MOHIT KUMAR SHAH, J.:–The present appeal was preferred against the judgment of conviction and sentence dated 17.07.1992 passed in Sessions Trial No. 704 of 1986/ 93 of 1986 by the learned 6th Additional Sessions Judge, Patna, arising out of Paliganj P.S. Case No. 142 of 1985.

2. The aforesaid Criminal Appeal was preferred by five appellants, however, appellants No. 1 and 3, namely, Baleshwar Yadav and Ramdeep Yadav died during the pendency of the aforesaid appeal, hence the appeal, as against the appellants no. 1 and 3, has abated vide order dated 08.07.2015. Therefore, the present appeal survives against the following appellants:—

1. Ram Das Yadav son of Baleshwar Yadav.

2. Ram Prasad Yadav son of Sadhu Yadav.

3. Sidheshwar Yadav son of Jhapsu Yadav.

3. The appellants have been convicted under Section 302 read with section 34 of the Indian Penal Code, hence sentenced to undergo rigorous imprisonment for life.

4. The short facts of the case are that on the basis of fardbeyan of the informant, namely, Shrikant Yadav son of Madho Yadav, an FIR vide Paliganj P.S. Case No. 142 of 1985 was registered on 20.07.1985 at 11.30 A.M. for the offence punishable under Section 302/34 of the Indian Penal Code against Ram Prasad Yadav, Ramdeep Yadav and Sidheshwar Yadav. It has been alleged by the informant that on 20.07.1985, at about 8.30 A.M. in the morning, his elder brother Shri Bhagwan Yadav was coming from Paliganj market to his residence and when he reached at the western side of the village, he was surrounded by Ram Prasad Yadav (Appellant No.1), who was armed with Pasuli, Ramdeep yadav (now dead) armed with pistol in his hand, Sidheshwar Yadav (Appellant No.3), whereafter Ramdeep Yadav fired on the elder brother of the informant i.e. Shri Bhagwan Yadav, resulting in his brother falling down whereupon Sidheshwar Yadav (appellant no.3) and Ram Prasad Yadav (Appellant No.1) slit the neck of the brother of the informant. The informant had further stated that on the western side of the village, Ramjit Yadav, Sidheshwar Yadav, Ram Prasad Yadav etc. were quarreling with regard to the land of the widow and the informant as well as his brother did not have any quarrel with the said persons. The informant has further stated that his brother was killed by the said persons without any reason. The said occurrence was witnessed by Sitaram Yadav, Madho Yadav and several people of the village.

5. The case was investigated by the police and thereafter, charge sheet was filed on 16.10.1985 and the cognizance was taken on 17.10.1985. After completion of supply of police papers the case was committed to the court of Sessions on 07.08.1986 and charges were framed on 16.11.1987 against Ramdeep yadav, Sidheshwar Yadav (Appellant No.3), Ram Prasad Yadav (Appellant No.2) and on 06.04.1989 against Ram Das Yadav (Appellant No.1) and Baleshwar Yadav (now dead).

6. It may be pointed out that the accused persons, namely, Ram Das Yadav and Baleshwar Yadav were summoned by the learned trial court by an order dated 17.01.1989 to face trial and thereafter charges were framed against them on 06.04.1989. It is pertinent to mention that the learned trial court by an order dated 17.7.1992 had directed for rectification of the numbering of the witness numbers to the effect that the evidence recorded after fresh charge should be numbered from serial no.1 onwards and in such view of the matter, witness no. 5, namely, Shrikant Yadav was re-numbered as P.W. 1 and, accordingly, the subsequent witnesses were also re-numbered in continuance. As far as P.W. 1 to P.W. 4 are concerned, they were firstly examined/ cross-examined in between the period 21.6.1988 to 7.9.1988 and then they have again been examined/ cross-examined afresh after fresh framing of charges on 6.4.1989 as P.W. 12, P.W. 11, P.W. 10 and P.W. 9, hence the said deposition is being considered herein.

7. During the course of the trial, the prosecution produced altogether 11 witnesses to prove its case. P.W. 1 Shrikant

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