JUDGMENT Krishnan, J. 1. This is a reference under Section 374 Cr.P C, by the learned First Additional Sessions Judge, Shajapur who has convicted Ramgopal son of Sidhnath Singh Kulmi (32) under Section 302 I.P C. for the murder of Badri Narayan Singh by shooting him with a gun and sentenced him to be hanged by the neck until he is dead. In addition he has convicted Ramgopal also under Section 307 I.P C. for attempting to murder by shooting at him, Harinarayan Kulmi, brother of the said Badrinarayan, and under Section 326 for causing grievous hurt to Ramesh Kulmi (4) son of Badrinarayan, and sentenced him to R.I for 10 years and 3 years respectively under these sections. The condemned man also has filed an appeal which has been heard along with the reference. 2. The common ground in this case is the following. In village Kherawad. Thana Guiana, there lived two families, closely related, and in contiguous houses; one of Himmat Singh whose sons are Harinarayan the main witness here, and Badrinarayan who is dead; the other of Sidhnath Singh, who died or disappeared two years ago, leaving two sons, the appellant and Ramchandra, Between them there were the usual quarrels about land. In addition, the appellant Ramgopal and his cousin Harinarayan had some-months before the incident of this case a violent quarrel for the favors of a village prostitute. At about 9 or 10 A.M on the 30th January 1957 there was a serious incident in which Badri Narain and Harinarayan were involved on one side and Ramgopal on the other; in this, a 12 bore gun charged wit bullet was fired twice. One of the shots went through the lung and the-heart of Badrinarayan after grazing the nose of his child Ramesh aged 4 years and fell on he ground. The other shot did not hit anybody and got embedded in a wall. 3. The prosecution version is that on that morning Harinarayan was going along with a lota of water a short distance to the north of his house when he passed Ramgopal who was sitting on the verandah or Otla of the Hanumanji temple in the village The latter picked up a quarrel, charging the former with shadowing him all the time, and threatening to finish him off with a gun. Harinarayan has been uncertain whether the words were "finish him in singular, or "finish them all" in plural, meaning his whole family, which is very natural, considering the promiscuous usage in Hindi of the singular, and the plural. Any way, this threat frightened Harinarayan, and he went back to his house and described what had happened, to his brother Badrinarayan and his sister-in-law Sahodrabai. Badrinarayan was sitting outside the verandah with his child, but Harinarayan and Sahodra Bai came out and cautioned him and asked him to come into the house, as they did not know what Ramgopal might do. Meanwhile Ramgopal who had left immediately after the altercation with his cousin at the Hanumanji temple and had gone into his own house, appeared before their house with a 12 bore gun and a cartridge belt. He abused his cousins and walked to the edge of his bari, standing on a Patia, facing Harinarayan and Badrinarayan, he shot first at Badrinarayan, who was pacing from the verandah into the house with his child in his arms. Badrinarayan fell down immediately on the threshold; he died soon after. The child got a wound on the nose by the grazing of the bullet; though thus endangered of life, it survived. Harinarayan ran out; the appellant recharged the gun and fired again, but missing Harinarayan, the bullet hit the outer wall of his house and got embedded in it. 4. Ramgopal's statement in the two courts is to the effect that, Harinarayan was going with a Lota in one hand and a gun in the other. Seeing Ramgopal at the Hanumanji temple, Harinarayan picked up a quarrel, and chased Ramgopal towards his house thereatening to shoot him. He did shoot twice, but one of the shots hit Badrinarayan who was standing on his outer verandah with the child; the other shot missed. Harinarayan, his sister-in-law, and some villagers led by Zalim Singh implicated him falsely. In the cross-examination of Harinarayan it is to the effect that he and Badrinarayan had quarreled for the favors of one village prostitute named Shaitan, Harinarayan had tried to poison Badrinarayan on a previous occasion, now he borrowed a gun from his brother-in-law Narayan Singh, and shot Badrinarayan dead, but later on at the instance of Zalim Singh headman of the village implicated the appellant falsely. A defense witness states that after the shooting Harinarayan ran and took refuge in Zalim Singh's house, and took his gun there. 5. Stated thus the questions in this case are simple enough. However, the examination and cross-examination have been extremely elaborate and complicated partly because quite a lot of irrelevant matter has been introduced, in part by the prosecution having had to declare a matter a number of witness hostile and to confront with their earlier statements in the Magistrate's court, or under Section 164 Cr.PC., or under Section 162 Cr.P C. with the special leave of the court. It is also in part due to the examination of 3 court witnesses. 6. Immediately after the happening, Harinarayan ran to the place of headman Zalim Singh, and brought him, and a few other respectable villagers, they saw the place, the body of Badrinarayan, and some of them, at least Ramgopal pacing near his door, with a gun in his hand, and a cartridge belt slung over him. The Chaukidar Gheesa Chamar came shortly after the happening, gathered how things had taken place, went to the Thana Guiana about 12 miles away; reaching at about 5 O'clock, he gave the F.I R. The officer reached the village late at night, or rather in the early hours of the morning of the 31st January, and began to investigate. In the meantime, Kishan Bagri, servant of the headman, went to Sarangpur, a big village nearby with a Thana and telegraph office. He informed Munnalal, Zalim Singh's brother the latter in his turn sent a telegram to the S.P at Shajapur. On his orders the Inspector of the District Reserve Police reached the village Kherawad on a motor-bike, just to give the villagers a feeling of confidence. He noted that the victim of the shooting was dead, and also picked up the bullets, the one from the ground and another from the wall. The examination of the witnesses, the preparation of the map, the sending of the body for the post mortem examination, and other steps in the investigation were taken by the officer incharge of the Thana Guiana. 7. The most important witness is Harinarayan. His account of the happening was reported by him immediately to Zalim Singh, who lives within 7 or 8 chains (say 150 yards) from his house. 7. The most important witness is Harinarayan. His account of the happening was reported by him immediately to Zalim Singh, who lives within 7 or 8 chains (say 150 yards) from his house. Several persons were with Zalim Singh at that time, and all of them came and saw the scene of the happening. Soon after, Harinarayan again described the happening to the Chawkidar, his account being what has already been described as the prosecution version of the happening. He has been cross-examined at very considerable length. The motive is inadequate, either way, whichever of the two cousins is chasing the other with a gun. He, however, adds to the possible first cousins disputing about property, an unedifying incident at the place of a prostitute; but that is not a fact in issue. The defense has put suggestions to him, altogether unconnected with the case, and quite inconsistent with the defense taken in the statement, On the occurrence his account is clear and consistent. His going out with a Lota, meeting Ramgopal at the Hanumanji's Otla, having an altercation with him, running back to his house followed by Ramgopal, and the latter's going into his house and bringing out the gun and cartridge belt, stopping in front of Harinarayan's house near a hedge, shooting from there, killing Badrinarayan, and wounding the child in his hands at the threshold of his house, and finally shooting another bullet. All these have been set out clearly and vividly. While cross-examining him the appellant has tried to make out that Harinarayan had been planning to murder his brother, on account of the rivalry for the favors of a prostitute in the village, and had executed the plan now. This is denied. In this picture there is no place for. Ramgopal. But his own statement is altogether to another effect. Still it is surprising that all these insulting suggestions should have been put to Harinarayan. Anyway, his evidence is not shallow by them. 8. Sahodrabai, wife of Badrinarayan, who was just near the deceased (her husband) at the time of shooting is the next important witness. As she has been examined by the Sessions fudge under Section 540 Cr.P C. (and named Court witness No. 1) there has been a side-track argument of some length about the propriety of this course. 8. Sahodrabai, wife of Badrinarayan, who was just near the deceased (her husband) at the time of shooting is the next important witness. As she has been examined by the Sessions fudge under Section 540 Cr.P C. (and named Court witness No. 1) there has been a side-track argument of some length about the propriety of this course. She was examined by the S.I on the 31 January 1957 soon after his arrival; his own recollection that it was the ''third" day and not the "second" day after the happening, being incorrect. Anyway, she was witness to the actual commission of the offence; in fact one of the two most important witnesses to the actual commission. Still, possibly because she is a woman, and the case is concerned with the murder of her own husband, the police did not get her examined before the Magistrate; however they had given the accused a copy of her statement under S. 162 Cr.P C. Her non-examination was a mistake. After some hesitation, the Sessions Judge examined her under S. 540 Cr.P C. and provided opportunity to both parties for cross-examination, though by the very nature of the evidence, that by the prosecution was brief and formal and that by the defense lengthy. The defense has questioned the propriety, and has urged that it has been prejudiced, and has been taken by surprise. I do not agree, and I am of the opinion that the Sessions Court would have failed in its duty, if it had refused to examine her as a Court witness. As long as the parties are alert and diligent there may be no occasion for action under S. 540 Cr.P C; but when, because of the negligence or mistake of one of the parties that is a real danger of miscarriage of justice, by the non-examination of an essential witness, then the court should act under that section. Surprise to the other should certainly be guarded against, but that is another and not incompatible matter. Rulings such as those reported in A.I R. 1950 Alld. 369 and A.I R. 1950 Hyd. 145 are to the point. Surprise to the other should certainly be guarded against, but that is another and not incompatible matter. Rulings such as those reported in A.I R. 1950 Alld. 369 and A.I R. 1950 Hyd. 145 are to the point. One has to distinguish between a case where the prosecution is trying to "patch up" a weak case by fresh evidence, which did not exist earlier and of which the defense had no notice, and where evidence which is there from the very beginning of the investigation, and has been noticed to defense, has by mistake or inadvertency been kept out of the court. The court will be wrong to allow the former; as for the latter, if miscarriage of justice is likely (as in this case) by the continued omission of the pre-existent and noticed evidence, the court would be failing in its duty, if it does not exercise its discretion under S. 540 Cr.P C. The tests are, first whether the witness was examined at the earlier stages of the investigation; second, whether the accused has already got (or can get before cross-examination) a copy of the statements; and, whether, any request by the accused is allowed for the recall for further cross-examination of the discharged witnesses, in the light of the materials brought by the new witness. Here the witness had been examined at the earliest stage. A copy of the statement of the witness before the police had also been given to the accused, Many witnesses had been examined earlier and discharged when the accused may not have known that this witness might be examined. It is possible at least theoretically that some more questions in cross examination may become necessary. The proper course for the accused is to petition the court for recalling those witnesses if further cross-examination was thought cf. No such petition was moved. Therefore it is obvious, no necessity was felt by the defense of further cross-examining the other witnesses. Thus the appellant has really no just grievance against the examination of this witness under S. 540 Cr.P C. 9. On the merits, her statement gives a clear and straight-forward picture of the happening. Both she and Harinarayan said that when Ramgopal came with the gun his brother Ramchandra was with him; in fact, Sahodrabai says that she heard Ramchandra saying to his brother "fire". On the merits, her statement gives a clear and straight-forward picture of the happening. Both she and Harinarayan said that when Ramgopal came with the gun his brother Ramchandra was with him; in fact, Sahodrabai says that she heard Ramchandra saying to his brother "fire". This in itself is not unlikely, but Ramchandra's name not being in the F.I R. and his part in the crime not being clear and specific, he was not arrested or sent up; but that cannot be a ground for disbelieving this witness. A contradiction has been sought to be made. Harinarayan says that the shot hit Badrinarayan as he was stepping into the house and was at the threshold; Sahodrabai says that he was hit at the verandah which is narrow. Actually Badrinarayan fell on the threshold itself. The difference, if any at all, is only in the manner of saying. Another point in argument here was that this witness could not have seen the happening because she was away along with other relations at a marriage in a village a few miles away. But actually this suggestion has not even been put to her. Again, it was suggested to her that while she was crying over her husband's corpse she said "Harinarayan ne bura kiya" she has denied it. Probably the insinuation is that it was Harinarayan that had murdered her husband but later on she changed her mind and made common cause with him. Even that has not been suggested. It is suggested that Harinarayan who has got a wife alive still had some connection with the widow, that had altogether no bearing on the case. It is said here that this suggestion is in support of an argument that this lady knows that Harinarayan has killed her husband, but has forgiven, and is going to marry him. This whole bundle of insinuations and indecent suggestion seems to be calculated solely to irritate and hurt the feelings of the witness. I find that her evidence has the ring of truth. 10. It was daytime, quite a number of villagers must have seen the happening. Two of them Ranjit Balar and Kishan Bagri have been named in F.I R. also; in addition there are a number of close neighbors, like Rajaram Sutar. Dwarika Pd. I find that her evidence has the ring of truth. 10. It was daytime, quite a number of villagers must have seen the happening. Two of them Ranjit Balar and Kishan Bagri have been named in F.I R. also; in addition there are a number of close neighbors, like Rajaram Sutar. Dwarika Pd. Baba, Sidhnath Brahman, unusual things have been happening to these witnesses, which, in the interest of the appellant, would justify the total rejection of their evidence. Still there has been arguments at some length, and they have to be considered. 11. Many of them were examined under S. 164 Cr.P C. at the early stages, a sure indication that for some reason or another they were not considered "firm ". Two, namely Kishan Bagri (P.W 13) and Rajaram Sutar (P.W 17) were also examined in the Magistrate's Court. Their statements, having been tendered under S. 288 Cr.P C are evidence in this case, and can be looked into; they support the story given by Harinarain and Sahodrabai. But in the Sessions Court, both of them assert that they saw nothing themselves, but arriving later heard that Ramgopal had shot down Badrinarayan. Confronted under S. 154 Evi. Act with their earlier statements, under 162 Cr.PC. (with special permission of Court) and 164 Cr.P C and that in the Court of commitment, these witnesses explain that they were threatened by the police to make them. Though legally there is ho bar to their evidence being considered under S. 288 Cr.P C. still as a matter of prudence, I would attach no value to them, as these witnesses show an utter disregard for truth. 12. The witnesses, Sidhanth (P.W 14) and Rangeeta (P.W 16) who had been examined under Section 164 Cr P.C, and Amba Ram (P.W 2) (to be distinguished from Atma Ram), Dwarika Das (P.W 8), Kalu Chamar (P.W 20), who were examined at the earliest stages of the investigation, give out in the Sessions Court an account consistent with what the appellant says in his statement, but not the defense put in the cross-examination. But the earlier statements whether under S. 164 Cr.P C., or under S. 162 Cr.P C. (put them with the permission of the court) are altogether different. Then they support the version given by the prosecution witnesses Hari Narayan and Sahodrabai. But the earlier statements whether under S. 164 Cr.P C., or under S. 162 Cr.P C. (put them with the permission of the court) are altogether different. Then they support the version given by the prosecution witnesses Hari Narayan and Sahodrabai. They have all been declared hostile, and rightly cross-examined under S. 164 Evi. Act, Their explanation is that the police threatened them and persuaded them to give the earlier statements; this is quite unsupported, unlikely, and obviously false. No doubt, this sort of giving flagrantly contradictory accounts at different stages shows a degree of moral deprivity, cowardice, and sheer indifference to truth, certainly, the Sessions Judge will, if he has not already done so, start enquiry under S. 476 Cr.P C. into whether there should be a prosecution of such of the witnesses as have been examined on oath whether under S. 164 Cr.P C. or in the Magistrate's Court, before deposing in his court. But as for as this case is concerned, their evidence is non est, for the benefit of either party, on grounds of prudence and caution, even that of the two, whose statements before the Magistrate have been tendered under S. 288 Cr.P.C 13. Then we have to see whether the eyewitnesses statements of Harinarayan and Sahodrabai are corroborated. They for their part had every occasion to know and see the happening, What they say has the ring of truth, Still, it is worth examining, if there is corroboration. One type of corroboration is Harinarayan's statement made immediately to Zalim Singh Patel and to the Chowkidar, Sahodrabai also says that she spoke to Zalim Singh on his arrival about what had happened. One of the villagers that went with Zalim Singh says, however, that to him it was Harinarayan who spoke, while his sister in-law was there silent. This is not of much consequence. But the observation of the witnesses, on their own, will be independent corroboration, and as such more valuable for this purpose. 14. This takes us to the statements to Zalim Singh and of the three persons who went to the scene of the happening within 2 or 3 minutes. By all accounts Zalim Singh is a respectable man in the village and is treated as the headman. Very naturally Harinarayan ran to his place about 150 yards away, immediately after the shooting, and brought him to his house. By all accounts Zalim Singh is a respectable man in the village and is treated as the headman. Very naturally Harinarayan ran to his place about 150 yards away, immediately after the shooting, and brought him to his house. Zalim Singh says that he saw Badrinarayan lying on the threshold with a gun shot injury, and the child with a wound on his nose. He says that the dying man was still showing signs of breathing, which, considering the injury, means that Zalim Singh arrived within a few minutes. Any way, he came within such time one takes to run 300 yards in a fright or panic. He not only heard what Harinarayan had to tell him, but also saw Ramgopal standing near his own house with a gun in his hand. He further recollects that Deba Kumar suggested that they might as well run away as Ramgopal might shoot. Deba Kumar does not recollect saying annoying then, but states that he also saw Ramgopal there with a gun, and ran away in fear along with Zalim Singh. The third of them, Atma Ram (P.W 3) (to be distinguished from Amba Ram P.W 2) is also certain that when he went he saw Ramgopal at his door with his gun. The fourth, Kanhaiyalal, Says that he did not lock towards Ramgopal's house, and so did not remark if he was there. All these witnesses impress me as truthful, unconnected with the Violent quarrels between the parties, and, if anything anxious to steer clear of them. The defense was that Zalim Singh was the sworn bitter enemy of Ramgopal, and had, in fact, Set up this case. As for the others, in particular Deba Kumar and Atma Ram, the defense is that, though they may not have any animus of enmity on their own, they are members of a party led by Zalim Singh, and he being the enemy of Ramgopal, they have also become his tools. Two defense witnesses say that these persons had, immediately after the shooting surrounded the house of Ramgopal, armed with phrases and Lathis. This has not even been put to them in cross-examination; the evidence, on the contrary, is that they went away in fear. In fact, no body obstructed or stopped Ramgopal, and he disappeared from the village soon after this happened, to surrender 5 months later, after proclamation and attachment. 15. This has not even been put to them in cross-examination; the evidence, on the contrary, is that they went away in fear. In fact, no body obstructed or stopped Ramgopal, and he disappeared from the village soon after this happened, to surrender 5 months later, after proclamation and attachment. 15. The suggestions regarding Zalim Singh have to be examined. Zalim Singh's words do seem to count for much in that village. As the appellant had alleged that Zalim Singh was ill disposed towards him, nothing was more proper than that suggestions should be thrown out to him of previous events showing such enmity; and, if not accepted proved in an appropriate manner. Actually the appellant has succeeded in eliciting (in a straight forward admission) that about 30 years ago, when Zalim Singh was a boisterous youth of twenty, he had taken part in an affray with some puppet dancers, and sentenced to imprisonment for one month and the appellant's father was some how concerned in it. This is, of course, ancient history. Many other suggestions have been made, but not one of them has been admitted or proved. It is said that a woman in that village charged the appellant (and his cousin Harinarayan as appears elsewhere in the evidence) with dacoit; but, the suggestion that Zalim Singh did pairwi for her is not proved. Again, it is said that when his father disappeared for good, some two years ago, Zalim Singh charged the appellant with murder; but this is denied, and not a particle of evidence has been adduced. The defense brought itself down to the level of suggesting to this witness, if it was a fact that he had visited a prostitute in a neighboring village, and had a quarrel at that place. This has been denied, but that is not the point. It is bad enough that a lawyer could be briefed to put such an insulting question, it is worse that the presiding officer should have failed to pull up the lawyer and disallowed it. The worst is that this sort of questioning (which, I note, has been put to other witnesses as well in this case) is altogether useless for the defense The effect of the whole discussion is that I am favorably impressed with Zalim Singh's evidence. I believe him. 16. The worst is that this sort of questioning (which, I note, has been put to other witnesses as well in this case) is altogether useless for the defense The effect of the whole discussion is that I am favorably impressed with Zalim Singh's evidence. I believe him. 16. The same is the position in regard to the three others who came to the scene along with Zalim Singh; two of them saw the appellant with a gun, and the third says that he did not look in the direction of the appellant's house. Nothing is suggested against them, except that they belong to the "party of Zalim Singh". For one thing, nothing has been brought home against Zalim Singh; for another, these witnesses have no connection with him. Even on that occasion their coming to the scene with him, was a pure coincidence; they along with some more villagers and Zalim Singh were talking about some rates of work in the village at a temple site near his house. I believe all of them. 17. The evidence of the three of these witnesses strongly corroborates the statement of Harinarayan and Sahodrabai that Ramgopal brought a gun and shot Badrinarayan dead, grievously injured his child by the same shot. The second shot, which was certainly fired, did not hit anybody. 18. It is certain that quite a number of others had seen the happening. Either they have shown utter disregard for truth or like Bheru Singh (witness No. 2 under Section 540 Cr.P C.) are frantically anxious not to say anything that might offend either party in this case. 19. The defense given by the appellant in his statement is a straight allegation of accidental shooting of the brother while Harinarayan actually wanted to kill him. Strangely enough in the cross-examination of Harinarayan a theory is propounded of a quarrel between the brothers about a woman, attempted poisoning on any earlier occasion, and shooting on this occasion. It is difficult to understand why this line has been pursued, The defense witnesses are not of much value. The first witness is the bazar prostitute for whose favors Harinarayan says he and the appellant had a fight; quite true to her profession she denies relationship or visits of either, or of any quarrel. It is difficult to understand why this line has been pursued, The defense witnesses are not of much value. The first witness is the bazar prostitute for whose favors Harinarayan says he and the appellant had a fight; quite true to her profession she denies relationship or visits of either, or of any quarrel. In fact, we are not concerned with the motives in the present case; because it is said by each of the cousins that the other tried to shoot him. D W. 2 Jairam spins out a third story. He says that he heard two gun reports and then saw Harinarayan go to Zalim Singh's house and hide there with a gun in his hand. This is nobody's case, nor has been put to Harinarayan or Zalim Singh.D W. 4 is about some violence supposed to have been done to him by the S.I. in connection with this case. D W. 5 says that Zalim Singh and 3 others surrounded Ramgopal's house with Pharsas and Lathis in their hands; in any event, this has not been put to Zalim Singh or to the three others. Finally, we have a D.W who speaks of an allegation by some one made some 2 years ago that it was the appellant and his brother Ramchandra who had done away with their father. If Zalim Singh had made such a report regarding the "disappeared", nothing would have been easier than to call for it from the police authorities. 20. Two more topics have been the subject. matter of considerable argument on behalf of the appellant. The first regarding the F.I.R. and the non-mention of Ramchandra in it, and the second, regarding the information (possibly telegraphic or telephonic) that the S.P of the District heard of this murder by midday itself. 21. The F.I R. was given by the Chaukidar. He says that he came and gathered the story from Harinarayan. Much argument has been made about whether it was this person, or Zalim Singh, or any villager who asked him to go to the Thana. Nearly every body in the village would ask the Chaukidar to go to the Thana after such an incident. In fact, it is his duty, and he should go even if nobody asks him to go. Nearly every body in the village would ask the Chaukidar to go to the Thana after such an incident. In fact, it is his duty, and he should go even if nobody asks him to go. Ramchand has not been named in the F.I R. though both Harinarayan and Sahodrabai are sure that he was with the appellant Bherusingh, a witness called by the Court who is only anxious to avoid getting mixed up in this matter, says that at about the time of the shooting Ramchandra was seen by him nearby. This does not necessarily mean that Ramchandra was not with his brother when he came with the gun; within part of a minute he could go where Bheru Singh was. Be that as it may, Ramchandra was luckly enough not to be arrested and sent up. But I fail to see how it can lead to the inference that the witnesses were speaking falsehood. 22. The Reserve Inspector of Police Shajapur came to the village at about midday on a motor by cycle. This was on the orders of the S.P telephoned to him; he has quoted it, probably using his diary, and it is evidence as matter introductory to the action taken by him:- There has been a murder in village Kherawad, and the Chaukidar has already gone to the Thana to make a report. The villagers are in a panic, so you should go there at once on a motor bike. It was not to investigate but to re-assure the villagers that this officer has come; he only picked up the bullets. It is said that he looked for Ramgopal, but he had already filed, as he says, in fear that he might be killed. Certainly, some body had sent information to the S.P possibly by quick means, say the telegraph or the telephone. Kishan Bagri, whose utter disregard for truth, I have already mentioned, says that after the shooting, Zalim Singh, as headman, asked him to go to village Sarangpur, about 5 miles away, and asked his brother Munnalal, to send a telegraphic message to the S.P Zalim Singh, however, says that he sent no such message; which is more likely, as indeed the Chaukidar came soon, and whoever sent the message knew that he had already gone to the Thana to give a report. Since, however, Sarangpur is the nearest big village, with a telegraph office (and possibly telephone connection) the message went from there. It is also not unlikely that Munnalal sent it; Kishan Bagri though a liar in general, not having any special reason to name him falsely. There are cases where a message sent to proper authority by an eye-witness is useful to contradict him. But if the sender is not an eye-witness it is not of much use for any purpose. Even, supposing that Kishan Bagri himself sent it, it is not of any significance as he is not being believed. This aspect of the matter has been discussed and clarified by the Supreme Court in Pandurang and others vs. State of Hyderabad, 1955 S.C 216. 23. There is one more point urged on behalf of the defense. In the Sessions Court a single barrel gun seized from a licensee in a neighboring village was produced. Acting on some information, which was obviously inadmissible the police officer seized it but the sessions court has very properly not used this fact of evidence. The position is that the gun with which Badrinarayan was shot has not been traced. Certainly, it was the gun which was seen in the hands of Ramgopal by Zalim Singh and his companions immediately after the shooting; but it has not been traced, and if the one produced in court is at all that weapon, there is no admissible evidence on it. Nor is this surprising as the gun-man (the appellant) himself disappeared. He was not a licensee and wheresoever he got the gun from he got it by secret means. It is also of interest to note that Harinarayan is also not a licensee. It is suggested that Harinarayan's brother-in-law Narayan Singh who lives in another village is a licensee. This may be true. It is suggested that at about the time of murder he had come to a neighboring village for a marriage; this may also be true. The suggestion to Harinarayan was that on account of quarrels with his own brother about a prostitute called Shaitan, he took the gun from Narayan Singh and shot Badrinarayan dead. But there is not a particle of evidence in support of this theory, and, in fact, this is not the defense the accused himself gave in his statement to the court. 24. But there is not a particle of evidence in support of this theory, and, in fact, this is not the defense the accused himself gave in his statement to the court. 24. In the result, I find after the closest examination of the evidence, that the appellant is guilty of shooting Badrinarayan dead with a gun. It is clear that in the same process he caused grievous hurt to the child whom Badrinarayan was carrying in his arms. It was sheer luck that the child escaped death. It is also certain that he shot a second time (in fact the appellant himself says there were two shots and two bullets were picked up) at Harinarayan, but missed him. I, therefore, uphold the conviction of this appellant under three Sections 302, 326 and 327 I.P C. As for the sentence under the first section I find no extenuating circumstances at all. We seem to live in a strange world where people go to shoot others on the slightest provocation or even in absence of provocation, as in this case. So the death sentence is confirmed. The sentences under the other sections are also maintained, but in the special circumstances of this case they are of no practical significance. The reference is accepted, and the appeal is dismissed. 25. There is over-whelming evidence on the record that the accused shot the gun and I agree that the appeal be dismissed and the sentence of death be confirmed. Appeal dismissed