The main legal point established in the judgment is the reliance on the testimony of eye witnesses and medical evidence to establish guilt under the Indian Penal Code, and the requirement for clear and consistent evidence to sustain convictions.

JUDGMENT :

S. K. KULSHRESTHA, J.

This appeal is directed against the judgment dated 29-6-2002 of the learned IVth Additional Sessions Judge, Dewas, in Sessions Trial No. 71/2000 whereby, while acquitting 13 co-accused, the appellant has been convicted for an offence punishable under section 302 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs. 2,000/-. He has further been convicted under section 307 of the Indian Penal Code for attempting at the life of Lakhan, Madanlal, Bherulal and Pappu and sentenced under each count to rigorous imprisonment for 10 years and fine of Rs. 500/-. Sentence has also been awarded in default of payment of fine.

2. The appellant was prosecuted for the said offences along with 13 co-accused on the premises that there was estrangement between the villagers and the Kanjars with regard to the grazing of their cattle. On 22-9-1999, the Shepherds of the village namely; Bapu, Badri, Janki, Sagar and others had gone to the fields to graze their cattle, but their cattle had been taken away by Kanjars to their abode. Thereafter, complainant Suraj Jat, Pawan, Jankilal, Bapu, Sagarmal, Badri, Hari Yadav, Devkaran, Badrilal Patidar, Lakhan, Sohan and others from the village went to the houses of Kanjars to retrieve their cattle, but Kanjars started pelting stones and belaboured Bapuji by means of a Lathi. Accused Kailash (appellant) discharged bullets from his 12 Bore Double Barrel Gun which caused injuries to Pawan in his chest, Dharma fired a country pistol of 12 bore causing injuries to Sagarmal and Badri, Bucha Kanjar fired a country pistol of 12 bore, causing injury to Jankilal in his right arm, Shiv Kanjar also fired but it could not be seen as to who was hurt. The other Kanjars, 10 to 15 in number, assaulted them with Lathi, Farsi, Dharia and Stones. It was further alleged that Antar Singh fired a 12 bore gun causing injury to Lakhan Singh, Pappu and others.

3. On the said report, the investigation commenced and the injured were sent to the Hospital for their examination. Dr. H. K. Gupta (PW 12) examined the injuries and gave reports Exs.P/31, P/32 and P/34. As per report Ex.P/31, the injury found on Pawan was a gun shot injury and the patient was unconscious, as per Ex.P/32 Sagarmal s/o Mangilal had received a gun shot injury, as per Ex.P/33 Rehman sustained four injuries while as per Ex.P/34 Lakhan sustained five injuries. Pawan was referred to the M. Y. Hospital in view of his critical condition, but he succumbed to the injuries. On receipt of the report about his death, inquest was held and vide requisition Ex.P/45, the body was sent for autopsy. Autopsy was conducted by Dr. N. M. Unda (PW 16) and report Ex.P/45 was given. As per the said report, 22 injuries were found attributable to gun shot pellets. Since injured Sagarmal, Bapuji and Badrilal had gone to Suyash Hospital for treatment, reports Exs.P/40 to P/42 were collected. The accused were arrested and during interrogation they gave information which was recorded under section 27 of the Evidence Act and the weapons were recovered at their instance. Mahesh Jaiswal (PW 15) also arrested the appellant and upon interrogation, the appellant made disclosure which was recorded under section 27 of the Evidence Act and in pursuance thereof, a 12 bore country made pistol was seized. The said pistol was sent to the Ballistic Expert, but the Ballistic Expert, though found that on account of fouling (Nitride) found in the barrel, the pistol had been used, but since the firing pin had been removed, it could not be said that the pistol was in working order. Learned counsel has also pointed out that at the time of the seizure, nothing was stated in the memo to show that the firing pin was missing. In further investigation, spot map was prepared, statements of witnesses were recorded under section 161 and statements of witnesses acquainted with the facts of the case were recorded under section 164 of the Criminal Procedure Code, except