JUDGMENT

Reserved on: 07.08.2024 Pronounced On:19.08.2024 Per Gautam Kumar Choudhary, J. All these appeals arise out of common judgment and sentence passed in Sessions Trial No.41 of 2006 and Sessions Trial No.32 of 2007, by which the appellants have been convicted and sentenced under Section 302/34 of the IPC and Section 27 of the Arms Act, they have been heard together and disposed of by the common judgment.

2. West Singhbhum, Sadar, Gua P.S. Case No.31/2004 was registered on 21.08.2004 under Section 307/34 of the IPC and 25(1-B), 26, 27 of the Arms Act on the basis of the statement of Arun Prakash Srivastava (deceased)

recorded at General Hospital, Kiriburu.

3. As per the FIR, informant was living in the house of Subhash Gupta with his step sister Guriya @ Binita Srivastava. He had an old land dispute with his cousin brother Anup Srivastava (appellant). On 21.08.2004, when he was at his home, his step brother Anup Srivastava came along with Danial Pal and Ravi (appellants) and started abusing him with respect to the land dispute and also entered into physical altercation with him. When he opposed this, his step brother took out his revolver and fired at him, as a result he sustained bullet injury over his stomach. Thereafter, the accused persons fled away from the place of occurrence.

4. On the basis of the fardbeyan, FIR was registered against all these appellants. During course of treatment, informant died on 11.09.2004 thereafter, Section 302 of the IPC was added in the FIR. Police on investigation, found the case true and submitted charge sheet. After cognizance and commitment, the appellants were put on trial for offences under Section 302/34 of the IPC and Section 27 of the Arms Act and were convicted under these Sections.

5. Judgment of conviction and sentence has been assailed by the learned counsel on behalf of appellants on the ground that none of the prosecution witness have claimed themselves to be an eye witness to the incidence and the judgment of conviction has been passed only on the basis of the FIR which has been treated as a dying declaration. Most of the witnesses have been declared hostile and have not supported the allegations against the appellants.

Furthermore, it is argued that the deceased died 20 days after the said incidence and it was not proved that the death was caused by fire arm. Autopsy Surgeon (P.W. 7) has deposed that death was due to septicemia. Thus, it was not proved that death was caused by gunshot injury.

6. It is further argued that FIR cannot be treated as dying declaration in view of the ratio laid down by the Apex Court in Mannulal Sahu & Another Versus State of Madhya Pradesh, (2005)10 SCC259. There was no certificate from the Doctor about the capacity of the patient to make the said statement before the police.

7. It is argued by the learned counsel on behalf of appellant - Danial Paul and Anuj Kmar Gupta @ Ravi @ Guddu that they had no enmity with the deceased and no overt act has been attributed to them. Allegation of firing is solely directed against appellant Anup Srivastava. Without any element of participation, mere presence by itself, is not sufficient to fix criminal liability with the aid of Section 34 of the IPC.

8. Learned A.P.P. has defended the judgment of conviction and sentence. It is argued that the deceased died of gunshot injury, will be evident from the post- mortem report in which the features of the injury are very much compatible with fire arm injury.

ANALYSIS

9. Prosecution case is about fratricidal death of the informant in the hand of appellant – Anup Srivastava. As per the FIR, he was living with his step sister as tenant in the house of Subhash Gupta. Appellant – Anup Srivastava came along with the other two appellants, entered into a hot exchange with the deceased and thereafter, he took out his revolver and fired at the deceased.

10. On the factum of incidence, PW-1 has deposed that the incidence took place two years ago on 21st August 2004. He received informa