JUDGMENT

K.G. Balakrishnan, J.-Appellant-Krishna Gope was tried for the offence of murder for having caused the death of Sarjug Gope. The sessions court found him guilty and sentenced him to undergo imprisonment for life. Two other accused tried along with him were acquitted by the sessions court. The appellant filed an appeal before the Patna High Court challenging his conviction and sentence. The High Court elaborately re-appreciated the prosecution evidence and confirmed the conviction and sentence of the appellant. The judgment and order of the High Court is challenged before us.

2. The prosecution case is that on 25.6.1984 while accused Arbind Gope was grazing his cattle, his cow strayed into the field of Sarjug Gope alias Rukha Gope and this led to a wordy altercation between Sarjug Gope on the one hand and Arbind Gope and Karoo Gope on the other. When this wordy altercation was going on, the appellant-Krishna Gope brought a country-made rifle from his house and fired at Sarjug Gope. Sarjug Gope sustained firearm injuries and fell on the ground. Meanwhile, some persons from the neighbourhood had collected at the place of occurrence and injured Sarjug Gope was removed to Karai Parsurai dispensary for treatment. At the dispensary, the Doctor advised that the injured be taken to the hospital at Patna. Injured Sarjug Gope, while undergoing treatment at the hospital at Patna died in the night. Earlier, while injured Sarjug Gope was in the Karai Parsurai dispensary, PW-12 Sub Inspector of Police recorded his statement at about 5.30 P.M. PW-12 conducted the investigation and he prepared the muazzer . Near the place of incident, he found one .315 bore empty cartridge and he recovered the same in the presence of two witnesses. He recorded the statement of various witnesses and later held inquest on the dead body of deceased at the hospital at Patna. After the investigation, he filed the charge-sheet.

3. On the side of the prosecution, PW-5 Bhola Gope and PW-6 Banwari Gope were examined to prove the incident. PW-6 is the sole eye-witness who saw the entire incident. According to him, at the relevant time, he was in the hut of one Ram Chandra Gope which was about 30 feet from the place of incident. He stated that he heard the noise of the wordy altercation that was going on between the deceased and the accused persons and saw the appellant-Krishna Gope bringing a country-made rifle and shooting the deceased. It was suggested to him that the hut of Ramchandra Gope was at some distance away from the place of occurrence and that it was not possible to see the place of occurrence as the same was at a lower level than the land on which Ramchandra Gope s hut was situated. But there is nothing in the evidence to show that there was anything to obstruct the visibility. It is quite common that a witness being a curious onlooker would always take up a vantage position to find out and gather the reasons of the quarrel that takes place in the village. Moreover, the accused is very much known to him and there could not have been possibility of his mistaking the identity of the accused.

4. The evidence of PW-6 is further corroborated by the evidence of PW-5, Bhola Gope. PW-5 deposed that at the relevant time his nephew Ashok Kumar came running to him and told him that a quarrel was going on between Sarjug Gope and accused Arbind Gope and Karoo Gope. Bhola Gope, who was grazing his buffalo, left the cattle in the custody of Ashok Kumar and proceeded to the place of incident. When he reached there, he saw appellant-Krishna Gope running away from the place of occurrence. He saw Sarjug Gope lying in the field with injuries on his abdomen. The evidence of PW-5 was severely attacked on the ground that this witness had no occasion to see the actual incident. Of course, this witness had not seen the appellant shooting the deceased, but, nevertheless, the fact that the appellant was at the place of incident and that he was seen running away from there