- (1.) This appeal by way of special leave is directed against the judgment of the Allahabad High Court whereby the judgment of acquittal of the Sessions Judge has been reversed and the accused appellant has been convicted and sentenced to imprisonment for life etc. under Section 302 of the IPC.
(2.) The facts of the prosecution story are as under: The appellant Sukhdeep Singh and the acquitted co-accused Raje were friends whereas Gurbachan Singh (PW. 2) the first informant and Karam Singh were brothers. Balvendra Singh, brother of Sukhdeep Singh aforesaid, had some dispute with one Kashmir Singh against whom some Criminal and Civil proceedings were also going on. An per the prosecution story about a month before the incidant the two accused had come to the house of Gurbachan Singh and had threatened Karam Singh to leave the company of Kashmir Singh, failing which they would kill him. As this threat had no effect on Karam Singh, the two accused arrived at his home at about 6.00 a.m. on 5th June, 1980 and whereas Sukhdeep Singh was carrying a rifle belonging to Balvendra Singh, Raje was carrying a shotgun. It appears that a compromise was proposed even at that time and to ensure that it would not be violated the accused suggested that they go to the Gurudwara to take an oath before the Guru Granth Sahib. On this assertion Gurbachan Singh and Karam Singh accompanied by the accused left for the Gurudwara and along the way associated Mahender Singh and Darshan Singh and also told them as to what had transpired and the terms of the compromise. As the group reached the crossing of village Nateura, Gurbachan Singh, Darshan Singh and Mahender Singh who were following the two accused and Karam Singh who had gone swiftly ahead, Raje suddenly caught hold of Karam Singh and Sukhdeep Singh fired a shot which struck him in the stomach. Gurbachan Singh and the others raised an alarm on which Sukhdeep Singh fired another shot towards them without hitting anybody. The accused then ran away with their weapons. One Ninder Singh (PW.3) who was working in a nearby field also saw the incident. Gurbachan Singh and the others also found that Karam Singh had died instantaneously on account of the gun shot injury suffered by him. Gurbachan Singh also rushed to the police station which was about 9 miles away and recorded the FIR at about 1.30 p.m. ASI Ragghu Singh (PW.7) reached the murder site, recorded the inquest report and sent the dead body for its post-mortem examination. The post-mortem examination was held on the next day at about 4.15 p.m. by Dr. C.P. Srivastava (PW.1). On the completion of the investigation the two accused were put to trial on a charge of murder. The prosecution relied primarily on the statements of Gurbachan Singh (PW.2) Ninder Singh (PW.3) and Mahender Singh (PW.5) the alleged eye witnesses to the incident as also on the evidence of PW.4. Ram Asray Pandey the expert from the Forensic Science Laboratory and Dr. C.P. Srivastava (PW.1) the Doctor concerned.
(3.) The trial court on an appreciation of the evidence held that the statement of Gurbachan Singh (PW.2) was at variance with the medical testimony given by Dr. C.P. Srivastava (PW.1) in as much that the direction of the injury suffered by Karam Singh falsified the ocular evidence of Gurbachan Singh. The Court also held that the evidence of the recovery of the empty shell from the place of incident appeared to be a bit of padding by the police as the weapon that had been recovered from Sukhdeep Singh accused was of 315 bore whereas the cartridge that had been recovered at the time of the inspection of site by ASI Ragghu Singh on the day of the murder, was of .303 bore and it was thus impossible to believe that this cartridge could have been fired from the weapon in question. It was also observed that as .303 bore was a prohibited bore weapon, cartridges of this category were not available in the market and the prosecution had, failed to explain as to the source from where this cartridge had been procured. The Court further held that before the incident about a month earlier when the accused had advised Karam Singh to leave the company of Kashmir Singh was also not proved and as such the motive itself was not acceptable. Having held as above, the trial Court acquitted both the accused.;