Ashutosh Kumar, J.—We have heard Mr. Ramakant Sharma, the learned Senior Advocate for the appellant and Mr. Abhimanyu Sharma, the learned APP for the State.

2. Mr. Sharma has opened his argument with an aphorism that the witnesses may lie but the circumstances will not.

3. He has build up the case of the appellant on this premise.

4. The appellant is alleged to have shot dead the deceased. He has been convicted under Section 302 of the Indian Penal Code and 27 of the Arms Act vide judgment dated 12.07.2018 passed by the learned 1st Additional District & Sessions Judge, Barh at Patna in Sessions Trial No. 457 of 2016 arising out Ghoswari P.S. Case No. 23/2015 and vide order dated 17.07.2018 has been sentenced for R.I. for his life with a fine of Rs. 20,000/- for the offence under Section 302 of the Indian Pena Code and R.I. for three years along with a fine of Rs. 10,000/- for the offence under Section 27 of the Arms Act. In the event of failure to deposit the fine, the appellant has been directed to suffer further rigorous imprisonment for nine months. The sentences have been ordered to run concurrently. The amount of fine collected from the appellant has been directed to be deposited in the State Treasury.

5. The F.I.R. has been lodged by the father of the deceased, who has been examined as PW2 at the trial. He has alleged that on 14.04.2015 at about 2 ‘O’ Clock in the day when he was about to go to the market along with the deceased and PW1, he sent a message to the deceased to come back home as he had gone near Durga Temple situated next to the barn of PW2. When the deceased did not come, then PW2 along with his family members came out of the house at aroun 2.10 P.M. and started waiting for the deceased to come so that he could accompany PW2 as also PW1 to the market. In the meantime, because of the delay, PW2 along with PW1 and others moved ahead and saw that one Kedar Yadav and his son Nitish Yadav (the appellant) were engaged in verbal a duel with the deceased. When PW2 moved a bit ahead, he heard Kedar Yadav order his son Nitish Yadav to kill the deceased. On such exhortation, the appellant (Nitish Yadav) is said to have fired from a close distance near the ear of the deceased which led to his instantaneous death. When PW2 and others again moved forward, they were threatened by the accused persons of dire consequences. The appellant and his father thereafter fled away. By the time PW2 reached the exact place where the deceased had fallen injured, the deceased had already died. Because of the pandemonium at that time, many persons of the neighbourhood arrived and with their help, the dead body was brought to the darwaza of PW2. Later, the police arrived. He has further stated in the fardbeyan that the cause of occurrence is that the appellant and his father wanted the deceased to marry a person of their choice and for that purpose the deceased was abducted but the deceased could anyhow extricate himself from their clutches, which had angered the father and son duo, who had threatened the deceased that he shall be done to death.

6. On the basis of the aforenoted fardbeyan statement recorded 4.30 P.M. by Sub-Inspector of Police, namely, A.K. Singh (not examined), Ghoswari P.S. Case No. 23/2015 dated 14.04.2015 was registered for investigation under Section 302, 115 and 34 of the Indian Penal Code.

7. It appears that after investigation, chargesheet was submitted against both the accused persons but for some reason, which has not been explained either by the appellant or the State, only the appellant (Nitish Yadav @ Nitish Kumar) was put on trial. The Trial Court, after having examined eight witnesses on behalf of the prosecution including the doctor and the I.O., convicted and sentenced the appellant as aforesaid.

8. The conviction of the appellant is primarily based on eye-witness account by Nandlal Yadav (PW2), who is the father of the deceased and Rajeshwar Yadav (PW1), who is the elder brother of the deceased. Two other witne