JUDGMENT 1. The present appeal has been filed by the accused appellant against his conviction under Sections 302 I.P.C. and 27 of the Arms Act and sentences of life imprisonment and a fine of Rs. 5,000/- and in default of payment of fine to further undergo 3 month's R.I. under Section 302 I.P.C. and 6 months R.I. and a fine of Rs. 200/- and in default of payment of fine to further undergo 15 days R.I. under Section 27 of the Arms Act, as passed by the learned Additional Sessions Judge, Nagaur in Sessions Case No. 5/1997 vide judgment dated 28.8.1999. 2. The case of the prosecution was that on 21.11.1996 at about 12.30 P.M. a written report was submitted by the complainant Likhma Ram that he had come to attend the Chief Judicial Magistrate's Court on 21.11.1996. Hanuman Ram deceased, son of his sister, had also come to attend the Court. While he was having conversation with him in the Court at about 11 a.m. accused Himta Ram who is brother-in-law of deceased Hanumana Ram came with a gun. At that time there was some altercation between Hanumana Ram deceased and Himta Ram accused but Likhma Ram, Gumana Ram and Bhera Ram intervened and they were separated. At about 12, Hanumana/Ram went to attend the call of nature on the back side of the Court. At that, time there was again some altercation between the deceased and the accused and then all of a sudden accused Himta Ram fired his gun on Hanuman Ram and the second shot hit Hanuman Ram on his head. As a result thereof Hanuman Ram died on the spot. When Likhma Ram, Bhera Ram, Gumana Ram and Ramoo Ram reached there Himta Ram fled away from the scene of occurrence with the gun. The police arrived at the scene of occurrence and a written report of the incident was given to S.H.O., who made his endorsement on it and sent it to the police station for registration of the case. Formal F.I.R. was lodged on this report given by Likhma Ram and the investigation was commenced. The charge-sheet was filed and the case was made over to the learned trial Court for trial. 3. At the trial, the prosecution examined 17 witnesses and exhibited 43 documents. The defence got 2 documents exhibited. Formal F.I.R. was lodged on this report given by Likhma Ram and the investigation was commenced. The charge-sheet was filed and the case was made over to the learned trial Court for trial. 3. At the trial, the prosecution examined 17 witnesses and exhibited 43 documents. The defence got 2 documents exhibited. The trial Court after trial came to the conclusion that the accused is guilty of having committed the murder of deceased Hanumana Ram and sentenced him as aforesaid. Learned Additional Sessions Judge considering the prosecution case has found that there is a strong motive on record to kill Hanuman Ram because Hanuman Ram had strained relations with his wife Ganga who was the sister of accused Himta Ram. There was a case lodged against deceased Hanuman Ram for maltreating Mst. Ganga the sister of accused Himta Ram. Ex. P. 38 to 41 have been produced on record to establish these facts. The learned Additional Sessions Judge has further found that the accused had come with full preparation for committing the crime being armed with a gun. The learned Additional Sessions Judge has found that PW. 3 Akha Ram, PW. 6 Bhera Ram, PW. 11 Ramoo Ram, and PW. 12 Gumana Ram, though have turned hostile but they have corroborated the prosecution story to the extent that the accused and deceased were present in the Court premises and the accused was armed with a gun and there was altercation in between the deceased and the accused and the witnesses had separated them, the altercation provided immediate provocation to the accused Himta Ram for committing the crime in question. The gun was recovered from the possession of the accused while he was going to village Indas soon after the occurrence. The accused having been found in possession of the gun which stands connected with the empties recovered from the scene of occurrence, conclusively leads to the conclusion that the accused was guilty of the offence alleged against him. 4. Assailing the findings of the learned Additional Sessions Judge, the learned counsel for the appellant has argued that the entire prosecution case is based on the testimony of eye-witness, PW. 5 Likhma Ram, who is the first informant also. Learned counsel for the appellant while criticising the testimony of PW. 5 Likhma Ram has stressed that in his written report Ex. 5 Likhma Ram, who is the first informant also. Learned counsel for the appellant while criticising the testimony of PW. 5 Likhma Ram has stressed that in his written report Ex. P 13 the witness Likhma Ram has said that Himta Ram fired his gun at Hanuman Ram deceased and second shot hit Hanuman Ram in his head upon which Hanuman Ram died on the spot. Learned counsel for the appellant criticised this witness for alleged improvements in the story by this witness. 5. According to the learned counsel, this witness has stated in his Court statement that after hearing a gun shot he, Bhera Ram and Ramoo Ram etc. went towards the scene of occurrence. Then they saw another gun shot which hit the deceased at his back. As they approached near the deceased they saw that the deceased had fallen on the ground and Himta Ram carnet closer to the deceased and fired third shot which hit Hanuman Ram on his head. According to the learned counsel the story has been improved by this witness considering the medical report because when he scribed the report Ex. P. 13 until then he had not known as to how many fires had hit but having seen the post mortem report he has improved his version in the Court and has deposed about 3 gun shots whereas in the F.I.R. only two gun shots have been reported by this witness. 6. Learned counsel for the appellant urged that when a witness changes his version to suit the medical evidence then his testimony is liable to be discarded. Learned counsel for the appellant has further contended that according to this witness, the accused Himta Ram came closer to the deceased after firing two shots and the third shot was fired from close range. The injury is about 26cm on head which would come from about 30 yard distance, which cannot be said to be a close range. Thus, this version of the witness has also been criticised by the learned counsel for the appellant. 7. Learned counsel for the appellant has further argued that eye-witness has suggested the reloading of the gun whereas by the double barrel gun only two shots can be fired at a time but in the instant case the story of 3 gun shots has been put forward. 8. 7. Learned counsel for the appellant has further argued that eye-witness has suggested the reloading of the gun whereas by the double barrel gun only two shots can be fired at a time but in the instant case the story of 3 gun shots has been put forward. 8. Learned counsel for the appellant has further stressed that the witness P.W. 5 Likhma Ram has stated that he had handed over the written report to Anda Ram whereas the witness Anda Ram has stated that the written report was given to him by the S.H.O. and, therefore, there is suspicion about the way the F.I.R. has been lodged. The evidence of this witness has been further criticised on the ground that at what point of time the endorsement was made by the S.H.O. on his report has not been correctly deposed by this witness. 9. Learned counsel for the appellant has further stressed that according to the eye-witness account the first shot had hit the left shoulder and the second shot hit at the back and the third shot hit on the right side of the head. This kind of pattern of injuries from left to right is not possible unless it was established that the deceased had been moving. No such assertion has been made by this prosecution witness P.W. 5 Likhma Ram. 10. Learned counsel for the appellant has further stressed that the recovery of the gun from the possession of the accused appellant is not natural. In his arrest memo it has been shown that he was in possession of the gun whereas the gun was recovered separately. The arrest memo is silent about the gun being in possession of the accused. In this back-ground, learned counsel for the appellant states that if the gun is not recovered legitimately then any subsequent corroboration by the gun and empties would become suspicious. Learned counsel for the appellant has criticised the report of the F.S.L. which reads as under: "(3) Based on Stereo and Comparison Microscopic examination, it is the opinion that three 12-bore cartridge cases (C/1 to C/3) from packets 'C' and 'F' have been fired from 12-bore D.B.B.L. gun (W/1) from packet 'E'." 11. Learned counsel has stated that the prosecution has not been able to establish as to from which barrel a particular empty has been fired. It was a double barrel gun. Learned counsel has stated that the prosecution has not been able to establish as to from which barrel a particular empty has been fired. It was a double barrel gun. Three empties were tested but the F.S.L. in its examination quoted hereinabove has not categorically stated from which barrel a particular empty has been fired. That being the position, the report of the F.S.L. is inconclusive and incomplete. Such inconclusive and incomplete report cannot be made the basis of conviction of the accused appellant. 12. Per contra, the learned Public Prosecutor assisted by the counsel for the complainant Mr. Sunil Mehta submitted that the presence of the accused appellant and the witnesses is a proposition which is established from the evidence on the record. Even hostile witnesses PW. 3 Akharam has corroborated the prosecution story to the extent that the deceased and the accused were present in the Court on that day. Learned Public Prosecutor has further stressed that altercation between the deceased and the accused has also been deposed by P.W. 6 Bhera Ram and he corroborates the prosecution story to the extent of his intervention along with PW. 5 Likhma Ram. There is sufficient corroboration from the testimony of PW. 6 Bhera Ram so far as his presence and altercation in between the accused and the deceased is concerned. This hostile witness though has not stated that he has seen the accused firing on the deceased but nonetheless this witness has stated that the accused Himta Ram was present there with a gun and Hanuman Ram deceased was present immediately before the incident within the court premises. Thus, whatever has been narrated about the sequence of events-prior to the actual shooting incident all the facts have been corroborated by RW. 6 Bhera Ram and this lends assurance to the story deposed by RW. 5 Likhma Ram. As regards the case of the prosecution in changing the number of gun shots the learned Public Prosecutor has submitted that it was court working hours the witness has heard the noise of gun shots and when he proceeded to the scene of occurrence he saw two gun shots getting effective. At the time when he scribed the report it was immediately after the incident in hurry he could not given the correct picture. At the time when he scribed the report it was immediately after the incident in hurry he could not given the correct picture. This omission is an honest deposition of the mental state of the witness when he was faced with such a situation wherein the accused had come prepared and already fired two shots even in and around the court premises. Learned Public Prosecutor has further urged that the gun was a licensed gun of the accused which is supposed to be in his possession and from his possession the same has been recovered by the investigating agency. The empties recovered from the scene of occurrence have been connected with the gun. Then there is a strong corroboration to the prosecution story because there may be some variance in the story of the eye-witnesses. But the circumstances do not bely and whatever are the marks on the empties recovered from the scene of occurrence when they tally with gun recovered from the accused then it cannot be said that the prosecution story is doubtful. Further learned counsel for the accused appellant has not been able to assail the recovery of the gun and empties. That being the position the case of the prosecution has been proved beyond doubt. Learned Public Prosecutor appearing for the State has also asserted that sequence of events suggests that the accused had come prepared to take revenue with the deceased. Learned counsel for the appellant's criticism of F.S.L. report is out of place if he has any doubt about the report of the F.S.L. then he could have requested the court to call the Forensic witness for examination. Having not taken this recourse the report of the F.S.L. is rightly admitted in evidence and the report says that the empties recovered from the scene of occurrence stand connected with the gun. Thus, nothing turns out on this count in favour of the defence. 13. We have carefully considered the rival submissions of the learned counsel for the appellant as well as the learned Public Prosecutor and have also perused the record. 14. The strong circumstances, which go against the accused appellant is the recovery of empties from the scene of occurrence. These recovered empties have been found connected with the licensed gun of the accused appellant. The gun was recovered from the possession of the accuse appellant within few hours of the incident. 14. The strong circumstances, which go against the accused appellant is the recovery of empties from the scene of occurrence. These recovered empties have been found connected with the licensed gun of the accused appellant. The gun was recovered from the possession of the accuse appellant within few hours of the incident. The connectivity of the empties with the gun recovered from the possession of the accused appellant leaves no doubt that the gun found in possession of the accused appellant was the gun involved with the crime. Learned counsel for the appellant has criticised the F.S.L. report on the ground that it is not said that as to from which barrel the empties have been fired. Having not been called for cross-examination, this lacuna is not of that nature which can knock down the report of the F.S.L. The result of the examination clearly states that the empties have been fired from the gun in question. The niceties having not been incorporated in the F.S.L. report will not dilute the intrinsic worth of the F.S.L. report. The empties having been fired from the gun clearly establish that it is from either of the barrels and thus, a strong factor is established against the accused appellants. The witnesses produced by the prosecution being P.W. 1, P.W. 2 P.W. 3, P.W. 4, P.W. 5 and P.W. 6 support the prosecution story so far as the presence of the accused and the deceased on the scene of occurrence is concerned. They also support that part of the prosecution story that the accused had exhorted the deceased. They had an altercation and were separated by the witnesses. Thus, the enraged feelings of an armed person (accused appellant) have clearly been established by these witnesses. The evidence of all these witnesses clearly establishes that the appellant had motive and he was present in the court premises with his licensed gun and ammunition, and he was also infuriated on the fateful day of the occurrence. 15. In this back-ground, if we see the criticism of the evidence of PW. 5 the only eye-witness who has deposed against the accused regarding commission of the crime, then we find that this witness has deposed about the use of the gun by the accused appellant. 15. In this back-ground, if we see the criticism of the evidence of PW. 5 the only eye-witness who has deposed against the accused regarding commission of the crime, then we find that this witness has deposed about the use of the gun by the accused appellant. There are 3 effective shots in an incident which is followed with a tension which has been created prior to it then expecting that witness to give a photographic exposition as to what actually transpired from step to step is expecting too much from a human being. There is a famous saying that err is human and the criticism made by the learned counsel for the appellant may be explained on this basis. The number of shots described in the F.I.R. and in the eye-witness account vary but that alone would not diminish the value of the evidence of this witness because the version prior to the actual shooting has been corroborated and shooting incident stands corroborated by the report and shooting incidents stands corroborated by the report of the F.S.L. In this back-ground it is not possible for us to hold that the witness has not correctly deposed. It was the accused appellant who fired at the deceased. Once there is an assurance furnished by the circumstantial evidence, then minor contradictions and embellishment deposed by a witness cannot be considered sufficient to discredit the testimony of an eye-witness. In any case it was possible to hold the accused appellant guilty on the basis of the report of the F.S.L. because the empties found from the scene of occurrence being connected with deceased because he was hurt by a 12 bore gun and that being in possession of the accused soon after the occurrence. There being no other gun shown to have been there in or around that scene of occurrence and there being no suggestion put forward by the defence that there was any other person present or available around the scene of occurrence which could have possibly fired at the deceased, the prosecution version cannot be disbelieved. The prosecution story further gets support from the fact that the incident had occurred at 12.00 noon and the report was lodged at 12.30 P.M. and thereafter the formal F.I.R. has been recorded. The prosecution story further gets support from the fact that the incident had occurred at 12.00 noon and the report was lodged at 12.30 P.M. and thereafter the formal F.I.R. has been recorded. When such a prompt F.I.R. is lodged narrating the involvement of the accused then that also lends credence to the prosecution story. There remains no doubt in our mind that it was the accused appellant alone who had caused the death of Hanuman Ram deceased. We do not see any reason to interfere with the finding of the learned Additional Sessions Judge who after a proper evaluation of the evidence available on record has come to the conclusion that the accused is guilty for offences under section 302 I.P.C. and under Section 27 of the Arms Act having used his licensed gun for illegal purposes. 16. In the result, we do not see any reason to disturb the finding of guilt recorded by the impugned judgment of the learned Additional Sessions Judge. There is no merit in the argument of the learned counsel for the appellant as they are not sufficient to discard the prosecution story which has been rightly believed by the learned Additional Sessions. Consequently, there is no force in this appeal and the same is dismissed. The conviction and sentence awarded by the learned trial court are maintained.Appeal Dismissed. *******