V.N. Sinha, J.

Instant Death Reference Cr. Appeal arise out of judgment of conviction, order of sentence dated 23/30.3.2015 passed by additional district Sessions Judge-1, Sheohar in Sessions Trial Case No. 58 of 2011, where under appellants herein have been convicted for the offence under Sections 302/149, 307/149, 436/149, 323/149 read with 120(B), 147 of the Penal Code, sentenced to suffer Capital punishment under Section 302/149 of the Penal Code, Rigorous Imprisonment for 10 years with further direction to pay fine of Rs. 5,000/- each under Section 307/149 of the Penal Code, in default of payment of fine to suffer further imprisonment for a period of six months, Rigorous Imprisonment for 10 years with further direction to pay a fine of Rs. 5,000/- under Section 436/149 of the Penal Code, in default of payment of fine to suffer further imprisonment for a period of six months, one year for the offence under Sections 323/149, 147 of the Penal Code respectively. Appellant Nos. 1, 2 have further been convicted for the offence under Section 27 of the Arms Act, sentenced to suffer Rigorous Imprisonment for three years with direction to pay fine of Rs. 1,000/-, in default of payment of fine to suffer further imprisonment for three months. The sentences, however, have been directed to run concurrently.

2. Prosecution story, as set out in the fardbeyan of Subodh Kumar Yadav, son of late Siyaram Yadav, resident of Village Ramban, P.S. Shyampur, Bhataha, District- Sheohar, recorded by Jitendra Prasad, Officer-in-Charge, Piprahi Police Station on 22.05.2010 in Sub-Divisional Hospital, Sheohar at 7:00 A.M. is that on 21.05.2010 at 7:30 P.M. he was at the entrance door of his house situate in Village Ramban, was engaged in chit-chat with his family members. Meanwhile, three persons riding a motorcycle, number whereof is not known to the informant, suddenly came to his entrance door from eastern side, moving towards west. Out of the three motorcycle riders two were identified by the informant as Suresh Sahni, son of Gagan Sahni, resident of Kararia, Hamid Ansari, son of not known to the informant, resident of Gorhia Tola in the solar/generator light. Both were armed with carbine, swiftly came to the entrance door, resorted to indiscriminate firing causing through and through injury to his father. In presence of the informant his father succumbed to the injury. At the same time Maoists, 60-70 in number not only approached, surrounded the house of the informant from eastern side but also attacked with fire-arm, bombs and other lethal weapons. One shot each caused injury to his brother Bhola Yadav, uncle Bhagwan Rai, Villager Manohar Thakur, all residents of Ramban, P.S. Shyampur Bhataha and riddled their body. Dead body of all the persons strewn around. The miscreants also cut the dead bodies into pieces which the informant could see in the generator/solar light. Amongst the miscreants, informant could identify Pankaj Singh, son of Sri Bijali Singh, resident of Ramban armed with double barrel gun, Binay Singh, son of late Ram Devi, resident of Ramban was identified firing from his rifle, Wali Mohammad, son of late Mazhar was also identified firing from the rifle, Birendra Sahni, son of not known to the informant, resident of Gorhia Tola within Shyampur Bhataha Police Station was seen with Petrol Container which was used for setting ablaze the house. Gagandeo Sahni, son of late Bhuali Sahni, resident of Gorhia Tola was identified firing from sophisticated A.K. 47, Ugan Ram, son of not known, resident of Village Benipur, P.S. Shyampur Bhataha was identified firing from gun. Santosh Kumar Sah, son of Shukdeo Sah, resident of Village- Gorhia Tola was seen cutting dead bodies into pieces with a sword. Bhagirath Sah, son of not known to the informant, resident of Village Rohua within Shyampur Police Station was seen sprinkling petrol on the house, jeep as also setting the two ablaze. Dinesh Das, son of not known to the informant, reside