JUDGMENT :

Sunil Kumar Panwar, J.

Heard Mr. Prasoon Sinha, learned counsel for the appellants and Mr. Ajay Mishra, learned Additional Public Prosecutor for the State.

2. The appellants in this appeal have challenged the judgment of conviction and order of sentence dated 3rd of February 1994 passed by the learned 2nd Additional Sessions Judge, Sitamarhi in connection with Sessions Trial No. 229 of 1992/9 of 1993, arising out of Sitamarhi P.S. Case No. 168 of 1992.

3. By the aforesaid judgment dated 3rd of February, 1994, the appellants have been convicted for the offences punishable under Section 302 read with section 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. The appellant no. 2 namely Dukhan Sahni has further been convicted under Sections 307 of the Indian Penal Code and Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for 4 years for the offence under Section 307 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for two years for the offence under Section 27 of the Arms Act. The Trial Court, however directed that all the sentences shall run concurrently.

4. The prosecution case is based on the Fardbeyan of the informant, namely, Pramod Chandra Jha, who alleged that on 07.06.1992, the deceased Mohan Singh, a co-villager of the informant had requested the informant to bring money from his brick kiln. On the same day, at about 4:00 P.M, he brought a sum of Rs. 13,000/-from his brick kiln and delivered it to him at Ranjit Medical Hall. Thereafter, Mohan Singh went to pay the money to the coal dealer and informant came back to his residence. The further case of the prosecution is that on the same day again at about 9:30 P.M. Mohan Singh along with the coal dealer namely, Ghoghar Mishra @ Baba came at the residence of the informant and talked for some time and thereafter Ghoghar Mishra left the house of the informant. Mohan Singh, thereafter asked the informant to accompany him up to his residence. Accordingly, the informant started accompanying Mohan Singh but as soon as they reached near Kiran Chowk, Mohan Singh (deceased) asked the informant to bring cigarette for him. Mohan Singh himself kept standing near Suman’s Betal Shop and the informant went to bring the cigarette from the shop of Harni @ Netaji situated by the side of Suman Betal Shop and asked the shopkeeper to give him a cigarette. In the meantime, the appellants along with other accused persons namely, Raghunath Singh @ Raghunathia, Jagdish Singh, Dukhan Sahni, Anjul Mian @ Wajul Mian and two unknown persons came from the side of Singwahini market. The accused Raghunath Singh asked Mohan Singh to settle some accounts, upon which Mohan Singh asked him to come at his house next morning for settling the account. The accused, Jagdish Singh started abusing Mohan Singh and said that they had to settle a number of accounts with him. In the meantime, these appellants namely Dukhan Singh and Anjul Miya caught hold Mohan Singh and the accused Raghunath Singh & Jagdish Singh brought out his pistol and opened fire in quick succession at Mohan Singh. The informant rushed towards them, raising an alarm but by that time Mohan Singh had fallen down after having been injured by the gun shot. The informant tried to lift Mohan Singh up in order to save him but he was caught by Raghunath Singh, who asked Dukhan Sahni (appellant) to kill him otherwise it would be proved dangerous for him in future. The informant was fired at by the appellant Dukhan Sahni but the shot got misfired and the informant, getting benefit of the misfire, got himself released and fled towards the hospital road. The accused again fired at the informant from his back which did not hit him. The informant managed to hide himself in the clinic of Dr. Nawal Kishore where the compounder of that clinic as well as the attendant