JUDGMENT

T.S. Thakur, J. —

1.This appeal by special leave arises out of an order passed by the High Court of Jammu and Kashmir in Criminal Appeal No.9 of 1996 and confirmation No.21/1996 whereby the appellant’s conviction and sentence for an offence punishable under Section 302 RPC has been upheld and the appeal filed by the appellant dismissed.

2.Briefly stated, the case of the prosecution is that on 13th April 1992, the deceased Shri Kola Ram along with his brothers, Shri Balwant Raj and Tirath Ram the appellant and a large number of other people belonging to Village Nagri Parole, Tehsil and District Kathua were returning home after celebrating Baisakhi Mela at Arawan a village at a distance of a few kilometers from Nagri. The mela goers from the village had it appears formed a small procession and were dancing their way back to the beats of a drum. The prosecution case is that when the participants reached near a rice mill, owned by one Shri Dharampal, the deceased, Kola Ram who was also one of the revellers trampled the foot of the accused-appellant, Narinder Kumar. This led to exchange of hot words and abuses between the deceased and the appellant. Other members of the party intervened to cool the tempers but the appellant left the spot in anger only to return a short while later with a 12 bore gun in his hand. By that time the dancing party had reached a place near the shop of Vijay Kumar in Nagri Parole. The appellant is alleged to have pushed aside the brother of Kola Ram with the barrel of his gun, fired at the deceased from close range and fled from the spot carrying the weapon with him. The deceased fell to the ground after receiving the gunshot injury and was quickly removed to Kathua hospital where he was declared dead.

3.On receipt of information from the hospital regarding the arrival of a medico legal case, Shri Darbari Lal Sharma, ASI swung into action and rushed to the hospital along with other police personnel only to be told that the deceased had already passed away. The assistant sub-inspector recorded the statement of Balwant Raj, PW which was taken as the FIR regarding commission of the offence that kick started investigation into the whole episode. A challan was eventually filed before the Illaqa Magistrate against the appellant who committed him to the Court of Sessions for being tried for offences punishable under Sections 302/323 RPC and Section 3 read with Section 25 of Arms Act. Before the Sessions Court the accused pleaded not guilty to the charges and claimed a trial. A trial accordingly followed at which the prosecution examined as many as 20 witnesses including PWs Balwant Raj, Khazan Chand, Babu Ram, Tirath Ram and Jia Lal who had, according to the prosecution, witnessed the incident. Among the others examined by the prosecution were Dr. K.P. Singh who conducted the post- mortem of the deceased, Dr. J.L. Fotedar, the forensic expert and the police officer who conducted the investigation. In his defence the appellant examined DWs Ashok Kumar, Ravindra Kumar and Ajay Sharma alia Bilu and Dr. Daljeet Singh as his witnesses.

4.Appreciation of the evidence adduced before it led the trial court to hold that the prosecution had established the commission of an offence punishable under Section 302 RPC against the appellant beyond any shadow of doubt. The Court, however, found no evidence to support the charge regarding the commission of the offence punishable under Section 3 read with Section 25 of the Arms Act and Section 323 of the RPC. The appellant was accordingly acquitted on those counts. By a separate order appellant was sentenced to undergo imprisonment for life and a fine of Rs.5,000/- subject to confirmation by the High Court.

5.Aggrieved by his conviction and sentence the appellant preferred criminal appeal no.9 of 1996 which was heard along with confirmation reference No.21 of 1996 received from the Sessions Court. By the judgment impugned in this appeal the High Court has dismissed the appeal f