Jayanandan Singh, J.

1. A common judgment and order of conviction and sentence passed by the 6th Additional Sessions Judge, West Champaran at Bettiah dated 9th September, 2002 in Sessions Trial No. 71 of 2001 is under challenge in both the appeals. By the said judgment and order of conviction and sentence, appellant Sk. Gayasuddin @ Sk. Bhulan of Cr. Appeal No. 641 of 2002 has been convicted under Section 302/149 of the Indian Penal Code whereas appellant Sk. Nasiruddin of Cr. Appeal No. 737 of 2002 has been convicted u/s. 302 of the Indian Penal Code, 1860 . Both have been sentenced to undergo rigorous imprisonment for life. In addition, both the appellants have been convicted u/s. 307 read with sec. 149 of the Indian Penal Code, sec. 27 of the Arms Act and sec. 148 of the Indian Penal Code and have been sentenced to undergo R.I. for seven years, three years and one year respectively. Sentences have been ordered to run concurrently.

2. Prosectulon was lodged on the fardbeyan of one Sk. Abare Alam (P.W.4) recorded at 7.00 P.M. on 24.11.2000 near the house of one Hari Mahto in village Pipara Dubey within the jurisdiction of Majhaulia Police Station in the district of Bettiah. As per the fardbeyan the informant was coming from Bettiah court with his brother Sk.Ekram (deceased) on a motorcycle at about 4.00 P.M. The motorcycle was being driven by him and his brother Sk.Ekram was sitting behind. They stopped at Sariswa Bazar for a while near the rice mill of one Amrika Prasad and at about quarter to five they proceeded further. At about 4.45 P.M. when they reached at Pipara Dubey Tola near the house of Hari Mahto he had to slow down the motorcycle due to a drain made on the road for drainage of water. At that point of time appellant Sk. Gayasuddin came out from south with a country made shot gun exhorting other appellant Nasiruddin to kill the enemy. The other appellant. Nasiruddin also came out and fired at Sk.Ekram, brother of the informant with his country made shot gun, as a result Sk. Ekram fell from the motorcycle. Thereafter Sk. Salauddin, Sk. Rahamtullah, Sk. Raiful also started firing at the informant but the informant, fell down from the motorcycle unhurt. There were two or three more persons whom the informant could not identify. The accused persons ran away towards north firing from the fire arms in their hands. Behind the informant and the deceased, Naushad Ali (P.W.2), Jawed Akhtar (P.W.1), Sk. Mustak (P.W.3) and one Sk. Shaukat were coming from towards Sariswa Bazar, who saw the occurrence from very close range and identified the accused persons. As a result of firing the brother of the informant Sk. Ekram died on the spot. Old enmity between the parties was claimed to be the reason for the incident. On the basis of the fardbeyan, a formal F.I.R. was drawn at 10.00 P.M. and after investigation chargesheet was submitted and the accused persons were sent up for trial.

3. During trial six witnesses were examined by the prosecution, out of which Jawed Akhtar (P.W.1), Naushad Ali (P.W.2) and Mustak (P.W.3) claimed to be the eye witnesses as mentioned in the fardbeyan itself and they claimed to have seen the occurrence from a close distance as they were coming behind the informant and the deceased. P.W.4 is the informant himself and an eye witnesses as he was driving the motorcycle on which the deceased Sk.Ekram was sitting behind. P.W.5 is the Civil Assistant Surgeon, who at that point of time was posted in MJK Hospital, Bettiah and who held post-mortem examination of the dead body of Sk.Ekram at 11.30 A.M. on 25.11.2000. P.W.6 is the Investigating Officer, who recorded the fardbeyan, investigated the case and submitted chargesheet.

4. The defence also examined two witnesses out of which one Kanhaiya Mishra appeared as an eye witness to the occurrence and claimed that he did not identify any of the accused persons and the crowd which had gathered at the place of occurrence were talking about attack by extremist o