(1.) These three appeals Nos. 117 of 1969, 129 of 1968 and 208 of 1968 by special leave arise out of one judgment of the Patna High Court disposing of Criminal Appeals Nos. 301, 303, 305, 306 of 1967 by the accused and Government Appeal No. 59 of 1967 and Death Reference No. 4 of 1967. Thirty one persons were charge-sheeted together and committed to stand their trial in the court of Session ii (sic) ne commitment proceeding. When the trial was about to commence it was found that one of the accused. viz., Bans Raj Singh, the sole appellant in Cr. A. No. 306 of 1967 before the High Court was absent. The trial had to be split into two and thirty of the accused were tried in Sessions Trial No. 143 of 1965 by the Sessions Judge of Shahabad. By judgment and order dated August 7, 1967 the Sessions Judge held only accused Gaya Rai, Shivadhar Rai, Jang Bahadur Rai and Fakkar Barhi, from out of six of the appellants in Cr. A. 117 of 1968 guilty under Section 302 read with Section 34 I. P. C. for committing the murder of eight persons and sentenced them to death. He also found them guilty of a charge under Section 302/149 and 148 I. P. C. but passed BO separate sentence in respect thereof. He held that they and other culprits had the common intention to commit the murders perpetrate and held these four persons guilty under Section 302/34 I. P. C. The other two appellants in Appeal No. 117/1968 before this Court are Ram Kishum Barhi and Siri Kishum Barhi. They along with several other accused were acquitted in the Session trial. The Government Appeal No. 59 of 1967 before the High Court was however accepted against them as also Rajkumar Rai and Deodhari Rai. The High Court convicted them under Sections 302/34, 392/149 and 148 I. P. C. and sentenced them to imprisonment for life under the first count passing no sentence against them under the other counts. Cr. A. No. 333 of 1967 before the High Court was allowed and the sentences passed against Bhardul Upadhaya and Kailash Singh were set aside. Tribeni Rai was found guilty under Section 302/34, 302/149 and 148 of the Penal Code and sentenced to undergo rigorous imprisonment for life under the first count but no separate sentence was passed on him on the other counts. The Government Appeal No. 59, 1967 was dismissed as against twelve other accused. Government Appeal against Ram Govind Singh was dismissed and Cr.A. 301/1967 before the High Court was allowed. Bans Rai Singh, the sole accused in Sessions Trial No. 130 of 1965 in the court of Sessions Judge of Shahabad was found guilty of a charge under Section 302 read with Section 109 I.P.C. and was sentenced to undergo imprisonment for life. His conviction was upheld by the High Court in Cr.A. No. 305 of 1967. State had appealed against the acquittal of nineteen persons by the Sessions Judge to the High Court.
(2.) Nine murders took place in village Puma Nokha in the district of Shahabad in Bihar in the night between 10th and 11th June 1964. The said village was only a small hamlet consisting of 20 to 25 houses situate at a distance of a quarter of a mile from the police station of Nokha. There were 6 or 7 families of Rajputs, four families of Ahirs, eight families of Barhis and 4 or 5 families of Busadhs in the said hamlet. There were two factions in the village one of the Ahirs and the other of the Rajputs. The Barhis were divided some siding with the Ahirs and some with the Rajputs. There can be no question that the enmity between the two factions was very bitter and led to the commission of serious crimes including murder from time to time. Two Ahirs were killed in April 1961 resulting in Case No. 5 (4) 61 registered at Nokha Police station on April 12, 1961. The accused in that case were Gaya Rai, Tilok Rai, Ramdhar Rai and others who were convicted by the Session Court but acquitted by the High Court. In 1962 there was a case No. 7(8) 62 under Section 147 of the Penal Code. In the year 1963 there was a criminal case against Gaya Rai and his brothers started by the Barhis. On February 28, 1964 Gaya Rais brother, Tilak Rai and his uncle Nand Kumar Rai were murdered resulting in Case No. 8(2) 64, In this case Ramkrit Ahir and his sons Daroga, Harishankar and Subedar and his nephew, Shivshankar were put on trial, Harishankar and Subedar were acquitted by the trial court but Harishankar was murdered after his acquittal. As a result of the murders in February 1964 four armed constables and a Havildar were posted in the village as there was apprehension that- Gaya Rais group might take revenge against Ramkrit Ahir and his family members. A Magistrate was also deputed to the village. The armed constables were staying in one of the houses of Ramkrit while the members of his family were occupying another house. The Magistrate was staying in a Khalihan at a distance of 200 yards south of the house of Ramkrit Ahir. The Magistrate left the village on June 8, 1964. On the night of the occurrence a Havildar and four constables were guarding Ramkrits house.
(3.) Eight out of nine persons murdered on the night of June 10, 1964 were sleeping on the roof of a temple in the western extremity of the village. The other victim Mukund was sleeping in a "pelani" south of the temple. According to the case of the prosecution, besides the said eight persons there were on the roof two other persons, namely, Mangar and Senicheri. These last two figured as prosecution witnesses Nos. 6 and 7 at the trial. All these ten persons belong to the same family. Of the persons murdered on the roof top, five were sons of Sanichari. They were Samroo, Muni, Sheomuni, Sheoprasad and Sri Ram. The other persons murdered on the roof were (1) Angad, son of Samroo, (2) Mangru, son of Mangar and (3) Palton, son of one Ramkrit Barhi. The last two persons, Mangar and Palton were Sanicheris husbands brothers. Mangar figured as prosecution witness No. 6. The ninth person killed was Sanicharis husband, Mukund who lost his life near the pelani. The roof of the temple was only 9 ft. from the ground on one side and 11 ft. on the other. It measured roughly 25 x 20. It consisted of four compartments described in the judgment as comprising of three blocks, the northern block, the eastern block and southern block. Besides these blocks there was a dome of the temple which occupied roughly 8 x 8 on the roof top. To the north and east of of the temple were situate the houses of the villagers. To the west of the temple were open fields. Immediately to the north of the temple at a distance of 6 from it, there was a mud-built dalan of the accused Fakkar Barhi, This dalan faced north. Adjacent to it on the western side was a room facing east used for tying cattle. To the east of it (the cattle shed) was another loom facing south called Paunta Ghar (a place used for storage of fodder). In between the dalan, the cattle shed and the Paunta Ghar there was a strip of "sahan" lands measuring 5 to 6 steps from north to south and about five steps from east to west. To the east of this land there was a lane running north to south. The lane took a turn towards the east on the south and then joined a lane running north to south east of the temple. There was a piece of particular land about 16 wide from north to south adjacent north of the said Paunta ghar. The northern end of the lane by the sahan land of Fakkar Barhi led to this parti land. To the east of the land opposite the Paunta ghar was the house of Managar, P.W 6 The parti land was also accessible from the north by a lane which first ran north, then to east, then to south and then to east again leading to the house of Gaya Rai at a considerable distance from the parti land. The houses of the accused Fakkar Barhi and Ramkishun Barhi stood to the east of the temple with some space in between. The open palani where Mukund was sleeping was at a distance of 10 to 12 steps south of the temple. The temple itself belonged to Managar, P.W.6 and the female quarters (Zenani kita as it is called in the judgment ) of his house was at a distance of 25 steps north-east of the temple. The house of Ramkht Ahir two of whose nephews figured as prosecution witnesses Nos. 8 and 26 was close to the house of the accused Gaya Rai and north of the land already men-tioned. If one were to avoid the lane west of Gaya Rais house and to go to the temple by a more round about way, he would have to travel about 400 yards.