JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in these appeals is to the judgment of a Division Bench of the Patna High Court upholding the conviction of the appellants for offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short `IPC') so far as accused Ajeet Kumar Rai @ Ajeet Narayan Rai and Vinay Kumar Rai, appellant No.1 in Criminal appeal 371 of 2006 and Ashutosh Kumar Rai @ Sanjay Kumar Rai, appellant in other Criminal Appeal. Ashutosh Kumar Rai was further charged for committing the murder of Nanda Kumar Singh punishable under Section 302 IPC and Section 27 of the Arms Act, 1959 (in short `Arms Act'). The High Court dismissed the appeals. The present appeals had been filed by Vinay Kumar Rai (A-3) and Ajeet Kumar Rai @ Ajeet Narayan Rai (A-1) and Ashutosh Kumar Rai (A-2). The Presiding Officer, Additional Court No.1, Fast Track Court in Sessions Trial Nos. 578/96 and 1/2001 held Ajeet Kumar Rai and Vinay Kumar Rai guilty under Section 302 read with Section 34 IPC and accused Ashutosh Kumar Rai under Section 302 IPC and sentenced to undergo RI for life. He was also found guilty of offence under Section 27 of the Arms Act and sentenced to undergo RI for three years. Two appeals were filed before the High Court which by the impugned judgment dismissed the same. All accused were put on trial for committing the murder of Nanda Kumar Singh (hereinafter referred to as the `deceased') in furtherance of their common intention for offence punishable under Section 302 read with Section 34 IPC.

2. Prosecution version in a nutshell is as follows: According to the first information report given by Vishwanath Singh (PW-7) before the police on 26.7.1996 at 1.10 p.m., at about 12 noon, while he was sitting on the verandah of the house and his

son Nand Kumar Singh, the deceased had gone to the field to inquire as to whether the land has been ploughed or not, he did not find tractor there and while he was returning he saw the appellants and started shouting. Hearing the alarm, the informant along with Sachida Nand Singh (PW-4) rushed there and found that appellants Vinay Kumar Rai and Ajeet Kumar Rai alias Ajeet Narayan Rai had caught hold of his son and appellant Ashutosh Kumar Rai @ Sanjay Kumar Rai had put pistol on his right temple. The moment they saw him and Sachida Nand Singh, appellant Vinay Kumar and Ajeet Kumar Rai @ Ajeet Narayan Rai exhorted to fire at which appellant Ashutosh Kumar Rai alias Sanjay Kumar Rai fired at his son on the temple. Sustaining the injuries his son fell down and all the appellants fled away brandishing the pistol. When the informant and his nephew Sachidanand Singh reached there, they found injury above the temple and immediately put him on a rickshaw and brought to the Government Hospital, Sasaram where the doctor declared him brought dead. On the basis of the aforesaid information, Sasaram (M) P.S. Case No.386 of 1996 was registered under Section 302/34 of IPC and 27 of the Arms Act.

According to the first information report, the motive for the occurrence is the pendency of litigation before the Director of Consolidation.

The police, after investigation, submitted charge sheet against the appellants and they were ultimately committed to the court of Sessions where all the appellants were charged for offence under section 302/34 of IPC whereas, appellant Ashutosh Kumar Rai alias Sanjay Kumar Rai was further charged for offence under section 302 of IPC and section 27 of the Arms Act.

The appellants denied to have committed any offence and pleaded false implication on account of previous enmity and their further defence was that the deceased was killed on the same day at about 12 noon by fire arm by some unknown persons near the house of Ram Nagina Singh.

Prosecution in order to substantiate the accusations examined nine witnesses out of which Sachidanand (PW-4), Sunil Kumar Singh (PW-5), Srikant Singh (PW-6) and Vishwa Nath Singh (PW-7) claimed to be eye-witnesse