JUDGMENT :

A.Y. Kogje, J.

1. The present appeal under Section 378 of the Code of Criminal Procedure is preferred by the State against the judgment and order dated 17.10.1997 passed by the Additional Sessions Judge, Sabarkantha at Himmatnagar in Sessions Case No.127 of 1993, recording the acquittal of the respondent of the charge of Section 302 of the INDIAN PENAL CODE .

2. It is a case where the respondent who was working as a Police Constable and the deceased-Mahendrasinh were good friends and on 16.12.1992 at 4:00 p.m. while Mahendrasinh was at his work, the respondent came there and using the service gun fired upon the deceased, thereby killing him.

3. Learned Additional Public Prosecutor has taken this Court through the charge and thereafter, the evidence of the eyewitnesses as also the evidence of the panch witnesses and the medical evidence as well as the evidence of the police officers including the investigating officer to submit that the Sessions Court has committed an error in acquitting the respondent.

4. Learned Additional Public Prosecutor submitted that the prosecution had relied upon the evidence of the eyewitnesses which included the informant, Jayantikumar Bharatbhai Patel, in whose shop the deceased was working and the shop being the place of occurrence. It is submitted that though this witness has been declared hostile, from the cross examination by the prosecution the contents of the FIR and witness has been contradicted for the same.

4.1. Similarly, learned Additional Public Prosecutor has also drawn attention of this Court to the other independent witness, Ratibhai Patel, who is an independent shop owner near the place of incident and has confirmed the presence of the respondent in police uniform carrying the service rifle with him. It is submitted that though this witness has not supported the case of the prosecution in entirety, yet his version with regard to the presence of the respondent at the place of offence get established.

4.2. Thereafter. Learned Additional Public Prosecutor has heavily relied upon the evidence of witness valambhai Rupabhai, who was at relevant time working as Head Constable in the headquarter to submit that the accused was allotted rifle and 20 cartridges, whereas after the offence only 19 cartridges were received from the accused and therefore the Session Court ought to have concluded that the missing cartridge was of the bullet which was fired upon the deceased and as the firing has taken place from the service rifle issued to the respondent, the prosecution has established the use of the firearm issued to the petitioner and firing from which has resulted in the death of the deceased.

4.3. The Ld APP relied Upon the evidence of witness-Ishwarsinh Jagatsinh, who was the co-employee of the respondent and was performing duty alongwith the respondent in patrolling. This witness deposed that in the afternoon the respondent had gone on duty and has thereafter never resumed his duty after the break and therefore his conduct after the incident ought to have been considered by the Sessions Court for the role of the respondent in the offence.

4.4. Learned Additional Public Prosecutor submitted that the discovery panchnama of the weapon used in the offence is attributed to the respondent and that the service rifle from which the firing took place was found from the hotel belonging to the brother of the respondent. It is submitted that though the Panch witnesses have turned hostile, yet the discovery panchnama ought to have been treated as admissible evidence as the panchnama was exhibited through the Investigating Officer.

4.5. Learned Additional Public Prosecutor has relied upon the evidence of Mul