IMPORTANT POINTS
Minor discrepancies in evidence are immaterial.
In case of conflict between ocular and ballistic evidence, ocular one will prevail.
Statement of witness recorded belatedly will be admissible if delay is duly explained.

JUDGMENT

S.A. Bobde, J.

Criminal Appeal No.827 of 2011 is filed by P.W. 1 (Himanshu Mohan Rai) and the same is directed against the acquittal of respondent No.2 - Imran Afreen. The Sessions Court convicted the respondent-accused under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as the `IPC') for the murder of the deceased, Lalit Mohan Rai. He was sentenced to life imprisonment along with a fine of Rs. 50,000/- by the Sessions Court. The High Court set aside the judgment of the Sessions Court and acquitted the respondent-accused. The State of Uttar Pradesh has also preferred Criminal Appeal No.829 of 2011 against the acquittal.

The FIR

2. The incident took place on 01.01.2005 between 20:30 - 21:00 hours in front of Hotel Shalimar which belonged to the deceased and his brother. The FIR was registered on the same day at 23:05 hours by one, Himanshu Mohan Rai (P.W.1), the brother of deceased. According to the FIR, the offence was committed by Imran Afreen, and two of his accomplices whose names and addresses were unknown at the time of the reporting of the offence. The informant reported that at about 20:30 hours, a waiter from his hotel, namely Manoj Kumar Singh alias Bahadur had gone to Varuna Bridge to bring milk. While returning to the hotel from getting the milk, he collided with the appellant who along with his accomplices was in a state of intoxication. They assaulted the waiter in their state of inebriation, and the waiter ran into Hotel Shalimar for taking refuge. The appellant followed the waiter in Indigo Car No.U.P.-65-X-0002 and his accomplices followed the waiter on Yamaha motorcycle No.U.P.Z-5214. They forcibly entered the hotel and started beating the waiter up.

The first informant, the deceased and Rajnath Singh (owner of the hotel building) tried to pacify the assailants and took them outside the hotel. Outside the hotel, the appellant took out his pistol and fired several shots at the informant's older brother, Lalit Mohan Rai. Lalit Mohan Rai got injured and fell down. Chander Shekhar Rai, Krishan Kumar Singh and many others gathered upon hearing the sounds of the gun shots. Looking at the crowd, the accused and his accomplices ran away leaving their vehicles behind.

Lalit Mohan Rai was taken to Chauraha Hospital for treatment where he died.

The Investigation

3. The investigation was initially conducted by Station Head Officer, D.P. Shukla (P.W. 6). The appellants alleged that D. P. Shukla was hand in gloves with the accused. The offence registered under Section 302 IPC was changed by the police inspector and registered under Section 304 IPC instead. Consequently, the investigation was transferred to a sub-inspector by the name of Srinivas Pande (P.W. 5). The appellant complained that Srinivas Pande was partial to the accused and thereafter, the investigation was transferred back to an inspector by the name of R.K. Singh (P.W. 7).

4. The accused was arrested on 05.01.2005.

The Sessions Court

5. The Sessions Court convicted the three accused Imran Afreen, Gufran Afreen and Abdul Wasi for the offence under Section 302 of the IPC. Gufran Afreen and Abdul Wasi were found to be juvenile and therefore prosecuted under the Juvenile Justice Act.

The Sessions Court found that the prosecution story was proved. Imran Afreen got into an altercation with Bahadur, the waiter of Hotel Shalimar. Bahadur ran into Hotel Shalimar which was run by the deceased and his brother (P.W. 1). Imran Afreen in an Indigo car and the other accomplices on a Yamaha motor bike followed Bahadur and entered the hotel. Lalit Mohan Rai along with Himanshu Mohan Rai and Rajnath Singh took the assailants outside the hotel to pacify them. Outside the hotel, there was a heated discussion upon which one of the accomplices exhorted Imran Afreen to fire the shot by saying-"what are you looking at?" and told him to shoot and kill Lalit Mohan Rai. Imran Afreen then fired five rounds. Lalit Mohan Rai fell down and was taken to the hospital by P.W