Ashutosh Kumar, J. – We have heard Mr. Ramakant Sharma, the learned Senior Advocate for the appellants and Mr. Ajay Kumar Thakur, the learned Advocate for the respondent/ informant. The State has been represented by Mr. Sujit Kumar Singh, the learned APP.

2. Both the appellants, who are own brothers have been convicted under Sections 302/34 and 387 of the IPC and Section 27(1) of the Arms Act vide judgment dated 12.08.2016 passed by the learned Sessions Judge, Begusarai in Sessions Trial No. 588 of 2014 and vide order dated 22.08.2016 and sentenced to undergo imprisonment for life for the offence under Section 302/34 of the IPC and R.I. for five years for the offence under Section 387 of the IPC. The appellants have further been sentenced for imprisonment for one year for the offence under Section 27(1) of the Arms Act. The sentences, however, have been ordered to run concurrently.

3. One Chunchun Kumar Singh is said to have been shot, at leading to his death, by the appellant no. 2/ ManiKant @ Fucho Mahto. As noted above, the other appellant/Shashikant @ Lucho Mahto is the own brother of Manikant @ Fucho Mahto.

4. The allegation against them is of having killed the deceased for non-payment of protection money of Rs.5,00,000/- which was earlier demanded of the deceased. The FIR was lodged by the father of the deceased viz. Bindeshwari Prasad Singh (P.W. 5). In his fardbeyan which was recorded at Sadar Hospital, Begusarai, it has been alleged that on 16.08.2014 at about 2 ‘O’ clock in the day while he and his son Chunchun Kumar Singh (deceased) was getting the godown of the gas agency constructed, the appellants came on a motorcycle from the eastern side. Appellant/Shashikant @ Lucho Mahton was driving the motorcycle. Appellant/Manikant @ Fucho Mahton is said to have taken out a pistol from his pocket and fired at the deceased which hit in him at his chest. After the occurrence, both the appellants fled away towards Mahna. On the cries raised by P.W.5, many persons from the neighbourhood including labourers who had been working there, arrived. P.W.5 claims to have got his own car from his house on which the deceased was taken to Begusarai Hospital but there he was declared dead. The reason for the occurrence as stated by the P.W5 in his fardbayan is non-payment of protection money by the deceased to the appellants.

5. On the basis of the aforenoted fardbayan statement, a case vide Barauni (Refinary) P.S. Case No.352 of 2014 dated 16.08.2014 was instituted for investigation for the offences under Sections 302, 387, 34 of the IPC and Section 27 of the Arms Act.

6. The police after investigation submitted charge-sheet whereafter cognizance was taken and the case was committed to the Court of Sessions for trial.

7. The learned Trial court, after having examined eight witnesses on behalf of the prosecution and four on behalf of the defence, convicted and sentenced the appellants as aforesaid.

8. Mr. Sharma, the learned Senior Advocate appearing for the appellants has submitted that though the informant (P.W.5) claims to be an eyewitness to the occurrence, but from the circumstances which can be seen from the evidence on record, it would appear that he was not a witness to the occurrence. The reason for his saying so is that during the trial, three other persons claimed to be present at the time of occurrence about whom P.W.5 has said nothing in his fardbayan statement. The other reason for doubting that P.W.5 was an eye-witness to the occurrence is that if his son was shot at for not paying the protection money PW5 too, was most vulnerable and was unprotected at that time. The appellants/accused persons would not have been so careless as to spare the father of the slain for him to become an eye-witness to the occurrence. It has further been argued that the falsity of the case would appear from the fact that even though the place of occurrence is about 200 meters away from the local police station, but neither any police party arrived nor a