Judgment BAHADUR, J. 1. This is a reference under S. 374 of the Criminal P. C. from the Sessions Judge of Shahabad at Arrah for the confirmation of the sentence of death imposed upon Hanuman Koeri, also known as Hanuman Singh, who is convicted for the offence of murder under S. 302 of the Indian Penal Code. The convicted person, hereinafter referred to as the appellant, has also preferred an appeal through a lawyer. The reference and the appeal have been heard together and they will be governed by this judgment. 2. The substance of the case against the appellant is that there was an occurrence at about 3 a. m. between the night of Tuesday, Wednesday corresponding to the 5th/6th July, 1966, in village Jaitpura, within the jurisdiction of police station Ramgarh, in the district of Shahabad, in which he had caused the death of a co-villager, named Ramdeo Koeri. 3. The facts of the prosecution case are as follows On the night between the 5th-6th July, 1966, at about 10 p. m. Ramdeo Koeri after taking his night meal went to keep watch over his Bajra field about 50 to 60 yards to the north of his house. To the adjacent south of his Bajra field was the field of one Naresh Koeri in which Janera was sown. Ramdeo slept on a khatia in the field of Naresh Koeri, and was alone. At about 3 a.m. in the night Mukhram Koeri of the same village, who has been examined as P. W. 3. and who has his house closed by, woke up and went out for some necessary purpose. He noticed a man standing near the khatia of Ramdeo Koeri. He challenged him and the man that (was) standing there looked up at him, turned round and fired on Ramdeo. Mukhram raised alarm and the man threaten-ed to kill him, saying " A o A o tohro ke joh te rahi." Mukhram identified the man who was the accused Hanuman, namely, this appellant. On hearing the Hullah, Anirudh Rai (P. W. 8) Ramchij Singh (P. W. 9) Banjhu Koeri (P. W. 4) Rajendra Rai (P. W. 7) and others came to the place. Hanuman there-after went to his house, which was at a dis-tance of about 125 yards to the south west of the place of ccurrence. On hearing the Hullah, Anirudh Rai (P. W. 8) Ramchij Singh (P. W. 9) Banjhu Koeri (P. W. 4) Rajendra Rai (P. W. 7) and others came to the place. Hanuman there-after went to his house, which was at a dis-tance of about 125 yards to the south west of the place of ccurrence. He got on the roof of his house and started threatening those persons (the witnesses referred to above) not to go near the dead body otherwise they would also be shot. He was still holding the gun and by that time it had become dawn, though the night was a moonlit night. Mukh-ram thereafter went to Surujnath Chaukidar and brought him to the place and directed him to keep watch over the dead body. So-on after Mukhram accompanied by Sheopujan Rai (P. W. 2). and Anirudh Rai (P. W. 8) left for the police station which was at a distance of 10 miles and on the statement of Mukh-ram first information report was recorded at 10 a. m. on the 6th July, 1966 by assistant Sub-Inspector of Police, Umakant Sharma (P. W. 11). Substantially, this was the pro-secution case given by Mukhram. 4. The Assistant Sub-Inspector (P. W. 11), on recording the first information report left for the place of occurrence and reached Jait-pura at about 12 noon. He found the place of occurrence to be an open khet, about 60 yards to the north of the village. He found the dead body of Ramdeo lying on a Khatia. The head of the deceased was towards the west. The Khatia was a small one 3 cubits long and 1« cubits broad. In the Khet, Janera and Makai were sprouting. Adjacent north of this Khet, he found Bajra plants one span high, and also a ridge dividing the two fields. The Khatia was one span to the south of the ridge. To the adjacent west of these Khets, there was a Pagdandi which started from the village and went to river Karamnasa. The dead body was lying on the Khatia about 2 cubits away from the Pagdandi and would be at a distance of 50 yards from the well and 25 yards to the north of the southern ridge of the khet. The house of the accused person was about 125 yards to the south-west of the khatia. The dead body was lying on the Khatia about 2 cubits away from the Pagdandi and would be at a distance of 50 yards from the well and 25 yards to the north of the southern ridge of the khet. The house of the accused person was about 125 yards to the south-west of the khatia. He prepared a sketch map which has been marked Exhibit 10. P. W. 11 held inquest over the dead body and found it to be lying with face upwards. The entire mouth portion below the right eye appeared to be blown off. A Gamchha was spread below the dead body and under the head there was a Motia Ganji and a Motia Chadar. He found a huge quantity of blood on the ground below the khatia, on the Gamchha, Chadar and Ganji and on the neck. The pitch of blood beneath the khatia was 1 cubits long and 1« cubits broad. At a distance of one cubit to the south-west of the khatia an empty fired cartridge case "Eley Grand Prix Great Bri-tain" was found. There was a lathi also on the Khatia which has blood like stains on it. He sent the corpse to Bhabua Hospital for postmortem examination. He also received two pellets sealed by the Civil Assistant Sur-geon of Bhabua. 5. P. W. 11 later went to the house of the accused and found him sitting with a gun at the main entrance of his house, who surrendered himself. He took charge of the gun as also 9 live cartridges which were also Eley Grand Prix Great Britain." They have been marked exhibits IV to IV/8. The accused also produced his gun license and the cash receipt showing the purchase of the cartridges at Varanasi on 5-7-1966 . P. W. 11 examined witnesses and returned to the police station in the evening at 7, where he handed over charge to another officer, named Rangnath Prasad (P. W. 10). 6. P. W. 10, on taking over charge of the case from P. W. 11 in due course sent the blood-stained articles for chemical examina-tion and also sent the gun and the fired empty cartridges to the Fire-arms Expert for examination. Certain papers were produced by the accused before P. W. 10, who found the Bajra field to be plot No. 1155 of khata No. 87, with an area of 5 decimals. Certain papers were produced by the accused before P. W. 10, who found the Bajra field to be plot No. 1155 of khata No. 87, with an area of 5 decimals. He handed over charge of the case to another officer, named. S. A. Quli on 4-7-1967, on the conclusion of the Investigation and he submitted charge-sheet on 25-7-1967. 7. The postmortem report discloses a number of injuries on the body of Ramdeo. Dr. B. N. Prasad, who was Deputy Superin-tendent of the Bhabua Hospital at the relevant time, held postmortem examination on the dead body of Ramdeo at 7 a. m. on 7-7-1966 and found the following ante-mortem injuries : "(1) Extensive laceration of right side of face, mouth, nose, right cheek with compound comminuted fracture of upper and lower jaw right side nasal bone and right naxilla, skin and muscles overhanging the wound area and brain matter escaping from the wound. (2) Oval penetrating wound -" diameter with inverted and bruised margins on the right side of the root of neck. (3) Two oval penetrating wounds -" diame-ter with inverted and bruised margins on the right upper part of chest 4«" above the right nipple. On dissection (4) Haemorrhage and blood clots in the right side of muscles and chest. (5) Blood and blood clots in the media -sternum (chest cavity). (6) Two perforations in the right upper intercostal muscles". All the above mentioned injuries were ante-mortem caused by gun shot fired from a dis-tance between 5 to 10 feet approximately. Two pellets, one from the right lung and another from the wound in the face were recovered during the examination, which were sent to the police in a sealed and labelled vial. The doctor was examined in the committ-ing court as P. W. 3 and his evidence has been tendered under S. 509 of the Criminal P. C. in the trial court. In his opinion death was caused due to shock and haemorrhage. The time elapsed since death was approxi-mately about 24 hours. The death might have been instantaneous as a result of the injuries found by him. Injury Nos. 1 to 3 could be caused by a single gun shot. 8. The motive alleged by the prosecution was that the deceased Ramdeo, his brother Chandradeo and Tapesar were distantly relat-ed. Tapesar was the maternal grand-father of the appellant Hanuman and Lachhmi was the wife of Tapesar. Injury Nos. 1 to 3 could be caused by a single gun shot. 8. The motive alleged by the prosecution was that the deceased Ramdeo, his brother Chandradeo and Tapesar were distantly relat-ed. Tapesar was the maternal grand-father of the appellant Hanuman and Lachhmi was the wife of Tapesar. In 1931 Lachmi had executed a deed of gift of her entire properties to her grandson, namely, Hanuman, who was origi-nally a resident of Gorasara in Uttar Pradesh but had settled in Jaitpura, having come there three or four years before. He inherited 12 bighas of land in this village and a house. Formerly he was in Military service and had retired after having held the rank of a Havil-dar. In respect of the properties which he had acquired from his maternal grand-mother, a dispute arose between him and some persons, most of whom are prosecution witnesses in this case. Hanuman instituted a title suit with respect to this property against Sheopujan (P. W. 2), Anirudh (P. W. 8) and another person, named Kailash Ram in court at Sasaram, which ultimately ended in 1965, and Hanuman got some small portion of land. The dispute was in respect of plot No. 1279 of khata No. 439 of this village in which Sheo-pujan and Anirudh claimed equal shares. Ramdeo had sold some of his land to one Sheo Kumar Lal of the same village before the revisional survey took place and during the survey Hannman filed objection under S. 103A of the Bihar Tenancy Act claiming the land to be his. Ramdeo, in the mean time, exchang-ed that piece of land with another land of a co-villager, named Basist Koeri and started building a house thereon. Objection was raised by Hanuman and some exchange of words also took place, but Ramdeo paid no attention and constructed the house about three years ago. There was also a proceeding in respect of another piece of land, namely, plot No. 366 of khata No. 419 in the village and there was a proceeding under S. 103A of the Bihar Tenancy Act between Mukhram (P. W. 3) and Hanuman. There was also a similar proceeding between Banjhu (P. W. 4) and Hanuman with respect to another plot which is numbered 1134 and which was recorded in the name of Hanuman. There was also a similar proceeding between Banjhu (P. W. 4) and Hanuman with respect to another plot which is numbered 1134 and which was recorded in the name of Hanuman. There were also proceedings under S. 103A of the Bihar Tenancy Act between Hanuman and Rajendra in respect of plot No. 1975 of khata No. 371 of the village. 9. The prosecution suggested that all these matters had irritated Hanuman and he had become desperate and hence this occurrence. 10. The defence of the appellant at the trial was a plea of innocence and that he had been implicated on account of enmity with the prosecution witnesses. In his statement under S. 342 of the Criminal P. C., he has stated that be was not present in the said village on the night in question. He admitted that he had bought 10 cartridges at Varanasi on 5-7-1966. 11. The learned Judge has accepted the prosecution case in substance and has recorded the following findings : (a) The finding of human blood beneath the Khatia showed that Ramdeo was killed in the field of Naresh Koeri, namely plot No. 1154. (b) The gun (Ex. II) belonged to the accus-ed and that he had purchased 10 L. G. cartridges of foreign make from Varanasi on 5-7-1966 and the empty fired cartridge case (Ex. II) recovered from the field of Naresh Koeri was fired from the said gun. (c) Ramdeo died as a result of the gun shot injuries fired by a single gun shot. (d) The motive for the occurrence had been proved which was that Hanuman had become irritated and had become desperate. (e) Hanuman had planned to cause death of Ramdeo and, in pursuance of that plan had gone to Varanasi to purchase the ammuni-tions and thereafter intentionally and know-ingly caused the death of Ramdeo by shooting him with his gun. 12. In coming to his conclusion, particularly no. (e) as mentioned above, the learned Judge took under consideration the following factors which is mentioned in paragraph 17 of his judgment which may be usefully reproduced here : "(a) That there was enmity between the accused Hanuman Koeri and Ramdeo Koeri deceased and the prosecution witnesses and the accused Hanuman Koeri was deeply sore over it. He could not enjoy the usufructs of properties gifted to him by his maternal grand-mother Mt. Lakshmi. He could not enjoy the usufructs of properties gifted to him by his maternal grand-mother Mt. Lakshmi. He became desperate and thought of killing Ramdeo Koeri. (b) That on 6-7-66 he went to Varanasi with his gun licence and purchased ten Eleys Grand Prix L. G. cartridges from Varuna Shastragar there and returned home that evening. I may mention here that the village Jaitpura is about 2 to 3 miles away from Dil-darnagar Railway station. (c) That at about 3 a. m. in the night he started with his loaded gun and went to the field of Naresh Koeri where he found Ramdeo Koeri lying on a Khatiya. Ramdeo Koeri was there to watch his Bajra crops. On reaching near the khatiya the accused Hanuman Koeri took his aim at the head of Ramdeo Koeri who was then fast asleep. In taking the aim the accused Hanuman koeri must have moved a few steps backward because the investigating Officer found some of the foot marks were over-lapping. After taking his aim he fired the gun and the mouth of Ramdeo Koeri beneath his right eye was completely blown off. The death was instantaneous and the only gun shot was fired from a distance of above 5 feet as appears from the evidence of Dr. Prasad. (d) That the cartridge (Ex II) that was fired had six shots, two of which were extract-ed by the Civil Assistant Surgeon, Bhabua". 13. Mr. Nageshwar Prasad, appearing on behalf of the appellant has not challenged the finding of the learned Judge with regard to the factum of death of Ramdeo which had been established by the evidence of the Assistant Sub-Inspector (P.W. 11) and the doctor who held the post-mortem examination over his body. Learned counsel has also not questioned the finding of the learned Judge in respect of the place of occurrence in this case. In my opinion, these points have been amply proved by the evidence on the record and, therefore, it is not necessary for me to dilate on these points of the prosecution case. 14. Learned counsel has however, urged that the evidence of the only eye witness, namely, Mukhram (P. W. 3) must be rejected as he could not possibly have seen the occur-rence, as claimed by him; and the assailant must have been some one different from the appellant. 14. Learned counsel has however, urged that the evidence of the only eye witness, namely, Mukhram (P. W. 3) must be rejected as he could not possibly have seen the occur-rence, as claimed by him; and the assailant must have been some one different from the appellant. His contention is that there can be no doubt that Ramdeo had died as a result of gun shot injuries, but no one in fact had seen the person, much less the appellant, shooting the deceased. His further contention is that there can be no doubt that the appellant had purchased 10 cartridge on the same day at Varanasi and that would only create a strong suspicion against him because he was a gun holder but suspicion could not take place of proof which was wanting in this case. 15. X X X 16. X X X 17. X X X 18. X X X 19. Let me, therefore, consider the evi-dence of the only eye witness, namely, Mukh-ram (P. W. 3) on merit. (After considering the evidence His Lordship proceeded). Having perused and considered the evi-dence of P. W. 3 very carefully, it is not posi-sible to accept his evidence as a witness of the occurrence. 20. Let me now deal with the evidence of the other witnesses. (After reviewing the evidence of P. Ws. 2, 7 and 8, His Lordship proceeded.) 21. X X X 22. X X X 23. Ramchij Singh (P. W. 9) has proved that deed of exchange. The substance of his evidence is that he too was sleeping at his Darwaza on the night in question and on hearing the report of a gun shot he ran in the direction of the south and near the well he saw Mukhram who was shouting. He also saw the accused standing close to the khatia on which Ramdeo was lying. Mukhram was say-ing that Hanuman had killed Ramdeo by shooting him with a gun and was threatening them. He says that all the other witnesses, namely, Banjhu, Rajendra and Anirudh were present there. Sheopujan reached there after he himself arrived. He further stated that Hanuman went to his house pointing the gun to them and when he got on his roof he was threatening them that he would shoot them if they went near Ramdeo and he possessed 9 live cartridges. Sheopujan reached there after he himself arrived. He further stated that Hanuman went to his house pointing the gun to them and when he got on his roof he was threatening them that he would shoot them if they went near Ramdeo and he possessed 9 live cartridges. In his cross-examination he has stated that the land that was exchanged with Basist originally belonged to Ramdeo, which was 25 years ago. It is difficult to ac-cept this statement, because he has given his age to be 25 which is also the assessment of the learned Judge. If his evidence is true, then it is difficult to understand how he could be a competent witness when he was 10 years old at the time of the transaction for which he has deposed. The criticism against his evidence is for the special reason that he is connected with the transaction in which he had attested both the documents on behalf of Ramdeo and obviously he is against the appellant. These were the transactions which were the cause of trouble between Ramdeo and the appellant and apparently this witness is supporting the prosecution case for that reason. His evidence in Court also appears to be contradicted by his statement made before the police which is of vital character, namely, that he had stated before the police that when he had reached near the house of Ramdeo he had heard Mukhram raising Hulla. It is clear from his evidence that he is not an indepen-dent witness and his evidence must, therefore, he looked upon with considerable suspicion. 24. It might be mentioned here that the learned Judge has, in his judgment observed that there was evidence which proved that Hanuman had land dispute with P. Ws. 2, 3, 4, 7 and 8 headed by Ramdeo, the deceased, and Ramdeo and these prosecution witnesses did not allow Hanuman peaceful possession of the land gifted to him by his maternal grand-mother. We were reminded by the learned Standing Counsel that it would not be possible to accept the contention for the appellant that the evidence of these witnesses must be looked upon with suspicion or rejected mere-ly on the ground that the learned Judge had found that these prosecution witnesses had enmity with the appellant and were support-ing the case of Ramdeo. The approach in a case like this where the evidence of partisan or interested witnesses have to be considered and appreciated has been dealt with in Masalti V/s. State of Uttar Pradesh, AIR 1965 S C 202, wherein it was observed that there was no doubt that when a Criminal Court had to ap-preciate evidence given by witnesses who were partisan or interested, it had to be very care-ful in weighing such evidence. Whether or not there were discrepancies in the evidence: whe-ther or not evidence struck the Court as genuine, whether or not the story disclosed by the evidence was probable were all matters which had to be taken into account. But it would be unreasonable to contend that evi-dence given by witnesses should be discarded only on the ground that it was evidence of partisan or interested witnesses. Often enough where factions prevailed in villages and mur-ders were committed as a result of enmity be-tween such factions, Criminal Courts had to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it wag partisan would invariably lead to failure of justice. No hard and fast rule could be laid down as to how much evidence should be appreciated. Judicial approach had to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it was partisan could not be accepted as correct. Keeping these principles of view. I have looked into the evidence of these witnesses and I have no hesitation in holding that in the case of all the witnesses, referred to above, there are many circumstances of doubtful nature and it would not be safe to act on such evidence. 25. There are certain other factors to which our attention has been drawn by learned coun-sel. His submission is that the prosecution also rested its case on the fact that the cartridge which had been found and taken over by the investigating Officer had been fired by the gun of the appellant. 25. There are certain other factors to which our attention has been drawn by learned coun-sel. His submission is that the prosecution also rested its case on the fact that the cartridge which had been found and taken over by the investigating Officer had been fired by the gun of the appellant. There is no controversy that 10 cartridges had been sold to the appellant at Varanasi, as it has also been admitted by the appellant himself in his statement under S. 342 of the Criminal P. C. The seller of the cartridge, namely, Santosh Kumar Mukherjee, has been examined in the case and he has proved the original cash memo which he had given to the appellant which has been marked exhibit 2. He had also brought the carbon copy of the cash memo. He also proved the sale voucher, which is exhibit 3, and also the signature of the appellant thereon which is marked Exhibit 3/1. Learned counsel urged that the gun and the cartridge had been sent to the Arms Expert, who has been examined as P. W. 6 in the case. His evidence was required to determine whether the cartridge which had been seized was used in the gun produced by the appellant or not. The sub-stance of the evidence of Kaushalendra Kumar, Arms Expert (P. W. 6) is that on 25-7-1966 he had received a double barrel gun along with one fired cartridge case of 12 Bore manufactured by Eley of Great Britain. The gun was marked Exhibit I and the fired cartridge case was marked exhibit II. He found the left barrel of the gun coated with a quantity of fouling, indicating that it was fired previously, and the gun was in perfect working condition. With the said gun he fired two cartridges and compared the three fired cartridges under comparison microscope and found similar striker and breach face markings on the per-cussion caps of the fired cartridges. He has proved his report which was marked exhibit 5, and explained that next to balls, L. G., shots were the biggest, having 6 shots in each 2«" cartridge - Mr. Prasads contention is that it has not been established in the case that P. W. 6 was entitled to claim that he was an -expert so that his evidence could be made admissible. Prasads contention is that it has not been established in the case that P. W. 6 was entitled to claim that he was an -expert so that his evidence could be made admissible. Prosecution had not asked my question so as to indicate that he had suffi-cient training, knowledge and experience as to justify him to be called an expert and, as such, it is urged that his opinion could not be the last word on the subject. This part of the submission cannot be accepted, because no challenge was made in cross-examination. Besides, it is for the Court to decide the ques-tion of competency or fitness of a witness who claims to be an expert. In this case I am satisfied that the learned Judge before whom P. W. 6 was examined appears to have been satisfied that he was fire-arm expert under Government of Bihar; therefore, his com-petency cannot be now questioned at this stage. The next question that, however, still re-mains to be determined is the value of the evidence of P. W. 6. Learned counsel has contended that the record does not furnish the materials which had helped the expert in com-ing to his conclusion as he has done in this case and the Court has not the advantage of looking into those materials so as to hold that the expert was justified in the opinion that he has given. Besides, it is said the comparison microscope and other materials have not been produced and as such, there can be no guarantee that the expert had either examined the gun and the cartridge with the help of those mate-rials at all. If, on the other hand he had so done, whether his conclusions had been rightly arrived at. It is significant to note in this con-nection that the gun and the cartridge had been received by P. W. 6 on 25-7-1966, but his examination was not completed until 13-5-1967. He even admitted in his cross examination that he might have commenced the examination a day or two earlier, though he did not remember the exact date of the commencement of the examination. This inordinate delay in the examination by the ballistic expert is to be deplored and it is unfortunate that in such serious cages, the expert does not attach sufficient importance for speedy examination and submission of his report. This inordinate delay in the examination by the ballistic expert is to be deplored and it is unfortunate that in such serious cages, the expert does not attach sufficient importance for speedy examination and submission of his report. I might also mention that the occurrence in the present case having taken place between the 5th and 6th July, 1966, the charge-sheet could not be submitted until 25-7-1967, and the expert (P.W. 6) is largely to be blamed for this delay. It is to be hoped that the attention of the authorities concerned and particularly of the Fire Arms Expert (P.W. 6) will be drawn to these observations, so that hereafter there may not be such deplorable delay in such matters. Coming back to the submission of learned counsel on the evidence of P.W. 6 I think that the submission must be accepted as correct. It also finds support from a decision of the Supreme Court in Kalua V/s. State of Utter Pradesh, AIR 1958 SC 180 . In Kaluas case, AIR 1958 SC 180 the accused was convicted for the murder of the deceased by shooting him with a country made pistol. A cartridge was found near the cot of the deceased, and the accused was arrested fourteen miles away from his village which was the place of occurrence. He produced a pistol from his house in circumstances which clearly showed that he only could have known of its existence there. The evidence of the fire-arm expert showed that he had fired four test cartridges from the pistol produced by the accused. He found the individual characteristics of the chamber to have been impressed upon the test cartridges and that exactly identical markings were present on the paper tube of the evidence cartridge. He made microphotographs of some of these individual marks on the test cartridge and the evidence cartridge, and gave his opinion that the cartridge found near the cot of the deceased was fired from the pistol produced by the accused. The High Court held, which was approved by the Supreme Court, that the fire arms expert have made the necessary tests, he appeared to have been careful in what he did. There was no good reason for distrusting his opinion. The High Court held, which was approved by the Supreme Court, that the fire arms expert have made the necessary tests, he appeared to have been careful in what he did. There was no good reason for distrusting his opinion. It would, therefore, appear that in the said case all the materials which had helped the fire-arm expert in coming to his conclusion were produced in the trial court and the High Court had the advantage of considering those matters and was satisfied that the fire-arms expert had carefully made the necessary tests. In the instant case, no material has been furnished and, therefore, we are unable to hold whether or not the fire-arms expert, namely, P.W. 6 had been careful in carrying out the necessary teats before giving his opinion as contained in the report and testified to in the court. This is a serious infirmity in the prosecution case. The learned Standing Counsel had, however, urged that since P.W. 6 was not cross-examined on these matters, it must be assumed that the method of examination by the expert of the gun and the cartridge was no longer open to doubt. There is no justification for this argument, because the prosecution is under duty to produce every scrap of material which would help in coming to a just decision in the case, irrespective of the fact whether those materials go against the prosecution or in its favour. 26. Quite apart from the various aspects discussed above, the oral evidence led by the prosecution is not of such a nature that the conviction of the appellant can be safely upheld in this case. On a consideration of all the facts and circumstances, I am of opinion that the guilt of the appellant has not been proved beyond reasonable doubt. 27. Accordingly, the appeal is allowed, the conviction and sentence of death imposed upon the appellant are set aside, and the reference is discharged. B.D.SINGH, J. 28 I agree.