IMPORTANT POINT
Credible eyewitness accounts can outweigh minor discrepancies, and motive becomes irrelevant when there is trustworthy eyewitness testimony.

JUDGMENT :

Anish Kumar Gupta, J.

1. Heard Sri Devendra Kumar Mishra, learned counsel for the appellant and Sri Amit Sinha, learned AGA for the State.

2. The instant criminal appeal has been filed by the appellant-Khemi being aggrieved by the judgment and order dated 15.02.1986 passed by the Vth Additional Sessions Judge, Mathura in S.T. No. 302 of 1985 (State vs. Phooli and others) under Section 302/149 IPC, P.S. Nauhjhil, District Mathura, whereby the appellant has been convicted for the offence under Section 302 IPC and has been awarded sentence of life imprisonment.

3. The prosecution story, in brief, is that the P.W. 1, Teeka Ram lodged a report at 02:45 A.M. on 02.04.1984 alleging that in the night intervening 1/2.4.1984, his brother deceased Ram Swarup was sleeping on a cot in front of his house. The informant Teeka Ram was also sleeping in front of his house, which was adjoining to the house of the deceased Ram Swarup at a distance of 5 to 6 hands from the deceased. The daughters Veeri and Champa and Kasturi wife of deceased were sleeping inside the house and at nearby place, Kishori son of Doji and Prahlad son of Teeka and Handal son of Doji were also sleeping. As usual the lantern, which was lit was kept on the wall of the house of the deceased Ram Swarup. At around 12:30 in the night, five persons came there and due to the noise of their coming, the informant woke up and saw that the aforesaid five persons were standing around the cot of his deceased brother. He got up, shouted and ran towards the house. In the meantime the accused/ appellant Khemi had fired from the gun, which hit on the neck of his brother. Hearing the noise, Kishori son of Doji, Prahlad son of Teeka, Veera and Champa daughters of informant and the wife of the deceased and Handal son of Doji along with other persons of the village reached there. The informant has identified that the accused-appellant was having the gun in his hand, the other accused Dharmpal and Phooli sons of Mohan were having country made pistols in their hands and the accused Rajendra S/o Sukhi and Raghuveer S/o Nripati were having ballams in their hands and after killing the deceased, all the accused persons ran away. The informant had overheard the accused saying that since stating that the deceased had deposed against them, therefore, revenge had been taken.

4. After receipt of information, the police personnel reached on the spot and conducted the inquest at 6:30 A.M. and the dead body of the deceased was sent for postmortem. The postmortem was conducted by Dr. M.K. Srivastava, who found the following ante-mortem injuries on the body of the deceased :

(i) Fire arm wound of entry 2 c.m. x 1-5 cm x muscle deep on the Lt. Side neck just below the angle of mandible 6 c.m. below the Lt. ear scorching present on the Lt. cheek, Lt. ear and Lt. side neck;

(ii) Fire arm wound of exit 3 c.m. x 2 c.m. x bone deep on the Rt. side angle of the mandible 2.5 c.m. below the Rt. ear; communicated of the mandible. Injury communicated with injury no.1.

5. As per opinion of the doctor, the death of the deceased was caused due to shock and haemorrhage on account of ante-mortem injuries sustained by the deceased.

6. P.W. 3 S.I. Banwari Lal investigated the case till 05.04.1984 and thereafter, the investigation was conducted by S.I. K.P. Singh and S.I. V.K. Sirohi. During investigation, S.I. Banwari Lal collected the blood stained and plain soil from the place of occurrence and also the blood stained cot and the seizure memos were prepared. He also seized the lantern, which was alleged to be lit at the time of occurrence at the house of Ram Swarup. After submission of the charge sheet, the case was committed to the Court of Sessions Judge and thereupon the learned trial court framed charges against all the accused persons namely Khemi, Phooli, Doji, Prahlad and Rajendra under Sections 148 and 302/149 IPC. On framing of the charges against the accused persons, they pleaded “not guilty” and claimed trial.

7.