C.M.Prasad and Dharnidhar Jha JJ.

1. The two appeals arise out of the judgment of conviction passed by the learned Additional Sessions Judge-I, Qaya on 27th August, 2003 in Sessions Trial No. 257 of 1994. They have been heard together and are being disposed of by this common judgment.

2. The appellants were tried for the charges under Sections 302/149 of the Indian Penal Code as also under Section 27 of the Arms Act. Appellant Umesh Kahar was sentenced separately under Section 302 of the Indian Penal Code and as regards joint charge of the appellants, the learned trial Judge held the charges brought home by the prosecution and directed the five appellants of Cr. Appeal No. 403 of 2003 to suffer RI for life for having committed the offences under Sections 302/149 of the Indian Penal Code and further RI for two years for their individual convictions under Section 27 of the Arms Act. Appellant Umesh Kahar was found guilty under Section 302 of the Indian Penal Code and was inilicted RI for life for committing that offence whereas for having committed the offence under Section 27 of the Arms Act he was directed to suffer RI for two years, as was directed in respect of the other five appellants.

3. The prosecution case, in brief, is that the informant was keeping a watch over his Khalihan and gram fields just at the outskirts of his village. His brother Madan Mohan Singh, who is deceased in the present case, was a RPF personnel, posted in Danapur and had come home on that day. He along with his son Shamser Singh, PW-5, came to see the informant Ram Vijay Singh PW-6, in the Khalihan by a Rajdoot motorcycle so as to offering Abir as the festival of Holi was being celebrated on that day. After having offered Abir to PW-6, the deceased along with his son Shamser, PW-5, were returning home and when they had reached near the house of one Banti Sah, he had to slow down his motorcycle on account of a drainage being situated there. All the accused persons emerged from their wait and surrounded the deceased and at the orders of appellant Jaggu Kahar, appellant Umesh Kahar fired a shot at Madan Mohans. chest causing injury to him. It is stated by PW 6 in Exht.7, the fardbeyan, that Madan Mohan Singh pushed down his son asking him to run away as the two would be killed and accordingly, Shamser Singh, PW 5 came running to the informant PW 6 in his field to inform him. It.was stated that Shamser Singh had splashes of blood on his shirt on account of his father being injured by gun shot and further that the deceased died on that account in a few moments. It was stated that the occurrence had occurred on account of previous enmity.

4. PW-7 SI Parashuram Prasad, on receipt of Exht. 7, ordered institution of the FIR (Exht. 7) and, accordingly, a literate Constable posted in the police station, drew the document up which was signed by him. PW-7, thereafter, took up investigation and went to the village and seized blood stained earth, blood stained clothes and empty cartridge from near the dead body and also prepared the inquest report. Thereafter, he sent the dead body for post-mortem examination. He took statement of different witnesses, inspected the place of occurrence and on receipt of the post-mortem examination report and finding the accused fit to be sent up for trial, sent the accused persons for trial which, ended in their conviction as indicated in the initial paragraph of the judgment.

5. During the course of their trial, the appellants had set up a defence of false implication on account of previous admitted enmity between the parties who had earlier litigated criminal cases and who had also dispute for certain land. As may appear from the suggestion given to PWs 6 and 7, the IO, the deceased was a man of criminal antecedent and he was killed in a manner different from what was alleged by PW 6 and in order to wreak vengeance upon the appellants, they were falsely implicated. The same defence appears taken by all the appellants in