1. The evidence of eye-witnesses must be considered with caution if they were not examined by the police during investigation and there is no explanation for the lapse. 2. Recovery of a weapon from the possession of an accused can be relied upon even if the accused is acquitted of the charge of possessing an unlicensed firearm, as the onus is on the accused to prove that the weapon was licensed.

JUDGMENT :

L. Rath, J. - This is an appeal by a convict from jail having been convicted u/s 302 I.P.C. and sentenced to imprisonment for life. The Appellant had also been prosecuted u/s 27 of the Arms Act, but has been acquitted of the charge. It is the case of the prosecution that the Appellant and deceased Raghunath Mohapatra were neighbors, and that their Baris were adjoining each other. There were previous litigations between the parties for which they were in inimical terms. On the date of the occurrence, i.e. 14-2-1982 at 2.00 p.m. the deceased along with his wife P.W. 7 and daughter P.W. 1 was sitting in his Bari cleaning arum. The back of the deceased was to the South in which direction the house of the Appellant is situated. To the immediate north of the house of the deceased is the house of P.W. 2, his brother. In between the houses of the deceased and the Appellant there was an incomplete wall of about four feet high. P.Ws. 1 and 7 were sitting with the deceased cleaning the arum facing each other. While they were at the work, P.Ws. 1 and 7 heard a gun shot sound. They immediately looked up at the direction of the sound and found' the muzzle of a gun resting on the wan with the Appellant behind it and the muzzle emitting smoke. It is the P.W. 7's version that the Appellant immediately sank down noticing P.W. 7 looking at him. Both P.Ws. 1 and 7 then heard the groan of the deceased telling that he was dying and he died instantly because of the gun shot wound. Alarm was raised which brought several people to the spot. The villagers surrounded the house of the Appellant but the Appellant threatened them stating that he had shot the deceased and would shoot others also. Later on the, Officer-in charge of Banpur P.S. arrived by evening and arrested the Appellant. He also seized the gun from the house of the Appellant. F.I.R. was lodged by P.W. 5, the son of the deceased, who is not an eye-witness. After investigation was completed the charge sheet was submitted. In the post-mortem examination of the deceased two pellets were recovered from his lungs. The pellets as also the gun were sent to the State Forensic Science Laboratory at Rasulgarh for examination and in its report Ext. 13 it was stated that the pellets were possible to have been fired from the gun M.O. II. In the autopsy conducted by P.W. 12 it was found that the deceased had suffered a lacerated injury at the posterior aspect of his neck one c.m. below the mastoid region on the left side 1 c.m. x 1 c.m. x tissue deep, another lacerated injury on the upper 1/3rd of the left side of the back chest and scattered injury marks numbering about 14 to 15 on the left side of the back. On opening the chest it was found that the muscles had been lacerated and there was fracture of the fourth rib, laceration of the left lung and the lower lobe of the lung congested with dark blood clots. The cause of death was found to be the gun shot injuries resulting in respiratory failure. The gun shot which was ante mortem in nature had entered the neck and had reached the lungs. The injury was sufficient in ordinary course of nature to cause death.

2. The prosecution case was sought to be established through P.Ws. 2, 1 and 7 respectively the brother, daughter and wife of the deceased. The daughter P.W. 1 though has given a graphic picture of the entire case of the prosecution, yet her evidence is sought to be assailed on the ground that she had not been examined by the police during investigation even though admittedly according to her statement as also the statement of P.W. 7 she was present at the spot cleaning arum along with her father and mother. The evidence of the two investigating officers, P.Ws. 10 and 11, also does not show that they had examined the witness during investigation. It has of course been pointed out by the learned Addl. Government Advocate that in the case diary the statement of P.W. 1 appears to have been recorded, but however since such fact has not been depo