The court affirmed the reliability of eyewitness testimony, establishing that familial relations do not inherently compromise credibility, and the prosecution proved the appellant's culpability beyond a reasonable doubt.

JUDGMENT

Subramonium Prasad, J. This appeal is directed against the judgment dated 08.04.2009 convicting the appellant of offence under Section 308 read with Section 34 IPC and order dated 13.04.2009 sentencing the appellant to undergo rigorous imprisonment for three years and six months and to pay a fine of Rs.3,000/- and in default in the payment of fine the appellant was to undergo a further period of three months simple imprisonment for the offence punishable under Section 308 and 34 IPC.

2. The facts in brief leading to the present case are as follows:

a) The story of the prosecution is that on 21.09.2003, DD No.19A was recorded at Police Station Mansarovar Park, Delhi that there was a firing in House No.131, Gali No.8 Jagatpuri.

b) SI Bhushan Azad (PW-12) along with Ct. Joginder (PW-10) and HC Amar Singh (PW-4) reached the spot. On reaching the spot, they were informed that one person has been injured who has been shifted to GTB hospital.

c) PW-12, the I.O. along with Ct. Joginder (PW-10) went to the hospital. The MLC of the injured Manoj (PW-1) S/o Chander Kiran(PW-13) was collected. As per the MLC, Manoj (PW-1) received a gunshot injury. After being found fit for giving a statement, the statement of Manoj (PW-1) was recorded. PW-1 stated that on 21.09.2003 at 8:15 p.m. he was going with his uncle Surender (PW-11) on the 100 ft. road. His brother Rahul came there. He asked his brother Rahul to get some eatables and gave him Rs.5/-. Rahul got them the eatables and left. PW-1 stated that when he and his uncle Surender were having the eatables, at that time one motorcycle stopped near them. There were three persons in the motorcycle namely, Pramod Giri, the appellant herein, Dinesh Giri (brother of the appellant) and one person who according to the complainant could be identified. The complainant said that Pramod Giri, the appellant herein exhorted his brother Dinesh Giri to shoot him because he had taken away the motorcycle of the accused which had been financed by some agency. On being exhorted Dinesh Giri took out a gun and fired a shot which missed Manoj (PW-1). The complainant stated that when he started running, Dinesh Giri fired for a second shot which hit PW-1 on his back. When PW-1 shouted, people started gathering and the assailants ran away towards Pari Chowk. It is stated that Rajinder (PW-3) brother of PW-1 brought him to the hospital. On the statement of PW-1, FIR No.300/2003 was registered for offence under Section 307 read with Section 34 IPC. Investigation was conducted. During the investigation, it was stated by PW-13, Chander Kiran, father of PW-1 that accused Dinesh Giri (who passed away during the pendency of the trial) was threatening his son and had asked him to withdraw the case. On the basis of that statement offence under Section 506 IPC was added to the present case.

d) The appellant was arrested on 26.09.2003. Dinesh Giri (since deceased) was arrested on 15.10.2003. Jitender who was identified as the third person on the motorcycle was absconding during the course of investigation. He was declared as proclaimed offender and later on arrested on 16.09.2006.

e) Since Dinesh Giri passed away during the course of the trial the proceedings against Dinesh Giri were abated by order dated 21.07.2006. The case was committed to the Court of learned Sessions Judge. Charge under Section 307 and 34 IPC was framed against all the accused. The appellant pleaded that they are not guilty and claimed trial.

f) To prove their case, prosecution examined 16 witnesses. Two witnesses were examined by the defence.

i. PW-1, Manoj is the