The test identification report is not substantive evidence and requires corroboration for conviction.

JUDGMENT

A. K. Mishra, J. - The sole appellant has assailed his conviction under Section 302 of the Indian Penal Code (hereinafter referred to as "IPC" in brevity) and sentence to undergo imprisonment for life and to pay fine of Rs.2000/-(Rupees two thousand) in default R.I. for six months by judgment dated 7.12.2010 in S.T. Case No. 161 of 2010 by learned Additional Sessions Judge, Kendrapara.

2. Accusation leading to this prosecution was that on 13.10.2009 at about 7.00 P.M. informant and her husband deceased- Mir Nabi Bux while coming from the medical, in-front of the house of Dr.Acharya, accused Pinku and three others obstructed them and fired from a Mauzer. Informant sustained bullet injury so also her husband deceased Mir Nabi Bux. On being asked Mir Nabi Bux disclosed that assailants were Pinku and his associates. He was taken to hospital at Kendrapara, where he succumbed to his injuries.

The informant, the wife of the deceased, lodged an F.I.R. (Exibit-2) at 11.30P.M. at Kendrapara Police Station resulting registration of Kendrapara Town P.S. Case No. 303 of 2009. In course of investigation the Investigating Officer (in short "I.O.") P.W.11 made inquest over the dead body. P.W.7 and one Dr. Rajib Jena (not examined) conducted postmortem on 5.05.2010. The present appellant was arrested. Test Identification Parade was conducted on 1.06.2010 by the learned Judicial Magistrate, First Class, Kendrapara, his report is Ext.-5/1. Used and unused catridges were seized from the spot. After completion of investigation charge-sheet was submitted in respect of two accused persons, namely, Pinku @ Sk. Salim and appellant Satrughna Barad@ Nilu. Learned S.D.J.M., Kendrapara took cognizance and committed the case to the Court of Session. Further investigation under Section 173(8) Cr.P.C. was pending.

3. Both the accused persons pleaded not guilty to the charge under Sections 302/34 IPC and Sections 25 and 27 of the Arms Act.

4. In order to bring home charge, prosecution has examined 11 witnesses, twelve documents were exhibited including F.I.R., seizure list, zimanama and P.M. report. No evidence either oral or documentary was led in by the defence.

5. P.W.1 is the informant-cum-injured. P.Ws. 2, 4, 6, 8 and 10 are relations of the deceased. P.Ws.3 and 5, two co-villagers, are witnesses to the inquest. P.W.9 is a seizure witness. P.Ws. 1, 2, 9 and 10 are declared hostile. P.W.7 is the doctor who proved postmortem report (Ext.8). P.W.11 is the I.O.

6. Learned Additional Sessions Judge, Kendrapara analyzing the evidence of medical officer P.W.7 and Postmortem report (Ext.8) held that death of deceased was homicidal in nature. Basing upon the T.I. Parade report (Ext.5/1) and evidence of the I.O. P.W.11 held the present appellant guilty under Section 302 I.P.C. while acquitting him of the offence under Sections 25 and 27 of the Arms Act. For want of evidence he acquitted accused Pinku @ Sk. Salim of all the charges.

7. Mr. S.R.Mulia, learned counsel for the appellant submitted that, when the injured P.W.1 had not identified the appellant in the court, the learned trial court has committed error in convicting the present appellant basing upon the T.I. Parade report Ext. 5/1. On his next plank he buttressed that absolutely there is no evidence to connect the appellant with the act of firing to the deceased for which accused should be acquitted of all the charges. He also argued that prosecution has not proved the motive and the weapon of offence is not seized.

8. Mr.K.K.Mishra, learned Addl. Government Advocate supports the judgment.

9. Informant is the injured and has stated that while she was coming with her husband, four persons obstructed them and started firing and her husband was declared dead at Kendrapara hospital. Doctor P.W.7 proved the postmortem report Ext.8 stating that Dr. Rajib Kumar Jena conducted postmortem over the dead body of Mir Nabi Bux in his presence. Postmortem report reveals that the cause of death was due to homicid