DHARNIDHAR JHA and AKHILESH CHANDRA JJ.

1. The two appellants were put on trial by the 12th Additional Sessions Judge, Munger, in Sessions Trial No.112 of 1987 by framing charges under Sections 302/34 and 307/34 of the Indian Penal Code. The learned Judge by his judgment dated 9.6.1988 found the two appellants guilty of the charges framed against them and directed each of them to suffer rigorous imprisonment for life under Section 302/34 of the Penal Code and rigorous imprisonment for 10 years under Section 307 of the Penal Code by order of sentence dated 13.6.1988. The appellants have preferred the present appeal to question the propriety and correctness of the finding of guilt passed against them.

2. P.W. 7, the wife of the deceased Kailash Singh, as per her story, was sleeping in the night of 13.10.1985 in the verandah of her house. Her husband was sleeping in the Angan of the house. At about 12 A.M. three accused persons including the two appellants came there and started assaulting the deceased Kailash Singh with garansa and killed him. P.W. 7 stated that, thereafter, they came near her at the verandah and started dealing blows to her also. She cried and raised an alarm of "jan bachao-jan bachad whereafter the appellants and the absconding accused Hari Singh ran away from the scene of occurrence. The informant stated that she stated about the incident to the persons who had assembled on hearing her cries and, thereafter, some of them, like, P.W. 1 Mahendra Singh, P.W. 3 Bhuneshwar Singh, P.W. 2 Uchit Prasad Singh and P.W.8 Ram Bilash Singh brought her by a Tamtam(tonga) to the Police Station where she lodged her F.I.R., Ext.4.

3. The reason for the occurrence as stated by P.W.7 was that the absconding accused Hari Singh who was the full brother of Kailash Singh was residing by the side of the deceased in another Jhopari and the access to the house of the deceased was through a part of the land of Jhopari of the accused. There was some dispute between the deceased and accused Hari Singh since about last two years and about 5-6 months prior to the occurrence, a Panhayati was held as per which some land which was in occupation of the deceased was found belonging to accused Hari Singh and Hari Singh came to demolish the wall of the deceased which was objected to by the deceased on the ground that he could get his land after sometimes. It was for that particular land that accused Hari Singh started soliciting some support and ultimately committed the murder of the deceased with the help of the two appellants.

4. P.W. 11, S.l. Md.Abu Khase, started investigation after drawing up Ext.4 and recorded the further statement of the informant and statements of P.Ws. who had accompanied her up to the Police Station. He, thereafter, came to the place of occurrence and inspected the place where he found blood fallen on the ground under the cots over which the deceased and the injured P.W.7 were sleeping. The house of the accused Hari Singh was found just on the north of the house of the deceased and that he found a mark of partitioning the land by fixing a brick in earth, between the accused Hari Singh and the deceased. He prepared the inquest report Ext.5 and also seized the blood stained earth after preparing the seizure memo Ext.6. He sent the dead boy for post-mortem examination and got recorded the statement of the mother of the deceased under Section 164 Cr. P.C. He received the post-mortem examination report and after close of the investigation submitted charge sheet sending up the accused persons for trial.

5. In cross-examination P.W. 11 stated that not only did he find blood on the cots but he found blood on the earth under the cot also and he mentioned those facts in a particular paragraph of the case diary.

6. The defence of the appellants was that P.W.7 had not seen any occurrence and that the lady who was married earlier to one Mahendra had earned the wrath of her previous husband Mahendra and may be that the decea