Rekha Kumari, J.

1. Both the appeals arise out of the same Sessions Trial No. 102 of 1982/212 of 2001 and as such they have been heard together and this judgment would dispose of both of them. There was one more appeal being Criminal Appeal No. 437 of 2002 arising out of the same Sessions Trial but the sole appellant, in that appeal, namely, Chhotan Singh died during the pendency of the appeal. Therefore, that appeal has abated. Similarly in Criminal Appeal No. 440 of 2002, one of the appellants, namely, Dwarika Singh died during the pendency of the appeal. The appeal so far that appellant also has abated.

2. In the above sessions trial the learned Adhoc District & Sessions Judge-cum-Fast Track Court, Siwan has convicted the appellants named above under Section 302/34 of the Indian Penal Code for committing murder of one Mahadeo Singh and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 5000/-each and in default to undergo rigorous imprisonment for two years.

3. There were four more accused persons in the above sessions case among whom accused Ram Surat Singh, Nanhu Singh, Jagdish Singh died during the pendency of the trial. One accused, namely, Ram Chandra Chaubey was found not guilty during trial and he was acquitted.

4. The prosecution case, as disclosed from the Fardbeyan (Ext.3) is that on 28.6.1979 at about 3.00 p.m. informant Inderdeo Singh along with his brother Mahadeo Singh (deceased) and Sahdeo Singh alighted from the bus coming from Siwan at Nizampur More. His brother Mahadeo Singh went towards the betel shop of Bankey Tiwary to hand over betel leaves, for the purchase of which Bankey Tiwary had given him money. In the meantime, Chhotan Singh and Ram Surat Singh both armed with Pistol chased Mahadeo Singh for assaulting him. Ram Chandra Chaubey who was on the pucca road exhorted to kill him. Mahadeo Singh fled towards south of Pan shop. Chhotan Singh and Ram Surat Singh fired on Mahadeo Singh. Chhotan Singh shouted that Mahadeo Singh was fleeing and asked to surround him. Meanwhile, Hira Singh (appellant), Bikram Singh (appellant), Nanhu Singh, Jagdish Singh and Dwarika Singh, all armed with Pharsa came and surrounded. Appellant Hira Singh assaulted Mahadeo Singh with Pharsa on head. Mahadeo Singh fell down. Then he was assaulted with Pharsa by all the accused persons holding Pharsa. The informant and his brother Sahdeo Singh tried to save their brother but Chhotan Singh and Ram Surat Singh chased them with Pistols in their hands. They fled to the road and raised alarm. The witnesses who were of Nizampur More saw the occurrence. The assailants then went towards the house of Chhotan Singh. The informant and his brother went near Mahadeo Singh and found him dead. They cried. The accused persons, on this again armed with Pistol, Pharsa reached there and chased them to assault. The informant and his brother fled towards their house. Some villagers came on alarm raised by the informant but out of fear of the accused persons they remained away from the scene.

5. The Fardbeyan of the informant was recorded at Pachrukhi police station on the same date at 5.0 p.m. On the basis of the said Fardbeyan, a formal F.I.R. (Ext.4) was drawn up at Siwan Mufassil police station. The police investigated the case and after investigation submitted chargesheet against all the accused persons.

6. The appellants and all other accused persons except Ram Chandra Choubey and the informant are of the same village Nizampur, Ram Chandra Choubey belongs to a different village Sahalaur.

7. The appellants along with other co-accused who faced the trial were charged under Sec. 302/34 of the Indian Penal Code for committing murder of Mahadeo Singh in furtherance of their common intention. Accused Chhotan Singh and Ram Surat Singh were further charged under Sec. 27 of the Arms Act for possessing country made Pistol with the intention of causing murder. They pleaded not guilty to the charges. Their defence as gathered fr