JUDGMENT

KAILASAM, J. :— This appeal is preferred by Modan Singh under S. 2 of the SC (Enlargement of Criminal Appellate Jurisdiction) Act 1970 against the judgment of the High Court of Rajasthan in Criminal Appeal No. 664 of 1968 reversing the order of acquittal of the appellant by the Sessions Judge.

2. The appellant, Modan Singh, and one Sampuran Singh, were tried by the Sessions Judge of Ganganagar for causing the death of one Prithvi Singh on 16-12-1966, and were acquitted.

3. The case for the prosecution may be briefly stated. Jugraj Singh, P.W. 1 was a resident of the village of Banwala and was Sarpanch of Gram Panchayat of the village. On the evening preceding the night of the occurrence, Prithvi Singh, the deceased came to P. W. 1s house and requested him to provide accommodation for the night. P. W. 1 allowed him to stay in an outer room of his house. While P. W. 1 was talking with others, the two accused, Sampuran Singh and Modan Singh, appellant herein, came there with Mewa Singh, P. W. 10 belonging to Banwala. At that time, the appellant, Modan Singh had a pistol container and bandolier on his shoulder. Sampuran Singh had a pistol. P. W. 1 served both the accused with food and provided beds for them in the room where the deceased, Prithvi Singh was staying. When P. W. 1 left the room, the two accused, Sampooran Singh and Modan Singh and the deceased, Prithvi Singh and Mewa Singh, P. W. 10, were together. In the morning when P. W. 1 went to the outer room, he found the shutters open and a gadela and razai lying burnt outside. Prithvi Singh was lying injured and dead on his cot and a live cartridge, any empty cartridge, and used bullets were found lying near the room. A report was lodged by P. W. 1 at the Sadar Ganga Nagar Police Station at 11 AM. Padamsingh. Station House Officer, reached the scene at 2-45 p.m. and took up investigation. He recovered an empty cartridge, a loaded cartridge and lead pieces of fired pellets in the room. On 20-12-66, Sampooran Singh and Modan Singh appeared themselves at the Police Station and were arrested. From the person of Modan Singh, the Police seized. 303 country-made pistol. On 23-12-66, Modan Singh, while in Police custody, gave information and pointed out a pistol case and a live cartridge and an empty cartridge from a pistol case which was hanging on a peg fixed in the wall of his kotha.

4. In the trial Court, 12 witnesses were examined in support of the prosecution P.W. 1, Jugraj Singh, is the Sarpanch of the village, who accommodated the two accused and the deceased in his house and spoke to his leaving the outer room of his house when the two accused, the deceased and P.W. 10 were together. According to the prosecution, in his statement, P. W. 10 stated that when he took leave, the two accused and the deceased bolted their room and were together. The two witnesses were examined for the purpose of establishing that the accused and the deceased were found together on that night. It is not disputed that when in the morning, P. W. 1 came to his outer room, he saw the deceased lying dead with injuries.

5. Apart from these two witnesses, the prosecution relied on the evidence of the recovery of a fired cartridge. Ex. 9 which was recovered from the scene of occurrence and Ex. 8, a pistol which was recovered from the person of the appellant, Modan Singh, when he was arrested at the Police Station. According to the prosecution the fired cartridge Ex. 9 and the pistol Ex. 8 were recovered after observing due formalities and were kept sealed properly till they were sent to the Ballistic expert, Shri Sharma, who was examined as P.W. 9 in the case. The expert in his evidence stated that on an examination of the fired cartridge. Ex. 9 and the pistol Ex. 8 he found the cartridge Ex. 9 had been fired from the pistol Ex. 8. The trial Court found that to the extent that Sampooran Singh, Modan Singh and Mewa singh were the only persons left with the deceased in the outer room of Jugraj Singh ha