Rajeev Ranjan Prasad, J. – The present appeal has been preferred for setting aside the Judgment of conviction and order of sentence dated 30.01.2019 and 31.01.2019 respectively passed by learned Additional Sessions Judge, Buxar in Sessions Trial no. 196/2016 arising out of Dumrao (New Bhojpur) P.S. Case no 171/2015 registered under Sections 147, 148, 149, 447, 323, 336, 337, 302 of Indian penal code (in short ‘IPC’) and Section 27 of arms act.

2. By the Judgment under appeal (hereinafter referred to as the ‘impugned Judgment’), learned trial court has convicted the appellant under Section 302 IPC and Section 27 of Arms Act and sentenced to undergo life imprisonment and fine of Rs. 25000/- under Section 302 of IPC and in default of payment of fine the appellant has to undergo imprisonment for six months and he has been been further sentenced to undergo three years rigorous imprisonment and fine of Rs. 1000/- under Section 27 of Arms Act and in default of payment of fine the appellant has to undergo three months of imprisonment. Both the sentences have been directed to run concurrently.

Prosecution story:

3. As per the prosecution story, fardbeyan of the informant Kamaldev Singh (PW -3) was recorded on 26.05.2015 at 13:30 hours by S.I. Devanand Sharma, O. P. Incharge of Naya Bhojpur O. P. at Sadar Hospital. It is stated by the informant that on 26.05.2015 in morning the boys of the informant's village were playing cricket and while playing a dispute arose between them due to which Manoj Yadav caused head injury to the informant's cousin Ramashish Yadav, who was grazing buffalo in fields, by lathi. Thereafter, the informant provided him treatment at local level and they complained to the family members of Manoj Yadav in this regard. It is further alleged that around 9:00 A.M. in morning when the informant’s side were sitting at ‘palani’ (hut made of straw) his villagers namely, Nayan Kumar @ Sadhu Yadav, Bhim Yadav, Jagdish Yadav, Gama Yadav, Upendra Yadav (appellant), Birendra Yadav, Guruj Yadav, Munna Yadav Manoj Yadav, Ramayan Yadav all armed with sticks, bricks and licensee gun came at palani (hut) of the informant and attacked on them with such weapons. It is alleged that due to such assault Birbal Yadav and Ramashish Yadav suffered injuries. In the meantime Jagdish Yadav and Nayan Kumar @ Sadhu Yadav instigated ^^ns[k D;k jgs gks xksyh ekjks** on which Upendra Yadav (appellant) with the licensee gun fired 2-3 shots aiming informant’s son Ajit Kumar who was standing on the roof which hit him and he fell down. Thereafter the villagers started gathering then all the accused persons ran away from the place of occurrence. After this, the informant and other persons rushed to Sadar Hospital Buxar for treatment of his son where doctors declared him dead.

4. On the basis of the fardbeyan (Ext. 5) of the informant (P.W.3) formal FIR bearing No. 171 of 2015 dated 26.05.2015 was registered at Dumrao (New Bhojpur) Police Station under Sections 147, 148, 149, 447, 323, 326, 337, 307 of IPC and Section 27 of Arms Act. After investigation the police submitted Chargesheet no. 281/2015 dated 21.08.2015 and 46/2016 dated 29.02.2016. Whereupon cognizance of the offences was taken by learned C.J.M., Buxar on 16.03.2016 and the records were committed to the Court of Sessions on 21.06.2016 where charges were explained to other accused and the appellant on 20.09.2016 under Sections 147, 148, 323/149, 447/149, 336/149, 337/149 while charge under Section 302/149 IPC was framed against seven (‘7’) accused, a charge under Section 302 IPC and Section 27 of the Arms Act were explained to Upendra Yadav (appellant) to which he pleaded not guilty and claimed to be tried.

5. In this case the prosecution has examined altogether twelve witnesses, they are: –

P.W. 1 Kapildeo Singh

P.W. 2 Ramashish Yadav (Injured witness and cousin of informant)

P.W. 3 Kamaldeo Singh (Informant)

P.W. 4 Birbal Yadav ( injured witness and cousin of informant)

P.W. 5 Dr. Anil Kumar (exami