Arvind Srivastava, J.—Heard learned counsel for the appellants and learned Addl. P.P. appearing for the State.

2. These appeals are directed against the judgment of conviction dated 30.11.1996 and order of sentence dated 02.12.1996, passed by the 2nd Additional Sessions Judge, Saran at Chapra in Sessions Trial No. 447 of 1994/3 of 1994, whereby and whereunder the appellant, namely, Bijoy Rai {Cr. Appeal (DB) No. 14 of 1997} has been convicted under Section 302 of the Indian Penal Code and rest of the appellants, namely, Nasib Lal Rai @ Harwar Rai, Saryug Rai and Birendra Rai {Cr. Appeal (DB) No. 598 of 1996} have been convicted under Section 302 read with Section 34 of the Indian Penal Code. All the appellants have been sentenced to undergo rigorous imprisonment for life.

3. Since the appellant no. 2 {Cr. Appeal (DB) No. 598 of 1996} namely, Saryug Rai died in the year 2007, and as such, the appeal stood abated against him vide order dated 07.11.2023.

4. The prosecution story, in brief, is that the informant Jamadar Rai (P.W.2) lodged a fardbeyan on 18.06.1993 before the Officer in Charge of Makar P.S. alleging therein that on 17.06.1993 while the informant was sitting at his house on a cot and his mother (deceased) Sudari Kuer aged about 70 years was sleeping on a Chowki, the appellants arrived from east direction whereupon he fled away, in the meanwhile Nasib Lal Rai @ Harwar Rai allegedly shot at the deceased (mother of the informant) in the neck and fled away towards east. When the informant returned after the departure of the appellants, he found her mother dead. The motive alleged for the occurrence is said to be the old enmity.

5. On the basis of the aforesaid fardbeyan, Makar P.S. Case No. 21 of 1993 for the offence under section 302/34 of the Indian Penal Code was registered.

6. The police after investigation submitted charge sheet under section 302/34 of the Indian Penal Code against all the accused persons. After cognizance, the case was committed to the court of sessions for trial wherein charges were framed on 04.05.1994.

7. During trial, the prosecution examined altogether six witnesses. P.W. 1 Usha Devi, P.W. 2 Jamadar Rai, P.W. 3 Dr. Sanat Kumar Singh, P.W. 4 Sipahi Rai, P.W. 5 Dinanath Rai and P.W. 6 Anirudh Prasad Singh.

8. In order to establish the charge, the prosecution has examined the following documents as Exhibits:—

Exhibit-1 Signature of Jamadar Rai on fardbeyan.

Exhibit-2 Postmortem Report

Exhibit-3 Fardbeyan

Exhibit-4 Formal F.I.R.

Exhibit-5 Inquest Report

Exhibit-6 Seizure List

9. The accused persons in the statements recorded under Section 313 of the Code of Criminal Procedure have denied and stated that the deceased died due to the firing accidentally made by Jamadar Rai, Sipahi Rai and Rajender Rai. That is the matter of talk in the village.

10. The defence has not produced any oral or documentary evidence.

11. In the appeal, the decision was challenged on the grounds that the distance of the police station from the place of occurrence is only one kilometer, but the first information report was filed late on the next day, whereas according to the first information report, many people of the village had gathered there immediately after the occurrence and the informant was not alone. The time of the occurrence is 10:00 PM but there is no mention of any source of light in the first information report, the informant later corrects this fact in his testimony and mentions the lantern. But he neither presents this sole source before the Investigating Officer nor it has been seized. The informant and the witness (Bhabhi of the informant), who reached the spot immediately after the occurrence, they both did not see the occurrence with their own eyes, but the Trial Court has given its finding considering them to be the eye witness of the alleged occurrence. In the first information report, it is mentioned that there was already a dispute going on between both the parties and there is clear evidence on this point, but the