S.K.SHARMA & R.K.MISHRA, JJ.:–There were originally two appellants namely, Tej Narain Bhagat and Bharat Bhagat. On 19.11.2010 it was pointed out by learned counsel appearing on behalf of appellants that appellant no.1 Tej Narain Bhagat son of Ram Lakhan Bhagat resident of village Bhim Nagar, P.S. Baruraj at present Motipur, District Muzaffarpur is dead. To ascertain the authenticity of the prayer, a report was called for from the Superintendent of Police, Muzaffarpur. The Superintendent of Police, Muzaffarpur through his Letter No. 260 dated 27.01.2011 has reported that Tej Narain Bhagat is dead. In view of the report of the Superintendent of Police, Muzaffarpur, the appeal against appellant no.1 Tej Narain Bhagat abates and now the only appellant remaining in the appeal is Bharat Bhagat who was convicted by learned Sessions Judge, Muzaffarpur in Sessions Trial No. 92 of 1986 vide judgment dated 21.07.1988 for offence under Section 302/34 of the Indian Penal Code and 27 of the Arms Act and was sentenced to undergo rigorous imprisonment for life under Section 302/34 of the Indian Penal Code and to undergo rigorous imprisonment for three years under Section 27 of the Arms Act. The sentences were ordered to run concurrently.

2. The prosecution case relates to an occurrence of just passed midnight of 22.05.1985. The case proceeded on the basis of the fardbeyan (Ext.1) of the informant Baldeo Mahto (P.W.6) which was recorded on 23.05.1985 at 3.30 A.M.in the State Dispensary, Motipur by S.I. S.R. Tiwary who was killed subsequently in which it was alleged that in the preceding night he was sleeping at the darwaza of Lakhan Mahto (not examined) and his brother Rajendra Mahto (deceased of the case) was sleeping inside his house. At about 12.30 in the night the informant heard some sound and saw that some persons by flashing torch were moving near his house and 10 persons reached near him and asked him to keep mum. The informant in order to save himself any how entered into darwaza and bolted the door from inside. He saw from the window that Tej Narain Mahto (now dead) and appellant Bharat Bhagat having country made pistol were searching the informant. When informant was not found, then they rushed towards the house of the informant. Meanwhile informant’s elder brother Rajendra Mahto came out from the house on road and suddenly Tej Narain Mahto opened fire which caused injury to his neck and thereafter appellant Bharat Bhagat fired causing injury on the chest to him upon which the informant’s brother Rajendra Mahto fell down. Other persons accompanying both the accused were not identified but the informant claimed to identify them after seeing their faces. In the meantime, Jagdish Mahto (P.W.3), Deolagan Mahto (P.W.7), Raj Kishore Mahto (P.W.1), Gagandeo Mahto (P.W.2) and Deolal Mahto (not examined) arrived and the accused persons retreated. The occurrence took place on account of the fact that a dacoity was committed earlier in the house of Yogendra Sah (not examined) of Motipur and in that dacoity the informant had assisted the police in nabbing the accused persons. On the basis of fardbeyan, a formal F.I.R.(Ext.4) resulted in Motipur P.S. Case No.58 of 1985 under Sections 148,149, 324, 447 and 307 of the Indian Penal Code and 27 of the Arms Act and investigation was taken up. The injured Rajendra Mahto was initially taken to State Dispensary, Motipur and when his condition did not improve, then he was brought to Muzaffarpur hospital and to Patna Medical College Hospital for better treatment but he succumbed to the injuries. After death the inquest report (Ext.3) was prepared upon which Kailash Mahto (P.W.9) and the informant (P.W.6) put their signatures. His post mortem was done by P.W.11 and the post mortem report (Ext.5) was received. After investigation, chargesheet was submitted and the case was committed to the court of Sessions where charge under Section 302/34 of the Indian Penal Code was framed against all the four accused per

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