The absence of medical evidence and postmortem report creates reasonable doubt regarding the appellant's conviction for murder under Section 302 IPC.

JUDGMENT :

PER ANANDA SEN, J.

This Criminal Appeal arises out of the judgment of conviction dated 26.08.2016 and order of sentence dated 27.08.2016 in Sessions Trial No. 34 of 2005 whereby and whereunder learned Additional Sessions Judge-III, Chatra convicted the appellant under Sections 147, 148, 302, 323 of the Indian Penal Code and section 27 of the Arms Act and sentenced him to undergo RI for life with fine of Rs. 25,000/- under Sections 302 of the Indian Penal Code, RI for 3 years with fine of Rs. 5,000/-under Section 27 of the Arms Act, SI for 6 months under section 147 IPC, SI for one year under section 148 IPC and SI for 6 months under section 323 IPC.

2. The learned counsel appearing on behalf of the appellant submitted that the prosecution had neither exhibited the postmortem report of the deceased nor examined the doctor who conducted the postmortem. In absence of the postmortem report, it cannot be said that the deceased died a homicidal death. The witness merely stated that the appellant shot the deceased on his head, but the same has not been corroborated by any medical evidence. The incident occurred on 25.06.2004 but there is no document to suggest when the deceased died, though it has been stated that he died on 30.06.2004. It has come in evidence that the deceased was treated in Patna but none of the doctors who treated him in Patna were produced by the prosecution as a witness. It has been further submitted that the murder weapon was not seized nor was examined by the experts. The entire prosecution case that the deceased was shot was false and concocted. From the FIR, prosecution case and evidence of the witnesses it would be clear that the appellant had no intention to commit murder. Dispute of the appellant was admittedly not with the deceased. Further in the evidence it has come that this appellant with the butt of the revolver assaulted the injured witness with whom there was dispute. If the appellant had any intention to commit murder, he could have fired upon the person with whom he was in inimical term and there was no occasion nor intention to shoot the deceased. PW13, the doctor, who examined Mithilesh Kumar, Aarti Devi and Pankaj Kumar, did not find any life threatening injuries on them, which would suggest that there was no intention to commit murder. On these grounds he prays for acquittal.

3. The learned counsel for the State admitted that though the postmortem report and the doctor who conducted the postmortem was not examined, yet the inquest report clearly suggests that the deceased died a homicidal death. Eye-witnesses including injured witnesses stated that the appellant shot the deceased. The learned counsel also argued that from the evidence it is quite clear that admittedly there was no dispute between the appellant and the deceased and the deceased only intervened when fight was going on between this appellant and others, but the appellant shot dead the deceased. The weapon used is a fire arm. There is nothing to suggest that this appellant was a license holder of the said fire arm used, thus the natural corollary would be that the fire arm used was by illegal means, thus offence under the Arms Act is attracted. Thus the appellant has been rightly convicted.

4. The case of the prosecution is based on the fardbeyan of Pankaj Kumar (informant) who stated that on 25.06.2004 at about 6:00 PM he was sitting in his house with his grandfather Dhanu Kahar, when 5-6 persons came and started beating him, his mother, aunt, uncle and Mithilesh Singh. On hearing the alarm, Ashok Kesari along with others came to rescue Pankaj Kumar when Dinesh Kumar Singh fired shot from a firearm upon Ashok Kesari, on his head. Ashok Kesari fell down and became unconscious. He was taken to hospital from where he was referred to Patna for treatment, where he died on 30.06.2004 during treatment. On the basis of fardbeyan of Pankaj Kumar, the F.I.R. of Chatra Sadar PS Case No. 152 of 2004 dated 25.06.2004 was registered un