Sudhir Singh, J.—Both these appeals filed in the year 1995, i.e., around 27 years ago, arise out of the same judgment and order. Hence, both these appeals were heard together and are being disposed of by a common judgment.

2. By order dated 22.06.2022, a report was called for from the Superintendent of Police, Nawadah in respect of the appellants of both the appeals, as to whether the appellants are alive or dead. The Superintendent of Police, Nawadah vide letter No.690/Law Branch dated 21.07.2022 has reported that appellant Mahendra Yadav of Criminal Appeal (DB) No.347 of 1995 and appellant Biru Yadav of Criminal Appeal (DB) No.348 of 1995 are alive. However, appellant Balak Yadav alias Ram Balak Yadav has already died in the year 2015 and hence Criminal Appeal (DB) No.348 of 1995 stands abated with regard to appellant Balak Yadav alias Ram Balak Yadav. Therefore, Criminal Appeal (DB) No.348 of 1995 is now confined to appellant Biru Yadav only.

3. Both the appeals have been preferred against the judgment of conviction dated 27.09.1995 and the order of sentence dated 28.09.1995, passed by the 1st Additional Sessions Judge, Nawadah in Sessions Trial No.89 of 1992, arising out of Roh P.S. case No.48 of 1992, whereby and whereunder the appellants have been convicted under Sections 302/34 of the Indian Penal Code and sentenced to undergo R.I. for life.

4. Prosecution case, in brief, is that on 20.09.1992 at about 8:00 p.m. while the deceased Sanichar Yadav, brother of the informant Rohan Yadav, was returning back after having Jitiya feast from the house of his cousin brother Saukhi Yadav (P.W.6) and when reached near the heap of straw (Newari Punj) of appellant Biru, said appellant Biru Yadav having tangi in his hand gave tangi blow on the head of deceased, namely, Sanichar Yadav, on account of which he fell down and blood started oozing out. Thereafter appellant Mahendra Yadav having lathi in his hand gave one lathi blow to deceased Sanichar Yadav and appellant Balak Yadav having garasa in his hand threatened the informant and others not to come forward to save the deceased, otherwise they would also be killed. On arrival of villagers, appellants fled away and the injured succumbed to the injuries. The motive behind the murder is said to be an old enmity.

On the statement of informant Rohan Yadav (P.W.3), F.I.R. (Ext.2) was drawn up. The police after investigation submitted charge-sheet against the accused persons and the jurisdictional Magistrate took cognizance in the matter and then committed the case to the Court of Sessions. Charges were framed against the appellant Biru Yadav under Section 302 of the Indian Penal Code, whereas against appellants Mahendra Yadav and Balak Yadav charges were framed under Sections 302/34 of the Indian Penal Code. The appellants pleaded not guilty and claimed to be tried.

5. In course of trial, the prosecution has examined altogether six witnesses. Out of whom, P.W.1 Karu Yadav is son of the informant, P.W.2 Munarik Yadav is son of deceased, P.W.3 Rohan Yadav is the informant, P.W.4 is Dr. Bimal Prasad Singh, who conducted postmortem of the deceased, P.W.5 Baleshwar Prasad is a formal witness, who has proved F.I.R. (Ext.2), seizure list (Ext.3), inquest report (Ext.4), police case diary (Ext.5) and P.W.6 Saukhi Yadav is cousin brother of deceased. The prosecution has also brought on record the documents, like postmortem report (Ext.1), F.I.R. (Ext.2), seizure list (Ext.3), inquest report (Ext.4) and police case diary (Ext.5). The Defence has examined only one witness, namely, Chandrika Prasad in support of its case.

6. By order dated 24.11.2021 passed by a Co-ordinate Bench of this Court, Mr. Prince Mishra, learned advocate, was appointed as Amicus Curiae to represent the appellants at the cost of the State, as none had appeared on that date on behalf of the appellants.

7. Mr. Prince Kumar Mishra, learned advocate, appearing as Amicus Curiae on behalf of the appellants, submitted that the judgment of c