JUDGMENT :

ARVIND SRIVASTAVA, J.

1. Heard learned counsel appearing for the appellant and the learned Addl. P.P. appearing for the State.

2. This appeal is directed against the judgment of conviction dated 22.05.2013 and the order of sentence dated 24.05.2013, passed by the 1st Additional Sessions Judge, Purnea in Sessions Trial No. 798 of 212 arising out of Rupouli (Mohanpur O.P.) P.S. Case No. 87 of 2008, whereby and whereunder the sole appellant has been convicted for the offence punishable under section 302 of the Indian Penal Code and Section 27 of the Arms Act and has been sentenced to undergo rigorous imprisonment for life with fine of Rs. 10,000/-for the offence under section 302 I.P.C.. In default of payment of fine, he has further been sentenced to undergo rigorous imprisonment for six months.

3. The prosecution case, in brief, is that the informant namely, Md. Mozahir gave his fardbeyan on 16.10.2018 alleging precisely therein that on 16.10.2008 at 6.45 p.m. he alongwith his younger brother Md. Mujeeb and son-in-law of his elder brother were coming on two motorcycles, but as soon as he turned towards his village, he saw in the light of motorcycle 8-10 persons having firearms in their hands were standing by the side of the road and the said persons tried to stop them and co-accused, Mukesh Singh @ Wakil Singh fired but the informant managed to ran away but unfortunately another motorcycle on which Mujeeb and Perwez were sitting was stopped and they were killed by firing on them. He has further alleged that earlier co-accused Mukesh Singh @ Wakil Singh had threatened to kill Mujeeb and on complaint a proceeding under section 107 Cr.P.C. was initiated. After the occurrence several persons reached there but the miscreants managed to flee away.

4. On the basis of the aforesaid fardbeyan of the informant, Rupouli P.S. Case No. 87 of 2008 was registered on 16.10.2008 for the offence under section 302/34 of the Indian Penal Code and Section 27 of the Arms Act against Mukesh Singh, Vinod Kumar Jaiswal and Md. Kudrish (appellant) and 7-8 unknown persons. After investigation, the police submitted charge-sheet under section 302/34 I.P.C. and Section 27 of the Arms Act on 20.01.2009 against Vinod Kumar Jaiswal. On 31.05.2010, police submitted supplementary charge-sheet under section 302/34 I.P.C. and Section 27 of the Arms Act against the appellant and 9 other accused persons showing the appellant absconder. Thereafter, cognizance has been taken on 27.09.2010. The appellant was arrested on 01.06.2012. The case was thereafter committed to the Court of Sessions for trial on 16.07.2012. Charges were framed against the appellant on 10.10.2012 for the offence under section 302/34 I.P.C. and Section 27 of the Arms Act, to which the appellant pleaded not guilty and claimed to be tried.

5. During trial, the prosecution has examined altogether 14 witnesses. P.W.1/ Md. Umar, P.W. 2/ Mozahir Alam (informant), P.W. 3/ Md. Sabir Khan, P.W. 4/ Seema Khatoon (wife of the deceased-Mujeeb), P.W. 5/ Dr. Umesh Kumar, who conducted the post mortem examination of both the deceased, P.W. 6/Md. Husain Ali, P.W. 7/ Ahmad Hussain, P.W. 8/ Pradeep Kumar Jaiswal, P.W. 9/Md. Nazmul, P.W. 10/Md. Murtaza Alam, P.W. 11/ Md. Zaliliddin, P.W. 12/ Gangey Raghav (I.O. of the case), P.W. 13/ Jaishankar Jha (I. O. of the case) and P.W. 14/ Mahboob Alam Khan (I.O. of the case).

6. In order to establish the charge, the prosecution has proved the following documents as exhibits :

Exhibit -1 : Fardbeyan

Exhibit-1/1 : Signature of the informant on the Fardbeyan

Exhibit-2 : Seizure List

Exhibit-3 & 3/1 : Post Mortem Reports

Exhibit-4 & 4/1 : Signature of witnesses on Inquest Reports

Exhibit-5 & 5/1 : Inquest Reports

Exhibit- 6 : Formal F.I.R.

7. The appellant in his statement under Section 313 of the Code of Criminal Procedure has said that he is innocent and has falsely been implicated in this case.

8. During trial, two witnesses namely, Md. Habib and Md. Hakim have been examined on b