GOPAL PRASAD, J.

The appellant Manoj Sharma has been convicted under Section 302 of the Indian Penal Code and Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.20,000/- and in default of payment of fine has further been directed to undergo simple imprisonment for six months for the offence under Section 302 of the Indian Penal Code and one year rigorous imprisonment for the offence under Section 27 of the Arms Act. The appellant Kaushal Sharma has been convicted under Sections 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.20,000/- and in default of payment of fine has further been directed to undergo simple imprisonment for six months.

2. The fardbeyan of the informant Ramjee Mauar (P.W. 10) was recorded by Sub-Inspector, Janardan Singh (P.W. 11) at 8:30 P.M. on 12.02.2001 at village Arai where the occurrence took place. The prosecution case, as alleged in the fardbeyan, is that the deceased Arvind Mauar, the brother of the informant (P.W. 10) Ramjee Mauar, was teaching the children in his Dalan at 7:15 P.M. The informant and his father Janak Deo Mauar (P.W. 3) were sitting in the eastern room, then they heard the sound of abuse from outside the road, on which the informant and his father came out of the room and saw that his brother Arvind Mauar was surrounded by Nand Kishore Mauar @ Nathun, Muneshwar Mauar, Manoj Sharma and Kaushal Sharma. In the meantime, the informant asked as to what had happened, on which Nand Kishore Mauar commanded to shoot on which Manoj Sharma armed with a country made pistol, fired at Arvind Mauar, the brother of the informant on his left chest at the point blank range and started fleeing away towards the west then the informant and his injured brother chased the accused persons for some distance and the injured brother of the informant caught hold of Manoj Sharma, but in the meantime Kaushal Sharma also fired so the informant and his brother left the accused persons and the accused persons fled away and then the injured brother of the informant Arvind Mauar fell down there. The further case of the prosecution is that the injured brother was taken by his family members to the government hospital Daudnagar, but the informant learnt that his brother died in the way itself.

The motive behind the occurrence is that one Saroj Sharma was killed in village Arai in which the informant and his family members were witnesses and out of the said enmity, the brother of the informant had been killed. The further case is that the woolen cap of Muneshwar Mauar fell down at the place of occurrence while he was fleeing away which was still at the place of occurrence and the informant identified the accused persons in the light of lantern and torch. The said fardbeyan was read over and explained to the informant Ram Jee Mauar (P.W. 10) and after finding it correct Ram Jee Mauar signed along with the two witnesses Birendra Singh and Parmeshwar Mauar.

3. After recording the fardbeyan of the informant Sub- Inspector Janardan Singh (P.W. 11) proceeded for investigation and inspected the place of occurrence. The place of occurrence is the southern Darwaza (door) of the Baithaka of the informant which opened towards road. The said Rasta (road) goes to Thakur Bigha Kanaf village. The main door of the said Baithaka was towards east and there was another door also towards south of the said Baithaka. P.W. 11 has stated that the place from where the firing was made on the deceased was situated near this door. However, this part of the evidence regarding the sustaining the firearm injury by the deceased is not admissible in evidence due to being hearsay. P.W. 11 has stated that where the injured sustained injury was about 50 yards north from the house of the deceased and the house of Natun Mauar was also about 50 yards west from the place of occurrence and there was house of Dineshwar Sharma at about 20