JUDGMENT :

PARTHA SARTHY, J.

1. The appellant no. 1 Sipahi Rai having died during pendency of the instant appeal, the instant appeal is confined to the appellant Rajeshwar Rai.

2. The appellant has filed this appeal against the judgment of conviction dated 7.9.2010 and order of sentence dated 15.9.2010 passed by the learned 3rd Addl. Sessions Judge, Saran at Chapra in Sessions Trial No. 105 of 2007 (arising out of Dariyapur P.S. Case No. 33 of 2005) whereby the appellant was convicted under sections 302/149, 148 and 307/149 of the Indian Penal Code and under section 27 of the Arms Act and sentence to undergo RI for life for the offence under section 302/149 of the Indian Penal Code, RI for 3 years for the offence under section 148 of the Indian Penal Code, RI for 10 years under section 307/149 of the Indian Penal Code and RI for 7 years under section 27 of the Arms Act and further sentenced to pay a fine of Rs. 25,000/- for the offence under section 307/149 of the Indian Penal Code and in default in payment thereof to further undergo RI for one year, with all the sentences having been directed to run concurrently.

3. Dariyapur P.S. Case No. 33 of 2005 was registered on 4.5.2005 on the fardbeyan of Amod Kumar Gupta (PW-1) recorded by SI Sanjai Kumar, P.S. Dariyapur, District Saran at Chpara on 4.5.2005 at 15:00 hours wherein he alleges that about a week ago the accused Ajay Rai came as a customer at the jewelry shop of his uncle Ram Chandra Sah (PW-5) in Dariyapur Bazar. In course of purchase of jewelry he asked for credit. On Ram Chandra Sah not agreeing to give credit there was altercation which turned into fight between the parties, however the same was settled. On the same day after about 2-4 hours Mithilesh Kumar was taken away from the shop and beaten with fists and slaps. At the time Sipahi Rai and Rajeshwar Rai threatened the jewellers of the area that they would have to face the consequences. It is sated that belonging to the business class, not much attention was paid to the threats. On 4.5.2005 at about 1 pm with three accused persons on each motorcycle, the accused Sipahi Rai, Rajan Rai, Arvind Rai, Sanjay Rai, Mukesh Rai, Mahesh Rai, Shailesh Rai, Awdhesh Rai, Manoj Rai and other unknown accused persons came on motorcycles variously armed with katta, pistol, carbine and bomb. Reaching the shop of Kishori Sah, they resorted to firing as a result of which Shivnath Sah died on the spot. Pancham Sah concealed himself in the house. Thereafter, the accused persons resorted to firing at the door of Dina Sah followed by Tribhuwan Sah, shop of Sheo Pujan Sah and door of Madan Sah. Madan Sah sustained bomb injury in his leg and fell down. The accused persons proceeded to the shop of Amod Kumar Gupta (informant) (PW-1) where Rajeshwar Rai (appellant) struck the informant with butt of his pistol on his forehead as a result of which he sustained injuries. On the son of the informant, namely, Vikash Kumar @ Sonu (PW-2) coming there, he was shot by Rajeshwar Rai (appellant) with a pistol. The shot hit him in his hand as also his chest and he was seriously injured. On the younger brother of the informant, namely, Chhathilal coming there, it is stated that on the orders of Rajeshwar Rai (the appellant), Shailesh Rai fired hitting Chhathilal in his chest as a result of which he died on the spot. Firing was also carried out in the shop of Mithilesh Sah as also in the shop of Subhash Prasad and Dayanand Sah. The informant sates that Sanjay Rai shot Shivnanth Sah as a result of which he died in the shop itself while the injured Madan Prasad, Vikash Kumar @ Sonu (PW-2) were referred to P.M.C.H. Patna for treatment. The informant was treated at Primary Health Centre, Dariyapur. The accused persons escaped in north direction.

4. On the basis of the aforesaid oral statement of the informant a formal FIR was registered on 4.5.2005 at 16:30 hrs. and the investigation was taken up. After completion of investigation charge-sheet was submitted under