IMPORTANT POINT
The reliability of eyewitness accounts and dying declarations is crucial for a conviction under Section 302 of the IPC; discrepancies and doubts in witness testimonies can lead to acquittal.

JUDGMENT :

(Ashutosh Kumar, J.)

The facts of this case, notwithstanding the consistent eyewitness account of several witnesses and oral dying declaration of the deceased before such witnesses, surprisingly but disquietingly, do not commend to us that the conviction and sentence of the appellants is justified.

2. We have heard Mr. Ranjay Kumar Singh and Mr. Shankar Kumar, learned Advocates for the appellants, Mr. Manoj Kumar, learned Advocate for the informant and Mr. Dilip Kumar Sinha, learned APP for the State.

3. The appellants have been convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code vide judgment dated 28.02.2017 passed by the learned Xth Additional District and Sessions Judge, Saran at Chapra and by order dated 8th of March, 2017, they have been sentenced to undergo imprisonment for life, to pay a fine of Rs.10,000/-(ten thousand) each and in default of payment of fine, to further suffer simple imprisonment for six months.

4. The amount of fine has been directed to be given to the son of the deceased.

5. The FIR of this case has been lodged by the nephew of the deceased, viz., Shivnath Sah (P.W. 5) who stays in a house contiguous to the house of the deceased where the murder took place in the night intervening between 25th and 26th of July, 2009.

6. In his fardbeyan statement which was lodged by Sub-Inspector Mahesh Kumar (P.W. 10) at the house of the deceased at about 04:45 A.M. on 26.07.2009, it was alleged that at about 12:30 in the night intervening between 25th and 26th of July, 2009, he and others who were sleeping along with him heard the caterwauls of his uncle who had been sleeping in the courtyard of his own house situated next to the house of the informant.

7. When he along with others had arrived there, he saw the appellants and others assaulting the deceased by means of gupti and knife. The appellants, on seeing the informant and others approaching them, ran away by scaling over the wall. The deceased was still surviving and he told P.W. 5 and others that the appellants had attacked him by knife and gupti. The deceased had bled profusely. The informant with the help of others made attempts to take the deceased to the hospital but shortly after the occurrence, he died. P.W. 5 saw injuries on the chest, stomach and shoulders of the deceased.

8. The cause of occurrence as narrated in the fardbeyan is that the deceased had deposed against appellant/Prabhu Rai in a Civil dispute, as a result of which the deceased was done to death by him and his associates.

9. With this fardbeyan of P.W. 5 having been recorded at 04:45 A.M. in the morning of 26.07.2009, the FIR was registered vide Garkha P.S. Case No. 129 of 2009 on 26.07.2009 at 07:45 A.M. for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code.

10. The police after investigation submitted charge-sheet against the appellants and the appellants faced trial.

11. The Trial Court after having examined 14 witnesses on behalf of the prosecution and three on behalf of the defence, convicted the appellants under Section 302 read with Section 34 of the Indian Penal Code and sentenced them as aforesaid.

12. The Trial Court completely relied upon the eyewitness account of P.Ws. 1 to 5 and the oral dying declaration made by the deceased before the aforenoted witnesses. The Trial Court also appears to have taken note of the fact that there was a motive of appellant Prabhu Rai to have killed the deceased along with his associates, viz., the two appellants, both of them are the sons of appellant Prabhu Rai.

13. At the trial, one of the three sons of the deceased, viz., Jay Prakash Sah was examined as P.W. 1. Be it noted that the other two sons of the deceased have not been examined even though according to the prosecution case, they had also arrived on learning about the killing of their father.

14. P.W. 1 has claimed to have seen the actual act of assault from a distance. On that account, he