JUDGMENT :

ASHWANI KUMAR SINGH, J.

This appeal is directed against the judgment dated 27.09.1995 and the consequent order dated 28.09.1995 passed by the learned Additional Sessions Judge Seventh, Patna in Sessions Trial No. 742 of 1993 whereby and whereunder the appellant has been convicted for the offences punishable under Section 302 of the Indian Penal Code (for short ‘IPC’) and Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for life under Section 302 of the IPC and rigorous imprisonment for five years under Section 27 of the Arms Act.

2. On 07.05.1993 at 11:10 AM, one Dhirendra Kumar (P.W.7) son of Ramadhar Sharma, resident of village Bilap, P.S.-Bihta, District-Patna gave his oral statement (fardbeyan) at Bihta Police Station before one Ram Pravesh Singh (P.W.9), an Assistant Sub-Inspector of Police, Bihta Police Station alleging therein that on the same day at 10:00 AM, he along with his father was returning home after spading soil in the sugarcane field and as soon as they reached near the house of the appellant, he saw Awadhesh Singh and the appellant sitting there armed with gun and pistol respectively. Seeing him and his father, Awadhesh Singh hurled abuses. He ordered the appellant to kill his father Ramadhar Sharma for the alleged cutting of ridge of the field. On the order of Awadhesh Singh, the appellant fired from his pistol, which hit his father in his back as a result of which he fell down and started struggling for life. Immediately thereafter, Awadhesh Singh also fired from his gun, which hit him on the left palm in between left thumb and left index finger and bleeding started. He raised hulla upon which the neighbours and other co-villagers rushed there and saw the occurrence. He stated that his injured father was taken to Dariyapur on a cot for treatment at Dariyapur Hospital and from Dariyapur he was referred to the Referral Hospital, Bihta, where the doctor declared his father dead after examining him. The dead body of his father was taken to Bihta Police Station. He claimed that Awadhesh Singh and the appellant resorted to firing with an intention to kill his father as also to kill him.

3. On the basis of the aforesaid oral statement of the informant Dhirendra Kumar, Bihta Police Station Case No. 81 of 1993 dated 07.05.1993 was registered under Sections 302 and 307/34 of the IPC and Section 27 of the Arms Act and investigation was taken over by the ASI Ram Pravesh Singh himself.

4. On completion of investigation, the police submitted charge-sheet against the appellant and Awadhesh Singh under Sections 302, 307/34 of the IPC and Section 27 of the Arms Act in the court of A.C.J.M., Danapur.

5. The learned A.C.J.M., Danapur took cognizance of the offences and after supplying the documents in compliance with Section 207 of the Code of Criminal Procedure (for short ‘Cr.P.C.’), committed the case to the court of Sessions vide order dated 07.10.1993.

6. Later on, the learned Sessions Judge, Patna transferred the case to the court of 7th Additional Sessions Judge, Patna. The learned 7th Additional Sessions Judge explained the charges under Section 302 of the IPC and Section 27 of the Arms Act to the appellant Manglesh Singh and Sections 302/34 and 307 of the IPC as also Section 27 of the Arms Act to Awadhesh Singh. Both of them denied the charges and claimed to be tried. Accordingly, charges under the aforesaid provisions were framed and the trial commenced.

7. During trial, the prosecution examined as many as nine witnesses in order to prove the charges. Out of them, Raj Deo Ram (P.W.1), Kundan Kumar (P.W.2) and Dhirendra Kumar (P.W.7) claimed themselves to be the eye-witnesses to the incident whereas Jitendra Kumar (P.W.3) and Yogendra Singh (P.W.4) are hearsay witnesses. Dr. Basuki Nath Gupta (P.W.5) is the doctor, who had held the post-mortem examination on the body of the deceased, Ram Pravesh Singh (P.W.9) is the first Investigating Officer (for short ‘I.O.’) and Asrar Ahmad (P.W.8) is