The central legal point established in the judgment is the reliance on eyewitness testimony and medical evidence to prove the guilt of the accused under Section 302 and Section 34 IPC.

Prafulla C. Pant, J.

These two appeals, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), are directed against the judgment and order dated 12th September 1995, passed by learned Additional Sessions Judge, Roorkee, in Sessions Trial No. 133 of 1991, whereby the appellants Babli alias Vinay Kumaar, Suresh and Samsher alias Sakal are convicted under Section 302 read with Section 34 of the Indian Penal Code (hereinafter referred to as I. P. C.) and each one of the convicts is sentenced to imprisonment for life and directed to pay a fine of Rs. 500/- and in default of payment of which, the defaulter convict has to undergo further one year rigorous imprisonment.

2. Heard learned Amicus Curiae for the appellants and learned Brief Holder for the State.

3. Prosecution story, in brief, is that on 10-12-1990 at about 4-15 p.m., complainant Dayanand Sharma (P.W.1) resident of 115, Nehru Nagar, Roorkee, along with his son Praveen Kumar (deceased) was going on motor bike towards Ghasmandi to buy a cassette. When the two reached near Gandhi Bal Niketan, the complainant started talking to Naresh Kumar (P.W.2) and Saeed Kadri (P.W.3), the three accused namely Shamsher alias Shakal and Babli alias Vinay Kumar armed with country-made pistol and Suresh, armed with Khukari (a sharp edged weapon) came on their motor cycle. They surrounded Praveen Kumar and on the instigation of Shamsher alias Shakal, Babli alias Vinay Kumar fired on the head of Praveen Kumar, and accused Suresh gave blows with Khukari on the person of Praveen Kumar. After causing injuries, the three fled away in their bike from the place of incident. Soon thereafter, police from Police Station Gang Nagar reached at the spot and complainant with the help of others took Praveen Kumar to Civil Hospital Roorkee for medical treatment. after reaching there, complainant lodged First Information Report (Ext. A-1) on the same day, i.e. on 10-12-1990 at 5 p.m. against the three accused relating to an offence punishable under Section 307 IPC. However, injured Praveen Kumar succumbed to his injuries and the case was converted to one relating to the offence punishable under Section 302 IPC. When Praveen Kumar aged 20 years was brought to Civil Hospital Roorkee for medical treatment, injuries on his person were recorded by Dr. Arun Kumar (P.W.8), who prepared injury report (Ext. A-16). After the first aid, injured Praveen Kumar was referred by the Medical Officer for further treatment to Meerut, but before he could be taken to Meerut, he was taken to another local hospital, where he was declared brought dead.

4. The investigation was taken up by Sub Inspector Dhanpal Singh Chauhan (P.W.7). The inquest report (Ext. A-2) was prepared by the police in presence of the witnesses. The police also got prepared sketch of the dead body (Ext. A-12), letter to Chief Medical Officer (Ext. A-13), Police Form No.13 (Ext. A-14) and sent the body for Post Mortem Examination report. The autopsy was conducted by Dr. K.P. Sarabai (P.W.5), Medical Officer of G.M.G. Hospital, Haridwar, who recorded the ante mortem injuries in the Post Mortem examination report (Ext. A-6) and opined that the deceased has died on account of haemorrhage and shock due to ante mortem injuries. Meanwhile, the Investigating Officer S.1. Dhanpal Singh Chauhan (P.W.7) inspected the spot, prepared site plan, recovery memo of blood stained soil and plain soil. He further recorded the statements of the witnesses under Section 161 Cr.P.C. After concluding the investigation, the Investigating Officer submitted the charge-sheet (Ext. A-8) against all the three accused, namely, Babli alias Vi nay Kumar, Shamsher alias Shakal and Suresh for their trial in respect of the offence punishable under Section 302 I.P.C.

5. The Magistrate, on receipt of the charge-sheet, after giving necessary copies to the accused as required under Section 207 of Cr.P.C., committed the case to the Court of Se