Patna High Court
Gauri Devi And Ors. vs The State Of Bihar on 13 November, 2006
Equivalent citations: 2007(1)BLJR458
Author: Rekha Kumari
Bench: Chandramauli Kumar Prasad, Rekha Kumari
JUDGMENT Rekha Kumari, J.
Page 0459
1. The above appeals are directed against the same judgment dated 19.7.2001 passed by the 1st Additional Sessions Judge, Nawadah in Sessions Trial No. 157 of 1997/70 of 1998 and as such they have been heard together and this judgment would dispose of all of them. The learned Additional Sessions Judge, by the above judgment, has convicted all the appellants except appellants Anil Yadav and Ram Janam Yadav under Section 302/149 of the Indian Penal Code and has convicted appellants Anil Yadav and Ram Janam Yadav under Section 302 of the Indian Penal Code. He has further convicted appellants Anil Yadav, Ram Janam Yadav and Gaya Yadav under Section 27 of the Arms Act. The learned Additional Sessions Judge has sentenced all the appellants to undergo imprisonment for life for the murder of the deceased and has further sentenced Anil Yadav, Ram Janam Yadav Yadav and Gaya Yadav to undergo rigorous imprisonment for three years for the offence under Section 27 of the Arms Act with the direction that the two sentences against these three appellants would run concurrently.
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2. The prosecution case, as disclosed from the Fardbeyan (Ext. 4) of the informant Alakhdeo Yadav is that on 2.12.1996 he along with his brothers Bichitra Yadav, Arjun Yadav and nephews Sudhir Yadav and Ram Nandan Yadav and the labourer Nandu Rajbanshi was piling paddy straw in stack in his Khalihan, west of his village. At about 11.00 A.M. his wife Suleshani Devi and Bataswa Devi, wife of his elder brother Bichitra Yadav were coming to the Khalihan with their food and while they were at a distance of about 100 ft. from the Khalihan, the female appellants, namely, Phulan Devi, wife of Gaya Yadav, Sunarwa Devi wife of Ram Janam Yadav, Lakhiya Devi wife of Mishri Yadav, Gauri Devi, Ajnasia Devi, all armed with brick bats and Mako Devi, daughter of appellant Sheo Narayan Yadav armed with Pistol surrounded them and started assaulting them. In the meantime, the other appellants among whom appellant Mishri Yadav was armed with Garasa and other appellants, namely, Anil Yadav, Ram Janara Yadav, Ganga Yadav, Sheo Nandan Yadav, Manoj Yadav armed with gun, reached there and appellant Anil Yadav fired hitting his wife Suleshani Devi on the left arm. Appellant Ram Janam Yadav also fired causing injury to his wife. Accused Mako Devi fired with her Pistol causing injury to Bataswa Devi. Appellant Gaya Yadav also fired causing injury to his wife. His wife and Bataswa Devi fell down and became unconscious. Appellant Gaya Yadav took away a silver Hasuli from his wife's neck. On hulla some villagers arrived and the appellants fled away. The two injured were taken to Nawadah Sadar Hospital but his wife died on their arrival at the Hospital. Bataswa Devi was hospitalised for treatment. It is also alleged that as there was old enmity with regard to Rasta, the occurrence took place.
3. On the same day at 3.00 P.M. S.I. Gorakh Nath Sharma of Town Police Station, Nawadah, recorded the above Fardbeyan in Sadar Hospital, Nawadah, On the basis of that Fardbeyan, formal F.I.R. (Ext. 5) was drawn up. The police after investigation submitted chargesheet against the appellants.
4. It appears from the impugned judgment that as accused Mako Devi was a juvenile, her case was separated and sent to the court of the Chief Judicial Magistrate, Nawadah for trial. It further appears from the evidence that appellant Mishri Yadav is son of one Baudhu Gope. Appellants Sheo Narayan Yadav and Mishri Yadav are brothers and appellants Ram Janam Yadav and Gaya Yadav are grand sons of Boudhu Gope, appellants Manoj Yadav and Anil Yadav are sons of appellant Sheo Narayan Yadav. The evidence also shows that Lilo Yadav, father of the informant was own brother of Boudhu Gope.
5. All the appellants were charged under Section 302/149 of the Indian Penal Code for being members of an unlawful assembly in prosecution of the common object of which Suleshni Devi was murdered. They were also charged under Section 307/149 of the Indian Penal Code for attempting to commit murder of Bataswa Devi. Appellants Anil Yadav, Ram Janam Yadav and Gaya Yadav were charged under Section 302 of the Indian Penal Code for committing murder of Suleshni Devi. Appellants Anil Yadav, Ram Janam Yadav, Gaya Yadav, Shiv Narayan Yadav and Manoj Yadav were also charged under Section 27 of Arms Act. The appellants pleaded not guilty to the charges.
6. The defence of the appellants as gathered from the suggestions given to the P.Ws. and D.Ws. examined is that on the alleged date, in the morning appellant Sheo Narayan Yadav was fencing his land situated south of his house along with his Page 0461 son and labourers, as vegetables were grown in that land, when the informant and others went there and protested. There was altercation between the parties. Then the informant and others went back to their house and soon thereafter they returned and Alakhdeo Yadav (informant) fired at appellant Sheo Narayan Yadav but the shot hit his wife who along with Bataswa Devi had reached there to pacify the parties; and that no occurrence as alleged by the prosecution took place.
7. The prosecution examined eight witnesses to prove the charges. Among them P.W. 1 Rabindra Kumar is a child witness, P.W.2 Arjun Yadav, P.W.3 Bichitra Yadav, P.W.5 Bataswa Devi, P.W. 7 Alakhdeo Yadav (informant) claim to be the eye witnesses to the occurrence. P.W. 4 is Dr. Shivdayal Das who had performed the post mortem examination on the dead body of Suleshni Devi, P.W. 6 is Dr. Mukti Nath Singh who had examined Bataswa Devi and P.W. 8 is Gorakh Nath Singh, retired S.I., the I.O. of the case.
8. The appellants have entered into defence and has examined four witnesses in support of their defence. Among them D.W. 1 Anandi Prasad Sinha is a formal witness and has proved an un-registered sale deed (Ext. A), D.W.2 Raju Yadav. D.W. 3 Ram Naresh Singh and D.W.4 Dharrnendra Singh have been examined to show that Suleshni Devi had received gun shot injuries at the hands of Alakhdeo Yadav who had fired on appellant Sheo Narayan Yadav when he (appellant) was fencing his land.
9. The learned trial court after considering the evidence of the witnesses did not find the appellants guilty for attempt to commit murder of Bataswa Devi, but found the appellants guilty for the murder of deceased Suleshni Devi and convicted and sentenced them as mentioned above.
10. The point for consideration in this appeal is that whether the prosecution has been able to prove the charges for which the appellants have been convicted.
11. Learned Counsel for the appellants submitted that there was dispute between the parties with regard to Rasta and as such the informant was inimical with the appellants from before and that all the prosecution witnesses examined in the case are relatives of the informant and no independent witness has been examined by the prosecution. Therefore, on the basis of the evidence of only interested witnesses, the prosecution case cannot be said to have been proved. He further submitted that if the appellants had any intention to take revenge on the informant, they would have attacked any male member and not the female members as. alleged. He also contended that if any such occurrence would have taken place, the most natural conduct would have been that the informant and other witnesses who are said to be in Khalihan, must have rushed to the place of occurrence to save the female members, but there is nothing in the evidence to show that any attempt was made by the informant and other persons to save the female members from assault.
12. In order to appreciate the above submissions of the learned Counsel I have gone through the evidence of the witnesses examined in this case.
13. P.W. 7 Alakhdeo Yadav, the informant, has deposed that on the alleged date at about 11.00 A.M. he was piling the paddy straw in stack in his Khalihan. His wife Suleshni Devi, his elder brother's wife Bataswa Devi, at that time were coming to Khalihan from their house with their food and when they were at a distance of about 100 yards from the Khalihan, accused Mako Yadav, wives of Gaya Yadav, Ram Page 0462 Janam Yadav, Lakhia Devi, Gauri Devi and Ajnasia Devi surrounded his wife and Bataswa Devi. Accused Mako Yadav had a Pistol in her hand and the female appellants were having brick bats with them. Mako Yadav fired on Bataswa Devi and she received injury on her head. The female appellants threw brick bats on her. He has further stated that soon thereafter the other appellants (the witness has named the appellants) reached there --appellant Mishri Yadav armed with Garasa and others, armed with gun. Appellant Anil Yadav fired which hit his wife on the left arm pit, appellant Ram Janam Yadav also fired with his gun which hit Suleshni Devi on her left arm. Appellant Gaya Yadav also fired. His wife fell down and Gaya Yadav took away silver Hasuli from her neck. On the alarm raised, witnesses Prabhu Yadav, Raju Yadav (D.W.2) and others came and witnessed the occurrence. He has also stated that Bichitra Yadav, Arjun Yadav, Rabindra Yadav and others saw the occurrence and that after assault, the appellants fled away. They took the two injured to Sadar Hospital, Nawadah for treatment. His wife died as soon as they reached the hospital. The Sub-Inspector of Police came to the Hospital and recorded his statement.
14. P.W.5 Bataswa Devi has also stated that on the alleged date the male members of their family were piling paddy straw in stack and at about 11.00 A.M. she and Suleshni Devi were going to Khalihan with their food and when they were at a distance of about 100 steps from the Khalihan, accused Mako Devi and the female appellants surrounded them. Accused Mako Devi fired and she received injuries on her head and the other female appellants assaulted her by throwing brick bats. She has further stated that, in the meantime, the other appellants reached there among whom Mishri Yadav was armed with Garasa and others were armed with gun and that appellant Anil Yadav fired causing injury to Suleshni Devi on left shoulder. Appellant Ram Janam Yadav also fired and Suleshni Devi received injury again on left shoulder and she fell down and appellant Gaya Yadav snatched away Hasuli from her neck. Her evidence also is that: their family members took them to Sadar Hospital where she was treated and her Gotni Suleshni Devi died.
15. P.Ws. 1, 2 and 3 who are said to be at the Khalihan at the time of occurrence have claimed to be the eye witnesses of the occurrence and have narrated the occurrence in the same manner as the above P.Ws. They have also named the appellants. P.W. 2 has further stated that on account of old enmity the occurrence took place. In cross examination he has further stated that the enmity was due to fencing of Rasta.
16. P.W. 4, the doctor, has deposed that on 3.12.1996 at about 10.00 A.M. he had performed the post mortem examination on the dead body of Suleshni Devi (deceased of the case) and found the following ante mortem injuries:
i) Lacerated wound at middle part of left arm in antero lateral aspect with charred and inverted margin, measuring 1" x 1" x muscle deep through which fractured end of left humuras protuding out -- it was wound of entry.
ii) Lacerated wound on the upper part of left arm near axilla on antero medial aspect of arm measuring 1/2" x 1" x muscle deep oval in shape with everted margin -- it was wound of exit.
iii) Lacerated wound at left shoulder in interior surface near left axilla measuring 3/4" x 2/3" x cavity deep with inverted margin -- it was wound of entry.
He has further stated that on dissection he found all the viscera intact and pale, heart on both sides empty, stomach containing semi digested meal nearly four Page 0463 cunces. The urinary bladder was found empty. Fracture of middle third of left humerus corresponding to external injury No. (i). Two metallic foreign body recovered from left side of neck resembling distorted bullet.
17. He has opined that the injuries were caused by fire arm such as gun shot, and the above injuries were sufficient in ordinary course of nature to cause death. He has further opined that the death was caused between 24-36 hours of the post mortem examination and on account of shock and haemorrhage due to the above injuries. He has proved his post mortem report which is Ext. 2.
18. P.W. 6 has deposed that on 2.12.1996 he was posted as C.A.S. Sadar Hospital, Nawadah and on that date at 12.40 p.m. he examined Smt. Bataso Devi, wife of Bichitra Yadav of village Ashari, P.S. Nawadah and found the following injuries on her person:
i) Lacerated wound on the vertex 3 1/4" x 1/2" x bone deep on scalp.
ii) Lacerated wound on the right arm of the size 1 1/4" x 1/3" x skin deep.
iii) Complain of pain all over the body.
He has opined that the injuries were caused by hard and blunt substance, within 12 hours of the examination and injury No. (ii) was simple in nature. The evidence of the witness further shows that he had advised x-ray of skull and after x-ray on 4.12.1996, he found that injury No. (i) was also simple in nature. His injury report is Ext. 3.
19. P.W. 8, the I.O. has stated that on 2.12.1996 he was posted as S.I. of Town Police Station, Nawadah and on that date he recorded the statement (Ext. 4) of Alakhdeo Yadav at Nawadah Sadar Hospital at 3.00 P.M. and he was entrusted with the investigation of the case. He has also stated that he had prepared the inquest report (Ext. 6) of the dead body of the deceased and recorded the further statement of the informant and then inspected the P.O. shown by the informant. He has stated that the P.O. was a Kachhi road about 500 yards west of village Asarhi. The place was also at a distance of 30 yards south-east of the Khalihan of the informant. He found blood and also stains of blood there. The evidence of this witness further is that thereafter he recorded the statements of the witnesses and after the receipt of the post mortem report, submitted chargesheet in the case.
20. Thus, from the evidence of the eye witnesses it appears that they all have supported the prosecution case and corroborated each other.
21. The evidence of the eye witnesses is that the deceased had received two gun shot injuries on left upper arm near axilla region and left shoulder. The evidence of P.W. 2 also is that appellant Anil Yadav fired on the deceased from a close range. P.W. 3 has stated that appellant Anil Yadav had fired from a distance of four steps. The evidence of the doctor, P.W. 4, shows that he had found three injuries caused by gun shots and one of the entry wounds was on the middle part of the left arm and the other wound of entry was on the left shoulder and that the first injury had charred margin indicating thereby that it was caused from a close range. Therefore, the evidence of the eye witness finds corroboration from the medical evidence. The occurrence, as alleged took place at about 11.00 A.M. on 2.12.1996 and according to the eye witnesses the deceased died as soon as she was taken to Sadar Hospital. The evidence of the doctor (P.W. 4) also shows that he had conducted the post mortem examination on 3.12.1994 at about 10.00 A.M. and the Page 0464 time elapsed since death from the time of examination was between 24 to 36 hours. This also supports the case of the prosecution that the occurrence had taken place at or about the time of the alleged occurrence.
22. The evidence of the I.O. P.W. 8 shows that the place of occurrence was a village road near Khalihan of the informant and he found mark of blood at that place. Hence, the evidence of the I.O. also corroborates the evidence of the eye witnesses that the occurrence had taken place at the P.O. as stated by them.
23. Among the witnesses P.W. 7 is of course husband of the deceased but mere relationship is no ground to disbelieve a witness. The only safeguard is that it must be scrutinized cautiously The Fardbeyan corroborates his testimony in material particulars. The Fardbeyan was also recorded without much delay at 3.00 P.M. and, therefore, there was little chance of concoction in it. He has been cross-examined at length, but there is nothing material in his evidence to discredit him. He has admitted that he has land west to the house of appellant Sheo Narayan Yadav in which he has a Boring. He has futher admitted that Sheo Narayan Yadav has got his own land south of his house and that he (informant) goes to his Boring through that land of Sheo Narayan Yadav. He has, however, denied that Sheo Narayan Yadav prevents them from going to the Boring through that land and has stated that there is no dispute between him and appellant Sheo Narayan Yadav for the Rasta. Whereas P.W. 2 has stated that there was dispute between them for fencing of the passage by the appellants. P.Ws. 3 and 5 have also stated that there was dispute between them for the above passage. But for this contradiction alone the evidence of the informant cannot be doubted. It has been suggested to this witness (informant) that on the date of occurrence the appellant was fencing the above land when there was quarrel between them but he has denied the suggestion. Nothing could also be elicited from the evidence of other witnesses that there was any quarrel between the parties on the date of occurrence for fencing the above land. So, it cannot be said that the occurrence in which the deceased had received gun shot injuries had taken place when the appellant was fencing the passage as suggested by the appellants. This witness has also denied the suggestion that he had fired at appellant Sheo Narayan Yadav when he was fencing his land causing death of the deceased and a denied suggestion is of no avail to the appellants. His evidence, of course, is that he did not go to the place of occurrence from the Khalihan. But he has explained that as the appellants had pointed gun at him, out of fear, he did not go there. Therefore, it is not unnatural that he did not go to the P.O. to save his wife and from this circumstance also, it cannot be said that he did not see the occurrence. The witness was in his Khalihan and the evidence of the I.O. is that the P.O. was at a distance of 30 yards from the Khalihan of the informant. Therefore, it is natural that the witness could see the occurrence from his Khalihan. Therefore, though this witness is interested being the informant and husband of the deceased, he is a competent witness and his evidence is trust worthy.
24. The evidence of the eye witness is that before the arrival of the male appellants, the female appellants and accused Mako Devi had assaulted Bataswa Devi (P.W.5). The evidence of P.W.6, the doctor, also shows that she had received injuries at about the time of occurrence. Hence, though the female appellants have been acquitted of the charge under Section 307/149 of the Indian Penal Code for assaulting P.W. 5 Bataswa Devi, there cannot be doubt that she (P.W.6) had received injuries Page 0465 at the place of occurrence. So, she is the most competent witness in this case. Her evidence also shows that she was examined by the I.O. on the date of occurrence. Hence, there was no chance of embellishment in her statement before the I.O. The evidence of the I.O. shows that she did not name Sheo Narayan Yadav and Mishri Yadav before him though she has stated their names in her evidence but she herself was in agony having received injuries on head. Therefore, only because she omitted to take the names of these two appellants before the I.O. it cannot be said that she did not see the occurrence and only because she did not name them before the I.O. as the other witnesses have consistently stated about their involvement it cannot also be stated that they were not present at the place of occurrence. The witness has been cross examined at length but there is nothing else in her evidence to shake her credit.
25. As regards P.Ws. 2 and 3, they are named in the Fardbeyan as the witnesses who were in the Khalihan along with the informant. So, they are also competent witnesses. P.W. 2 has stated that when Bataswa and others raised alarm, their attention was drawn. His evidence, hence, is natural. There is nothing in his (P.W. 2) cross examination to disbelieve him. The evidence of the I.O. shows that the witness did not name Manoj Yadav as accused, but for this contradiction, his entire evidence cannot be disbelieved. Appellant Manoj Yadav is named in the Fardbeyan and other witnesses are consistent that he was a member of the unlawful assembly. So, because of the above omissions in the statement of this witness under Section 161 Cr.P.C. the presence of appellant Manoj Yadav cannot also be doubted. Similarly, from the evidence of P.W. 3 it appears that he did not name some of the appellants in his evidence, but that is no ground to disbelieve his testimony. He has also stated that as there were guns in the hands of the appellants, he did not go to save the ladies. So, his conduct is natural. The evidence of the I.O. shows that this witness did not name appellant Gaya Yadav before him. He had also stated before him that at first Ram Janam Yadav had fired at the deceased. Again this witness has stated that the work of piling of straw had started about 6-7 days before the date of occurrence, when according to the informant it was started on that date. But these contradictions are not material to disbelieve the testimony of the witness.
26. As regards P.W. 1, he appears to be a child wilness. But, merely because a witness is a child and is an easy pray to tutoring, his evidence is not always liable to be rejected. If such witness stood the test of cross examination and his evidence finds corroboration from the other witnesses, his evidence can be relied upon.
27. The witness (P.W.1) claims that he was in the Khalihan at the time of occurrence. In the Fardbeyan, of course, his name is not mentioned among the persons who were present in the Khalihan. But as he was a child, it was quite probable that the informant did not mention his name in the Fardbeyan. Hence, from this omission it cannot be said that he was not present at the Khalihan. He has been cross examined by the appellants, but he has stood the test of cross examination. His evidence also finds corroboration from the evidence of other eye witnesses. Therefore, there is no reason not to rely on the evidence of the witness. The evidence of the I.O., of course, is that this witness did not state before him that appellant Anil Yadav had fired causing injury to her mother. He had also not named Manoj Yadav and Mishri Yadav. But for such omission or contradiction, the entire testimony of the witnesses Page 0466 cannot be thrown away as unreliable.
28. Thus, I find that though all the eye witnesses examined in this case are interested witnesses -- P.W. 1 being the son of the informant, P.Ws. 2 and 3 being brothers of the informant and P.W. 5 being wife of P.W. 3, on a close scrutiny of their evidence, it appears that they all are competent witnesses and there appears nothing material in their evidence to disbelieve their testimony.
29. In the Fardbeyan, the informant has stated that on account of old enmity with regard to passage, this occurrence took place. In his evidence, of course, he has not. stated that there was any such dispute or enmity. But as already mentioned, P.W.2 in clear words has stated that there existed enmity with the appellants from before three years of the occurrence on account of fencing of passage. P.W. 3 has also stated that there is a land south to the house of appellant Sheo Narayan Yadav and that land was being used as passage, and there was dispute between them with regard to the passage. P.W. 5 has also stated that through that land they had passage and appellant Sheo Narayan Yadav used to prevent them from passing through that land.
30. So, it is also proved that there was motive for the appellants for the occurrence.
31. In this case, no independent witness has been examined. The evidence of P.W. 2 is that there was no house near about the place of occurrence. He has further stated that no villager came to the place of occurrence. It is, therefore, very natural that no independent witness was examined by the prosecution.
32. The Fardbeyan, however, shows that one Nandu Rajbanshi, the labourer was working in the Khalihan and that at the time of occurrence Raju Yadav (D.W. 2), Prabhu Yadav and other villagers reached but none of them has been examined as prosecution witness.
33. Learned Counsel for the appellants hence has submitted that for non examination of the above independent witnesses, adverse inference should be drawn against the prosecution case.
34. But when all the eye witnesses though interested have consistently supported the prosecution case unfolded in the F.I.R. and their evidence has been corroborated by the medical evidence as well as the objective findings of the I.O. and the evidence of the eye witnesses examined, is otherwise trust worthy, mere non examination of the independent witnesses would not be fatal to the prosecution case.
35. As against the above evidence of the prosecution, D.W. 2 has stated that on the alleged date at 8-9 A.M. appellant Sheo Narayan Yadav was fencing the land south of his house when Alakhdeo Yadav (informant) and his brothers went and protested whereupon an altercation ensued. Thereafter the informant and others left the place of occurrence and then again returned. He further stated that the informant brought a country made gun and the others brought brick bats. The wife of the informant and the wife of Bichitra Yadav also reached there to pacify. In the meantime, Alakhdeo Yadav (informant) fired at appellant Sheo Narayan Yadav, and the shot hit his wife. His wife was taken to the Hospital where she died. D.Ws. 3 and 4 have also stated to the same effect. According to D.W. 3, however, this occurrence took place at noon and according to D.W. 4 it took place at 12 noon.
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36. Though, these witnesses have tried to support the defence version; the learned trial court has rightly stated that if occurrence would have taken place, the appellants would have lodged a case, but there is nothing to show that any such case was filed. Then, according to the evidence of these witnesses only one shot was fired and they have not stated as to whose shot hit Bataswa Devi, whereas the doctors examined in the case found fire arm injuries caused by two shots on the person of the deceased, and two injuries on the person of Bataswa Devi. The evidence of the I.O. also shows that he had found blood on the village road near Khalihan of the informant. So, by no stretch of imagination, it can be said that the deceased had received injuries on the land of appellant Sheo Narayan Yadav. So, the defence is not at all probable.
37. It may, however, be mentioned here that P.W.7 in his cross examination has stated that on the date of occurrence there was any quarrel between his wife Bataswa Devi and the appellants before the occurrence. P.W. 5 has also stated that there was no quarrel between them and the female appellants on the date of occurrence. But P.W. 1 has admitted that there was quarrel between the appellants and his family members before the occurrence. So, it is quite probable that that quarrel became the immediate cause for the occurrence and when the female members of the informant were going to Khalihan, they were first attacked by the female appellants. Therefore, it is also not unnatural that instead of male members of the family of the informant, the female members became the victims of enmity between the parties.
38. Thus, on a close analysis of the evidence on record, I find that the prosecution has been able to prove satisfactorily that on the alleged date, time and place, the male appellants, namely, Anil Yadav, Ram Janam Yadav, Gaya Yadav, Mishri Yadav, Sheo Narayan Yadav and Manoj Yadav came in a mob with a common object of committing the murder of Suleshni Devi, armed with fire arm, Garasa and the appellants Anil Yadav and Ram Janam Yadav fired with fire arm on Suleshni Devi causing injuries on her as a result of which she died. It has also been proved that appellant Gaya Yadav had also fired during the occurrence. The prosecution, hence, has established that appellants Anil Yadav and Ram Janam Yadav committed the offence under Section 302/34 of the Indian Penal Code and the other male appellants committed the offence under Section 302/149 of the Indian Penal Code and appellants Anil Yadav, Ram Janam Yadav and Gaya Yadav further committed the offence under Section 27 of the Arms Act. The learned trial court has convicted appellants Anil Yadav and Ram Janam Yadav under Section 302 of the Indian Penal Code for committing the murder of Suleshni Devi. But as the death had been caused as a result of the injuries caused by both of them and they shared the common intention, it should have convicted these two appellants under Section 302/34 of the Indian Penal Code and not under Section 302 I.P.C. Hence, the conviction of these two appellants is altered to Section 302/34 I.P.C. for the murder of deceased Suleshni Devi, without altering the sentence. As regards the female appellants, namely, Phulan Devi, Sunarwa Devi, Lakhiya Devi, Gauri Devi and Ajnasia Devi, though there is ample evidence that they had surrounded the deceased and Bataswa Devi at the P.O., there is no evidence that after the arrival of the male appellants, any of them committed any overt act. So, it is doubtful that they had common object with the male appellants in committing the murder of the deceased. Therefore, they are Page 0468 entitled to acquittal for the charge under Section 302/149 of the Indian Penal Code under which they have been convicted.
39. In the result, the female appellants, namely, Phulan Devi, Sunarwa Devi, Lakhiya Devi, Gauri Devi and Ajnasia Devi are acquitted and are dispharged from liabilities of their bail bonds. The conviction and sentence passed against the other appellants are confirmed with the only modification that appellants Anil Yadav and Ram Janam Yadav are convicted under Section 302/34 I.P.C. instead of Section 302 I.P.C.
40. Criminal Appeal No. 335 of 2001 is thus allowed and the other appeals are dismissed. Appellant Ram Janam Yadav is already in custody. The trial court would take the other male appellants, named above, to custody and send them to jail to serve out the sentence.
Chandramauli Kumar Prasad, J.
41. I agree.