( 1. ) IN this appeal, the appellant Dayaramsingh has challenged his conviction under Section 302 of the I. P. C. for which he was sentenced to undergo imprisonment for life.

( 2. ) ALONG with the appellant, four other accused viz. , Harisingh, Ajmersingh, Ramswaroop and Kaptansingh were also prosecuted under Sections 147 and 302/149 of the I. P. C. but they were acquitted of these offences. The appellant was also acquitted of these charges.

( 3. ) THE prosecution case is this; On 5-2-1970, the appellant along with others, came to the deceased Khalaksingh where the appellant fired at him with a 12 bore gun. The firing was preceded by exchange of abuses between them. After receiving the gun shot injuries, the deceased walked few paces and fell down profusely bleeding. Villagers assembled there including Jhandusingh (P. W. 5) deceaseds own brother, before whom Khalaksingh made an oral dying declaration naming the appellants as having shot at him, Jhandusingh (P. W. 5) went to the police station and lodged the F. I. R. Ex. P-3 at 5 p. m. the same day,

( 4. ) AN inquest was held over the dead body of Khalaksingh as per inquest report Ex. p-1 dated 5-2-1970.

( 5. ) DR. Kulshrestha (P. W. 11) performed the post-mortem examination on the dead body of Khalaksingh on 6-2-1970 and as per post-mortem report Ex. P-15, found as under: There was a lacerated wound 12 cm. x 10 cm. x 8 cm. irregular in shape, over the left axilla and chest. Blood-clots were present. There was tattooing around the wounds and the muscles were lacerated, pleura was lacerated on the left side. Left lung was lacerated, 2nd and 3rd ribs were found fractured". According to Dr. Kulshreshtha, Khalaksingh died due to the gun shot injury which was ante mortem in nature and was sufficient in the ordinary course of nature to cause death. According to him, death must have been instantaneous but there was possibility that the victim might have survived hardly a few minutes, i. e. , for 2 or 3 minutes.

( 6. ) REGARDING the opinion of Dr. Kulshreshtha, Shri Shukla, Civil Surgeon, Morena (C. W. I) was examined who, after going through the post mortem report, stated that the victim must have died instantaneously or may have survived for sometime after receiving the gunshot injury. He stated that the opinion given by Dr. Kulshreshtha could not be supported or endorsed to the extent of ruling out of probability of survival for some time.

( 7. ) AS per seizure memo Ex. P. 4, blood stained 12 bore pellets were seized having been received from the hospital in a sealed condition. From the appellant, as per seizure memo Ex. p. 5, a 12 bore gun with 9 cartridges and licence, was seized as per seizure memo Ex. p. 5. The appellant was arrested on 28-2-1970, as per arrest memo Ex. p. 6. Blood stained earth was seized from the place of shooting as also from the place where the injured had fallen down, as per seizure memos Exhibits p.-12 and p-13.

( 8. ) AS per Ballistic Experts report Ex. p. 16, the gun seized from the appellant was not in perfect working condition, but it was capable of firing 12 bore cartridges.

( 9. ) THE appellant abjured his guilt and pleaded false implication.

( 10. ) THE point for decision in this appeal is whether the appellant shot dead Khalaksingh on 5-2-1970.

( 11. ) WE have heard Shri J. P. Gupta, Advocate, for the appellant and Shri M. A. Shah, Dy. Government Advocate for the State. We are of the view that conviction of the appellant under Section 302 of the I. P. C. is well merited.

( 12. ) BEFORE us, neither Shri Gupta nor Shri Shah, disputed that Khalaksingh is dead. His dead body was seen by number of prosecution witnesses including his own brother Jhandusingh (P. W. 5 ). An inquest was held over his dead body as per inquest report Ex. p. 1. Dr. Kul-shreshtha (PW 11) performed the autopsy on his dead body and opined that he died because of gun shot injuries. We thus find that Khalaksingh is dead and that his death was homicidal,

( 13. ) BEFORE we discuss the