(Per: HONOURABLE JUSTICE SMT. ANJANA PRAKASH)

Anjana Prakash, J. - The Appellants of Cr. Appeal 437 of 2013 and 518 of 2013 have been convicted u/s 302 IPC and sentenced to death and also under Section 394 IPC and 27 of the Arms Act and sentenced to ten years and two years respectively with a fine of Rs.5,000/-. Death Reference is in regard to the same Appellants. Criminal Appeal No. 379 of 2013 and Government Appeal 19 of 2013 have been preferred by the Informant against the acquittal of initial accused Kamlesh Jha. The said Judgment was delivered by the 1st Additional Sessions Judge, Darbhanga, in Sessions Trial 441 of 2011 on 9th April, 2013.

2. The Fard-byan of Ram Pukar Rai, P.W-3 recorded at 8.20 P.M. at the place of occurrence, i.e. Soni Fuel Petrol Pump at Nehra, P.S. Manigachhi, Distt. Darbhanga, on 27.7.2011, is that on the date of occurrence, around 6.30 to 6.45 P.M. when he was checking the Diesel on the Tanker the nephew of the owner Jai Ram Choudhary i.e. Ashwani Kr. Chaudhary (deceased) and Daya Shankar Roy (deceased) were working at the reconciliation of accounts and the Nozle man Kailash Sada (Deceased) was standing near the Nozle. Just then on two black motorcycles, four accused persons arrived and started to get their motorcycles re-fueled. In the meanwhile, he went inside the counter having checked the Diesel and he saw the Tanker Driver (Ram Ayodhya Mahto, PW7) talking to deceased Ashwani Kumar Choudhary. He informed Choudhary that the Tanker was emptied and that the Driver should be paid his dues. Kailash Sada (deceased) also came to the counter and told the exact details of the Petrol which had been taken by the four accused persons. He then saw the three of the four miscreants with Pistols catching hold of Kailash Sada (deceased) and taking him into the room while one of the miscreants stood outside.

3. He gives out the details of the physical description of the miscreants who were aged about 25-35 years and that one of them appeared to be of 30-32 years. One of the miscreants assaulted him on the neck and his face and felled him on the floor. On seeing this, the Tanker Driver (Ram Ayodhya Mahto, PW-7) attempted to escape but he was also assaulted with the butt of the Pistol on account of which he fell down. When Kailash Sada (deceased) tried to escape, he was shot at on the chest on account of which he was injured. The miscreants then asked for the money at which Ashwani Kumar Choudhary pointed where the money was. The miscreants then started to take the money from the drawer which probably deceased Daya Shankar Roy resisted at which he was shot at. The accused persons took away the money lying in the drawer and asked Choudhary as to where rest of the money was. Choudhary replied that there was no more money but the miscreants continued to search the same. They then shot at Choudhary who fell down injured.

4. The miscreants thereafter went towards their Motorcycles and on finding a Bolero Car parked on the petrol pump, took away its papers, keys and Mobile from the Bolero Driver Sitaram Manjhi (PW-10) and fled away towards the main road. The Informant stated that none of the Motorcycles contained any number. He further narrated that Kailash Sada and Daya Shankar Ray died at the spot whereas Ashwini Kumar Choudhary and the Tanker Driver (Ram Ayodhya Mahto, PW-7) were removed to the Hospital. Later injured Ashwini Kr. Chaudhary also died. He claimed to identify the miscreants if shown again.

5. The complicity of the Accused appeared during investigation and hence a charge sheet was submitted on 27.9.2011 against six accused i.e. (i) Pappu Bihari (ii) Nityanand Jha (absconding) (iii) Rahul Kumar Yadav (iv) Kamlesh Jha (v) Raghav Kr. Jha (Juvenile) and (vi) Sonu Singh (dead). The Appellants and the acquitted accused Kamlesh Jha were thereafter put on trial.

6. Before proceeding any further, this Court at this juncture would think it important to discuss a relevant point since it has an important b