The use of a firearm and the clear intention and knowledge of the consequences can lead to a clear case under Section 302 IPC and unlawful use of illegal arms for committing murder.

Dharnidhar Jha and Rakesh Kumar JJ.

1. The solitary appellant, Munna Bhagat was tried by the Additional Sessions Judge, Fast Track Court, Bhojpur, Ara in Sessions Trial No.200 of 2004 for charges under Section 302 of the Penal Code and 27 of the Arms Act. By judgement dated 20th September, 2007 the appellant was held guilty of committing the above two offences and after being heard on sentence on the 20th September, 2007 the appellant was directed to suffer rigorous imprisonment for life as also to pay a fine of Rs.5,000/- under Section 302 of the Penal Code. It was directed that in case of default in paying the fine he shall have to suffer rigorous imprisonment for an additional period of two years. As regards the conviction of the appellant under Section 27 of the Arms Act, the learned trial Judge directed him to suffer rigorous imprisonment for seven years and also to pay a fine of Rs.2,000/- and in case of default in making the payment, he was directed to undergo rigorous imprisonment for an additional period of one year. The sentences were directed to run concurrently. The appellant brings his conviction into question through the present appeal.

2. It was a day of Holi and as per the informant P.W.4, he and his son Brajesh Kumar Singh, the deceased, along with his two villagers, Shanker Prasad and Vijay Singh (both not examined) were taking meals after the celebrations of the festival. The informant stated that while he and others were amidst their meals, his co-villager, Harendra Singh (not examined) came there and wanted to take the deceased Brajesh Kumar Singh with him which was objected to by the informant by pointing out to the deceased that on that particular day, he should not venture out of his house. But the said Harendra Singh insisted upon and requested the informant to allow the deceased to accompany him so that he could have some recipes at his house also. The informant gave in. The deceased, Brajesh Kumar Singh started with the said Harendra Singh and both were followed by the informant Shanker Prasad. When the informant and others had come to the shop of one Triloki Sao and were at the distance of about 10 steps from the shop, they saw that the present appellant alongwith four others were having a heated exchange of words with one Keshwar Yadav and at that particular time the present appellant, as per the informant, was armed with country made pistol. So was co-accused, Tunna Bhagat and both the appellant and Tunna Bhagat is said to have started assaulting the said Keshwar Yadav.

3. It is alleged that the deceased intervened into the scuffle and forbade the appellant and Tunna Bhagat to assault the said Keshwar Yadav as a result of which this appellant fired a shot at the deceased while co-accused Tunna Bhagat fired at Keshwar Bhagat. The shot fired by the present appellant hit the deceased Brajesh Kumar Singh somewhere in the rib cage on the back side and Keshwar Yadav was hit by the shot in his chest. Both Keshwar Yadav and the deceased Brajesh Kumar Singh fell down on the ground. The informant started raising hulla. It is said that in the meantime other companion accused of the appellant stated that another shot should be fired but the informant and others rushed towards the scene of occurrence as a result of which the accused persons ran away from there.

4. The informant stated that he with the help of others brought Brajesh Kumar Singh and Keshwar Yadav to Sadar hospital, Ara where his son died and Keshwar Yadav was referred to Patna Medical College Hospital for further treatment. The informant stated that he did not have enmity with any one and simply because the deceased wanted to save Keshwar Yadav from being assaulted, as such, he was targeted with Keshwar Yadav and injured by fire arm.

5. It appears from the evidence of P.W.6 Prashant Kr. Viswa, the officer-in-charge of Ara Mufassil P.S. on 2nd June, 2000, that he had recorded the fardbeyan of the informant which has been marked Ext-3 in