Hemant Kumar Srivastava, J. – Both the above stated criminal appeals have been preferred against the common judgment of conviction dated 30.05.1994 and sentence order dated 01.06.1994 passed by learned 5th Additional Sessions Judge, Bhagalpur in Sessions Trial No. 159 of 1981 by which and whereunder he convicted all the above stated six appellants for the offence punishable under Section 302 read with Section 34 of the IPC and furthermore, appellants Kartik Yadav, Rudal Yadav, Subhas Yadav, Suresh Yadav and Gopal Yadav have been convicted for the offence punishable under Section 147 of the IPC whereas appellant Arjun Yadav has been convicted for the offence punishable under Section 148 of the IPC. However, all the appellants have been acquitted of the charge framed under Section 323 of the IPC and accordingly, all the six appellants have been sentenced to undergo rigorous imprisonment for life for the offence punishable under Section 302/34 of the IPC. Furthermore, appellants Kartik Yadav, Rudal Yadav, Suresh Yadav, Subhas Yadav and Gopal Yadav have been sentenced to undergo rigorous imprisonment for one year for the offence punishable under Section 147 of the IPC and appellant Arjun Yadav has been sentenced to undergo rigorous imprisonment for two years for the offence punishable under Section 148 of the IPC. However, all the sentences have been directed to run concurrently. Since the above stated appeals have arisen out of common judgment of conviction and sentence order, common judgment is being passed in both the above stated criminal appeals.

2. It is pertinent to note here that during pendency of above stated criminal appeals, appellant no. 2, namely, Arjun Yadav and appellant no. 3, namely, Gopal Yadav in Cr. Appeal (DB) No. 303 of 1994 died and their appeal stood abated. Furthermore, it is also pertinent to note here that one interlocutory application was filed on behalf of appellant no. 2, namely, Kartik Yadav in Cr. Appeal (DB) No. 353 of 1994 claiming himself juvenile at the time of alleged occurrence and vide order dated 27.08.1997, a co-ordinate Bench of this court ordered that aforesaid plea of appellant no. 2 in Cr. Appeal (DB) No. 353 of 1994 shall be considered at the time of hearing of above stated appeal.

3. In course of hearing, learned counsel appearing for the appellants claimed that appellant no. 1, namely, Rudal Yadav in Cr. Appeal (DB) No. 303 of 1994 and appellant no. 3, namely, Subhas Yadav in Cr. Appeal (DB) No. 353 of 1994 were also juvenile at the time of alleged occurrence but unfortunately, the plea of their juvenility could not be raised earlier.

4. Briefly stated facts of the prosecution case are as follows:- PW-3 Chinta Devi gave her fard-e-bayan at State Dispensary, Sajour District Bhagalpur on 14.09.1976 at 10:00 P.M. before the police officer to this effect that on the same day at about 8:00 A.M., while she was in courtyard of her house along with her husband Chintaman Yadav (deceased) as well as her BHAISUR Govind Yadav (deceased), appellant Rudal Yadav started removing CHHAPPAR of her hut which was protested by her husband Chintaman Yadav (deceased) but appellant Rudal Yadav abused her husband and went to his house and later on, the aforesaid appellant Rudal Yadav along with other appellants as well as one Paddo Yadav being armed with lathi, bhala and khanti came there and started assaulting her husband Chintaman Yadav and when Govind Yadav (deceased) came to his rescue, he was also assaulted by the aforesaid persons. She, specifically, claimed in her fard-e-bayan that appellant Kartik Yadav gave a lathi blow over the head of the deceased Chintaman Yadav as a result whereof he fell down on the ground and, thereafter, appellant Rudal Yadav and others assaulted him by their respective weapons. She, further, claimed in her fard-e-bayan that appellant Suresh Yadav assaulted deceased Govind Yadav by lathi on his back and hand and after that appellant Subhas Yadav gave lathi blow on the head of t