JUDGMENT :

1. We have heard Sri Pankaj Kumar Tyagi for the appellant Rameshwar; and Sri Amit Sinha, learned AGA, for the State.

2. This appeal is against the judgment and order dated 01.08.1996 passed by the First Additional Sessions Judge, Muzaffarnagar in S.T. No.266 of 1994, arising out of case crime no.33 of 1993, P.S. Ratanpuri, district Muzaffarnagar, whereby the appellant Rameshwar has been convicted and sentenced as follows: imprisonment for life under Section 302/34 IPC; and 10 years R.I. under Section 449/34 IPC. It be noticed that two persons were put to trial, namely, Rameshwar (the appellant) and Vinod. By the judgement and order impugned while convicting and sentencing the appellant as above, the co-accused Vinod has been acquitted by extending the benefit of doubt to him.

INTRODUCTORY FACTS

3. The prosecution case in a nutshell as per the written report (Ex. Ka-1) is that on 12.4.1993 at about 8 pm in the night when the deceased Salek Chand was in his house, watching TV in his room, two gunshots were heard by neighbours, namely, Jitendra (PW-2), Deshraj (not examined) and Dharmo (not examined). When they arrived at the spot, they noticed Rameshwar (the appellant) and another person, having country made pistols in their hand, scaling the eastern wall of the house of the deceased and escaping towards south. Inside that room, Salek Chand (the deceased) was noticed dead with injuries.

4. The written report (Ex. Ka-1) of the incident was given by the deceased's brother (PW-1) at P.S. Ratanpuri. Chik FIR (Ex. Ka-3) and GD entry No.25 (Ex. Ka-4) of the written report was prepared by PW-4 at 21.25 hrs on 12.04.1993 giving rise to case crime no.33 of 1993 at P.S. Ratanpuri, District Muzaffarnagar. The inquest was conducted at the spot and was completed by 24.00 hrs (i.e. midnight of 12/13.04.1993) of which inquest report (Ex. Ka-5) was prepared, which was witnessed by five persons. But neither the informant nor any of the persons who witnessed the accused escaping were witnesses to the inquest report. Autopsy of the cadaver was carried out by Dr. S. Tandon (PW-3) on 13.04.1993 at about 3 pm. As per the autopsy report (Ex. Ka-2), the external examination of the body revealed that rigor mortis was present all over the body. The abdomen was distended. Ante-mortem injuries were as below:-

"1. Gunshot wound of entry with lacerated margin 6.5 cm x 2.5 cm x vertabrae deep on left side of the neck in front. The wound extends from mid line to 3 cm below labula of the ear left. The direction of wound is from right to left and from front to back with evidence of fracture of the third cervical vertabrae and evidence of laceration and rupture of neck vessels.

2. Gunshot wound of exit 4.5 cm x 2 cm x vertebrae deep on the back, left side of neck, adjacent to the mid line. The wound was communicating through and through to the injury no.1.

Note: One large metallic shot removed from injury no.1, sealed and handed over to the constable concerned.

3. Gunshot wound of entry 2 cm x 1.5 cm x abdomen cavity deep on right side front of abdomen. Blackening around the entry on the skin present. The direction of wound was from front to back. It was situated at 9 O'clock position, 2 cm right lateral to umblicus.

4. Gunshot wound of exit 2 cm x 2 cm x abdominal cavity deep on right side of the back, adjacent to mid line."

According to the opinion of the doctor, death was due to shock and haemorrhage as a result of ante mortem firearm injuries and the same could have been caused three-fourth of a day before.

5. During the course of investigation, the investigating officer collected: (i) blood stained mat from the cot inside the room where the deceased was shot, of which seizure memo (Ex. Ka-11) was prepared; and (ii) blood stained earth and plain earth from the spot, of which seizure memo (Ex. Ka-12) was prepared. A custody memo (Ex. Ka-13) in respect of the torch alleged to have been used to witness the accused escaping from the spot was also prepared, as per