- (1.) PRAFULLA C. Pant, J. This appeal, preferred under Section 374 (2) of Code of Criminal Procedure, 1973, is directed against the judgment and order dated 04-09-2004, passed in Sessions Trial No. 204 of 2002 by learned Additional Sessions Judge/iii Fast Track Court, Udham Singh Nagar (Rudrapur), whereby appellant Ranjan Sarkar, has been convicted under Sec tion 302 of Indian Penal Code, 1860, and sentenced to imprisonment for life with further direction to pay a fine of Rs. 2,000/- in default in payment of which the appellant is required to un dergo three months further rigorous im prisonment.
(2.) PROSECUTION story in brief is that in the intervening night of 23rd and 24th April 2002, informant P. W. 3 Sona Singh was sleeping with his brothers P. W. 2 Balbeer Singh and P. W. 4 Gurmeet Singh in separate cots in the courtyard of his house. By his side, his father Bariyam Singh (deceased) was also sleeping in his cot. At about 2:00 A. M. , Ranjan Sarkar, with whom de ceased had some litigation relating to a piece of land came along with his one associate. Appellant Ranjan Sarkar then fired a shot from a country made pis tol at informant's father Bariyam Singh. The informant and his brothers chal lenged and made efforts to apprehend the culprits but both of them fled to wards river. The informant P. W. 3 Sona Singh, P. W. 2 Balbeer Singh and P. W. 4 Gurmeet Singh, could see and recog nize the appellant Ranjan Sarkar in moonlight. They also saw his associate to whom they can recognize if he is made to appear before them. The in formant P. W. 3 Sona Singh, soon after the incident, took his injured father Bariyam Singh to Government Hospi tal, Rudrapur where he died on the very day. Thereafter informant Sona Singh (P. W. 3), lodged First Information Report with Police Station, Rudrapur, against the appellant Ranjan Sarkar and his un known associate regarding the offence alleged to have been committed by them, punishable under Section 302 of Indian Penal Code. The report was reg istered as Crime No. 348 of 2002, at 6:17 A. M. on the very day i. e. on 24-04-2002. Thereafter, the police took the dead body in possession and prepared Inquest Report (Ext. A-1) and sent the same for post mortem examination with connected necessary papers. Autopsy was conducted by Dr. Virendra Kumar Dixit (FW. 6) on the same day i. e. on 24-04-2002 at about 1:00 P. M. The Medical Officer at the time of post mortem examination found following ante mortem injuries: 1. Wound of Entry:- Lacerated wound 3cm x 2cm x cavity deep on the back of chest right side 15cm below the lower angle of right scapula-6cm left to strove. Margins inverted. 2. Wound of exit:- Lacerated wound 3cm x 2cm x cavity deep on the left side (Hypochondrium Area) abdomen at 2'o clock po sition about 15 cms from umbili cus upward left side. Margins are Everted. One bullet was plugged in the mouth of wound. On ex ploration of wound of entry, the same was communicating with wound of exit. All the organ in the way found conjested and lac erated. In the opinion of Medical Officer, who conducted the post mortem exami nation, the cause of death was found to be haemorrhage and shock due to ante mortem firearm. injury. After investigation, the Investi gating Officer (PW. 7), submitted charge sheet against the accused Ranjan Sarkar for his trial on the charge of of fence punishable under Section 302 of Indian Penal Code. The charge sheet was registered by concerned Magistrate, who after giving necessary copies to the accused persons as required under Sec tion 207 of Code of Criminal Proce dure, 1973, committed the case to the Court of Sessions for trial. Learned Sessions Judge, after hearing the pros ecution and the accused, framed charge of offence punishable under Section 302 of Indian Penal Code against the accused Ranjan Sarkar (appellant), who pleaded not guilty and claimed to be tried. Then prosecution got examined P. W. 1 Bhola Singh (witness of Inquest Report), P. W. 2 Balbeer Singh (eye-wit ness), P. W. 3 Sona Singh (informant and eye-witness), P. W. 4 Gurmeet Singh (eye-witness), P. W. 5 Ram Kumar Gangwar (Head Constable), who pre pared the check report of First Informa tion Report, P. W. 6 Dr. Virendra Kumar Dixit- Medical Officer who conducted autopsy and P. W. 7 Sub-Inspector Brijesh Kumar Tyagi- The Investigating Officer. In the form of documentary evi dence, Inquest Report (Exh. A-1), First Information Report (Exh. A-2), Post Mortem Examination Report (Exh. A-3), Check Report of First Information Report (Exh. A-4), General Diary (Exh. A-5), Site Plan (Exh. A-6), Memo of recovery of blood stained mattress, mosquito net and lantern (Exh. A-7) and Charge Sheet (Exh. A-8), was got proved by the prosecution. On being confronted with the oral and documen tary evidence adduced by the prosecu tion, the accused Ranjan Sarkar in his examination under Section 313 of Code of Criminal Procedure, 1973, al leged the evidence adduced against him to be false. In the defence, he submitted only copies of revenue papers Khasra and Khatauni paper Nos. 51 B and 52 B, showing that land transferred by the deceased to the appellant had already been recorded in his name. After hearing both the sides, learned Additional Sessions Judge, who tried the case, found Ranjan Sarkar guilty of offence punishable under Section 302 of Indian Penal Code, 1860, and con victed him under said section and sen tenced to imprisonment for life. Ag grieved by which, this appeal has been preferred. We heard learned counsel for the appellant and learned Additional Government Advocate/additional Pub lic Prosecutor and perused the entire record.
(3.) THERE are as many as three eye witnesses of the incident, alleged to have seen the incident which has taken place in the intervening night of 23rd and 24th April, 2002, in the house of the informant where his father Bariyam Singh was allegedly murdered by ap pellant Ranjan Sarkar. P. W. 3 Sona Singh, son of the deceased who is also informant and eye-witness of the inci dent has stated in his examination be fore the trial court that he along with his brothers Balbeer Singh (P. W. 2), Gurmeet Singh (P. W. 4), was sleeping by the side of his father in a separate cot in the courtyard of his house in village Arjunpur. This witness has further stated that apart from moonlight, there was a lantern lighted in the house. Ac cording to this witness, appellant Ranjan Sarkar along with his one asso ciate entered in the house and fired from a country made pistol at his father Bariyam Singh. He further states that he and his brothers made attempts to apprehend the appellant but they fled towards river. The witness further said that when his father was taken to hos pital, he died there on the very day and thereafter he got lodged First Informa tion Report (Exh. A-2 ). P. W. 2 Balbeer Singh is real brother of P. W. 3 Sona Singh (inform ant ). He is also an eye-witness. He has also stated that on the day of incident, apart from the moonlight in the court yard there was a lantern lighted when at about 2:00 A. M. , appellant Ranjan Sarkar with his one associate entered in the house and shot fire at Bariyam Singh (father of this witness ). He further states that attempts were made to ap prehend the appellant and his associ ate but they ran towards eastern side of the village. The witness further states that when his father was taken to hos pital, on reaching there, he died.;