ORDER

Heard Mr. Shailendra Kumar Singh, learned counsel for the appellants, Mrs. Meena Singh, learned counsel for the informant and learned APP for the State, Mr. Ajay Mishra.

2. The present appeal has been preferred against the judgment of conviction dated 25.02.2025 and order of sentence dated 03.03.2025 passed by the learned Court of Additional Sessions Judge-IX, Kaimur at Bhabhua in Sessions Trial No. 2699/2014 (arising out of Durgawati P.S. Case No.30 of 2006), whereby and whereunder the appellants have been convicted under Section 302/34 of the Indian Penal Code (hereinafter in short referred to as ‘the I.P.C.’) and have been sentenced to undergo rigorous imprisonment for life with fine of Rs.50,000/- and in default of payment of fine, they have been directed to further undergo rigorous imprisonment for two months.

3. The case of the prosecution, in brief, as per the fardbeyan of the informant, Aagre Tiwari, recorded on 04.03.2006 at 2:30 A.M., is that in the night of 03.03.2006, while he was sleeping in the palani in front of his house, his nephew Dharmendra Tiwari (deceased) and his full brother, Shiv Sagar Tiwari, were also sleeping on two different cots in front of the house. At about 1:00 A.M. in the night, while the informant was sitting on his cot to chew tobacco, he heard some sound and he and his nephew also woke up. In the meantime a sound of gunshot firing was heard and the bullet hit his nephew, Dharmendra Tiwari, near his cheek due to which he started screaming. It is further alleged that the informant and his brother, Shiv Sagar Tiwari, along with the injured nephew tried to catch hold of the miscreants and in the meantime the female members of the house also woke up on the sound of the gunshot firing and started flashing torch light from the roof. The accused persons, including these appellants were identified in the torch light who were armed with sticks, while Surendra Tiwari was armed with a country made pistol, who had fired at the nephew of the informant. The informant claims that the present incident had taken palce on account of land related dispute which is going on with the accused persons.

4. The records of this appeal have been placed before this Court to consider the prayer of the appellants for suspension of their sentence and release on bail during the pendency of the appeal.

5. Mr. Shailendra Kumar Singh, learned counsel for the appellants has submitted, at the outset, that out of the nine witnesses examined on behalf the prosecution, PWs- 5 and 6 have been declared hostile as they have not supported the prosecution case, PWs-2, 4 and 7 are not eye-witnesses to the actual incident of firing, but they claim to have seen the accused persons fleeing away in torch light. As far as the evidence of PW-1, Shiv Sagar Tiwari, who is the father of the deceased, is concerned, he has given vivid description of the occurrence which does not seem tenable at all in view of the fact that the time of occurrence was 1:00 A.M., in the dead of the night and the only source of light as alleged by the prosecution is the torch light which was subsequently flashed from the roof and the said torch has also not been seized by the investigating agency, which throws substantial doubt on the very existence of any source of light at the place of occurrence. He further submits that similarly, the eye-witness account given by PW-3, Saheb Tiwari, giving individual details of different accused persons, also lacks credibility in view of the fact that his name does not find mention in the first information report as a witness.

6. Besides arguing that all the witnesses are closely related to the informant and that no independent witness has been examined in this case, the learned counsel for the appellants has also drawn attention of this Court to the fact that there are several investigational lapses making the place of occurrence and the manner of occurrence doubtful, inasmuch as neither any blood has been collected nor any torch h