( 1. ) THE appellant has preferred the instant criminal appeal against the judgment and findings dated 18-1-1989, passed by the learned Special Judge and First Additional Sessions Judge, Tikamgarh, in Special Session Trial No. 34/84, whereby the accused has been convicted tor offence under Section 302, IPC and sentenced to life imprisonment.

( 2. ) BRIEFLY narrated the facts of the case are that on 10-5-84 in the night at about 10. 00 p. m. , accused Ramsingh went to the house of deceased Heera, and asked for Ghee which being out of stock, was declined. A little thereafter, accused Ramsingh again came to the house of the deceased and took him along on pretext of discussing something, upto the house of Nandu Lohar and shot him in his chest. As a result, Heera collapsed and met instant death. The First Information Report was lodged by Balchandra (P. W. 1) son of the deceased on 11-5-84 at about 5. 00 oclock. The post-mortem of the dead body was conducted on 11-5-84 at 4. 15 p. m. by Dr. H. G. Chinchaidkar, Assistant Surgeon (P. W. 5 ). The pccused was arrested on 13-5-84 by Girar police of District Lalitpur in Uttar pradesh from village Piparia and from his possession one S. B. B. I. gun and ten cartridges were seized. During investigation it was revealed that prior to the incident accused Ramsingh had entered into conspiracy with other accused Mohan Singh, Halke and Hallesingh alias Baldeo Singh for causing death of the deceased. This conspiracy part was over heard by Bhadur Singh (P. W. 10) and Arjun Singh (a former Sarpanch) (P. W. 14 ). The eye-witnesses of the incident as per prosecution story are Balchandra (P. W. 1), Sukki Singh (P. W. 2), Udal (P. W. 7) and Uday Bhan Singh (P. W. 9 ). After usual investigation charge-sheet for offence under Sections 302/120-B of the IPC and Section 25/27 of the Arms Act against accused appellant Ramsingh and under Section 120-B, IPC against other accused Mohan Singh, Halke @ Govind Singh and Hallesingh @ Baldeo Singh was put up before the Trial Court. The accused persons denied the charges and pleaded false implication due to enmity.

( 3. ) THE Trial Court on appreciation of prosecution evidence on record came to the conclusion that on 10-5-84 in the night Heera was done to death in Village Bhaswari by causing gun shot injury. However, the learned Trial Judge found that conspiracy part of the offence not worth believing as there was enmity between Arjun Singh (P. W, 14) and accused Baldeo Singh on account of election of Village Panchayat. Accordingly, the learned Trial Judge did not find the offence under Section 120-B proved against the accused persons. The evidence of eye-witnesses Sukki Singh (P. W. 2) and Udal (P. W. 7) were found unimpeachable as regard causing gun shot injury to deceased Heera Lodhi by accused Ramsingh. Consequently, the learned Trial Judge found accused Ramsingh guilty of offence under Section 302, IPC and sentenced him to life imprisonment. The charge against the accused under Sections 25/27 of the Arms Act was dropped on account of lack of jurisdiction of the Trial Court as the gun and cartridges in question had been seized in District Lalitpur (U. P. ).

( 4. ) DURING the hearing of the appeal, Ms. Neena Khera, learned counsel for the appellant took us through the records of the case and pointed out infirmities in the evidence of eye-witnesses Sukki Singh (P. W. 2), Udal (P. W. 7) and Uday Bhan Singh (P. W. 9) mainly on the ground that Sukki Singh (P. W. 2) has deposed that Balchandra (P. W. 1) is not an eye-witness whereas Udal has admitted existence of village faction. Ms. Neena Khera also submitted that the time of incident being night it was not possible to identify the accused.

( 5. ) ON the other hand, Shri R. A. Robertson, learned counsel for the State submitted that the Trial Court has not taken into account the statement of Balchandra (P. W. 1), and, therefore the submission of the learned counsel for the appellant that he was not an eye-witness har