(Per: Hon'ble Mr. Justice Ashwani Kr Singh)

The appeal is directed against the judgment and order dated 15th June, 1989 passed by the 3rd Additional Sessions Judge, Nawada in Sessions Trial No. 118 of 1987/122 of 1984 by which, appellant no. 1, Moti Mahto, and appellant no. 4 Bhagwan Mahto have been convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and appellant no. 2 Mosafir Prasad, appellant no. 7 Kishun Mahto, appellant no. 3 Vijay Prasad, appellant no. 8 Chandrika Prasad, appellant no. 6 Amrit Mahto, apellant no. 5 Meghu Mahto have been convicted for the offence punishable under Section 302 read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life.

2. The prosecution case is based on the fardbeyan of one Rajdeo Prasad @ Rajdeo Yadav made at 1 p.m. on 4.11.1979 regarding the occurrence which is alleged to have taken place on the same day at about 7 a.m. In the first information report it is alleged that on the relevant date and time of occurrence Bhuneshwar Yadav (deceased) alongwith Rajdeo Prasad, Babulal Yadav, Lachchu Yadav, Nanhku Yadav, Anant Manjhi, Pokhi Yadav, Nanhku Manjhi, Balaram Yadav, Kuldip Yadav, Vijay Yadav and others, left Village-Marhpa for harvesting paddy crop in Village-Manjhgama where he had landed property from his mother-in-law. When Bhuneshwar Yadav and others, named above, reached at the outskirt of Village-Manjhagama near river, Moti Mahto, Budhan Mahto, Chandrika Mahto, Sukhdeo Mahto, Ragho Mahto, Bhagwan Das, Vijay Mahto, Musafir Mahto, Kishun Mahto and Meghu Mahto, who came variously armed, intercepted them. Appellant No. 1 Moti Mahto is alleged to have exhorted his companions to kill them as they had come to harvest the paddy crop and at the instance of the appellant Moti Mahto, Budhan Mahto is alleged to have fired from his country-made gun causing injury to the deceased Bhuneshwar Mahto who fell down and other accused persons accompanying Budhan Mahto brutally assaulted Bhuneshwar Mahto with 'Lathi', 'Garasa' and other weapons. Bhuneshwar Mahto died on the spot as a result of injuries sustained by him. The other persons who had come alongwith the deceased to harvest the paddy crop were also chased by the accused persons. Some of them were apprehended and confined too. The informant Rajdeo Prasad managed to escape and reached the police station where his fardbeyan was recorded on the basis of which Sirdalla P.S. Case No. 2 of 1979 was instituted and investigation was taken up. The dead body of the deceased Bhuneshwar Yadav was sent for post mortem examination to Sadar Hospital, Nawada. P.W. 12 Dr. R.P. Sethi conducted post mortem examination on the dead body of the deceased on 5.11.1979 at 12 noon. The police on completion of investigation submitted chargesheet in the case. Since the offence alleged was exclusively triable by a court of sessions, the case was committed to the court of sessions. All the accused persons who were sent up for trial were charged with the allegation that they were members of an unlawful assembly and common object of which was to commit murder and in pursuance of the object they committed murder by intentionally causing the death of Bhuneshwar Yadav and thereby they committed the offence punishable under Section 302/149 of the Indian Penal Code. The charges were read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried and, accordingly, the trial commenced. It is to be noted that in all eleven persons were put on trial in connection with the offence alleged but out of eleven accused persons three, namely, Budhan Mahto, Ragho Prasad and Sukhdeo Prasad were acquitted by the trial court.

3. The prosecution examined thirteen witnesses in all in order to prove the charges. Out of thirteen witnesses examined on behalf of prosecution, P.W. 4 Lachchu Mahto, P.W. 6 Vijay Yadav, P.W. 8 Balram Yadav @