The main legal point established in the judgment is that the variance between ocular evidence and medical evidence should not lead to the rejection of the prosecution's case, and investigating agency's lapses during the investigation should not be grounds for rejecting trustworthy and reliable evidence.

K. C. SHARMA, J.

( 1 ) THIS appeal under Section 374 (2) of the Criminal Procedure Code is directed against the judgment of conviction and order of sentence dated 16/01/1998 passed by the learned Judge, Special Court (Communal Riots) and Additional Sessions Judge, Tonk by which he has convicted appellant Amba Lal for offence under Section 302, I. P. C. and sentenced him to undergo life imprisonment and to pay a fine of Rs. 200. 00, in default of payment of fine to further undergo one months imprisonment. Under Section 3/25 of the Arms Act, the appellant has been sentenced to suffer three years imprisonment and to pay fine of Rs. 200. 00, in default of payment of fine to further undergo one months imprisonment.

( 2 ) THE relevant facts giving rise to this appeal are that on 17-4-1996 at 11. 30 a. m. Dev Lal P. W. 1 submitted a written report Ex. P. 1 on the spot to SHO Police Station Dooni, District Tonk alleging therein that in the morning, he left the house for Raj Mahal for some work where his mother Smt. Nandu PW 2 informed him that in the morning at about 7. 00 a. m. some altercation was going on in between Amba Lal and Nanda in connection with the way for going to fields. She went there to comprehend them. She further informed that Amba Lal fired gun shot at Nanda and thereafter ran away from there. Nanda fell down on the ground and died. It was mentioned that Nanda smeared with blood was lying at the place of occurrence. It was further mentioned that he informed the police telephonically on the same day. It was mentioned that his mother and wife Kailashi had seen firing of gun shot at his brother. The police on the basis of this written report registered a case for offence under Section 302, I. P. C. and 3/27 of the Arms Act vide FIR No. 73/96 Ex. P. 12 and proceeded with investigation.

( 3 ) DURING investigation, the police inspected the site and prepared the site-plan. Ex. P/3, inquest report Ex. P. 2, and seized the blood smeared soil vide memo Ex. P. 6, blood stained shirt of deceased vide Ex. P. 7 and Controlled soil vide Ex. P. 8. The police got conducted post mortem on the dead body and collected the post mortem report Ex. P. 4.

( 4 ) PW 4 Dr. Ghanshyam Agrawal who conducted post mortem, noticed in all three gun shot injuries viz. , (1) at left nipple (2) 1" below left nipple and (3) at lateral side of left knee. In the opinion of the Doctor, the cause of death of Nanda was shock and cardio respiratory failure due to injury to vital organs, heart and left lung sustained wtih a firearm.

( 5 ) SHO Ranglal, P. W. 11 arrested the accused Amba Lal vide memo Ex. P. 13. Amba Lal furnished information under Section 27 of the Evidence Act for recovery of gun vide Ex. P. 14 and in pursuance thereof gun was recovered vide Ex. P. 15. The site plan of place of recovery is Ex. P. 16. Recovered gun, shirt of deceased and three pellets found embedded in the body of deceased were sent to the FSL for examination, the report of which is Ex. P. 17.

( 6 ) HAVING completed entire formalities as to the investigation, the police submitted a charge sheet in the Court of concerned judicial Magistrate. The learned Magistrate having found the offence exclusively triable by the Court of Sessions, committed the case to the learned Judge, Special Court, Communal Riots, Tonk for trial and decision.

( 7 ) THE learned trial Court on the basis of material available before it and after hearing counsel for the accused and the Public Prosecutor, framed charges against the appellant under Section 302, I. P. C. and Section 3/25 of the Arms Act. The appellant denied the charges and claimed trial.

( 8 ) IN the course of trial, the prosecution examined as many as 12 witnesses and got exhibited some documents. Thereafter, the accused appellant was examined under Section 313, Cr. P. C. In defence, two witnesses were examined.

( 9 ) AT the conclusion of trial, the learned trial Judge found the prosecution case as alleged proved and having hel