PRABHAT KUMAR SINGH, J.:–Heard learned Amicus curiae for the sole appellant as well as learned Additional Public Prosecutor for the State.

2. The sole appellant has preferred this appeal against the judgment of conviction and sentence order dated 24.7.1995, passed by the learned Additional Sessions Judge-VII, Munger in Sessions Trial No.552 of 1994 by which the appellant has been convicted under Sections 302/34 of the Indian Penal Code (herein after referred to as ‘the IPC’) and ordered to undergo life imprisonment with a fine of rupees five thousand and in default, he has to undergo one year simple imprisonment for the above stated offence. Appellant has also been convicted under Section 27 of the Arms Act for which he was ordered to undergo rigorous imprisonment for five years. However, both the sentences have been ordered to run concurrently.

3. The prosecution’s case in brief is that on 7.7.1992 at about 6 AM he along with his elder brother (the deceased) was going to the field at Barahiya Pokhar for sowing seeds. However, at about 6.15 AM when they reached near the Bishmuhawa culvert, all of a sudden all the six named accused persons including the appellant Pappu Singh surrounded them. The appellant and accused Naresh Singh were armed with pistol. Accused Govind Singh and Mukund Singh caught hold of waist of the informant, whereafter accused Naresh Singh fired at the back of the deceased and appellant fired at the neck of the deceased as a result of which he fell down in the culvert. Thereafter, accused Gopal Singh and Shambhu Singh, who were hiding in the culvert, came out and assaulted on the face of wailing deceased by means of boulder and wood. When the villagers started rushing towards the place of occurrence, accused persons fled away. It is further stated that appellant being a muscle man, an altercation took place between the parties on 2.6.1992 over a dispute of sowing the field, is the motive behind the occurrence.

4. On the basis of fard beyan (exhibit 4) of the informant, Barahia Police Station Case No. 84/1992 dated 7.7.1992 was registered for the offence punishable under sections 302/34 of the IPC and section 27 of the Arms Act. After investigation, police submitted charge sheet against all the six accused persons for the offence punishable under sections 302/34 of the IPC and section 27 of the Arms Act showing the accused Niranjan Singh to be an absconder. The Court took cognizance of the offence. On account of non-appearance of other accused persons, appellant’s case was split up by the learned Sub Divisional Judicial Magistrate, Lakhisarai on 28.8.1994 and was sent to the court of the Additional Sessions Judge-VII, Munger (hereinafter referred to ‘the trial court’) who framed charge for the aforesaid offences against the appellant.

5. The appellant stood charged for the offences punishable under Section 302 of the IPC and 27 of the Arms Act before the trial and accordingly, charges were read over and explained to him by the Court to which he pleaded not guilty and claimed to be tried.

6. To substantiate the charges, appellant examined, altogether, four witnesses and also got exhibited some documents. P.W.1 Sunil Kumar Singh, younger brother of the deceased, is a hearsay witness. PW 2 Tuntun Kumar is informant and also happens to be brother of the deceased and claims to be an eye witness to the occurrence. PW 3 is Dr. Rameshwar Jha, who conducted post mortem examination, whereas PW 4 is the Investigating Officer (IO) of the case. The defence has also examined two witnesses, namely, DW 1 as Sobhi Singh and DW 2 as Tetar Singh. The statement of appellant was recorded under section 313 of the Code of Criminal Procedure (hereinafter referred to as ‘the Cr.P.C.). The case of defence is complete denial of occurrence and claimed to be innocent. The appellant has also adduced two witnesses to buttress his case.

7. Miss. Anukriti Jaipuriar, learned Amicus Curiae appearing for the appellant submits that in the instant cas