NAVANITI PRASAD SINGH, J.:–These two appeals have been filed by the two appellants Gajendra Pandey and Md. Muslim who have been convicted under Sections 302/34 and 302 of the Indian Penal Code respectively and sentenced to imprisonment for life by the learned 2nd Additional Sessions Judge, Bhagalpur in Sessions Trial No. 157 of 1987.

2. We have heard Shri Ajay Kumar Thakur learned counsel for the appellant Gajendra Pandey, Shri Praveen Kumar, learned counsel for the appellant Md. Muslim and Shri Ajay Mishra learned APP for the State for both the appeals.

3. We have perused the records and the judgment of the trial court.

4. The appellants have been charged with murder of one Umesh Chandra Pandey. Md. Muslim has been charged under Section 302 of the Indian Penal Code for having shot Umesh Chandra Pandey. Gajendra Pandey was supposed to be there. It may be noticed that at trial there were four other persons also who were put on trial and therefore, initially the charge was under Section 302/149 of the Indian Penal Code but the trial court has acquitted the other four persons and therefore, the necessity was there to convict Gajendra Pandey with aid of Section 34 IPC.

5. Upon perusal of the judgment of the trial court and evidence of the prosecution, it appears that the prosecution has relied on one eye witness PW 11 Munna Dubey @ Mithilesh Dubey as a witness to the occurrence. The rest of the witnesses are only witnesses of circumstances either having seen the deceased in the company of appellant Gajendra Pandey some time before the occurrence. But there is no other witness of the occurrence or of close proximity to the occurrence. We therefore, proposed to first examine the evidence of PW 11 Munna Dubey. Shri Ajay Kumar Thakur learned counsel for the appellant Gajendra Pandey and so also Shri Praveen Kumar learned counsel for the appellant Md. Muslim submit that this witness is totally unreliable and has been set up. We agree. The reasons are as follows.

6. The fard-beyan was lodged by the appellant Gajendra Pandey, inter alia, stating that he was coming on a bicycle from Bhagalpur to his village Baijani along with the deceased Umesh Chandra Pandey who was also on his bicycle. Some distance away from the village, in the night at about 9.30 pm, on 11.6.1986, some people intercepted them. He could identify Baijla Paswan and Yogi Mandal. The deceased Umesh Chandra Pandey started an altercation and got involved with the miscreants. Then, Baijla Paswan took out his country made pistol and shot the deceased. Somehow the informant managed to escape on his bicycle and informed the Police. Fard-beyan was recorded and investigation progressed. PW 11 Munna Dubey was for the first time interrogated by the Police when he came to the Police Station over two months after the incidence. He was brought there by one Ugra Mohan Tiwary to depose before the Police what allegedly he had seen on the fate full night. From the cross-examination, it appears that when first time the Police arrived at the site then in the village, this witness was present. He did not make any statement to the Police about having seen the crime and that too in a totally different manner, then what was initially reported. According to him, he was returning from Bhagalpur where he worked in the shop of Kirti Upadhyay. It was night and a motorcycle was coming from Bhagalpur side in the light of which he saw the two appellants and four others grappling with the deceased. He saw the appellant Md. Muslim then shoot the deceased. He identified everybody in the light of headlight of the motorcycle. Strange it is that though he had all the time to see the accused persons commit the crime he states that the accused persons did not see him and he managed to escape to the village. In our view, if this is correct, then, how was he identified by the accused persons who then, managed to move him from house to house for over two months? This witness admits in the cross-examination that he had

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