JUDGMENT

S.B. SINHA, J.

1. Appellants, who are three in number, are before us aggrieved by and dissatisfied with a judgment and order dated 9.8.2005 passed by the High Court of Judicature at Patna dismissing the Criminal Appeals preferred by them and thereby upholding the judgments of conviction and sentence dated 9.1.2002 and 11.1.2002 passed by the 7th Additional Sessions Judge, Nalanda.

2. Appellants, the deceased and the prosecution witnesses are residents of village Govindpur, P.S. Silao in the District of Nalanda (Bihar). The prosecution case, shorn of all unnecessary details, is as under:

On or about 29.5.1997 at about 3 p.m. Sanjib Yadav (informant) along with his father Mauji Yadav ("the deceased") were working in his field. Lakhan Yadav, Ragho Yadav, Anil Yadav, Inderdeo Yadav, Ramjee Yadav and Dwarika Yadav were sitting under the shadow of a Pipal tree at some distance.

Accused persons who were eleven in number, including the appellants herein, armed with country made gun, country made rifle, country made pistol, Gadasa, along with four to five unknown persons armed with firearms came to the place of occurrence and started abusing the informant and his father. They are said to have inquired about one Patali and asking him to come out.

The deceased advised them not to fight whereupon Ramdeo Kahar (Accused No. 4) made an exhortation whereupon Upendra Kahar (Accused No. 1) shot from his gun hitting the deceased on the right side of the stomach over his waist. He tried to flee away but fell down in the field of Prayag Yadav. Ramdeo Kahar (Accused No.4) assaulted Ragho Yadav (P.W. 7) with lathi on his left hand and Shiv Shankar Paswan (Accused No. 5) assaulted Anil Yadav (P.W. 6) with Gadasa on his head. Accused persons thereafter made good their escape. The deceased, however, while being taken to the hospital breathed his last. The motive for commission of the said offence was said to be long standing enmity between the parties. It was furthermore alleged that on or about 28.5.1997 while some female members of the informant's family were bringing water from a well, Upendra Kahar (Accused No. 1) in a state of intoxication misbehaved with them to which Patali Yadav objected wherefor he was threatened by the Accused No.1.

3. A large number of witnesses were examined by the prosecution in support of its case.

The learned Sessions Judge relying upon the evidences of P.W.1 -Inderdeo Yadav, P.W.2 - Ramjee Yadav, P.W. 3 - Lakhan Yadav, P.W. 4 - Dwarika Yadav, P.W. 5 - Ramadhin Yadav, P.W. 8 - Sanjib Yadav (informant) as also the evidences of the injured witnesses P.W. 6 – Anil Yadav and P.W. 7 - Ragho Yadav; held that the prosecution had proved its case.

4. The learned Sessions Judge, however, while recording a judgment of conviction against the appellants herein acquitted the other eight accused persons, stating:

"...All the witnesses have stated that it was Ramdeo Kahar who passed an order upon which Upendra Kahar fired causing fatal injury to Mauji. Ramdeo further assaulted Ragho Yadav with Lathi on his left hand and Sheo Shankar Paswan gave a Garasa blow on the head of Anil Yadav. Except these three accused persons no overt act has been alleged against any other accused persons or even whispered a single word against them although all were alleged to have been armed with rifle, gun and pistol. The prosecution case is that only one shot was fired by Upendra Kahar. The remaining accused persons who were also armed with lethal weapons did not commit any overt act nor they used their arms against any one. The learned defence counsel further submitted that the remaining eight accused persons have been falsely implicated in this case without any basis. If they would have present at the place of occurrence armed with lethal weapons as have been alleged they must have committed some overt act but not a single witness whispered a single word that the remaining eight accused persons even touched the body of any of the persons of the prosecutio