ORDER :

Shree Chandrashekhar, J.

The sole appellant has suffered the judgment of conviction under section 302 of the Indian Penal Code and the order of sentence of R.I for life with fine of Rs. 10,000/-, both dated 30.06.2011, for committing murder of Nishant Singh @ Kundan Singh.

2. The informant of this case is brother of the deceased. His fardbeyan was recorded at 1:00 a.m. in the intervening night of 28/29.01.2010 at Angarpathra Police Out-Post. In his fardbeyan he has stated that he was informed about the occurrence by Harendra Kumar Yadav, a friend of his brother. He has stated that Harendra Kumar Yadav has informed him that the appellant has fired at Nishant Singh @ Kundan Singh from his pistol due to which he has died. He has further stated that Harendra Kumar Yadav told him that he had accompanied his brother to the house of the appellant and at that time Ajay Kumar Yadav and Saurabh Kumar Batra were also with him. On such facts, the informant on his own account is not an eye-witness. The prosecution has projected Saurabh Kumar Batra-P.W.1, Harendra Kumar Yadav-P.W.2 and Ajay Kumar Yadav-P.W.3 as the eye-witnesses. The mother and father of the deceased were examined as P.W.5 and P.W.8 respectively. Nishant Singh @ Kundan Singh has suffered homicidal death by fire arm injuries is proved by the medical evidence. During the investigation P.W.1, P.W.2 and P.W.3 gave their statement under section 164 of the Code of Criminal Procedure which were recorded by P.W.9 and P.W.10, the Judicial Magistrates. The investigating officer who has been examined as P.W.11 has stated about recording of fardbeyan, inquest report, post-mortem report, seizure of blood-stained soil, pistol and one empty cartridge from the place of occurrence.

3. Mr. A. K. Kashyap, the learned Senior counsel for the appellant has contended that :

(i) P.W.1, P.W.2 and P.W.3 are the planted witnesses,

(ii) place of occurrence is not proved by the prosecution,

(iii) the alleged recovery of pistol and one empty cartridge from the place of occurrence is falsified on acquittal of the appellant in Katras P.S. Case No. 29 of 2010,

(iv) though the incident has taken place in the night and in the neighbourhood several persons are residing but no independent witness has been examined by the prosecution,

(v) the Chowkidaar who has given information about the incident to the police has turned hostile,

(vi) no evidence was led by the prosecution on business of coal by the appellant and the deceased and

(vii) the deceased and the prosecution witnesses have criminal antecedents, and therefore their testimony should be viewed with suspicion.

4. In the above facts, Mr. A. K. Kashyap, the learned Senior counsel for the appellant has contended that the prosecution has failed to connect the appellant with murder of Nishant Singh @ Kundan Singh. The learned Senior counsel for the appellant has relied on the judgment in “Gurpal Singh Vs. State of Punjab” reported in (2017) 2 SCC 365, to submit alternatively that at best the appellant can be convicted for culpable homicide not amounting to murder.

5. P.W.1, P.W.2 and P.W.3 who according to the prosecution are the eye-witnesses have deposed in the court that they had accompanied Nishant Singh @ Kundan Singh to the house of the appellant in the midnight. They have stated that they have seen the appellant firing a pistol shot from close range at Nishant Singh @ Kundan Singh. P.W.1 has stated that on 28.01.2010 at about 9:30 p.m he was gossiping with Nishant Singh @ Kundan Singh and Harendra Kumar Yadav at Naya More chowk. In the meantime after talking to the appellant Nishant Singh @ Kundan Singh told him that the appellant is calling him. On his request he had first gone with him to the house of Ajay Kumar Yadav and thereafter they all had gone to the house of the appellant. He has stated that while he waited with his friends in his vehicle (Xylo) outside the house of the appellant Nishant Singh @ Kundan Singh had gone to meet him. He has seen alte