Vipul M. Pancholi, J. – The present appeal has been filed by the appellant/convict under Section 374(2) of the Code of Criminal Procedure, 1973 challenging the order of conviction dated 30.03.2016 and order of sentence dated 07.04.2016 passed by learned 1st Additional Sessions Judge, Sitamarhi in S.Tr. No. 188 of 2013 arising out of Belsand P.S. Case No. 126 of 2011, whereby the concerned Trial Court has convicted the present appellant for the offences punishable under Sections 302 read with Section 34 of I.P.C. and under Section 27(1) of the Arms Act, 1959. The appellant has been sentenced to undergo imprisonment for life as also fine of Rs. 20,000/- and in default whereof the appellant has to undergo R.I. for further 6 months. The appellant has further been sentenced for three years and fine of Rs. 10,000/- for the offence under Section 27(1) of the Arms Act and in default whereof, the appellant has to undergo further R.I. for 6 months. All the sentences with regard to the appellant will run concurrently.

2. The prosecution case in brief is as under: –

“On 01.12.2011 at 08.45 A.M., father of the informant namely Hari Shankar Prasad had gone to take betel. All of a sudden, four miscreants namely Upendra Singh, Sudistha Singh, Manikant Singh @ Tunna Singh and Nitish Singh variously armed with pistol came there and seeing his father, one miscreant Upendra Singh order to kill him on which miscreants fired upon his father by their pistols which hited on panjara, left side abdomen, left side arm and right thigh. His father received injuries and fell down. On halla, the miscreants tried to flee away by making firing from their pistol. Two other miscreants were also with them. It is also mentioned in the fardbeyan of the informant that the miscreants have previous enmity with his father due to previous Mukhiya election. The injured was taken to S.K.M.C.H. Muzaffarpur for treatment by the informant, his brother Suresh Gautam and other where he was declared dead by the doctor.”

3. On the basis of the information given by the complainant, F.I.R. bearing Case No. 126 of 2011 came to be registered with Belsand Police Station for the alleged offences punishable under Section 302 read with Section 34 of the I.P.C. and under Section 27(1) of the Arms Act, 1959.

4. After registration of the F.I.R., the Investigating Agency carried out the investigation and during course of the investigation, the Investigating Officer recorded the statement of the witnesses. Dead body of the deceased was sent for post mortem and after the investigation was over, the Investigating Officer filed the charge-sheet against the present appellant.

5. At this stage, it is pertinent to note that the F.I.R. came to be registered against the two named accused and two unknown persons. The present appellant was shown as accused No. 2 in the F.I.R. As the other co-accused were not available for trial, the trial of the present appellant was separated. During the course of the trial, the prosecution had examined 8 witnesses and also produced documentary evidence. Defence has also examined 6 witnesses. Thereafter, further statement of the appellant/accused came to be recorded under Section 313 of the Code of Criminal Procedure, 1973 and after conclusion of the trial, the Trial Court passed impugned order whereby the present appellant/accused has been convicted, as observed hereinabove.

6. As the learned counsel for the appellant was not present, we requested Learned Advocate Mr. Prince Kumar Mishra to assist us and the said Advocate is appointed as Amicus Curiae. We have heard learned Amicus Curiae for the appellant, learned APP Mr. Dilip Kumar Sinha for the Respondent-State and Mr. Sheo Kumar Prasad for the Informant.

7. Learned Amicus Curiae for the appellant, thereafter, referred to the deposition given by PW-1 to PW-3. After referring to the deposition of the said witnesses, it is mainly contended that all the aforesaid witnesses are chance witnesses and their presence at the p