The prosecution must prove guilt beyond reasonable doubt, and reliance on unreliable witness testimony cannot sustain a conviction.

JUDGMENT :

PRADEEP KUMAR SRIVASTAVA, J.

1. Heard learned counsel for the parties.

2. The instant criminal appeal is directed against the judgment of conviction dated 06.03.2006 and order of sentence dated 07.03.2006 passed by learned Additional Sessions Judge, FTC, Latehar in Sessions Case No. 147 of 2005, whereby and whereunder the appellant has been held guilty for the offence under Section 307/34 of the I.P.C. and Sections 27/33 of the Arms Act and sentenced to undergo R.I. for 05 years along with fine of Rs. 2,000/- for the offence under Sections 307/34 of the I.P.C. and R.I. of 02 years along with fine of Rs. 2,000/- for the offence under Sections 27 / 35 of the Arms Act with default stipulation. Both the sentences were directed to run concurrently.

FACTUAL MATRIX

3. The factual matrix giving rise to this appeal, as depicted in the F.I.R., is that on 07.04.2005 at about 8:30 P.M. the informant, after closing his fair price shop, proceeded towards his home and when the informant was behind 50 steps of his home, the appellant along with other accused person intercepted him on the point of firearm and opened the firearm causing injury on his buttock. The informant raised alarm and ran towards his house, but the miscreants managed to fled away.

4. On the basis of aforesaid information, FIR being Latehar P.S. Case No. 31 of 2005 for the offence under Sections 307/34 of the I.P.C. and Section 27 Arms Act was registered.

5. After completion of investigation, the police submitted charge sheet against the accused persons for the aforesaid offences, who have denied the charges levelled against them and claimed to be tried.

6. After conclusion of trial, impugned judgment of conviction and order of sentence has been passed, which has been assailed in this appeal.

7. Learned counsel for the appellant has vehemently argued that there is no iota of reliable evidence laid by prosecution. The witnesses have given self- contradictory statement not confirming the prosecution story as alleged in the FIR.

8. It is further submitted that the injured-cum-informant Ramesh Kumar Gupta (P.W.-1) in his evidence has shifted the absolute liability against the appellant Santosh Gosain stating the reason for assault that the appellant always used to take goods from the shop of the informant on credit and always demanded extortion money from him.

In his cross-examination, the informant has turned the gear in saving co-accused Guddu Buxla by stating that he could not say as to how the name of Guddu Buxla appeared in this case. Therefore, the informant himself has a tendency to involve some accused giving inculpatory statement with motive to absolve the other accused from commission of offence. Therefore, his testimony cannot be said to be wholly reliable.

9. It is further submitted that out of nine witnesses examined in this case, P.W.–2 to P.W.-6 have been declared hostile by the prosecution and not supported the prosecution story at all.

10. P.W.-5 – Sanni Ram – After declaring hostile was cross-examined by learned APP and disclosed that he has not said before the police that he had seen the appellant assaulting the informant causing bullet injuries.

11. P.W.-8 – Udit Manjhi is a Village Chowkidar and formal witness.

12. P.W.-9 Doctor Dilip Kumar, who medically treated the informant, has found the nature of injury to be simple, caused by firearm, which was neither fatal nor dangerous to life.

On that basis, the conviction and sentence for the offence under Section 307 of the I.P.C. cannot be said to be proved