In a criminal case, the prosecution bears the burden of proving the guilt of the accused beyond a reasonable doubt. This burden cannot be discharged solely on the basis of inconsistent and unclear eyewitness accounts or inconclusive medical evidence.

M.L.Visa, J.

1. Ramanuj Rao, now the sole appellant in this appeal before us, is aggrieved by the judgment and order dated 3-2-1986 passed by 1st Additional Sessions Judge, Bettiah, in Sessions Trial No. 58 of 1976/48 of 1985 convicting and sentencing the appellant to undergo life imprisonment under Secs. 302/34 of the Indian Penal Code (in short, IPC).

2. The case of the prosecution as disclosed in the fardbeyan, in short, is that on 28-7-1975 at about 7 a.m. Shrawan Yadav, brother of informant Shankar Yadav (P. W. 7), told the informant that he would go to Gudgudi Puriharwa for purchasing washing soap. The informant, told that as he himself was going to Majhauwa, he will bring the soap for him from there and asked his brother Shrawan Yadav to bring grass in the meantime. Thereafter, the informant left for Majhauwa and his brother Shrawan Yadav went in Sareh for cutting grass. At about 10 a.m. the informant returned from Majhauwa when he heard hulla from the eastern side of his village and he then along with Janak Yadav (P. W. 3) went to the place from there he heard hulla and found that: persons from the sides of Krishna Shahi and Jagannath Rao, uncle of appellant had assembled on a land having Bajra crop over which both the parties had dispute. He also heard the sound of firing and when he went near the disputed land he found the appellant armed with a rifle and co-accused Chandradeo Rao (since dead) armed with a Labda (small stick). Co-accused Chandradeo Rao asked the appellant that some one was in sugarcane field who appeared to be a spy and asked the appellant to kill him on which the appellant fired from his rifle as a result of which three persons in the sugarcane field fell down and other three persons fled away. When the informant along with Janak Yadav went in the sugarcane field he found his brother Shrawan Yadav lying in the field with ail injury on his head and brain materials had come out of the brain. The informant with the held of villagers brought his injured brother Shrawan Yadav to Lauriya Hospital where Shrawari Yadav succumbed to injuries. The fardbeyan of informant Ext. 4) was recorded by ASI, B. Hoda (not examined) on the same day at about 5.30 p.m. On the basis of fardbeyan, FIR (Ext. 5) was drawn against the appellant as well as against co-accused Chandradeo Rao under Sec. 302/34, I.P.C. and Sec. 27 of the Arms Act. After investigation, the police submitted charge-sheet against the appellant as well as against co-accused Chandradeo Rao under Sec. 302/34, I.P.C.

3. After cognizance, the case was committed to the Court of Session where charge under Sec. 302/34, I.P.C. was framed against the appellant and co-accused Chandradeo Rao. The appellant denied the charge framed against him.

4. The case of defence as it appears from the evidence of defence witnesses examined on behalf of appellant as well as from the trend of cross-examination of prosecution witnesses before the Court below was that appellant Ramanuj Rao at the time of occurrence was at Bettiah where he had gone for treatment of appendicitis and at the time of occurrence the informant, deceased and others after forming an unlawful assembly variously armed with deadly weapons such as gun, rifle and garasa etc. had gone to the land of Jagannath Rao, the uncle of appellant, and they after seeing Baidyanath Rao, another uncle of appellant and others coming to that land indiscriminately fired which caused death of their own man who may be the deceased and for which Baidyanath Rao had filed Bagha P.S. Case No. 55 dated 30-7-1975 (Ext. C) and the appellant has been falsely implicated in this case.

5. After trial the Court below found the appellant and co-accused Chandradeo Rao guilty and accordingly convicted and sentenced both of them to undergo life imprisonment under Sec. 302/34, I.P.C.

6. During the pendency of this appeal, co-accused Chandradeo Rao died. Hence, the appeal proceeded against the appellant only.

7. In order to prove its case,