JUDGMENT

A. M. BADAR, J.:–

By this appeal, appellant/accused Mithun Paswan is challenging the Judgment and Order dated 15.01.2014 and 18.01.2014 respectively passed by the learned Adhoc Additional Sessions Judge-II, Khagaria, in Sessions Trial No.394 of 2010, thereby convicting him of the offences punishable under Sections 302 and 364 of the Indian Penal Code. For the offence punishable under Section 302 of the Indian Penal Code, he is sentenced to suffer imprisonment for life along with imposition of fine of Rs.5000/- and for the offence punishable under Section 364 of the Indian Penal Code, he is sentenced to suffer rigorous imprisonment for 10 years apart from imposition of fine of Rs.5000/-. The learned trial court awarded default sentence of imprisonment for six months. Substantive sentences are directed to run concurrently. For the sake of convenience, the appellant shall be referred to in his original capacity as “an accused”.

2. Facts in brief leading to the prosecution of the accused can be summarized thus:—

(a) It is case of the prosecution that by kidnapping victim Laxman Paswan on 22.03.2010, the accused along with juvenile in conflict with law Tuntun Paswan had committed his murder by strangulating him by means of scarf.

(b) Laxman Paswan, aged about 12 years was student of Upgraded Middle School of village-Bela Simri. His father P.W.2 Gopal Paswan used to reside at Delhi for earning the livelihood. Accused Mithun Paswan also used to reside at Delhi in the room adjoining to the room of P.W.2 Gopal Paswan. On one day, accused Mithun Paswan spitted ‘Gutkha’ from his mouth on person of P.W.2 Gopal Paswan. This incident caused scuffle between both of them and then accused Mithun Paswan threatened to teach a lesson to P.W.2 Gopal Paswan. Thereafter, accused Mithun Paswan returned to his village-Bela Simri where Laxman Paswan (since deceased), who happens to be son of P.W.2 Gopal Paswan, was residing along with his uncle P.W.6 Upendra Paswan. P.W.5 Deji Paswan is wife of P.W.6 Upendra Paswan and, as such, was aunt of Laxman Paswan. According to the prosecution case, on 22.03.2010, Laxman Paswan participated in the running competition held at his Upgraded Middle School, Bela Simri, on the occasion of Bihar Diwas and stood first in that competition. On the same day, P.W.5 Deji Paswan saw him in company of accused Mithun and juvenile in conflict with law Tuntun Paswan. Upon being asked by P.W.5 Deji Paswan, Laxman told her that he will return home after seeing posters of a movie. However, Laxman Paswan was not seen thereafter.

(c) On 23.03.2010, P.W.6 Upendra Paswan lodged missing report of Laxman Paswan with the outpost of Police Station-Khagaria (Gangour) and, accordingly, Sanha entry was takan. Search of Laxman Paswan by his relatives and the police yielded no result. On 24.03.2010, P.W.6 Upendra Paswan heard gossip in the village that accused Mithun Paswan and Tuntun Paswan had killed Laxman Paswan because of incident of the slapping Mithun by P.W.2 Gopal Paswan on account of spitting the ‘Paan’.

(d) Upon getting this information, accused Mithun so also Tuntun were called by the Police Station Officer and they were interrogated. It was revealed that accused Mithun committed murder of Laxman Paswan with the help of Tuntun Paswan. P.W.6 Upendra Paswan received information from the police station and he went to the spot of the incident and found dead body of Laxman Paswan lying in the maize field of Md. Javed. Then P.W.6 Upendra Paswan lodged the F.I.R. in respect of the crime in question at 04.15 P.M. of 24.03.2010 at the spot of the incident which was located near brick road adjacent to the maize filed of Md. Javed situated at Bagras Tola of village- Bela Simri. Accordingly, Crime No.80 of 2010 came to be registered against accused Mithun Paswan as well as Tuntun Paswan for the offences punishable under Sections 364, 302 and 201 of the Indian Penal Code. It was revealed that Tuntun Paswan was below 18 years of age and, as such