IMPORTANT POINT
Where there was serious contradiction between oral evidence of eye witness and report of ballistic expert which created doubt in use of fire arm alleged to have been used in murder, conviction could not be sustained.

JUDGMENT

Santosh Hegde, J.-The appellant Brijpal Singh has preferred this appeal against his conviction and sentence as confirmed by the High Court of Judicature of M.P., Jabalpur Bench in Crl.A.No.217 of 1986.

2. Originally, the appellant and three others were charged for offences punishable under Section 302, 307 and 302 read with Section 109 IPC before the learned Sessions Judge, Bhind (M.P.) who by his judgment dated 27.9.1986 made in Sessions Case No. 12/85 convicted all the four accused persons. In regard to the appellant herein he found him guilty of offence punishable under Section 302 and in regard to others of offence punishable under Section 302 read with Section 109 IPC and imposed a sentence of life imprisonment. In an appeal filed against the said judgment of the learned Sessions Judge, the High Court by the impugned order allowed the appeal as far as it concerned the other three accused persons and confirmed the conviction and sentence so far as the appellant is concerned. The State has not preferred any appeal against the acquittal of the other accused. The appellant alone has preferred this appeal against his conviction and sentence.

3. Brief facts necessary for the disposal of this case are that there was some dispute between the deceased and the appellant in regard to the disposal of garbage. The appellant s house and the deceased s house were opposite to each other. Two days before the incident in question, there was a quarrel in which the deceased s son Putu Singh (PW-1) and the appellant were involved. It is in view of this quarrel as to the disposal of garbage, according to the prosecution, there existed enmity between the two families. In view of the said enmity, it is stated that on 2.9.1984 at about 8 p.m. while deceased Gopal Singh and PW-1 were sleeping on cots in their Chabutra, the appellant and the other three accused persons came there. At that time, A-1 the appellant herein was armed with a mouser gun and Anurudh Singh (A-2) was armed with a .12 bore gun. At that stage, A-3 Shivji Singh exhorted the appellant to fire at the deceased and the appellant fired one shot from his mouser gun on the rear of the head of the deceased because of which the right side of his head got completely smashed and Gopal Singh had an instaneous death. The further case of the prosecution is that on seeing this, PW-1 started running away but A-2 fired from his .12 bore gun which missed him. On PW-1 shouting for help Gopal Singh (PW-8), Yadunath Singh (PW-10) and one Ramswaroop rushed to the spot and challenged the assailants because of which the assailants ran away from the place of incident. It is then PW-1 proceeded to Police Station, Umari and lodged the FIR which is marked as Ex.P/1 at about 3 a.m. on 3.9.1984. PW-11 who was then the Officer-in-Charge of the Police Station after registering a case proceeded to the spot and prepared an inquest Panchnama. He collected the blood stained earth as also empty cartridge also the misfired cartridges from the place of incident. During the course of investigation, PW-11 arrested the appellant herein on the same day and his mouser gun with 10 live cartridges which was licensed in the name of the father of the appellant were seized. Subsequently, on 30.9.1984 PW-11 arrested rather accused persons and recovered a .12 bore gun from Anurudh Singh (A-2).

4. It is based on this material, as stated above, the learned Sessions Judge convicted all the accused persons and in appeal the High Court while acquitting three of the accused persons confirmed the conviction and sentence of the appellant.

5. In this Court on behalf of the appellant, it is contended that the oral evidence adduced by the prosecution on one hand and the medical evidence as well as the ballistic report on the other contradict each other on material facts, therefore, the High Court erred in choosing to rely upon such contradictory evidence only in regard to the appellant while discarding the same in regard to the other