JUDGMENT :

S. Chandrashekhar, J.

1. Both father and son along with an unknown person are said to have committed murder of Budhu Rana. On the basis of fardbeyan of Smt. Padma Rana, wife of the deceased, Chakulia P.S. Case No. 05 of 1992 was registered against the appellants and unknown under section 302/34 of the Indian Penal Code.

2. During the investigation the unknown assailant who has fired pistol shot on Budhu Rana was not found and a charge-sheet was submitted against the accused-appellants under section 302/34 of the Indian Penal Code and under section 27 of the Arms Act.

3. In Sessions Trial No. 76 of 1993, the appellants have been convicted and sentenced to R.I. for life under section 302/34 of the Indian Penal Code.

4. During pendency of this criminal appeal, the appellant, namely, Anukul Rana has passed away and, accordingly, this criminal appeal qua the appellant, namely, Anukul Rana has abated vide order dated 26.11.2019.

5. During the trial the prosecution has examined eight witnesses; the informant is P.W. 2.

6. The prosecution has projected the informant and her step-son, namely, Mritunjay Rana as eye-witnesses.

7. In her fardbeyan, the informant has stated that in the afternoon of 19.01.1992 she had gone to village fair (Kaliam Mela) with her husband. In the evening they started for home and on the way Ashit Kumar Rana joined them. There was a quarrel between her husband and Ashit Kumar Rana while returning home on account of a long standing land dispute. At about 7:00 p.m. in the evening when she reached near her village, Anukul Rana and Ashit Kumar Rana and one unknown person suddenly appeared there. Anukul caught hold of her while Ashit Kumar Rana overpowered her husband and the unknown person fired a pistol shot on her husband. On her raising cries several villagers assembled there and the accused persons fled away towards Guhaldangra. Her husband had died, blood was oozing from his body. The informant has been examined in the court as P.W. 2. She has deposed in the court about her visit to Kaliam Mela with her husband, Ashit Kumar Rana coming behind them and a quarrel between her husband and Ashit Kumar Rana on their way home. She has stated about land dispute between her husband and Ashit Kumar Rana and firing at her husband by the unknown person. Her step-son, namely, Mritunjay Rana has been examined as P.W. 5. He has claimed that he has seen the incident. At the time of the occurrence he was residing at village-Supua. He has stated that his statement was recorded by the police and after the incident they were threatened. He had deposed in the court that Anukul Rana and Ashit Kumar Rana along with one unknown person have killed his father.

8. During their cross-examination, P.W. 2 and P.W. 5 have stood to their grounds. P.W. 2 has stated that the place of occurrence is about 200-300 yards from her house. She has stated that since the unknown person has suddenly fired at her husband she had no time to intervene. Presumably to a suggestion by the defence that at the time of incident he was not residing at village-Supua, P.W. 5 has stated that at that time he was in village-Supua, however, after the incident due to threats to him he had left the village.

9. The evidence of P.W. 2 and P.W. 5 is corroborated by P.W. 1 and P.W. 3. They are not the eye-witnesses but they have stated that when they reached the place of occurrence wife of the deceased informed them that Anukul Rana and Ashit Kumar Rana along with one unknown person have killed her husband.

10. Mr. Kanti Kumar Ojha, the learned counsel for the surviving appellant contends that: (i) both eye-witnesses are interested witness, (ii) enmity between the parties is admitted, (iii) no independent witness has been examined during the trial, and (iv) non-examination of the investigating officer has caused serious prejudice to the appellant.

11. In the first place, P.W. 1 and P.W. 3 are independent witnesses. They have arrived at the place of occurrence shortly after th