The two appellants through the aforesaid two appeals have challenged the judgment of conviction and order of sentence dated 26.7.1989 passed in Sessions Trial No. 260/1987 by the learned 6th Additional Sessions Judge, Purnea whereby they have been held guilty under Sections 148 and 302/149 of the Indian Penal Code and sentenced to undergo R.I. for life under Section 302/149 I.P.C. No separate sentence has been awarded to them under Section 148 of the Indian Penal Code.

2. The prosecution case is based upon fardbeyan of the informant Sridhar Jha which was recorded at 7.30 a.m. on 9.4.1984 by Sri R.C. Singh, Sub-Inspector of Police of K. Nagar police station at Sausa. The informant has alleged that few days back his boring pipe had been extracted and taken away by some unknown person. On inquiry, he came to know that one Kanka Fakir, a resident of village Rahuwa had stolen the boring pipe. The informant and his family members had taken Kanka Fakir to task and had asked him to return the stolen boring pipe, as a result of which he got annoyed and had threatened to kill the informant. Due to aforesaid reason, in the night intervening between 8.4.1984 and 9.4.1984 at about 12.00 a.m. accused Abbas Shah, Kanka Fakir, Hakma Fakir, younger brother of Hakma Fakir (Rahimuddin Shah) and three other unknown persons being variously armed with axe, farsa, sword and revolver came at the door of the informant and surrounded the “chowki” on which two sons of the informant, namely, Shailendra Kumar Jha and Pushpendra Kumar Madhav were sleeping. They identified Shailendra Kumar Jha in torch-light after removing the “Chadar” (Sheet of Cloth) from his face. Thereafter, accused Hakma Fakir assaulted by axe causing injury near eye of Shailendra Kumar Jha and accused Kanka Fakir fired from country-made revolver hitting in the chest of Shailendra Kumar Jha. Shailendra Kumar Jha was seriously injured and died instantaneously.

3. The informant has further alleged in his fardbeyan that Shailendra Kumar Jha was keeping Rs. 300/- in cash, which the accused persons threw on the “chowki”. The informant has also alleged that the accused persons assaulted his another son namely, Pushpendra Kumar Madhav by handle of ‘axe’. An alarm was raised and large number of villagers rushed towards the house of the informant. The accused persons took to their heels towards west. The informant found some of the ornaments and other house-hold articles missing from the house which he alleged that the accused persons had taken away. The informant, thus, claimed that due to pervious enmity as stated above, the accused persons killed one of his son and committed theft in the house.

4. The fardbeyan with inquest report and seizure list was handed over by S.I., R.C. Singh of K. Nagar police station to S.I., Indrajit Singh, who was In-charge of Maranga O.P. and had reached subsequently at the place of occurrence. It appears from the forwarding note of Indrajit Singh, Sub-Inspector of Police and Incharge of Maranga O.P. which is noted beneath the fardbeyan that the said recorded statement was being forwarded to the Officer-in-Charge of K. Nagar police station for institution of F.I.R. under Section 302/380 IPC of which he had himself taken up the investigation. On receipt of the aforesaid fardbeyan, a formal F.I.R. was drawn on 9.4.1984 being K. Nagar P.S. Case No. 75 of 1984, under Sections 302 and 379 of the Indian Penal Code naming Abbas Shah, Kanka Fakir, Hakma Fakir, younger brother of Hakma Fakir and three others as accused and investigation was taken up. On conclusion of investigation, the Investigating Officer submitted charge sheet against the accused persons. The co-accused Kanka Fakir and Hakma Fakir absconded. The learned Magistrate took cognizance of the offence and after supplying the police papers, since the offence alleged was exclusively triable by the court of sessions, the case of the appellants was committed to the court of sessions. The charges were framed