JUDGMENT :

ASHWANI KUMAR SINGH, J.

1. In the present appeal, the judgment of conviction dated 28th April, 2018 and the order of sentence dated 5th May, 2018 passed in Sessions Trial No. 73 of 2005 arising out of Harnaut (Telmar) P.S. Case No. 180 of 2003 by the learned Presiding Officer, Fast Track Court No. 1, Nalanda, Biharsharif is under challenge.

2. By the impugned judgment, learned Trial Court has convicted the appellant Mahesh Paswan under Section 302 read with 149 of the Indian Penal Code and Section 27 of the Arms Act. By the impugned order, the appellant has been sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 10,000/- and in default of payment of fine to undergo rigorous imprisonment for two years under Section 302 of the Indian Penal Code and rigorous imprisonment for three years and to pay fine of Rs. 1,000/- and in default of payment of fine to undergo rigorous imprisonment for two months under Section 27 of the Arms Act.

3. The case of the prosecution is based on the oral statement of Mithilesh Kumar (PW-5) recorded by one Chandra Deep Singh, Sub-Inspector of Police on 20th October, 2003 at the door of his house at 04:15 P.M. In his oral statement, Mithilesh Kumar stated that on 20th October, 2003 at about 01:00 P.M. while he and his brother were busy in getting a water hand-pump fixed in the courtyard of his house by a hand-pump mechanic and his father was entering the house with a bucket full of water, the accused persons, namely, Hare Kishun Paswan, Ram Babu Paswan, Ram Raj Paswan, Mahesh Paswan, Paras Paswan, Shiv Paswan, Loknath Paswan, Hare Ram Paswan, Sudhir Paswan, Parmanand Paswan, Ram Jatan Paswan, Arbind Paswan, Lalendar Paswan, Sucharam Paswan, Mangal Paswan along with 8-10 unknown miscreants being variously armed and forming an unlawful assembly arrived there and exploded a bomb to create fear as a result of which they were terrified. Thereafter, Paras Paswan exhorted upon which Hare Kishun Paswan opened fire causing injury to his father in his thigh. When his father rushed inside the house, the accused persons also entered inside the house and killed him. In the meantime, when his mother Garbhi Devi went to his rescue, they shot her fatally. He further stated that a boy, namely, Sonu @ Ravi Shankar Kumar son of Ranjeet Singh and Karu Kumar son of Ram Narain Singh also sustained gun shot injuries in the firing made by the accused persons. The injured persons were taken to hospital. The motive for the occurrence was alleged to be an old enmity existing between the parties.

4. Treating the aforesaid oral statement of Mithilesh Kumar (PW-5), Shiv Shambhu Prasad Sahu, the S.H.O. of Harnaut (Telmar) Police Station registered the first information report (for short ‘FIR’) vide Harnaut P.S. Case No. 180 of 2003 dated 20th October, 2003 under Sections 147, 148, 149, 324, 326, 307 and 302 of the Indian Penal Code (for short ‘IPC’) 27 of the Arms Act and 3 and 4 of the Explosive Substances Act at 08:30 P.M. against the aforesaid 15 named accused persons and 8-10 unknown accused persons and handed over the investigation of the case to Chandra Deep Singh, Sub-Inspector of Police.

5. On completion of investigation, the Investigating Officer initially submitted charge-sheet against five accused persons, namely, Ram Jatan Paswan, Arbind Paswan, Lalendra Paswan, Sucharan Paswan and Mangal Paswan under Sections 147, 148, 149, 324, 326, 307 and 302 of the IPC, 27 of the Arms Act and 3 and 4 of the Explosive Substances Act vide charge-sheet no. 23 of 2004 dated 10th March, 2004 and kept the investigation open in respect of the other accused persons. Subsequently, a supplementary charge-sheet, vide charge-sheet no. 134 of 2004 dated 17th October, 2004 under the aforesaid provisions of law was submitted by the Investigating Officer against Mahesh Paswan (appellant), Hare Ram Paswan and Sudhir Paswan and the investigation was kept open with respect to the remaining accused persons.

6. After commitment