(1.) In the instant case, if the evidence tendered by the sole defence witness is accepted, then, the evidence tendered by the prosecution through the prosecution witnesses cannot be accepted.
(2.) In the instant case, Hira Singh, brother of Jagdish Singh Mehra (PW1) died of a gunshot injury. Dr. Vimal Pant (PW7) conducted post-mortem and proved that the death was by a single gunshot injury received by the victim below his chin, whereby and under, 14 pellets travelled upwards towards his brain. Prosecution tendered in evidence Forensic Science Laboratory Report signed by Assistant Director and since the defence did not want to question the veracity of the said report, the creator of the said report, though, was not called to tender evidence, but the report was accepted as an admissible evidence under Section 293 of the Code of Criminal Procedure. The said report established that the victim received the injury through a gunshot fired from the gun belonging to him, but recovered on the disclosure made by the appellant.
(3.) The First Information Report was filed by PW1 at 12:10 AM of 23 rd February, 2004. In that, it was stated that the appellant and another person, unknown to him but both known to the victim, came to the house of the victim and wanted a lift in his scooter to Haldwani and the victim, in order to give that lift, left his house with the appellant and the said unknown person in his scooter. It was also stated that soon before leaving the house, appellant asked the victim to take along with him his licensed gun and the victim took the licensed gun and three cartridges, which were handed over to him by his wife Smt. Vimla Mehra (PW3). It was stated that he received information from Harish Chandra Belwal (PW2) and Prem Singh Mehra (PW4) that they saw the victim lying injured with a gunshot injury by the side of river Gaula, when the appellant was standing with a gun in his hand and another person, then not known, was standing by his side and that when PW2 and PW4 raised hue and cry, appellant and the said unknown person left the place after firing once in the air. It was stated in the First Information Report that thereafter, victim was taken to the hospital, where he was declared brought dead. The statements, thus made in the First Information Report, were held out by PW1, PW2, PW3 and PW4 while tendering evidence. It was stated by PW2 and PW4 that the incident, that they had seen and as was reported in the First Information Report, took place around 9:30 PM. Girish Chanra Belwal (PW5) held out, in course of tendering evidence, that the victim, appellant and that unknown person had taken liquor in his presence at his house and, thereafter, while the victim left in his scooter with the appellant as pillion, the other person left in another scooter. Doctor Vijay Kumar Tilara (PW10) was the doctor, who checked up the victim, when he was brought to the hospital. He proved Exhibit Ka-17, where he reported that the victim was brought dead at the hospital at 11:10 PM of 22 nd February, 2004. Exhibit Ka- 17 did not indicate the name of the father of the victim. Later on, the name of the father of the victim was inserted in Exhibit Ka-17. PW10 stated, in course of evidence, that he did not do that and he does not know, who has inserted the same. Exhibit Ka-17 indicated the name of the person, who brought the victim to the hospital. The name of that person was Yashwant Singh. Yashwant Singh deposed as PW6. He stated that after hearing the sound of the gunshot and the hue and cry raised by PW2 and PW4, he came to the place of occurrence, when he found that the victim was lying injured. He stated that PW2 and PW4 were already present at the place of incident with a Jeep. He stated that others also gathered there. He stated that he alongwith others and PW2 and PW4 took the victim in the selfsame Jeep, by which PW2 and PW4 were travelling to the hospital. He stated that the Doctor wanted to know the name of the person, who had brought the victim to the hospital and he gave his name as one of the persons, who had brought the victim to the hospital. The evidence, thus given by the prosecution through PW1 and PW3, PW5, PW2, PW4, PW6 and PW10 suggests that the victim left his house at 8 PM of 22 nd February, 2004 in the company of the appellant and another person. They were riding the scooter of the victim. They went to PW5. There, they drank liquor. After that victim and the appellant left the place of PW5 in the scooter of victim and the other person in another scooter. Thereafter, around 9:30 PM, PW2, PW4 and PW6 heard the sound of a gunshot. PW2 and PW4 saw the appellant with a gun along with an unknown person and the victim lying injured. PW2 and PW4 raised a hue and cry. Appellant fired in the air and fled away from the place of occurrence alongwith that unknown person. Thereafter, PW2, PW4 and PW6 reached the victim to the hospital at 11:10 PM of 22 nd February, 2004, when PW10 declared him brought dead.;