Point of Law : Murder - Conviction set aside - Trial court has committed gross-error in believing the sole testimony of PW5 and conviction should not have been based on such type of testimony, which could not support the prosecution case at all - Prosecution has failed to establish that recovered empty cartridge from place of occurrence was fired from gun, recovered from appellant and failed to establish that fire of appellant hit deceased and caused his death.

JUDGMENT :

1. This appeal has been preferred by the appellant-Kalyan @ Kallu @ Netrapal Singh against the judgment and order dated 22.11.2017, passed by learned Additional Sessions Judge, Court No.3, Shahjahanpur, in Session Trial No.1087 of 2003 (State vs. Kalyan @ Kallu @ Netrapal Singh) in Case Crime No.91 of 2003 under Section 304 IPC, Police Station-Katra, District-Shahjahanpur, whereby the appellant was convicted under Section 304 (2) and sentenced for 10 years' R.I. and also Rs.10,000/-fine and in default of fine two years simple imprisonment. The appellant has also been convicted under Section 27 Arms Act, 1959, and sentenced for three years imprisonment and Rs.2,000/-fine and in default of fine, six months simple imprisonment. All sentences were directed to run concurrently.

2. The brief facts of the case are that a written-report (Ex.ka1) was submitted in the police station by the informant Ramvir Sharma. It was stated in written-report that on 27.4.2003, there was marriage of a girl in the family of Rajendra Singh in Village-Chavarkhas, P.S.-Katra, where his father went for Erudition (Panditai). Accused-appellant Kalyan was also there from the side of bride. At the time of dwarchar, appellant was making fires from his licencee-gun, out of which one fire hit the shoulder of his father and he died on the spot. The occurrence took place at about 9:00 p.m. It is also stated that informant was on duty as Home-Guard in Bareilly and on getting the information of his father's death, he went to the police station on the next day and submitted the written-report. It is also stated that the occurrence was seen by many people of village, who were present in marriage.

3. On the basis of above written-report, Case Crime No.91 of 2003 was registered under Section 308 IPC against appellant-Kalyan s/o Gajraj Singh. The inquest report of deceased (Ex.ka3) was prepared on 28.4.2003 and injury on his right shoulder was found. Subsequently, dead-body was sent for postmortem, which was conducted in District Hospital Shahjahanpur on 29.4.2003 and antemortem injury of entry wound of fire-arm measuring 8cm x 7cm on the right side of chest below the shoulder was found. Antemortem injury was said to be the cause of death of the deceased-Rati Ram.

4. After completion of investigation, Investigating Officer submitted charge-sheet against appellant under Section 304 IPC and under Section 27 Arms Act, 1959. Learned Chief Judicial Magistrate, Shahjahanpur, committed the case to the court of session under Section 304 IPC and charge was also framed under Section 304 IPC by trial court. After completion of trial, the trial court convicted and sentenced the appellant under Section 304 (2) IPC and Section 27 Arms Act, 1959. Hence, this appeal.

5. Heard Shri Veerendra Kumar Shukla, learned counsel for the appellant, Shri B.A. Khan, learned AGA for the State and perused the record.

6. Learned counsel for the appellant argued that appellant has been falsely implicated in this case; there was no motive for the appellant to commit the crime as alleged by prosecution. He submits that appellant had no enmity with the deceased, therefore, there was no reason with him to commit such crime. Submission of counsel for the appellant is that three witnesses of fact are produced by prosecution. Ramvir Sharma (PW1) is the son of the deceased, but he was only informant and it was admitted case of prosecution that PW1 was not present on the spot at the time of occurrence. He was doing his duty as Home-Guard at Bareilly and on getting information of death of his father, he came from Bareilly on the next day and lodged the first information report. Therefore, PW1 has not seen any occurrence. Hence, his testimony cannot be believed on the point that appellant killed his father. It is next submitted that Smt.Neelu Singh (PW3) is another witness of fact, who has been produced by prosecution as eye-witness, but she has not supported the prosecution version in her statement and said