NAVANITI PRASAD SINGH, J.:–A supplementary affidavit has been filed bringing on record that appellant no.5-Ram Pravesh alias Ram Pravesh Rai died during pendency of this appeal on 14.09.2008. The death certificate of Ram Pravesh alias Ram Pravesh Rai is annexed with the supplementary affidavit.

2. Having heard the parties, in our view, the appeal in relation to appellant no.5-Ram Pravesh alias Ram Pravesh Rai abates.

3. In the supplementary affidavit a copy of the judgment and order dated 10thof July, 1998 passed in Criminal Appeal No.340 of 1991 has been annexed in which appeal the appellants are the same as this present appeal and the incident relating to the said appeal is closely connected with the present appeal. We will at appropriate stage deal with the relevance of the said judgment of this Court.

4. The prosecution case in the present case is based on the fardbeyan (Ext.2) of P.W.4-Bala Kumhar. The same was recorded by Mr. Ragho Prasad Singh, the Officer-in-Charge of the Dinara Police Station, District-Rohtas, inter alia, alleging therein that the appellants and Kesho Rai (now dead) had murdered Baijnath Kumhar in the evening of 27.01.1981 whose dead body was lying in Khalihan and was being watched by the informant, the brother of deceased Baijnath Kumhar along with Moti Kumhar, Suraj Kumhar, Sheobhajan Sah, Deomuni Sah, Suresh Dhobi, Ram Eqbal Kumhar, Faguni Kumhar and ‘Chaukidar’ Rupnarain Giri. At about 2 am on 28.01.1981, the appellants and Kesho Rai again returned to the place of occurrence in order to remove the dead body and to conceal the evidence of crime and, in course thereof, being unsuccessful in doing so, they fired injuring Suraj Kumhar (P.W.2), Bala Kumhar (P.W.4) and Moti Lal (P.W.5). Villagers came and the appellants escaped. It is upon this fardbeyan that the formal F.I.R. (Ext.1) was registered. The police took up investigation. The injured persons were examined by doctor and injury reports were prepared, which is Exts.4, 4/1 & 4/2. After investigation police submitted a charge-sheet. The case was committed to the Court of Sessions. The appellants pleaded not guilty and required the trial. Charges were thereafter framed under Sections-147, 307/149 & 201 of the Indian Penal Code and so far as appellant no.1-Satendra Rai is concerned, he was separately charged under Section-27 of the Arms Act also. They were accordingly tried and variously convicted and sentenced to life imprisonment with other sentences to run concurrently. Hence, the appeal.

5. In order to prove its case, the prosecution examined 12 witnesses. It needs to be noted that one Shiv Dayal Singh, ‘Taid’ (Advocate’s Clerk) was examined as Court witness, which, we find quite curious and will comment upon at appropriate stage. The manner in which the trial has been conducted by the Trial Court can only be deprecated. The defence has neither examined any witness nor exhibited any document.

6. Before proceeding further, we may notice one important aspect and the relevance of judgment of this Court dated 10thof July, 1998 in Criminal Appeal No.340 of 1991. As noted above, the prosecution case is that first the appellants came in the evening and shot Baijnath Kumhar in the ‘Khalihan’. This gave rise to a separate substantive case being Sessions Trial No.218 of 1982/20 of 1985. In the said trial the Trial Court convicted all the five accused persons who are also accused in the present case. In fact, the judgment was passed by the same Court on the same day in both the cases. The Trial Court found that the appellants were guilty of murdering Baijnath Kumhar and then fled away. The matter came in appeal before this Court and in the said criminal appeal, being Cr. Appeal No.340 of 1991, which was allowed by judgment and order dated 10thof July, 1998 by a Division Bench of this Court, it was held that the prosecution had failed to establish the charge of murder at the hands of the appellants. This Court doubted the very allegation that Baijnath Kumhar wa

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