AMARESH KUMAR LAL, J.:–Both these appeals arise out of the judgment and order dated 30.6.1992 passed by the learned 3rd Additional Sessions Judge, Madhepura, in Sessions Case no. 1 of 1988 by which the appellants of Cr. Appeal no. 248 of 1992 have been convicted to undergo rigorous imprisonment for life under Section 302/34 of the Indian Penal Code and the appellant of Cr. Appeal no. 262 of 1992 has been convicted and sentenced to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code and rigorous imprisonment for three years under Section 27 of the Arms Act.

2. The prosecution case, in brief, is that the informant Shivnarayan Mehta (P.W.3) with his brother Jainarayan Mehta (deceased) on one bi-cycle and two co-villagers, namely, Bishundhar Rishideo (P.W.1) and Upendra Mehta (P.W.2) on another bi-cycle were returning to their house on 19.5.1986 at about 7 P.M. from Gwalpara Bazar. When they reached near the orchard of Shyam- village, about 7 to 8 persons came on the road and uttered that they be caught and killed. In the meantime, the appellants, namely, Bishun Mukhiya and Nageshwar Mukhiya dragged Jainarayan Mehta from his bi-cycle and took him to the western side of the road. In the meantime, Chandradeep Paswan fired a shot at Jainarayan, due to which he became injured and fell down. Thereafter, Nanda Yadav (appellant of Cr. Appeal no. 262 of 1992) fired the other shot at the rib-cage of Jainarayan. Upendra Mukhiya fired upon Bishundhar Rishideo (P.W.1) in his left rib-cage. Jainarayan Mehta succumbed to his injuries. Thereafter, all these aforesaid five accused escaped through the maize field. Upendra Mehta (P.W.2) rushed towards the village. After sometime Bishundhar Rishideo (P.W.1) also came to the village. Co-villagers assembled there came, to the place of occurrence and saw the dead body and some of them remained there to watch the dead body. The informant and some other co-villagers took Bishundhar Rishideo (P.W.1) to the police station.

3. The reason for the occurrence is that there had been an old enmity between the informant and Chandradeep Paswan for which Chandradeep Paswan had set fire to the house of the informant. In that case, Bishundhar Rishideo had deposed in favour of the informant. Chandradeep Paswan was conspiring with the members of his group to teach a lesson to the informant.

4. The fardbeyan (Ext. 5) was recorded by the officer-in-charge of Kishunganj police station on 20.5.1986 at about 1 A.M. Accordingly, Kishunganj P.S. Case no. 101 of 1986 was instituted for the offence punishable under Sections 302 and 120B of the Indian Penal Code. After investigation chargesheet was submitted, cognizance was taken and the case was committed to the court of sessions. Initially, charges were framed against five accused, out of whom Chandradeep Paswan died after charge and Upendra Mukhiya absconded in course of trial and his case was separated. The appellants faced the trial and they were convicted and sentenced as aforesaid.

5. It is submitted on behalf of the appellants that the defence of the appellants is that they are innocent and have been falsely implicated in this case. Chandradeep Paswan had filed a case against Upendra Mehta (P.W.2), Jai Narayan Mehta (deceased), Bishundhar Rishideo (P.W.1) and his father under Section 307 of the Indian Penal Code which was pending. In that case, appellant no. 2, Nageshwar Mukhiya, Ram Krishna Mukhiya and Satya Narayan Mukhiya had deposed for Chandradeep Paswan. Ram Krishna Mukhiya and Bishun Mukhiya (appellant) are cousins. Deceased, Jai Narayan Mehta is the step-brother of the informant. The investigating officer and the Block Development Officer have not been examined and their non-examination has caused prejudice to the appellants. The trial court should have rejected the evidence of P.W.3 in view of the fact that he did not make himself available for cross-examination on recall. It is further submitted that no conviction of the appellants Bis

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