Mridula Mishra, J.

1. By judgment and order dated 22.10.2001 passed by the 3rd Additional Sessions Judge, Buxar in ST No. 237 of 1993, appellants Deo Pujan Thakur and Sarabjeet Thakur of Cr. Appeal No. 576 of 2001 and Kamlesh Kumar Rai of Cr. Appeal No. 601 of 2001 have been convicted u/s. 302/34 of the Indian Penal Code and sentenced to rigorous imprisonment for life and have also been directed to pay a fine of Rs. 5000.00 each. Appellant Kamlesh Kumar Rai has further been sentenced to undergo rigorous imprisonment of seven years u/s. 27 of the Arms Act. The sentences have been directed to run concurrently.

2. The prosecution case in short is that on at 6.7.1993 at about 6.30 p.m. Ram Narain Tiwary along with villager Radheshyam Tiwary and younger brothers Sheo Shanker Tiwary and Santosh Kumar Tiwary was coming from his boring situated towards east of his village. When they reached near Kali Asthan they saw Bhuwar Tiwary younger brother of Ram Narain Tiwary playing Chikka Kabaddi along with other village boys. They also started watching the play. In the meantime at about 7 p.m. Deo Pujan Thakur and Ram Pujan Thakur armed with farsa. Sarbjit Thakur armed with chura and Kamlesh Rai armed with country made pistol arrived there. Deo Pujan Thakur ordered and Kamlesh Rai opened fire on Bhuwar Tiwary which hit at the back side of his waist and he fell down. Bhuwar Tiwary thereafter was repeatedly assaulted by Ram Pujan Thakur and Sarbjit Thakur on his head and other parts of the body as a result of which he died on the spot. Ram Narain Tiwary and other people sitting there tried to rescue Bhuwar Tiwary, but Kamlesh Kumar Rai opened fire on them which fortunately did not hit any one. The accused persons thereafter fled away towards north east of the place of occurrence. As stated in the prosecution story the motive behind the occurrence was some altercation which had taken place 8-10 days earlier in between Kailash Rai and Bhuwar Tiwary as she buffalo and cow belonging to Kailash Rai entered into the field of Ram Narain Tiwary. There was a verbal altercation in between Bhuwar Tiwary and Kailash Rai who always on litigating terms on some pretext or the other. The occurrence was witnessed by Jagnarain Thakur, Rajnarain Thakur, Jaigovind Rai and many others who were present there.

3. Ram Narain Tiwary PW 8 gave his fardbeyan on 6.7.1993 at 9 a.m. to Officer Incharge of Krishna Brahma police station at village Barka Diya near Kali Asthan and on the basis of his fardbeyan the Officer Incharge of Simri police station drew up a formal FIR and registered Simri Krishna Brahma P.S. Case No. 82 of 1993 for the alleged offence u/s. 302/34 of the Indian, Penal Code and 27 Arms Act. The Officer-Incharge of Krishna Brahma police station Sanjay Kumar started investigation of the case against accused persons named in the FIR and submitted charge-sheet against all of them u/s. 302/34, Indian Penal Code, 1860 and 27 Arms Act. The trial Court framed charge against the appellants Deopujan Thakur, Sarbjit Thakur and Kamlesh Kumar Rai u/s. 302/34, Indian Penal Code, 1860 and further charge was framed against Kamlesh Rai u/s. 27 Arms Act. One of the accused Rampujan Thakur died during trial and the case of the appellants ended in their conviction as stated above.

4. The defence of the appellants is that the deceased was killed at a lonely place in the night while he was returning after attending the call of nature. He was killed by some unknown persons in some other manner but due to previous enmity they have been falsely implicated in this case. The occurrence has not taken place at the time which has been stated in the FIR No Chikka Kabaddi was being played by any one but a false case was fabricated by the prosecution.

5. The prosecution in support of its case examined 12 witnesses out of them PW 2 Radhey Shyam Tiwary, PW 3 Jag Narayan Tiwary, PW 4 Santosh Kumar Tiwary, PW 5 Raj Narain Tiwary, PW 6 Shiv Shankar Tiwary, PW 7 Jai Govind Rai -and PW