Binodanand Singh and P.B.Prasad JJ.

1. Both the appellants, have been convicted under Sec.302, read with Sec. 34 of the Indian Penal Code and each of a them has been sentenced to undergo rigorous imprisonment for life by judgment and order dated 28-11-1984 passed by Shri B.D. Jha, 1st Additional Sessions Judge, Bettiah in Sessions Trials Nos. 153/79 and 73/83.

2. Appellant No. 1, Zahir Mian is the brother-in-law of appellant No. 2 Dharpakar Mian the prosecution case, briefly stated, is that on 19-10-1979 at 5 p.m. Md. Hanif (deceased) was coming back on cycle from Lauriya Market. When he reached on the road one furlong away from his village he was fired at by both the appellants. The deceased Md. Hanif received gun shot injury and fell down. Thereafter the appellants took to their heels. On kulla, Tufan Mian (P.W. 5), Gazi Mian, Hakik Mian (both not examined). Ash Mohammad (P.W. 1), Motiuddin Ansari (P.W. 2), Pashupati Shukla (P.W. 3) and Safiullah (P.W. 6) son of the deceased Md. Hanif, reached at the place of occurrence and saw the accused persons namely, these two appellants running away. According to the prosecution case Md. Hanif (deceased) had received gun shot injury and he stated before the aforesaid witnesses that he was shot at by the appellants. Md. Hanif (deceased) was taken to Lauriya State Dispensary where his statement was recorded by Sahabuddin Khan, A.S.I. of Lauriya Police Station (not examined) on the same day i.e. 19-10-1976 at 8 p.m. The aforesaid statement was recorded as the Fardbeyan which has been marked as Ext. 3. Aforesaid A.S.I. Sahabuddin Khan had gone to the Lauriya State Dispensary under the orders of Kameshwar Prasad Singh (P.W. 9), who was then posted as the officer-in-charge of Lauriya Police Station. After recording of the Fardbeyan (Ext. 3), he came back to the police station and on the basis of the aforesaid Fardbeyan (Ext. 3) a formal First Information Report (Ext. 1) was drawn up and a case was instituted against both the appellants under Sec. 307 of the Indian Penal Code and 27 of the Arms. Act. Thereafter, Kameshwar Prasad Singh (P.W. 9), the officer-in-charge of Lauriya Police Station, himself took up investigation and he examined the witnesses. In the meantime as it appears from the record the deceased Md. Hanif, who was then alive, was referred to Bettiah Sadar Hospital for better treatment by the doctor of Lauriya State Dispensary.

3. On 20-10-1986 at 6 a.m. the Investigating Officer Kameshwar Prasad Singh (P.W. 9) reached the place of occurrence and inspected the same in presence of Tufan Mian (P.W. 5) and Safiullah (P.W. 6). The place of occurrence was situated on the Kacha flank of Lauriya Bagha metalled Road. The Investigating Officer (P. W. 9) found blood like substance there. The house of the deceased Md. Hanif, witnesses and the accused persons, i.e., these two appellants were towards south-west of the place of occurrence to a distance of 500 yards. The Investigating Officer (P.W. 9) seized the earth containing blood like substance. The deceased Md. Hanif, while he was alive, was referred to Darbhanga Medical College Hospital from Bettiah Sadar Hospital for treatment, where he appears to have died on 21-10- 1976. It appears from the evidence of P.W. 9 the Investigating Officer, that after the death of Md. Hanif at Lehariasarai, inquest was held on the dead body of Md. Hanif by Khalil Ansari, A.S.I. of Lehariasarai Police Station on 21-10-1976. Carbon Copy of the inquest report has been marked as Ext. 5.

4. P.W. 8 Dr. Kanhiya Prasad Shrivastava, who was then posted at Darbhanga Medical College, held postmortem examination on the dead body of Md. Hanif (deceased) on 21-10-1976 along with Dr. V.C.S. Verma who was also posted there. Here it may be pointed out that in the evidence of the doctor (P.W. 8) the time of postmortem examination is not mentioned. However, from the photo-state copy of the postmortem report contained in the brief prepared by the office of this court