( 1. ) IN broad daylight, on 7-2-1981, Kedar was shot at and killed. Eye-witnesses have deposed against the appellant and the question is whether they are to be believed. The question also is if there is any other evidence on which the verdict returned by the trial Court against the appellant on the charge of murder of kedar can be sustained.

( 2. ) THE appellants defence is that he is falsely implicated and by none else than his own brother who has deposed in this case as P. W. 6. Indeed, he examined defence witness also who deposed having witnessed the occurrence and has named the culprit as one Babu Kachhi of village Kohar, since deceased. However, we are required, primarily, to assess the prosecution evidence and answer the question if prosecution has been proved beyond reasonable doubt.

( 3. ) IT is necessary first to indjcate some salient features of the investigation of the case because appellants grievance is that he has been framed up and investigation has been partisan and not open, independent and impartial. Not only eye-witnesses, appellants counsel Shri Gupta has submitted, all the key-witnesses are members of the same family and no independent witness has been examined to prove the occurrence. There is no explanation forthcoming as to why even those persons who deposed as eye-witnesses were not examined by the, Police on the date of occurrence itself though they were available on that date and Police had come to the spot on the same date for investigation. Counsel has further submitted that the investigation was conducted in such slip-shod manner that the spot map came to be prepared not by the Investigating officer and not given indeed in his presence, but by the village Patwari and that too more than two weeks after the occurrence. Though much reliance is placed on the ballistics Examiners report, counsel submits, no precaution was taken to seal the gun seized, to exclude the possibility of manufacturing evidence and indeed, no explanation is also forthcoming as to why it was sent to the Ballistics Expert more than five weeks after its seizure. Several lapses afore-mentioned, which counsel has pointed out, obviously indent the credibility of the investigation. In this connection, suffice it to note at this stage the view expressed in a Bench decision of Gauhati High Court in Bhanda gam, 1984 Cri. L. J. 217, when one of us (Dr. T. N. Singh, J.), speaking for the Court, observed that if presumption of innocence is a fundamental tenet of our criminal jurisprudence, it has its own basic facet which is manifested in the anxiety of courts to ensure a fair trial, based on fair procedure. The accused is entitled to the benefit of doubt based not only on the evidence produced in the case, but based also on infraction of any procedural safeguard enjoined by law in the matter of conduct of investigation as well as prosecution. Indeed, in a case where the accused is indicted on a charge of murder, exposing him to extreme penalty, the duty of the Court to see if the evidence produced in the case is tainted in any manner assumes signal significance.

( 4. ) AT this stage, we may also note another important submission of learned counsel which rocks the substratum of the prosecution case. Counsel submits that the prosecution bears the unmistakable impress of the witnesses being partisan and interested on account of their changing versions at different stages. It is also his submission that material witnesses either do not corroborate each other or they mutually contradict each other in material particulars. What is not disputed is that the dead body was found in front of the house of one Baburam, but no ground was taken to examine him or to give any explanation for omitting him and indeed his other immediate neighbour, such as Ramsanehi, has not been examined. These features of the prosecution, it is rightly submitted, may very well turn out to be the Achillies heel in this case for the prosecution.

( 5. ) WE have no doub