Chandramauli Kr.Prasad, J.

1. Jhari Sharma, Kailash Singh and Rana Singh were put on trial for commission of the offence under Sec.148, 302/149 and 201 of the Indian Penal Code and 27(1) of the Arms Act. Additional Sessions Judge. Fast Track Court No. II. Khagaria by judgment dated 29th of January, 2004 passed in Sessions Trial No. 351 of 1999 held all of them quilty under Sec.148, 302/149 and 201 of the Indian Penal Code and 27(1) of the Arms Act. By order dated 30.1.2004 he awarded sentence of 2 years rigorous imprisonment for offence under Sec.148 of the Indian Penal Code, death for offence under Sec.302/149 of the Indian Penal Code, 5 years rigorous imprisonment and fine of Rs. 5000/-, in default of payment of fine to suffer simple imprisonment for one year under Sec.201 of the Indian Penal Code and further sentenced them to undergo rigorous imprisonment for 3 years and fine of Rs. 3000/-, in default to suffer simple imprisonment for 6 months under Sec.27(1) of the Arms Act. Sentences of imprisonment were directed to run concurrently.

2. The sentence of death had necessitated reference under Sec.366 of the Code of Criminal Procedure and, accordingly the learned Judge has transmitted the record to this Court for confirmation of death sentence, which has been registered as Death Reference No. 3 of 2004. Kailash Sinha and Rana Singh aggrieved by their conviction and sentence have also preferred appeal, which has been registered as Criminal Appeal No. 92 of 2004, whereas the Criminal appeal preferred by Jhari Sharma has given rise to Criminal Appeal No. 105 of 2004.

3. As the Death Reference as also the Criminal appeals have arisen out of the same judgment, they were heard together and are being disposed of by this common judgment.

4. Prosecution started on the basis of a statement given by one Suresh Singh (P.W.8) before the Sub-Inspector of Police of Beldaur Police Station on 21.5.1998 at 7.30 A.M. at Ramnagar Bazar Samiti, Maheshkhoont. According to the informant, fee of the Bazar Samiti is realised in the name of his son. On the date of occurrence at 6 A.M. he alongwith his sons Sunil Singh (P.W.4), Shambhu Singh (P.W.6), brothers Sudhakar Singh (deceased), Sudhir Singh (P.W.1), nephew Jitendra Singh (deceased), Bijay Kumar Singh (P.W.2), Ranjeet Kumar Singh (P.W.5) and few others including a man from Bhagalpur, whose name was not known to him, were sitting inside the room of the Bazar Samiti and on chair outside it. According to him, Sudhakar Singh (deceased), Ram Briksh Singh (deceased) and Jitendra Singh (deceased) were sitting outside and at that time Kushweri Choudhary @ Kishori Choudhary besides fourteen other accused persons including appellant Jhari Sharma but excluding appellants Kailash Singh and Rana Singh came suddenly from eastern side and at the same time ten other persons came from western side armed with weapons like rifle, gun, pistol and musket and surrounded them. According to the informant, accused Kishori Choudhary and Mangal Singh killed Sudhakar Singh at that very place by fire arm and rest of the accused persons resorted to indiscriminate firing causing death of Ram Briksh Singh and another person. On hearing the sound of firing and hulla, many people gathered and accused Kishori Choudhary and others asked Nageshwar Singh at gun point to start his tractor and after putting the dead bodies of three persons, namely, Sudhakar Singh, Ram Briksh Singh and the unknown person fled towards Gawas river in the west. After accused Kishori Choudhary and other accused persons left the place of occurrence villagers gathered and the informant saw Jitendra Singh living in injured condition in a maize field situated behind the Bazar Samiti who was sent to Khagaria Hospital for treatment. According to the informant, accused Kishori Choudhary fired about 25 shots and the reason of the occurrence is that said Kishori Choudhary and other accused persons are criminals and had enmity with deceased Sudhakar Singh f