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The Trial Court by its judgment and order dated 30th November, 1994 acquitted the appellant from the alleged offences mainly on the ground that there are contradictions in the evidence of eyewitnesses to that of medical evidence, prosecution has failed to prove beyond reasonable doubt formation of unlawful assembly with a motive of committing murder of the deceased and also failed to establish that the bullet had been fired with the firearm seized from the appellant.

Dissatisfied with the Judgment of the Trial Court, the State preferred an appeal before the High Court claiming that the judgment of the Trial Court is perverse and illegal inasmuch as it did not appreciate the prosecution evidence in right perspective and ignored the evidence of the eyewitnesses. The High Court, on a reanalysis of evidence of prosecution witnesses and other material available on record came to the conclusion that the Trial Court was right in acquitting the other co-accused persons but found fault with the acquittal of the appellant under Section 302 IPC. The High Court, therefore, partly allowed the appeal by confirming the judgment of the Trial Court in respect of the charge under Section 148 and convicted the appellant herein for the offence under Section 302, IPC and sentenced him to undergo imprisonment for life. Aggrieved by the Judgment of the High Court, the appellant approached this Court in appeal.

Learned counsel for the appellant submitted that the Trial Court rightly acquitted the appellant, after elaborately considering the evidence on record, upon coming to the conclusion that there is lack of credibility in the testimony of the prosecution witnesses, and, in particular, the medical and ocular testimonies are conflicting; there was considerable delay on the part of Investigating Officer in recording the evidences of alleged eyewitnesses inasmuch as statements by none of the eyewitnesses were recorded on the day of occurrence of the incident.

Learned counsel further urged that as per the site plan prepared by the Investigation Officer and also as per the medical evidence, the deceased Jagannath Singh was standing when he was shot. According to the medical report, the injuries sustained by the deceased are possible only when the assaulter stands at a height above the victim. Contrary to this, the case advanced by the prosecution, coupled with the evidence of alleged eyewitness, is that the appellant was standing on a lower level and the deceased was standing on a higher level i.e. on the platform. In his statement Madho Singh (PW 9) categorically mentioned that the deceased was sitting on the platform (Chabutara) and the appellant was standing on the ground, when he was shot. While the medical report indicated that the margins of the wounds were inverted and the bullet must have been fired from a distance of within 6 feet, and as per the testimonies of the direct eyewitnesses, the said distance varied between 12 to 22.5 feet. The absence of human blood at the alleged place of incident i.e. on the platform and presence of blood on the ground in front of the platform further renders the prosecution’s case even more doubtful. This blood also could not be matched with that of the deceased and therefore, recovery of weapons is of no relevance. Simply for the reason that the post-mortem report indicated that the deceased had died due to one single gunshot, and mere recovery of nine empty cartridges from the appellant does not in any way connect him with the crime, when the empty cartridges were not recovered from the place of incident and also in the absence of authenticated proof that the bullet shot at the deceased was fired from the gun owned by the appellant. Learned counsel thus submits that the statements of eyewitness are not trustworthy. Considering the facts in their entirety, such as delayed recording of statements of the eyewitnesses and an unsuccessful attempt to reveal as to where the bullet had struck the victim and the unmatched statements by prosecution witnesses with that of the medical expert, the learned Trial Court was pleased to record the order of acquittal of the appellant.

Undoubtedly, Gambhir Singh (PW 7—brother of the deceased) has accepted that certain criminal proceedings were pending between the accused and his family members. He also admits that one case had already been filed by the accused prior to the incident. Admittedly, Shanti Devi (PW 8—wife of the deceased) also has deposed that there was an altercation between her son Vijender and Dhullu, on which they killed her husband. Thus, the parties are admittedly in hostile terms and the incident in question occurred in a broad day light at the residence of the deceased by doing away his precious life. The prosecution, in support of its version, has heavily relied upon the statements of eyewitnesses Gambhir Singh (PW 7-complainant and also brother of the deceased), Shanti Devi (PW 8-wife of the deceased), Madho Singh (PW 9) and Bir Singh (PW 11-nephew of the deceased). The learned Trial Judge disbelieved the presence of eyewitnesses on the spot in view of delayed recording of their statements by the Investigating Officer (PW 13) and also they remained unsuccessful in revealing exactly as to where the bullet had struck the deceased. We also find that nowhere in the First Information Report, the name or presence of eyewitness Shanti Devi (PW 8) was mentioned as a witness to the incident.