JUDGMENT

Shiva Kirti Singh, J.—All the 14 appellants have preferred this appeal against the judgment and order dated 1.7.2002 passed by the learned Additional Sessions Judge, (F.T.C. No. 4), Kaimur at Bhabhua in Sessions Trial No. 358/80 of 1990/2002, whereby, all the appellants were convicted for the offences under Sections 364/34, 302/34, 201 of the Indian Penal Code and awarded ten years life imprisonment and 7 years rigorous imprisonment respectively for each of those charges. They were further convicted under Section 27 of the Arms Act but no separate sentence was awarded on that count.

2. An affidavit has been filed to show that appellant No. 1 Shankar Choudhary died on 13-6-2007 in Sub-divisional Hospital, Buxar, and in support of such fact a copy of the death certificate has also been brought on record. In that view of the matter, this appeal will be treated to have abated in respect of appellant No. 1 Shankar Choudhary.

3. The prosecution case as appearing from fardbeyan of (PW6) Mukti Narain Rai is to the effect that on 9-8-1989 he along with Rajendra Prasad Rai (PW4) had gone from his village Banke Bahuara to Nuaon Bazar in the day time and there they met his uncle Uday Narain Rai (the victim) who was returning from Bhabhua after attending a Court case. They started for the village and at about 6.30 in the evening while they were still west of their village, near the boring of Bachcha Rai alias Narvadeshwar Rai in a field near water channel going towards Chandesh, three persons who were sitting on the bank of the canal suddenly got up and captured Udai Narain Rai. The informant could identify two of them as Shyamraj Choudhary (appellant No. 12) and Banshidhar Choudhary (appellant No. 7). 15-20 persons came out from a hut near the boring of Narvadeshwar Rai armed with rifle and gun and out of them Deoraj Choudhary (appellant No. 8) exhorted others to kill the entire family. In the meantime, the other accused persons carried away the victim and the informant and his companion managed to run away on hearing the threat of assault. While fleeing they raised hulla and came to their outhouse (Dera). According to the informant the occurrence was witnessed by Rajendra Rai (PW4) as well as by one Radha Rai and Narvadeshwar Rai (both were not examined during the trial).

4. The aforesaid fardbeyan was allegedly recorded by one Sub-Inspector of police Arvind Kumar of Kuchhila Police Station on 10-8-1989 at 10 hours at village Banke Bahuara. That Police Officer has not been examined. The formal F.I.R. is shown to have been lodged on 10-8-1989 at 4.30 a.m. and sent to the concerned Court of Additional Chief Judicial Magistrate, Bhabhua, on that date by a special messenger but it was seen by the Court on 12-8-1989. Initially, the offence was under Section 364 of the I.P.C. to which Sections 302 and 201 were added on 12-8.1989.

5. The further case of the prosecution is that in the night of 9th/10th August, 1989 the informant and his companion Rajendra Rai (PW4) stayed in the Dera or Chhawani situated at a distance of about 350 yards towards east from the place of occurrence. They could not give information of the occurrence to others and the police out of fear and only (PW3) Narendra Rai, a nephew of the victim, was given a hearsay account of the occurrence at the Chhawani. It is further case of the prosecution that (PW2) Kailash Rai a brother of the victim, on getting hearsay account of the occurrence in the morning of 10-8-1989 proceeded with one Sheoji Rai to search for the victim. In course of search at some point of time through someone he came to know that a dead body tied in clothes was seen floating in river Karmnasha near Dihri at Sayarghat under Rajpur Police Station, Camp Dihri, in the district of Bhojpur. According to PW2 on such information he went to the aforesaid place and took out the dead body which was tied in a bundle and he identified the same to be the dead body of the victim. He informed the police and his far