Dharnidhar Jha and Birendra Prasad Verma JJ.

1. Initially, there were two appellants who had preferred the present appeal. During the pendency of the appeal, the co-appellant Sakhichand Koiri died and as may appear from the order passed by this Court on 21.11.2008, the name of appellant no. 2 Sakhichand Koiri was expunged from this appeal. We may note that there being no provision for expunction of the name of any appellant and there being specific provision under Section 394 of the Cr.P.C. under which sentence of imprisonment is to abate and, thereby, the appeal to that extent also abates, we assume that the effect of that particular order passed by this Court on 21.11.2008 was that the appeal of Sakhichand Koiri had abated. We have heard the appeal of the solitary remaining appellant Lal Mohar Koiri.

2. Six accused persons including the present appellant were tried for charges under Section 302 read with Section 149 of the Penal Code. The present appellant as also the deceased appellant Sakhichand Koiri were charged for committing an offence under Section 302/34 of the Penal Code and Section 27 of the Arms Act. By the judgment dated 8th of April, 1988, the learned 7th Additional Sessions Judge, Rohtas at Sasaram, held the present appellant Lal Mohar Koiri and Sakhichand Koiri (now dead) guilty of committing an offence under Section 302/34 of the Penal Code as also an offence under Section 27 of the Arms Act while acquitting the remaining four accused persons of all the charges. After hearing the convicts on sentence, the learned Trial Judge directed the deceased appellant Sakhichand Koiri and the present appellant Lal Mohar Koiri to undergo rigorous imprisonment for life under Section 302/34 of the Penal Code and rigorous imprisonment for three years under Section 27 of the Arms Act. That finding of guilt and judgment of conviction is being questioned by the appellant in the present appeal.

3. The facts of the case is contained in the fardbeyan of the informant Bhola Singh Yadav (P.W. 5) recorded on 8.4.1981 on which date the occurrence had taken place. Some of the facts which appear admitted are that the informant Bhola Singh Yadav and the deceased Ram Bachan Singh Yadav were gate-keepers (Darbans) in Anandi Cinema Hall situated in the township of Sasaram. It also does not appear denied that P.W. 3 Sudarshan Singh was also an employee of the same category, like the informant and the deceased in the same Cinema Hall.

4. It is alleged that at about 9 P.M. when the evening show was about to conclude and when the viewers were about to come out of the Cinema Hall, the six accused named in the F.I.R., who were loitering in the premises of the establishment, came near the deceased. It is alleged that the present appellant Lal Mohar Koiri and the deceased appellant Sakhichand Koiri pulled out their respective pistols and fired one shot each at the deceased Ram Bachan Singh Yadav which hit him in his left ribcage as a result of which he fell down. There was a stampede and the two assailants of the deceased alongwith other accused disappeared in the melee.

5. The informant stated that he went to pick up injured Ram Bachan Singh Yadav and by that time the Manager of the Cinema Hall, namely, Rajendra Prasad Singh (P.W. 2), gate-keeper Sudarshan Singh (P.W. 3) and peon Md. Rasid (P.W.1) and others also came there. With the help of all of them, the informant lifted the injured Ram Bachan Singh Yadav to bring him into the verandah of the Cinema Hall. Ram Bachan Singh was unconscious and he was bleeding from the injury caused on account of the gun shot. He was transported to the hospital by a rickshaw where the Doctor declared him dead.

6. As regards the reason for commission of murder of Ram Bachan Singh Yadav, it was alleged that he had some quarrel and dispute with the accused persons on account of 12 bighas of land since 1978 and further that the deceased had taken possession of the said land and was continuing in possession t