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In order to test the credibility of the testimony of PW-1, Sri Sagir Ahmad urges that if PW-1 had witnessed this entire scene then he does not appear to have made a correct description in the FIR about the deceased having been shot by the appellant or her death being caused by a fire arm injury. He submits that if PW-1 had seen his daughter having died due to a gun shot injury which would be apparent keeping in view the nature of the injury right on the chest, then it ought to have been mentioned in the FIR and consequently, if this omission in the FIR is evident then the only conclusion that can be drawn is that the FIR had been lodged by the informant without seeing the incident or even the dead body. We have considered the said submissions and having examined his testimony, we find that it is correct that the informant has described his arrival at the scene of occurrence and having seen the fight and assault by sticks going on in front of his eyes. The deceased was shot no where else but at the scene of occurrence, and if that is correct then the arguments of Sri Sagir Ahmad appeals to reason that this fact of the deceased having been shot with a fire arm and having sustained gun shot injury could not have been omitted in the FIR. This therefore, casts a serious and a reasonable doubt about the creditworthiness of the ocular testimony of PW-1 who is the informant. He was therefore not present when the deceased was shot. The theory of having been driven away at the time of an assault does not appear to have been established.

It is a day light incident and further there cannot be a presumption of a body travelling by itself in a severely wounded state from the premises to the mortuary. It is therefore, evident that these circumstances coupled with this part of the testimony of PW-2 fixes her presence at her house having seen her father also in the company of the deceased. It appears that from the statement of PW-2 that she had not left the premises and had come down after her father had given her some money.

Sri Sagir Ahmad then urged that if the ocular testimony of PW-1 and PW-3 has failed and that of PW-2 in having witnessed the offence has been contradicted by the witness herself, then in that view of the matter this raises a reasonable doubt about her presence which stands established from this testimony. Consequently, the appellant cannot be identified as the assailant more so in the background that the prosecution in the FIR and also during trial maintained that there were three persons involved including two of his brothers who have been acquitted.

It is here that the conduct of the appellant and the discharge of burden by the prosecution have to be considered together. As noted above, the appellant has not come forward with any explanation, but the evidence of PW-2 as discussed hereinabove has firmly anchored the presence of the appellant and his suspicious conduct during the period of the incident. The fact that the appellant had given money to the PW-2 remains unimpeached then a presumption can be raised that she had been allured with some errand in order to possibly remove her when the alleged incident took place. The fact remains that PW-2 has stated that she descended the stairs for going outside, but the evidence does not say that after going outside she went away somewhere else. During this period the incident appears to have occurred because PW-2 has categorically stated that when she returned back she found her mother in a lying position. It was for the appellant therefore to explain as to where was he when all this happened, and even otherwise if he was not there then what action did he take or overt act he performed in order to ensure the welfare of his own wife who admittedly had gone to the hospital in a severely wounded state. We do not find any such explanation coming-forth and in our opinion this would not be compelling the appellant or creating any unwarranted stress on him in law so as to volunteer any confession on his part. This circumstance is enough to draw an adverse inference about the conduct of the appellant that he had left his wife in such a grave condition which resulted in her death. Presumption in such matters therefore in the surrounding circumstances lead to the only conclusion, and the only probability that the appellant was present and he must have been the perpetrator of the crime. This does not amount to converting the case from one of ocular testimony to circumstantial evidence. Rather the ocular testimony to the extent of the presence of the appellant remains intact and the surrounding circumstances leave no room for doubt that the appellant was present when the offence had been committed.

The presumption in the present case can be drawn from the ocular testimony supported by the circumstances indicated in the evidence. The existence of material to establish the presence of the appellant is no longer in doubt. The fact that the husband and the star witness of the prosecution who is his own child, strengthens this presumption. The occurrence is of day time and the incident having occurred in the house in the presence of the appellant remains nowhere in doubt. The inference drawn from such ocular testimony and the circumstances nowhere suggests that the body of the deceased was found at some other place. We are therefore satisfied that even though there are discrepancies that raise a suspicion, but it does not raise any reasonable doubt about the participation of the appellant. As a matter of fact, the only figure towards which the needle of suspicion has remained fixed is the appellant.