IMPORTANT POINT
The main legal point established in the judgment is the reliance on the consistency of testimonies, absence of strong evidence supporting the alibi, and absence of a strong motive to falsely implicate the appellant in reaching the decision.

JUDGMENT :

ASHUTOSH KUMAR, J.

1. Heard Mr. N.K. Agarwal, learned Senior Advocate for the appellant and Mr. Sujit Kumar Singh, learned APP for the State.

2. The appellant has been convicted under Section 302 of the IPC and Section 27 of the Arms Act vide judgment dated 07.01.2016 passed by the learned Additional Sessions Judge 1st -cum-Special Judge, Bhabua, Kaimur in Sessions Trial No. 02 of 2009/14 of 2015, arising out of Durgawati P.S. Case No. 87 of 2008 and vide order dated 13.01.2016 he has been sentenced to undergo R.I. for life, to pay a fine of Rs. 10,000/- and in default of payment of fine to further suffer R.I. for one year under Section 302 of the IPC and R.I. for seven years, to pay a fine of Rs. 5000/- and in default of payment of fine to further suffer R.I. for six months.

3. It appears that the learned Trial court has not indicated whether the sentences will run concurrently or consecutively.

4. The deceased (Gulab Sah) is the father of Mithai Lal (PW-4), who is the informant of this case. He has alleged in his fardbeyan recorded on 31.07.2008 in his village that the appellant and others had come to his house in the evening of 30.07.2008 and were abusing the family members. At that time, one Vijay Singh came and scolded the accused persons and sent them back to their respective homes. He has further alleged that the cause for abusing him and others was that he had filed a complaint before the Sub-Divisional Officer, Mohania about a month ago in which notice was issued and served upon one Kamla Sah through a Chowkidar viz. Mahendra Rai. This had infuriated Kamla Sah, who had complained against the informant and others before the accused persons including the appellant.

5. At about 08:00 P.M. on the same day, the deceased was at his house whereas the informant and his nephew Uday Chandra Keshari (PW-3) also came to rest. Both PWs. 4 and 3 went inside the hut whereas the deceased lay on the cot in the sitting area. At about 11:00 O’ clock in the night, five persons are alleged to have come from the northern direction. They flashed their torches and again started abusing the informant and others. PW-4 claims to have seen the appellant with a torch in his hand and a fire weapon in the other hand. He also saw the appellant firing from 10 feet distance at his father. He identified the other accused persons also who were accompanying the appellant. After the firing was over, PW-4 claims to have come to the place where the deceased had been hit and found him dead. PW-4 could see that the deceased was hit in his chest. The members of the family and of the neighbourhood came. The female inmates of the house started wailing.

6. The PW-4 therefore, has alleged that because of the enmity with respect to a lane and the consequent dispute of ingress and egress, the accused persons including the appellant have killed the deceased.

7. On the basis of the aforenoted fardbeyan of PW-4 Durgawati P.S. Case No. 87 of 2008 dated 31.07.2008 was instituted for investigation under Sections 302/34 of the IPC and 27 of the Arms Act against five accused persons including the appellant. All the five accused persons were chargesheeted and were put on trial.

8. However, the Trial Court after examining six witnesses on behalf of the prosecution and one on behalf of the defence acquitted all other accused persons but convicted and sentenced the appellant as aforesaid.

9. Mr. Agrawal, learned Senior Advocate while defending the appellant has submitted that from the testimonies of informant/PW-4, his nephew/PW-3 and the brother of the deceased viz. PW-2, it would become very clear that none of them had seen the occurrence and it was only because of old enmity that five persons were made accused and out of the five such accused persons, the role of firing was attributed to the appellant.

10. He has further submitted that if there was any enmity which had to be avenged, it was against PW-4 and not against his father, who was an old man and had nothing to do wit