M.L. VISA, SADANAND MUKHERJEE, JJ.

(1.) This appeal is directed against the judgment dated 22.9.2001 and order dated 24.9.2001 passed, by 1st Additional Sessions Judge, Begusarai in Sessions Trial No. 168/97 convicting and sentencing the sole appellant Dashrath Sah to life imprisonment under Section 302 of the Indian Penal Code (for short, IPC) and R.I. for 2 years under Section 27 of Arms Act but ordering both the sentences to run concurrently.

(2.) The case of prosecution as disclosed in the fardbeyan is that on 17.2.1997 at about 4 p.m. Sanjeet Rajak aged about 12 years, son of informant Rashmani Devi (PW 8) came to his house from school and after some time he left the house for going to Agapur Kothi Pethiya. Some time thereafter Guddu Rajak (PW 3) came running to the house of informant and informed her that appellant Dashrath Sah had shot her son dead and appellant fled away. Informant went running to Pethiya where she found her son lying dead on road with fire arm injury on his chest. She started crying there and in fardbeyan she claimed that a number of persons had seen the occurrence and for some dispute appellant committed the murder of her son. On the basis of fardbeyan (Ext. 4) of informant formal FIR (Ext. 5) under Section 302, IPC and 27 of Arms Act was drawn and after investigation police submitted charge-sheet under Section 302 IPC and 27 of Arms Act, cognizance was taken and case was committed to the Court of session where charges under the aforesaid heads were framed and on denial of charges by appellant he was put on trial and was found guilty and. was convicted and sentenced as indicated above.

(3.) The case of appellant as it appears from the evidence of defence witnesses examined and from the trend of cross-examination of the witnesses examined on behalf of the prosecution is that a cow of Guddu Rajak (PW 3) had entered the field of appellant and had damaged his crop by grazing for which a panchayati was held in which Guddu Rajak was fined a sum of Rs. 10/- and for this reason Guddu Rajak got the appellant implicated in this case. Two witnesses have been examined on behalf of the defence.

(4.) In order to prove its case, the prosecution has examined 10 witnesses. Rashmani Devi (PW 8) is informant. Guddu Rajak (PW3) is the only eye-witness to the occurrence. Ramesh Rajak (PW 1), Ganesh Rajak (PW 4), Budhu Rajak (PW 5) and Ramashish Rajak (PW 6) are hearsay witnesses. Dhanraj Rajak (PW 7) has not supported the case of prosecution and he has been declared hostile. Ashok Kumar Sharma (PW 9) is the doctor who held autopsy on the dead body of deceased. Dashrath Paswan (PW 10) is 1.0. of this case.

(5.) Ashok Kumar Sharma (PW 9) has stated that on 18.2.1997 he was posted as Civil Assistant Surgeon, Sadar Hospital, Begusarai and he had held post-mortem examination on the dead body of Sanjeet Rajak and found wound of entry on the left side of chest on 5th inter costal space iTT x 1/2 communicating to chest cavity with burn and inverted margin and on dissection a bullet was removed from 4th inter costal space on left side of mid-axillary bone. According to him, the death was due to shock and haemorrhage caused by fire arm injury and time elapsed since death was within 6 to 24 hours. He has proved his post mortem examination report (Ext. 2). His evidence establishes the fact that death of deceased was homicidal.

(6.) Guddu Rajak (PW 3), the solitary witness to the occurrence, has said that at the time of occurrence he was at Pothiya and he was alone there when appellant fired from his pistol hitting on the left side of chest of deceased and thereafter appellant fled away towards east and deceased fell down and died. He has further said that he informed this fact to the mother of deceased after going to her house. Contradicting this evidence in para 8 and 9 of his cross-examination he has said that when he left his house Ramashish Rajak (PW 6). Ganesh Rajak (PW 4), Ramesh Rajak {PW 1), Butel Rajak (PW 2) and Dhanraj Rajak (PW 7) were with him and when they all reached the place of occurrence, they saw the deceased lying down dead and blood was oozing from his body and by that time a number of persons had surrounded the deceased and he remained there for about 10 minutes and thereafter he and his aforesaid companions returned back. He has further said that when he reached the place of occurrence he did not see the appellant and he also did not see the appellant running away. This witness is said to be eye-witness to the occurrence and from his aforesaid evidence it is clear that his evidence in examination- in-chief that appellant fired from his pistol hitting on the chest of deceased has been completely demolished in his cross examination when he has clearly stated that he did not see the appellant at the place of occurrence and when he reached there he found the deceased lying dead.

(7.) Rashmani Devi (PW 8), informant, is mother of deceased and in her evidence she has said that on the day of occurrence at about 4.30 p.m. her son came from school and after some time he went to Agapur Kothi Pethiya where he was taking gram with Guddu Rajak (PW 3) appellant fired from his pistol on his chest and her son died there. She has further said that Guddu Rajak (PW 3) came running to her house and informed her about the aforesaid incident and she also went running to Pethiya and in the way she saw appellant running away with pistol and when she reached Pethiya she found her son lying dead on road with bleeding injury on his chest. Admittedly, she is not eye-witness to the occurrence and on the point of her evidence that after hearing the information of incident from Guddu Rajak she was going to Pethiya and in the way she saw the appellant running away with pistol, her attention was drawn by prosecution that she had not stated this fact in her statement made before 1.0. which she denied but then evidence of Dashrath Paswan (PW 10), 1.0., in para 13 of his evidence shows that she neither in her fardbeyan nor in her restatement before him stated that when on receipt of information from Guddu Rajak she was going running to Pethiya, in the way she saw the appellant running away with pistol.

(8.) Ramesh Rajak (PW 1), Butel Rajak (PW 2), Ganesh Rajak (PW 4), Budhu Rajak (PW 5) and Ramashish Rajak (PW 6) all have said that they were informed by Guddu Rajak (PW 3) that appellant had fired from his pistol on the chest of the deceased. Out of these witnesses PW5 1 and 2 have said that they had seen the appellant running away with pistol whereas PW5 4, 5 and 6 have said that they did not see the appellant. PW 2 in his cross-examination has said that he had not seen anybody running away from the place of occurrence which contradicts his evidence in examination-in-chief that although he had not seen the appellant firing on deceased but had seen him running away. Dashrath Paswan (PW 10) in para 12 of his evidence has said that PW 1 had not stated in his statement made before him that he had seen appellant running away towards east carrying a pistol. So the evidence of PW 1 in Court that he had seen the appellant running away carrying a pistol towards east also does not seem to be trustworthy. The informant in her evidence has stated that her deceased son was student of Class-VIlI of Mansur Chauk High School and on the day of occurrence after attending the school he had come to her and after remaining for some time in the house he left for Pethiya where he was killed. Kusheshwar Jha (DW 2) is Incharge Headmaster of Mansur Chauk High School and he has proved entries in the admission register of the school from 1997 to 2000 (Ext. A) and has said that name of deceased is not amongst the list of students who were admitted during the aforesaid period. He has further proved attendance register of all 4 sections of Class-VIlI of the year 1997, marked Ext-B to B/3 and has said that there was no student in Class VIII in the year 1997 with the name of deceased. Prem Kumar Choudhary (DW 1) has said that on 20/1/1997 cow of Guddu Rajak had entered the field of appellant and had caused loss to appellant by grazing his crop for which a panchayati was held in which Guddu Rajak was asked to pay a sum of Rs.10.00 by compensation of loss to appellant. According to the defence, this is a motive for false implication of appellant by Guddu Rajak.

(9.) Considering the entire evidence on record we find that Guddu Rajak who is said to be solitary witness of occurrence has not stated any where in his evidence that he told about the incident to PW5 1, 2, 3, 4, 5 and 6 who are hearsay witnesses and claiming to have received information of incident from Guddu Rajak. Apart from this, the evidence of Guddu Rajak also does not inspire confidence that he is an eye-witness because of his evidence in cross-examination that when he reached the place of occurrence he saw the deceased lying dead.

(10.) Considering the evidence on record we find that prosecution has not been able to prove its case against the appellant beyond all reasonable doubts.

(11.) In the result, this appeal is allowed. The judgment and order of the Court below convicting and sentencing the appellant is hereby set aside. Since the appellant is in jail custody issue release order forthwith for release of appellant from jail custody if not required in any other case. Appeal allowed.