JUDGMENT

NAVIN SINHA, J.

The appellant is aggrieved by his conviction under Section 302 of the Penal Code, 1860 (in short “IPC”) affirmed Narsingh Pal v. State of U.P. by the High Court.

2. The appellant is stated to have come to the house of the deceased accompanied by two unknown persons. The deceased sustained three firearm injuries consequent to the firing made upon him. PW 1, son of the deceased, is an eyewitness and also the informant. PW 2 is an independent eyewitness supporting the case of the prosecution in his examination-in-chief but retracted in cross-examination. He was never declared hostile.

3. The plea on behalf of the appellant is of false implication, alibi and disputing that PW 1 was an eyewitness. Reliance was also placed on the cross-examination of PW 2 to submit that he was not an eyewitness. Delay in lodging of the FIR was also contended urging that it was lodged after consultation. There are no independent witnesses from the village. The allegation of village political rivalry was false. The appellant had attended the cremation of the deceased which was an unnatural conduct, if he was actually the assailant. PW 1 vacillated between stating that he saw the appellant in the torchlight carried by PW 2, and subsequently stated to have seen the appellant in the light emanating from the truck.

4. The learned counsel for the State contended that the conviction calls for no interference in the nature of the evidence.

5. The prosecution case is that in the night of 23-6-2005 the deceased and PW 1 had gone at about 10.00 p.m. to the house of one Rajendra Singh to attend a feast. The witness returned home at about 10.45 p.m. alone and the deceased returned at about 11.20 p.m. The witness was lying on a cot 17 steps away from the deceased. The appellant and the witness being residents of the village were known to each other since earlier. PW 2 who had also gone for the feast reached near the house of the deceased at about 11.30 p.m. The witness was carrying a torch. When the appellant and the unknown accused were running away after the assault at about 11.30 p.m., PW 1 and PW 2 saw the appellant running away from the place of occurrence. The house of the deceased was located along the G.T. Road on which trucks usually travel at night. The light emanating from the truck also facilitated identification of the appellant. The FIR was lodged promptly at 00.30 a.m. on 24-6-2005 by PW 1 naming the appellant. Apparently, the accusation was not the result of any consultation but the immediate confirmation of the appellant being the assailant. The fact that there may have been some delay in sending it to the Magistrate is therefore inconsequential and has caused no prejudice to the appellant. The deceased had just returned from a feast. The post-mortem was done at 9.30 a.m. on 24-6-2005. Naturally, semi-digested food was also found in the stomach reinforcing the accusations being made by PW 1.

6. PW 2 in his examination-in-chief completely stood by the accusation against the appellant and the narration was in accordance with that made by PW 1. The torch of this witness was also seized by the police and marked as Ext. KA-3. No doubt in his cross-examination, he retracted by stating that the name of the appellant was told to him by the villagers. The witness was however not declared hostile. We see no reason to take any view different from that of the trial court that PW 2 was examined on 06-06-2006. Thereafter he did not appear for cross-examination, leading to issuance of non-bailable warrant, only after which he was cross-examined nearly one year later on 23-4-2007, giving sufficient time to the witness to have a rethink with regard to the accusation, may be at the behest of the appellant.

7. The truthfulness of the FIR lodged by PW 1 that the appellant was accompanied by two others who were unknown is corroborated by the post-mortem report that the deceased suffered three bullet injuries. The trial court has also rightly opined th