(Rajesh Shankar, J.)

The present appeal has been filed against the judgment of conviction and order of sentence dated 16.12.2008 and 18.12.2008 respectively passed by the Additional Sessions Judge, Fast Track Court-II, Chatra in Session Trial No. 112 of 2006 whereby the appellant herein has been convicted under section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and fine of Rs. 3,000/- and in default thereof, to undergo further imprisonment for six months. The appellant has also been convicted under section 27 of the Arms Act and sentenced to undergo imprisonment for five years and fine of Rs. 1,000/- and in default of the payment of fine, to undergo further imprisonment for two months.

2. The brief facts of the case, as stated in the fardbeyan of the informant Ravindra Bharti (P.W.7) recorded on 18.01.2006 at about 06.30 am, is that on 17.01.2006 at about 9.00 pm, the appellant- Krishna Bhuiyan was quarrelling with his neighbour Raj Kumar Bharti. Gauri Bhuiyan (deceased) intervened in the quarrel and made them understand. Thereafter, both Raj Kumar Bharti and the appellant went from there. On the same day at about 9.30 pm, when Gauri Bhuiyan and his mother were sitting near fire in the street, the appellant Krishna Bhuiyan again came and started speaking loudly. The informant and his neighbours Gora Bhuiyan, Pravesh Prasad and others came there and saw that the appellant Krishna Bhuiyan suddenly fired up on Gauri Bhuiyan with a gun, consequently Gauri Bhuiyan fell down and died. Thereafter, the appellant fled away towards west of the village. The information about the incident was given to the Choukidar of the village.

3. On the basis of the fardbeyan, an F.I.R being Pratappur P.S Case No. 05 of 2006 was registered under Section 302 of IPC and section 27 of Arms Act against Krishna Bhuiyan (the appellant). After investigation, the chargesheet was submitted by the police and charge was framed against the appellant under Section 302 IPC and section 27 of the Arms Act and tried accordingly.

4. The prosecution examined altogether seven witnesses to prove the charge against the appellant. They are- P.W.1- Bhagia Devi, mother of the deceased, P.W. 2- Gora Bhuiyan, P.W. 3- Ramdeo Sao, P.W. 4- Barhanwa Devi, wife of the deceased P.W. 5- Naresh Yadav, P.W. 6- Dr. Bhuneshwar Pd. Singh, who has conducted postmortem on the dead body of the deceased and P.W. 7- Ravindra Bharti @ Birendra Bhuiyan, informant of the case.

5. The learned counsel appearing on behalf of the appellant submits that in the present case, the investigating officer has not been examined by the prosecution, which is a serious lapse on the part of prosecution. It is further submitted that as per the FIR, the occurrence took place at 9.30 pm and there was no electricity in the village, which creates great suspicion of the prosecution case and it may be possible that someone else fired on the deceased and fled away. It is also submitted that P.W. 1 (Bhagia Devi), who claimed to be an eye witness to the occurrence, during examination-in-chief, has totally changed her version during cross-examination. There are material discrepancies and inconsistencies in her statement and as such, she cannot be said to be a reliable witness. It is further submitted that the appellant and the deceased were own brothers and there was no enmity between them. The motive behind the occurrence has also not sufficiently been proved by the prosecution. The witnesses have clearly stated before the learned trial court that there was no quarrel between the appellant and the deceased, rather the quarrel took place between the appellant and Raj Kumari Bharti in which the deceased had intervened only to resolve the dispute.

6. On the other hand, the learned A.P.P. while supporting the impugned judgment of conviction and sentence submits that the prosecution witnesses have fully supported the case of prosecution. P.W. 2, who is also the eye-witness to the occurrence