IMPORTANT POINT
Proper appreciation of evidence.

Judgment :-

V. Gopala Gowda, J.

This appeal is filed by the appellant aggrieved by the common judgment dated 22nd May, 2003 passed in Crl.A.Nos. 241, 247, 271 and 318 of 1998 in affirming the conviction and sentence of the appellant for the offence punishable under Section 302 read with Section 34 I.P.C. and Section 27 of the Arms Act urging various facts and legal contentions. The appellant herein was the appellant in Crl.A.No.318 of 1998 before the High Court. The impugned judgment passed in the said case is under challenge in this appeal.

2. The brief facts in relation to the prosecution case are stated hereunder to appreciate the rival legal contentions that are urged on behalf of the parties with a view to find out as to whether this Court is required to interfere with the concurrent finding of fact recorded in affirming the conviction and sentence imposed against the appellant.

3. The deceased Shailendra Kumar was murdered on 16.07.1996 at about 3.30 p.m. by the appellant Umesh Singh and other persons, namely, Awadhesh Singh, Sudhir Singh, Jaddu Singh, Nawal Singh, Binda Singh @ Bindeshwari Singh by shooting him with a revolver and rifle with a criminal intention for unlawful purpose in furtherance of common intention along with other accused and to have in their possession of fire arms with an intention to use it for an unlawful purpose to commit murder of Shailendra Kumar along with accused nos.5 & 6 and another accused Moti Singh who is dead. They were charged under Section 302 read with Section 34, IPC. The case of the prosecution is that the deceased along with his cousin brother Arvind Kumar-PW2 were going to Tungi for catching a bus for Kothar on 16.7.96 at about 3.30 p.m. When they proceeded at a distance ahead of Tungi High School near Latawar Payeen, the accused persons named above surrounded them. The deceased accused Moti Singh is alleged to have exhorted his other associates to shoot the deceased Shailendra Kumar upon which the appellant herein took out a country made revolver and pumped its bullets in the temple of the deceased and accused no.2 who was having a rifle in his hand fired in the abdomen of the deceased. Accused no.4 also shot a fire causing injury in the leg of the deceased while accused no.3 also fired from his rifle. Accused no.5 was also having a rifle and he threw the dead body of the deceased in the Payeen. It is also the case of the prosecution that during the course of the occurrence of the incident the informant PW2 Arvind Kumar was kept over-powered by the deceased accused Moti Singh and Jaddu Singh and after accomplishing the target, they left. Further, the witnesses whose names were found in the fardbeyan claimed to have seen the occurrence of the incident. The fardbeyan was recorded by ASI RS Singh at about 7.00 p.m. on the same date at Tungi High School hostel, Latawar Payeen and the inquest report of the dead body was also prepared at the place of occurrence itself at 7.10 p.m. Seizure list of certain incriminating items including empty fired cartridges which were recovered from the spot was also prepared. Formal FIR was recorded and investigation was taken up by the police. On concluding the investigation, the police submitted the charge sheet before the learned Chief Judicial Magistrate on the basis of which cognizance was taken by him and the case was committed to the Court of Sessions. The learned Sessions Judge on his turn transferred the case to the file of Second Additional Sessions Judge, Nawadah and the charges were framed for the offence under Section 302 read with Section 34, IPC and Section 27 of the Arms Act. The accused pleaded not guilty. The case went for trial and the prosecution has examined the witnesses PW1 to PW9 and two witnesses were examined in support of the defence. The learned Additional Sessions Judge on appraisal of the evidence and record passed the judgment dated 04.04.1998 imposing the conviction and sentence against the accused persons under Section 30