LAKSHMAN URAON, J. - (1.) THE sole appellant Lekho Soren has preferred this appeal against the judgment and order of conviction and sentence dated 23.5.1997 and 24.5.1997 respectively, passed by Sri Nirmalendu Kumar Kanth 'Niraj ', learned 1st Additional Sessions Judge, Giridih, in Sessions trial No. 329 of 1995, whereby and whereunder, he has convicted this appellant under Section 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life, while acquitting other four co -accused, namely Rupu Soren, Hardayal Singh, Ruplal Singh and Totha Singh.
(2.) THE prosecution case has arisen on the fardbeyan of Bagurai Soren (PW 5), recorded on 12.1.1995 at 20.30 hours by S.I.R.L. Tiwary (PW 8), Officer -in -Charge, Bengabad Police Station, at Village Pitch Road, Chapuadih. On that basis formal First Information Report was drawn being Bengabad P.S. Case No. 2 of 1995 and after investigation charge sheet was submitted under Sections 323, 302, 307/34 of the Indian Penal Code and under Section 27 of the Arms Act against this appellant and four others. Subsequently Bengabad. Police Station Case No. 3 of 1995 was registered under the Arms Act and was tried separately. The informant Begurai Soren in his fardbeyan has alleged that on 12.1.1995 at about 4.30 p.m. he along with his cousin brother Mangal Soren (since murdered) was going upwards on the village road and reached in front of the house of Hardayal Singh. On the flank of the road in front of the house of Hardayal Singh, he saw Hardayal Singh, Lekho Soren (appellant), Rupu Soren, Ruplal Singh and Totha Singh, all of village Bathanbari Tola Haritand, Sitting there when they saw the informant and Mangal Soren, they stood up. Appellant Lekho Soren had gun in his hand whereas Rupu Soren had possessed bows and arrows. Lekho Soren fired, causing injury on the back of chest of Mangal Soren and the pellet came out through the chest front side and injured the informant Begurai Soren on his head, causing bleeding injury. Mangal Soren fell down and died at the spot. After shooting at Mangal Soren, Ishwar Soren (PW2) rushed there and chased Lekho Soren (appellant) and caught hold of him. He snatched the gun but Lekho Soren (appellant) managed to escape and fled away towards the Jungal. The alleged occurrence took place only due to old enmity in between the deceased Mangal Singh and the appellant Lekho Soren, who are branches of the same family tree. Charges under Section 27 of the Arms Act and under Section 302 of the Indian Penal Code were framed against this appellant whereas charges under Section 302/149 was framed against the other co - accused namely, Rupu Soren, Hardayal Singh, Ruplal Singh and Totha Singh, who have been acquitted. In order to substantiate the charges, the prosecution examined altogether eight witnesses. Out of them, PW 1 Manoj Kumar, child witness, aged about 12 years, is the son of the deceased and an eye -witness. PW 2 Ishwar Soren, cousin brother of the deceased, is also the eye -witness, who is also a witness of the inquest report and seizure list regarding the seized pistol. PW 3 Sukarmani is the widow of the deceased Mangal Soren and is a hearsay witness. PW 4 Urmila Devi, daughter of the deceased, is also an eye -witness. Informant PW 5 Begurai Soren, eye -witness, is an independent witness. PW 6 Bhupendra Prasad Singh has conducted the autopsy on the dead body of the deceased. PW 7 Sukhdeo Tanti is the Medical Officer, who treated the injured informant (PW 5) and issued injury report whereas PW 8 Ram Lochan Tiwary is the Investigating Officer of this case.
(3.) THE learned 1st Additional Sessions Judge, Giridih, while considering the evidences of the eye - witnesses PW 1, PW 2, PW 4 and PW 5, found them corroborated by the medical evidence of PW 6 and PW 7. He also found that the I.O. (PW 8) in course of his investigation has found the place of occurrence near the house of appellant fired with pistol, which is not a gun. The pistol alleged to have been seized by the I.O. (PW 8) was not produced in course of trial nor it was sent for expert 'sexamination as to whether the bullet or pellet was fired by the said seized pistol. PW7 Sukhdeo Tanti, who treated the injured Bagurai Soren (informant), found injury, simple in nature caused by hard and blunt substance. The injury must have been sustained by the informant due to fall or it might have been self -inflicted to implicate the appellant falsely. On these grounds it was proved that the appeal be allowed, giving benefit of doubt to this appellant and he be acquitted of the charges.;