SUDHIR KUMAR KATRIAR and MADHAVENDRA SARAN JJ.

1. The ten appellant in the two appeals are aggrieved by the judgment dated 8.4.1988, passed by the learned 4th Additional Sessions Judge, Nalanda, in S.T. No. 71 of 1984 (State of Bihar V/s. Chandu Mochi & Ors.), whereby appellant Nande Pasi has been convicted under Section 302 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for life. The remaining appellants, namely, Bundi Choudhary, Krishna Choudhary, Mahesh Choudhary, Chhotelal Yadav, Chandu Manjhi, Shree Manjhi, Jethan Manjhi, Ganauri Manjhi and Lal Keshwar Manjhi have been convicted under Section 302, read with Section 149, of the Indian Penal Code, and have been sentenced to undergo rigorous imprisonment for life. The convicted persons shall hereinafter be referred to as the appellants).

2. According to the Fardbeyan of Brij Nandan Singh (P.W.10), recorded on 29.5.1983, at about 8 P.M., at Biharsharif Sadar Hospital that he had grown Onion plants on agricultural lands near the Harijan Toli, Gaurichak. On that day, at about 6.30 P.M., the cattle belonging to the Harijans were grazing and destroying the plants of the informant. His brother Jai Nandan Singh deceased had driven the cattle out of his fields away towards the Harijan Toli and was using abusive language against them, and was also warning them that they should not do such injustice to him. The appellants emerged using abusive language and variously armed. Appellants Nande Pasi and Bundi Pasi were armed with Hasuli and Lautha, and the remaining appellants were armed with lathi and Paina, were using abusive language against tne said Jai Nandan Singh, and had encircled him. On hearing Hulla, the informant (P.W.10), Bhaso Singh (P.W.4), Siya Saran Singh (P.W.6), and Bihari Singh (P.W.9), also assembled there. They saw that Krishna Pasi had caught hold of the left hand of Jai Nandan Singh, Mahesh Pasi was holding his right hand, and Chotelal Gope was holding his hairs on the head from behind. Bundi Pasi gave the order that "vm ^fr "g^t ^rz ^f", whereupon Nande Pasi who had Hasuli in his hand wanted to strike with his Hasuli on the neck which he warded off and landed on his left arm resulting in injury. This was followed by the second attack with Nande Pasi with his Hasuli on the right side of the chest, pierced it resulting in profuse bleeding and his brother fell down, and started trembling and became unconscious. This was followed by the third attack by Nande Pasi on his brother which hit his left wrist causing injury. The informant had taken his injured brother in a critical condition to Biharsharif Sadar Hospital. The appellants had then burnt their own hutments made of straw. His brother died in Sadar Hospital, Biharsharif, as soon as he reached there.

3. Investigation commenced. The occurrence had taken place at 6.30 P.M. The Fardbeyan (Ext.5) was recorded at the Sadar Hospital at about 8 P.M., and the inquest report (Ext. 7) was also prepared at that time. The dead body was forwarded for post-mortem which was conducted on 30.5.1983, at 5.45 A.M. Post-mortem was conducted by Chandradeo Sahay (P.W.1), who submitted his post-mortem report on 30.5.1983. A formal F.I.R. was drawn and was registered as Silao (Nalanda) P.S. Case No. 123 of 1983, dated 29.5.1983, under Section 302/34 of the Indian Penal Code. The appellants were arrested and charge-sheets were submitted after conclusion of the investigation. Cognizance was taken and charges were framed against the ten appellants under Section 302/149 of the Indian Penal Code. Charges were also framed against appellants Bundi Pasi, Krishna Pasi, Mahesh Pasi and Chotelal Yadav under Section 302/34 of the Indian Penal Code. Charge-sheet was submitted against appellant Bundi and Nande under Section 302 of the Indian Penal Code. The charges were framed by the learned 4th Additional Sessions Judge on 18.6.1984.

4. The prosecution examined the following 11 witnesses to prove the charges:-