JUDGMENT 1. This is an appeal by the appellant Shiv Ram, against the judgment of the learned Sessions Judge, Sawai Madhopur, Camp at Gangapur City, whereby the appellant has been sentenced or offence under Section 302 IPC to life imprisonment and a fine of Rs. 1,000/- and in default of payment of fine, R.I. for two months. 2. The prosecution story, in brief, is that on 21st November, 1978 during the day time Ramdayal (PW 3) was taking fits buffaloes to the water hut and he met the appellant Shiv Ram on his way. Both Ramdayal and Shiv Ram are the residents of Village Gopalpura. The appellant Shiv Ram made a sarcastic remark as to why Ramdayal walked obliquely. Upon this remark, Ramdayal retorted that it was Shiv Ram who walked obliquely. However, after this small exchange of words, Ramdayal proceeded with his buffaloes and thereafter, went to his field to operate the water pump. At the time of dusk, Ramdayal, along with Shrimohar (PW 4), was returning on a cart and when he reached the house of Ramswaroop, the appellant threw a stone at Ramdayal as a result of which Ramdayal received an injury on his shoulder. Ramdayal made an oral complaint to Jhabbu, Kelashsahay, Harsi, Jaidhari and Gulya about this incident. Those persons came to the house of Ramswaroop where appellant Shiv Ram was sitting. They complained to the appellant as to why he had hit Ramdayal with a stone. The appellant, Shiv Ram, quietly went inside the house of Ramswaroop and thereupon those persons who had come to complain against the incident of stone-throwing returned back to the-house of Kalu. After sometime, the appellant Shiv Ram alongwith twenty six (26) others formed an assembly outside his house so as to attack those persons who had complained against the incident of stone-throwing. They were armed with lathi, pharsa and dhariya. The appellant Shiv Ram and others hurled abuses and adopted a posture of attack on the complainant party. The appellant Shiv Ram was armed with a gun and he took his position at the `Jharokha' (Balcony) on the first floor of his house. The appellant and his companions continued with abuses and did not stop even after the complainant party requested them not to hurl abuses. The appellant Shiv Ram was armed with a gun and he took his position at the `Jharokha' (Balcony) on the first floor of his house. The appellant and his companions continued with abuses and did not stop even after the complainant party requested them not to hurl abuses. The appellant Shiv Ram exclaimed that he would give them a lesson and then he opened fire from his gun which hit Harsi, who was standing across the road in front of the house of appellant Shiv Ram. Harsi died on the spot and his dead body was taken to the Government hospital at Toda-Bheem. A report was lodged by Jaldhari (PW 2), the brother of the deceased, at Police Station, Toda-Bheem the same day. Post-mortem examination of the dead body was conducted the next day by Dr. Sohanlal (PW 1), who found gun shot pellet wounds, 88 in number, in the right upper half of the chest of deceased Harsi and on the surface of the upper half of the right arm. Three pellet wounds were also found on the surface of the neck and some on the right side of the face. These were small punctured wounds, 1/2 cm x 1/2 cm in size, these wounds were of varying depths and oval in shape. The direction" of these wounds was antero posterior. Dr. Sohanlal was able to remove 30 pellets which had penetrated the right lung of the deceased and 3 pellets were removed from the upper arm. The cause of death was said to be shock and haemorrhage due to the wounds in the right lung caused by the pellets. The pellets, 33 in number, removed from the dead body of Harsi were sealed by the Doctor. The `Kurta' worn by Harsi contained holes caused by the pellets and it was forwarded by the Doctor to the Police Officer conducting investigation. The police recorded first information report (Ex.P 13) on the basis of the written report (Ex.P 2) lodged by Jaldhari at the Police Station, Toda-Bheem at 8.00 p.m. on 21.11.1978. The Police Station is at a distance of about 5 kms. from the village Gopalpura where the incident had taken-place. The Police Officer, Ram kripal (PW 17), proceeded to the scene of occurrence and prepared the site-plan (Ex.P 3) in the presence of two witnesses, Mithya (PW 10) and Ramkishore (PW 11). The Police Station is at a distance of about 5 kms. from the village Gopalpura where the incident had taken-place. The Police Officer, Ram kripal (PW 17), proceeded to the scene of occurrence and prepared the site-plan (Ex.P 3) in the presence of two witnesses, Mithya (PW 10) and Ramkishore (PW 11). The details regarding location of the houses at the place of incident have been given in the annexure to the site-plan (Ex.P 3A). The distance between the place where the deceased Harsi was standing by the roadside and the place from where the gun shot was fired was recorded as 23 arm-length (about 35'). The height of `Jharokha' (Balcony) from where the gun was fired was described to be 10 arm-lengths (about 15) from the ground. Blood-stained soil was taken into possession by the Police Officer in the presence of Mithya (PW 10) and Ramkishore (PW 11). The house of appellant Shiv Ram was searched on 22.11.1978 at about 4.00 p.m. in the presence of Mithya (PW 10) and Ramkishore (PW 11) and one single-barrel country-made gun was recovered from the house. The appellant Shiv Ram, was, however, not present. This gun was found to be un-licenced and un-numbered and was in a rusted condition. One licence book relating to another gun of 12 bore bearing No. 14473 was also found. This licence related to a double-barrel gun which was recovered after more than seven months at the instance of Ramjilal from a `Tibara'. The Police Officer arrested some members of the assailant party on different dates but since the appellant Shiv Ram was not available, he could not be arrested till 30.5.1979. After the appellant was arrested on 30.5.1979, an information under S. 27 of the Evidence Act was recorded by the Police Officer Shri K.G. Gupta, (PW 20) on 10.6.1979 wherein it was disclosed by the appellant that a gun has been given by him to Ramjilal, who lived in the Purani Basti at Jaipur. Ramjilal, another accused, surrendered himself in the Court on 6.7.1979. The Police Officer took him in police custody and, during the course of investigation, Ramjilal also gave an information to the Police Officer on 10th July, 1979 that he had kept a double-barrel gun of 12 bore in a `Tibara' near the temple of Balaji. The Police Officer, on the basis of this information, recovered a gun on 13th July, 1979. The Police Officer, on the basis of this information, recovered a gun on 13th July, 1979. 3. After completing the investigation, a charge-sheet was filed against the appellant and 26 others. The appellant was charged with the offence under Section 302 IPC by the learned Sessions Judge, Sawai Madhopur and the other 26 persons were charged with S. 143 of the IPC. The prosecution examined 20 witnesses. The learned Sessions Judge did not find the charge under Section 143 IPC proved against the 26 persons and he, therefore, acquitted all of them of the said offence. The appellant, Shiv Ram, was sentenced for offence under Section 302 IPC. 4. The plea of the appellant U/s. 313 Cr.PC was recorded wherein he put forward a counter story that the complainant party had actually formed a political group in the village Gopalpura and its members were enemical to him. On 21.11.1978, the complainant party, comprising Mohan Lal, Kalu, Prasni, Gulya, Shankar, Ballu, Kailash Sahai, Shri Mohar, Ramdayal, Jhabbu and Harsi, came to the house of the appellant at about 6-7 p.m. The appellant was sitting along with Nemi, Bhakti and Ramswaroop in the varandah of his house and they were all smoking Hukka. The members of the complainant party were armed with gun, dhariya, pharsi and lathi, Jhabbu exhorted the other members of his party to kill Shiv Ram. All the persons entered the varandah. Gulya struck a lathi blow on the head of the appellant Shiv Ram and thereupon Shiv Ram fell unconscious. Certain injuries were caused by other persons also on his body after he fell down. Nemi and Bhakti, in order to save appellant Shiv Ram from further attack, pulled him inside the house and bolted the doors from inside. The complainant party attempted to break open the doors, but did not succeed. Gun shots were fired from outside the house. After the members of the complainant party went away from the place of incident, the appellant was taken to the Government Hospital, Mahua, where he was examined at about 9.00 a.m. on 22.11.1978. Injury report (Ex.D. 3) was prepared by Dr. K.D. Gupta, (DW 4). One injury on the occipital region and four-other injuries were found on the body of the appellant Shiv Ram. Injury report (Ex.D. 3) was prepared by Dr. K.D. Gupta, (DW 4). One injury on the occipital region and four-other injuries were found on the body of the appellant Shiv Ram. Appellant Shiv Ram has further stated in his statement recorded U/s. 313 Cr.PC that he had sent Bhakti to lodge a report about the incident at Police Station Toda-Bheem, but the police instead arrested Bhakti and did not record his report. A complaint was, however, filed after about nine months in the Court of learned Munsiff and Judl. Magistrate at Hindaun. A copy of the complaint (Ex.D. 2) has been filed. In this complaint, the story, as narrated by Shiv Ram in his statement under S. 313 Cr.PC, finds its mention. 5. Seven eye-witnesses examined by the prosecution supported the prosecution story. Five eye-witnesses, namely; Teka (PW 9), Shankar (PW 12), Mohan (PW 13), Prasadi (PW 14) and Ballu (PW 15), have been declared hostile by the prosecution because they did not support its version. Mishya (PW 10) and Ramkishore (PW 11) have stated that a site-plan was prepared by the Police Officer and blood- stained as well as plain soil were lifted from the scene of occurrence. They have also affirmed the recovery of a gun from the house of appellant, Shiv Ram. Another gun was also recovered from another accused, Kundan. The police officer, Ramkripal (PW 17), has explained that this gun was taken in possession on 27.11.1978 because no licence was found at the time of its recovery. The gun which was recovered on 13.7.1979 on the information of appellant Shivram and Ramjilal was a double-barrel gun of 12 bore and it was recovered at the instance of Ramjilal from the Malpur forests. This gun was found hidden under stone and dry grass. It bore the same number (14473) which was found recorded in the licence book recovered from the house of Shiv Ram on 22.11.1978. The Police Officer, K.G. Gupta (PW 20), who recovered this licenced gun, stated in his deposition that both the barrels of this gun were found to have been cleaned and since it was recovered about eight months after the occurrence, it was of no use to get it examined by a fire-arm expert. After the barrels had been cleaned, it was not possible to find-out if the gun had been fired. After the barrels had been cleaned, it was not possible to find-out if the gun had been fired. As regards the recovery of the un-licenced gun from the house of appellant Shiv Ram immediately after the occurrence, it was also not sent for examination by an expert because, in the opinion of the Police Officer, Ramkripal (PW 17), it was an old, rusted and broken country made gun and it was of no use to get it examined by an expert. 6. The learned Sessions Judge found direct evidence as reliable and reached the conclusion that the appellant Shiv Ram had caused the death of Harsi by gun fire. The post-mortem report was found to be supportive of the direct oral evidence. The counter story put forward by the appellant was held to be totally un-reliable. It was found that no report had been lodged with the police by the appellant Shiv Ram or any of his associates. The names of the eye-witnesses, who appeared against the appellant Shiv Ram during trial, were found mentioned in the complaint filed by Bhakti in the Court of the learned Magistrate at Hindaun. The presence of the eye witnesses PW 2 to PW 8 at the place of occurrence was thus found to be beyond doubt. 7. The eye witnesses, PW 2 to PW 8, have alleged that the appellant Shiv Ram had opened fire from his gun from the first storey of his house. As a result of the gun fire, Harsi, who was standing in front of the house of the appellant across the road, received pellet injuries on his chest, arm, neck and face and died on the spot. They have stated that the appellant and his associates had formed a political group in the village and it was on account of group rivalry that the incident took place. The compliant party belonged to the rival political group. 8. In the present case, the direct oral evidence available against the appellant does not suffer from any material infirmity or inconsistency. All the eye-witnesses (PW 2 to PW 8) have categorically stated that it was the appellant who had fired at Harsi as a result of which Harsi died on the spot after receiving multiple pellet injuries. 9. Jaldhari (PW 2) is the first eye witness who also lodged the first information report. All the eye-witnesses (PW 2 to PW 8) have categorically stated that it was the appellant who had fired at Harsi as a result of which Harsi died on the spot after receiving multiple pellet injuries. 9. Jaldhari (PW 2) is the first eye witness who also lodged the first information report. He has stated that after the appellant Shiv Ram had thrown a stone at Ramdayal, he (Jaldhari) along with others went to Shiv Ram to make a complaint. After this incident in the noon, the appellant along with others assembled in the evening outside the house of the appellant and adopted an attacking posture against the complainant party. The appellant opened fire from his gund from his Jharokha and, consequently, Harsi instantly died. Ramdayal (PW 3) has also stated that the appellant had met him while he was taking his buffaloes to the Pyau (Water-hut). Shiv Ram at that time made a sarcastic remark as to why Ramdayal walked in an oblique manner. Ramdayal replied that it was not he but the appellant who was walking in that manner. In the evening, Shiv Ram threw a stone at Ramdayal when the latter was returning home. Ramdayal informed his people about these incidents whereupon Kelasahay, Jaldhari, Jhabbu, Harsi, Bulya and Shankar went to the house of Ramswaroop where the appellant Shiv Ram was sitting. After making complaint to Shiv Ram, these people returned to the house of Kalu. The appellant Shiv Ram collected his own people soon after and started abusing the members of the complainant party. Appellant Shiv Ram also opened fire from his gun as a result of which Harsi died. 10. Shri Mohar (PW 4) and Kelasahay (PW 5) are also the eye witnesses. They are brothers and they have given the same version of the incident as has been narrated by Ramdayal. Gulya (PW 6) and Kalu (PW 8) are the uncles of the deceased and they have also, in their depositions, given the same version. Jhabbu (PW 7) is another eye witness who has given a detailed account as to how the appellant Shiv Ram opened fire from his Jharokha as a result of which Harsi died on the spot. These eye-witnesses reside in the same locality of Village Gopalpura where the incident took-place. 11. Jhabbu (PW 7) is another eye witness who has given a detailed account as to how the appellant Shiv Ram opened fire from his Jharokha as a result of which Harsi died on the spot. These eye-witnesses reside in the same locality of Village Gopalpura where the incident took-place. 11. The defence story has been attempted to be proved by three eye witnesses namely; Dhudwa (DW 1), Ramkian (DW 2) and Hajari (DW 3). Dr. K.D. Gupta, (DW 4) has proved the injuries seen by him on the body of the appellant at Govt. Hospital, Mahua, on 22.11.1978 at 9.30 a.m. As per the defence witnesses, it was the complainant party which had arrived at the scene armed with guns, dhariyas and other weapons of offence. The appellant Shiv Ram was smoking Hukka in the varandah of his house. Nemi and Bhakti were sitting with him. The complainant party consisting of 10 to 12 members, after reaching there, started abusing the appellant for the reason that the appellant had abused Ramdayal during the day time. Jhabbu exhorted his companions to kill Shiv Ram. Gulya gave a lathi blow on the head of the appellant. As per the Doctors report (Ex.D. 3), there was one haematoma on the occipital region of the appellant besides 3 abrasions and one swelling on other parts of his body. The injuries were simple in nature caused by blunt weapon. The appellant also produced two certificates (Ex. D. 4 & Ex.D. 5) in support of his plea that he was a respectable citizen as his father had been a member of the Legislative Assembly of the State of Rajasthan from 25th October, 1958 till death in 1959. The appellant was also elected as MLA on 13.3.1969, though subsequently his election was declared invalid. The plea of the appellant was that a false case had been thrust upon him due to group rivalries in Village Gopalpura. 12. The first plea of the learned counsel for the appellant is that the injuries of the appellant have not been explained by the prosecution and it was a serious infirmity. The accused had been actually attacked by the complainant party and the appellant had only acted in his right of private defence. This plea has no force as the prosecution witnesses were not confronted with the defence story. 13. The accused had been actually attacked by the complainant party and the appellant had only acted in his right of private defence. This plea has no force as the prosecution witnesses were not confronted with the defence story. 13. The prosecution witnesses were never required to explain as to how the appellant had received injuries. It was only in his statement recorded under S. 313 Cr.PC that the appellant, for the first time, disclosed entire defence story and informed the prosecution and the trial court that he had received injuries. In this situation, the plea of the learned counsel that the prosecution had failed to explain the injuries of the appellant does not carry any weight. It was necessary for the appellant to put forward the defence story before the prosecution witnesses and the factum of the injuries on the body of the appellant should have been disclosed at the stage of prosecution evidence. 14. The complain (Ex.D. 2) filed by Bhakti does not appear to contain a believable story because it seems to have been filed in the Court of learned Magistrate at Hindaun in the month of August, 1979. This complaint was dismissed by the Court in July, 1981. The extra-ordinary delay in the filing of the complaint renders the counter-case doubtful. The incident had taken-place in the month of November, 1978 whereas the complaint was filed containing the defence story in the month of August, 1979 and was ultimately dismissed by the learned Magistrate at Hindaun in July, 1981. 15. The next plea of the learned counsel for the appellant is that 26 persons have been acquitted from the charge under S. 143 IPC and thus the prosecution story has been disbelieved in part by the learned trial Court. The prosecution case assumed a doubtful colour and should have been thrown away totally. This plea is also devoid of any force because the learned Sessions Judge acquitted the accused persons facing charge under S. 143 IPC on the ground that there was no sufficient evidence to prove the common object. Their mere presence at the place of occurrence would not make out a case under S. 143 IPC unless it was proved by the prosecution that all the 26 persons had assembled with the common object to use criminal force. Therefore, the acquittal of 26 persons does not render the entire prosecution story unbelievable or unreliable. 16. Their mere presence at the place of occurrence would not make out a case under S. 143 IPC unless it was proved by the prosecution that all the 26 persons had assembled with the common object to use criminal force. Therefore, the acquittal of 26 persons does not render the entire prosecution story unbelievable or unreliable. 16. There is said to be no motive or intention on the part of the appellant to cause death of Harsi. The learned counsel for the appellant has argued that there was no personal enemity nor any other- reason to kill Harsi. This plea is also devoid of any force because the appellant in his statement under S. 313 Cr.PC has admitted that there was group rivalry in the village. All the eye-witnesses have also alleged that there was group rivalry in the Village Gopalpura and the appellant and the complainant party were in rival groups. It is not necessary that specific motive should always be present at the time of commission of a crime. From the deposition of eye-witnesses, it is clear that the appellant took position in the `Jarokha' (Balcony) of his house and then opened fire at the complainant party. This clearly indicates the intention and motive of the appellant that he wanted to kill the members of the complainant party who had assembled across the road in front of the house of the appellant for the purpose of lodging protest against the morning incident. In this context, the plea of lack of motive does not help the defence. In the case of Subhash Pathak v. State of Raj. (1992 Cr.LR (Raj.) 731), this Court had an occasion to examine a similar question of motive. It was observed that when there were eye witnesses to the incident, motive became irrelevant. Similar view has been expressed by the Supreme Court in the Case of Jarnail Singh and another v. State of Haryana (Crime (II) 1993 (1) 586). It has been observed there that where the positive evidence against the accused is clear, cogent and reliable, question of motive is of no importance. 17. The next plea of the learned counsel for the appellant is that the eye witnesses supporting the prosecution are relatives of the deceased and thus interested witnesses. It has been observed there that where the positive evidence against the accused is clear, cogent and reliable, question of motive is of no importance. 17. The next plea of the learned counsel for the appellant is that the eye witnesses supporting the prosecution are relatives of the deceased and thus interested witnesses. It has been argued by the learned counsel that the relatives of the deceased deposed against the appellant because they were the members of the rival group and were interested in the deceased. This plea also does not carry any force because the eye-witnesses deposing against the appellant are undisputed residents of the same village where the incident had taken place. There names are also found in the complaint which was filed by Bhakti in the Court of learned Magistrate at Hindaun. Therefore, the presence of the prosecution witnesses appears to be natural and their evidence cannot be discarded simply because they happen to be the relatives of the deceased. In the case of Jarnail Singh and another v. State of Haryana (Supra), it has been held by the Supreme Court that the members of the family if present at the time of occurrence, are the most natural witnesses. Similar view has been expressed again by the Supreme Court in the Case of State of Raj. v. Smt. Kalki & Anr. (WLN 1981, 81) . There also, a question had arisen if the wife of the deceased can be declared to be an interested witness. It was held that a related witness is not equivalent of interested witness. In the case of Khujji @ Surendra Tiwari v. State of M.R ( AIR 1991 SC 1853 ) it has been held that where the witnesses resided in the locality near the place of occurrence, their presence was natural. From the deposition of the seven eye witnesses supporting the case of the prosecution, it is found that they all resided in the same village and their presence at the scene of occurrence is not doubted. They have all given a consistent version of the incident. 18. It has been next argued by the learned counsel for the appellant that the eye-witnesses could not have recognised the appellant because the incident had taken place when it was getting dark in the evening. They have all given a consistent version of the incident. 18. It has been next argued by the learned counsel for the appellant that the eye-witnesses could not have recognised the appellant because the incident had taken place when it was getting dark in the evening. This plea has also no force because, as per the evidence, the Sun was about to set and it was not dark at the time of the incident. Moreover, the two parties had exchanged hot words during day time and knew each other very well. It cannot be said that the eye witnesses could not identify the accused appellant at the time of occurrence. All of them have stated in clear words that the occurrence took place at the sun-set time and there was sufficient light. 19. In this case, 3 guns have been recovered, one from the house of the appellant, the other from the house of a co-accused, Kundan, and the third one from an open Tibara in a lonely forest area at the instance of another co-accused, Ramjilal. The learned counsel for the appellant has contended that the prosecution has failed to prove as to which gun had actually been used by the appellant. No examination of these guns was done by a fire-arm or ballistic expert. It is also stated that the pellet wounds were found on the body of the deceased in an area of 5" which made the prosecution story totally un-reliable keeping in view the distance and the height from which the appellant is said to have fired. The direction of the wounds in the body of the deceased is said to be straight whereas it should have been down-ward. It is contended that when the accused had opened fire from a height of about 15 feet, the direction of the pellet wounds in the body of the deceased should necessarily be form upward to down-ward. The evidence of Dr. Sohanlal (PW 1) is said to be helpful to the appellant. As per the deposition of Dr. Sohanlal (PW 1), the pellet wounds were oval-shaped and antero-posterior in direction. Such wounds could only result when the person opening fire was standing on the same ground level on which the victim stood. The evidence of Dr. Sohanlal (PW 1) is said to be helpful to the appellant. As per the deposition of Dr. Sohanlal (PW 1), the pellet wounds were oval-shaped and antero-posterior in direction. Such wounds could only result when the person opening fire was standing on the same ground level on which the victim stood. Learned counsel for the appellant has argued that, as per the prosecution story, the accused had opened fire from,the Jharokha, which was 15 high from the road. It is argued that the prosecution story needs to be rejected on this ground alone. 20. The Police Officers namely, Ram Kripal (PW 17) and Krishana Gopal (PW 20) were required to explain, during the course of their depositions, as to why the guns recovered by them were not subjected to an examination by a Ballistic expert. Ram Kripal (PW 17) explained that the gun which he had recovered from the house of the appellant on 22.11.78 was not sent for examination because it was a loaded and rusted gun and had not been used. The second gun had been recovered from the house of another accused, Kundan, and it was also not sent for examination because there was no allegation against Kundan that he had opened fire at the time of occurrence. This gun was seized because its licence was not found with Kundan at the time of search on 27.11.1978. As regards the third gun recovered 8 months after the incident by Krishana Gopal (PW 20), it was also not sent for ballistic examination because both the barrels of this gun were found to have been cleaned. Shri Krishna Gopal has explained that there was no use to get this gun examined by the Ballistic expert after the barrels had already been cleaned. Since this gun was recovered in July, 1979 and the occurrence had taken-place in the month of November, 1978, this gun was also not sent for examination. 21. In the case of Udaram, Devilal and others v. State of Raj. (Cr.LR (Raj.) 1976, 495) , it has ben observed that pellet injury is either round or oval in shape as per the medical evidence. It is to be noted that the appellant was standing at his `Jharokha' and the victim was standing in front of the house of the appellant across the road. (Cr.LR (Raj.) 1976, 495) , it has ben observed that pellet injury is either round or oval in shape as per the medical evidence. It is to be noted that the appellant was standing at his `Jharokha' and the victim was standing in front of the house of the appellant across the road. If the accused aimed his gun at the deceased, the barrels of the gun were certainly lowered. The distance between the appellant and the deceased was about 35 feet. Looking to the distance and the height, it cannot be said that the direction of wounds described by the Doctor as antero-posterior was contradictory to the prosecution story. It has to be kept in view that Dr. Sohanlal (PW 1) was not a ballistics expert though he opined that the gun would have been fired from the same level at which the deceased was standing, it has also to be noticed that there was no exit wound. The gun shot had entered the body of the deceased and then scattered in a wide area covering his chest, right arm, neck and face, therefore, the total area covered by the pellets was not 5" in diametre but wider. Since there were no exit wounds and the pellets stayed inside the body covering a wide area, it would not be correct to say that the pellet wounds should have ben necessarily from upward to down-ward direction. 22. The learned counsel for the appellant has further argued that where medical evidence and the evidence of eye witnesses were in-consistent and conflicting, the medical evidence must be believed and oral evidence must be discarded. Reliance has been placed on the decision of this Court in the. case of Het Ram and ors. v. State of Raj. (RCC 1976 (1) 14) . This plea too has no force. In the case of Gordan, Sheonath v. State of Raj. (Cr.LR (Raj.) 1989, 164) , it was observed by this Court that sometime Medical Officers do not bestow sufficient care while performing examination and their opinions may not be properly formed on account of inadequate or defective examination or lack of complete knowledge. It is, therefore, hardly fair to expect a complete and perfect correspondence between the medical evidence and eye testimony. In the light of this observation, it may be said that Dr. It is, therefore, hardly fair to expect a complete and perfect correspondence between the medical evidence and eye testimony. In the light of this observation, it may be said that Dr. Sohanlal, while giving his views about the level from which gun was fired, might have been done so on a hypothetical basis only. 23. Learned counsel for the appellant has placed reliance on the decision of this Court in the case of Hakumat Rai v. State of Raj. (Cr.LR (Raj.) 1987, 718), for the preposition that where direction of gun shot wounds was not upward to downward but straight, the prosecution case should not be treated as true. Learned counsel for the appellant has argued that, in the case of appellant, the Doctor has very clearly and specifically stated that the gun shot had been fired level to level. The prosecution story is said to be entirely different because the appellant had fired from his Jharokha which was about 15 feet high from the ground. Reliance was next placed on the decision of the Supreme Court in the case of Ramnarain v. The State of Punjab ( AIR 1975 SC 1727 ) in support of this plea that where the prosecution evidence was inconsistent with the medical evidence and that of the ballistic expert, the accused were entitled to acquittal. In the case of Avadhes & Anr. v. State of M.P. (Cr.LR (SC) 1988, 269), a similar question again came to be examined by the Supreme Court. It was observed that where the medical opinion was inconsistent with the testimony of eye witnesses, it indicated, that the eye witnesses had not seen the occurrence. 24. In the present case, the eye witnesses, PW 2 to PW 8, have given clear and detailed account of the occurrence from which it stands proved that the appellant did open fire from the Jharokha of his house. The gun shot fire created as many as 88 pellet wound on the body of the deceased covering his chest, arm, neck and face. The gun shot did not create any exit wound but had only resulted in the scattering of the pellets inside the body of the deceased. These wounds were oval in shape and antero-posterior in direction. The gun shot fire created as many as 88 pellet wound on the body of the deceased covering his chest, arm, neck and face. The gun shot did not create any exit wound but had only resulted in the scattering of the pellets inside the body of the deceased. These wounds were oval in shape and antero-posterior in direction. As there were no exit wounds, it cannot be said that the absence of direction from upward to down-ward would falsify the prosecution case, in the case of Gurucharan Singh and another v. State of Punjab ( AIR 1963 SC 340 ) , it has been observed by the Supreme Court as under:- "In all the cases, the examination of a ballistic expert is essential for the proof of the prosecution case must naturally depend upon the circumstances of each case. Therefore, it cannot be laid down as a general preposition that in every case where a fire arm is alleged to have been used by the accused person, in addition to the direct evidence, prosecution must lead the evidence of a ballistic expert, however, good the direct evidence may be and though on the record there may be no reason to doubt the said direct evidence." 25. In the case of the appellant, direct evidence appears to be reliable and there is no material inconsistency between direct evidence and the medical evidence. 26. On the question of direction of the wounds, we may refer of the Medical Jurisprudence and Toxiocology, (5th Edition), 1987 by H.W.V. Cox and the following opinion appears to be relevant:- "The apparent direction within the body of a bullet track is naturally not necessarily the same as its orientation relative to ground level or other fixed structure at the scene of the incident. The direction of the track depends upon the posture of the body at the time of impact. For instance, a track which goes downwards from the entire of the chest into the back of the abdomen does not necessarily mean that the deceased, person was shot from a high position, as he may well have been bending forward into a horizontal bullet path. Dogmatic statements about the position of a weapon must be made with caution as it is unsafe to assume that the body was in the normal upright position. Dogmatic statements about the position of a weapon must be made with caution as it is unsafe to assume that the body was in the normal upright position. A person threatened with a firearm may twist and turn in an attempt to escape injury at the moment that the weapon was fired, thus causing an oblique track both in the vertical and horizontal planes." 27. Keeping in view the above opinion, it cannot be held that, in the case of the deceased, the pellet wounds should necessarily have been upward to downwards. There were no exit wounds and the pellets were found scattered inside the body of the deceased. Therefore, no infirmity is found between the direct evidence and the medical evidence. 28. Learned counsel for the appellant has further pointed out that there was abnormal delay in the receipt of the copy of the first information report in the Court of the learned Magistrate having jurisdiction. The FIR (Ex.P 13) had been recorded at the Police Station Toda-Bheem on 21st November, 1978 at 8.00 p.m. but it was received in the Court of learned Magistrate at Hindaun on 5th December, 1978 at about 4.00 p.m. The delay of about 14 days is said to be quite abnormal causing serious doubts on the contents of the report. Reliance is placed on the decision of the Supreme Court in the case of Buta Singh v. State of Punjab, (1991) 2 SCC 612 . 29. On the other hand, it has been explained by the learned PR that delay in the despatch of the FIR to the Court was not fatal. The Police Officers, PW 17 and PW 20, were never required to explain the cause of delay. If the accused wanted any benefit because of the delay, the Police Officer (PW 17), Ramkripal, in particular, could have been required to give the reasons for the delay but this has not been done. Reliance is placed on the decision of the Delhi High Court in the case of Mahavir Singh & Ors. v. State of Delhi (1979 Cr.LJ 1159) wherein it has been held that non-compliance of Sections 154 and 157 of Code of Criminal Procedure did not constitute a ground to throw away a prosecution case but it does emerge as a factor to be seriously reckoned with while appreciating the entire evidence. v. State of Delhi (1979 Cr.LJ 1159) wherein it has been held that non-compliance of Sections 154 and 157 of Code of Criminal Procedure did not constitute a ground to throw away a prosecution case but it does emerge as a factor to be seriously reckoned with while appreciating the entire evidence. Its non-observance is bound to cast some, shadow on the case, obviously to its detriment, because of the adverse inference. Its degree depends upon the facts of a particular case. The same High Court in the case of Ishwar Singh v. State of Delhi Administration (1985) Cr. LJ 1625) again took the same view. This Court had also an occasion to examine a similar question in the case of Yogendra Singh & Ors. v. State of Raj. (1980 Cr.LJ NOC 113) and it was held that where, in a given case, on the evidence on record, the Court came to the conclusion that the first information report was actually recorded without delay and the investigation supported on its basis and no other infirmity is to the notice of the Court, then howsoever, objectionable delayed receipt of the report by the learned Magistrate concerned may be, it will not necessarily justify the conclusion that the entire case of the prosecution is false. Supreme Court in the case of Pala Singh and another v. State of Punjab ( 1972(2) SCC 640 ) has also examined a similar question. It has been held that where the first information report was actually recorded without delayed and the investigation started on the basis of the FIR and there is no other infirmity brought to notice, then, however improper or objectionable the delay receipt of the report by the Magistrate concerned, it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable. Similar view was expressed again by the Apex Court in the case of Sharvan Singh & Ors. v. State of Punjab (AIR 1976 SC 304) and in the case of State of U.P. v. Gokaran & Ors. ( AIR 1985 SC 131 ) . 30. The delay in sending the copy of the first information report form the Police Station to the Court of the learned Magistrate is not found to be fatal in the circumstances of the case. 31. ( AIR 1985 SC 131 ) . 30. The delay in sending the copy of the first information report form the Police Station to the Court of the learned Magistrate is not found to be fatal in the circumstances of the case. 31. The case of the prosecution is found to be reliable and the charge of causing death by fire arm is found proed against the appellant beyond all reasonable doubts. The conviction and sentence U/s. 302 IPC are, therefore, upheld. 32. In the result, the appeal is dismissed. The appellant is on bail. The bail-bonds are cancelled and the appellant shall immediately be arrested and sent to the prison for serving the sentence. *******