DHARNIDHAR JHA and DINESH KUMAR SINGH JJ.

1. The three appellants have challenged the judgment and order of conviction and sentence dated 6.8.1988 passed by the learned 8th Additional District and Sessions Judge, Munger whereby appellant Kishor Yadav has been convicted under section 302 IPC and sentenced to undergo R.I. for life whereas the other two appellants Hirdi Yadav alias Hirday Yadav and Jaiba alias Jai Prakash Yadav were convicted under sections 302/34 of IPC and sentenced to undergo R.I. for life.

2. The prosecution case, as per the fardbeyan of Jagat Narayan Yadav, P.W. 6, recorded by S.I. R.P. Singh (not examined), Officer-in-Cahrge of Mansi Police station, on 4.8.1985 at 9 A.M. at the Basa (out house) of deceased Tejo Yadav at village Dhubauli Boria Bahiyar, is to the effect that at 7 A.M. in the morning, the deceaseds brother Tejo Yadav, Rajo Yadav, (P.W. 3) and Jai Prakash Yadav (P.W. 1) were sitting at the Basa of the deceased. In the meantime, Hirdi Yadav, Kishore Yadav and Jaiba alias Jai Prakash Yadav came with their cattle for grazing of the Parainta grass grown on the land of the deceased, upon which the deceased Tejo Yadav ran to forbade them, on which Hirdi Yadav instigated to kill, and then Jaiba alias Jai Prakash and Kishore Yadav caught hold of Tejo Yadav and Hirdi Yadav started slitting the neck of Tejo Yadav by a grass cutting sickle. Then, the deceased raised alarm, then Hirday Yadav left causing injury to Tejo Yadav and then along with Jaiba Yadav caught hold of the victim and thereupon Kishore Yadav fired from country made pistol causing injury at the neck of Tejo Yadav, as a result of which he fell down and thereafter, the accused persons fled away. When the informant reached near the deceased, then he found the victim struggling for life but, ultimately, he died on the spot. On alarm, Harivansh Yadav (P.W. 2), Jagdeo Yadav (P.W. 4) and others came and saw the accused fleeing away from the place of occurrence. The animals of the accused were grazing in the field of the deceased even after the occurrence, which were handed over by the informant to the Police Officer who recorded the fardbeyan. On the basis of the aforementioned fardbeyan, Chautham Police Station case no. 112 of 1985 was registered on 4.8.1985 at 5.30 P.M. under sections 302/34 of the IPC.

3. The prosecuting agency, after investigation, submitted charge sheet under sections 302/34 of the IPC and section 27 of the Arms Act.

4. Subsequently, Judicial Magistrate, Khagaria took cognizance of the offences punishable under section 302/34 of IPC. Thereafter, the case was committed to the Court of Sessions. The charges were framed under section 302/34 IPC against all the three accused persons whereas against Hirday Yadav the charges were also framed under section 302/114 of IPC.

5. The prosecution, in order to substantiate the charge, examined nine witnesses, of which P.W. 1 is Jai Prakash Yadav, the FIR named witness, P.W. 2 is Haribansh Prasad Yadav, P.W. 3 is Rajo Yadav, P.W. 4 Jagdeo Yadav is also FIR named witness, P.W. 5 is Gulabi Yadav, P.W. 6 is Jagat Narayan Yadav, informant of the case and he has been declared hostile, P.W. 7 is Ghoghal Yadav, son of the appellant Hirdi Yadav who has also been declared hostile, P.W. 8 is Dr. Jagdish Sinha who conducted the postmortem (Ext 2) of the deceased. P.W. 9 S.I. Nand Sharma is the I.O. who investigated the case and submitted charge sheet.

6. Out of nine prosecution witnesses, P.W. 4, Jagdeo Yadav, P.W. 7 Ghoghal Yadav have also been declared hostile along with the informant P.W. 6. P.W. 1 and P.W. 3 have given eye witness account of the occurrence whereas P.W. 2 and P.W. 5 have claimed to have reached on the spot immediately after the occurrence and saw the accused persons fleeing away with their respective arms.

7. P.W. 1 in paragraph 1 of his evidence, stated that at the time of the occurrence he was in his field which is situated at the distance of one and half rassi from the