C.M. Lodha, J.
1. The appellant Hussain Khan has been convicted under Section 302 I. P.C. and sentenced to imprisonment for life by the Sessions Judge, Bikaner, by his judgment dated 11th September, 1971, and hence he has filed this appeal.
2. The prosecution case is that the accused Hussain Khan divorced his first wife who renamed the brother of the deceased Gamu. The accused took a second wife but fhs wed to live with Hazi Fallu, father of the accused and the accused suspected that the deceased Gam a was instrumental in Keeping his wife away from him. This is said to be motive of the crime. It is alleged tha' m 17th January, 197.1. the accused went to the hut of Hakeem situated in Chak 6 B. D. and asked PW/8 Baldeo Singh who was then in- occupation of Hakeem's hut, to bring Gamu who was living in the same locality. Baldeosingh went to Gamu's house but since Gamu was not there, he could not bring him. Hussain Khan took his meals with Baldeosingh and stayed with him that night. Hussain Khan again asked Baldeosingh in the next morning i. e. on 18th January, 1971r to bring Gamu as he had some urgent work with him. Accordingly, Baldeosingh went to the house of Gamu and asked Gamu to come to Hakeem's hut.
On having been told by Gamu that he would shortly come, Baldeosingh went away and Gamu followed him and reached Hakeem's hut at about 10 a. m. It is said that Gamu and Hussain Khan talked for about 15 to 20 minutes behind the hut, while Baldeo Singh was preparing food on the other side of the hut. Thereafter the accused and the deceased Gamu both went inside the hut and they were heard by Baldeosingh talking to each other. Suddenly Baldeosingh heard the report of a gun fire inside the hut. PW/6 Ramratan who was hi another hut nearby marked No. 11 in the site plan Ex. P/l also came out on hearing the report of the gun fire and both Baldeosingh and Ramratan saw the deceased Gamu coming out of the hut crying that he had been fatally wounded. Both the witnesses viz. PW/6 Ramratan and PW/8 Baldeosingh noticed an injury on the left side of the chest of Gamu who had pressed his hands on the wound. Gamu ran towards the hut of Hakim brother of Hakeem and Ramratan challenged the accused as to why he was killing Gamu. Hussain Khan chased Gamu and as soon as he came a step forward from the hut of Hakeem, Hussain Khan fired another gun-shot at Gamu which hit the deceased Gamu at his back. Gamu fell down dead near the hut of Hakim in which PW/5 Smt. Jannat and PW/3 Khanu were sitting at the relevant time.
Having accomplished his object, Hussain Khan ran away from the place with the gun. PW/8 Baldeosingh, then, left for Bandli Post of Border Security Force and informed Haw-aldar Shailabsingh of the occurrence. Hawal-dar Shailabsingh reduced to writing the information given by Baldeosingh who also put his signatures below it. Tim Hawaldar then proceeded to tho spot along with Baldeosingh and a few constables. PW/4 Bhawanishanker Subedar, Post Bandli, who had gone out on pptroliing duty while returning to the post, mot constables Hanumanaram and Kanaram. who had accompanied Shailab Singh bawal-dar to the scene of occurrence. Both these constables informed Bhawanishanker that a man had been killed by gun-shot and the assailant had run away. On receiving this information, Bhawanishanker along with Hanu msnaram and Kanaram reached the place of occurrence where Baldeosingh informed him that Hussaiu Khan had run away after committing the murder of Gamu. On receiving this information Bhawanishanker sent out a party of constables to arrest Hussain khan. He also transmitted a message of this murder by wireless to the Collector, Bikaner, Superintendent of Police, Bikaner and to Station House Officer, Poogal. The Message was received by PW/16 Vichitra Kumar, S. H. O. Police Station Poogal on 18th January, 1971 at 4.00 p.m. A copy of the same has been placed on the record and marked Ex. P/6. On its basis the FIR Ex. P/20 was drawn out and the investigation was taken up. On 19 January, 1971 Vichitrakumar, S. H. O. reached the place of occurrence and conducted the necessary investigation on the spot.
3. Meanwhile the accused, after committing the crime, passed by the field of PW/7 Gurdeosingh at 11 a. m. in village Di(u-wali in which Chak 6 B. D. is also situate, and on enquiry by Gurdeosingh, told him that he had committed the murder of Gamu and, therefore, he may be taken to the police station, Poogal or to the B.S.F. Post, otherwise some harm may be done to him. Gurdeosingh snatched the gun from Hussain Khan and then took him to the Police Post Kundal where he handed over the accused and the gun to PW/10 Shaitansingh, Head Constable, Incharge B.S.F. Post Kindal. Shaitan Singh searched the person of the accused in presence of two motbirs and seized a 12-bore gun, two live cartridges and one empty as well as a licence of the gun in the name of Hussain Khan, along with other miscellaneous articles. The search memo Ex. P/9 was prepared by Naib Chandrasingh. He also recorded the statements of Gurdeosingh and the accused marked Ex. P/8 and Ex. P/10 respectively.
On 19 January, 1971, at about 8 p.m. Shaitan Singh handed over the accused Hussain Khan as also the articles recovered from him and mentioned in Ex. P/9 to Head Constable, Police Station, Poogal Sohansingh PW. 15. Sohan Singh prepared the arrest memo of the accused marked P/12 and, in his turn, handed him over to the Investigating Officer, S. H. O. Vichitrakumar PW/16 the sam day. On 29 January, 1971 the accused informed the S, H. O. that the empty of the cartridge used for committing the crime was concealed by him in the field of one Allabasaya and he was prepared to get the same recovered. The S. H. O. reduced this information to writing, which is Ex. P/22 and recovered the empty at the pointing of the accused on 30 January, 1971 vide recovery memo Ex. P/7.
4. In the course of investigation the dead body of Gamu was brought by the S. H. O. from the place of occurrence to Poogal where PW/12 Dr. Purshottam Das Vyas conducted the post-mortem examination of the dead body on 20 January, 1971 at 8-30 a. m. The post-mortem Report prepared by him is Ex. P/4. The gun, two empties one recovered on the personal search of the accused and the other recovered from the field of Allabasaya, as well as the shots taken out from the dead body by the doctor at the time of postmortem examination were sent to Mr. M. Johari PW/14, Assistant Director in the Forensic Science Laboratory, Government of India, Calcutta for examination on ballistic aspects. Ex. P/19 is his report. Thus after carrying out the necessary investigation, the Investigating Officer prosecuted the accused in the court of Additional Munsiff Magistrate, Bikaner, who, by his order dated 28th April, 1971, committed the accused for trial under Section 302 I. P.C. to the Court of Sessions Judge, Bikaner where in the course of trial the accused denied having committed the offence and pleaded alibi and further stated that the offence had been committed by one Hussain son of P, W. 5 Smt. Jannat and he had been falsely implicated. The learned Sessions Judge, however, by his judgment dated 11th September, 1971 held the accused guilty for the murder of Gamu and sentenced him to imprisonment for life under Section 302 I. P.C.
5. learned Counsel for the appellant has strenuously urged that the evidence of the alleged eye-witnesses viz. PW/3 Khanu, PW/5 Smt. Jannat, PW/7 Ramratan and PW/8 Baldeosingh is unreliable for more than one reason. It has been argued that none of these witnesses except PW/5 Smt, Jannat has given a satisfactory explanation for being present at the spot at the relevant time. In this connection it has been argued that the evidence of all of them is in conflict with the medical evidence. It has also been pressed upon us that the investigation has withheld important documents such as the information given by Baldeosingh to Hawaldar Shailab-singh and reduced to writing by the latter, the statement of Baldeosingh recorded by Subedar Bhawani Shanker and the written message given by Bhawanishanker to Amarsingh, Operator for transmission on wireless to the Police Station, Poogal and, therefore, an adverse inference must be drawn against the prosecution.
It has been contended that the empty recovered from the field of Allabasaya cannot be connected with the crime and as regards the empty recovered on the personal search of the accused, the Ballistic expert has given no definite opinion whether it was fired from the gun Article 'A'. learned Counsel has submitted that the prosecution has failed to prove an adequate motive for the crime and the motive suggested by the prosecution witnesses is absurd. He has also urged that Gurdeosingh, who has come forward to prove the extra judicial confession of the accused, is an unreliable witness-
6. The case has been argued threadbare by Mr. Thanchand Mehta, learned Counsel for the appellant and he has indeed said all that could be said in favour of the appellant. But we are unable to accede to his submission that the guilt has not been brought home to the accused. We shall now proceed to give reasons in support of our conclusion.
7. We shall first take up the direct evidence. PW/3 Khanu is a resident of Dilu-wali in which Chak 6 B. D. where the occurrence took place is situate. He states that he was sitting with Smt Jannat PW/5 wife of Hakim that day at the relevant time in the hut of Hakim. When he heard report of a gun fire and the cries of the deceased Gamu, immediately he and Smt. Jannat came out of the hut and saw Gamu coming towards them with his hands pressed against his chest and crying that he was being killed ('Mar Diya, Mar Diya')- He was coming from the hut of Fatehsingh. At the same time Hussain Khan accused also came out of the same hut with a gun in his hand and fired a shot with it at the back of Gamu after coming a step forward from the door of the hut. On receiving the gun-shot injury, Gamu fell to the ground.
He further states that he also saw Ramratan and Baldeosingh sitting near the fire place of their huts. The witness goes on to state that Ramratan shouted at Hussain as to why he was murdering a man, but the accused after firing the shot ran away and all the four of them went near Gamu and saw that he had breathed his last. No question has been put to this witness as to why he had gone to Smt. Jannat's hut that day. PW/5 Smt. Jannat was no doubt asked a question in cross-examination regarding the reason for presence of this witness in her hut and the reply given by her is that Khanu had come to her hut that morning to enquire whether her husband Hakim who had gone out of the village, had returned. The matter was not pursued further in cross examination of Smt. Jannat either. We are, therefore, unable to come to the conclusion that Khanu's presence in the hut of Smt. Jannat is unnatural or improbable.
8. PW/6 Ram Ratan has stated that he has a hut in Chak 6 B. D. and the same has been marked No. 11 in the site plan Ex. P/l. learned Counsel has urged that this witness is a resident of Chamar-Khera and he has got his agricultural land in Chak 12 B. D. and, therefore, this witness had no reason to stay in Chak 6 B. D. It may, however, be pointed out that the witness has made it clear that the distance between 12 B. D. and 6 B. D. is about a mile and that he had been living in 6 B. D. since 8 or 10 days before the occurrence. The witness nowhere says that he has a house to live in in 12 B. D. itself where he has got his agricultural land-His hut in 6 B. D. is very near to his land in 12 B. D. and, therefore, there is nothing unnatural if he stayed in his hut in 6 B. D. We are unable to see anything wrong with his being present in his hut in 6 B. D. at the relevant time.
9. PW/8 Baldeo Singh has stated that he cultivates land in 6 B. D. jointly with Jaswantsingh, Fatehsingh and Rameshchand and that they have a hut in 6 B. D. in which they reside. He has further deposed that that hut is known as 'Fatehsinghwali hut'. He further states that the accused came to him in the previous evening i. e. on 17th January, 1971 and asked him to bring Gamu and he actually brought Gamu the next morning at the bidding of the accused who had stayed with him on the night of 17th January, 1971. He has stated that he was sitting near the fire place and preparing his food when he heard the report of a gun fire from the hut of Fatehsingh in which he had, a moment back, heard the accused and the deceased Gamu talking. He also witnessed the second fire as described by all the eye-witnesses and as narrated in the earlier part of this judgment. He is the person, who, as stated by Bhawanishanker PW/4, had lodged information at the B.S.F. Post Bandli about the occurrence. This fact certainly supports his presence at the time of occurrence. The witness has got his land in 6 B. D. and Fatehsingh had taken the hut in which he was living from Hakeem. His presence at the scene of occurrence is thus adequately explained. So far as PW/5 Smt. Jannat is concerned, she has admittedly got her hut in 6 B. D. near which the deceased Gamu fell dead. Her hut has been marked No. 7 in the site plan Ex. P/l. We are, therefore, of opinion that the presence of all the four eye-witnesses has been adequately explained.
10. The contention on which considerable emphasis has been laid by the learned Counsel for not believing the eye-witnesses in that their evidence is in conflict with the medical evidence. We shall, therefore, advert to the medical evidence at this stage, PW/12 Dr. Purshottam Das Vyas has deposed that he found the following injuries on the dead body of the deceased Gamu:-
1. Gun shot wound (wound of entrv) 2' x 1' x lung deep in left infra clavicular region, 1 1/4 lateral to left sternoclavicular joint, charring of margins of wounds, margins inverted, wound directed downwards, backwards and laterally.
2. Gun shot wound (wound of exit) 2 1/2' x 1 1/4' x lung deep on middle of left side of the back, 2' lateral to mid line at the level of lower part of scapula.
3. Lacerated wound 1/4 x 1/4' muscle deep 2' above the wound No. 2.
On opening the dead body, it was further found that the 1st and 2nd ribs on the left side were fractured on anterior side (front) and 5th, 6th and 7th ribs were fractured posteriorly (back). Pleura was ruptured at two places. Fluid blood was present on the left side about 400 M. 1. A lacerated wound 2' x 2' through and through in upper half of the left lung was found and the whole lungs were collapsed. Left pulmonary vessels were ruptured. The injuries, according to the doctor, were sufficient in the ordinary course of nature to cause death. He recovered 15 pellets from the dead body at the time of postmortem examination. Out of these pellets, 12 were of small size and three were of big size and a few of them were lying loose in the wounds of back and others were removed by dissection by pal-pation of skin around the wound on neck. All were situated within an area of a circle of about 3' diameter from the centre of the wound on back. In the wound of back amongst the pellets, a few were of small size and bigger sized ones were also lying there. The edges of injury No. 3 were inverted and irregular. learned Counsel has laid great emphasis on the following portion of the statement of PW/12 Purushottam-das Vyas:
On the post-mortem appearances I am of the opinion that the wounds were caused -lost probably by one shot. But I cannot say definitely because of the fact that the pellets were ofi two different she and I am not expert about the pellets'....'The edges of injury No. 3 were inverted and irregular. The edges of Injury No. 2 were also inverted and irregular. The margins of injury No. 1 were regular and oval shaped and inverted. It is correct that on the body of deceased Gamu there was only one entry of gun shot wound and of that entry there were two exit wounds. Injury No. 3 the exit wound was probably due to exit of one or two pellets. The wound of entry and the exit wound were through and through....
There was no scorching or tattooing around the wound No. 1. The distance of the fire arm must have been between 1 to 3 feet from the victim.
11. There is a three pronged attack of the learned Counsel. His contention is that according to the direct evidence there were two fires which hit the deceased whereas ac-cordiag to the medical evidence there was only one entry wound and two exits. Therefore, the direct evidence is belied- Another branch of his argument in tbJ3 connection is that the gun-shot wound in the chest of the deceased caused a big hole which must have resulted in profuse-bleeding, but no blood was found from the hut in which the first shot is said to have been fired upto the pace where the deceased fell dead on account of the second gun-shot in the back. The third branch of his argument is that no wads and pellets were foucd inside the hut.
12. It may be pointed out that PW/12 Dr. Purushottam Das Vyas was not a very experienced doctor written he had appeared in the witness-box, He passed his M. S. examination in 1971 and had entered in Government service en 26 December, 1970. This was admittedly the first post-mortem examination he had performed. He is also not definite in his opinion whether the in question were the result of one shad or two gun-shots. He has qualified his opinion by stating that the wounds were caused most probably by one shot but he cannot say definitely because of the fact that the pellets were of two different shee. (The underlining is ours). No doubt at another place the witness has stated that there was only one entry of gun-shot wound and there were two exit wounds and injury No. 3 was probably dne to exit of one or two pellets. The evidence of the doctor, in our opinion, dees not exclude the possibility of there being two gunahots which may have struck the deceased. May-, be, that the second gun-shot alleged to have been fired from behind by the assailant while) the deceased was running, was uot effective-On the basis of indefinite opinion of the medical expert as in the present case, we are not prepared to reject the direct evidence.
13. Learned Public Prosecute!' has also urged that most of the pellets of the second gun-fire may not have hit the victim ob account of wide dispersion and the eyewitnesses may have thought that the second shot hit the back of the deceased. The explanation furnished by the learned Public Prosecutor cannot be said to be altogether devoid of force.
14. In Mohanlal v. State 1960 Raj LW 565 :1961-1 Cri LJ 155) it was observed that:
There is always a tendency to overemphasize discrepancies between the evidence of eye-witnesses and medical testimony. These discrepancies should be treated and ap' praised just like other discrepancies in the statements of the witnesses. It cannot be forgotten that the eye-witr.ssses may not give a very correct and accurate account of the version and may at places make exaggerations or may fail to give correct facts either on account of lapse of memory or on account of inability to observe minutely or to recite correctly. It should also be borne in mind that some times, the Medical Officers also do not bestow sufficient care while performing examinations and their opinions may not be properly formed on account of inadequate or defective examinations or and of complete knowledge. It is, therefore, hardly fair to expect a complete an! perfect correspondence between the medical evidence and the eye-testimony. Naturally, therefore, the court may carefully examine the discrepancies and if it is reasonably open to arrive at a substantial and true version of the prosecution case, the courts should not adopt the easy course of throwing away the prosecution case on the alleged discrepancies between the medical evidence and the eye-testimony.
15. In Nanhkusingh v. State of Bihar : 1972CriLJ1204 their Lordships of the Supreme Court observed as follows;-
When a person fires at a. place where as, here, there are two persons one witness may think that it is fired at one person and the other may think that it was fired at the other- Merely because the inference drawn by on witness which may not fit m with the inference drawn by the other the facttim of the firing at the place where the injured persons were, cannot be rejected. It cannot be held that the witness is a liar and he wanted to falsely implicate the appellant and others.
16. Again in Nihalsingh v. State of Punjab : 1965CriLJ105 an argument regarding contradiction be tween medical evidence and direct evidence was repelled by their Lordships of the Supreme Court in this way:
Another fact relied upon by the learned Additional Sessions Judge in discrediting the eye-witnesses is that the witnesses stated that the deceased gave a takwa blow on the bead of Nihalsingh, but the medical examination showed only a small abrasion on his left thumb. The High Court explained that the witnesses must be describing only the movements of the accused with their weapons and they could not obviously give evidence as to where a particular weapon hit the body, for that would depend upon not only the manner in which the person wielded their weapons but also on the movement of the victim. A hit aimed at the head may, if the victim moves aside, miss altogether the body of the victim or fall on a part of his body different from that turned at. There is certainly force in what the High Court said.
17. Applying the reasoning adopted by their Lordships of the Supreme Court in the cases cited above, the so-called contradiction or conflict between medical evidence and direct evidence pointed out by the learned Counsel in the present case is, in our opinion, clearly explicable. Maybe, that the second shot did not hit the victim and the witnesses raay have got an impression that the shot hit the victim at the back. Maybe, that only a few pellets of the second shot hit the victim and the rest went amiss. In our opinion, nothing tarns upon this so-called contradiction or conflict between medical evidence and direct evidence.
18. In respect of PW/5 Smt. Jannat's statement learned Counsel has drawn our attention to another discrepancy and it is this that Smt. Jannat states that the victim was at a distance of about one pace (roughly five feet) from the muzzle whereas according to PW/3 Khanu the accused fired the gun-shot which hit Gamu from a distance of about six to seven 'paces. In our opinion, nothing substantially turns upon the discrepancy in the distance. In Janak Singh v- State of Uttar Pradesh : 1972CriLJ1177 their Lordships of the Supreme Court observed as follows:-
According to Dr. Ghosh's evidence, none of the three entry wounds showed any black- ening or tattooing. Obviously, therefore, the firing did cot take place from a very dose range but from some distance at least. No doubt, the three eye-witnesses gavo different distances ranging from two to six paces. But they could hardly be expected to have marked at the time the precise distance at which the person shooting the firearm was. They, therefore, gave an estimate of the distance at which he was from the victim. It is no wonder that tbt distances they deposed varied. Nothing nan, therefore, turn on such variation.
19. In this connection, learned Counsel has laid much emphasis on the fact that no blood marks were found either in the hut Fatehsingh-wali where the first shot is alleged to have been fired, nor outside the hut upto the place where the victim fell after the alleged second shot. learned Counsel has argued that looking to the size of the wound caused by the first shot, there must have been profuse bleeding and some blood must have fallen on the ground- But since there is no evidence that there was any blood either in the hut or on the way, the direct evidence is false. In our opinion, the argument, though it appears attractive, has no substance. We have it in the evidence that due to winter season the deceased was putting on shirt and woollen coat. Further he had pressed the wound while running with both of his hands. The clothes of the victim wore found badly soaked with blood and it is quite possible that no such quantity of blood may have fallen either in the hut or on the way as may be collected for the purpose of investigation. A lot of blood spread out at the place where the victim fell. It is also possible that the man might have bled internally after receiving the firs>t gun-shot weird Thus, in our opinion, absence of blood marks in the hat or on the way is sufficiently explained.
20. Another discrepancy pointed out by the learned Counsel in the evidence of the eye-witnesses is that PW/3 Khanu says that the face of the victim when he fell down was down-wards and his mouth was filled with, earth whereas PW/8 Baldeosingh has stated that when Gamu fell down to the ground, his face was towards the east. In our opinion the discrepancy pointed out by the learned Counsel is a very minor one and deserves no attention,
21. While dealing with the evidence of the aforesaid eye-witnesses, we cannot fail to point out that the defence has failed to show that the witnesses had any interest in the prosecution or were immediately disposed towards the accused. We are alive lo the position that absence of enmity between the witnesses and the accused is no substitute for reliable admissible evidence required to establish the guilt of the accused beyond reasonable doubt. But at the same time the fact of there being no enmity between the witnesses and the accused is relevant and if the court does not iind the witnesses other' wise unreliable, the fact that they are independent and have no enmity with the accused is certainly a strong factor in favour of the prosecution. We have found the aforesaid eye-witnesses both independent and reliable.
22. We may now consider another branch of the learned Counsel's argument namely that the prosecution has withheld the earliest version of the incident given by Bal-deosingh to Hawaldar Shailabsingh and Sube-dar Bhawanishanker and, therefore, an adverse inference must be drawn against it. In this connection it has been suggested that Baldeosingh did not mention the name of the assailant in the statement made by him either to Bhawanishanker or to Shailabsingh. It is true that copies of the statements of Baldeosingh recorded by Hawaldar Shailabsingh and Sube-dar Bhawani Shanker have not been produced. But, in our opinion, it was not obligatory on the part of the prosecution to produce them. Bhawanishanker and Shailabsingh were both employees of the Border Security Force and according to the powers conferred upon the B.S.F.. they were not competent to investigate the present case, nor the reports made by Baldeosingh to them come within the purview of F. I. R. under Section 154, Criminal P. C, 1898. The information communicated to the S. H. O. Poogal Ex. P/6 was the F. I, R. on the basis of which the case was registered at Police Station, Poogal and investigation was taken up by the S, H. O. Viohitrakumar.
learned Counsel has also argued that the name of the assailant had not been disclosed by Baldeosingh to B- S, F. police, inasmuch as Bhawanishanker says that Kanaram and Hanumanram who met him while returning from the scene of occurrence had merely told him that a man had been killed by gun-fire. It is further argued that according to the statement of Baldeosingh all that he told the Hawaldar was that Hussain Khan had run away after killing the deceased Gamu by a gun-shot. No other details were supplied. learned Counsel argues that if the eye-witnesses had been present, it would have been mentioned by Baldeosingh that all of them had seen the occurrence and a few other details may have also been given.
In support of his contention he has relied upon Ram Kumar Pande v. State of Madhya Pradesh : 1975CriLJ870 wherein it has been observed that omissions of important facts in F. I. R. affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case. In our opinion, these observations do not apply to the information given by Baldeosingh to Hawaldar Shailabsingh or Subtviar Bhawanishanker of B. 3. F. inasmuch as that information, as already stated above, was not a F. I. R. learned Counsel has failed to show how that information would be admissible. We. therefore, do not find any force in this contention.
23. Another contention raised by the learned Counsel is that the evidence of PW/7 Gurdeosingh regarding the extra judicial confession alleged to have been made by the accused to him is not reliable. PW/7 Gurdeosingh has stated that the accused Hussain Khan told him that a murder had been committed in village Diluwali and he may be beaten for that and therefore, he had come to Gurdeosingh. In the next breath Gurdeosingh says that the accused told him that somebody had murdered Gamu. In the next sentence the witness stated that the accused told him that he had committed the murder of Garni: and then again the witness improved his version and stated that the accused told him that be had killed Gamu by gun-shot and thereupon the witness snatched the rifle from the accused Hussain Khan and on request by Hussain Khan he took him to the Police Post Kundal and handed him over to Shaitansingh Hawal-dar along with tin Gun, We are not impressed by the way Gurdeosingh has made his deposition regarding the dying declaration. He is not certain as to what was the precise statement of the accused, as he has himself given a varied version of the same.
We, therefore, do not find it safe to accept the evidence of Gurdeosingh regarding extra judicial confession. But we are satisfied that Guideo Singh took the accused along with his gun and the bag of cartridges to Police Post Kundal where he handed him over to PW/10 Shaitansingh Hawaldar and Shaitan-singh Hawaldar, in Jiis turn, handed him over to PW/15 Sohan Singh,' Head constable, Police Station Poogal, who took him in his custody vide arrest Memo Ex. P/12. We do not see any reason to doubt the testimony of Gurdeosingh to the extent that Gurdeosingii produced the accused along with the gun and the bag of cartridges before Shaitansingh PW/10, presumably because he suspected him of having committed the murder of Gamu. To this extent the evidence of Gurdeo-singh deserves to be- accepted.
24. Next, we may take up the evidence regarding the recovery of empties and the opinion of the Ballistic expert PW/14 Mr. M. johri whose evidence is that no definite opinion could be given whether the empty marked Ex. 14 and Ex, 'B' (alleged to have been recovered from the person of the accused) was fired from the licenced gun of the accused Article Ex. 8. But he has given definite opinion duly supported by reasons that the empty Ex. 15 also marked as Ex. 'C (alleged (o have been recovered from the field of Allabasaya father of PW/13 Ramjan) was fired from this gun. We have examined the gun Article Ex. 8 and find that it has no system of automatic ejection. learned Counsel submits that it is not probable that the accused may have concealed the empty in the field of Ramjan son of Allbasaya which is situated at a distance of about one mile from the place of occurrence. He has also argued that there is no evidence to show that this was the empty of one of the cartridges fired by the accused at Gamu. The empty was recovered from the field of Allabasaya on 30th January, 1971 about 12 days after the occurrence. The accused had been taken in custody by PW/10 Shaitansingh on the very day of the occurrence i. e. 18 January, 1971. The empty was concealed in the earth and the accused himself dug out the earth and took it out. The gun had been in custody of the Police from 18 January, 1971 and there is no evidence that it was fired thereafter except by the Ballistic expert.
It is further clear that no empty was found at the spot, though according to the prosecution evidence two fires were made. It is, therefore, likely that the assailant carried both the empties with him and it is not improbable that one of these empties was concealed by the accused in the field of Allabas-saya situated at a distance of about one mile from the place of occurrence. But for argument's sake even if we exclude this evidence, we are of opinion that the prosecution case is satisfactorily proved by the evidence of the eye-witnesses.
25. Lastly, we may now consider the argument regarding motive. learned Counsel has urged that the accused had no motive to commit the murder of Gamu and, therefore, the prosecution evidence must be looked at with an eye of suspicion. In this connection he has pointed out that all that is alleged against the accused is that he suspected that Gamu had a hand in not sending the wife of the accused to the accused from the house of his father. It is submitted that Gamu's father was sick and, thereore, the wife of the accused used to look after him and there was no question of Gamu's having hand in keeping back the wife of the accused from the accused. He has also referred to the statement of PW/5 Smt. Jannat wherein Smt. Jannat has stated that she had seen accused Hussain Khan and the deceased Gamu talking together daily.
learned Counsel suggests that the deceased and the accused were on very cordial terms and, therefore, there was no reason for the accused to have killed Gamu. learned Counsel has also relied on the suggestion made by the defence, though not supported by any evidence, that Smt. Jannat's son Hussain killed Gamu and the accused whose name is also Hussain, has been substituted in his place. In our opinion, the suggestion of the defence has absolutely no legs to stand on. If the assailant was Hussain son of Smt. Jannat, we fail to see any reason why the eye-witnesses should have left out that Hussain and substituted the accused in place of the real culprit. It is true that the evidence of motive furnished by the prosecution evidence is rather thin, though reading in between the lines, it as pears to us, that the accused might have suspected that the deceased Gamu had an evil eye on his wife. However, we wish to make it clear that there is no direct evidence on this point and we do not wish to press into service that theory in support of which there is no evidence. Suffice it to say that we need not consider that question of motive when we are satisfied that the evidence that the accused Hussain Khan was the assailant of Gamu is acceptable.
26. After a careful examination of the record, we, are on the whole, satisfied that the offence has been proved against the accused beyond reasonable doubt. The appeal, therefore, fails and is hereby dismissed.