The prosecution must prove charges beyond reasonable doubt; unreliable eyewitness testimony, especially from near relatives, cannot substantiate a conviction.

JUDGMENT :

VIPUL M. PANCHOLI, J.

The present appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as ‘Code’) against the impugned judgment of conviction dated 08.06.2018 and order of sentence dated 13.06.2018, passed by learned Additional District and Sessions Judge-IInd, Munger, in Sessions Trial No.241 of 2017, arising out of Kasim Bazar P.S. Case No.81 of 2017, whereby the concerned Trial Court has convicted and sentenced the present appellant for the offences punishable under Section 302 of the INDIAN PENAL CODE and also imposed a fine of Rs. 2,000/- and, on failure to deposit the same, the appellant shall serve simple imprisonment for three months. Further, the appellant shall have to undergo three years of rigorous imprisonment and fine of Rs. 2,000/- for the offence punishable under Section 27 of the ARMS ACT and, in default of payment of fine, he shall have to undergo simple imprisonment for three months.

FACTUAL MATRIX:

2. The prosecution story, in a nutshell, is as under:-

2.1. Fard-beyan of Savita Devi, wife of Sushant Kumar @ Fantush Yadav (deceased) came to be recorded on 15.04.2017 at 07:00 A.M. In the said fard-beyan, the informant has mainly stated that her husband Fantush Yadav returned to house at around 01:00 A.M. in the night after watching day-night cricket match in the village and called her to open the gate, when she opened the gate, she saw that her elder brother-in-law (bhaisur) Sunil (appellant herein) and Khabri were standing there having pistol and cartridge. Sunil and Khabri shot at her husband in her presence. Her husband died there. When she started weeping, Sunil closed her inside the room and threatened her not to make noise else she and her children will be killed. It is further state in the fard-beyan that when she came out of the house after the door was opened, villagers and police were present there. Who opened the door, she does not know. On the basis of the aforesaid fard-beyan given by informant (Savita Devi), formal FIR came to be lodged in Kasim Bazar Police Station at 09:30 A.M.

2.2. After registration of the F.I.R., the Investigating Agency carried out the investigation and, during the course of the investigation, the Investigating Officer recorded the statement of the witnesses and collected the necessary evidence. Prior to that inquest report was prepared on the spot and dead body of the deceased was sent for conducting the post mortem. The Investigating Officer arrested the accused/appellant herein and thereafter filed the charge-sheet against the appellant/accused before the concerned Magistrate Court. As the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the same to the Sessions Court under Section 209 of the Code, where the same was registered as Sessions Trial No.241 of 2017.

2.3. At the trial, the prosecution examined eight witnesses and also produced documentary evidence. The defence also examined three witnesses. Thereafter, further statement of the accused was recorded under Section 313 of the Code and after completion of the trial, the Trial Court passed the impugned judgment and order against which the appellant has preferred the present appeal.

3. Heard Mr. Ashutosh Nath assisted by Mr. Nishant Kumar Sinha, learned counsel for the appellant and Mr. Sujit Kumar Singh, learned APP for the Respondent-State.

SUBMISSIONS ON BEHALF OF THE APPELLANT:-

4. Mr. Ashutosh Nath, learned counsel for the appellant referred the deposition of the prosecution witnesses as well as defence witnesses. Learned counsel would mainly submit that the prose