ASHWANI KUMAR SINGH, J.:–By a judgment pronounced on 20.07.2009 in Sessions Trial No.52 of 1982 arising out of Balia P.S.Case No.11 of 1978, the learned Additional Sessions Judge-II, Begusarai found appellant no.1 Md. Abdul Kalam and appellant no.2 Md. Hifizur @ Bauka guilty under Section 307/34 of the Indian Penal Code. By the same judgment he found appellant no.3 guilty under Sections 307/34, 326 of the Indian Penal Code and Section 27 of the Arms Act. The learned Additional Sessions Judge-II by the order pronounced on 21.07.1999 sentenced appellant nos.1 and 2 to undergo rigorous imprisonment for six years under Section 307/34 of the Indian Penal Code and appellant no.3 to undergo rigorous imprisonment for ten years under Section 307/34 of the Indian Penal Code, rigorous imprisonment for six years under Section 326 of the Indian Penal Code and rigorous imprisonment for seven years under Section 27 of the Arms Act. The sentences so awarded to the appellant no.3 have been ordered to run concurrently. The convicts being aggrieved by the aforesaid judgement and order passed by the trial court have preferred this appeal under Section 374(2) of the Code of Criminal Procedure.

2. The prosecution case, in brief, is that on 15.05.1978, the informant Mir Belal was ploughing his field and his elder brother Mir Allauddin was sitting near his field. Appellant no.1 Md. Abdul Kalam was also ploughing his field and his son, appellant no.2 Hifizur Rehman was ploughing adjacent field. At about 10 a.m. it is alleged that appellant no.1 Md. Abdul Kalam stopped ploughing, came and enquired from the informant as to why he had ploughed his land. The informant denied to have ploughed his field. They entered into a wordy duel. The informant further alleges that Md. Abdul Kalam and his son Hifizur Rehman started abusing him. A protest was raised by the informant upon which Md. Abdul Kalam asked his son Hifizur Rehman to go to the village and call Md. Khodadad and Islam with arms. Thereafter Hifizur Rahman came together with Khodadad and Islam. It is further alleged that Khodadad ordered to assault on which Islam took out his pistol and fired on the informant and his brother. The further allegation is that informant’s brother Allauddin sustained fire arm injury and he fell down. Thereafter, Md. Abdul Kalam and Hifizur Rehman assaulted the informant with lathi indiscriminately. On shouting made Md. Idris, Raghunath Dhobi, Khakho Mir and Gorakh Yadav came who intervened and pacified the quarrel between the parties.

3. On the basis of the fardbeyan of the informant, Balia P.S.Case No.11 dated 15.05.1978 was registered under Sections 323 and 324 of the Indian Penal Code and Section 25A and 26 of the Arms Act and investigation was taken up. The police on conclusion of investigation submitted chargesheet in the case. The learned Chief Judicial Magistrate, Begusarai took cognizance of the offence and committed the case to the court of Sessions for trial. The trial court framed the charge under Section 307 read with 34 of the Indian Penal Code against all the three appellants. Appellant no.3 Md. Islam was separately charged under Section 326 of the Indian Penal Code and Section 27 of the Arms Act. The appellants did not plead guilty and thus they were put on trial.

4. In course of trial, the prosecution has examined seven witnesses. Out of the seven witnesses examined on behalf of the prosecution, P.W.6 Sukehdeo Prasad Chaurasia and P.W.7 Sheo Shanker Choudhery are formal witnesses who have proved sanction order and the case diary which have been marked as Ext-3 and Ext-4 respectively. P.W.1 Gorakh Yadav and P.W.2 Raghunath Rajak are named in the FIR but they have not supported the prosecution case in course of trial and as such they have been declared hostile by the prosecution. P.W.3 Md. Rizwan and P.W.4 Md. Multan Khan are the other two witnesses on the point of occurrence. P.W.5 Dr. S.M.Waquar had examined the informant and his brother and issued injury rep

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