JUDGMENT :

Manish Kumar Nigam, J.

This appeal has been filed against a judgment and order of the Second Additional District & Sessions Judge dated 29.05.1999 by which the accused was convicted for the offence under section 302/34 and 307/34 of the INDIAN PENAL CODE and was punished for life under section 302/34 IPC and was to undergo for rigourous imprisonment for a period of 7 years for the offence under section 307/34 IPC.

2. The prosecution case as per the First Information Report lodged by one Sohan Singh was that when Sohan Lal and the deceased Jaswinder Singh had gone to get puncture of the tyre of the trolly repaired on a Gypsy No.DNC 4414 and were getting the puncture repaired then at about 9.30 PM, the accused Surat Singh had exhorted three persons to fire on the deceased Jaswinder Singh. The three persons had fired on Jaswinder Singh with an intention to kill him and thereafter Jaswinder Singh died. It is also the case of the prosecution that a few bullets also hit the first informant. The first informant has stated in the First Information Report that there were electricity bulbs at the place where the incident had occurred. He has also stated that the incident was witnessed by the first informant and a few of the neighbouring shopkeepers. After the incident had occurred, a First Information Report was lodged by Sohan Lal on 18.03.1996 at 3.00 PM. Thereafter investigation followed and the police submitted its charge-sheet in the Court and the IInd Additional District & Sessions Judge, Bijnor on 20.08.1996 framed charges against the appellant. When the appellant was convicted for the offence under section 302/34 and 307/34 of the INDIAN PENAL CODE , the instant appeal has been filed.

3. During trial, seven prosecution witnesses namely Dr.R.S. Rana-PW1; Sohan Lal-PW2; Subhash Chandra-PW3; Rajendra Singh-PW4; Charan Pal Singh-PW5; Brahmpal Singh-PW6 and Vijay Kumar-PW7 were examined from the side of the prosecution. The accused Surat Singh answered the questions under section 313 Cr.P.C. and claimed innocence. From the side of defence, four witnesses namely Islam Siddiqui; Barun Kumar; Naresh Kumar and Rajendra Kumar were brought in as DWs-1, 2, 3 and 4 respectively.

4. The PW1 was a doctor who had examined the injured Sohan Lal (PW2) and had proven the injury report. PW2 was Sohan Lal who claims himself to be an eye-witness. He has stated in his deposition that he recognized and knew Surat Singh who was present in the Court. He had stated that the deceased Jaswinder Singh was the younger brother of the accused. He has also stated that both the deceased and the accused were living in the houses opposite to each other. He has further stated that there were some internal disputes between the two brothers. Jaswinder had some threat to his life and, therefore, he had employed Sohan Lal as his gunman. He has stated that when there was a puncture in the tyre of a trolley then Jaswinder and PW2 had gone to Najibabad and were getting their tyre repaired at the shop of a Muslim shopkeeper. There was light from the electricity bulbs at the time at around 9.30 PM. In his further deposition, he had stated that while the tyre was being got repaired in the relevant shop, the deceased and he himself were standing in front of the shop which a little away from the puncture shop and was locked. He has stated in his deposition that from the side of Najibabad i.e. from the south of the shop, the accused-appellant Surat Singh and three others came towards the deceased and Sohan Lal and there the accused exhorted his three men who had accompanied him and said "Maaro Saale Ko Yahi Jaswinder Hai". The three persons who accompanied