JUDGMENT (C.A.V.)

Mohit Kumar Shah, J.—The present appeals have been filed under section 374(2) read with section 389(1) of the Code of Criminal Procedure, 1973 against judgment of conviction and sentence dated 30 th August, 2012 and 13th September, 2012 respectively passed in Sessions Trial No. 95 of 2010 by the learned Additional District and Sessions Judge, Ad hoc-III, Madhepura, arising out of Singheshwar P.S. Case No. 14 of 2010.

2. Since the aforesaid three appeals arising out of the same Sessions Trial No. 95 of 2010 as well as out of the common impugned judgment of conviction and sentence dated 30th August, 2012 and 13th September, 2012 respectively, the same have been heard together and are being disposed off by the present common judgment.

3. The appellant of Criminal Appeal (DB) No. 988 of 2012 i.e. Birendra Yadav has been held guilty for the offences punishable under section 302 of the Indian Penal Code and section 27 of the Arms Act and sentenced to undergo imprisonment for life and a fine of Rs. 10,000/- for the charge under section 302 IPC and in default of payment of the said fine, the said appellant has been directed to undergo further rigorous imprisonment for six months. He has been further sentenced to under go three years rigorous imprisonment for the charge under section 27 of the Arms Act. The other two appellants i.e. Lal Yadav of Criminal Appeal (DB) No. 973 of 2012 and Ashok Yadav of Criminal Appeal (DB) No. 1035 of 2012, have been held guilty for the offences punishable under sections 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/- and in default thereof they have been directed to undergo further rigorous imprisonment for three months.

4. The short facts of the case are that on the basis of the fardbeyan of the informant namely Rajesh Kumar recorded by Sub-Inspector of Police, C.D. Rajak of Singheshwar Police Station on 02 nd March, 2010 at 11:30 P.M. at Sadar Hospital, Madhepura, Singheshwar P.S. Case No. 14 of 2010 was registered under section 302/34 of the Indian Penal Code and section 27 of the Arms Act against all the aforementioned appellants. The case of the informant namely Rajesh Kumar is that on 02 nd March 2010 at about 4:00 P.M. in the day time he had gone to Singheshwar along with his brother Pramod Kumar Yadav for purchasing domestic articles and medicine. At about 8 P.M. in the night while the informant and his brother, after purchasing domestic articles and medicines, and watching the fair were returning to their home on their bicycle and when they had reached near Singheshwar Durga Asthan (Mahabir Chowk) then they met Ashok Yadav (appellant in Criminal Appeal (DB) No. 1035 of 2012), Birendra Yadav (appellant in Criminal Appeal (DB) No. 988 of 2012) and Lal Yadav (appellant in Criminal Appeal (DB) No. 973 of 2012) who were seated on two motorcycles. The appellant Ashok Yadav had then stopped the said two brothers at Mahabir Chowk and told the brother of the informant namely Pramod Kumar as to whether he wants to take money or not and he further told him that he would take him by motorcycle to his home and give money and then he would drop him at his home. Thereafter, the deceased Pramod Yadav with a view to take his money amounting to a sum of Rs. 1,50,000/- sat on motorcycle with the appellant Ashok Yadav and thereafter all the four persons went away. Subsequently the said persons started eating betel leaf at the betel leaf shop and the informant by his bicycle we nt ahead. When the informant reached Doma Chowk and was eating betel leaf there, all the three appellants and his brother reached there. After the informant had eaten betel leaf and was urinating, suddenly the appellant Ashok Yadav and Lal Yadav caught hold of his brother Pramod Yadav and the appellant Birendra Yadav took out a country made pistol from his waist and fired a gun shot at the deceased and warned the informant that if he came forward, he would als