IMPORTANT POINT
Preparation of inquest report contemplated u/s 174 Cr.P.C. does not require any where to mention the names of assailants.

JUDGMENT

Faizan Uddin, J.-These two sets of appeals one by the informant Mahendra Rai, cousin brother of the deceased and another by the State of Bihar are directed against the judgment and order of the High Court of Patna passed in Criminal Appeal No. 272 and 307 of 1988 reversing the judgment and order passed by the Additional Sessions Judge (I) Patna at Barh dated 20.5.1988 in Sessions Trial No. 135/1986 whereby the respondent No. 1 Mithilesh Rai was convicted under Section 302 for brutal murder of Arun Rai and sentenced to capital punishment, while the respondents 2 and 3, namely, Madan Rai and Raj Naresh Rai were convicted under Section 302 read with Section 109 IPC and sentenced to undergo life imprisonment and other two co-accused, namely, Rajendra Rai an Ram Das Rai were acquitted.

2. The prosecution case was that in the morning of 17.5.1985 there was some dispute and altercation between the deceased Arun Rai, a boy aged about 12 years and the accused respondent No. 2 Madan Rai on the price of milk. The deceased Arun was insisting to sell the milk at the rate of Rs. 5/- per litre while the respondent Madan Rai was not agreeable for the same. This dispute infuriated the accused respondent No. 3 Raj Naresh Rai as well as the acquitted accused Ram Das Rai and Rajendra Rai who according to the prosecution instigated the accused respondent No. 1 and 2, Mithilesh Rai and Madan Rai to kill Arun Rai at any cost. It is alleged that on the same day at about 12 noon when deceased Arun Rai was sleeping on a cot under a mango tree in an orchard near his house, the accused respondent No. 1 armed with a Kakut, alongwith his cousin respondent No. 2 Madan Rai went there. Accused Madan Rai caught hold head of Arun and the respondent Mithilesh Rai gave a heavy blow by a Kakut (chaffcutter) on the neck of Arun Rai. The incident was seen by Mahendra Rai, PW 11, Jagdish Rai, PW 7, Jageshwar Rai, PW 8, Kalicharan Rai, PW 9 and other persons who also tried to apprehend the culprits but since they threatened them by saying that in case they proceeded further they would also meet the same fate. Thereafter the accused persons ran away towards their house. Victim Arun Rai died on the spot. According to the prosecution respondent No. 3 Raj Naresh Rai is said to have handed over the weapon of offence to the respondent No. 1, Mithilesh Rai sometime before the occurrence, while the two other acquitted accused are held to have instigated and abetted their sons, respondents 1 and 2 to commit the said murder sometimes in the morning on the date of occurrence.

3. At about 3.30 PM on the date of occurrence Kailash Prasad, PW 13, Officer Incharge of Police-Station Athmalgola received information about the commission of said murder, he, therefore, after making an entry in the Station Diary proceeded to village Dashinichak with a police party where he recorded Fardbeyan, Ext. 10 of Mahendra Rai, PW 11, the cousin of the deceased at about 5.30 PM on the basis of which a formal FIR Ext. 12 was drawn under section 302/34 IPC against the 3 respondents and the acquitted accused. He prepared an inquest report Ext.9 at the place of occurrence and seized bloodstained earth. The dead body of the deceased was sent to the hospital, Barh.

4. In the Barh Hospital, Dr. Shankar Prasad Deokuliar PW 6 performed an autopsy on the dead body of Arun Rai on 18.5.1985 who as per his post mortem report found a clean cut wound on the right side of the neck of the deceased extending from 1" left of midline beyond the lower angle of the mandible on the right side of the diamension 6" x 3", going deep up- to the vertebra. The doctor found an ellipsical clean cut wound of the size of 3/4" x 1/2" which was communicating to the aforesaid injury and was just to the left to that injury. He also found muscle, corpid vessels, trachea and desophaous severed. The doctor stated that both the said injuries were ante mortem in nature and in his opinion the death was caused due to bleeding as a result