- (1.) This appeal has been preferred by the appellant assailing the judgment and order of conviction and sentence dated 19.12.2000 and 20.12.2000 respectively passed by the learned Additional Sessions Judge, Darjeeling, in Sessions Case No. 14 of 1999. By virtue of the impugned judgment and order learned Additional Sessions Judge, Darjeeling convicted the appellant u/s 302 I.P.C for having committed the murder of his father and awarded him sentence to suffer imprisonment for life and to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for further period of six months and in the event of realisation of fine, 75% of the same shall be paid to the widow of the deceased, Krishna Bahadur Gurung.
(2.) The prosecution case, in brief, is as follows:- On June 13th, 1998 at 20.15 hrs. P.W.7 lodged a written complaint at the Rangli Rangliot P.S., district Darjeeling stating therein that on that day at 15.30 hrs. his brother-in-law, Krishna Bahadur Gurung viz; the victim was hit by his son/appellant by an axe at his house at lower Lamahata Busti causing his death on the spot and the said incident was reported to him by one of the neighbour and appellant's mother. On receipt of that complaint a case being Rangli Rangliot P.S. case No. 11/98 dated 13.06.98 under Section 302 IPC was started against the appellant by P.W.10 and investigation ensued and thereafter on completion of investigation he submitted charge sheet under Section 302 IPC against the appellant. Charge was framed on September 10th, 1999 against the appellant under Section 302 IPC and trial commenced after the appellant pleaded not guilty to the charge. Prosecution examined 10 witnesses including appellant's mother, maternal uncle, younger brother, wife besides the doctor who conducted post mortem examination, Judicial Magistrate who recorded the statement under Section 164 Cr.P.C. of the complainant, the constable who took the dead body for post postmortem examination and in whose presence inquest was made and the I.O. and also produced and proved the complaint, formal FIR, rough sketch map with index of the P.O., statement recorded u/s 164 Cr.P.C., seizure lists, inquest report, postmortem report, FSL report, etc. which were marked Exbts. 1 to 10 and in addition to that one axe, blood stained earth, control earth, polythene bag and wearing apparels of the deceased which were marked Mat. Exbts. I to VI.
(3.) Thereafter on completion of trial and after examination of the appellant u/s 313 Cr.P.C. Ld. Court below found the appellant guilty of the offence u/s 302 IPC and accordingly convicted and sentenced him to suffer imprisonment for life and to pay fine of Rs. 5,000/- in default to suffer rigorous imprisonment for further period of six months. It is submitted by the Ld. Advocate appearing on behalf of the appellant, that the impugned judgment and order of conviction and sentence cannot be sustainable in law for the following reasons:- 1. There is no eyewitness to the incident and the entire case is based on extra judicial confession which cannot be the sole basis for conviction. 2. As per the FIR one neighbour and mother of the accused/appellant informed the incident to the complainant but the name of the neighbour has not been given in the F.I.R. Complainant has also deposed that on the relevant date appellant came to his house and told him about killing of his father but this has not been mentioned in the FIR. 3. PW8 has deposed that Voju and Motilal besides six/ seven persons were present when the appellant reported her about killing of his father but Voju & Motilal have not been examined by the prosecution. 4. The entire evidence of the prosecution is based on the statement of PW7 and PW8 who are brother-in-law and wife of the deceased and are interested witnesses, so cannot be relied on. 5. P.W.10, the I.O. has not stated who identified the weapon of offence and the reported witnesses to the seizure have also not supported the factum of seizure. 6. The blood group of the stains appearing on the axe, wearing apparels and controlled earth has not been determined as per the FSL and serological test report.;