Nawneet Kumar Pandey, J. – Both the appeals have been preferred under Section 374(2) of the Code of Criminal Procedure for setting aside the judgment and order of conviction dated 28.01.2014 and the order of sentence dated 05.02.2014 respectively passed by the learned Adhoc Additional Sessions Judge, Banka in Sessions Trial No. 126 of 2011.

2. Both the appellants Rizwan Mian and Babulal Yadav were found guilty and convicted by the learned trial court for the offences punishable under Sections 302/34 and 452 of the Indian Penal Code. Further, the appellant Rizwan Mian was also convicted for the offences punishable under Section 27 of the Arms Act. They were sentenced for life imprisonment under Section 302/34 of the Indian Penal Code. They were also awarded a fine of Rs. 10,000/- each. Further, the appellants were sentenced for simple imprisonment of two years for the offences punishable under Section 452 of the I.P.C. The appellant Rizwan Mian was also sentenced for an imprisonment of three years for the offence punishable under Section 27 of the Arms Act. In case of non-payment of fine, the appellants had to undergo simple imprisonment for two months. All the sentences were directed to run concurrently. By the same judgment and order, co-accused Naresh Yadav, Yasin Mian @ Ahsan Ansari, Narayan Yadav, Nasir Mian and Riyasat Ansari were acquitted, because in the opinion of the learned trial court, the prosecution failed to prove its case against these accused persons beyond all the shadows of reasonable doubts.

3. As per prosecution case, Shambhu Yadav (PW-7) who is son of the deceased, lodged his fardbeyan before A.S.I. of Suiya Police Outpost on 27.09.2008 at about 6:05 a.m. near the dead-body of his father, stating therein that in the preceding night the informant and his family members were sleeping in their house. His father was sleeping on a cot in the courtyard. At midnight at about 1:30 a.m., the informant heard some unusual sound at his roof (chappar). He noticed the presence of two persons, who were present at the roof of his house equipped with masket. They jumped inside the courtyard of his house and threatened not to make hue and cry, otherwise the family members of the informant would be shot dead. One of the miscreants opened the door through which some other miscreants entered into the courtyard. The informant identified them in the light of torch. They were (i) Rizwan Mian (appellant) (ii) Yasin Mian (acquitted) (iii) Riyasat Ansari (iv) Nasir Mian (acquitted) (v) Narayan Yadav (acquitted) (vi) Babulal Yadav (appellant) and (vii) Naresh Yadav (acquitted). The informant could not identify 2-3 miscreants. The family members of the informant out of fear sat at a place in his house. The miscreants forcibly laid down the father of the informant on a cot and tied his limbs. The appellant Rizwan Mian fired at him and appellant Babulal Yadav inflicted farsa (sharp-edged weapon) blow on him and thereafter the miscreants untied his father and fled away. While fleeing away, they threatened the informant and his family members not to lodge a case otherwise they would also be eliminated. The dead-body of his father was lying on the cot. It has further been stated that the reason for murder of his father was a land dispute with co-accused Narayan Yadav who is his agnate.

4. On the basis of fardbeyan (Ext.1), the formal FIR (Ext.8) was drawn. The FIR was registered on 27.09.2008 at about 11:30 a.m. Thereafter, the investigation was carried out. The cognizance was taken under Sections 302/34 and 452 of the I.P.C. including Section 27 of the Arms Act against the appellants as well as co-accused Nasir Mian, Narayan Yadav, Naresh Yadav, Yasin Mian, Riyasat Ansari and Ramzan Mian. The case of the accused persons was committed to the court of sessions, except the co-accused Ramzan Mian was under custody in a different case at Deoghar (Jharkhand), and till the date of passing of the impugned judgment and order, Ramzan Mian could not be