- (1.) This criminal appeal has been directed against the judgment of conviction and sentence dated 26.09.2007 and 27.09.2007 respectively, passed by the 2nd Addl. Sessions Judge, Godda, in connection with Sessions Case No.08 of 2005 / 01 of 2007, corresponding to G.R. Case No.14 of 1999 arising out of Godda (M) P.S. Case No. 08 of 1999 whereby the appellant has been held guilty for the offence punishable under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act and sentenced to undergo R.I. for life under Section 302/34 of the Indian Penal Code and R.I. for three years under Section 27 of the Arms Act.
(2.) The prosecution case, as it appears from the fardbeyan of Sagar Fariyat recorded on 04.01.1999 at 4.00 hours at Godda (M) Police Station, is that on 03.01.1999 in the evening the informant with his father Gopali Fariyat was returning home after selling sweet meat. On the way they met with appellant and his associates. Since the appellant happens to be brotherinlaw of informant, he told him to accompany but the appellant refused. Thereafter, the informant with his father proceeded ahead. Father of the informant was walking behind. Suddenly, the informant who was walking ahead attracted towards his father after hearing sound of firing. He found his father lying on the ground having gun shot injury and the appellant was seen fleeing from the place. Gopali Fariyat (father of the informant) died at the spot. Informant went to his village and reported the matter to his family members and other villagers. In the early morning at 4.00 a.m. police arrived at the place where dead body was lying and then fardbeyan of the informant was recorded. On the basis of fardbeyan of Sagar Fariyat, Godda (M) P.S. Case No.08 of 1999 under Section 302/34 of the Indian Penal Code was registered. The police, after due investigation, submitted chargesheet and accordingly cognizance was taken and the case was committed to the court of sessions and registered as Sessions Case No.08 of 2005/01 of 2007. The charges under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act were framed against the appellant to which he pleaded not guilty and claimed to be tried. To substantiate the charges the prosecution has examined altogether ten witnesses including the informant and the doctor who conducted post mortem examination. The Investigating Officer has not been examined. The learned Addl. Sessions Judge, placing reliance on the evidence and documents available on record, held the appellant guilty for the offence punishable under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act and sentenced him, as indicated above.
(3.) The appellant has assailed the impugned judgment on the ground that the judgment of conviction under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act has been recorded only on the deposition of PW3 Sagar Fariyat who happens to be son of the deceased. PW1, PW6, PW7 and PW8 have turned hostile and they have not supported the prosecution case. Ramsewak Fariyat PW2 is son of the deceased and he is hearsay witness. He has deposed about the occurrence what was communicated to him by his brother Sagar Fariyat. Lata Devi PW9 happens to be daughter of the deceased and she is also hearsay witness and she has mostly repeated the same fact which was stated by her brother PW2. The Investigating Officer has not been examined. Madan Tiwari PW10 is a formal witness who has proved fardbeyan etc. Now coming to the evidence of PW3 who is informant, it would reveal that he is not an eye witness. He had not seen the occurrence. It is submitted that the informant was walking ahead whereas his father was walking behind. The injury to father of the informant was caused from back. The admitted evidence of PW3 is that they left the market after sun set. The informant was not having any source of light with him at the place of occurrence. He did not say that he had seen the assailant causing injury to his father Gopali Fariyat. He has tried to bring on record the oral dying declaration made by his father but the injuries caused and the circumstances brought on record do not suggest that deceased was in a position to speak a single word. The evidence of PW3 is wholly not reliable and his testimony could not be given weight for holding the appellant guilty for the offence punishable under Section 302/34 of the Indian Penal Code.;