Vipul M. Pancholi.—The present appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C.’) challenging the impugned judgment of conviction dated 12.07.2017 and order of sentence dated 18.07.2017, passed by the learned Additional Sessions Judge-Rosera, Samastipur, in connection with Sessions Trial No. 177 of 2013 (arising out of Rosera P.S. Case No. 207 of 2011 corresponding to G.R. No. 976 of 2011) by which the appellant/convict has been convicted for the offences under Section 302/34 of I.P.C. and 27(1) of the Arms Act and sentenced to imprisonment for life and a fine of Rs.20000/- for the offence u/s 302 of the I.P.C. and, in default of payment of fine, he has been directed to undergo R.I. for 6 (six) months. He has further been sentenced to undergo R.I. for 3 (three) years and a fine of Rs. 10000/- for the offence u/s-27(1) of the Arms Act and, in default of payment of fine, to undergo further 3(three) months R.I. Both the sentences have been directed to run concurrently.

2. Heard Mr. Rajendra Narain, learned Sr. Advocate assisted by Mr. Jagdhar Prasad for the appellant, Mr. Sujit Kumar Singh, learned A.P.P. for the respondent-State and Mrs. Nivedita Nirvikar, learned Sr. Advocate assisted by Mrs. Mira Kumari, Ms. Shashi Priya, for the informant.

3. The brief facts leading to the filing of the present appeal are as under:

“On 01/12/2011 at around 8:00 pm, the informant’s son Chhotu Kumar, aged about 20 years, had gone to the market with her daughter Ritu Devi to buy medicines. At around 08.15 p.m., her daughter Ritu Devi came home crying and shouting that (1) Shashi Mahto, S/o- Umesh Mahto, R/o- Girls High School, Rosera and (2) Amarjeet Kumar Sah, S/o- Suresh Sah, R/o- Lakshmipur, both PS-Rosera, Distt.- Samastipur, have shot bullets in the forehead with a pistol near Ramesh Mahto's wholesale shop (Gaddi) next to the old hospital under Ward No.14, due to which he got seriously injured. Both of them had pistols in their hands. At this, she came running along with other family members and saw her son Chhotu Kumar on the road near Ramesh Mahto's wholesale shop (Gaddi) with a wound on his head which was drenched with blood. When she asked her injured son, he said to her, "Mother, Shashi Mahto and Amarjeet Sah have fired at me." Then, with the help of other family members, she got her injured son admitted in the Sub-divisional Hospital for treatment. But the doctor immediately, assessing the condition to be critical, referred him to Sadar Hospital, Samastipur. They were taking Chhotu Kumar to Samastipur by ambulance, but her son Chhotu Kumar succumbed to the injuries near Sindhiya Ghat bridge. She again returned back in ambulance van to the sub-divisional hospital. Bhola Mahto, S/o-late Vindeshwar Mahto, R/o-Girls High School Rosera, PS-Rosera, Distt.-Samastipur has played the main role in the incident. The reason for the incident is the land dispute with Shashi Kumar Mahto and his family for many years. Last month too, Shashi Mahto had beaten her daughter and her, in connection with which a case was filed.”

4. After filing of the F.I.R., the investigating agency carried out the investigation and, during the course of investigation, the Investigating Officer recorded the statement of the witnesses and collected the relevant documents and thereafter filed the charge-sheet against the accused. As the case was exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions.

5. Learned Senior Advocate for the appellant Mr. Rajendra Narain submits that the prosecution has examined only near relatives of the deceased who are interested witnesses. It is further submitted that P.W. 3 is not an eyewitnesses. However, she was projected as an eye-witness to the incident in question. He has also submitted that the so-called oral dying declaration made by the deceased before P.W. 1 and P.W. 2, who are parents of the deceased, is not required to be believed.