S.J.MUKHOPADHAYA, J. - (1.) BOTH the appellants, named above, have preferred this appeal against the judgment and order of conviction and sentence both dated 31st January, 2001, passed by the learned Session Judge, Dumka (Santhal Parganas), in Sessions Case No. 215 of 1995, arising out of Jamtara (Mihijam) P. S. Case No. 106 of 1993, corresponding to G.R. No. 210 of 1993, whereby and whereunder, both of them have been convicted for the offence under Sec.302/34 of the Indian Penal Code as also 27 of the Arms Act and sentenced to undergo rigorous imprisonment for life for the offence under Sec.302/34 of the Indian Penal Code and rigorous imprisonment for five years for the offence under Sec.27 of the Arms Act. However, both the sentences have been directed to run concurrently.
(2.) THE case of the prosecution, which is based on the fardbeyon (Ext. 6) of the informant Hira Lal Yadav (PW 6), lodged on 17th May, 1993 at 15.25 hours, is that on the same date in the after - noon at about 1.00 p.m. he (informant) returned from Jamtara Court and met his elder brother Sita Ram Yadav (deceased) at Janta Dal Office, Mihijam, and started talking with him. While talking, his brother (deceased) slept on the bench of the Party Office, having his head of the eastern side. At that time, the informant started reading newspaper, sitting on a chair inside the party Office. After sometime, Sir Shankar Yadav of Krishna Nagar Mohalla reached the Party Office, came near him and started talking. After the talk was over, he again started reading newspaper and said Shankar Yadav was sitting near him. At about 3.10 p.m. one Rajdoot Motorcycle came from Jamtara side, on which accused Naresh Yadav and Kedar Yadav were sitting and Kameshwar Yadav was driving the motorcycle. They stopped the motorcycle and Naresh Yadav and Kedar Yadav came in the Party Office and Kedar Yadav shot at his elder brother Sita Ram Yadav, followed by Naresh Yadav, who also shot at him, but the informant could not seen whether the said bulled actually hit or not. According to the informant, be and other person became stunt. The accused immediately fled away towards Chitranjan Station on the Motorcycle, which was in running condition. Immediately, he rushed towards his brother and saw the blood oozing out of his left ear and he was dead. It was further informed that though the market was closed because of Monday Closure, immediately on hearing the sound of firing, Babloo Kundu (PW -8), Nageshwar Prasad (PW -5), Basudeo Sharma (PW 3) and others rushed there from nearby. According to the informant, there is an old enmity in between Suresh Yadav and Bideshl Yadav, which further aggravated as the evidence were given against Suresh 'Yadav, who is an accused in Mihijam P.S. Case No. 56 of 1992. The informant has further stated that the accused are full brother and relative of said Suresh Yadav and that the accused persons had earlier threatened him (informant) that they will eliminate his family. He has further stated that some criminal from outside were roaming around his house for last two days with some ulterior motive and were staying in the house of Ganesh Yadav and they have killed his brother due to old enmity. On the basis of the aforesaid fardbeyan (Ext. 6) formal First Information Report was drawn up on 17th May, 1993 at 3.25 p.m. and Jamtara (Mihijam) P.S. Case No. 106 of 1993 was registered for the offence under Sec.302/34 of the Indian Penal Code as also 27 of the Arms Act against the named accused persons. After investigation, charge -sheet was submitted against the appellants and others for the offence under Sec.302/34 of the Indian penal Code and 27 of the Arms Act. Thereafter, charges were framed, which were read over and explained to the appellants, to which they pleaded not guilty and claimed to be tried. In support of its case, the prosecution has produced altogether eleven witnesses. PW -1 Shankar Yadav, PW -2 Karu Yadav and PW -8 Bablu Kundu have been declared hostile at the instance of the prosecution. PW -3 Basudeo Sharma, PW -5 Nageshwar Prasad and PW -6 Hira Lal Yadav (informant and brother of the deceased) are the eye witnesses, who have supported the case of the prosecution. PW 4 Dr. Lalit Kumar Lal has held post -mortem examination on the person of the deceased, PW -9 Balram Prasad is the first Investigating Officer, who has recorded the fardbeyan (Ext. 6), while posted during the period of occurrence at Mihijam Police Station. PW -7 Girindra Prasad Mishra is the another Investigating Officer, who took charge of investigation on 21th April, 1994, PW -10 Ramdeo Prasad, Sub - Inspector of Police, is a formal witness whereas PW - 11 Atul Kumar Srivastava, Judicial Magistrate, is the witness, who has recorded the statement under Sec.164 of the Code of Criminal Procedure of Basudeo Sharma (PW -3), Nageshwar Prasad (PW5) and hostile witness Bablu Kundu (PW -8).
(3.) PW -4 Dr. Lalit Kumar Lal, Medical Officer, has conducted the post -mortem examination on the dead body of deceased Sitaram Yadav in the evening of 17th May, 1993 and found the following ante -mortem injuries on his person: (i) An oblique lacerated wound with inverted margin measuring 1 -1/2" x 1/2" x bone deep on left temporal area of the, skull near upper part of the left ear pinna with scorching and tattooing around the margin. This is wound of entry. (ii) Upper half of the left ear pinna lacerated. On opening skull fracture of left temporal bone with abscess of bona pieces was found measuring 1 -1/4" x 1/2" with corresponding laceration of overlying scalp. Extensive lacerations of brain on left temporal area and right temporo -occipital area. One 1 -1/4" long bullet was found in right temporo - occipital brain matter. There was no wound of exit. ;