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The prosecution case in brief is that on 4.1.1982 Ram Pratap Singh deceased resident of village Kharoni P.S. Ajaigarh, District Panna had gone to Collectorate Panna to file reply to a show-cause notice issued to him for the cancellation of his gun licence. While he was at the Collectorate he noticed Om Prakash and Raghvendra who were inimical to him, were shadowing him in the Collectorate. He requested Rajendra Singh PW 14, Chottey Bhaiya PW 15, and Mohd. Tohid PW 16 to accompany him on his return journey as he sensed danger to his life. Ram Pratap Singh the deceased sent Tohid to purchase tickets for Bus with a direction that he should meet him at the octroi Toll barrier on the Ajaigarh Road from where he proposed to take the Bus, thereafter the deceased along with Rajendra Singh, PW 14, and Chhotey Bhaiya PW 15 proceeded on foot to Chungi Chowki, (octroi Post) situate at about two furlongs away from the Collectorate on the Ajaigarh Road. While the deceased, Rajendra Singh and Chhotey Bhaiya were waiting for Tohid near the octroi Post one bus arrived, but the deceased told Rajendra Singh and Chhotey Bhaiya not to travel by that bus as he had apprehension that Raghvendra and his associates may be inside the bus. While they were waiting for Tohid, the deceased went for drinking water from a well which was near the road at the octroi Post. After drawing the water from the well while the deceased was in the process of drinking water at that precise moment gun shots were fired towards him from the Northern side from the Bari boundary, causing injuries to him in his chest and hand. On receipt of injuries the deceased ran towards his associates and fell on a takhat near Rajendra Singh and Chhotey Bhaiya. The prosecution further alleged that Rajendra Singh and Chhotey Bhaiya on hearing the gun shot saw the appellant Brajendra armed with a .315 rifle and Awadhesh armed with a 12 bore gun running away along with an other person named Kailash who was also armed with a gun. Rajendra Singh PW 14 who was armed with a. 275 rifle and Chhotey Bhaiya was armed with a 12 bore gun fired shots towards the assailants. The assailants also fired towards them, but they escaped. On hearing the gun shot fire V.P. Pathak, Sub-Inspector of Police PW 20 accompanied by Constable Lakhan Singh PW 12 rushed to the spot. Rajendra Singh PW 14 gave him information about the incident which was recorded by Pathak, (Dehati Nalishi Ex. P. 12 at 3.10 p.m.). V.P. Pathak, the Sub-Inspector sent the Dehati Nalishi to Kot vali Panna through Lakhan Singh, Constable, for recording the first information report. After holding inquest, Pathak, the Sub- Inspector prepared Panchnama and sent requisition for post- mortem examination of the dead body and he also prepared the spot map Ex. P. 17 on the same day. After completion of investigation a charge sheet was submitted against five accused persons including the two appellants Brajendra and Awadhesh for trial for offences under Section 302 read with Section 34 IPC and under Section 307 read with Section 34 of the Indian Panel Code. Kailash one of the accused was shown absconding. Before the trial court Rajendra Singh PW 14 and Chhotey Bhaiya PW 15 supported the prosecution case as eye- witnesses, they claimed to have witnessed the assault, they further claimed that they had recognised the accused persons. The learned Sessions Judge disbelieved the testimony of these two eye-witnesses, be referred to a number of circumstances which made the prosecution story doubtful, therefore, he acquitted the accused. On appeal by the State Government the High Court disagreed with the reasons recorded by the trial court and placing reliance on the testimony of the eye-witnesses, i.e., Rajendra Singh and Chhotey Bhaiya, it allowed the State's appeal and set aside the acquittal of the appellants and convicted them under Section 302 read with Section 34 of the Indian Penal Code and awarded sentence of imprisonment for life to each of them.

The first information report Ex. P. 12 shows that the occurrence took place on 14.15 hours while the report was lodged at 15.10 hours that is to say within 55 minutes of the occurrence. The evidence on record and the attending circumstances indicate that the first information report was not lodged at 15.10 hours instead it was lodged at about 17.00 hours. Rajendra Singh, PW 14 stated before the trial court that from the place of occurrence he had accompanied the police to Panna Kotwali where he lodged the report and signed the Ex. P. 12. In cross-examination he stated that he had gone to the Kotwali for lodging report in a police van. He further stated that the report had been written by the Police clerk on his dictation, and that the police arrived at the scene of occurrence after an hour of his lodging the first information report. At an earlier stage he had stated that the police had arrived at the place of occurrence at about 3.30 p.m. and thereafter he had accompanied the police to Kotwali for lodging the report. His testimony regarding lodging of the first information report is contradictory. V.P. Pathak, PW 20 Sub-Inspector of police, the investigating officer, stated that it was wrong to say that the first information report Ex. P. 12 was made by Rajendra Singh at Kotwali. According to him he was on duty at Collectorate and there he got the news at about 2.30 or 3.00 p.m. that gun shots were fired at Toll barrier on the Ajaigarh Road, he reached there with few minutes along with Lakhan Singh, Constable. On reaching the spot he wrote Marg intimation drew up panchnama of the dead body and sent the dead body for post-mortem examination and thereafter he recorded Dehati Nalishi Ex. P. 12. He asserted that first information report had been recorded at the place of occurrence. He further stated that Dehati Nalishi was recorded by him after the dead body of the deceased had been sent by him for post-mortem examination which according to the document (Ex. P. 8) was sent at 5.00 p.m. His statement clearly indicates that the first information report was written after 17.00 hours and it was not recorded at the time it purports to have been lodged. There are material contradictions in the testimony of Rajendra Singh PW. 14 and the investigating officer. Since the Sub-Inspector, the District Magistrate and the Superintendent of Police had reached the place of occurrence within few minutes of the incident, the delay in lodging the first information report is highly suspicious. Why this delay when all officers were present, and eye-witnesses were present at the spot and the police station was at a distance of two furlongs. The obvious reason appears to be that the names of the assailants were not known as most likely the alleged two eye-witnesses had not seen the assailants and they were not present at the scene of occurrence, at the time the shooting took place, in all likelihood, they like, others arrived at the scene after the incident. Since names of the assailants were not known the F.I.R. was lodged with delay after deliberation.

In his testimony Dr. Jain, who carried out the post mortem examination of the dead body of deceased Ram Pratap Singh, stated that he found following gun shot wounds:

"Gunshot wound No. 1:

(a) Wound of entrance: One circular wound 5 mm. in diameter present two and a half inch below the left exilla and half inch posterior to left exillary lime.

In the way the bullet had perforated the following organs of the body-The bullet had passed through the lateral side of left 5th-ribe. There was a fracture of lateral side of left 5th ribe. After that the bullet passed through the lower third of left pleura and entered in the left lung and perforated through the lung parindiama. There was through and through (complete) perforation of lower third of left pleura and lung. After exit from the lung, it crossed through the past side of right ventricle of heart. Posterior side of right ventricle of heart was completely lacerated. After exit from the posterior side of right ventricle of heart the bullet passed through the upper border of liver and the whole upper border of liver was completely lacerated.

Gunshot Wound No. 3:

(a) Wound of entrance-3 mm. diameter circular would present 1" above postre-lateral aspect of right wrist. The bullet had passed through the right radius have and the wound of exit was over antro-lateral aspect 1" above the right wrist joint. Wound of exit was circular 5 mm. in diameter."

These injuries could not be caused in the manner and from the place where assailants were alleged to be present at the time of firing the gun shots, and the same are inconsistent with the testimony of the eye witnesses and the site plan. We do not think it necessary to discuss it in detail as the trial court has discussed this question at length and we agree with those findings. According to the testimony of Rajendra Singh and Chhotey Bhaiya PWs, when the deceased got gun shot injuries, he was at a higher level at the well whereas the assailants fired the shots from Bari, which was at lower level by one foot from the road and the well was higher than the road by two or two and a half foot. In this view if shots were fired from Bari, at the deceased who was drinking water in a sitting posture, the injuries in all likelihood would have been from lower part to upper part but Dr. Jain deposed that direction of the injuries caused by bullet was from upper part to lower part and the bullet was ante-posteriorly. In the opinion of the doctor, the person who caused injuries to the deceased was at higher level than the deceased, this is wholly inconsistent with the testimony of eyewitnesses. Though medical expert's opinion is not always final and binding, but in the instant case it corroborates other circumstances which indicate that the eye-witnesses had not seen the actual occurrence.