IMPORTANT POINT
No fixed pattern of natural conduct can be laid down as different witnesses would react in different manner in same situation.

ORDER

These appeals have been filed by two persons, namely, Ashok Kumar and Vijay Pal Singh, who were convicted of two different offences in one trial held by a Designated Judge under the provisions of Terrorists and Disruptive Activities (Prevention) Act, 1987 (TADA). As appeals lie directly to this Court under Section 19 of the TADA we heard learned Counsel for the appellants as well as learned Counsel for the State in extenso. There were five accused arraigned before the designated court to face a charge for the offences under Section 302 read with Sections 34 and 212 of the Indian Penal Code besides Section 5 of TADA and some other Sections of the Arms Act. The Designated Judge convicted first accused Ashok Kumar who is appellant in one of the appeals for the offence under Section 302 IPC as well as Section 5 of TADA. On the first count he was awarded imprisonment for life while on the second count rigorous imprisonment for five years was awarded as sentence. The fourth accused who is appellant in the other appeal was convicted of Section 5 of TADA alone. He too was sentenced to undergo rigorous imprisonment for five years.

2. The case relates to the murder of one Shyam Sunder @ Billa. It happened at around 9.00 p.m. on 9.9.1990 on the busy street at Jahangir Puri in Delhi. Deceased was shot dead by an armed assailant. Thus far we did not find any dispute between the prosecution and the defence.

3. The prosecution case runs thus:

Appellant - Ashok Kumar and deceased - Shyam Sunder were friends initially, but at the instance of deceased s mother (PW7-Sulochna) their friendship broke. Ashok Kumar again tried to enlist the friendship of deceased but that was again dissuaded by PW7 and it resulted in burgeoning of enmity in the mind of Ashok Kumar towards the deceased. Added to this another incident happened. A lady was put in possession of a plot at the instance of Ashok Kumar but she was evacuated therefrom at the instance of deceased-Shyam Sunder. One or two days prior to the murder, appellant - Ashok Kumar visited the house of the deceased and there was a brawl between the deceased and himself. It was at the behest of the mother of deceased that they were separated and Ashok Kumar left the place in a huff after giving a threat that deceased would be dealt with properly which would leave its impact for seven generations.

4. At the time of occurrence, deceased Shyam Sunder was either on his way to his friend or was returning from the friend s house as he already informed his mother that he was proceeding to meet that friend. The assailants surrounded the deceased at a place which is said to be in front of house No. 1502, Block B of Jahangir Puri, Delhi.

5. Ashok Kumar whipped out a revolver and shot at the deceased which injured the deceased on the chest and the abdomen and the shots became fatal. He was immediately taken to a nearby nursing home but the people at the nursing home were not inclined to admit him for their own reasons and hence he was taken to a Government hospital. But the doctors who examined him pronounced him dead.

6. A First Information Report was recorded from the mother of the deceased who claimed to have witnessed the occurrence. The statement was recorded at 11.35 p.m. at the Government hospital. After completing the investigation the charge-sheet was laid before the designated court.

7. While dealing with the appeal of appellant Ashok Kumar we have to focus only on two items of evidence. They are, the testimony of PW2 (Rajinder Kumar) ad the testimony of PW7 (Sulochna). One more eyewitness was examined by the prosecution (PW10-Anil Kumar) but he did not support the prosecution version and hence was treated as hostile. Yet one more person was cited by the prosecution as an eyewitness (Murli), but he was not examined and we have noticed from the trial court s judgment that the Public Prosecutor reported that Murli was untraceable during trial.

8. Evidence of PW2 and his mother PW7 can be considered togeth