ORDER :

1. Leave granted.

2. Heard the learned counsel appearing for the parties.

3. The appellant is the original accused No.3. The appellant was tried with other seven accused for the charges under Section 302 read with Section 149 and Section 120-B of the INDIAN PENAL CODE , 1860 (for short, "the IPC"). They were also charged with Section 27 of the ARMS ACT , 1959.

4. The case of the prosecution, in short, was that on 8th May, 2011 at about 7.15 p.m. the accused formed an unlawful assembly and murdered the deceased Ramashrey Choudhary by firing gun shots. The Trial Court convicted the accused for the offences punishable under Sections 302 read with 149 of the IPC and Section 120-B thereof.

The conviction was also under Section 27 of the ARMS ACT 1959. The appeals were preferred by the accused before the High Court. The appeals by all co-accused were allowed. However, while deciding the appeal preferred by the present appellant, his conviction for the offences punishable under Section 302 read with 149 and Section 120-B of the IPC was set aside and was substituted by the conviction for the offence punishable simplicitor under Section 302 of the IPC. Being aggrieved by the impugned judgment of the High Court, the present appeal has been preferred.

5. It is contended by the learned counsel appearing for the appellant that there was an unexplained delay in forwarding a copy of the First Information Report to the Court of the learned Magistrate and there was no explanation for the delay of 8 days. The second submission was that PW1 to PW4 who were allegedly the eye witnesses were all interested witnesses. The third submission was based on depositions of the Investigating Officer. Fourthly, it was submitted that the evidence of the eye witnesses cannot be believed. Lastly, it was submitted that material appearing in evidence against the appellant was not put to the appellant in his examination under Section 313 (1) of the CRIMINAL PROCEDURE CODE , 1973 (for short, "the CrPC") and therefore there is inherent prejudice to the appellant.

6. The submission of the learned counsel appearing for the respondent-State is that the High Court has dealt with the issue of examination of the appellant under Section 313 (1) of the CrPC and has held that the appellant has not shown the prejudice. Her submission is that the evidence of PW1 to PW4 is consistent and reliable and therefore, the same cannot be discarded only on the ground that they are interested witnesses. Her submission is that the alleged delay of 8 days in sending a copy of the First Information Report to the Court of the Judicial Magistrate has been explained and, in any case, after trial, it ceases to be of any significance

7. Firstly, we deal with the submission regarding the manner in which statement of the appellant under Section 313 (1) of the CrPC has been recorded.

8. The relevant part of the statement of the appellant reads thus"

Question: Have you heard the statement of witness?

Answer : Yes Sir

Question: It is stated by the witnessed that on 8.5.11 at about 7.15 O'clock at Vill.Akbarpur Nayatola, PS Shamho, Distt. Begusarai along with other accused, in the courtyard, by forming an unlawful assembly by taking rifle and billed, by hiding, murdered Ramashray Choudhary by firing in the right waist?

Answer : No Sir.

Question: It is stated by the witnesses that you along with other co-accused ran away by making indiscriminate firing?

Answer : No Sir.

Question: What do you have to say in defence?

Answer : I am innocent."

9. The High Court has held that the appellant has not shown prejudice. This Court i