IMPORTANT POINT
Where accused Rupa s fire arm was snatched and he did not play any role in crime and his name was not there in original FIR and his presence was in doubt, he is entitled to acquittal on benefit of doubt.

JUDGMENT

Dr. Anand, J.-The appellants were tried for offences under Sections 302/34 and 449 IPC by the learned Judge of the Special Court. Appellants Husna and Jalour Singh were also tried for an offence under Section 25 of the Arms Act. Vide Judgment dated 18.4.1985, the trial court convicted appellant Husna for an offence under Section 302 IPC and sentenced him to life imprisonment. He was also convicted for an offence under Section 449 IPC and sentenced to undergo seven years R.I. and for the offence under Section 25 of the

Arms Act to nine months R.I. Appellant Rupa was convicted for an offence under Section 302/34 IPC and sentenced to life imprisonment. He was also convicted for an offence under Section 449 IPC and sentenced to undergo seven years R.I. Jalour Singh appellant was acquitted of the charges under Section 302/34 IPC and 449 IPC but convicted for the offence under Section 25 of the Arms Act and sentenced to undergo nine months R.I. Through this statutory appeal, the appellants have called in question their conviction and sentence. Since the appeal was received from jail, an amicus curiae was appointed for the appellants.

2. According to the prosecution case on 28th April 1984 Sadhu Ram PW1 was present at his house at about 9 p.m. along with his wife Kaushlya PW4, Satish Kumar (deceased) and other children. Two persons committed criminal tresspass into the house with their faces muffled armed with pistols. Sadhu Ram PW1 raised an alarm and snatched away the pistol from one of the two intruders. During the scuffle, the face of one of the intruders got unmuffled. Satish Kumar, deceased, came to the help of his father. At the exhortation of appellant Rupa, Husna appellant fired a shot which hit Satish Kumar on his face and he fell down. Both Rupa and Husna ran out of the house where Jalour Singh armed with a pistol was already waiting. All the three accused then ran away. Sadhu Ram PW1 went near Satish Kumar and found him dead.. Accompanied by Sham Lal and Malkiat Singh, Sarpanch of the village, Sadhu Ram PW1 went to Police Station to lodge a report. Formal FIR Ex. P1 was recorded on the basis of that report. Investigation was taken in hand and the investigating officer reached the house of PW1. Smt. Kaushlya PW4, the mother of deceased Satish Kumar was sitting near the dead body alongwith some other members of the family and interrogated. She became hysterical and could not give any clue or details of the occurrence. An inquest report was prepared and the dead body sent for post mortem examination. An empty cartridge of 315 bore was taken into possession from the spot, vide recovery memo Ex. P5. It was sealed into a parcel. A blood stained brick was also taken into possession vide memo Ex. P6. Later on two more empty cartridges of 315 bore and one empty cartridge of 32 bore were also recovered and taken into possession vide memo Ex. P7. The post mortem on the dead body was revealed the presence of an ante-mortem lacerated punctured wound with inverted margins on the left side of the face. Death of Satish Kumar according to the doctor was caused due to shock and haemmrohage as a result of the aforesaid injury which was opined by him to be sufficient in the ordinary course of nature to cause death. Since, no names of the assailants had been disclosed in the FIR, during the investigation a supplementary statement of PW1 was recorded in which he gave the names of the accused. Appellant Husna and Jalour Singh were arrested on June 3, 1984 and weapons recovered from them. Rupa appellant stood already arrested in some other case and was formally shown as arrested in the present case on June 12, 1984. The empties recovered from the spot and the pistol recovered from Husna appellant were sent to the Director, Forensic Science Laboratory, Chandigarh who vide his report Ex. P18 opined that the empty recovered from the spot was found to have been fired from the pistol of Husna appellant. The prosecution with a view to connect t