M. C. JAIN, J. Appellant Mulaim Singh has challenged the order of his conviction and sentence passed on 28-2-1989 by Sri P. P. Gupta, the then Sessions Judge, Aligarh in Sessions Trial No. 243 of 1986. He has been convicted under Section 302 I. P. C. and sentenced to life imprisonment. The arguments were advanced in part in the appeal on 31-1-2003 by Sri Gaffur Khan holding brief of Sri B. P. Singh, learned counsel for the appellant. However, on the next day viz. 3-2-2003 the case was adjourned to 11-2-2003 on his request. Again on 11-2-2003 also, a request was made on his behalf to adjourn the case for another two weeks. It was observed by us that the appeal being part heard, there was no justification to adjourn further hearing for the appellant, it was provided that he could give further submissions in writing within two weeks. The arguments of learned A. G. A. were heard. Despite lapse of two weeks, no further submissions came to be submitted by the learned counsel for the appellant. We, therefore, reserved the case for judgment on 27-2- 2003 and the appeal is now being decided on merits. 2. The accused appellant was a P. A. C. Constable and committed murder of a fellow constable at 8 a. m. on 7-3-1986 at P. A. C. Camp within P. S. Bannadevi, District Aligarh. Company of P. A. C. XXVIII Battalion was posted at Aligarh to maintain law and order. Its camp was Exhibition Ground, Aligarh. On the fateful day, at about 8 a. m. , seven sections of the company were getting ready for duty. The arms and ammunitions of the company were kept in the vacant shops No. 297 and 298 of the Exhibition Ground. Bhanu Pratap Singh Rathore PW 1 was Incharge Company Commander of the said Company. It was in his presence that the arms and ammunitions were being distributed amongst the constables who were to be sent on duty. The deceased Constable No. 36823 Nehru Singh Yadav was adjusting chains in the rifles, which were to be given to the constables in the presence of Bhanu Pratap Singh Rathor PW 1. The accused Constable No. 36764 Mulaim Singh Yadav was also given a rifle and after receiving the same, he came out. The deceased Constable No. 36823 Nehru Singh Yadav was adjusting chains in the rifles, which were to be given to the constables in the presence of Bhanu Pratap Singh Rathor PW 1. The accused Constable No. 36764 Mulaim Singh Yadav was also given a rifle and after receiving the same, he came out. He, however, returned to the koth (place where arms and ammunitions were kept) and fired on koth Munshi, namely, Constable Nehru Singh Yadav from behind who was adjusting chains. The rifle from which he fired on Nehru Singh Yadav was of 303 bore bearing No. 637 Nehru Singh Yadav was hit on the back and fell down. Bhanu Pratap Singh Rathor PW 1, Constable Vidyapati Tripathi, Guard Commander Head Constable Shyam Singh, Constable Mahesh Chand, Constable Mahavir Singh and Durvijai Singh who were present there, saw the occurrence and overpowered the accused appellant Mulaim Singh. The rifle and the belt containing cartridges were taken into possession from him. Constable Nehru Singh Yadav who was seriously injured was sent to M. S. Hospital, Aligarh through Constable Sobaran Singh where he succumbed to the injuries. The written report of the incident was lodged by Incharge Company Commander Bhanu Pratap Singh Rathor PW 1 at 8. 55 a. m. on 7-3-1986 at P. S. Bannadevi. The case was investigated resulting in submission of the charge-sheeted. The trial was held culminating into the judgment assailed in this appeal. 3. It may also be related here that the post-mortem over the dead body of the deceased was conducted by Dr. Rajiv Agrawal PW 4 on 7-3-1986 at 4. 35 p. m. He was aged about 42 years and about half day had passed since he died. The following ante-mortem injury was found on his person: 1. Gunshot wound of entry 1 cm x 1 cm on left side back of chest 2 cm out to mid line, 14 cm below to bone of neck, margins inverted and collar abraded continuing with gunshot wound of exit 5 cm x 3 cm on left side collar bone 3 cm out to sterno clavicular joint with external margins and abraded collar. No tattooing, charring and blackening seen, right clavicle bone fractured. 4. The cause of death was shock and haemorrhage resulting from ante-mortem injury. 5. At the trial, in all ten witnesses were examined. No tattooing, charring and blackening seen, right clavicle bone fractured. 4. The cause of death was shock and haemorrhage resulting from ante-mortem injury. 5. At the trial, in all ten witnesses were examined. The defence was of denial and of false implication at the instance of Bhanu Pratap Singh Rathor PW 1. One Head Constable Dhani Ram was examined as DW 1. 6. To begin with, in this case motive is not at all material. The reason is that in this case of broad day light murder, there is eye-witness account of three uninterested and independent witnesses, namely, Bhanu Pratap Singh Rathor PW 1, Head Constable Shyam Singh PW 2 and Constable Durvijai Singh PW 3, whose presence at the spot was natural and who have clinchingly proved the guilt of the accused, as would be clear from the discussion made hereunder. 7. The F. I. R. was also promptly lodged. The incident took place at about 8 a. m. on 7-3-1986 in P. A. C. Camp at Exhibition Ground, Aligarh and the report was lodged by an eye-witness-Incharge Company Commander Bhanu Pratap Singh Rathor PW 1 at 8. 55 a. m. at P. S. Bannadevi, Aligarh. The distance of the police station from the place of occurrence was only about 200 yards. The accused appellant was apprehended at the spot along with the weapon of offence. The same had also been handed over at the police station by the informant while lodging the F. I. R. 8. We have carefully examined that the testimony of the eye- witnesses Bhanu Pratap Singh Rathor PW 1, Head Constable Shyam Singh PW 2 and Constable Durvijai Singh PW 3. The accused appellant Mulaim Singh, a P. A. C. Constable, murdered a fellow Constable Nehru Singh Yadav by rifle that had been issued to him for duty purpose. We note from the testimony of the eye-witness Bhanu Pratap Singh Rathor PW 1 that he was getting chains fixed in the koth at the time of incident when the accused appellant Mulaim Singh came from behind and opened fire on the fellow Constable Nehru Singh Yadav with his rifle of 303 bore bearing No. 637. It was the victim who was engaged in arranging chains in rifles as koth Munshi. Receiving the injury, Constable Nehru Singh Yadav fell down. It was the victim who was engaged in arranging chains in rifles as koth Munshi. Receiving the injury, Constable Nehru Singh Yadav fell down. The accused appellant Mulaim Singh was overpowered and apprehended at the spot by Bhanu Pratap Singh Rathor PW 1, Head Constable Shyam Singh PW 2, Constable Durvijai Singh PW 3, Constable Mahesh Chandra, Constable Mahavir Singh and Constable Sentry Vidyapati Tripathi who were on guard duty there. The belt of cartridges with accused appellant Mulaim Singh was also snatched from him. In his rifle one empty cartridge was found which was taken out after the rifle was snatched from him. Company Commander Bhanu Pratap Singh Rathor PW 1 then lodged the F. I. R. at police station. He also narrated the entire incident to Sena Naik, XXVIII Battalion Sri S. N. Chandra and S. S. P. Sri Girdhari Lal Sharma. The F. I. R. had been written by him in the Exhibition Ground itself. The accused appellant was also handed over at the police station along with rifle, empty cartridge taken out from his barrel and the bullet which was fired by him and, which after piercing the body of Nehru Singh Yadav had gone into the wall of the room and was recovered therefrom. These articles were sealed at the police station. Immediately after the incident, Nehru Singh Yadav was sent to M. S. Hospital through a constable. It was also stated by him that at about 8. 40 a. m. Constable Sobaran Singh informed that Nehru Singh Yadav had died. 9. The version of Company Commander Bhanu Pratap Singh Rathor PW 1 has been corroborated by Head Constable Shyam Singh PW 2 and Constable Durvijai Singh PW 3 in all material particulars. None of them had any enmity with the accused appellant. Their presence at the spot cannot at all be doubted because of all of them were on duty there. 10. We note from the perusal of the impugned judgment that an argument was raised before the learned trial Judge that Company Commander Bhanu Pratap Singh Rathor PW 1 assumed the role of an Investigating Officer and his conduct gave rise to suspicion. The argument was built on the premise that he had seized the rifle from the accused appellant, removed the empty cartridge from its barrel and also the used bullet from the wall. The argument was built on the premise that he had seized the rifle from the accused appellant, removed the empty cartridge from its barrel and also the used bullet from the wall. He also removed the uniform from the person of the accused appellant. We cannot see as to how such conduct of Company Commander Bhanu Pratap Singh Rathor PW 1 at the spur of the moment raises any suspicion affecting the merits of the case. He was Company Commander and the incident occurred within his sight where a constable was murdered by a fellow constable. While overpowering the accused appellant with the help of other constables, he rightly disarmed him of his rifle, lest he could injure others or commit suicide. It could also be possible that the accused appellant had some sympathizers in the company who could remove the bullet from the wall and destroy it which was a valuable piece of evidence. It was, therefore, proper on his part to have disarmed him and also to have taken in possession the bullet from the wall. The removal of the uniform of the accused appellant after the incident was also appropriate to save him from humiliation while taking him to the police station and also to keep up the morale of the force. In our opinion, what the Company Commander Bhanu Pratap Singh Rathor PW 1 did was well suited to the situation and his veracity or credibility was not at all effected by what he did subsequent to the happening. 11. The weapon of the offence (rifle) and the used bullet had been sent to Ballistic Expert at Forensic Scientific Laboratory, Maha Nagar, Lucknow. The evidence of Om Prakash Mani Tripathi PW 9 is there that the bullet in question was fired from the rifle. Obviously, the evidence of Ballistic Expert supplies support to the prosecution case, as proved by the eye-witness and other attending circumstances taken together with the medical evidence. 12. We should also observe that the medical evidence is in conformity with the eye-witnesses account. The deceased had sustained a gunshot wound of entry with corresponding gunshot wound of exit. The death had occurred due to shock and haemorrhage on account of ante-mortem injury sustained by him. The evidence of the Dr. 12. We should also observe that the medical evidence is in conformity with the eye-witnesses account. The deceased had sustained a gunshot wound of entry with corresponding gunshot wound of exit. The death had occurred due to shock and haemorrhage on account of ante-mortem injury sustained by him. The evidence of the Dr. Ragiv Agrawal PW 4, who conducted autopsy of the dead body of the deceased, is that the deceased could have died at about 8 a. m. on 7-3-1986 and that the injury found on his person was sufficient to cause his death in ordinary case. 13. We also note that the accused appellant also examined Head Constable Dhani Ram DW 1 of XXVIII Battalion, P. A. C. , who was also posted at the said Company at Exhibition Ground, Aligarh. With the help of a register maintained in respect of the arms which were distributed amongst the constables, he deposed that the accused appellant had been given rifle bearing Butt No. 650 and Arsenal No. G-22104. He further stated that the rifle which is allotted to a constable, remains with him. Whenever he is posted on duty outside the station, he carries the same rifle with him. He further stated that it is not possible that a rifle issued to a constable may be used by another. He further testified that the rifle with but No. 637 was not issued to the accused appellant Mulaim Singh. No defect was noted against the entry of rifle No. 650. According to him, the entry regarding Butt No. 650 was in the handwriting of Head Constable Brijpal Singh and the same bore the signatures of the accused appellant Mulaim Singh. It was also in the statement of this witness that no constable could be posted on duty without uniform and the uniform of a constable did not comprise of Pant, Bushirt, Jersey and Sweater. 14. On the basis of the testimony of this defence witness, two arguments were raised before the learned Sessions Judge. First, Nehru Singh Yadav deceased could not be on duty at that time because at the time of post-mortem, apparels found on his persons included Pant, Bushirt, Jersey and Sweater. Second, the rifle with butt No. 637 had not been issued to the accused appellant. In our opinion, the learned Sessions Judge rightly rejected both the contentions for valid reasons. First, Nehru Singh Yadav deceased could not be on duty at that time because at the time of post-mortem, apparels found on his persons included Pant, Bushirt, Jersey and Sweater. Second, the rifle with butt No. 637 had not been issued to the accused appellant. In our opinion, the learned Sessions Judge rightly rejected both the contentions for valid reasons. At the time of the incident, the deceased Constable Nehru Singh Yadav was on duty of fixing chains in the rifles issued to the constables. He was performing his duty as Koth Munshi. Thus, the only job assigned to him was to fix chains in rifles and distribute arms and ammunitions to the constables who were to proceed on duty. He himself was not going on field duty. Therefore, it was likely that instead of coming on duty in full uniform, he preferred to attend his duty in civilian dress. It is common knowledge that the strict uniform discipline is not being observed and at times on spots the Government employees in civilian dress, though prescribed uniforms ought to be put on by them while on duty. Judged in this right perspective with the additional fact that the only job assigned to Nehru Singh Yadav was to fix chains in rifles and distribute arms and ammunitions to the constables, it cannot be inferred that he was not on duty as Koth Munshi at the time of occurrence. 11. The weapon of the offence (rifle) and the used bullet had been sent to Ballistic Expert at Forensic Scientific Laboratory, Maha Nagar, Lucknow. The evidence of Om Prakash Mani Tripathi PW 9 is there that the bullet in question was fired from the rifle. Obviously, the evidence of Ballistic Expert supplies support to the prosecution case, as proved by the eye-witness and other attending circumstances taken together with the medical evidence. 12. We should also observe that the medical evidence is in conformity with the eye-witnesses account. The deceased had sustained a gunshot wound of entry with corresponding gunshot wound of exit. The death had occurred due to shock and haemorrhage on account of ante-mortem injury sustained by him. The evidence of the Dr. 12. We should also observe that the medical evidence is in conformity with the eye-witnesses account. The deceased had sustained a gunshot wound of entry with corresponding gunshot wound of exit. The death had occurred due to shock and haemorrhage on account of ante-mortem injury sustained by him. The evidence of the Dr. Ragiv Agrawal PW 4, who conducted autopsy of the dead body of the deceased, is that the deceased could have died at about 8 a. m. on 7-3-1986 and that the injury found on his person was sufficient to cause his death in ordinary case. 13. We also note that the accused appellant also examined Head Constable Dhani Ram DW 1 of XXVIII Battalion, P. A. C. , who was also posted at the said Company at Exhibition Ground, Aligarh. With the help of a register maintained in respect of the arms which were distributed amongst the constables, he deposed that the accused appellant had been given rifle bearing Butt No. 650 and Arsenal No. G-22104. He further stated that the rifle which is allotted to a constable, remains with him. Whenever he is posted on duty outside the station, he carries the same rifle with him. He further stated that it is not possible that a rifle issued to a constable may be used by another. He further testified that the rifle with but No. 637 was not issued to the accused appellant Mulaim Singh. No defect was noted against the entry of rifle No. 650. According to him, the entry regarding Butt No. 650 was in the handwriting of Head Constable Brijpal Singh and the same bore the signatures of the accused appellant Mulaim Singh. It was also in the statement of this witness that no constable could be posted on duty without uniform and the uniform of a constable did not comprise of Pant, Bushirt, Jersey and Sweater. 14. On the basis of the testimony of this defence witness, two arguments were raised before the learned Sessions Judge. First, Nehru Singh Yadav deceased could not be on duty at that time because at the time of post-mortem, apparels found on his persons included Pant, Bushirt, Jersey and Sweater. Second, the rifle with butt No. 637 had not been issued to the accused appellant. In our opinion, the learned Sessions Judge rightly rejected both the contentions for valid reasons. First, Nehru Singh Yadav deceased could not be on duty at that time because at the time of post-mortem, apparels found on his persons included Pant, Bushirt, Jersey and Sweater. Second, the rifle with butt No. 637 had not been issued to the accused appellant. In our opinion, the learned Sessions Judge rightly rejected both the contentions for valid reasons. At the time of the incident, the deceased Constable Nehru Singh Yadav was on duty of fixing chains in the rifles issued to the constables. He was performing his duty as Koth Munshi. Thus, the only job assigned to him was to fix chains in rifles and distribute arms and ammunitions to the constables who were to proceed on duty. He himself was not going on field duty. Therefore, it was likely that instead of coming on duty in full uniform, he preferred to attend his duty in civilian dress. It is common knowledge that the strict uniform discipline is not being observed and at times on spots the Government employees in civilian dress, though prescribed uniforms ought to be put on by them while on duty. Judged in this right perspective with the additional fact that the only job assigned to Nehru Singh Yadav was to fix chains in rifles and distribute arms and ammunitions to the constables, it cannot be inferred that he was not on duty as Koth Munshi at the time of occurrence.