R.N.Sahay, J.

1. By judgment pronounced on 25-3-1985 in Sessions Trial No. 264/87 of 1982-83, the 6th Additional Sessions Judge, Patna convicted the appellants of two sets of appeal for the offence punishable under Sec. 302/149 Indian Penal Code and sentenced to imprisonment for life. Two of the appellants, namely, Nawal Rai and Vali Rai (appellants in Cr. Appeal No. 242 of 1985) were convicted under Sec. 27 Arms Act but no separate sentence has been passed.

2. The prosecution case has been set out in para-2 of the judgment under appeal as follows:

"2. The case of the prosecution, as made out in the statement of PW 3 (informant), in short is that on 19-9-1981 at about 3.30 p.m. while the informant. Ashok Kumar Singh, his uncle Ambika Singh and Parmeshwar Singh were returning from village Daudpur and when they had arrived near Heera Tala Badhar, accused Ram Barai Rai suddenly came out of a Masuria (Millet) field and caught hold of the waist of Ambika Singh. He gave a call "Come he had caught hold of him" and thereupon. Rupan Singh with a gun, Nawal Rai and Vali Rai with pistols in their hands. Srikant Rai. Munga Rat, Akhilesh Rai and Jaleshwar Rai having chhuras in their hands came out of the field. It is said that Rupan Singh put the barrel of his gun close to the waist of Ambika Singh and then fired and accused Nawal Rai put the barrel of his pistol on the hip of the deceased and fired and when he faltered and was about to fall down as a result of the fire arm shots received, accused Vali Rai fired from his pistol which hit Ambika Singh on his leg who ultimately fell down. After that accused Srikant. Munga. Akhilesh and Jaleshwar gave indiscriminate chhura blows to him. When the informant made an attempt to save Ambika Singh from being assaulted, accused Nawal Rai hit him on his right hand with the butt portion of his pistol. He gave a call to finish the informant also. On hearing this, the informant ran to a safe distance, and from there he saw the above named accused persons fleeing towards east. After the accused persons had run away, he came to the place where Ambika Singh had fallen and found him lying dead in a pool of blood. Parmeshwar Singh and Madan Kishore Singh who had in the meanwhile arrived there stayed at the P.O. to guard the dead body and the informant ran to his village to inform the members of his family of the occurrence. He then immediately returned to the P.O. along with the members of his family. The members of his family stayed back at the P.O. at the informant left for P.S. along with Ram Babu Singh and Anirudha Tiwari to lodge information. While on way, the informant met his father, he narrated the entire incident to him. The informants father also accompanied them to the P.S. where FIR (Ext. 2) was lodged."

3. The defence of the; appellants was that Ambika Singh was murdered by some unknown persons at lonely place not in presence of any witness and the appellants have been implicated due to enmity.

4. During trial two persons came forward to claim to be eye-witnesses and they are Madan Singh (PW- 1) and Ashok Kumar Singh the informant (PW3). The investigating Officer, who held inquest over the dead body found fourteen injuries on the person of the deceased. The doctor, who held post-mortem examination was not examined.

5. Learned Additional Sessions Judge placed no reliance on the evidence of PWI and conviction of the appellants is based solely on the evidence of the informant PW3. The evidence of the informant was that he was going from village Sherpur with his uncle Ambika Singh. Parmeshwar Singh was also going along with them. Parmeshwar Singh was an important witness but he was not examined by the prosecution. The informant was relied for the simple reason that he had received injuries in his right hand when he tried to save his uncle but in para-2 of his deposition he developed a story that when he tried to save his uncle appellant Nawal Rai assaulted him with barrel portion of his pist