The main legal point established in the judgment is the reliance on consistent and trustworthy eye-witness testimony and corroboration by the postmortem report to uphold the conviction.

R.N.Prasad, J.

1. Both the appeals arise out of judgment and order dated 7.12.1994/8.12.1994 passed by 2nd Addl. Sessions Judge, Purnea in S.T. No. 138/22 of 1990/91 and as such both the appeals have been heard together and are being disposed of by this judgment.

2. The appellants have been convicted for the offence under Section 302/34, IPC and sentenced to undergo imprisonment for life. Udai Chand Yadav, appellant in Cr.A No. 23/95 has further been convicted for the offence under Section 27 of the Arms Act and has been sentenced to undergo rigorous imprisonment for three years. The sentenced have been ordered to run concurrently.

3. Informant Suresh Yadav gave his fardbeyan on 24.9.1989 at about 4 a.m. at his house that he, his younger brother Naresh Yadav, elder brother Mahesh Yadav and brother of his brother-in-law Sukhdeo Yadav were at his house. He and Sukhdeo Yadav were lying on a wooden cot. His elder brother Mahesh Yadav was sitting on a mat and was reading the Ramayan. His younger brother Naresh Yadav was living on a mat there. At about 11 p.m. Udai Chand Yadav and Mahanand Yadav, the appellants came. His brother Mahesh Yadav enquired as to why they had come in the night on which Udai Chand Yadav fired from his country made pistol causing bleeding injury on the right side of his chest. He and Naresh Yadav raised alarm on which several persons came. Udai Chand Yadav and Mahanand Yadav, however, succeeded in running away. His brother Mahesh Yadav uttered that Udai Chand Yadav fired at him and died. His brother Mahesh Yadav, the deceased, Udai Chand Yadav and Mahanand Yadav, the appellants, and Naresh Yadav had gone to Punjab for their livelihood. They had returned few months ago. Udai Chand Yadav had given Rs. 2000/- to Naresh Yadav. Naresh Yadav was not returning the money and as such there was panchaity. Naresh Yadav was saying that he had not taken money. Mahanand Yadav and Udai Chand Yadav, appellants, were pressing the deceased to stand as witness to say that Naresh Yadav had taken money, which he refused. Due to the said reason Udai Chand Yadav and Mahanand Yadav came in the night and committed the offence. The occurrence was witnessed by Dinesh Yadav, Sukhdeo Yadav and Pancham Yadav etc.

4. On the aforesaid fardbeyan, formal First Information Report was drawn, investigation was taken up and on completion of investigation charge-sheet was submitted against the appellants. On receipt of charge-sheet in the Court the case was committed to the Court of Sessions for trial. The trial Court convicted the appellants as indicated above.

5. The defence of the appellants was that they had been falsely implicated in the case. They were innocent. Specific defence of Udai Chand Yadav was that he was not present at the relevant time of occurrence rather he was arrested within the territory of Nepal while he was taking cow.

6. The prosecution in support of its case examined 16 witnesses out of whom PWs 1, 2, 7 and 13 are hear-say witnesses. PWs 3, 5 and 12 have been tendered. PW 6 has been declared hostile. PW 4 is witness to the seizure of shoe. PWs 1 and 2 are also witnesses to the seizure of blood stained earth and projectile of the cartridge. PW 15 is Doctor who held postmortem over the dead body. PW 16 is Advocate clerk who has proved First Information Report and this case diary. PWs 8, 9, 10 and 11 claimed to be eye-witnesses to the occurrence and PW 14 is the informant and he also claimed to be eye-witness to the occurrence.

7. The occurrence is alleged to have taken place at about 11 p.m. in the night. The deceased was sitting on the mat and was reading the Ramayan in the light of lantern. PWs 8, 9, 10, 11 and 14 claimed to be near the deceased at the relevant time of occurrence. PWs 8 and 14 deposed that they were lying on a wooden cot. The rest of the witnesses claimed that they were sitting there and hearing the Ramayan which the deceased was reading. The attention of witnesses PWs 9, 10 and 11 had been drawn