Navin Sinha, J.

1. The present two Appeals arise out of the judgment and order of conviction dated 10.1.2008 of the Additional Sessions Judge, (Fast Track Court No. 5), Banka in Sessions Trial No. 024/2000. The appellants in Cr. Appeal No. 63/08 were found guilty and have been sentenced to capital punishment under Section 302/34 of I.P.C. giving rise to Death reference case No. 4/08. The appellants in Cr. Appeal No. 166/08, likewise, have been sentenced to undergo life imprisonment under Section 302/34 of I.P.C. Appellant No. 1 in the latter appeal is stated to have been deceased during pendency of the appeal on 15.6.2009, as stated on oath by his son. The appeal, therefore, abates against the deceased appellant only.

2. The prosecution case was initiated on the Fardbayan of P.W.3, Ramanand Choudhary, son of the deceased Nakul Prasad Choudhary recorded at village Dera, by the Sub-inspector, Banka police station on 28.8.1999 at about 10.15 p.m. He stated that he was returning to his village-Dera (Choudhary Mohalla) from the Cotigandha Jaggery Mill, along with his father. When they reached near his "Gohal" (cowshed) at about 8.30 p.m., the accused who lay in wait for them, surrounded the two. The two appellants in Cr. Apeal No. 63/08 were alleged to be armed with a "Fasiani" (sickle). Accused Surendra Choudhary ordered to catch the two and teach them a lesson for fighting litigations. The accused persons threw his father, Nakul Prasad Choudhary, on to the ground. Accused Birendra Choudhary and Surendra Choudhary caught the hands of his father while accused Bulchul Choudhary and Manoj Choudhary held his feet. Bikram Choudhary and Umesh Choudhary pressed down his knees. Ram Kumar Choudhary and Dhodho Choudhary, who were both armed with sickle, made repeated attacks on the neck of his father resulting in cutting of the neck and death on the spot. The accused tried to catch him also, when he ran away shouting. The accused then went away towards the Odni river. The villagers came on hearing the commotion. The cause of occurrence was the existing land-dispute between the parties. Twice earlier, the accused had attempted murderous assault on his father for which police cases had been lodged.

3. The F.I.R. was registered the same day i.e. 28.8.1999, at 11.45 p.m. The inquest report was prepared on 28.8.1999 itself at 10.15. p.m. for recovery of the body from village-Dera, Mohalla Choudhary at the eastern end of the village the same day. Blood stains were noticed on the clothes worn by the deceased and he appeared to have been assaulted by a sharp cutting weapon on his neck. The body was received for post mortem at the Sub-divisional Hospital, Banka at 9.00 a.m. on 29.8.1999 which noticed the following ante mortem injuries: (i) An incised wound of size 6"x4"x4" in front of the neck, as well as on the left side of the neck cutting important structures like Trachea, arteries, veins etc. It was caused by sharp cutting weapon; (ii) An incised wound of size 1"x1/2"x1" on the left side of the cheek. It was caused by sharp penetrating weapon. The cause of death was ascribed to shock and haemorrhage due to the above mentioned injuries with the time elapsed since death approximately 20 hrs.

4. The investigation by the police commenced and charge-sheet came to be submitted under Sections 302/34 of I.P.C.

5. The prosecution examined 6 witnesses. P.W.1 Arjun Choudhary is the brother of the deceased Nakul Prasad Choudhary. P.W.2 Bhudeo Thakur is a villager. P.W.3 Ramanand Choudhary is the informant and son of the deceased. P.W.4 Amod Prasad Choudhary is the son of P.W.1, and nephew of the deceased. P.W.5 is the doctor who conducted the post mortem examination while P.W.6 was a formal witness who proved the fardbeyan and the first information report.

6. P.W. 1 stated that he was an eye-witness to the occurrence when the appellants surrounded the deceased and P.W.3. Appellant Surendra Choudhary ordered to kill Nakul Choudhary as he was fightin