JUDGMENT :

A.M. Badar, J.

Criminal Appeal (DB) No.197 of 1996 is filed by the appellant/original accused no.2 Harihar Singh Yadav and appellant/original accused no.3 Rameshwar Singh Yadav whereas Criminal Appeal (DB) No.258 of 1996 is filed by appellant/original accused no.1 Radhey Shyam Singh Yadav. As both these appeals are arising out of the same Judgment, they are being decided together by this common Judgment. The appellants are challenging the Judgment and Order dated 16th May, 1996 and 17th May, 1996 respectively passed in Sessions Trial No.154 of 1993 by the learned 1st Additional Sessions Judge, Buxar whereby the appellants/accused nos.2 and 3, namely, Harihar Singh Yadav and Rameshwar Singh Yadav are convicted of the offence punishable under Section 302 read with 34 of the Indian Penal Code and appellant/accused no.1 Radhey Shyam Singh Yadav came to be convicted of the offence punishable under Section 302 of the Indian Penal Code. They all are sentenced to suffer imprisonment for life. For the sake of convenience, the appellants shall be referred in their original capacity as “an accused”.

2. Facts leading to the prosecution of the accused, projected from the police report can be narrated thus :

(a). Accused Radhey Shyam Singh Yadav, Harihar Singh Yadav and Rameshwar Singh Yadav are resident of village-Barahana falling within the jurisdiction of Itahri Police Station of District-Buxar. Members of the prosecuting party including the deceased are resident of village-Pithan Purwa falling under the jurisdiction of the same police station. Both these villages are situated in the vicinity of each other.

(b). The incident in question allegedly took place on 15.06.1992 in an agricultural field wherein a brick-kiln was situated. That place was regularly being used by the ladies of the prosecuting party for the purpose of easing themselves. According to the prosecution case, at about 07.00 to 07.30 P.M. of 15.06.1992, Sadhna Devi (since deceased) along with her relatives such as P.W.1 Shardha Devi, P.W.2 Kausalia Giri, P.W.3 Lilavati Devi, P.W.4 Kumari Devi, P.W.8 Chandravati Devi and others had gone for easing themselves at the said agricultural field wherein the brick-kiln was situated. Their house as well as their temple was located near that place which was routinely used for easing by the women of the family of the prosecuting party. When all these women were relieving themselves, all accused persons holding guns in their hands came from the eastern direction. Accused Harihar Singh and Rameshwar Singh exhorted to kill Sadhna Devi. Thereupon accused Radhey Shyam Singh fired a bullet from the gun held by him. The bullet hit Sadhna Devi. By trading some distance Sadhna Devi fell down. Other ladies made hue and cry. That is how P.W.7 Birendra Giri and others including P.W.9 Ramdayal Kamkar rushed to the spot. They found Sadhna Devi in an injured condition having sustained bleeding wound at her abdomen. She as well as other ladies disclosed that after firing at Sadhna, accused persons flee from the spot. Sadhna Devi was then taken by P.W.7 Birendra Giri and others to the Primary Health Centre where P.W.13 Dr. Sanjay Das examined her and she was then referred to the higher centre. However, Sadhna Devi succumbed to the gun shot injury and ultimately post-mortem examination on her dead body came to be conducted by P.W.11 Dr. Ashish Kumar Goswami of the S.S.P.G. Hospital, Varansi on 17.06.1992.

(c). In the meanwhile, on 15.06.1992 itself at about 10.15 P.M. at Itahri Government Hospital, P.W.7 Birendra Giri lodged the F.I.R. in respect of the incident which came to be recorded by P.W.14 Shankar Dayal Pandey of Itahri Police Station. That is how, the subject crime came to be registered.

(d). During the course of investigation, the Investigating Officer P.W.12 Ramchandra Ram visited the spot of the incident and seized the soil stained with blood. He completed the routine investigation by recording the statement of witnesses and thereafter