The main legal point established in the judgment is the reliance on direct testimony of eyewitnesses, corroborated by medical evidence, to establish guilt under Section 302 of the IPC.

Md. Mumtaz Khan, J.

1. This appeal has been preferred by the appellant assailing the judgment, order of conviction and sentence dated September 17, 1993 passed by the Ld. Sessions Judge, Birbhum in Sessions Trial No. 2 of July, 1993 arising out of Sessions Case No. 65 of 1990. By virtue of the impugned judgment appellant was convicted for the commissioning of the offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as I.P.C.) and was sentenced to suffer rigorous imprisonment for life and a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for one year more with a direction that the fine, if realized, be paid to the heirs of the deceased, Panchanan Mondal.

2. The prosecution case, in brief, is that one Haripada Mondal had some landed properties as well as dwelling house at Baliharpur under Md. Bazar P.S. Dist. Birbhum. He had seven sons named Panchanan Mondal, the victim, Dasarath Mondal, since deceased, Provakar Mondal, Dibakar Mondal, the appellant, Nishakar Mondal, P.W.1, Dilip Mondal and Mihir Mondal. After death of Haripada Mondal there was salish in the village and as per the salish the said dwelling house was allotted to Provakar, Nishakar (P.W.1) and Dilip. Thereafter, Provakar transferred his 1/3 rd share to appellant and since then appellant is residing there while P.W.1 and Dilip entrusted P.W.4 and P.W.5 to look after the remaining portion on their behalf. About four number of doors were reported to be missing from the portion of P.W.1 and Dilip. On coming to know about the same from P.W.4, P.W.1 reported the matter to Dilip as also to his elder brother, the victim, to which victim agreed to come to his house.

3. On June 4, 1990 at about 8 A.M. victim came to the house of P.W.1 and therefrom they went to Baliharpur. P.W.6, P.W.7, Prodyut Mondal, since deceased, Monaj Mondal also came there. They reached there at around 9/9.15 A.M. They found the appellant sitting in his grocery shop situated in the ground floor of the dwelling house. Panchanan Mondal, the victim, then asked appellant about missing of the door planks of the house to which appellant became annoyed and went to first floor of the building. Thereafter, he threatened the victim with his licensed gun pointing through a south facing window and suddenly opened fire towards victim which hit the victim on his right chest as a result victim received severe bleeding injuries and fell down on the pucca road and died on the spot.

4. P.W.1, then lodged the complaint (Ext.1) before the Officer-in-Charge, Md. Bazar P.S. On the basis of the said complaint, P.W.15 started Md. Bazar P.S. Case No. 38/90 dated June 4, 1990 against the appellant under Section 302 IPC and took up investigation of this case and thereafter on completion of investigation, on August 18, 1990 he submitted charge sheet against the appellant under Section 302 IPC.

5. Charge was framed on February 15, 1991 under Section 302 IPC and after the appellant pleaded not guilty to the charge, trial commenced.

6. Prosecution examined 17 witnesses and also proved the FIR, seizure lists, inquest report, rough sketch map with index, arms expert report, licence of the gun in question etc., and also produced one double barrel gun along with live as also empty cartridges, some photographs and thereafter on completion of trial and after examining the appellant under Section 313 of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) passed the impugned judgment.

7. Mr. Sudipta Moitra, Ld. Advocate appearing for the appellant submitted that the prosecution has not come with clean hand and did not unfold the actual state of affairs as to the cause of death of the victim and as such conviction and sentence passed by the learned court below is not sustainable in law.

8. According to Mr. Moitra, impugned Judgment, order of conviction and sentence passed by the learned court below are also not sustainable in law as the genesis of the case namely missing of