JUDGMENT 1. - This D.B. Criminal Appeal under Section 374(2), Cr.P.C. is directed against the judgment of conviction and sentence passed by Shri Ashok Kumar Bajpai, RHJS, Additional District & Sessions Judge No. 3, Kota dated 16.8.1997, convicting the appellant under Section 302, IPC and sentencing him to life imprisonment with a fine of Rs. 1,000/- and in default of payment of fine to undergo one's year rigorous imprisonment. 2. On a complaint Ex. P-1 dated 26.10.1995 by Nand Lal, FIR No. 157/95 Ex. P-2 was registered in the Police Station, Modak on the allegation that an incident had taken place between Arjun S/o Badri Lal deceased and the appellant Dinesh Kumar in the fields when the appellant Dinesh had beaten the buffalows of the deceased when they were grazing in the field of harvested crops of maize and because of such action the buffaloes did not yield milk in the evening and, therefore, Badri Lal deceased went in front of the house of Dinesh appellant and had complained to him that because of the beatings given by the said appellant Dinesh to the buffalows, the buffalows had not given milk in the evening and in case the appellant had any objection, he should have told so to him but should not have beaten the buffalows. It was stated in the FIR that the complainant and Ramesh Kumar were also standing at that place at that time. Dinesh Kumar the appellant, got furious and he ran into the house of Bhanwar Lal; took the gun and fired at Badri Lal. The shot struck at the neck of Badri Lal who fell down and started bleeding. Dinesh, the appellant, along with the gun ran towards the 'Dhani' from the side of the house of Bhagwan Gujar. Modu Lal Meena and Mohan Lal Keer and other persons had also come at the spot. Badri Lal died when he was being taken to the police station in a tractor. 3. On the basis of the said FIR Ex. P-1, the appellant vas charged of the criminal offence under Section 302, IPC and under Section 3/25 of the Arms Act. 4. Charges against Bhanwar Singh were framed under Section 27 of the Indian Arms Act whereas the appellant was charged u/Section 302, IPC and also Section 3/25 of the Arms Act. On the basis of the said FIR Ex. P-1, the appellant vas charged of the criminal offence under Section 302, IPC and under Section 3/25 of the Arms Act. 4. Charges against Bhanwar Singh were framed under Section 27 of the Indian Arms Act whereas the appellant was charged u/Section 302, IPC and also Section 3/25 of the Arms Act. After charges having been framed, the prosecution produced as many as 12 witnesses i.e. PW 1 Nand Lal, PW 2 Shri Lal, PW 3 Mohan Lai, PW 4 Harish, PW 5 Modu Lal, PW 6 Sosar Bai, PW 7 Ramesh, PW 8 Chotu Khan, PW 9 Dr. N.D. Hirani, PW 10 Bhanwar Lal, PW 11 Ram Lal, and PW 12 Liyakat Ali and also exhibited the required documents from Exs. P-1 to P-30. Bhanwar Lal, co-accused and the appellant were acquitted under the charges u/Section 3/25 and Section 25 of the Arms Act, however, the present appellant was convicted vide judgment dated 16.8.97 to undergo life imprisonment u/Section 302 of the IPC. 5. PW 1 Nand Lal is the brother of the deceased. He deposed in his evidence that Badri Lal had purchased two buffalows which were sent for grazing through his son in the fields of the deceased. Dinesh came over there and gave slaps to him. In the evening time the deceased had gone towards the house of the appellant and had complained to him in this regard whereby the appellant ran to the house of one Bhanwar Lal. He took the gun of Bhanwar Lal and came to the shop of Banshi Lal and by standing at the inside of the shop had fired at Badri Lal which had hit. Badri Lal on the neck. Badri Lal fell down and was bleeding. Badri Lai was being taken for medical attendance to Modak but he died. The report of this incident was also made to Police Station, Modak. The report is exhibited as Ex. P- 1 which bears his signatures. The other persons Mangi Lal, Lachma Bai, Kanchan Bai, Mangi Lal Nal, Shri Lal, Mohan Lal, and Harish had also gone to the police station. Panchnama of the dead body of Badri Lal was also prepared by the police vide Ex. P-3 which bears his signatures. The postmortem was also conducted. The police had visited the site and had also prepared a site plan Ex. Panchnama of the dead body of Badri Lal was also prepared by the police vide Ex. P-3 which bears his signatures. The postmortem was also conducted. The police had visited the site and had also prepared a site plan Ex. P-4 which bears his signatures. The police had also collected the blood-stained earth from the spot. The police had also collected the 'sofa' whom by the deceased. It is also stated that the gun by which Badri Lal was killed belonged to Bhanwar Lal was a single barrel gun. 6. It is stated by him in the cross-examination that he had been hearing the complaint made by the deceased to Dinesh and that Dinesh had left the place without saying anything, but later on fired and on noise of shot having been fired his attention was drawn towards Dinesh who had started running and at that time he, his father, Modu Lai, Harish, Mohan, etc. were standing at the place of occurrence. 7. PW 2 is Shri Lal who has corroborated the similar deposition as by PW 1. He stated in the cross-examination that when the deceased was complaining to the appellant Dinesh, Nand Lal was also present there. He says that though he has not seen the appellant while firing, but he had seen the appellant running away with the gun after the firing. 8. Mohan Lal is another witness who is also brother of the deceased who corroborated the version given by PW 1 Nand Lal. He states that at the evening time, they all were returning from the fields when he heard the gunshot and saw Dinesh running away with the gun in his hand. 9. Harish, PW 4 is another witness. He states that at about 7.00 p.m. on the date of occurrence, after taking the gun of Bhanwar Lal, the appellant had fired from behind the shop which had hit the deceased Badri Lal on his neck. He states that the appellant had run away after jumping from the house of Bhagwan Singh. Even though in the cross-examination, the present witness PW 4 says that on the cries having been raised after falling down of the deceased immediately people had collected including Mohan Lal and Nand Lal and had told them that Badri Lal had been killed by Dinesh. 10. Modu Lai is another witness. Even though in the cross-examination, the present witness PW 4 says that on the cries having been raised after falling down of the deceased immediately people had collected including Mohan Lal and Nand Lal and had told them that Badri Lal had been killed by Dinesh. 10. Modu Lai is another witness. He states that he was passing near the door of Dinesh, Dinesh had fired which had struck Badri Lal who fell down and died. He identifies Dinesh. He states that Harish and Nand Lal were also present. He also corroborates that after firing Dinesh had run away after jumping the wall of Bhagwan Gujar. The deceased was taken to the hospital and to the police station. He states that as soon as there was a gunshot he had seen Dinesh who had fired. 11. PW 6 Sosar Bai is not an eye witness and states that she had no knowledge of the incident as to how it had occurred and similar is the statement of one Ramesh PW 7 who is the husband of Sosar Bai. 12. PW 9 is Dr. N.D. Hirani who had performed the post-mortem. He had found two wounds one of entrance and one of exit of the size of 3 x 21 x 6 cm. He found other wounds as well of the dimensions mentioned in the post-mortem report. All the injuries were ante-mortem. No lead piece was recovered. Five pieces of pabbles were removed from the wounds. 13. PW 10 another witness is Bhanwar Lal who is the witness of recovery of the gun who had not supported the prosecution and was declared hostile. So is the evidence of Ram Lal PW 11. 14. PW 12 is Liyakat Ali, Head Moharrir of Police Station, Modak. The Police Station Incharge had since died and, therefore, Moharrir was produced who had identified the signatures of Goverdhan Lal, the Investigating Officer in regard to the investigations. 15. In the statement under Section 313, Cr.P.C. the appellant had denied not only the charges but all the evidence produced against him. He had not produced any defence. 16. The appellant was arrested on 2710.1995 vide Ex. 17 and the gun was recovered as per statements Ex. 18. 15. In the statement under Section 313, Cr.P.C. the appellant had denied not only the charges but all the evidence produced against him. He had not produced any defence. 16. The appellant was arrested on 2710.1995 vide Ex. 17 and the gun was recovered as per statements Ex. 18. It was found by the learned Sessions Judge that so far the offences under the Arms Act were concerned, charges have not been proved as to involve Bhanwar Lal and, therefore, Bhanwar Lal was acquitted and so was the present appellant acquitted of the offences under the Arms Act and was convicted u/Section 302, IPC only. 17. Counsel for the appellant vehemently challenges the conviction and findings and states, (1) that almost all the witnesses are relations of the deceased; (2) that the story as such is not believable; (3) that provocation for firing is too trifle for provoking the appellant to fire and to kill the deceased; (4) that none has seen the appellant in firing the shot, but it is after the shot had been fired that the PWs states that they had seen the appellant running away from the place; (5) no pellet or lead pellets had been recovered, nor any empty has been recovered and it is only the stones pebbles which had been found from the would of the neck where the deceased was hit; (6) it is also submitted that even though one shot is said to have been fired, but the medical examination shows many injuries. 18. So far the incident relating to grazing of the cattle is concerned, all the witnesses are consistent on the point that because of the said incident Badri Lal had gone to complain to the accused appellant of his giving lathi beating to the buffalows, resulting that the buffalows did not yield any milk in evening and that the deceased had only gone to complain to the appellant that instead of thrashing the buffalows and his son, he could have easily talked to him. Gunshot has been fired. As per Ex. P-11 the recovery memo, it is a 'Topiwali Bandook' i.e. a single barrel gun which is filled up with explosives, pellets, pabbles, etc. and then a cap is placed and on pulling the trigger the explosive with all its material goes with very high speed and velocity. Gunshot has been fired. As per Ex. P-11 the recovery memo, it is a 'Topiwali Bandook' i.e. a single barrel gun which is filled up with explosives, pellets, pabbles, etc. and then a cap is placed and on pulling the trigger the explosive with all its material goes with very high speed and velocity. Normally this type of gun is used for hunting, in such situation recovery of pabbles at the place of hitting at the neck is well-explained. There is an entrance and exit wound as well and, therefore, the contention of the Counsel for the appellant that despite one shot having been fired, the finding in the postmortem report should be used to benefit the appellant, in my mind, cannot render any assistance in favour of the appellant. It is true that many of the witnesses are relatives of the deceased and belong to the same family, but their testimony is not shaken in the cross-examination. One after another eye witnesses had deposed against the appellant supporting the same story of the prosecution. 19. Counsel for the appellant relies on the decision in the case of Basheera and others v. State of Rajasthan, 1989 (1) Crimes 760 , for the proposition that a petty quarrel over a place for tethering the cattle is not sufficient to provoke o. excite the appellants for killing and because of the major contradictions between the evidence of ocular witness and medical evidence and the prosecution witnesses being close relations inter se, the conviction should not be legally sustainable. On the facts of Basheera's case the court had come to a definite finding that the prosecution had utterly failed to prove the motive. In Basheera's case there was contradiction in the report of the examination of gun and the pellets and 75 lead pellets contained in the cartridge of the gun. It is settled law that every case is to be decided on the facts of its own case. 20. The appellant also relies on the case of Bhajan Singh and others v. State of Rajasthan, 1993 Cr.L.R. (Raj.) 241 , for the proposition that the testimony of inimical witnesses stand on weak footing. There can be no dispute in this regard. The interested or close relatives who appear as witnesses, their testimony is taken to be with caution. 21. The appellant also relies on the case of Bhajan Singh and others v. State of Rajasthan, 1993 Cr.L.R. (Raj.) 241 , for the proposition that the testimony of inimical witnesses stand on weak footing. There can be no dispute in this regard. The interested or close relatives who appear as witnesses, their testimony is taken to be with caution. 21. In the case of Shrawan Kumar v. State of Rajasthan, 1993 Cr.L.R. (Raj.) 286 , it was held that the motive as alleged was transaction of small amount and such a motive cannot be a cause of such heinous crime. It was further held that the eye witness could not see happening of the incident and there was a doubt regarding place of incident and impugned dying declaration not inspiring confidence and, therefore, benefit of doubt had to be given to the accused persons in such situation. 22. In the case of Surjan s/o Ganesh v. The State of Rajasthan, 1993 Cr.L.R. (Raj.) 600=IV (1993) CCr 3196 , there was a contradiction in the statement of eye witnesses in regard to gun shot fire. The direct evidence of the eye witness was inconsistent with the medical evidence on the most material part of the prosecution case. 23. In the case of Savia & Ann v. State of Rajasthan, 1984 WLN (UC) 463 , the fact of firing of two shots was neither mentioned in the FIR nor in the police statement and, therefore, it was held that the inference can be drawn that the eye witness had not seen the occurrence. The appellant also relies on a case of Deena Nath v. State of U.P., 1999(4) Crimes 44 , a judgement of Allahabad High Court on the point of contradictory oral and medical evidence. 24. For the similar effect reliance is being made on the decision in the case of State of Bihar v. Bishwanath Rai and others, AIR 1997SC 3818=IV (1997) CCR 1 (SC) , and Sohan Singh v. The State of Rajasthan, 1997 Cr.L.R. (Raj.) 147 , wherein the testimony of three eye witnesses was held to be not reliable and doubtful and the prosecution had failed to prove the recovery of empty cartridges from the lane. It was held that the conviction cannot be sustained on the basis of recovery alone. 25. It was held that the conviction cannot be sustained on the basis of recovery alone. 25. After going through the evidence, oral, documentary and exhibits, we are of the opinion that no illegality can be found in the order of the District & Sessions Judge in convicting the appellant u/Section 302, IPC. May be in the present case the motive or the provocation for killing was too small but it depends at the working of the mind of the killer at the specific time and circumstances. Here is a case where anguish was growing in the mind of the parties of grazing of the cattle in the fields earlier to the incident of killing. The appellant is said to have giving thrashing to the cattle. The deceased had taken in his mind to make a complaint to the appellant in this regard and it has come in the prosecution story that he had gone to the appellant to complain to him over his behaviour. The appellant did not like it. He goes away silently with the determination, takes the gun of Bhanwar Lal and immediately thereafter shoots down the deceased by aiming at his neck. The deceased died then and there. It cannot be said in the present case that the appellant was not knowing what he was doing. On hearing the complaint from the deceased, the appellant seems to have made up his mind. The appellant was knowing that he was doing. The incident had occurred at a public place on the path surrounded by the houses as is clear from Ex. 4, the site plan. FIR is recorded immediately thereafter. Many people had gathered at the time of shooting and invariably the witnesses have seen the appellant running away with gun and jumping over the wall of Bhagwan Gujar. In regard to the injuries, it is stated by the doctor in Ex. P-9 that all the injuries were ante-mortem and the death was because of gunshot even though no lead piece or pellets were found but five pieces of stone of the size of 3 x 4 x % cm were found in the wounds which wounds were in the neck. Two gunshot fire-arm injuries show exit and entrance and another six wounds were showing the entrance only with a size mentioned in Ex. P-9. Two gunshot fire-arm injuries show exit and entrance and another six wounds were showing the entrance only with a size mentioned in Ex. P-9. Cause of death is due to fire arm gun shot injuries and excessive hemorrhage. The testimony of all the witnesses even though they are close relations of the deceased cannot be disbelieved only because of the reason that they are close relations. Their testimony is consistent in regard to the incident, mode of firing, hitting at the neck and the victim falling and dying and being removed to the hospital in the tractor; the accused appellant running away with the gun and jumping over the wall of Bhagwan Singh's house, had also been seen by all the witnesses. In such situation, it cannot be said that the testimony of the eye witnesses be ignored or the appellant be given the benefit of doubt. The prosecution has fully proved the case against the appellant and as such we do not find any merit in the appeal, the same is likely to be rejected.The appeal is, therefore, rejected.Appeal dismissed. *******