P.N.Yadav, J.

1. Criminal Appeal No. 461 of 1987 preferred by appellants Lala Koeri, Ramdeep Sharma and Shrikant Singh and Criminal Appeal No. 520 of 1987 filed by appellants Santoshi Manjhi and Panchi Manjhi arose out of one and the same judgment and order dated 15th September, 1987 recorded by Shri Priyabrat Narain Sinha, 2nd Additional Sessions Judge, Gaya in Sessions Trial No. 80 of 1987/4 of 1987 and similar questions of law and facts were involved in both the appeals and hence they were heard together and they are going to be disposed of by this common judgment.

2. All the five appellants suffered conviction and sentence of rigorous imprisonment for life under section 302 read with section 149 of the Indian Penal Code (hereinafter referred to as the Code). Appellants Lala Koeri, Ramdeep Sharma and Srikant Singh were further convicted and sentenced to rigorous imprisonment for three years each under section 148 of the Code. Appellants Santoshi Manjhi and Panchi Manjhi were also convicted under section 147 of the Code and sentenced to undergo rigorous imprisonment for two years each thereunder.

3. The prosecution case as unfolded in the first information reports lodged by Vijay Kumar Singh (P.W. 5) and Ram Vinay Singh alias Bigan Singh (P.W. 12) and the evidence of the prosecution witnesses and found proved by the court below is as follows :

4. Vijay Kumar Singh (P.W. 5) and his uncle Madho Singh had their cabins with electric motors and pumping sets installed therein near village Jinorechak. P.W. 5 after taking his meal at about 7.00 P.M. on 7.5.1986 left for cabins and on his arrival there he in the torch light flashed by him saw certain miscreants of villages Raunia and Bhagalpur Bhuintoli removing electric motors, starters etc. from the cabins.

5. P.W. 5 then ran towards his village Bana and raised alarm. When he covered a distance of 0.80 kilometre. towards his village which situated at a distance of one and a half kilometre from the cabins his villagers including Ram Vinay Singh (P.W.12), Bameshwar Singh (P.W. 8), Suresh Singh (P.W. 3), Harbans Singh (P.W.7). Upendra Singh (P.W. 11), Devendra Singh (P.W. 4), Nunu Singh (P.W. 6), Bigan Singh (P.W. 1), Arvind Kumar alias Raju (deceased) and Satyendra Singh (not examined) arrived there and they all along with him (P.W. 5) set out for the cabins. They found that electric motors, starters, bicycle, umbrella etc. missing from the cabins.

6. The witnesses saw the miscreants fleeing away towards village Bhagalpur Bhuintoli with electric motors etc. and they following them reached the said village but the miscreants entered into the village and hid themselves. However, to their utter surprise and dismay several persons of Bhuintoli forming an unlawful assembly recriminated them and pounced upon them raising alarm of chor chor. The utterances made by the witnesses that they were not thieves rather they were in search of thieves who after removing their electric motors etc. had hid themselves there in the village referred to above went unheeded for by them.

7. Getting frightened the witnesses and the villagers started fleeing away towards villages Raunia and Darshan Bigha, however, one of them i.e. Arvind Kumar alias Raju (deceased) was caught hold by the miscreants who at about 8.30 P.M. assaulted and killed him and they dragged the dead body and concealed the same somewhere in between northern tola and southern tola of Bhagalpur Bhuintoli. The informant (P.W. 12) identified the appellants and 22 others with their respective weapons in their hands amongst the miscreants in the torch light.

8. Vijay Kumar Singh (P.W. 5) rushed to the police station and he submitted written report on the basis of which formal first information report was drawn up and Khizersarai P.S. Case No. 50/86 was registered. Thereafter the Officer-in-charge Ram Nandan Singh (P.W. 14) along with P.W. 5 went to Bhagalpur Bhuintoli where Fardbeyan of P.W 12 giving rise to Khizersarai P.S. Case No. 51/