14 October 2004
Supreme Court
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PARASURAM PANDEY Vs STATE OF BIHAR

Bench: P. VENKATARAMA REDDI,P.P. NAOLEKAR
Case number: Crl.A. No.-000431-000431 / 1999
Diary number: 17602 / 1998
Advocates: AKHILESH KUMAR PANDEY Vs


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CASE NO.: Appeal (crl.)  431 of 1999

PETITIONER: Parsuram Pandey and Others

RESPONDENT: The State of Bihar

DATE OF JUDGMENT: 14/10/2004

BENCH: P. Venkatarama Reddi & P.P. Naolekar

JUDGMENT: JUDGMENT

With Criminal Appeal No 1199/2004 @ Special Leave Petition (Criminal) No. 2238 of 2004

P.P. NAOLEKAR, J.

               Leave granted in S.L.P. (Crl.) No.2238 of 2004.

               Both these appeals arise out of the same incident for  which all accused persons have been convicted and sentenced.   The accused/ appellants were tried for the offence along with two  other accused persons namely, Dharm Raj Pandey and Shradha  Ram.  Raghunath Pandey-accused/appellant has been convicted  under Section 302 of the IPC and awarded sentence of life  imprisonment.    He   was    further convicted and sentenced to two  years RI under Section under Section 148 IPC and 27 of the Arms  Act.  The accused/appellants Parshuram Pandey, Bishram Pandey  and Somaru Pandey together with the other accused (non- appellants) have been convicted and sentenced to life  imprisonment under Section 302 read with Section 149 of the  Indian Penal Code and two years RI under Section 148 of the IPC.   Parshuram Pandey, Bishram Pandey together with Dharmraj  Pandey (non-appellant) have been further convicted and sentenced  to 5 years RI under Section 307 for attempting to murder  Rajdendra Dusadh, Hriday Shankar Rai, Shampu Kumar Singh,  Mathura Singh and Rajesh Singh and one year RI under Section 27  of the Arms Act.  All these sentences have been ordered to run  concurrently.                           The prosecution case in nut-shell is as follows.  That on 24th  December 1989 at about 1.30 P.M. at Village Burhaila,   FIR was  lodged by informant-PW6, Birender Pandey informing that he  along with Bharat Pandey (PW5) and Kanhaiya Pandey (deceased)  were standing in their field.  Appellant-Raghunath Pandey after  getting his buffalo washed in the canal reached near Birender  Pandey’s field and drove the buffalo to graze the tori crop grown in  the field.  Birender Pandey objected to it, whereupon Raghunath  Pandey abused him which was resisted by Kanhaiya  Pandey(deceased).  On this Raghunath Pandey went to his  residence and returned with other accused persons, armed.   Raghunath Pandey was armed with rifle and other accused persons,  Parshuram Pandey and Bishram Pandey were armed with gun and  Somaru Pandey armed with spear.  On entering the field on  exhortation of Somaru Pandey and Shradha Ram, Raghunath  Pandey fired four shots by his rifle.  Two shots hit Kanhaiya Ram

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(deceased) who fell down after receiving injuries.  Thereafter the  appellants Parshuram Pandey, Bishram Pandey along with other  accused persons started indiscriminate firing by their guns which  caused injuries to the villagers.  The appellant Somaru Pandey  hurled spear towards Birender Pandey and Bharat Pandey which  caused injuries to Bharat Pandey by the lathi protion of the spear.  Surendra Pandey and other alleged eye-witnesses (PW3) and Ram  Ekbal Pandey (PW4) reached the place of occurrence and saw the  occurrence.  The accused/appellants made good their escape.   Kanhaiya Pandey was taken to Nana Nagar Hospital where he was  declared dead.                          The autopsy was conducted by (PW7) Dr. Parma Nand Rai  and he found the following ante-mortem injuries on his person: 1)              Lacerated wound with rugged and  blackish marks 31/2" x 21/2" on the left side of  upper chest,    auxillary side of the chest;

2)              Lacerated wound with blackish  margin 4" x 3"  x muscle deep on the medial  side  of upper chest, auxillary side of the chest;

3)              Lacerated wound 4" x 3"  x bone deep  and inverted margin on the upper left arm on  the same level as injury no.2

4)              Lacerated wound with everted margin  5" x 31/2" x bone deep on lateral side of left  arm.  It is wound of exit.

       From the post mortem report it is clear that the injuries  found on the person of the deceased are lacerated wound of 31/2"  X21/2" on the left side of the chest just above the level of nipple  and lacerated wound of 4" x 3" x muscle deep on the medial side  of upper chest and auxillary side of the chest apart from a wound  of entry and exist on the upper left arm.  The Injury No.1 and  Injury No. 2 could not have been caused of the same shot and must  have been by two gun shots.                          On the internal examination he found the following injuries:                 "Left auxillary blood vessel badly lacerated                  and upper arm badly lacerated and fractured.                 Fracture is compounding nature."  

               In the opinion of the doctor the cause of death was  hemorrhage and shock as a result of the fire arm.  S.K. Singh, the  doctor, who has conducted the postmortem, he has found  lacerated wound with blackish margin, which indicates that the  firing was from a near distance. The other injured persons  namely, Hriday Shankar Rai, Sampu Kumar Singh, Rajesh Singh,  Mathura singh were examined by Dr. Shiva Nand Prasad (PW8)  on 24.12.1989 and he has opined that the injuries sustained by  these persons were simple and were caused by suspected gun- shot.  Prosecution has examined only one injured witness namely,  Rajesh Singh while defence has examined  Sampu Kumar Singh,  DW2.   The trial court and High Court while relying on the  statement of PW3 Surendra Pandey, PW4 Ram Ekbal Pandey,  PW5 Bharat Pandey, PW6 Birendra Pandey convicted the  accused persons.  Defence plea of accidental firing deserves  rejection.

               It is urged by the learned counsel for the appellant  that on proper appreciation of the evidence on record, PW3  Surendra Pandey and PW4 Ram Ekbal Pandey could not be held  to have been present at the place at the time of the occurrence.  

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PW 3 and 4 claim themselves to be the eye-witnesses but in the  FIR lodged by PW6 at the police station it is revealed that  Surendra Pandey-PW3 and Ram Ekbal Pandey-PW4 have  reached the place of occurrence after hearing the noise.  The FIR  records, that hearing the fire shots and noise from the family  members and co-villagers, Surender Pandey and Ram Ekbal  Pandey (Pws 3 and 4) and many other came who had seen the  occurrence and accused persons.  Therefore, as per the FIR these  two witnesses have reached the spot after hearing the fire shots  and the noise from the family members.  PW5 - Bharat Pandey in  his cross-examination has admitted that after the accused fled  away, his family members came.  His brother PW3- Surendra  Pandey and father PW4-Ram Ekbal Pandey reached the spot after  the accused persons had already fled away.  PW3 has deposed  that on 24.12.1989 at about 1.30 O’ clock at day time he was in  verandah of his house and he saw accused persons armed with  guns were going towards Dusadi Tola and he has followed them.   In cross-examination he has admitted that he has followed the  accused persons after 2-4 minutes of hearing the ‘hulla’.  The  statement clearly indicates that he has not immediately followed  the accused persons but he left his residence after 2-4 minutes of  hearing the hulla.  He was attracted to the place of incident after  he has heard the ‘hulla’.  Thus the statement of this witness  clearly shows that he has reached the place of incident after the  incident was over.  PW-4 has deposed that on the date of incident  he was at the door of his house and he saw the accused persons  going towards the Dusadi Tola.  His son Surendra Pandey-PW3  was also sitting at the door.  Both of them moved to see where  these people    were    going.     Thus   the   father   and    the     son have followed the accused persons at the same time and must  have reached the place of incident after the incidence had  occurred.  The deposition of these witnesses read with the  statement of PW5 \026Bharat Pandey and the incident recorded in  the FIR leaves no manner of doubt that these witnesses were not  the eye-witnesses and have not seen the incident happening.   They reached the spot later on.                           It is then submitted by the learned counsel for the appellant  that the fact situation alleged by the prosecution of the  commencing of the incident does not inspire confidence in the  circumstances of the case.  As per the counsel it was impossible  for the accused Raghunath Pandey to put his buffalo in the field  for grazing when Birender Pandey, Bharath Pandey and  Kanhaiya Pandey were standing in the field.  Particularly so,  when the investigating officer did not find any foot marks of the  animal in the field and therefore the whole genesis of the incident  is false and therefore the prosecution could not be believed.  It  may be true that there may be exaggeration in the prosecution  case in so far as as Raghunath Pandey deliberately putting his  buffalo in the field to graze the standing crop.  It might be that   the buffalo must have strayed in the field and that would have   caused heated argument between Raghunath Pandey and the  deceased Kanhaiya Pandey, Bharat Pandey and Birender Pandey  which has enraged Raghunath Pandey who went to his house and  came back  with his rifle and thereafter the incident occurred.   Exaggerated story put up by the prosecution would not wash  away the entire incident, which has been proved by the witnesses  who were present on the spot.  The incident might have  commenced somewhat in different manner but the fact of the  commission of the offence, when proved by the witnesses the  prosecution’s case cannot be thrown out only on the basis that  prosecution has put inflated version of the commencement of  incident. PW6 - Birender Pandey, the informant reiterated his  version as given in the FIR.  In his statement he said that he was  in the field along with Bharat Pandey and Kanhaiya Pandey on

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the fateful day.  Raghunath Pandey came near the field and let  loose his buffalo in the field of the informant to graze the  standing tori crop and when he protested, Raghunath Pandey  started abusing him and Kanhaiya Pandey intervened and  objected the act of Raghunath Pandey, whereupon Raghunath  Pandey went to his house after threatening and came back with  his rifle along with other accused persons who were also armed  with the fire arms.  It is further stated that on exhortation of  Somaru Pandey and Shradha Ram , Raghunath Pandey fired 4  shots by his rifle out of which two shots hit Kanhaiya Pandey  who fell down.  Thereafter, Dharmraj Pandey, Parshuram Pandey  and Bishram Pandey, indiscriminately started firing their guns  which caused injuries to Rajesh Singh-PW1 and Somaru Pandey- DW2 and other villagers.  It is further deposed that appellant  Somaru Pandey and Shradha Ram hurled spear and Bharat Ram  was injured by the back portion of the spear.  PW5-Bharat  Pandey corroborated the statement of PW6-Birender Pandey  when he stated in the Court that he was present in the field along  with Kanhaiya Pandey and Birender pandey when Raghunath  Pandey came there and let loose his buffalo to graze the tori crop  standing in the field of Birender pandey which was objected to by  Birender Pandey and Raghunath Pandey abused him.  Kanhaiya  Pandey objected to the said act of Raghunath Pandey.   Thereafter, Raghunath Pandey went to his house and came back  with fire arm with other accused armed with guns and Somaru  Pandey, Shradha Ram armed with spear.  Immediately after  having reached the field Raghunath Pandey fired four shots by  his rifle, out of which two shots hit Kanhaiya Pandey and he fell  down.  The other accused persons started indiscriminate firing  with the result the villagers sustained injuries.  Statements of  these two witnesses have been found trustworthy by two courts  below as regards causing injuries by fire arms by Raghunath  Pandey to Kanhaiya Pandey.  The injury sustained by the  deceased \026 Kanhaiya Pandey corroborates ocular statements of  these two witnesses.  On consideration of the evidence, the  evidence of these two witnesses is reliable and convincing except  to the extent that some embellishments were made in explaining  the genesis of incident.  The evidence of these two eye witnesses   is consistent with the medical evidence and does not create doubt  regarding the real manner in which the incident has taken place  and the injuries caused by Raghunath Pandey to Kanhaiya  Pandey by use of fire arm.  We do not find any infirmity in the  reasoning of Courts below in placing reliance on the statement of  these two witnesses for convicting Raghunath Pandey for causing  death of Kanhaiya Pandey.                          It is submitted by the learned counsel for the appellants  Parshuram Pandey, Bishram Pandey and Somaru Pandey that in  the facts and circumstances of the case these appellants could not  have been convicted under Section 302 read with Section 149 for  causing death of Kanhaiya Pandey.  Further they are wrongly  convicted under Section 307 for causing injury to the villagers  and their further conviction under Section 27 of the Arms Act is  not in conformity with the evidence led by the prosecution.                          It has come in evidence that PW5-Bharat Pandey, PW6- Birender Pandey, were standing near by the deceased Kanhaiya  Pandey.  Parshuram Pandey and Bishram Pandey were carrying  fire arms, whereas Somaru Pandey was carrying spear.  The  incident has happened within a short span of time.  The witnesses  have said that the accused persons entered the field and  immediately thereafter Raghunath Pandey opened four shots at  Kanhaiya Pandey, the deceased.  Kanhaiya Pandey received two  gun-shot injuries and fell down.  Thereafter, Parshuram Pandey  and Bishram Pandey had started indiscriminate firing.  Somaru

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Pandey had hurled spear at Bharat Pandey.  It has also come in  the prosecution evidence that after hot exchange of words  Raghunath Pandey came back within few minutes from his  residence armed with rifle and accompanied by other accused  persons to the field.  The evidence also shows that neither Bharat  Pandey or Birender Pandey have received any injuries by the fire  arms.  It is not stated by the eye-witnesses that Parshuram Pandey  or Bishram Pandey while indiscriminately firing from their fire  arms had aimed at Kanhaiya Pandey, the deceased nor there is  any evidence on record that Bharat Pandey, Birender Pandey who  were standing  near the deceased have received any injuries by  the fire arm.  PW1-Rajesh Singh has deposed that on 24.12.1989  at 1.30 P.M.  he was going towards the place of one Mathura  Uncle of the Village and while he was passing by the side of   field of Birender Pandey, all of a sudden he heard the noise of 4- 5 firing shots and simultaneously he had received pellet injuries.   He has not stated that he has sustained injuries by any of the  accused persons firing at him.  In fact he has not seen the actual  firing of the guns.  He is a witness who was going by the side of  the field of Birender and sustained injuries by fire arm.  He has  only heard the noise of 4-5 firing shots.  Thus this witness has not  stated that he has received the injuries at the hands of Parshuram,  Bishram or Somaru.  DW2-Sampu Kumar Singh who was  examined by defence, sustained injuries by the fire arm, has not  named any of the accused person to be the person who has  caused him injuries in the incident. Thus there is no evidence on  record that the injuries sustained by the villagers by fire arm was  intended to be caused by the accused persons.  There is no  evidence on record that any of the villagers (passer-by) have  received any specific injury by a fire arm used by either  Parshuram or Bishram intended to be caused to them.                          By virtue of Section 149 IPC every member of an unlawful  assembly at the time of the commission of the offence is guilty of  an offence committed by any member of the unlawful assembly.    The Section creates constructive or vicarious liability of the  members of the unlawful assembly for unlawful acts committed  pursuant to the common object by any other member of that  assembly.  The basis of constructive guilt under Section 149 is  mere membership of an unlawful assembly.  In a case under  Section 149 the accused if is a member of the unlawful assembly,  the common object of which is to commit a certain crime and if  that crime is committed by one or more members of that  assembly every person who happened to be a member of that  assembly would be liable for that criminal act by virtue of his  being a member of it, irrespective of the fact whether he actually  committed the act or not.  To attract Section 149 of the IPC the  prosecution must prove that the commission of the offence was  by any member of an unlawful assembly and such offence must  have been committed in prosecution of the common object of the  assembly or must be such that the members of the assembly knew  that it was likely to be committed.  Unless these three elements  are satisfied by the prosecution the accused cannot be convicted  with the aid of Section.                          The facts which have been proved by the prosecution are  that on heated exchange of words in the field of Bharat Pandey,  between Bharat Pandey, Birender Pandey, Kanhaiya Pandey with  Raghunath Pandey, Raghunath Pandey went home enraged and  returned back immediately thereafter (within 3 minutes according  to PW-6) with a rifle accompanied by other accused persons who  were also carrying guns and spear.    Immediately on entering the  field, Raghunath Pandey opened fire at Kanhaiya Pandey and as a  result thereof he received two gun-shot injuries from the weapon  used by Raghunath Pandey.  Neither Parshuram Pandey nor

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Bishram Pandey used their guns to fire at Kanhaiya Pandey,  Bharat Pandey or Birender Pandey, who were standing nearby.    No other overt act or role has been attributed to them which  could definitely point out to their common object to kill or injure  Kanhaiya Pandey or PWs 5 and 6.  The mere fact that they  accompanied Raghunath Pandey with weapons in hand does not  necessarily lead to the inference that they had shared the common  object or intention with Raghunath Pandey to kill Kanhaiya  Pandey.  Their behaviour at the scene of offence negatives such  inference.   However, the only fact proved by the prosecution is  that they have started indiscriminate firing which resulted in  some villagers receiving simple injuries, though the reason for  such firing is not clear.  In view of the short span of time within  which the whole incident took place it could not be presumed that  the three appellants along with the other accused Raghunath  Pandey have informed the common object to do away with  Kanhaiya Pandey.  The fact that immediately after entering the  field Raghunath Pandey opened fire at Kanhaiya Pandey, though  the other accused who were also armed with gun, have not fired  at Kanhaiya Pandey or his companions also indicates that the  accused persons Parshuram and Bishram Pandey did not share  the common object or intention to cause death of Kanhaiya  Pandey.  It cannot be said that they fired their guns and have  missed the shot at Kanhaiya Pandey or any other person.  Thus  we find it difficult to hold as has been held by the trial court and  the High Court that the accused Parshuram, Bishram and Somaru  Pandey have formed the unlawful assembly with the common  object to commit an offence of murder of Kanhaiya Pandey.  In  fact there is no evidence against Somaru Pandey except that he  exhorted appellant/accused Raghunath Pandey to fire at Kanhaiya  Pandey, which in the circumstances of the case is difficult to  believe.  Though PWs 5 and 6 deposed that he and Shradha Ram  threw the spears at them and the stick portion of it injured PW5,  no such injury was proved.  PW5 refused to be examined by the  doctor.                          Thus the accused appellants Parshuram Pandey, Bishram  Pandey and Somaru Pandey are acquitted of the charge under  Section 302 read with Section 149 and imprisonment for life.   Accused Parshuram and Bishram were also convicted under  Section 307 for 5 years RI for causing gun-shot injuries to the  villagers.                    To constitute an offence under Section 307 two ingredients  of the offence must be present:-         (a)             an intention of  or knowledge relating to          commission of murder ;  and  

(b)             the doing of an act towards it.   For the purpose of Section 307 what is material is the intention  or the knowledge and not the consequence of the actual act done  for the purpose of carrying out the intention.  Section clearly  contemplates an act which is done with intention of causing death  but which fails to bring about the intended consequence on  account of intervening circumstances.  The intention or  knowledge of the accused must be such as is necessary to  constitute murder.  In the absence of intention or knowledge  which is the necessary ingredient of Section 307, there can be no  offence ’of attempt to murder’.  Intent which is a state of mind  cannot be proved by precise direct evidence, as a fact it can only  be detected or inferred from other factors.  Some of the relevant  considerations may be the nature of the weapon used, the place  where injuries were inflicted, the nature of the injuries and the  circumstances in which the incident took place.  On the evidence  on record, where the prosecution has been able to prove only that

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the villagers have sustained injuries by indiscriminate firing and  it was an open area with none of the injured nearby there is a  complete lack of evidence of intention to cause such injuries for  which the accused persons Parshuram and Bishram could have  been convicted under Section 302 of the IPC.  Nature of the  injuries sustained by the villagers is simple.  None of the  witnesses have stated that the fire arm causing injuries was being  used by any particular accused for causing injuries to them.  In  fact the injured have not seen any of the accused persons using  fire arms.  There is no evidence about the distance from which  the said two accused fired. The only evidence led by the  prosecution is indiscriminate firing by Parshuram and Bishram  which has caused simple injuries to the villagers.  Amongst the  injured villagers, only PW1 and DW-1 were examined.  Thus this  evidence does not constitute the intention or knowledge of the  accused persons for committing the murder or doing of an act  towards it.  The evidence only shows that the villagers have  sustained simple injuries.  In the circumstances, we acquit  Parshuram and Bishram under Section 307 of IPC.                  It is evident from the evidence placed on record that  injuries caused to the villagers are the result of indiscriminate  firing from the guns used by Parshuram Pandey and Bishram  Pandey.  It has also proved that Somaru Pandey was carrying  spear which he had hurled at PW-5 but no injury was caused to  him by it.  It appears that after exchange of hot words between  Raghunath Pandey and members of the complainant-party at the  field of Birender Pandey the accused Raghunath Pandey came to  his house and left his house within few minutes with rifle,   observing Raghunath Pandey in a furious mood returning back to  the field armed with rifle, the accused-appellants Parshuram  Pandey, Bishram Pandey and Somaru Pandey must have  apprehended some danger and thus accompanied him to the field.   Raghunath Pandey immediately after reaching the field opened  fire from the gun which he was carrying.  He fired four shots, two  shots out of them hit the deceased Kanhaiya Pandey and he fell  down on field at the spot.  The three accused persons finding  Kanhaiya Pandey, deceased falling on the field seriously injured,  apprehended retaliation from the complainant-party and from  other villagers present nearby the field and to ward off any attack  on them including Raghunath Pandey, must have started  indiscriminate firing from the fire arms held by them. In the same  process Somaru Pandey also threw spear at the member of the  complainant-party which of course has not caused any injury.   The common intention of the three accused developed  immediately after the shots were fired at Kanhaiya Pandey, as a  result thereof he fell down on the ground seriously injured.  The  plan to ward off attack in retaliation by the complainant-party  and the other villagers present nearby and to prevent them from  approaching towards place of incident and the accused persons,  common intention developed at the spur of the movement at the  place of occurrence during the commission of crime.  The act of  all the three accused persons of firing and throwing spear was in  furtherance of the common intention of all of them.  When the  fire arms were used indiscriminately in the open place, the  assailants may be presumed to know that result of such use of the  weapon will very likely to give bodily injury to the persons and  when such injuries are caused to the persons,  it is the actual  result from the assault made, and everyone of the persons  concerned in the act will be guilty for that injury irrespective of  the fact whether the prosecution has proved that a particular  injury was caused by a particular accused person or not.  Injury  caused to the villagers by the fire arm although simple in nature  are caused by accused person in furtherance of the common  object of all the three accused persons.  We, therefore, hold the

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accused/appellants Parshuram Pandey, Bishram Pandey and  Somaru Pandey guilty of offence under Section 324 read with 34  IPC.                    It is lastly submitted by the learned counsel for the  accused/appellants that the statement under section 313 Cr.P.C.  of the accused persons have been recorded in a most cursory,  casual and perfunctory manner by the Sessions court.  It is urged  that this is a normal practice followed in the court in the State.   The manner in which the trial court recorded the statement under  Section 313 Cr.P.C. of the accused persons, is not in accordance  with law and, therefore accused-appellant are entitled for the  benefit as they have not been provided with sufficient  opportunity to explain the circumstances appearing in evidence  against them.  We have perused the statement under Section 313  Cr.P.C. and the question formulated by the trial court in the  present case and we may say that it is far from satisfactory.  This  court time and again has laid down that it is obligatory on the part  of the trial court to examine the accused for the purpose of  enabling the accused personally to explain any circumstance  appearing in evidence against him.  If such opportunity is not  afforded, the incriminating piece of evidence available in the  prosecution evidence against the accused cannot be relied upon  for the purpose of recording the conviction of the accused person.  It is imperative on the court to record the statement under Section  313 Cr.P.C. of the accused persons so as to give opportunity to  the accused persons to explain any incriminating circumstance  proved by the prosecution.  The duty cast on the court cannot be  taken lightly.  However, we find that no argument has been  advanced by the counsel for the appellants in the trial court or  before the High Court on the basis of improper recording of the  statement under Section 313 of the Cr.P.C.  In the present case,  the counsel for the accused/appellant could not point out to us  any prejudice being caused to the accused/appellants on account  of the irregular, imperfect statement recorded under Section 313  of the Cr.P.C.  That being the case, the accused are not entitled  for any benefit for the lacuna in recording the statement of the  accused under Section 313 of the Cr.P.C.

       As the result of the aforesaid discussion and of the  findings, appeal of accused/appellant Raghunath is dismissed and  his sentence is maintained. The appeal of accused/appellants  Parshuram Pandey, Bishram Pandey and Somaru Pandey is  allowed and their conviction under Section 302 read with 149  IPC and Section 148 IPC is set aside.  The appeal of  accused/appellants Parshuram Pandey and Bishram Pandey is  partly allowed, their conviction under Section 307 IPC and  sentence of 5 years RI is set aside.  Accused/appellants  Parshuram Pandey, Bishram Pandey and Somaru Pandey are  convicted under Section 324 read with 34 IPC and sentenced to  three years RI. The sentence of appellants Parshuram Pandey and  Bishram Pandey under Section 27 of the Arms Act is maintained.   All these sentences shall run concurrently.