Prosecution must prove assailant identity beyond doubt; unreliable nighttime eyewitness identification during sudden sleep attack, non-IO examination, no recoveries, weak motive justify acquittal under attempt to murder.

JUDGMENT :

Rongon Mukhopadhyay, J.

1. Heard Mrs. Snehlika Bhagat, learned amicus curiae for the appellant and learned P.P.

2. This appeal is directed against the judgment and order of conviction and sentence dated 18-09-2003 (sentence passed on 19-09-2003) passed by Sri Ravindra Nath Varma, learned Sessions Judge, Dumka in Sessions Case No. 117/2000, whereby and whereunder, the appellant has been convicted for the offences under Section 307 IPC and Section 27 Arms Act and has been sentenced to undergo rigorous imprisonment for 10 years for the offence under and rigorous imprisonment for 2 years for the offence under Arms Act. Both the sentences were directed to run concurrently.

3. The prosecution case arises out of the fardbeyan of Sunilal Hansda recorded on 16.08.1999 in which it has been alleged that in the previous night, he along with his family members, after dinner were sleeping when at around 11:00PM, Madan Marandi and Jaisman Marandi had entered inside the house and Madan Marandi had fired at him near his temple. It has been alleged that when the informant raised an alarm, the accused person had fled away. Two years back, a dispute had taken place in a marriage ceremony, which according to the informant was the cause of occurrence.

Based on the aforesaid allegations, Dumka P.S. Case No. 58/99 was instituted under Section 307/34 IPC and Section 27 Arms Act. On completion of investigation, charge sheet was submitted and after cognizance was taken, the case was committed to the Court of Sessions, where it was registered as Sessions Case No. 117/2000. Charge was framed against the accused under and Arms Act which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried.

4. The prosecution has examined as many as five witnesses in support of its case:

P.W.1 Jadu Hansda has stated that on the date of occurrence, he had heard the sound of firing at which he rushed to the house of Sunil and he found Madan and Jaisman fleeing away. When he entered inside the room of Sunil, he found blood coming out from the left ear of Sunil.Sunil had disclosed to him that Madan had fired at him.

In cross-examination, he has deposed that he was the first person to reach the place of occurrence. The injured was not conscious. A quarrel had taken place earlier between Sunil and Madan in the marriage ceremony of the daughter of Jadu Hansda. The distance between the house of Sunil and Madan is 200 feet. Sunil had regained consciousness at 08:00AM. He and the others had stayed put in the house of Sunil the entire night.

P.W.2 Tamar Hansda has stated that the incident is of four years back at around 11:00PM and he was in his house when he heard the sound of firing at which he came out of the house and saw Jaisman and Madan fleeing away. He had thereafter gone towards the house of Sunil where he saw blood coming out from the ear of Sunil. Sunil had disclosed that Madan and Jaisman had fired at him.

In cross-examination, he has deposed that the name of the persons who had fired was disclosed to him by Sunil.

P.W.3 Churki Murmu is the wife of the informant who has stated that on the date of occurrence she was sleeping in her house when Madan Marandi and Jaisman Marandi had entered inside her house and fired at Sunil Hansda.The firing was done by Madan Marandi.

In cross-examination, she has deposed that she was sleeping with the informant when the incident had occurred. Blood had spilled in the mattress and it had also stained her wearing apparels as well as the wearing apparels of the i