ORDER :

This appeal is directed against the judgment of the Division Bench of the High Court of Rajasthan Bench at Jaipur Bench dated 19.03.2007 in D.B. Crimial Appeal No. 997 of 2001. The appellant was tried for having committed murder of his real brother by name Babu Lal on 22.05.2000 at around 04.00 p.m. with the aid of his licenced gun. The occurrence was witnessed by PW-4 and PW-5. Immediately after the occurrence the deceased was removed to the hospital in a jeep by the sons of PW-5. In the hospital the deceased was examined by PW-6 Doctor Mahendra Singh Chauhan who at the instance of Investigating Officer PW-12 certified the physical and mental condition of the deceased. Statement (Ex. P-8) of the deceased was recorded in the presence of PW-6 who also attested the same.

2. Based on the above evidence and after the arrest of the appellant, the weapon which was stated to have been used in the occurrence was also recovered in the house of the appellant. In the post-mortem report, PW-11 Doctor P.K. Tiwari after having spoken about the nature of the injuries stated on oath during the course of cross-examination that in spite of serious injuries sustained by the deceased he would have survived at least for two to three hours.

Having considered the evidence available on record the trial court found the appellant guilty of the offence under Section 302 and sentenced him for life imprisonment. The Division Bench found no good ground for interference with the same and confirmed the conviction and sentence by the judgment impugned in this appeal.

3. We heard Dr. Sumant Bharadwaj, learned counsel appering for the appellant on behalf of Ms. Mridula Ray Bharadwaj, learned counsel appointed by the Supreme Court Legal Services Committee. He fervently contended that the so called eye witness PW-4 and and the supporting witness PW-5 could not have been believed, inasmuch as, their statement in cross-examination was completely in variation with what was stated in the examination-in-chief. Learned counsel contended that the deceased having suffered serious injuries as noted in the post-mortem report and huge collection of blood i.e. 2000 ml, in the chest, there would have been no scope for the deceased to survive and, therefore, exhibit P-8 would not have come into existence and ought not to have been relied upon by the courts below. Learned counsel also contended that there was no definite evidence to show that the deceased could have been removed to the hospital within a short time as the hiring of a jeep at the place of occurrence itself had taken long time for the witnesses to move the deceased to the hospital. Learned counsel also contended that in the absence of ballistic report about the bullets recovered from the body of the deceased and necessary matching of the recovered bullets with that of the weapon alleged to have been recovered at the instance of the appellant, the story of the prosecution was wholly unreliable and the conviction, therefore, cannot be sustained.

4. As against the above submissions Mr. Mukul Kumar, learned counsel for the State contended that the evidence of PW-4, PW-5, PW-6 & PW-11 is cogent and convincing and supported by the dying declaration (Ex. P-8) apart from the recovery of the weapon itself at the instance of the appellant. Therefore, the conclusion drawn by the trial court as well as that by the High Court for convicting the appellant does not call for interference.

5. Having heard learned counsel for the parties and having perused the material papers placed before us, as well as the original record, we are also convinced that the judgment holding that the guilt, as found proved against the appellant, by the courts below was well justified.

6. The evidence of PW-4, in her examination-in-chief, was clear to the effect that at the time of the occurrence, she was in the house while the house of the appellant was in front of her house and the house of PW-5 was behind her house; that there was already some quar