Chandra Shekhar Jha, J.—Heard Mr. Rajendra Narayan, learned Senior counsel appearing on behalf of the appellants and Mr. Binod Bihari Singh, learned Additional Public Prosecutor appearing on behalf of the State in both Criminal Appeal (DB) No. 117 of 2018 and Criminal Appeal (DB) No. 199 of 2018.

2. Both above mentioned appeals are preferred challenging judgment of conviction dated 18.12.2017 and order of sentence dated 22.12.2017, as passed in Sessions Trial No. 107 of 2012/4868 of 2014 (arising out of Chapra Town P.S. Case No. 154 of 2011) passed by the learned Additional Sessions Judge, 9th Saran at Chapra, where appellant no. 1, Nikesh Rai @ Piyush Raj was convicted through Cr. Appeal (DB) No. 117 of 2018 for the offences alleged under Section 302/34 read with Section 120B of the Indian Penal Code and Section 27(1) of the Arms Act and sentenced to imprisonment for life under Section 302/34 and 120B of the Indian Penal Code with a fine of Rs. 50,000/- and also appellant no. 2 namely Shambhu Rai for the offences alleged under Section 120B read with Section 302 of the Indian Penal Code and sentenced to imprisonment for life with a fine of Rs. 50,000/-. Further, to convict appellant Avinash Rai in Cr. Appeal (DB) No. 199 of 2018 for the offence alleged under Sections 302/34 & 120B of the Indian Penal Code and sentenced to undergo imprisonment for life and fine of Rs. 50,000/-, and in case of default to pay fine, further to undergo rigorous imprisonment of six months. He was also convicted under Section 27(1) of the Arms Act and sentenced to undergo rigorous imprisonment for three years with fine of Rs. 5000/- and in failure of payment of fine, further undergo for rigorous imprisonment of six months.

3. Both above criminal appeals heard together and decided through this common judgment.

4. Factual matrix of this case as it springs from written information of the informant, namely, Shashi Bhushan Singh (PW-2) dated 20.07.2011 that his younger brother, namely, Mani Bhushan Singh, proceed from his village “Jhaua Basant” at about 1.00 PM to the house of his friend, namely, Pappu Singh in connection to discuss business matter and thereafter to visit Lucknow by train in evening, in meantime, he received a call at about 3:30 PM from one Chandrashekhar Singh, resident of Ghosh Colony, P.S. Muffasil, Chapra as to come immediately to the house of Pappu Ji, where indiscriminate firing was made, which is still continue, where 3-4 persons received gun shot injuries. On said information, informant (PW-2) went to the place of occurrence and found that his brother Mani Bhushan Singh, his driver Dinesh Yadav, Son of Bhikhari Rai, Resident of Banwari Basant, P.S. Garkha and one Devendra Singh, Son of Late Sudama Singh, Resident of Pipra Thana, Panapur, were found killed due to gun shot injuries. He inquired about the occurrence from Pappu Singh, where he came to know that 4-5 unknown accused persons arrived there equipped with AK-47 rifles, carbine and revolver and opened indiscriminate firing immediately after coming to the room of first floor, where Mani Bhushan Singh, Dinesh Yadav and Devendra Singh were killed. He raised suspicion that the murder of his brother and others were done by Avinash Rai, S/o Jamadar Rai (Appellant/convict), Resident of Banwari Basant, Thana Garakha, Nikesh Rai @ Piyush Raj (Appellant/convict), Son of Laxman Rai, Mahesh Rai, Son of Laxman Rai, Both residents of Ramgarha, P.S. Autar Nagar, Devendra Singh @ Puttu, resident of Banwar, P.S. Daudpur and their associates. Reason for suspicion as explained that all these accused persons were in inimical terms with informant and also with his deceased brother Mani Bhushan Singh as one Sanjay Singh their friend was killed some years back by one Rakesh Rai, who is the brother of co-accused Mahesh Rai. It is further stated that he was named in the murder case of one Mohan Rai, who was Fufa (husband of his father’s sister) of co-accused Mahesh Rai. It is also stated that Rakesh Ra