JUDGMENT (CAV)

A.M. Badar, J. - By these appeals, the appellants/accused in Sessions TrialNo.37 of 1994(357 of 1990) are challenging the Judgment and Order dated 24th of March, 1995 passed by the learned 2nd Additional Sessions Judge, Gaya, thereby convicting them of the offences punishable under Section 302 read with Section 34 as well as under Section 201 of the Indian Penal Code. For the offences punishable under Section 302 read with Section 34 of the Indian Penal Code, they all are sentenced to suffer rigorous imprisonment for life whereas for the offence punishable under Section 201 of the Indian Penal Code, the appellants/accused are sentenced to suffer rigorous imprisonment for five years.

2. In all, eight accused persons were put on trial in the said Sessions Case. However, accused no.7 Arun Kumar Sharma came to be acquitted by the learned trial court. That is how, remaining seven accused persons are appellants before this Court in these appeals. For the sake of convenience, the appellants shall be referred to in their original capacity as 'accused'.

3. Facts in brief leading to the prosecution of the appellants/accused are thus:

On occasion of Durga Puja, programme of Kauwali took place in the field where deity was installed at village-Fatehpur, Police Station-Fatehpur, District-Gaya. As a Secretary of Organizing Committee of Durga Puja festival, Bal Mukund Singh (since deceased) was supervising the said programme. In the night intervening 20/21.10.1988, the programme of Kauwali took placed at the said venue. Bal Mukund Singh (since deceased) was present in the Pandal where the programme of Kauwali was going on. However, he left that programme on a call from labourer named Bharat Singh. According to the prosecution case, as projected from the Charges-sheet, Bal Mukund Singh left the Pandal with Bharat Singh. Thereafter, accused persons also left the programme of Kauwali and went behind Bal Mukund Singh in the night intervening 20/21.10.1988. However, Bal Mukund Singh did not reach his house in that night. On the next morning, P.W.9 Ram Nandan Singh as well as other relatives of Bal Mukund Singh started searching him in the vicinity. However, he could not be traced out. As such, P.W.9 Ram Nandan Singh and P.W.7 Sargun Singh went to Police Station-Fatehpur and submitted the missing report (Ext.6). Accordingly, entry in the Station Diary (Ext. 7) bearing No.361 dated 21.10.1988 came to be recorded on 21.10.1988. Then police proceeded to village-Fatehpur. During search of Bal Mukund Singh, his dead body came to be fished out from a well situated near his house. Accordingly, inquest notes were taken and dead body was dispatched for autopsy. P.W.8 Dr. Mithlesh Kumar Sinha conducted postmortem examination of dead body of Bal Mukund Singh and opined that the death was due to asphyxia and injuries found on the dead body were ante-mortem in nature.

4. Accordingly, Crime No.143 of 1988 came to be registered at Police Station-Fatehpur on 24.10.1988 for the offences punishable under Sections 302 and 201 of the Indian Penal Code against unknown accused persons.

5. During the course of investigation, the Investigating Officer found the complicity of the accused persons in the crime in question and, accordingly, they came to be arrested and charge-sheeted.

6. After filing of the charge-sheet, the case was committed to the court of sessions and accused persons were put on trial as they pleaded not guilty and claimed to be tried.

7. The defence of the accused persons was that of total denial. They examined two defence witnesses.

8. After hearing the parties, the learned trial court by the impugned Judgment and Order was pleased to convict and sentence the appellants as indicated in the opening paragraph of this Judgment.

9. We have heard Miss Surya Nilambari, learned Amicus Curiae, who was appointed to represent the appellants/accused and to assist the Court in arriving at proper conclusion. She argued that the prosecution has utterly failed t