The main legal point established in the judgment is the requirement for corroborative evidence and the admissibility of the post mortem report as proof of the cause of death.

HEMANT GUPTA, J.

The present appeal is directed against the judgment dated 26th September, 2011 passed by learned Additional Sessions Judge 1st, Gaya, in Sessions Trial No. 10 of 2011/395 of 2008 (S.J.), convicting the appellant for the offence under Section 302 of the Indian Penal Code and Section 27 of the Arms Act, as also the order of sentence dated 27th September, 2011 sentencing the appellant to undergo imprisonment for life for the offence punishable under Section 302 IPC and rigorous imprisonment for one year for the offence under Section 27 of the Arms Act.

2. The prosecution case was set in motion by Nathun Yadav. He stated that on 2nd October, 1999 at 6.00 AM after he woke up and came to the door to his house then he saw Sunaina Devi, wife of the appellant, opening the drain. Raja Yadav, his brother, asked her not to open the drain but she refused and began to demolish the “Nad”. Raja Yadav tried to prevent her to do so, whereupon Sunaina Devi threw a spade upon him. Raja Yadav received injury on his arm. He asked them not to quarrel with the ladies. At that time, Nadlu Yadav came there. At the same time, Mithilesh Yadav also came down from his house and fired a shot at him with pistol. The shot hit on the neck of Nadlu Yadav. Nadlu Yadav fell down. Then Sukendra Yadav and Madan Yadav came there carrying on lathi and khanti and began to assault him. He received injury on his head. The cause of dispute is said to be 7 decimals of his land in front of the house of the appellant over which he wanted to take forcible possession.

3. On the basis of such statement, an F.I.R. (Ext.2) was recorded and the investigation was set at motion. On completion of the investigation, the accused was made to stand trial.

4. The prosecution examined PW 1 Ram Pravesh Choudhary and PW 2 Mahendra Yadav. But both the witnesses turned hostile. Nathun Yadav, the informant, was examined as PW 3, Shailendra Yadav as PW 4, Kamaldeo Yadav as PW 5, Raja Yadav as PW 6, Kanti Devi as PW 7 were examined in support of the prosecution story, whereas Dr. Arvind Prasad was examined as PW 8 to prove the post mortem conducted by Dr. Ashok Kumar Yadav. On completion of the prosecution evidence, the statements of the accused under Section 313 CrPC were recorded. The accused examined Mithu Yadav, DW 1, in his defence. On the basis of the evidence led, the learned trial court found the appellant guilty of the offence under Section 302 IPC and convicted and sentenced him as mentioned above.

5. Learned counsel for the appellant has argued that all the witnesses are interested witnesses being members of the same family, therefore, their evidence is of interested and unreliable witnesses. It is also argued that the doctor who has conducted the post mortem examination has not been examined nor there is evidence that he was not available or could not be produced without unreasonable delay or expense, therefore, statement of PW 8 Dr. Arvind Prasad, who has identified the handwriting and signature of Dr. Ashok Kumar Yadav will not be sufficient proof of the post mortem report. It is also argued that Investigating Officer has not been examined nor the First Information Report produced in evidence by the informant but has been accepted in evidence by the court subsequently. Because of such legal infirmity, the prosecution has failed to prove the charge against the appellant beyond reasonable doubts.

6. All the witnesses of the occurrence deposed that the occurrence took place early in the morning at 6 O’ clock. At the time, the persons who are residing in the nearby location alone would be available. PW 3 Nathun Yadav, the informant, is the brother of the deceased. Since the occurrence took place outside the house of the informant, his presence cannot be doubted. So as the presence of his younger brother Raja Yadav, whose name was mentioned by the informant in the FIR itself. PW 3 Nathun Yadav deposed the manner of firing shot by Mithilesh Yadav upon Nadlu and that