Judgment SAXENA, J. ( 1 ) THIS appeal has been directed against the judgment dated 27-7-87 passed by the learned Addl. Sessions Judge, Bikaner, whereby he convicted the appellant Yashpal for the offence u/s. 302, IPC and S. 27, Arms Act and sentenced him to life imprisonment with a fine of Rs. 2000. 00 and in default to further undergo two years rigorous imprisonment on the first count and two years rigorous imprisonment with a fine of Rs. 500. 00 and in default to further undergo three months rigorous imprisonment on the second count. He further directed that both the substantive sentences shall run concurrently. ( 2 ) THE skeletal facts necessary for the disposal of this appeal are that on 6-8-85 at about 8-30 a. m. , deceased Sri Ram was going from his house to the Railway Station, Ratangarh and that when he reached near the Railway turn track (Ghumchakkar), appellant Yashpal, armed with a gun came there and fired a gun shot causing injuries on the chest of Sri Ram who fell down. It is alleged that the appellant took out a cartridge from the pocket of his pant, re-loaded his gun and pumped a gun shot on Sri Ram, who was lying. It is further alleged that the said occurrence was witnessed by informant PW 1 Rajendra, who was returning to his house from the market, his mother PW 15 Smt. Durga Devi and PW 6 Govind Dan Charan. Thereafter, appellant fled away with his gun. Rajendra, Govind Dan and others, lifted Sri Ram who was still breathing and tried to take him to the hospital, but he breathed his last at a distance of about 35 meters from the place of the occurrence and, as such, they placed his dead body there. It is alleged that PW 8 Omprakash, looking to the ghastly scene, became unconscious. P. W. 1 Rajendra rushed to the G. R. P. Police Station, Ratangarh which was situated about 200 meters from the place of the occurrence, where on the same day at 9 a. m. , he lodged an oral report and whereupon Crime No. 24/81 vide FIR Ex. P. 1 was registered by PW 16 Ram Singh, S. H. O. u/s. 302, IPC. P. 1 was registered by PW 16 Ram Singh, S. H. O. u/s. 302, IPC. Ram Singh immediately informed the S. H. O. , P. S. Ratnagarh to flash wireless message to the senior officers as also to all police stations of District Churu. P. W. 10 Basheshar Singh, F. C. , Incharge, Wireless Set, Police Station, Ratangarh transmitted the wireless message Ex. P. 14 between 9-20 a. m. to 9-25 a. m. to all S. H. Os, P. Ss. , Churu informing them that Yashpal, Advocate, Ratangarh after committing the murder had run away from Ratangarh; that he was armed with a gun; that Nakabandi should be effected and that if he is apprehended, then the same be immediately informed. ( 3 ) P. W. 16 Ram Singh inspected the site and prepared site inspection memo Ex. P. 7. He lifted sample of blood stained soil from the place of the occurrence, seized and sealed the same vide seizure memo Ex. P. 8. He prepared the memo of dead body of Sri Ram and his autopsy Ex. P. 10 and Ex. P. 9 respectively. He also got the dead body of Sri Ram and the place of occurrence photographed by PW 11 Khemchand, photographer and those photographs are Ex. P. 15 to Ex. P. 20. ( 4 ) P. W. 13 Dr. He prepared the memo of dead body of Sri Ram and his autopsy Ex. P. 10 and Ex. P. 9 respectively. He also got the dead body of Sri Ram and the place of occurrence photographed by PW 11 Khemchand, photographer and those photographs are Ex. P. 15 to Ex. P. 20. ( 4 ) P. W. 13 Dr. B. S. Panwar, who conducted the post mortem examination of the dead body of Sri Ram on the same day at 2-20 p. m. found the following injuries :- (1) an abrasion on the right shoulder 1 cm x 1/2 cm having oblique direction black margin; (2) a wound at the apex of right axilla 1/2" x 1/2" having slight black margin; (3) multiple millet bazra size black puncture wounds with subcutaneous echymosis on all over front of chest ranging from 1/2 cm to 1/4 cm in size, approximately 74 in number; (4) circular coin shaped punctured wound of about 1/2" diameter at the mid part of the chest about 2" medical to left nipple near the fourth intercostals space; (5) punctured wound of about 1/2" diameter, subcutaneously on left fifth intercostal space about 11/2" away from level of left nipple and wherefrom a white button shaped plastic coin was recovered; (6) oval punctured wound 21/4" x 11/2" x 1/2", on the abdomen alongwith complete loss of wall 6" below from right nipple and about 4" from mid line of abdomen. Loops of intestines were visible in the wound; three right lower ribs were exposed in the wound and direction of wound was from below upwards medially and towards liver side; (7) punctured oval shaped wound 1/2" x 1/2" x 1" obliquely placed on the middle of right arm anterolateral. Echymosis was present subcutaneously and two pellets were recovered from the said wound. Right ninth, tenth and eleventh ribs were fractured with loss of wall exposing intestine and haemothorax on both sides. ( 5 ) ON dissection, the right lower lobe was found extensively and severely damaged and few pellets, a piece of wad, two circular wads and two pieces of half circular wads were recovered therefrom. There was injury to left lung overlying the heart and few pellets were also recovered therefrom. The lower posterior wall of the heart was extensively damaged. There was injury to left lung overlying the heart and few pellets were also recovered therefrom. The lower posterior wall of the heart was extensively damaged. Both autrium were empty and few pellets were recovered from damaged heart and muscles, the pericardial cavity was full of blood. The abdomens punctured wound had a direction from below upwards traceable upto the heart. ( 6 ) ALL the injuries were ante mortem in nature and caused within twelve hours. The X-ray of the chest and abdomen of the dead body of Sri Ram revealed multiple small rounded shadows of metallic density. Dr. Panwar vide post mortem report Ex. P. 22, opined that the cause of death was due to severe damage to vital organs namely liver, lungs and the heart resulting in hemorrhage and shock. The doctor sealed the recovered 76 pellets, wad pieces and the blood stained clothes of the deceased and handedover those to the police. ( 7 ) P. W. 9 Jagendra Singh, SHO, PS, Sardar Shahar after receiving wireless message Ex. P. 14 went in search of the assailant and it is alleged that on 6-8-85 at about 10-30 a. m. , he apprehended the appellant near a petrol pump, who was traveling in truck No. 8138. Jagendra Singh immediately informed the SHO, PS, Ratangarh; that thereupon a Head Constable from the G. R. P. P. S. , Ratanangarh reached Sardar Shahar, took the appellant to Ratangarh, where he was formally arrested on the same day at 10 p. m. vide arrest memo Ex. P. 27. It is the case of the prosecution that on 8-8-85, the appellant in pursuance to his information given under S. 27, Evidence Act vide memo Ex. P. 28, got recovered his licensed twelve bore single barrel gun (Art. 2) and a packet containing six live cartridges (Art. 3) from his house alongwith his gun licence Ex. P. 5. The said gun was seized, sealed and eventually sent to the State F. S. L. , Rajasthan, Jaipur along with the sealed packet of the pellets and the wad pieces recovered by the doctor from the dead body of Sri Ram. ( 8 ) AFTER examination, the Assistant Director (Ballistic), State F. S. L. , Rajasthan, Jaipur by his report dated 28-4-86 Ex. ( 8 ) AFTER examination, the Assistant Director (Ballistic), State F. S. L. , Rajasthan, Jaipur by his report dated 28-4-86 Ex. P. 28 opined that the said twelve bore single barrel gun was a serviceable fire arm; that the examination of its barrel residue indicated that the said gun had been fired sometime before it was received in the laboratory that the six twelve bore cartridges were blank cartridges, which are used for fire work and that the lead pellets and wads were normally not used in blank twelve bore cartridges. The Ballistic Expert after examining the shirt of the deceased also opined vide report Ex. P. 25 that the multiple holes present on its front portion appeared to have been caused by lead shots tired from fire arm. ( 9 ) DURING investigation, it transpired that appellant Yashpal, who is an advocate and resides near the Railways Colony, Ratangarh, had lodged an oral report on 4-8-85 at about 11 p. m. , whereupon Crime No. 23/85 was registered at G. R. P. Police Station, Ratangarh vide FIR Ex. D. 11 for the offences under Ss. 147, 341 and 323, IPC and S. 120, Indian Railways Act against Sri Ram (deceased), P. W. 1 Rajendra alias Papiya, P. W. 8 Om Prakash, Babulal, and their younger brother. In the said report, the appellant had alleged that on 4-8-85 at about 10-45 p. m. , when he reached the betel shop of Shyam Sunder situated near the Railway Canteen, the aforementioned persons assaulted him by fist blows, hurled him abuses and caused injuries to him and that they also threatened to kill him. It further transpired that on 6-7-85, on the basis of a report of one Khem Chand, Crime No. 181/85 was registered at P. S. Sadar Bikaner vide FIR Ex. A. 30 for the offence u/s. 306, IPC against the appellant. It was alleged in FIR Ex. A. 30 that the appellant had induced/abetted Smt. Nirmala, who was living with him as his concubine, to commit suicide on the night intervening 20th and 29/06/1985. A. 30 for the offence u/s. 306, IPC against the appellant. It was alleged in FIR Ex. A. 30 that the appellant had induced/abetted Smt. Nirmala, who was living with him as his concubine, to commit suicide on the night intervening 20th and 29/06/1985. It is the case of the prosecution that on 4-8-85 at about 10-30 p. m. , appellant Yashpal had quarreled with the deceased Sri Ram saying that the latter had defamed him in the locality by telling others that he (Yashpal) had committed the murder of a lady and was also sent to jail; that thereupon the deceased Sri Ram asserted that whatever he had said was correct; that the appellant was also put under detention in the jail and that number of cases were also pending against him in Ratangarh. It is alleged that thereupon, the appellant got infuriated and threatened the deceased that he would teach him a lesson. ( 10 ) AFTER investigation, a challan was filed in the Court of Judicial Magistrate (Railways), Bikaner, who committed the case to the learned trial Judge. The appellant denied the indictment and claimed trial. The prosecution examined as many as sixteen witnesses. The appellant in his plea recorded u/s. 313, Cr. P. C. , denied the circumstances appearing against him in the prosecution evidence and claimed that from the flour mill (where PW 15 Smt. Durga Devi is alleged to have seen the incident), the place of occurrence was not visible; that PW 6 Govind Dan was not the person, named in the FIR and that PW 6 being the foster-brother of PW 8 Omprakash, has deposed falsely. He further asserted that all the alleged eye witnesses are relatives inter se and they were interested witnesses; that PW 4 Jagendra Singh, SHO, PS, Sardar Shahar bore personal enmity with him and that he in collusion with PW 16 Ram Singh had falsely implicated him in this case. He claimed that he was not present at the time of the alleged occurrence; that Jagendra Singh had arrested him on 5-8-85 and produced him at Ratangarh on the next day. He also denied to have got recovered the gun. He further claimed that he neither committed the murder of Sri Ram nor the latter was murdered from his gun. In his defence, he produced as many as eight witnesses and relied on the documents Ex. He also denied to have got recovered the gun. He further claimed that he neither committed the murder of Sri Ram nor the latter was murdered from his gun. In his defence, he produced as many as eight witnesses and relied on the documents Ex. D 1 to Ex. D 26. The learned trial Judge after trial, found the appellant guilty of the offence u/ss. 302 IPC and 27 Arms Act and sentenced him as indicated above. Hence this appeal. ( 11 ) WE have heard Mr. M. M. Singhvi, learned counsel for the appellant and Shri Bohra, the learned P. P. at length and carefully perused the record of the learned lower Court in extenso. ( 12 ) MR. M. M. Singhvi has assailed the impugned judgment on multi counts. He has not disputed the factum of death of Sri Ram but asserted that the assailant of the deceased was unknown and that the appellant has been later on falsely implicated in this case. He has claimed that no such report, as alleged in FIR Ex. P. 1, was lodged by PW 1 Rajendra on 6-8-85 at 9 a. m. He has submitted that there is intrinsic evidence on record to show that the FIR Ex. P. 1 is a post investigation document because as per statement of PW 10 Basheshar Singh, the SHO, PS, Ratnagarh had directed him to flash the wireless message about the incident at 8. 45 A. M. on 6-8-85, which is also corroborated by the testimony of PW 9 Jagendra Singh, SHO, PS, Sardar Shahar. According to him it has been well proved by the evidence recorded in this case that on 6-8-85, the Judicial Magistrate (Railways), Bikaner was holding his camp Court at Ratanaarh near the G. R. P. Police Station, still then the FIR Ex. P. 1 was not presented before him, instead the same was submitted on 7-8-85 at 10 a. m. at Bikaner. Shri Singhvi has contended that this inordinate delay in sending the FIR to the Magistrate has remained unexplained which makes the prosecution case doubtful. His another limb of argument is that there is material inconsistency in the medical evidence and the testimony of eye witnesses. Shri Singhvi has contended that this inordinate delay in sending the FIR to the Magistrate has remained unexplained which makes the prosecution case doubtful. His another limb of argument is that there is material inconsistency in the medical evidence and the testimony of eye witnesses. According to the eye witnesses, the appellant after re-loading his gun had pumped the second fire shot in the body of Sri Ram, who was lying near the Railway track and that in such a position, the direction of the gun shot should have been from upwards to downwards, whereas the doctor has found the direction of the abdominal wound downwards to upwards. Mr. Singhvi has, therefore, argued that this material inconsistency makes the testimony of the alleged eye witness unreliable and as such the learned trial Judge has committed grave illegality in discarding this part of the testimony of PW 13 Dr. B. S. Panwar, Mr. Singhvi has strenuously contended that the alleged eye witness PW 1 Rajendra and PW 8 Omprakash are the real brothers and PW 15 Smt. Durga Devi is the mother of deceased and that PW 5 Manak Chand and PW 6 Govind Dan are interested witnesses. According to him, the names of PW 5 Manak Chand and PW 8 Omprakash also do not find mention in the FIR. Thus, these witnesses have been introduced later on and that infact, they are not the eye witnesses. He has contended that PW 6 Govind Dan is a concocted witness because as per defence evidence, Gopal Ram was never known as Govind Dan and that the alleged eye witness Govind Dan mentioned in the FIR Ex. P. 1 is entirely a different person. His next thrust of argument is that it was highly improbable for Smt. Durga Devi and Omprakash to have seen the incident in view of the distances of the flour mill and the house, from the place of the occurrence was not visible. According to him, the learned trial Judge has not scrutinised the prosecution evidence in the light of the checks available on record and has ignored the inherent infirmities and improbabilities appearing in the evidence. He has stressed that the alleged recovery of the gun does not connect the appellant with the crime because the Ballistic Expert in his report Ex. According to him, the learned trial Judge has not scrutinised the prosecution evidence in the light of the checks available on record and has ignored the inherent infirmities and improbabilities appearing in the evidence. He has stressed that the alleged recovery of the gun does not connect the appellant with the crime because the Ballistic Expert in his report Ex. P. 28 has clearly opined that the recovered live cartridges were blank and are used for fire work and that the lead pellets and the wads alleged to have been recovered from the dead body of Sri Ram, are normally not used in such twelve bore cartridges. According to him, the report of the Ballistic Expert negates the prosecution case. Mr. Singhvi has lastly stressed that in this case, the investigation has not been conducted fairly; that the delay in examining the witnesses by the I. O. has not been satisfactorily explained; that in site plan Ex. P. 7, the position of witnesses was not shown, which is a serious infirmity and that the absence of trial of blood from the place of occurrence to the place where the dead body of the deceased was found lying by the I. O. also makes the prosecution case highly suspicious and that in view of this, the appellant deserves to be acquitted by giving him the benefit of reasonable doubt. He has also relied on various cases, which shall be dealt-with at appropriate stage. ( 13 ) ON the other hand, Mr. Bohra learned P. P. has forcefully argued that in this case the FIR was immediately lodged; that from the wireless message Ex. P. 14, it is well established that the message was flashed from 9. 20 AM to 9. 25 AM to all the S. H. Os. , P. Ss. , Churu and that this fact also finds mention in the karyawahi police appended to FIR Ex. P. 1. According to him, the appellant being an advocate has tried to influence the investigation later on and that is why PW 10 Basheshar Singh, F. C. has stated that he was directed by the S. H. O. , P. S. , Ratangarh to flash the message at about 8. 45 AM on 6-8-85. Mr. Bohra has submitted that his oral testimony in contravention of the documentary evidence Ex. P. 14 is meaningless. According to him, in the wireless message Ex. 45 AM on 6-8-85. Mr. Bohra has submitted that his oral testimony in contravention of the documentary evidence Ex. P. 14 is meaningless. According to him, in the wireless message Ex. P. 14, it was clearly mentioned that Yashpal, advocate, had committed a murder and that he had fled away with a gun. In such circumstances, it is absolutely absurd to contend that it was a case of blind murder where the assailant was not known or that the appellant was roped in later on. Mr. Bohra has argued that there is no material inconsistency between the oral and medical evidence; that PW 1 Rajendra has specifically mentioned in FIR Ex. P. 1 that his mother Smt. Durga Devi and Govind Dan Charan had seen the alleged occurrence; that presence of PW 8 Omprakash, who became unconscious on the spot, as also the presence of Manak Chand have also been well established; that their presence was quite natural and, therefore, they are not concocted witnesses. According to him, the recovery of the licensed gun of the appellant from his house has been well proved and that as per the Ballistic Expert report, it was a serviceable firearm. He has contended that the Ballistic Expert has not opined that the lead pellets and the wads pieces recovered from the body of deceased were not fired from the recovered gun Article 2, on the other hand, he has simply observed that normally such lead pellets and wad pieces are not used in blank live cartridges. According to him, this observation/opinion does not negate the prosecution case. He has maintained that Govind Dan is a resident of the locality where the alleged incident took place and that from the evidence, it stands well proved that his nick name is Gopal Dan. According to him the copy of the service book and other documents Exs. D. 16 to 21 unmistakably proves that the said service book does not pertain to PW 6 Govind Dan but the same belongs to some other Govind Dan Charan whose fathers name is Moola Dan and who is also not the resident of Ratangarh. Thus, according to him, the appellant has made an unsuccessful attempt to confuse the whole issue. Mr. Bohra has supported the impugned judgment and reiterated the reasonings given by the trial Judge. Thus, according to him, the appellant has made an unsuccessful attempt to confuse the whole issue. Mr. Bohra has supported the impugned judgment and reiterated the reasonings given by the trial Judge. ( 14 ) WE have bestowed our most anxious consideration to the rival contentions raised before us. ( 15 ) IN our considered opinion, it is not at all a case of blind murder, wherein the assailant of the deceased Sri Ram was not known. The incident was witnessed by as many as five witnesses namely PW 1 Rajendra, PW 5 Manak Chand, PW 6 Govind Dan alias Govind Ram, PW 8 Omprakash and PW 15 Smt. Durga Devi. The names of Govind Dan and Durga Devi also find mention in the FIR Ex. P. 1, which was lodged by PW 1 Rajendra immediately after the occurrence. The alleged occurrence took place on 6-8-85 at 8. 30 AM near the railway turn track in the yard of Railway Station, Ratangarh. PW 1 Rajendra has deposed that on the fateful day at about 8. 30 AM, while he was coming from the railway station and going to his house, he saw his brother Sri Ram going from his house towards the railway station to report on duty; that in the meanwhile, appellant Yashpal armed with a gun came from the lane in between railway quarters of Sunderlal and Kailash; went ahead of him and fired a gun shot towards Sri Ram from a distance of about 15-16 paces causing injuries on latters chest. He has further deposed that Sri Ram fell down after sustaining injuries on his chest and that at that time, both were facing each other. He has further deposed that thereafter the appellant took out a cartridge from the pocket of his pant, re-loaded his gun and immediately fired a second shot causing injuries below Sri Rams right ribs and thereafter fled away alongwith his gun. He has stated that the said incident was witnesses by Govind Dan, who was standing nearby, his mother Smt. Durga Devi and Manak Chand, who were at the flour mill and arrived at the place of occurrence raising alarms and his brother Omprakash. He has stated that the said incident was witnesses by Govind Dan, who was standing nearby, his mother Smt. Durga Devi and Manak Chand, who were at the flour mill and arrived at the place of occurrence raising alarms and his brother Omprakash. He has further stated that he alongwith Manak Chand and Omprakash tried to carry Sri Ram to the hospital, but when they covered a distance of about 4-5 paces, he breathed his last; that thereupon they placed the body of the deceased there; that seeing the incident, Omprakash became unconscious and that thereafter, he went to G. R. P. police station, Ratangarh, where he lodged an oral report, which was reduced into writing vide FIR Ex. P. 1 by the police. He has stated that the said police station is about half a kilometer from the place of the occurrence; that he had gone alone to the police station leaving Manak Chand and Omprakash with the deceased and that FIR Ex. P. 1 was read over to him, which he had signed. In his cross-examination, he has deposed that he had reached the police station between 8. 45 AM to 9 AM and remained there for about 5-10 minutes. It is pertinent to note that no suggestion was put to this witness by the defence that FIR Ex. P. 1 was not lodged by him at 9 AM and that the same was drawn after the investigation of this case. PW 16 Ram Singh, S. H. O. , G. R. P. police Station, Ratangarh had deposed that PW 1 Rajendra had come to the police station at 9 AM on 6-8-85 and lodged an oral information about the incident, which was reduced into writing vide FIR Ex. P. 1 under his supervision and that the same was duly signed by him and the informant. He has specifically stated that he did not receive any other information about the incident prior to lodging of FIR Ex. P. 1 and that immediately after registering the case, he had orally informed the incharge of the Wireless Section of Police Station, Ratangarh, through a V. H. F. Set and requested him to inform the senior police officers and all the S. H. Os of various police stations of District Churu. P. 1 and that immediately after registering the case, he had orally informed the incharge of the Wireless Section of Police Station, Ratangarh, through a V. H. F. Set and requested him to inform the senior police officers and all the S. H. Os of various police stations of District Churu. He has stated that he had not sent the said information in writing to the S. H. O. P. S. , Ratangarh he has further stated that he had reached the place of occurrence around 9. 10-12 AM, which was about 125 meters from the Police Station and about 100 meters from the railway station and that he remained there till 12 Noon that day. Again, no suggestion was put to this witness; that FIR Ex. P. 1 was not lodged at 9 AM, but was lodged much later after the investigation. PW 18 Basheshar Singh, constable, who was on the wireless set duty at Police Station, Ratangarh on the day of occurrence, has specifically deposed that on that day at 9. 20 AM, the S. H. O. had directed to him flash the message relating to the incident through wireless to all the police stations of Churu district to the effect that Yash Pal, advocate, after committing a murder, had fled away and that he was having a gun. This witness had proved the said wireless message Ex. P. 14 and stated that he had flashed the said message to all police stations of Churu district. A perusal of wireless message Ex. P. 14 reveals that it was transmitted on 6-8-85 from 9. 20 AM to 9. 25 AM. In that message, it was clearly mentioned that just now, Yashpal, advocate, after committing murder in Ratangarh had fled away having a gun with him; that Nakabandi should be effected immediately and that the SHO, P. S. , Ratangarh be informed immediately after his arrest. He has however admitted that Ex. P. 14 is the copy of the said wireless message, which bears his signatures at place A to B. In his cross examination, he further admits that in his police statement dt. 12-9-1985 Ex. P. 9 at portion A to B, he had informed the I. O. that the SHO had ordered him to flash the said wireless message on 6-8-1985 at about quarter to 9 AM. The contention of Mr. 12-9-1985 Ex. P. 9 at portion A to B, he had informed the I. O. that the SHO had ordered him to flash the said wireless message on 6-8-1985 at about quarter to 9 AM. The contention of Mr. Singhvi is that this witness has thus made a material improvement about the time of flashing the wireless message, which makes the prosecution story highly doubtful. We are not at all impressed by this averment. Firstly, in wireless message Ex. P. 14 the time of the transmission of the message has been clearly mentioned between 9. 20 AM to 9. 25 AM. Therefore, the oral testimony of Basheshar Singh in this regard cannot override the documentary evidence. Secondly, his police statement was recorded as late as on 2-9-1985 and by that lapse of time, it is just possible that he might not have remembered the exact time flashing the said wireless message. Thirdly, it is common experience that different watches do not indicate the exact time and there is always a variation of few minutes in the timings recorded by the various watches. Moreover, in the karwahi police jotted down just below the FIR Ex. P. 1, PW 16 Ram Singh had clearly mentioned that a special report of the incident was issued and the officers concerned were intimated about the same through radiogram message to the effect that after the incident, the accused had run away and that all measures should be taken to apprehend him. Besides this, in all the documents which were prepared by PW 16 Ram Singh on 6-8-1985 on the spot viz. site plan Ex. P. 7, seizure memo of blood stained soil Ex. P. 8, Panchayat Nama and memo of dead body of Sri Ram Ex. P. 9, 10 and 11 respectively and the receipt of the dead body Ex. P. 14-A, the crime number has been mentioned. Apart from it had the FIR Ex. P. 21 been lodged after the initial investigation, then the names of other eye witnesses namely PW 5 Manak Chand and PW 8 Om Prakash would have also been included. On the other hand, in FIR Ex. P. 1, we do not find any embellishment or manipulation. In such circumstances, we are of the considered opinion that FIR Ex. P. 21 been lodged after the initial investigation, then the names of other eye witnesses namely PW 5 Manak Chand and PW 8 Om Prakash would have also been included. On the other hand, in FIR Ex. P. 1, we do not find any embellishment or manipulation. In such circumstances, we are of the considered opinion that FIR Ex. P. 1 was promptly lodged by PW 1 Rajendra immediately after the incident and that it is not at all a post investigation document. ( 16 ) MUCH stress has been laid down by Mr. Singhvi that delay in dispatch of FIR to the Magistrate has not been explained and that the same is fatal to the prosecution case. He has submitted that from the evidence recorded in this case, it was well proved that on 6-8-85, the Judicial Magistrate (Railways) was camping at Ratangarh still then the copy of the FIR was received by him on 7-8-1985 at 10 AM at Bikaner and that this delay has not been well explained by the prosecution, which makes the prosecution case highly suspicious. For this, he has placed reliance on (1) State of Punjab v. Tarlok Singh ( AIR 1971 SC 1221 ) and (2) Ishwar Singh v. State of Uttar Pradesh ( AIR 1976 SC 2423 ). In Tarlok Singhs case (supra), the FIR purported to have been lodged at 3. 45 PM did not reach to the. Magistrate at Dasuya, which was only 15 or 16 miles from the Police Station till 8 A. M. the next day, even though the same was sent through a special messenger. The prosecution in fact made no attempt to explain this delay. It was held that such unexplained delay coasted doubt on the prosecution version that the FIR was lodged at 3. 45 PM without lapse of unnecessary time. In Ishwar Singhs case (supra), the FIR was sent to the Magistrate after two days and the delay was not explained. The Apex Court, therefore, held that extraordinary delay in sending the FIR was a circumstances which provided a legitimate basis for suspecting that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. The Apex Court, therefore, held that extraordinary delay in sending the FIR was a circumstances which provided a legitimate basis for suspecting that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. In that case, the substratum of the prosecution story as contained in the FIR and the case was made out in the Court during trial differed into very material particulars and therefore, it was held that the unexplained inordinate delay in sending the FIR to the Magistrate made the prosecution case doubtful. That was a case of free fight between the two parties, armed with weapons and material witnesses were also not examined. But such are not the facts of the case in hand. It is true that DW 6 Mohd. Anwar, Reader, the Court of Judicial Magistrate (Railways), Bikaner clearly has stated that on 6-8-1985 the Judicial Magistrate was holding the Camp Court from 10. 30 AM to 4. 00 PM at Ratangarh near the Rest House and G. R. P. Police Station and that the latter had left for Bikaner on the next day by the train which leaves Ratangarh at 4 AM. But plausible explanation for the delay in sending the FIR to the Magistrate has been given by PW 16 Ram Singh, SHO, who has stated that he had sent the FIR Ex. P. 1 as also the special report through the train Guard in the evening of 6-8-1985, and that the FIR was delivered in the Court of Judicial Magistrate (Railways) Bikaner at 10. 30 AM on the next day. On 6-8-85, the I. O. was busy in the investigation. Bikaner is about 150 Kms from Ratangarh. The Magistrate received the FIR on 7-8-85 immediately when the Court opened at 10. 20 AM at Bikaner. In such circumstances, to our mind, there is neither any inordinate delay in dispatch of the FIR nor the said delay has remained unexplained. ( 17 ) IN Pala Singh v. State of Punjab ( AIR 1972 SC 2679 ), the Apex Court has observed that Section 157 Cr. 20 AM at Bikaner. In such circumstances, to our mind, there is neither any inordinate delay in dispatch of the FIR nor the said delay has remained unexplained. ( 17 ) IN Pala Singh v. State of Punjab ( AIR 1972 SC 2679 ), the Apex Court has observed that Section 157 Cr. P. C. , requires the FIR to be sent forthwith by the Police Officer concerned to the Magistrate empowered to take cognizance of such offence; that the said provision of law is designed to keep the Magistrate informed of the investigation of such cognizable offence so as to able to control the investigation and if necessary to give appropriate direction under Section 159, Cr. P. C. It has further been observed that where the FIR was actually recorded without delay and the investigation started on the basis of that FIR and if there is no infirmity brought to the notice of the Court, then, however, improper or objectionable the delayed receipt of the report by the Magistrate concerned, in the absence of any prejudice to the accused, it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable. Therefore, delay in receipt of the FIR by the Magistrate by itself, does not make the investigation tainted nor the prosecution case doubtful. ( 18 ) IN Yogendra Singh v. State of Rajasthan (1979 Cri LR (Raj) 444), a similar view has been taken. As mentioned earlier, in the case in hand, the delay in dispatch of the FIR has been satisfactorily explained. Keeping in view all the facts and circumstances of this case, to our minds, the delay in sending the FIR to the Magistrate is not at all fatal to the prosecution. Hence, the contention of Mr. Singhvi on this score is hereby repelled. ( 19 ) THERE is voluminous evidence to firmly establish that the alleged occurrence took place at 8. 30 AM near the railway turning track in the yard of Railway Station, Ratangarh. The incident was reported to the police immediately thereafter at 9 AM vide FIR Ex. P. 1 wherein the name of the assailant Yashpal clearly finds mention in the wireless message Ex. P. 14 transmitted to various police stations of District Churu between 9. 20 AM to 9. 25 AM on 6-8-85. The incident was reported to the police immediately thereafter at 9 AM vide FIR Ex. P. 1 wherein the name of the assailant Yashpal clearly finds mention in the wireless message Ex. P. 14 transmitted to various police stations of District Churu between 9. 20 AM to 9. 25 AM on 6-8-85. It was specifically mentioned therein that Yashpal, advocate after committing murder had run away with a gun and S. H. Os. of all Police Station of District Churu were requested to make Nakabandi and apprehend him. Had it been a case of blind murder or if the assailant was not known, wireless message Ex. P. 14 could not have been flashed on 6-8-85 at 9. 20 AM to various police stations of Churu district. Therefore, the contention of Mr. Singhvi that it was a case of blind murder; that the FIR was not lodged at 9 AM but afterwards and that the appellant has been falsely implicated is clearly devoid of any foundation and the same is hereby turned down. ( 20 ) ANOTHER contention of Mr. Singhvi is that in this case, names of alleged eye witnesses PW 5 Manak Chand and PW 8 Omprakash do not find mention in the FIR Ex. P. 1 and, as such, they are cooked up and concocted witnesses; that PW 1 Rajendra and PW 8 Omprakash are the brothers and PW 19 Durga Devi is the mother of the deceased while PW 5 Manak Chand is an interested witness and, therefore, the learned trial Judge has committed grave illegality in blindly relying on their testimony, which is replete with significant and material contradictions. He has also submitted that PW 5 Omprakash and Durga Devi could not have seen the alleged incident from the flour mill because the same was not visible from the place of occurrence. ( 21 ) AT the very outset, we may mention that merely because the witnesses are close relatives of the deceased, their testimony cannot be discarded on that ground alone because such witnesses will not rope in an innocent person and let the real culprit go scot free. However, their statements should be scanned, scrutinised and evaluated with extreme care and caution. ( 22 ) IN State of Rajasthan v. Ram Narain (1986 Cri LR (Raj) 62), the eye witness was the real brother of the deceased. However, their statements should be scanned, scrutinised and evaluated with extreme care and caution. ( 22 ) IN State of Rajasthan v. Ram Narain (1986 Cri LR (Raj) 62), the eye witness was the real brother of the deceased. It was held that the relation of the witness with the victim per se was no ground to reject his testimony but the testimony of such a witness should be free from all doubts and must inspire confidence. In Balkar Singh v. State of Rajasthan (1988 Cri LR (Raj) 705 DB), the eye witnesses were father and cousin of the deceased. It was held that since they were close relatives of the deceased, there was no reason that they will leave the real assailant and implicate the accused persons falsely. However, it was emphasized that the testimony of the related witnesses should be examined with extreme care and caution. ( 23 ) PW 1 Rajendra has been cross examined at length but his testimony has not been shattered at all. He has withstood the test of cross examination valiantly. He has specifically stated that in his presence, the appellant had fired his gun towards Sri Ram, which hit on his chest and caused injuries; that thereupon Sri Ram fell down; that the appellant reloaded his single barrel gun by taking out a cartridge from the pocket of his pant and fired another shot, which hit below the right ribs of the deceased. He has stated that Sri Ram received multiple wounds on his chest and a big wound on the left side of his stomach. In our considered opinion, the learned trial Judge has critically discussed, analysed and scanned the statement of PW 1 Rajendra and rightly held that he was a reliable witness. ( 24 ) PW 6 Govind Dan resides in the railway colony of Ratangarh. His name finds mention in the FIR Ex. P. 1. He has stated that on 6-8-85 at 8. ( 24 ) PW 6 Govind Dan resides in the railway colony of Ratangarh. His name finds mention in the FIR Ex. P. 1. He has stated that on 6-8-85 at 8. 30 AM, he was going from the Railway Station, Ratangarh to his house; that on the way, he met Sri Ram, who wished and told him that he was going to join his duty; that in the meanwhile, appellant Yashpal having a gun with him came from the lane near the Railway quarter of the guard and asked him to retreat; and that thereafter the appellant fired a gun shot towards Sri Ram which hit him on his chest and thereupon the latter fell down. He further deposed that after Sri Ram fell down, his mother Smt. Durga Devi and Manak Chand came there running from the flour mill; that Pappu (PW 1 Rajendra) was also standing there, who was carrying some vegetables and that Omprakash had also reached from his sisters house. He stated that after firing the first shot, the appellant came near Sri Ram, took out a cartridge from the left side pocket of his pant, reloaded his gun and pumped another shot just below right ribs of Sri Ram and that thereafter the appellant went away. He has further stated that PWs Rajendra and Manak and Omprakash tried to take Sri Ram to the hospital, that they had just walked a distance of about 15 paces and by that time, Sri Ram breathed his last. He has further stated that Omprakash became unconscious and that Rajendra went to the police station. In his cross examination, he has admitted that he was working as a porter on the railway goods shed under the employment of one Ramkishan Thekedar of Bikaner. He has deposed that his nick name is Govind Dan and that in the Ration Card as also in the Voter-list his name has been mentioned as Gopal Dan and that his family members call him by the name of Govind Dan. He has stated that he does not know any person by the name Govind Dan son of Motilal Charan. It may be mentioned here that the appellant has examined DW 1 Gokul Ram, Superintendent, Sudarshan Girls College, Bikaner, who has proved the service roll Ex. P. 16, leave application dt. He has stated that he does not know any person by the name Govind Dan son of Motilal Charan. It may be mentioned here that the appellant has examined DW 1 Gokul Ram, Superintendent, Sudarshan Girls College, Bikaner, who has proved the service roll Ex. P. 16, leave application dt. 24-7-85, application for P. L for the period from 22-7-85 to 30-8-85, medical certificate dt. 26-7-85 Ex. D. 20 and Fitness Certificate dt. 30-8-85 Ex. D. 19 issued by Dr. R. P. S. Tanwar and the office order sanctioning the P. L. Ex. P. 21 issued by Principal Maharani Sudarshan College, Bikaner, pertaining to one peon by name of Govind Dan son of Moti Dan r/o Bikaner. Mr. Singhvi has stressed that the person named as Govind Dan in the FIR Ex. P. 1 was in fact the said Govind Dan, who was the peon in the said college, and that who after sustaining fracture in his right hand was on P. L. from 22-7-85 to 30-8-85 and that the prosecution in his place has substituted PW 6 Govind Dan. ( 25 ) WE are not at all impressed by this argument which is based on surmises and conjectures and against the record. Firstly, the said peon Govind Dan is the son of Moti Dan and resident of Bikaner and not Ratangarh, whereas PW 6 Govind Dan alias Gopal Dan is admittedly son of Kam Dan Charan and is resident of Railway Colony, Bikaner. From the defence evidence itself, it is proved that PW 6 Govind Dan alias Gopal Dan was working as a porter in the railway goods shed, Ratangarh. PW 6 Govind Dan has specifically deposed that his nick name is Govind Dan and that in his Ration Card his name has been written as Gopal Dan. There is not an iota of evidence to suggest that the nick name of Gopal Dan is not Govind Dan. It is true that in the voters list Ex. P. 12, his name has been mentioned as Gopal Dan son of Kam Dan and that he also puts his signatures as Gopal Dan. But PW 6 has specifically deposed that his family members call him by the name of Govind and this fact also finds corroboration by the testimony of PW 1 Rajendra and other witnesses. In such circumstances, in our considered opinion, the documents Ex. D. 16 to Ex. But PW 6 has specifically deposed that his family members call him by the name of Govind and this fact also finds corroboration by the testimony of PW 1 Rajendra and other witnesses. In such circumstances, in our considered opinion, the documents Ex. D. 16 to Ex. D. 21 pertain to some other person, who was not even the resident of Ratangarh and those documents are not at all relevant. In the police statement Ex. D. 5 as also in his statement recorded under Section 164, Ex. P. 4 this witness has given his name as Govind Dan alias Gopal Dan. Therefore, the learned trial Judge has rightly held that PW 6 Govind alias Gopal is not a concocted or cooked up witness or has been substituted for another person and that the contention of the defence counsel on this count is patently absurd and devoid of any merit. Hence, this contention raised by Mr. Singhvi also fails. ( 26 ) PW 6 Govind Dan has also stated that from the flour mill of Smt. Durga Devi, the place of occurrence was clearly visible. He has stated that he was at a distance of about 20 ft. at the time when he had seen Sri Ram for the first time on the day of the incident. This witness has substantially corroborated the sworn testimony of PW 1 Rajendra. The learned trial Judge has given detailed reasons for relying upon his testimony with which we concur. In our considered opinion, PW 6 Govind Dan is a trustworthy witness. ( 27 ) PW 15 Durga Devi who is the mother of the deceased, has clearly stated that at the time of the alleged incident she was standing outside her flour mill; that she saw her son Sri Ram going on his duty towards Railway Station and that the appellant Yashpal came there with a gun and fired towards Sri Ram who received injuries and fell down; that thereupon she alongwith Manak Chand ran from the flour mill towards Sri Ram but in the meanwhile the appellant took out a cartridge from the pocket and fired another shot causing injuries to Sri Ram. She has stated that at that time, Omprakash was coming from her daughters house, while his younger son Rajendra was already standing there. She has stated that at that time, Omprakash was coming from her daughters house, while his younger son Rajendra was already standing there. In her cross examination she has stated that first shot fired by the appellant hit on the chest of Sri Ram while the second shot caused injuries on his stomach; that the appellant was about fifteen feet away from Sri Ram when he had fired the first shot, while he was about three feet away at the time of firing the second shot. She has stated that since the appellant used to carry his gun all the time and, as such, nobody thought that he would fire his gun. She has further stated that since Rajendra and Govind Dan were frightened, they did not care to catch hold of the appellant while he was re-loading his gun. She has further stated that when the second shot was fired the persons of the locality, who were there in their houses had come out. PW 5 Manak Chand and PW 8 Omprakash have also supported the testimony of PW 1 Rajendra. We have carefully perused their statements. We do not find any material or significant inconsistency or contradiction in their statements. All these witnesses have been cross examined at length. In our considered opinion, their testimony have remained unshaken. Their presence at the time of the alleged occurrence has been well proved by the statements of PW 1 Rajendra and PW 6 Govind Dan. ( 28 ) IN Yogendra Singh v. The State of Rajasthan (1979 Cri LJ (Raj) 443), it has been held that non-mention of the names of witnesses in the FIR is a question of fact and which is not by itself sufficient to reject the evidence of such witnesses. It is true that non mention of the names of the witnesses in the FIR is of some relevance but by itself it is not sufficient to entail the rejection of the testimony of such witnesses. From the evidence on record the presence of PW 5 Manak Chand and PW 8 Omprakash stands well proved and they are not concocted witnesses. From the statements of eye witnesses PW 1 Rajendra, PW 6 Govind Dan PW 15 Smt. Durga Devi, PW 5 Manak Chand and PW 8 Omprakash, the substratum of the prosecution story stands well proved and there is no valid reason to disbelieve their testimony. From the statements of eye witnesses PW 1 Rajendra, PW 6 Govind Dan PW 15 Smt. Durga Devi, PW 5 Manak Chand and PW 8 Omprakash, the substratum of the prosecution story stands well proved and there is no valid reason to disbelieve their testimony. The learned trial Judge has, therefore, not committed any illegality in relying upon their testimony. ( 29 ) ANOTHER limb of argument of Mr. Singhvi is that there is material conflict between the testimony of the eye witnesses and the medical evidence. It may be mentioned here that the learned trial Judge while considering the medical evidence discredited the opinion of PW 13 Dr. Panwar on the basis of the commentaries in the text book "forensic Science in Criminal Investigation and Trial" by B. R. Sharma without confronting the said commentary to him. Therefore, this Court by its order dated 4-2-94 recalled PW 13 Dr. B. S. Panwar under Section 311 Cr. P. C. , and accordingly, he was further examined on 17-3-94 by this Court. ( 30 ) IN the said text book at page 271 while dealing with the pellet patterns, the learned author has observed as under : "the area covered by pellets fired from a shotgun is proportional to the distance between the muzzle of the firearm and the target. Greater the range, greater is the area covered. The spread is affected by the length of the barrel of the firearm, the muzzle of the firearm (whether choked or not) and the condition of ammunition. . . . . Generally, in a standard shotgun, the whole charge enters the body en masse upto a range of about two meters, forming a rat-hole varying in diameter from about two centimeters to about six centimeters, depending, mainly, upon the distance between the muzzle and the target, the constriction (choke) of the muzzle and the size of the pellet charge. There is a rat-hole surrounded by individual holes from two meters to about seven meters. In buckshot charge the individual shot may form its separate hole from a range of three to four meters. The separation of the holes is usually complete from about ten meters onward, especially in buckshot charge. " ( 31 ) IN his statement dt. 17-3-94 recorded by this Court, Dr. B. S. Panwar agreed with the aforesaid principle propounded by the learned author. The separation of the holes is usually complete from about ten meters onward, especially in buckshot charge. " ( 31 ) IN his statement dt. 17-3-94 recorded by this Court, Dr. B. S. Panwar agreed with the aforesaid principle propounded by the learned author. He further stated that injury No. 5 detailed in post mortem examination report Ex. P. 22, which is reproduced in para No. 4 of this judgment, could be caused if the barrel of the firearm was at a distance between three to six feet from the injured. Dr. Panwar has proved the post mortem examination report Ex. P. 22, when he was examined by the trial Judge on 17-12-86. In his cross-examination, he had admitted that it was his first post mortem examination of a dead body having gun shot injuries. He had stated that the fracture of ninth, tenth and eleventh ribs could have been caused by having a fall and that the gun shot injuries caused on the thoraxic chest of the deceased could have been caused if the gun was fired from a distance of eight to ten feet and that the injury sustained by the deceased in his abdomen, which caused the rat-hole could have been caused by a gun shot fired from a distance of about 15 to 20 feet, whereas according to the ocular evidence, the appellant had fired the second gun shot from a distance of about five-six feet. The learned trial Judge disbelieved this statement of Dr. Panwar in the light of the aforementioned commentary of learned author. That is why, this Court further examined Dr. Panwar under Section 311 Cr. P. C. , wherein he has clearly admitted that the second gun shot appeared to have been fired from a distance of about six feet. He has stated that he had taken out as many as 74 pellets from the right arm, both lungs and the heart of the deceased. He has further stated that the X-ray examination of the chest of Sri Ram had also revealed 74 radio opaque shadows, which were caused due to those pellets. According to him, the cause of death was due to severe damage of vital organs like liver, lungs and the heart resulting into hemorrhage and shock. According to him, the direction of the abdominal wound was from below upwards medially and towards the liver side. According to him, the cause of death was due to severe damage of vital organs like liver, lungs and the heart resulting into hemorrhage and shock. According to him, the direction of the abdominal wound was from below upwards medially and towards the liver side. ( 32 ) THE contention of Mr. Singhvi is that as per statements of the eye witnesses, when the appellant fired the second shot causing a rat hole on the abdomen of the deceased, who was lying, such would could not have been caused having a direction from below upwards and, as such, there is material contradiction between the medical evidence and the ocular evidence and, therefore, the testimony of the eye witnesses, should be discredited and the appellant is entitled to acquittal. For this, he has placed reliance on the following cases :" (1) Mohinder Singh v. The State of Punjab ( AIR 1953 SC 415 ); (2) Ram Narain v. The State of Punjab ( AIR 1975 SC 1727 ); (3) Santa Singh v. State of Punjab ( AIR 1956 SC 526 ); (4) Hakumat Rai v. State of Rajasthan (1987 Cri LR (Raj) 718); and (5) Bhimappa Jinnappa C Naganur v. State of Karnataka (1993 SCC (Cri) 1053 ). " ( 33 ) IN Mohinder Singh case (supra), the Honble Supreme Court has observed that in a case where the death is due to injuries or wounds caused by a lethal weapon, it is always the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It has been observed that it is elementary that where the prosecution has a definite or positive case, it must prove the whole of its case. In that case it was doubtful whether the injuries which are attributed to the appellant were caused by a gun or a rifle. But such is not the controversy here that the injuries sustained by the deceased Sri Ram have been caused by a gun or rifle. In that case it was doubtful whether the injuries which are attributed to the appellant were caused by a gun or a rifle. But such is not the controversy here that the injuries sustained by the deceased Sri Ram have been caused by a gun or rifle. On the other hand, it is the consistent case of the prosecution that the appellant had fired his twelve bore single barrel gun causing multiple injuries on the chest of the deceased resulting into the fracture of his ribs damaging the vital organs and that thereafter he fired the second gun shot which caused a rat hole wound on the abdomen of the deceased causing extensive injuries to liver, lung and the heart and that the direction of the said wound was from below to upwards. All the eye witnesses have stated that when the appellant fired towards the deceased, they were facing each other; that after the first shot, the deceased fell down and that when the second shot was fired, the appellant was in a standing position while the deceased was lying down having his head towards the Railway Station and feet towards the appellant. Therefore, the second shot entered into the body of Sri Ram from the abdomen and reached in an upwardly direction. Dr. Panwar had clearly admitted that it was his first postmortem examination of the dead body having gun shot injuries. Thus, he was a novice. Admittedly he is not a ballistic expert and, therefore, his statement as regards the distance between the barrel of the gun of the appellant and the victim cannot be accepted to be precise and correct. In this Court, Dr. Panwar has clearly concurred with the commentary of the learned author Dr. B. R. Sharma and we do not find any inconsistency about the distance of the barrel of the gun and the deceased when the first and second shots were fired therefrom by the appellant to the deceased. ( 34 ) IN Ram Narains case (supra), the initial story was that the accused had fired causing gun shot injuries on the chest of the deceased and that one fire had missed. However, the doctor found two gun shot injuries; one on the right hand and another on the chest of the deceased. ( 34 ) IN Ram Narains case (supra), the initial story was that the accused had fired causing gun shot injuries on the chest of the deceased and that one fire had missed. However, the doctor found two gun shot injuries; one on the right hand and another on the chest of the deceased. Even before the police as well as before the Committing Court, the alleged eye-witnesses had repeated the initial story that the first fire made by the accused missed while the another shot caused injury on the chest of the deceased. However, during trial, the prosecution case was improved and embellished and to bring the occurrence in tune and in consonance with medical evidence for the first time the eye witnesses stated that the deceased had put his right hand over the chest when the gun shot was fired. In such circumstances, the Apex Court held that the evidence of the witnesses for the prosecution was totally inconsistent with the medical evidence or the evidence of the Ballistic Expert that it was the most fundamental defect in the prosecution case and that unless the same inconsistency could be reasonably explained, it was sufficient to discredit the entire case. Evidently facts of Ram Narains case are clearly distinguishable with the facts of the case on hand, where the original version of the incident has not been improved or changed or developed. We do not find any material and significant inconsistency between the ocular and medical evidence. ( 35 ) IN Santa Singhs case (supra), the circular wound of entry at the back of the deceased, 1/4 ( ( in diameter, had burnt inverted margins according to the doctor who conducted the post mortem examination. The Ballistic Expert deposed that if there were burnt edges of the wound, the distance between the muzzle and the victim would only be a few inches and not more than nine inches but as per the testimony of the eye-witnesses, the rifle was fired from a range of about 25 feet. In such circumstances, the Apex Court held that if there were burnt edges of the wounds, the distance between the muzzle and the victim would only be a few inches and not 25 feet. In such circumstances, the Apex Court held that if there were burnt edges of the wounds, the distance between the muzzle and the victim would only be a few inches and not 25 feet. Moreover, there were suspicious delays that had occurred in recovery of the empty cartridges from the place of the incident and the delay in sending the sealed packets of the empty cartridge and the weapon of the offence and the rifle to the Ballistic Expert. In such circumstances, the appeal was accepted and the accused were acquitted. In the instant case, Dr. Panwar has now clearly admitted that the injury No. 5 detailed in post mortem examination report Ex. P. 22 could have been caused by firearm from a distance of about six feet or more extending upto 21 ft. Therefore, as regards the distance of the appellant and the deceased while the two gun shots were fired, there is no significant in consistency between the testimony of eye-witnesses and the medical evidence. Therefore, Santa Singhs case does not come to rescue of the appellant. ( 36 ) IN Hakumat Rais case (supra), the prosecution story was that the assailant had fired gun shot from his roof causing injuries to Bashiri and Hanif. The direction of their gun shot wounds was not from upward to downward. On the contrary, it was straight. It was held that thus, the medical evidence completely falsified the prosecution story and the statements of the eye-witnesses because it was a straight gun shot fire which was fired level to level, which was totally inconsistent with the prosecution story. In the case on hand, as per the testimony of the eyewitnesses, the appellant while standing had fired the second gun shot which hit below the ribs of the deceased on his abdomen and that at that time, the deceased was lying. At that time, the legs of the deceased were towards the appellant while his head was towards the Railway Station side. The gun shot entering the abdomen after detecting inside the body went upto the heart seriously injuring the liver, lung and the heart and its direction was downward to upward. It all depends on the position of the assailant and the posture of the deceased and such injury was possible even if the deceased was lying. The gun shot entering the abdomen after detecting inside the body went upto the heart seriously injuring the liver, lung and the heart and its direction was downward to upward. It all depends on the position of the assailant and the posture of the deceased and such injury was possible even if the deceased was lying. To our mind, there is no material inconsistency between the ocular evidence and the medical evidence. Moreover, in the case on hand, the appellant first fired the gun shot causing injury on the chest of the deceased. Therefore, simply on the basis of the direction of the wound of the abdomen, the entire prosecution story cannot be discarded and thrown over the board. ( 37 ) IN Bhimppa Jinnappa Naganurs case (supra), the deceased had not received any gun shot injuries. On the other hand, it was the prosecution case that the accused took the deceased beating him on head, and face with an axe upto 400 meters and then cut him with the axe. There were more than ten bleeding injuries on the body hut no trail of blood was found by the I. O. on the place of occurrence. There was contradiction in the prosecution story and the medical evidence about the time of the death. The eyewitnesses had alleged that the deceased had died within a couple of minutes of coming out of his house after taking mid day meal, whereas from the contents of his stomach, the doctor had opined that the death had taken place at a different time. In such circumstances, the prosecution case was disbelieved and the accused were acquitted. Apparently, the facts of Bhimappa Jinnappa Naganurs case are at poles apart with the facts of the case on hand and, as such, the law laid down in Bhimappa Jinnappa Naganurs case (supra) does not apply to the facts of the instant case. ( 38 ) MR. Singhvi has also cited the case of Surjun v. State of Rajasthan (1993 Cri LJ (Raj) 600), wherein as per medical opinion, two gun shot injuries were received by the deceased but as per eyewitnesses, only one gun shot was fired. The doctor insisted that the injury on the back having inverted margins was not the exit wound. The blackening of skin around the injury was also not explained. The doctor insisted that the injury on the back having inverted margins was not the exit wound. The blackening of skin around the injury was also not explained. In such circumstances, it was held that the direct evidence of the eye-witnesses was inconsistent with the medical evidence on the most material part of the prosecution case. There were other infirmities also in the prosecution case and, therefore, the accused was acquitted. But such are not the facts of the case on hand. Hence we do not find material inconsistency between the ocular testimony and medical evidence about the injuries sustained by the deceased. There the submission made by Shri Singhvi on this score cannot be accepted. ( 39 ) FROM the evidence recorded in this case, it stands firmly established that the appellant was arrested on 6-8-85 vide arrest memo Ex. P. 27; that he volunteered information Ex. P. 28 u/s. 27, Evidence Act and that in pursuance thereof, he got recovered his licenced twelve bore single barrel gun Art. 2 containing six live cartridges, which on examination were found to be blank cartridges by the Ballistic Expert. PW 7 Bhopal Ram, constable has deposed that he had deposited those sealed packets/parcels in the State F. S. L. Raj, Jaipur vide Ex. P. 12 and Ex. P. 13 dt. 31-8-85. Thus, the recovered gun as also the pellets and wad pieces taken out from the dead body of the deceased and the packet of six live cartridges recovered from the house of the appellant were sent to the F. S. L. The Ballistic Expert vide his report Ex. P. 8 has opined that the gun (Art. 2) was a serviceable firearm; that the said gun had been fired sometimes before it was received in the laboratory; that the six twelve bore cartridges were blank cartridges, which are used for firework. He has further opined that the lead pellets and wads, which were recovered from the dead body of the deceased, are normally not used in the twelve bore blank cartridges, which were recovered from the house of the appellant. Thus, this report does not negate or falsify the prosecution story. It does not prove that the appellant had used the blank cartridges while firing towards the deceased. The gun (Art. 2) admittedly belongs to the appellant for which gun licence Ex. P. 5 was issued in his name. Thus, this report does not negate or falsify the prosecution story. It does not prove that the appellant had used the blank cartridges while firing towards the deceased. The gun (Art. 2) admittedly belongs to the appellant for which gun licence Ex. P. 5 was issued in his name. This recovery, in our considered opinion, implicates the appellant with the crime because it was a serviceable fire arm and that the same was fired some time before it was received in the F. S. L. The Ballistic Expert has further opined vide his report Ex. P. 29 that the multiple holes present on the front portion of the shirt, which the deceased was putting on at the time of the incident, appeared to have been caused by lead shots fired from firearm. This also corroborates that the deceased had received gun shot injuries on his chest and abdomen by a firearm. The appellant was apprehended by PW 9 Jagendra Singh, SHO, who on receiving the wireless message Ex. P. 14 made Nakabandi near the petrol pump and apprehended the appellant, who was sitting in a truck and was coming from Ratangarh. There is not a shred of evidence to show that Joginder Singh and Ram Singh bore enmity with the appellant and they had falsely implicated the appellant in this case. 39-A. The motive for the crime is also well proved by a perusal of FIR Ex. P. 30 and Ex. P. 11 and from the testimony of PW 8 Om Prakash. ( 40 ) THEREFORE, in our considered opinion, the learned trial Judge has scrutinised the evidence recorded in this case on the basis of the checks available and committed no illegality either of fact or law in convicting and sentencing the appellant for the offence under S. 302, IPC and impugned judgment does not warrant any interference. ( 41 ) IN the premise of the above discussion, we dismiss this appeal and affirm the conviction and sentence of the appellant. Appeal dismissed.