JUDGMENT 1. - This appeal of Gopal is directed against the judgement of the Additional Sessions Judge, Dholpur, dated 13.8.1970 whereby the appellant has been convicted under section 302 Indian Penal Code and sentenced to imprisonment for life. 2. Gopal and Khera were challaned for having committed murder of Badri. The prosecution story as revealed by the eve witnesses P.W. 6 Rameshwar and P.W. 7 Matola, is that on 26th of November, 1969 both those witnesses were cutting berry shrubs in a jungle when they heard some people talking in the ravines of river Chambal. They saw Gopi, Hera Sarupa and Badri and they were going towards Ghooriyakhera. Gopal,Hera and Sarupa stopped while Badri went on proceeding towards the village Ghoorya Kher. After covering a little distance Badri came to know that his associates had lagged behind. He, therefore, came back and asked Gopi etc. as to why they had stopped. On this it is said that Gopi fired a muzzle loading gun towards Badri hitting him on his abdomen Badri fell down. Seeing that Badri was shot by Gopi both Matola and Rameshwar, who were witnessing this incident from the top of the hillock, rushed towards Badri. When they reached the place marked as 'D' in the site plan (Ex. P.9), where Badri lay injured and from where the Station House Officer (PW 8) had collected blood-stained earth, they saw Gopi, Heta and Sarupa running away. Both these witnesses chased Gopi but they could not catch him. They then came back to the place where Badri was lying injured and found Badri dead. There upon, Rameshwar came to the village and informed PW 3 Mohan Singh brother of Badri. Mohan Singh went to the jungle with a cot and brought Badri to the village from where they proceeded to Dholpur with the dead body of Badri and lodged a report at the Police Station, Dholpur, but as the occurrence had taken place within the jurisdiction of Police Station Rajakhera, the case was not registered at Dholpur though the Police authorities posted at Dholpur prepared a panchnama and sent the dead body of Badri to the hospital for post mortem. Dr. Dalip Singh (PW 2) conducted the post mortem examination and found the following three external injuries:- 1. Gun shot entrance wounds 1/4 x 1/4 and 1/2 x 1/2 in the epigastric region with blackening of the skin surrounding it. Dr. Dalip Singh (PW 2) conducted the post mortem examination and found the following three external injuries:- 1. Gun shot entrance wounds 1/4 x 1/4 and 1/2 x 1/2 in the epigastric region with blackening of the skin surrounding it. One, just below the inner and of the 12th rib and the other, two and a half inch away from the mid line of the abdomen and 2" below the 12th left rib. 2. Exit wound 3/4" x 1/2" on the left side of the back 3' away from the 10 thorasic vertebrae. 3. Exit wound 3/4" x 1/2" on the left side of the back, 11/2" away the 12th thoracle vertebrae. 3. On opening the body, the doctor found the abdomen full of blood. The spleen was practically shattered and ruptured. The cause of death of Badri in the opinion of the doctor, was the gun shot injuries of the received by the deceased which caused the rupture of the spleen and these injuries were sufficient in the ordinary course of nature to cause death. 4. Three persons, namely, Heta, Gopi and Sarupa were arrested but after investigation the police authorities put up a challan only against Hera and Gopi. During the investigation, on information given by Gopi under section 27 of the Evidence Act a gun (Art.1) was discovered but the police authorities did not send the gun for ballistic examination and, therefore, it cannot be connected with the act of murder. Both Hera and Gopi, after inquiry, were sent to the court of Sessions to stand their trial. Gopi was changed for an offence under section 302 read with section 34 Indian Penal Code. 5. There are only two eye witnesses, namely, PW. 6 Rameshwar & PW. 7 Matola who had seen the occurrence and therefore they were produced by the prosecution to fasten the guilt of committing murder of Badri on Gopi. The witnesses however deposed at the trial that Hera was with Gopi, at the time when the gun was fired by Gopi, but the learned trial Court did not find any other circumstance on the record which may give rise to an inference that Hera, in any manner shared the common intention with Gopi to commit the murder of Badri. Hera was, therefore, acquitted by the trial court and Gopi alone was convicted under section 302 Indian Penal Code. 6. Hera was, therefore, acquitted by the trial court and Gopi alone was convicted under section 302 Indian Penal Code. 6. Gopi was represented by Mr. Saluja, but Mr. Saluja when called by the Court, expressed his inability to argue the case as he was neither paid his fees nor was he given money to purchase the paper book of the Court. The appeal of Gopi was, therefore, heard with the assistance given by the Public Prosecutor. 7. PW. 3 Mohan Singh a real brother of deceased Badri, was the author of the first information report, but he lodged that report on the basis of the information that he had received from Rameshwar and it was on that information that he had named Gopi who actually fired the gun at Badri resulting in his death. 8. The statements of eye witnesses, namely, Rameshwar (PW. 6) and Matola (PW. 7) were read over to us. These two witnesses have been cross examined by the counsel representing Gopi and Hera at the trial at great length. We have very carefully gone through the testimony of these two witnesses and we find that they are the witnesses of truth. According to these witnesses, they had gone to 'Beriya Ghata' to cut the berry shrubs and when they were cutting the shrubs on amount of a hillock they heard in the Chambal ravines some people talking. When they looked for them they found Badri, Sarupa, Gopi and Hera talking to each other and going towards Ghooriyakhera. After covering a short distance they saw Badri going a few steps ahead of Sarupa, Gopi and Hera. Sarupa, Gopi & Hera all of a sudden stopped and started talking to each other. What transpired between them could not be heard by these two witnesses, but, according to them, all those four persons were visible to them. The witnesses further stated that Badri, after going a few paces saw that his associated had stopped and, therefore, he returned and when he made inquiry from his three companions as to why they had stopped, Gopi opened a fire towards Badri with his muzzle loading gun which hit Badri on his abdomen. Badri fell down injured. On seeing this incident both Rameshwar and Matola rushed towards Badri and chased Gopi but they could not succeed to catch him. Badri fell down injured. On seeing this incident both Rameshwar and Matola rushed towards Badri and chased Gopi but they could not succeed to catch him. These two witnesses have, however, identified gun (Art.1) which was recovered at the instance of Gopi, both at the trial as well as at the identification parade conducted by P.W.1 Shri Kanhaiyalal. 9. At the trial some infirmities were pointed out in the testimony of these two witnesses but the learned Judge, after carefully scrutinising the evidence of the said two eye witnesses, repelled that argument of the learned counsel for the accused. We perused these statements of Rameshwar and Matola in the light of arguments advanced by the counsel of the accused at the trial, and we feel that the learned trial Judge has rightly rejected the arguments and accepted the evidence of the eye witnesses. In our opinion, the testimony of the two witnesses is worthy of credence and we, therefore, come to this conclusion that the prosecution has established that Gopi was the author of the gun shot injuries sustained by Badri and he was therefore, rightly convicted for the murder of Badri. We feel that the conviction of the appellant is proper and, therefore, reject the appeal filed by him. *******