Heard Mr. DC Roy, learned counsel for the appellant. Also heard Mr. D. Sarkar, learned Public Prosecutor along with Mr. BR Das Roy for the respondent.

2. Against the judgment of conviction under section 304 Part n IPC and sentence of RJ for 7 years and a fine of Rs.500, in default, further RI for 3 months passed by the learned Additional Sessions Judge, Kailashahar, North Tripura on 22.8.96 in ST No.26 (NT/K) of 1992, the convict-appellant preferred this criminal appeal.

3. The prosecution case leading to conviction of the appellant could be precisely depicted as under: One Sri Molla Mia lodged the FIR with Kailashahar PS bearing No. 39/11/88 alleging, inter alia, that on 28.11.88 at about 11 AM while his son Abdul Salem was grazing buffalos near Irani Bazar, someone caused serious gun shot injury on the right chest of his sown with intent to kill him. The injured was promptly shifted to Kailashahar hospital in unconscious condition. The police having registered the case under section 326/307 IPC started investigation. After about 13 days, the injured expired in Kailashahar Hospital (11.12.88). On completion of investigation, Police filed charge sheet against the sole accused-appellant under section 326/302 IPC read with section 27 of the Arms Act. The case being exclusively triable by the Sessions Judge, the learned CJM committed the same and eventually the learned Additional Sessions Judge received the case for trial on transfer. The accused was charged, faced trial under section 304 IPC and also under section 27 of the Arms Act. During trial the prosecution examined as many as 16 witnesses while the defence none. On closure, the accused-appellant was examined under section 313 CrPC. He adduced no evidence and after hearing the arguments, the learned trial Judge convicted the accused with the sentence as aforementioned.

4. According to the prosecution there were two eye witnesses of the incident, they are PW 2 and PW 13. Their statements were recorded by the Investigating Officer (IO) during investigation under section 161 CrPC. That apart, according to the prosecution, the statement of Md Akbar Ali and Sri Eaj AH (PW 2 and PAW 13 respectively) have been recorded by the learned CJM during investigation under section 164 CrPC.

5. During trial the prosecution could not produce any eye witness to the incident. There is no dying declaration of the deceased nor there is any confessional statement of the accused nor any incriminating material was recovered from the possession of the accused-appellant. PWs 3,5 and 6 deposed that on hearing the sound of firing they went to the spot and found Abdul Salem lying on the spot unconscious with bullet injury. Among others, they also found the presence of Akbar Ali, PW 2 and Eaj Ali, PW 13 mere. They did not see the incident. Others are only the seizure witnesses. The prosecution relied upon the testimonies of PW 2 and PW 13 and the learned trial Court having believed the statements of those witnesses recorded by the IO under section 161 CrPC and the statements recorded under section 164 CrPC arrived at the decision convicting the appellant.

6. PW 2 Akbar Ali was declared hostile by the prosecution and he disowned the purported statements recorded under section 161 CrPC by the IO and that contradicted portion of 161 statement of this witness has been put on record by Ext P/2. This witness also deposed that he could not remember whether he made any statement before the learned Magistrate during investigation. However, the statement purportedly recorded by the learned CJM was put on record vide / Ext P/3. In the same manner the PW 13 has been turned to be hostile during trial and disowned his purported statement made under section 161 CrPC and the contradicted portion of the 161 statement of this witness was put on record vide Ext P/l 1. While this witness has been confronted with his 164 statement recorded by the learned CJM he stated that being tutored by the Police Officer he made incorrect sta

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