S.H.S. ABIDI, J.

1. All the appellants have come to this Court against the order of conviction and sentences passed by the trial court. Appellant, Sattan Mandal has been convicted for the offence under section 302 of the Indian Penal Code (for short IPC) and sentenced to undergo rigorous imprisonment for life and the appellants, Sattan Mandal, Garbhua Mandal, Dashrath Mandal and Laddu Mandal have been convicted under section 302/149 IPC and sentenced to undergo rigorous imprisonment for life. The sentences awarded to appellant Sattan Mandal have been ordered to run concurrently. Three other accused Amrit Mandal, Sree Mandal and Arjun Mandal have died during the course of trial.

2. The case of the prosecution in brief, is that on 16.12.1975 the informant Dukhan Yadav had gone to Nathnagar Bazar and his brother Sarmi Yadav and his (Sarmi's) friend Kameshwar Singh had gone to Civil Court, Bhagalpur. In the evening at about 5 P.M. they were returning from Nathnagar along with villagers Darbi Yadav, Gaini Yadav, Satya Narain Yadav and Chamru Yadav. They boarded on a boat to cross the river Jamunia and at the same time, Amrit Mandal, Sattan Mandal, Laddu Mandal and Dashrath Mandal, Sree Mandal and Arjun Mandal came from the Deorhi of Mahesh Ghosh and boarded on the same boat on which, some persons of the village were already present. The informant and his men set out for the village. After proceeding 8 to 10 rassis from the Ghat, Sarmi Yadav and his friend Kameshwar Singh were going ahead and Amrit Mandal was behind them and the informant was going behind Amrit Mandal. Then the informant saw that Amrit Mandal took out a pistol and fired at Sarmi Yadav and Kameshwar Singh which hit them, due to which Sarmi Yadav ran away but accused Amrit Mandal (since dead), Sattan Mandal, Laddu Mandal, Arjun Mandal (since dead) and Sree Mandal (since dead) caught bold of him and accused Sattan Mandal cut the neck of Sarmi Mandal. On alarm raised by Dukhan Yadav (informant), accused Sree Mandal ordered to kill him also. But the informant fled away out of fear though the accused persons fired 6-7 rounds at him. In the light of moon, he identified the accused persons but he could not identify the other 10-12 persons who were also there. He had seen Amrit Mandal, Laddu Mandal, Arjun Mandal, Dashrath Mandal and Sree Mandal being armed with pistols, while Sattan Mandal had knife. Sarmi Yadav and Kameshwar Singh fell down due to injuries. He has also said that earlier also, Sattan Mandal had injured Sarmi Yadav about a year back but he survived. He has also said that on the day of the occurrence at about 10-11 A.M. when he was going to Nathnagar Bazar via the Deorhi of Mahesh Ghosh he had seen the accused persons sitting there and Mahesh Ghosh was telling them to finish Sarmi Yadav. The witnesses to the occurrence were Nand Kishore, Darbi, Gaini, Satya Narain, Chamru Yadav and others. The informant along with injured Kameshwar Singh went to the Nathnagar police station at about 8.30 P.M. and he got his Fard beyan (Ext. 4) recorded.

3. The investigation of the case was taken up by Ram Nagina Singh, ASI (not examined). Post mortem examination of deceased Sarmi Yadav was done by Dr. M.K. Sinha, on 17.12.1975 at about 11 A.M. who submitted his report (Ext. 2). Kameshwar Singh was injured and was admitted in the hospital on 17.12.1975 and his post mortem examination was done on 18.12.1975 at 12-10 noon by Dr. C.S. Lal who also submitted his report (Ext. 2/1). The investigating officer, after completing the investigation, submitted charge sheet against the appellants.

4. The accused persons, in their defence, denied the story of the prosecution and alleged that they have been falsely implicated in this case due to enmity. However, one defence witness, Lakhi Yadav (D.W. 1) has been examined who has said that on the day and time of the occurrence, he had gone to village Baria for the second marriage of his daughter and witnesses Gaini Yadav, Nand Kishore Yada