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The accused were acquitted of the charge under Sections 147, 148, 506B IPC and Section 3(2)(V) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The trial court acquitted accused Suraj from all the charges. Being aggrieved, the appellants have preferred appeal before the High Court which came to be dismissed by the impugned judgment. Being aggrieved, the appellants are before us. Accused Bharat Singh have not preferred any appeal before us.

7. The learned counsel for the appellants inter alia submitted that it is a case of blind murder and that the FIR is ante dated as it contains the Inquest No.10/98 and the eye witnesses were introduced in the FIR which suffers from manipulations. It was submitted that the medical evidence is completely contrary to the evidence adduced by eye witnesses on two counts namely:- (i) number of weapons used and the injuries; and (ii) distance from which the shot was fired. It was urged that as per the FSL Report, there was no suffi cient barrel marks in the cartridge for decisive matching with the pistol allegedly recovered from the appellant Harnam Singh and this raises serious doubts about the occurrence and the involvement of appellant Harnam Singh. It was further submitted that as per the evidence of Babu Lal (DW-1), the incident took place at 03.30 PM and it was a blind murder and the High Court and the trial court failed to take into consideration the evidence of Babu Lal (DW-1). The learned counsel appearing for the appellants Balvir Singh and Bhav Singh urged that the eye witnesses PWs 2, 3 and 13 are not reliable witnesses and the courts below erred in invoking Section 34 IPC for convicting appellants Balvir Singh and Bhav Singh under Section 302 IPC read with Section 34 IPC.

8. Taking us through the impugned judgment and other materials on record, the learned counsel appearing for the State submitted that the conviction of the appellants is based upon the evidence of eye witnesses Santosh Rai (PW-2), Devendra Rai (PW-3) and Kamal (PW-13) which is corroborated by the medical evidence and FSL Report and the conviction of the appellants-accused does not warrant any interference.

9. We have carefully considered the submissions of the learned counsel for the appellants and the State and perused the impugned judgment and the evidence and materials on record.

29. Ext.-P30 is the FSL report as per which the pistol (Article ‘A’) is a country made pistol which was found to be in operative condition and the testing was successfully done. The bullet recovered from the body of deceased Mohan was marked as EB1. In the FSL report, expert opined that the barrel marks found on the cartridge were not sufficient for decisive matching. The FSL report reads as under:-

“Exhibit A1 is one Country Made Pistol, which is made to fire 0.315” bore Cartridge. It is in working condition. It’s Barrel is found to have remnants of firing. It is not possible to say with scientific certainty the last time this was fired. It can be fired to cause injury likely to cause death.

30. Learned counsel appearing for the appellant-Harnam Singh submitted that as per the FSL report, the experts could not give a definite opinion that whether the bullet has been fired from the country made pistol recovered from appellant-Harman Singh or any other similar pistol like the said pistol. It was therefore, submitted that the prosecution has failed to prove that the recovered bullet from the body of deceased has been fired from the pistol (Article ‘A’) and therefore, the overt-act of firing cannot be attributed to appellant-Harnam Singh. In the FSL report, it is stated that bullet was “a fired and partially damaged Copper Cartridge/Soft Point Bullet with blood like substance on the same”. The FSL report further states that the cartridge does not have marks of regular rifling and the barrel marks found are not sufficient for decisive matching. All that the FSL report states is that the barrel marks are not sufficient to give decisive matching. When the case of the prosecution is based on the eye-witnesses, the indecisive opinion given by the experts would not affect the prosecution case.