Rajeev Ranjan Prasad, J.—The sole appellant in this case is seeking setting aside of the judgment of conviction dated 19.12.2015 and the order of sentence dated 02.01.2016 passed by learned Additional Sessions Judge – I, Gopalganj in Sessions Trial No. 370/2007/Registration No. 1974/2013 arising out of Vijaipur P.S. Case No. 74 of 1994 dated 21.09.1994 registered for the offence under Sections 302/34, 201 and 379/34 of the Indian Penal Code (‘I.P.C.’) read with Section 27 of the Arms Act.

2. By the impugned judgment and order the appellant has been convicted for the charges under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act and has been ordered to undergo life imprisonment and to pay a sum of Rs. 10,000/- as fine. On failure to deposit the fine the appellant shall be liable to undergo an additional period of six months. For the offence under Section 27 of the Arms Act he has been sentenced to undergo three years of imprisonment and a sum of Rs. 5,000/- as fine, in case of failure to deposit the fine he would be required to undergo imprisonment for an additional period of three months. Both the sentences are to run concurrently.

3. The First Information Report (Exhibit-4) has been lodged on 21.09.1994 at 1:30 P.M. by one Chandrashekhar- Gupta, son of Faujdar Gupta resident of the village- Rasulpur, P.S.-Vijaipur, District – Gopalganj. The Sub-Inspector cum Officer-in-Charge (P.W.8) has recorded fardbeyan at 1:30 P.M. on the alleged place of occurrence (P.O.) which is said to be ‘Rasulpur Sareh Jogibaba Asthan’. In his fardbeyan the informant alleged that at about 8:30 A.M. on the same day he along with his brother Subhash Chandra Gupta (deceased) and nephew Bhola Gupta left for his native village Rasulpur as they heard that flood water had entered into their house. His brother Subhash Chandra Gupta was carrying his licensee rifle whereas the informant was himself carrying a single bore licensee gun. At about 9:00 A.M. when they reached near ‘Rasulpur Sareh Jogibaba Asthan’, his brother Subhash Chandra Gupta stopped there watching the fishermen who were indulged in fishing. At this stage, it is alleged that in the meantime (1) Vijay Singh, son of Jangbahadur Singh lashed with rifle (2) Vishwanath Singh son of Jangbahadur Singh with rifle (3) Sanjay Singh, son of late Shivnath Singh with rifle (4) Rajesh Singh, son of Vishwanath Singh carrying a single bore gun, all resident of village Saroopai Tola Khape, P.S. – Vijaipur (5) Bharat Shahi, son of not known with rifle (6) Dharmendra Shahi, son of Bharat Shahi having one single bore gun, resident of village – Saraura P.S. Kotwali Dewariya, District – Dewariya, Uttar Pradesh (7) Ramakant Shah, son of Radha Shah carrying single bore gun (8) Yogendra Shah, son of Radha Shah lashed with a lathi, both residents of village – Marar (9) Majid Miyan lashed with lathi (10) Gorakh Ram, son of not known, village – Babhnauli having lathi in his hand along with 2-3 unknown persons came there. It is alleged that Vijay Singh said “yahi sala Subhash hai bhun dalo” and he fired from his rifle which hit his brother Subhash Chandra Gupta on his back side. Sanjay Singh fired from his rifle which hit on the eyes of Subhash and in the meantime Vishwanath Singh, Rajesh Singh, Bharath Shahi, Dharmendra Shahi, Ramakant Shah started firing from their gun and rifle as a result whereof the body of the brother of the informant was riddled. One Raghubansh Singh who was an employee of Nalkoop Department was going on that way to Nalkoop, his body was also riddled and both the persons died on the spot itself.

4. It is then alleged that when Subhash fell down after receiving the shot, one person of Vijay Singh (co-accused) went there to snatch the rifle from Subhash but he also suffered the firing which hit him and the said person died on the spot. The informant (P.W.5) claims that Sanjay Singh (the appellant) picked up the rifle of the deceased brother of the informant. The informant alleges