(1.) Criminal Appeal No. 370 of 1986 and Criminal appeal No. 388 of 1986 have been heard together with the consent of the parties since both the appeals arise out of a common judgment. This judgment will govern both the appeals. Gopal Sharan Pandey (Appellant No. 1) and Ram gopal Pandey (Appellant No. 9} of Criminal Appeal No. 388 of 1986 have been convicted under Section 302/34 of the Indian Penal Code (hereinafter referred to as 'the Code') for causing death of Fulukmari Devi and Kali Tate and they have been sentenced to undergo imprisonment for life. Ramdeo Pandey (appellant No. 11) , Baijnath Rai (appellant No. 14) , Deonath Pandey (appellant no. 8) , Ram Ayodhya Pandey (appellant No. 3) , Bishram Pandey (appellant no. 21) , Sadhu Sharan Pandey (appellant No. 2) of criminal appeal No. 388/86, dharam Pandey alias Dharmu Pandey (since dead) , appellant No. 6, aud Ram janam Pandey (appellant No. 5) of criminal appeal No. 370/86, have been convicted under Section 302/34 of the Code for causing death of Fulkumari devi and sentenced to undergo imprisonment tor life. Naruarain Pandey (appellant No. 7) , Raghubar Pandey (appellant No. 10) , Ram Prasad Panday (appellant no. 20, Kamla Pandey alias Kamla Kant Pandey (appellant No. 1 , Rangnath pandey alias Rangnath Rai (appellant No. 15) of Cr. Appeal No. 388/86 and chandrika Pandey (appellant No. 4) of Cr. Appeal No. 3. 0 of 1986 have been convicted under Section 302/34 of the Code for causing death of Kali Tate and sentenced to undergo imprisonment for life. The aforesaid appellants have also been convicted under Section 302, read with Section 149, of the Code but no Separate sentence has been awarded to them under this Count. The remaining appellants as well have been convicted under Section 302/149 of the Code and sentenced to undergo imprisonment for life. Ram Gopal Pandey (appellant no. 9) of Cr. Appeal No. 388/86 has further been convicted under Section 436 of the Code and sentenced to undergo rigorous imprisonment for 10 years and remaining appellants have been convicted under Section 436, read with Section 149, of the Code and have been sentenced to undergo rigorous imrisonment for 10 years each. All the appellants have further been convicted under Section 435, read with Section 149, of the- Code but no separate sentence has been awarded under this count as well as for their conviction under Section 120-B of the code. Narsingh Pandey (appellant No. 24) Deonath Pandey (appellant no. 8) , Ram Ayodhya Pandey (appellant No. 3) , lakshuman Tiwary (appellant No. 12) of cr. Appeal No. 388/86, Ram Dhari Pandey (Appellant no. 3) Raghubansh Pandey (appellant No. 1) , Dharam Pandey alias dharmu Pandey (appellant No. 6, since dead) and Ram Janamu Pandey (appellant No. 5) of Cr. Appeal No. 370 of 1986 have been convicted under section 147 of the Code and rest of the appellants have been convicted under section 148 of the Code, but no order of sentence has been passed against the respective appellants for these offences. Gopal Sharan Pandey (appellant No. 1) , sadhu Sharan Pandey (appellant No. 2) Raghuber Pandey (appellant No. 10) , narnarain Pandey, (appellant No. 7) , Ram Prasad Pandey (appellant No, 20) , rameshwar Pandey (appellant No. 5) , Jairam Pandey (appellant No. 19) , Kamla, pandey alias Kamla Kant Pandey (appellant No. 16). Narad Pandey (appellant no. 17) , Ramekbal Pandey (appellant No. 13) , Ramdeo Pandey (appellant no. 11) , Krishna Pandey (appellant No. 5) , Baijnath Rai (appellant No. 14) , rangnath Pandey alias Rangnath Rai (appellant No. 15) , Deocharan Pandey (appellant No. 18) of Cr. Appeal No. 388 of 1986, Chandrika Pandey (appellant no. 4) and Guput Pandey (appellant No. 2) of Cr. Appeal No. 370/86 have also been convicted under Section 27 of the Arms Act and each of them has been sentenced to undergo rigorous imprisonment for 1 year. The sentences have, however, been ordered to run concurrently.
(2.) Prosecution case is that on 12-3-1977 P. W. 25, Ram Sarekh Singh, then posted as the Officer-in-charge of Sahar Police Station within the district of Bhojpur on receiving confidential information went to village Gorpa where he recorded the Fardbeyan (Ext. 6) on the same day on the statement of Kailash ram of that village (P. W. 5). Formal First Information Report is Ext. 7 and it was drawn up at Sahar Police Station on the same day at 10 a. m. and the case under Sections 147, 148,302/149, 324, 323, 435, 436 and 120-B of the Code, 27 of the Arms Act and under Section 3 read with Section 5 of the explosive Substance Act was instituted against 47 persons including the appellants was named in the First Information report (Ext. 7). The allegations contained in the Fardbeyan of Kailash Ram (P. W. 5) , the informant, is that on 11-3-1977 at 5 p. m. he was sitting at his dwar (outer house used as baithka) and was cutting straw. He saw that 45 to 50 persons forming unlawful assembly came to village being armed with guns, rifles, katta and lathi through the embankment of the canal. The mob came towards south of his house. After seeing the mob in order to save his life he wanted to run away. In the mean lime the aforesaid assembly of persons (gohar) surrounded him from northern side. The two female folk of his house were also surrounded. In that assembly, Kamla Pandey alias Kamla Kant Pandey son of Kamdhayan Pandey who was armed with rifle, fired on him but it missed and did rot hit him. He entered into the door of his house and closed the killi (closing device of doors from inside, Amongst the persons of the mob he identified 47 persons as named in the first Information Report including the appellants of both the appeals as well as dead and absconding accused persons. It has further been stated in the Fardbeyan that the culprits were armed with guns, rifles kattas and bombs. The accused persons surrounded his house and Dharam Pandey alias Dhannu Pandcy (since dead) (appellant No. 6 of Cr. Appeal No. 370/86) cried that Surpanch has been surronded in the house set the house on fire. Thereafter, his house was set on fire which started burning causing sufficient smoke. He climbed up on a lemon tree which was in the angan and went over the roof of the house and saw that the accused persons were surrounding his house towards north east and west and were making noise. He (P. W. 5) , the informant, getting an oppportunity jumped into the room towards south and kept himself concealed in that room for 2 to 3 hours. During that period the accused persons fired 40 to 50 rounds and threw two bombs in his room but he was saved. It has further been stated that when the accused persons believed that he (P. W. 5) had been burnt to death then after seeding the flash of light of motor vehicle all of them assembled together and suspected that the police had reached. They moved from that place. Thereafter he (P. W. 5) anyhow came out of the room and in order to save his life jumped into the canal and went to Vikhanpur tola. There he learnt that two vehicles of canvassers had come and the police had been informed by the canvassers regarding the occurrence. It has also been stated in the First information Report that the accused persons burnt his house as well as of Ram naresh, Jhuman Ram, Kali Tanto, Dharikshan Tanto, Chandradeo Ram, Shiv kumar Yadav, Hiraman Kumhar, Gubudan Yadav, Dayalu Yadav, Kapildeo yadav, Ram Sahay Yaday and Rampati Kumhar causing loss to them. The accused persons also burnt the pual (dried straw of paddy) belonging to Ram Gahan yadav, Bhuar Yadav, Gabudan Yadav, Dayali Yadav, Mangru Kanu, Raj Grihi dusadh, Ram Pujan Dusadh and Iadradeo Dusadh. They also killed Tijia devi wife of Gabudan Yadav (P. W. 3) , Fulkumari Devi, wife of Kapildeo yadav (P. W. 2) , Dipan Yadav son of Mangru Yadav, Hiraman Kumhar son of Prikha Kumhar and Kali Tanto, son of Videshi Tanto by shooting at them by rifles and guns and cutting them with katta. They also burnt Tijia Devi, fulkumari Devi and Dipan Yadav after killing them by spraying Kerosine oil on their dead bodies. Fulkumari Devi was pregnant and had conceived a child two months back, which also got aborted. It has further been alleged in the fardbeyan that Ram Sahay Yadav had received gun shot injury. Gabudan yadav (P. W. 3) , Kapildeo Yadav (P. W. 2) and wife of Kali Tanto and villager mahesh Pandey, Ram Murti Yadav (P. W. 8) and others would say about the occurrence as stated by the informant in the Fardbeyan. It has further been stated in the Fardbayan by Kailash Ram (P. W. 5) that enmity was coming since long with the bhumihars of village because of the fact that 7 to 8 months ago naxalites had attacked the bhumihars of the village in which some persons were killed. Persons of bhumihars community suspected that the naxalites had Committed the offence at their instance which was absolutely incorrect Due to this enmity the accused persons took revenge. Signature of the informant has been marked as ext. 1/6 on the Fardbeyan. P. W. 25, ram Sarekh Singh, himself took up investigation and re-examined the informant. It appears that the Deputy Superintendent of Police and the Inspector of Police were at the place of occurrence from before the arrival of the Investigating Officer. The P. O. village was northern tola of village Gorpa which was iuhabited by Yadavs, Dusadh and Tanto. They had their houses which were on one side. Houses of kumhars were to the south. There was culturable land and orchard towards east of the village and towards west a small canal was passing from south to north. The houses of Yadavs and Harijans were adjacent east of this canal. In the northern portion of the village there were culturable lands towards south of the houses and there was land and orchard towards east of the canal. In the orchard the thrashing grounds for crops of bhumihars were situated and their houses were towards east from that place The out let of the village of the bhumihars was towards west and another path towards adjacent south of the houes of Harijans which passed in between the houses of Gabudan Yadav (P. W. 3) and Bindhyachal pandey leading to pakri where a lane met connected with the houses of the bhumihars and goes further north. Another path passed through in between the houses of Harijans and Yadavs through canal. The houses of Kailash Ram was towards south whereas the house of Rampati Ram, Hiraman Ram was towards the north. After crossing the houses these path turns towards north and via southern lane of Harijan tola goes towards east. Houses of Ram naresh Ram (P. W. 15) , Dharichhan Tanto (P. W. 10) and Rajgrihi Dusadh were found burnt which were towards north of this path. Towards south of this path as stated above there was house of bindhyachal Pandey and his cowshed which was also found burnt. Another path which was east of the canal and passed through north of dalan of Kailash Ram was running from west to east. A machine of cutting straw was found infront of the dalan (out house used for sitting purpose) of Kailash Ram and the dalan was found burnt. House of Dhaman Ram (P. W. 18) and Chola Duasadh was just adjacent south of the house of Kailash Ram which were facing west and the Bhusaul (structure used for keeping straw) was towards south facing east. Towards further south there was open field and the orchard was clearly visible. There was also sehan infornt of that place. Houses of Rajgrihi Dusadh, Naresh, Rampati Duasadh hiraman Kumhar and others were to the further east. The dead body of Kali tanto was found in the gali which was running south to north and was to the south of the houses of Dudhnath and Bindhyachal Pandey. It was near south eastern corner. P. W. 25 found a bullet hole in the mud wall of Dudhnath which was l 1/2 dead, P. W. 25 further found that the bhusaul of Kailash Ram, Bhola ram, Naresh, Rajgrih, Dharichhan, Kali Tato and cow shed of Bindhyachal pandey were burnt. Shop of Bengchi Sao was in the dalan of Chandra Mani yadav. This dalan was also found burnt. The dead body of Dipan Yadav was found in this dalan which was burnt. P. W. 25 also found the north portion of the house of Kapildeo Yadav (P. W. 2) and Khakhnu Yadav (P. W. 16) burnt. There was field towards north of the house of Khakhnu Yadav were bomboos and tiles were found. House was burnt. Towards south of this field and north of the house of Kapildeo Yadav (P. W. 2) there was a dalan intervened by path. In this very field the burnt skelton of Fulkumari Devi was found. On mere touch, the limbs separated. The articles of that place were also found burnt. A road was running from south to north from near the pakri tree and house of Bachcha pandey was towards its east. Houses of Hiraman Kumhar and Rampati Dusadh were found partially burnt. House of Hiraman Kumhar was facing towards north. The dead body of Hiratnan Kumhar was found in the gali. There was a field in front of house of Prabir Yadav and the heap of dried cow dung was found burnt where the dead body of Tijia Devi was alleged to have been burnt. The dead body of Tijia Devi was found in the house of Ramashish Yadav In the dalan facing north which was a part of the same house the dead body was lying supine.
(3.) Under the direction of P. W. 25, the Investigating Officer, (P. W. 23) Ram Chandra Mishra held inquest on the five dead bodies in presence of witnesses carbon whereas of Inguest reports have been marked as Exts. 3 to 3/4. P. W. 25 also found the heap of straw of Indradeo Dusadh, Bhuar yadav, Gabudan Yadav, Dayali Yadav, Mangru Kanu, Rajgrihi Dusadh, Ram pujan Dusadh and others burnt. Near the dead body of Kali Tanto blood like substance was found on the ground. Burnt ashes were seized by the Investigating officer, seizure list has been marked as Ext. 8. Fifteen accused persons were arrested by the Invesiigating Officer who had been detained by the Deputy superintendent of Police and Inspector of Police from before and some arms were also handed over by them which he seized and prepared seizure list Ext. 1. The investigating Officer had also prepared rough sketch map of the place of occurrence which is Ext. 10. He examined witnesses and found Ram Sahay Yadav injured, issued injury report and sent him to Doctor for examination and treatment. It appears that/ the dead bodies were sent to the doctor for postmortem examination.