the occurrence took place. But, from the evidence of the I.O. it clearly appears that P.W. 1 was present at the time of alleged occurrence and the I.O. recorded his statement at about 5.00 p.m. i.e. after half an hour of recording of the F.I.R. Apart from the fact that this witness was very much present at the place of occurrence when the occurrence took place, I find that he has remained quite unshaken in his cross-examination on the point of manner of occurrence.

P.W. 2 Ram Pukar Choudhary is the informant of this case, who has supported the prosecution story as set forth in the fardbayan (Exhibit-3). P.W. 2 is the own brother of the deceased. He has stated that while he was going to ease out towards south of his; ''Bathaan'', he heard the sound of ''Fatafat'' coming from his ''Bathaan'' side, so, he went to his ''Bathaan'' and saw that the Appellants were assaulting his brother, who was sleeping on a cot, with Bhala, Farsa and lathi, as a result of which, his brother sustained injuries and died. According to him, Bhimsen Choudhary was armed with farsa, Kinkin Choudhary was armed with Bhala and Anjani Choudhary was armed with lathi. P.W. 2 has stated that he sent information to the police and the I.O. came at the place of occurrence where he gave his fardbayan which was recorded by the I.O. and he put his signature after understanding the contents. He further stated that in course of investigation, he filed a protest petition against the conduct of the I.O. It would appear from the evidence of P.W. 2 that he used to live jointly with his brother (deceased) and mother also used to live with him. He has stated that his mother had executed a deed in favour of his wife in respect of her share of land and his remaining brothers as well as the Appellants used to fight with him relating to the land of Kalambagh, which was gifted by his mother in favour of his wife. P.W. 2 has stated that prior to the alleged occurrence, the Appellants as well as his two brothers had assaulted him and the deceased for which he had instituted a police case which is going on and a case u/s 107 Code of Criminal Procedure was also instituted by him against the aforesaid persons. The report of the police (Exhibit-7) u/s 107 Code of Criminal Procedure goes to show that the deceased had made statement at Dalsinghsarai Sadar Hospital against the Appellants and his brothers, who were second party in that case, that they had assaulted him with lathi, Bhala and farsa. The police had not instituted a substantive case, rather, a proceeding u/s 107 Code of Criminal Procedure was initiated against the members of the second party and S.D.O. Dalsinghsarai had also issued notice (Exhibit-9). On behalf of the prosecution, an information petition dated 28.7.87 filed by the deceased against the Appellants, Ram Kumar Choudhary and Anu Kumar Choudhary in the Court of S.D.M., Dalsinghsarai (Exhibit-6) has been filed. The contents of this application which was filed on 28.7.87 by the deceased goes to show that on 26.7.87 the opposite parties had come to the house of the deceased at 4.00 p.m. and had threatened that they will kill him in sleeping condition. Hence, being scared of the threats given by the members of the opposite parties to the deceased, the deceased had prayed to give necessary direction to the Officer Incharge of Dalsinghsarai P.O. to maintain peace. So, from the evidence of P.W. 2 and the materials available on record, it is well established that the Appellants were on inimical terms with the deceased relating to the share of land of the deceased''s mother, which she gifted to the wife of the informant and prior to the alleged occurrence of this case, the Appellants and their brothers had assaulted the deceased for that reason.

In cross-examination, P.W. 2 has stated that he did not notice any mark of violence on the cot or bedding but had seen that blood had smeared beside the cot. He further stated that he had sent a man to inform the police but had not disclosed to him the names of the assailants. He could not remember the name of that man whom he had sent to the police station. He suo moto stated that he had disclosed the names of the assailants to that man which appears to be an exaggeration. He also could not remember whether Dafadar Ram Sagar Choudhary had gone at the place of occurrence before or after the arrival of the I.O. He denied to have stated before the I.O. that Prem Kumar Choudhary was assaulted by pistol. The defence failed to elicit any contradiction in his evidence on the material points by drawing the attention of the I.O. with regard to the statement made by P.W. 2 before him.

P.W. 6 Pinak Rajdeo is the I.O. of this case, who has deposed that on 6.2.89, Dafadar, namely, Ram Sagar Choudhary gave information to him regarding the murder of Prem Kumar Choudhary, so, he went to the ''Bathaan'' of Prem Kumar Choudhary, which is the place of occurrence of this case and recorded the fardbayan of Ram Kumar Choudhary (informant). He has proved the fard bayan (Exhibit-3) and has given detailed description of the P.O. land which is open Sahan land situated in front of the Dalian of the informant. P.W. 6 found the dead body of the deceased lying on a cot with several injuries on his person and also found copi ous blood below the cot. He prepared the inquest report (Exhibit-5) and sent the dead body for post mortem examination. In his cross-examination, the I.O. has stated that while giving information about the commission of murder, the Dafadar Ram Sagar Choudhary had not disclosed to him the names of the assailants and he had entered the information in the station diary before leaving the police station. He also admitted that he did not seize the cot nor he noted down in the diary that he found any mark of violence on it. He also found copious blood at one place but did not send the sample of blood for the chemical examination. He has emphatically denied that he did not find any blood at the place of occurrence nor seized the same. He has stated that the witness Satyadeo Choudhary (P.W. 1) had fully supported the occurrence and the witness Madan Choudhary had also supported the occurrence and had stated before him that on hearing Halla, when he rushed to the ''Bathaan'' of Prem Kumar Choudhary, he saw all the three Appellants fleeing away towards orchard and Prem Kumar was tossing on the bed and Ram Pukar Choudhary (P.W. 2) disclosed to him the name of Kinkin Choudhary, Bhimsen Choudhary and Anjani Kumar Choudhary, who assaulted his brother with lathi, Bhala and farsa. The I.O. was not confronted with the statement made by P.W. 2 before him so as to elicit any contradiction in the evidence of P.W. 2 (informant).

The ocular version of the I.O. and witnesses find corroboration from the evidence of P.W. 9. Dr. N.L. Jha, who conducted post mortem examination on the dead body of the deceased, inasmuch, as the doctor found as many as thirteen injuries on the person of the deceased of different dimensions, out of which, twelve injuries were incised and injury No. 5 was a penetrating wound of size 2-1/2" x 1" x abdominal cavity deep on the left side of the abdomen, which may be caused by ''Bhala''. In the opinion of the doctor, the rest injuries may be caused by farsa. The time elapsed since death till the post mortem examination was within 24 hours and in the opinion of the doctor, the injuries found on the person of the deceased were sufficient to cause his death. P.W. 9 has proved the post mortem report (Exhibit-4) which is in his pen and bears his signature. In cross-examination, there is no doubt that P.W. 9 has stated that injury No. 5 can be caused if end portion of farsa is thrust and he did not mention the exact position of the left side of injury No. 5. From the evidence of P.W. 9, it would appear that the ocular version given by P.Ws. 1 and 2 matches with the medical evidence.

Learned Counsel for the Appellant, however, made capital of the statement made by P.W. 9 that injury No. 5 may be caused if the end portion of Farsa is thrust and submitted that there is no allegation in the fardbayan that Kinkin Choudhary assaulted his brother with ''Bhala'' rather, allegation is that when the informant rushed towards his ''Bathaan'' he saw that the Appellant Anjani and Bhimsen Choudhary were assaulting his brother with lathi and farsa. It was, therefore, submitted that no assault by Bhala had taken place as per the fardbayan and the doctor had also stated that injury No. 5 can be caused if the end portion of farsa is thrust. Hence, the evidence of P.Ws. that Kinkin Choudhary had assaulted with ''Bhala'', as a result of which injury No. 5 was caused is ruled out. This submission of the learned Counsel is devoid of any merit because in an occurrence of the present nature, it is absurd to presume that the assailants will thrust the end portion of ''Bhala'', as stated by P.W. 9. It is not only unnatural but unbelievable. The occurrence as alleged would indicate that all the three assailants came at the ''Bathaan'' where the deceased was sleeping on a cot and started assaulting him with their respective weapons indiscriminately. Hence, there was absolutely no possibility of thrusting the end portion of Bhala. As against this, the same doctor has opined that the injury No. 5, which is a penetrating wound may be caused by ''Bhala'' and this appears to be most probable because the penetrating wound is always possible by ''Bhala''. So far the submission that there is no allegation in the fardbayan that Kinkin Choudhary had assaulted with Bhala, it may be said that the informant has specifically stated in the fardbayan that Kinkin Choudhary was armed with ''Bhala'' and in his evidence he has clearly stated that all the three Appellants were assaulting his brother, who sustained injuries. So, even if there is omission in the fardbayan that Kinkin Choudhary assaulted with Bhala, such omission can not cut much ice because the, fardbayan is not an encyclopaedia of the occurrence in which the informant is supposed to give minutest detail as to who assaulted with what weapon and on which location and merely because the informant omitted to state that Kinkin Choudhary assaulted his brother with ''Bhala'' on his abdomen, the evidence of P.Ws. 1 and 2 can not be belied. More so, when P.W. 1 has specifically stated that Kinkin Choudhary had assaulted with ''Bhala'' and the ''Bhala'' injury was caused on the ''Panjra'' of the deceased, whereas, farsa injuries were caused on neck, head, right hand, palm and chest which is in conformity with the medical evidence as found by P.W. 9. Learned Counsel appearing for the Appellants strongly argued that P.Ws. 1 and 2 have deposed to the effect that Anjani Kumar Choudhary had assaulted the deceased with lathi but the P.W. 9, who conducted the post mortem examination on the dead body of the deceased, did not find any lathi injury on the person of the deceased. It is well settled that if there is inconsistency between the medical evidence and the evidence of the eye witness, the evidence of the eye witnesses will prevail and the testimony of the eye witnesses can not be discarded on account of such inconsistencies Solanki Chimanbhai Ukabhai Vs. State of Gujarat, relied upon). In reply to the submission advanced by the learned Counsel, the learned A.P.P. submitted that it is possible that Anjani Choudhary assaulted the deceased with lathi and on the same location farsa injury might have been caused, so, in that event the doctor can not possibly find injury caused by lathi. The submission advanced by him appears to be convincing and probable. That apart, It is noticeable that the decased sustained as many as thirteen injuries on his person caused by sharp edged weapon. It is possible that the doctor mentioned about those injuries which were more prominent and did not mention the injury caused by lathi because either he did not notice it or due to spreading of blood over the body he could not see the lathi injury. Be that as it may, the ocular version of the eye witnesses sets the matter at rest, inasmuch, as P.Ws. 1 and 2 both have unequivocally stated that the Appellant Anjani Kumar Choudhary assaulted the deceased with lathi and there does not appear any reason to disbelieve their statement on this score.

Learned Counsel appearing for the Appellants has relied upon a decision reported in the case of Jadu Yadav and others Vs. State of Bihar, in support of his contention that the Appellant Anjani Choudhary deserves to be acquitted because the doctor had not found any lathi injury on the person of the deceased and the allegation attributed against him is that he had assaulted the deceased with lathi. With all respect, I must say that the facts of the case before the Apex Court was entirely different as compared to the facts of the present case. In the case before the Apex Court, the allegation was that six Appellants had chased the deceased and caught him in the sugar-cane field where the deceased was assaulted with lathi and Gandasa. The doctor, who conducted the post mortem examination found seven incised injuries and also found abrasion on the neck and another injury described as multiple brain scattered all over the back. Their Lordships were of the view that where the prosecution version is that three assailants armed with lathis attacked indiscriminately is not supported with the medical evidence since only superficial abrasions were found by the doctor and, therefore, the participation of accused Nos. 1 to 3 becomes doubtful and accordingly, Appellant Nos. 1 to 3 were given benefit of doubt and were acquitted. In the present case, simple allegation against the accused Anjani Kurnar Choudhary is that he also assaulted with lathi alongwith other accused without specifying on which location he had assaulted. The nature of the case is such that Appellant Bhimsen Choudhary, who was armed with farsa assaulted the deceased indiscriminately causing as many as twelve injuries and in such a situation, to looks more probable that at the initial stage Anjani Kumar Choudhary might have given a lathi blow to the deceased and also hit on the cot creating the noise of ''Fatafat'' heard by the P.Ws. followed by the Appellant Bhimsen Choudhary, who opened indiscriminate assault on the deceased causing twelve injuries to him and because of this reason the doctor might not have found any lathi injury on the person of the deceased. It may be pointed out that P.Ws. 1 and 2 have clearly stated about the presence of Appellant Anjani Kumar Choudhary and all of them have stated that after assault all the three assailants fled away which they saw. Therefore, participation of Appellant Anjani Kumar Choudhary in the alleged offence clearly transpires even though he caused any injury or not. The circumstances of the case clearly go to show that all the three accused had gone to the ''Bathaan'' of the accused with a plan to commit his murder. It appears from the informatory petition (Exhibit-6) filed the deceased in the Court of S.D.M., Dalsinghsarai that much before the occurrence of the present case the Appellants and his family members had given threat to the deceased that they will kill him in sleeping position. Therefore, the participation of accused Anjani Choudhary in the occurrence in furtherance of the common intention is sufficient to make him liable u/s 302/34 of the Indian Penal Code and the absence of lathi injury on the person of deceased is not of much significance. As such, I am of the view that the Appellant Anjani Choudhary is also equally liable for the offence u/s 302/34 of the Indian Penal Code.

Lastly, it was argued by the learned Counsel for the Appellants that the prosecution has not examined the Dafadar, who was first to give information at the police station and on the basis of his information a station diary entry was made by the I.O. but the prosecution has withheld the station diary entry. So, an adverse inference can be drawn against the prosecution that the deceased might have been assaulted by some body else whose names were mentioned in the station diary entry. He further stated that the information given by the Dafadar which was entered in the station diary entry should be treated as the F.I.R. of this case. So, the fardbayan is hit u/s 162 Code of Criminal Procedure. In support of his contention, learned Counsel has relied upon a decision in the case of Shwe Pru v. The King AIR 1941 Rangoon 209, wherein it has been held that:

A telephone message given to police about the commission of a cognizable offence can be recorded by the station writ as a first information report, and the station writer may sign it himself as the person giving the information, for a first information report may be merely hearsay and need not necessarily be given by a person who has first hand knowledge of the facts. And subsequent statements made to police must be regarded as statements made to the police in the course of the investigation of this cognizable offence and therefore inadmissible u/s 162.

The aforesaid decision is not applicable in the instant case because there is nothing in the evidence of the I.O. which may show that information given by the Dafadar was actually recorded as first information report and signed by the writer. P.W. 6 has stated that Dafadar Ram Sagar Choudhary had only given information to him about the murder of Prem Kumar Choudhary at village Kewta and he entered the information in the station diary entry and proceeded for the place of occurrence where he recorded the fardbayan of the informant. It is the normal practice that whenever a police officer receives an information about the commission of a cognizable offence, such information is entered in the station diary and the police officer proceeds for the verification of the information received by him and when it is found that the information is correct, he records the fardbayan of the complainant and a case is instituted by him on the basis of such complaint. Therefore, it is not that all the information received at the police station are treated as F.I.R. of the case and it is only after verification of those information and recording of the fardbayan of the complainant that a substantive case is instituted under appropriate sections. I am, therefore, of the view that the fardbayan of the informant is not (sic)it u/s 162 Code of Criminal Procedure as held in the aforesaid decision.

So far the submission that Dafadar might have disclosed the names of some other persons as the assailants and due to that reason he has not been examined, I must say that no such presumption can be drawn, rather, it will be absurd to presume that the Dafadar had disclosed the names of other persons as the assailants and due to that reason he has not been examined. The I.O. has clearly stated that the Dafadar had not disclosed to him the names of the murderers. The evidence of P.W. 2 would go to show that he sent a man to inform the police about the occurrence without disclosing to him the name of the assailant. P.W. 2 had certainly not sent the Dafadar to give information at the police station, rather, he had sent another person to give information about the murder. Therefore, in all probability it must be presumed that the Dafadar must have been informed by that person, who was asked by P.W. 2 to give information at the police station and since P.W. 2 had not disclosed to that unknown person about the names of the assailants, that unknown person could not have possibly disclosed the names of the assailants to Dafadar and might have asked him to give information about the murder at the police station and the Dafadar, in his (sic)urn, went to the police station and gave information to P.W. 6 that he has received information about the murder committed at (sic)age Kewta without disclosing the names of the assailants which he could not have possibly disclosed because he himself did not know about the names of the assailants. It may be pointed out that alleged occurrence took place at 2.45 P.M. and the fardbayan of the informant was recorded at 4.30 p.m. The distance of the police Station from the place of occurrence was about six kilometers. As such, it would appear that the fardbayan was recorded with all promptitude and the informant disclosed to the I.O. the names of the assailants. The prompt recording of the fardbayan rules out any possibility of fabrication or concocted version. I am, therefore, of the view the non-examination of the Dafadar or the non production of the station diary entry can not be fatal to the proseeution case in view of the fact that P.Ws. 1 and 2, who are eye witnesses to the alleged occurrence appears to be reliable and trustworthy witnesses.

Regard being had to the facts and circumstances of the case and after carefully scrutinising the evidence on record, I am of the view that P.Ws. 1 and 2 are reliable and trustworthy witnesses, who have made consistent statements on all material points without being shaken in the cross-examination and their ocular version is in conformity with the medical evidence of the doctor. Therefore, I am of the view that the prosecution had proved the charges against the Appellants beyond all reasonable doubts and the learned Court below was quite justified in convicting the Appellants in the manner stated above.

In the result, I do not find any merit in this appeal which stands dismissed. Bail bond of Anjani Choudhary, who is on bail, is hereby cancelled and he is directed to surrender before the Court below to serve out the sentence. The remaining Appellants, namely, Bhimsen Choudhary and Kinkin Choudhary, who are in jail shall serve out the sentence awarded to them.

Bal Krishna Jha, J.

I agree.