AKHILESH CHANDRA, J.

1. This appeal has been preferred against order dated 12.05.1989 passed by learned Sessions Judge, Begusarai, in Sessions Trial No. 171 of 1984 arising out of Bhagwanpur P.S. Case No. 72 of 1982. Wherein appellant no.1 has been held guilty for the offence under Section 302 of the Indian Penal Code, whereas remaining three have been held guilty for the offence under Section 302/34 of the Indian Penal Code and all the four appellants have been awarded sentence to undergo rigorous imprisonment for life giving rise to present appeal.

2. The prosecution case is based on Ext.5. The fardbeyan of Basudeo Mahto (P.W.4) recorded by S.N. Jha, Investigating Officer (P.W.8) at 9.45 P.M. on 12.09.1982 at Manepur Gosarabaha (Place of occurrence) is that the deceased Doman Mahto brother of the informant had gone to Bhagwanpur Block at about 10 A.M. through bicycle and subsequently the informant also left the village at about 3 P.M. for village Manepur to meet his niece, during their return to home at about 7 P.M. both the brothers met each other at Manepur Chowk, for a while, they had a brief talk with each other and the deceased proceeded for the village on his bicycle instructing the informant to follow and when the informant reached opposite the house of Ganesh Rai (not examined) heard "Baap Re" immediately he along with Ramdehi Mahto (P.W.6) rushed towards the place and found the appellants overpowered his brother Doman Mahto (deceased) and when the duo arrived nearer, appellant no.1 Ram Jiwan Choudhary shot at Doman Mahto and all fled away towards west, on alarm Ramnihora Rai (not examined), Rameshwar Choudhary (RW.5) and several others arrived who may say about the occurrence, if seen or heard. Doman Mahto lost his life soon. The reason behind the occurrence as stated in fardbeyan is political rivalry between one Laxman Singh owner of Aagapur Kothi with whom deceased an ex-Mukhiya had a contest for the post of Mukhiya, but lost, and appellant no.1 Ram Jiwan Choudhary is manager and muscle man of Laxman Singh (Mukhiya) and earlier also appellants had once attacked upon the deceased about which he had narrated the informant. The occurrence took place at about 7 P.M. Fardbeyan was attested by one Subrat Choudhary (not examined) whose signature has been marked as Ext.1. The police instituted the case and after investigation submitted charge sheet, after taking cognizance, case was committed and trial commenced, after framing and explaining the charge against appellant no.1 for the offence under section 302 of the Indian Penal Code and rest for the offence under Section 302 read with Section 34 of the Indian Penal Code, which on consideration of materials on record found proved by the trial court who accordingly convicted and sentenced the appellants in the manner aforementioned giving rise to instant appeal.

3. The defence of appellants accused person is that of false implication due to previous enmity, taking undue advantage of the unnatural death of the deceased, in a otherwise manner by his unknown rivals, having grudge against the deceased, owing to his illicit connections with one trained Nurse Arti devi. It is also contended by learned counsel for the appellant that there is none to see the occurrence, witnesses examined are chance and interested witnesses whose presence at the place of occurrence is not established. Even their subsequent conduct also negatived their presence. Further the Investigating Officer has arrived at the alleged place of occurrence on getting information about the murderous attempt upon the deceased. After recording Sanha Entry no. 174/1982 which is not on record and this brings Ext.5, the very fardbeyan and subsequent investigation etc. on that basis a nullity and barred under law. It is also argued that the appellants have been deprived off opportunity to explain the circumstances relied upon by the trial court against them during their examination under section 313 of the Code