D.K.SINHA, J. - (1.) THE present appeal is directed against the judgment of conviction under Section 302 of the Indian Penal Code whereby the appellant has been sentenced life imprisonment. He has further been convicted under Section 27 of the Arms Act and has been sentenced to undergo imprisonment for two years. Both the sentences passed by the Sessions Judge, Godda in Sessions Trial No. 86 of 1997 arising out of Pathar Gama PS. Case No. 18 of 1997 (Ext. 4) against the appellant Bhagirath Yadav are directed to run concurrently.
(2.) THE prosecution was launched on the basis of the Fardbeyan of the informant (RW. 5) Moti La! Yadav recorded on 15.2.1997 at about 16.00 hours near Barki Bandh. The informant narrated that having received the information in respect of certain altercation when his son Gopal Yadav (since deceased) proceeded towards Kharihani Hatia to verify the information followed by the informant himself and as soon as his son Gopal Yadav arrived near the bridge known as Barki Bandh, the accused persons namely, .Bhagirath Yadav(appellant) with musket, Gulabi Yadav with pistol, Kistu Yadav, Kartik Yadav and Sheonath Yadav with sticks suddenly appeared from the opposite direction and it was alleged that the accused Gulabi Yadav and Kistu Yadav commanded the appellant to shoot Gopal Yadav so that the land dispute could be settled once for all. It was further alleged that all the accused persons surrounded Gopal Yadav and the appellant pursuant to such command, fired shot from his musket which caused injury at his lateral part of right chest, as a result of which he fell down on the earth and died instantaneously. On the cry of the informant, father (RW. 5) the villagers assembled at the place of occurrence and having seen the appearance of the villagers the assailants escaped. It was further narrated by the informant that Jhagru Yadav (RW. 1) and Mostt. Sahodri Yadav (RW. 3) wife of late Mahabir Yadav were coming behind the accused who witnessed the occurrence. It was further alleged that when the informant rushed back to his home to inform the occurrence he was fired upon by Gulabi Yadav but without any injury on his person. The informant by speculating the motive suggested that the occurrence was given effect to by them on account of land dispute. The police investigated the case and submitted charge -sheet against all the five named accused persons. The Trial Judge framed the charge against the appellant, Bhagirath Yadav under Section 302 of the Indian Penal Code simplicitor and separate charge'under Section 302/34 of the Indjan Penal Code as also under Section 27 of the Arms Act against the remaining four accused persons to which they pleaded not guilty and claimed to be tried.
(3.) THE specific defence of the accused persons as well as the appellant before the Trial Judge was of their innocence and false implication on account of persisting land dispute but no evidence was adduced either oral or documentary in support of such defence by them. We find from the judgment impugned that death of Gopal Yadav caused by fire arm was not disputed and that it was further admitted that the informant on the one side and the accused persons on the other side were on litigating terms since long, much before the occurrence and thus they were inimical.;