Judgment Prabhat Kr.Sinha, J. 1. Apart form the appellant in the aforesaid two appeals two more had faced trial in Sessions Trial no. 136 of 1998 who, by the impugned judgment, have been acquitted whereas appellant Nirmal Singh was convicted under section 302 of the Indian Penal Code (the Code, in short) and under section 27 of the Arms Act, sentenced to rigorous imprisonment for life, and rigorous imprisonment for five years, respectively. Appellant Ranjay Singh has been convicted under section 302 read with section 34 of the Penal Code and sentenced to rigorous imprisonment for life. 2. The case of the prosecution, taken briefly from the first information report (Ex- hibit-1/3) which was recorded by the Police on 15.3.1997 at 1.30 A.M. at village Kudar Bagha on the statement of Ram Kumar Singh, was that on the same night at about 8.00 P.M. at his Darwaza while he was talking with Dev Kumar Singh (P.W.1), Nag Narain Singh (P.W.11) and nephew Vinay Kumar Singh (P.W.3), his nephew Nawal Kishore Singh came to stand at Darwaza when the informant saw the four accused including the appellants with lathi and country made pistols whereafter appellant Ranjay Singh ordered for killing at which appellant Nirmal Singh fired from his country made pistol hitting Nawal in the abdomen and then they fled away, firing. The reason for the incident was that about three days back when Nawal was coming with a bundle of crop from his field, that had touched the Tatti of Nirmal Singhs house resulting in exchange of abuses between the two whereupon the deceased was threatened with killing. 3. In defence, the appellants have denied their hand in the alleged incident and have claimed innocence. Nirmal Singh also denied, in course of examination under section 313 of the Code of Criminal Procedure, that a few days back any such incident had taken place between him and the deceased. 4. Besides the aforesaid three witnesses P.W.4, Suraj Kanta Devi, aunt of deceased, P.W.5, Asha Devi, wife of the informant and the informant himself, P.W.8, have come forward as eye-witnesses. In the circumstances as will be discussed, the dead body was first put under autopsy by Dr. 4. Besides the aforesaid three witnesses P.W.4, Suraj Kanta Devi, aunt of deceased, P.W.5, Asha Devi, wife of the informant and the informant himself, P.W.8, have come forward as eye-witnesses. In the circumstances as will be discussed, the dead body was first put under autopsy by Dr. Arbind Kumar Gupta, P.W.13, but on a petition against him filed in the court of Chief Judicial Magistrate, Saran and under his orders a Medical Board also performed post mortem upon the dead body for which Dr. Ganesh Mahto, PW.12, the Civil Surgeon, had deposed and, lastly, the third post mortem was conducted by Dr. Arun Kumar Singh, P.W.9, Tutor in the Department of Forensic Medicine and Toxicology at Patna Medical College Hospital, Patna, having been referred to by the Medical Board. The post mortem reports of these three doctors are Exhibits-3/2, 3/1 and 3, respectively. These three reports and the evidences of these three witnesses have come under scathing attack by Sri Tara Kant Jha, the learned counsel appearing on behalf of the appellants, which we will advert to later, after discussing the evidence of eye-witnesses. Apart from them, PW.10, Gopal Mishra. is the Investigating Officer. P.W.2. Ram Nath Singh, is an eye-witness, who lent a supporting hand to the prosecution case but he did not name any one. Another co-villager, Gautam Singh, P.W.7 did not support the prosecution case and was declared hostile. 5. Before taking into account the ocular evidence of the occurrence, a point that has been raised by the learned counsel for the appellants, may be considered. There is sufficient evidence on the record to show that the eye-witnesses when at the Darwaza of the outer Sahan were sitting and talking, then upon orders of Ranjay S-ingh it was Nirmal Singh who had fired at the deceased when he came at Darwaza whereafter he fled to inside Angan crying that Nirmal Singh had shot him. This has been so said by P.W.4, Suraj Kanta Devi, (paragraph-1), P.W. 5 Asha Devi, (Paragraph-1); P.W.6, Dharmshila Devi, mother of the deceased (paragraph-1), P.W.8, the informant (paragraph-1) and P.W.11 Nag Narain Singh (paragraph-1). These witnesses generally have said that this was so declared by the deceased to his mother, P.W.6. These witnesses were cross-examined by the defence and in that regard they were asked as to whether or not they had told that to the Investigating Officer. These witnesses generally have said that this was so declared by the deceased to his mother, P.W.6. These witnesses were cross-examined by the defence and in that regard they were asked as to whether or not they had told that to the Investigating Officer. The Investigating Police Officer, in course of cross-examination when confronted on this score told that P.W.3 had said that the deceased had only said that he was shot but he did not say that it was Nirmal Singh who had shot him. He denied that P.W.4, P.W.5, P.W.6 or the informant in his further statement had said that. However, no such confirmation was taken about P.W.11 in that regard. 6. Therefore, from cross-examination of the Investigating Officer it appears that only P.W.11 had told him so in his statement. In that view of the matter, in so far as this declaration by the deceased is concerned, I would proceed to consider it taking in view that only P.W.11 had made such a claim in his previous statement. The witnesses otherwise are unanimous that the deceased had made such a declaration and, but for the evidence of P.W.10, the evidence of witnesses in that regard in cross-examination has not been shaken. This is an omission, although an important one. Therefore, by way of abundant caution I will consider the evidence of witnesses apart from this claim made by them (excluding P.W.11) and first find out as to whether by other evidences on record the prosecution had proved its case beyond doubts. 7. It may be noticed from the evidence that night of the occurrence was moonlit night (PW.2, paragraph-1). It has come in the evidence of P.W.1, an eye-witness, that his Sahan, where they were sitting and from where they had seen the occurrence was only ten feet away from the Sahan of the house of the accused persons. P.W.10 who had described the place of occurrence, had noticed the Sahan of the house of the deceased and giving boundary he said that to the north of the place of occurrence there was house of the accused persons, a road intervening in between. Therefore, it will appear that the appellants were almost next door neighbours of the informant side. P.W.10 who had described the place of occurrence, had noticed the Sahan of the house of the deceased and giving boundary he said that to the north of the place of occurrence there was house of the accused persons, a road intervening in between. Therefore, it will appear that the appellants were almost next door neighbours of the informant side. Living so near they must have known them very closely and, therefore, if the witnesses had seen the accused persons from close quarters in a moonlit night, there was every possibility of the witnesses recognizing the accused persons and, being their next door neighbours, they must have been well acquainted with their voices also. 8. Now coming to the evidence of P.W.1, also named in the first information report as a witness, he has supported the case stating that while in that night he was sitting with others on Darwaza the two appellants and others came with country made pistols but one with lathi. He supported that when the deceased came at the Darwaza from Angan, appellant Ranjan Singh ordered to fire upon him at which Nirmal Singh fired from his pistol hitting in the abdomen whereafter the accused fled away, firing. He has given the same reason for the firing as given in the first information report. He also is a witness to the inquest report (Exhibit-2). He also admitted that at that time none else except his family members was present there. He also said that he saw the accused on hearing the firing sound and they also tried to catch them, chasing them up to their Sahan but thereafter they came back. 9. P.W.3 was also sitting at his Daian with other witnesses. He said that east to the Dalan there was eating pot for animals (Naad) where he heard sound of the appellants and others, named by him, talking. He supported that his son, Nawal Kishore Singh came to the Darwaza and on orders of Ranjan the deceased was fired upon by Nirmal Singh. He also said that uncle rushed to catch the accused but they fled away, firing. He has given the reason of the killing in paragraph 7 of the evidence supporting the stand taken in the first information report. He also said that uncle rushed to catch the accused but they fled away, firing. He has given the reason of the killing in paragraph 7 of the evidence supporting the stand taken in the first information report. In cross-examination he said that he had followed Nawal Kishore Singh (to Angan) whereas other three had chased the accused who returned back when the accused persons entered into their Sahan, (paragraph 14). 10. P.W.4 is aunt of the deceased. She also said that it was moonlit night and she was sitting at her Darwaza for feeding family members and men-folk were sitting at Darwaza. According to her, she heard some people talking in low tone at a little distance from Darwaza. She has named the appellants and other in that regard. She claimed that Nawal Kishore Singh was fired upon by Nirmal Singh at the order of Ranjan Singh as soon he came out, whereafter the injured fled back and fell down in the Angan. In cross-examination she also said that male members of family had chased the accused but they fled away, firing. P.W.5, wife of the informant, has also supported the prosecution case almost similarly. She said that Nawal Kishore Singh died after five minutes. She also supported (paragraph 4) that Nirmal earlier had threatened the deceased of killing him. 11. Her attention was drawn towards certain portions of her statement made before Police. She also claimed that she had told Police that at the order of Ranjan, Nirmal Singh had shot at Nawal Kishore Singh. Though the Investigating Officer was confronted with her previous statements (paragraph 44 of P.W. 10) but the Investigating officer was not asked about this particular claim of this witness that she had toid Police that on the order of Ranjan the deceased was shot by Nirmal Singh. 12. P.W.6 is the mother of the deceased. She said that after she heard firing sound Nawal Kishore Singh came inside Angan catching hold of abdomen. P.W.8 is the informant who has fully supported the prosecution case in all aspects as also about the reason which gave rise to the incident. He has said that after Nirmal Singh had threatened the victim earlier and since they were of criminal tendency, Nawal Kishore Singh was sent to the house of her Phua but had come back in the evening of the date of occurrence. He has said that after Nirmal Singh had threatened the victim earlier and since they were of criminal tendency, Nawal Kishore Singh was sent to the house of her Phua but had come back in the evening of the date of occurrence. This as well other eye-witnesses were cross-examined at length but nothing appears to have come, except what has been discussed by way of contradictions, which could create doubt about the trustworthiness of their evidence on the point of actual occurrence. 13. Now, in this regard a glance over the evidence of P.W.2. This witness is a neighbour. He was eating in his nearby house. As per the witness at about 8.00 P.M. on that night he first heard sound of firing and then nulla, hearing which he came outside and saw some people fleeing away but he could not identify those. He testified that firing sound had come from the Darwaza of the informant. When he went inside Aangan, he saw Nawal Kishore Singh lying with fire-arm injury. He said that the ladies and members of the family of the deceased told that Nirmal Singh had fired upon him. However, he also said that the accused persons were not among those who were fleeing away. He also said that the accused persons were co-villagers but he did not know even their names. In cross-examination he gave full description of the house of the informant. 14. With the help of this evidence it was argued on behalf of the appellants that though accused were co-villagers and this witness had seen them fleeing away, he not only did not identify them but said that the accused present in the court were not amongst them. 15. However, this witness has fully supported that on the date of occurrence he had first heard a firing sound and when he went inside Aangan he saw Nawal Kishore Singh lying there with fire-arm injury and that the sound had come from the Darwaza of the informant. This way the witness has given vital support to the prosecution case particularly in view of contradiction that came in the first post-mortem report which I will discuss shortly. His claim that the accused were not amongst the persons fleeing away does not carry much weight. As per prosecution evidence soon after firing the accused had fled away towards their Sahan which was nearby, chased by witnesses. His claim that the accused were not amongst the persons fleeing away does not carry much weight. As per prosecution evidence soon after firing the accused had fled away towards their Sahan which was nearby, chased by witnesses. By the time P.W.2 could have come out of his house where he was taking his meal, the accused must have crossed over to their Sahan or would have been nearby that place. This witness would have seen only their back which also from a distance. Therefore, in those hours he might not have been able to identify the persons fleeing away. 16. Sri T.K.Jha further argued that as per evidence P.W.11 had first gone to the Police Station and came back, but when he had gone to the Police Station, some Sanha entry must have been made which was not produced and if he had gone to the Police Station there was no need for the informant again to proceed towards the Police Station as he (informant) said that after crossing some distance he saw Daroga coming and met him in the way and Daroga thereafter came to his house. 17. But it is evident from the evidence of P.W.11 that when he reached Police Station, there was only one constable and a Chaukidar present, therefore he came back. In cross-examination he said that the constable told him that the Police Officer and other constables had gone on patrolling. He said that he had told the Police that Nawal Kishore Singh was murdered and he had gone to the Police Station to inform, but he did not tell the constables as to who had killed him. The constable had told him that when Daroga came he would send him to the place of occurrence. It is obvious that there was hardly any occasion for P.W.11 to have Sanha lodged at the Police Station where no Police Officer, nor even the Munshi was available. If he did not tell the details to a constable present there, that also cannot be said to be unnatural, his having told him as to why he had come there. 18. It was also argued that names, for the first time, were disclosed at 1.30 A.M. in the night when the Daroga recorded the fardbayan. If he did not tell the details to a constable present there, that also cannot be said to be unnatural, his having told him as to why he had come there. 18. It was also argued that names, for the first time, were disclosed at 1.30 A.M. in the night when the Daroga recorded the fardbayan. However, in that regard the Investigating Officer in his evidence said (paragraph 11) that on way to the place of occurrence he had met the informant who told about the murder and also told him the names of the accused who had killed the deceased, but he did not record fardbayan there as there was no light and even the head-light of the Jeep was dim which was running at the speed of ten to fifteen kilometers per hour. 19. Learned counsel also argued that as per evidence on the record one shot fired had hit the deceased but two shots were also fired thereafter in air but no empty cartridge was said to have been recovered from the place of occurrence. From the evidence of P.W.10 it does not appear that he even had made any search for the spent or fired cartridges nor any question was asked in that regard during the cross-examination. Because of some lapse on part of the Police Officer, the prosecution case cannot be allowed to suffer. Moreover, admittedly in this part of the country the Police are ill-equipped and their conducting investigation in scientific way is a rare phenomena. Even in this case the Police had seized the clothes of the deceased but Investigating Officer admitted that for that he had not prepared any seizure list. He said that when on the order of the court he came to the Police Station to fetch those clothes he found that the clothes had rotten. He also admitted (paragraph 35) that blood stained clothes were not kept in Malkhana but were hung from a branch of a tree standing in the compound of the Police Station. He also admitted that even on the date of the testimony many such clothes could be found hung on that tree. 20. Learned counsel also argued that at the place of occurrence though the Investigating Officer found the cloth which deceased was wearing, tainted with some blood, but he did not find blood on the floor of Aangan. He also admitted that even on the date of the testimony many such clothes could be found hung on that tree. 20. Learned counsel also argued that at the place of occurrence though the Investigating Officer found the cloth which deceased was wearing, tainted with some blood, but he did not find blood on the floor of Aangan. It was argued that this was not natural if such a grievous injury was suffered by the deceased at that place which suggests that he might have suffered injury at some other place. 21. The Investigating Officer, in his evidence, said (paragraph 6) that he was told that soon after the deceased had suffered injury, the wound was tied with cloth which was the reason why blood could not be found. P.W.8 also said that when he saw the deceased he did not find the wound bleeding rather he only found some blood on the vest (ganjee) the deceased was wearing, and on his palm. P.W.3 also told (paragraph 25) that the blood was not oozing out of the wound, but it was on the vest and the deceased had pressed his wound with his hands. P.W.2 also said that he saw some blood on the cloth where the shot had caused the wound and he also found the wound tied with cloth. P.W.1 also said that not a drop of blood had fallen on the ground but it was on the ganjee in one inch diameter. Therefore, from the evidence it is evident that the wound had not emitted much blood and no blood had fallen on the ground also for the reason that the deceased, after receiving injury, had pressed his wound with his palm soon whereafter a cloth was tied upon the wound. 22. In view of the aforesaid materials on the record it can safely be held that the prosecution has proved beyond doubts that on the fateful night on verbal direction of Ranjan Singh to kill him, Nirmal Singh had fired the fatal shot upon the deceased. 23. As already stated, medical evidence mainly had come under attack of Sri Jha. 22. In view of the aforesaid materials on the record it can safely be held that the prosecution has proved beyond doubts that on the fateful night on verbal direction of Ranjan Singh to kill him, Nirmal Singh had fired the fatal shot upon the deceased. 23. As already stated, medical evidence mainly had come under attack of Sri Jha. It is also in evidence that first time the dead body underwent autopsy by P.W.13 on 15.3.1997 at 2.15 P.M. It appears that soon thereafter a protest petition was filed in the court of Chief Judicial Magistrate about the connivance of the doctor with the accused whereafter the Chief Judicial Magistrate, Saran had ordered the Civil Surgeon to have the autopsy done by a Medical Board which was, according to P.W. 12, done by the Civil Surgeon and member of the Medical Board on 17.3.1997. The Board without giving any definite opinion as to whether the deceased had suffered any fire-arm injury, noted in the post mortem report (Exhibit-3/ 1) that for further detailed investigation (scanning etc.) the body of the deceased should be sent to the Department of Forensic Medicines and Toxicology at P.M.C.H, Patna. This was how the dead body came under knife of P.W.9, Tutor in the Department of F.M.T. at Patna Medical College Hospital, Patna who conducted third autopsy on 20.3.1997 which was brought for re-postmortem under orders of Sri Ishwari Prasad, the then Chief Judicial Magistrate, Saran (the post mortem report marked Exhibit-3). When the dead body underwent post mortem at Patna, P.W.9 noted that the body was in a very advance stage of decomposition, full of maggots, crawling all over the body, most of the skin absent from the body, and the skull and face were devoid of soft tissues. Chest to abdominal cavity was widely exposed (19" x 2 1/2 " x 10") which gap was because of previous post mortem incision and decomposition of the body. P.W.9 also found brain completely absent from skull cavity and most of the viscera including intestine was absent and some of the left out parts was converted into a blackened mass infested with maggots. Soft tissues were completely absent from chest wall, skull and left thigh, exposing the bones. Remaining other parts and bones were carefully examined for any injury. 24. Soft tissues were completely absent from chest wall, skull and left thigh, exposing the bones. Remaining other parts and bones were carefully examined for any injury. 24. But before examining the medical evidences on the record and assailing of such evidence by Sri T.K. Jha, it would be worthwhile to first see the three medical reports in their relevant parts. (a) Post mortem by P.W.13 on 15.3.1997 at 12.15 P.M. :- "One incised penetrating wound about 1 ½" x 1 x abdominal cavity deep on the right side of abdomen i.e. flank in middle with loop of intestine protruding out of it. On cutting open the thoracic cavity both lungs were pale and all chambers of heart were empty. On cutting open the abdominal cavity it was full of blood and clots. At one place intestine was sharply cut through and through about 3" x 2" inside i.e. two holes in the intestine. Liver, spleen, kidney were pale. No foreign body was found in the abdominal cavity or in its posterior wall. Cause of death in my opinion was shock and haemorrhage due to injuries caused by sharp cutting object. Time elapsed since death to P.M. examination about 12 to 18 hours." The doctor opined that the injuries as seen by him and mentioned in the report could not have been caused by fire-arm since a bullet could not cause sharp cut injury. (b) Post mortem dated 17.3.1997 vide P.W.12 :- "The abdomen was burst open at the side of previous dissection under post-mortem examination through which guts were protruding. The hair were easily pulling from the scalp. One oval wound on the right lumber of the area of abdomen interiorly size about 2" x 1 ½" x abdominal cavity deep. The margins were eaten away by the maggots, through the wound the maggots and gut were protruding. No evidence of blackening or tattooing was evident on the abdominal wall around the wound or anywhere else on the body. On dissectionAfter removing the remaining stitches abdominal cavity contained clotted liquid blood. The internal organs were in the stage of decomposition and partly eaten away by maggots. All the viscera of abdominal and chest cavity were palpated and dissected for search of metallic foreign body. On dissectionAfter removing the remaining stitches abdominal cavity contained clotted liquid blood. The internal organs were in the stage of decomposition and partly eaten away by maggots. All the viscera of abdominal and chest cavity were palpated and dissected for search of metallic foreign body. Despite the vigorous search no metallic foreign body could be found anywhere in the viscera or in the abdominal chest cavity and parites." The medical report, in view of the aforesaid findings, as already stated, gave out no definite opinion relating to any fire-arm injury upon the body but the doctor said that for further detailed investigation it was recommended that the body be sent to the department of Forensic Medicines and Toxicology, Patna Medical College Hospital at Patna. (c) On 20.3.1997 re-post mortem was done by Dr. Arun Kumar Singh, Tutor, Department of F.M.T in P.M.C.H, Patna who, besides what already has been noticed earlier, also recorded following finding as per his evidence, and Exhibit-3 :- "Erosion of the anterior surface of the 5th lumber vertebra was noticed of ½" diameter. In view of the advise of the Medical Board, (C.S., Chapra) for skiagram X-ray of chest and abdomen, A.P. view was suggested which was done by the Radiology Dept. of P.M.C.H, Patna by a portable X-ray machine, in the Mortuary. The report received from the Radiology Dept. P.M.C.H. with two plates bearing No.-PM/365 dt. 20.3.1997 which read as such-chest A.P.-No evidence of radio opaque shadow seen. N.V. Longitudinal foreign body shadow seen in left side. Abdomen with pelvis view A.P. A radio opaque shadow (F.B) seen in L/5 level, left side, report was signed by Dr. (Mrs.) Aruna Jaiswal, Associate Professor, Dept. of Radiology, P.M.C.H, Patna. (2) The 5th Lumbar vertebra was opened and examined and a bullet was recovered from the body of vertebra which was kept in a glass vial properly levelled, sealed and handed over to Constable No.233, Dhaneshwar Yadav, PS. Garkha with instruction to hand that over to the I.O. immediately. Opinion-(i) Time since death within a week approximately. (ii) Nature of weapon-Fire-arm. (iii) Cause of death-Shock and Haemorrhage. 25. Garkha with instruction to hand that over to the I.O. immediately. Opinion-(i) Time since death within a week approximately. (ii) Nature of weapon-Fire-arm. (iii) Cause of death-Shock and Haemorrhage. 25. The points raised by the learned counsel for the appellants was that P.W.13 who had conducted the first autopsy was the best person to find out the nature of wounds and he clearly had stated that he had found one incised penetrating wound up to abdominal cavity, deep on right side of abdomen. Not only this he also found, on dissection, that intestine was sharply cut through and through with two holes. It was his clear opinion that death was caused by sharp cutting weapon. Opposite to this the post mortem by a Board of doctors was conducted on 17.3.1997 and evidence of P.W.12 would show that the Board of doctors did not disagree with the findings of P.W.13 as they did not find, on full search, any bullet and pellet inside, still they referred the body to Patna Medical College Hospital for a detailed investigation with the help of scanning etc. and then the body was sent there on 18.3.1997 (P.W.3, paragraph 20) where the third autopsy was done on 20.3.1997. Learned counsel submitted with the help of evidence of witnesses that the prosecution had not proved that the body during all this period was kept so secluded and under such custody that it could not have been tampered with. It was pointed out that there was no evidence as to where the body was kept after it was sent to Patna on 18.3.1997. P.W.9 also had admitted that he did not remember as to whether the dead body was exposed or was kept in sealed box. 26. Learned counsel also pointed out that from the evidence of Investigating officer it appeared that from the place of occurrence the dead body was sent for post mortem on 15.3.1997 with constable Dhaneshwar Prasad Yadav and Chaukidar Binda Manjhi. He also admitted that as per case diary Dhaneshwar Prasad Yadav had returned to Police Station on 16.3.1997. 26. Learned counsel also pointed out that from the evidence of Investigating officer it appeared that from the place of occurrence the dead body was sent for post mortem on 15.3.1997 with constable Dhaneshwar Prasad Yadav and Chaukidar Binda Manjhi. He also admitted that as per case diary Dhaneshwar Prasad Yadav had returned to Police Station on 16.3.1997. P.W.10 also said that on 18.3.1997 the Deputy Superintendent of Police had phoned for deputation of police personnel for taking the dead body to Patna for post mortem at which he deputed a Sub-Inspector of Police, Dilip Gangwar and constable Dhaneshwar Yadav, who proceeded for Chapra where body was kept, at 8.00 P.M. It was pointed out that as per evidence of this witness, Dhaneshar Yadav had remained at Patna from 18.3.1997 to 5.4.1997 on which date he had returned to the Police Station with the bullet, extricated from the dead body by P.W.9 and kept in a bottle, marked Exhibit-5. On the other hand, it was pointed out, P.W.1 had said that the informant had gone with the dead body with two others and had returned back only after all the three post mortems were conducted, after eight days. Learned counsel also assailed the investigation by not getting the recovered bullet examined by a ballistic expert to find out as to whether or not the bullet had even been fired from any weapon. 27. Sri T.K.Jha also argued that as per evidence of P.W.9 the place where the bullet was lodged could be located only after P.W.9 had received two x-ray plates, details of which he has given in his evidence. It was argued that he had given the name of the doctor taking the x-ray but neither that the doctor was examined as a witness nor the x-ray plates were brought on the record. In that context it was also argued that constable Dhaneshwar Yadav who was sent with the dead body for the first post mortem and was also sent to Patna on 18.3.1997 who had remained there for a considerable period, was not produced in the court to say as to how the body was kept at Patna. In that context it was also argued that constable Dhaneshwar Yadav who was sent with the dead body for the first post mortem and was also sent to Patna on 18.3.1997 who had remained there for a considerable period, was not produced in the court to say as to how the body was kept at Patna. The learned counsel has taken help of a decision of the Apex Court in the case of Gurcharan Singh V/s. State of Punjab, AIR 1963 Supreme Court 340, to augment the plea that examination of ballistic expert was essential, but from a perusal of the judgment it will be clear that it was not in every case that the examination of ballistic expert was essential. In this case the oral evidence about firing from a fire-arm is clear and acceptable. In so far as discrepancy in the medical evidences is concerned, that is whether a sharp cutting pointed weapon was used or a fire-arm. While discussing the medical evidence it will be seen that the medical evidence is not inconsistent with the ocular evidence. Therefore, non-examination of ballistic expert is not fatal to this case. Learned counsel also took help of another decision of the Supreme Court in the case of State of M.P. V/s. Surpa, 2002 9 SCC 447 . In that case a bullet was recovered from the body and a loaded gun was also seized by the Investigating Officer which were not sent to a ballistic expert. That was found to be an infirmity also in view of the fact that the deceased had received pellet injuries also on other parts of the body. Clearly this decision does not help the appellants in the facts of this case. Sri Jha also cited decision of the Supreme Court in the case of Purshottam V/s. State of M.P., A.I.R. 1980 Supreme Court 1873. It was argued that it was held therein that when there was contradiction between the medical testimony and the account given by eye- witnesses regarding fatal injury of deceased, the medical testimony was to be preferred. Learned counsel also place reliance upon decision of the Supreme Court in the case of Ram Narain V/s. State of Punjab, A.I.R. 1975 Supreme Court 1727 and submitted that in view of the decision, the contradictory medical evidence and not using a ballistic expert entitled the accused to acquittal. Learned counsel also place reliance upon decision of the Supreme Court in the case of Ram Narain V/s. State of Punjab, A.I.R. 1975 Supreme Court 1727 and submitted that in view of the decision, the contradictory medical evidence and not using a ballistic expert entitled the accused to acquittal. However, as I have already stated, I do not find the medical evidence inconsistent with the ocular evidence, therefore these two decisions also will not help the defence. 28. It may also be seen as to how the dead body underwent three autopsies. It is the prosecution case supported by evidence of witnesses such as P.W.3, that P.W.13 had gone in connivance with the accused persons assuring to save them, hence they filed an application that very day in the court to that effect whereafter the court ordered for post mortem by a medical Board (paragraphs 4 and 5 of P.W.3). This witness said that he had seen P.W.13 talking with the appellant Ranjan Singh who was assuring him that he (doctor) would save him. There appears to be discrepancy on a vital point between the evidence of P.W.13 and the findings of the medical Board as well in the evidence of P.W.13 himself. P.W.13 had also found intestine to be sharply cut through and through, about 3" x 2" with two holes. The Medical Board did not find any such two cuts by sharp weapon though the internal organs were in state of decomposition. But whereas P.W.13 has found one incised penetrating wound 1 ½" x 1" on the surface of abdomen, he found the two cuttings in the intestine about 3" x 2". This does not appear to be reasonable because such incised wound if caused by some pointed weapon could not ordinarily have caused internal cutting of a greater dimension than the cutting at the surface of the abdomen. The medical Board, as per evidence of P.W.12. found on the abdomen one oval shape wound which more conforms to a fire-arm injury. In view of these, the medical report submitted by P.W.13 does not inspire confidence. No doubt, the medical board had found oval size injury about 2" x 1 ½" x abdominal cavity deep, with no evidence of blackening and tattooing, but it gave a clear finding that margins were eaten away by maggots. In view of these, the medical report submitted by P.W.13 does not inspire confidence. No doubt, the medical board had found oval size injury about 2" x 1 ½" x abdominal cavity deep, with no evidence of blackening and tattooing, but it gave a clear finding that margins were eaten away by maggots. This may explain the size and of the wound, in so far as non-finding of blackening is concerned, prosecution nowhere has claimed that the shot was fired from near quarters. 29. Medical Board also had noted in its report as well has come in the evidence of P.W.12 that all the viscera of abdomen and chest cavity were dissected in search of metallic foreign body but despite vigorous search none was found. This is significant in view of the finding made in the third autopsy. The medical Board had confined its search around the soft tissues in the abdomen and chest. The medical Board though could not confirm that the death was caused by some fire-arm injury, but P.W.12 also said that no definite report regarding fire-arm injury could be given but it might have been caused by fire-arm, thereby not ruling out that possibility, presumably also because of the shape of the injury. 30. Now coming to the evidence of P.W.9, it will appear that this doctor also could not find any bullet by naked eye, in the portions of body that were searched by the medical Board though by that time the body was in advance stage of decomposition and eaten by maggots. But this doctor did notice erosion of the anterior surface of fifth lumber vertebra of ½" diameter and the doctor said that in view of the advice of the medical Board for skiagram X-ray of chest and abdomen, that was done by the Radiology Department of Patna Medical College Hospital by a portable X-ray machine in the mortuary itself. The doctor also mentioned about the report that was received with the plate number, and stated that in chest there was no evidence of radio opaque shadow. The report about chest A.P. revealed no evidence of radio shadow N.V. a longitudinal F.V. shadow seen in the left side. As per abdomen with pelvic view A.P., a radio opaque shadow- (F.B.) was seen in lumber five level left side. Therefore, both shadows appear to be of the same foreign body. The report about chest A.P. revealed no evidence of radio shadow N.V. a longitudinal F.V. shadow seen in the left side. As per abdomen with pelvic view A.P., a radio opaque shadow- (F.B.) was seen in lumber five level left side. Therefore, both shadows appear to be of the same foreign body. That report was signed by Dr. Aruna Jaiswal, Professor in the Department of Radiology cording to P.W.9 the fifth lumber vertebra was opened and examined, and a bullet was recovered from its body which was kept in a glass vial. Therefore, this bullet that was found was so concealed in the fifth lumber vertebra that it was not impossible for the naked eyes searching for a bullet in the chest or abdominal cavity to miss that. Even P.W.9 could locate that finally after receipt of the report of the Radiologist. He had to open the fifth lumber vertebra and from there he recovered the bullet. This bullet marked as Exhibit, was seen by us in the court which has a little bent which could be caused by its friction with the bone. Therefore, while the report of P.W.13 does not appear to be reliable one, the medical Board could not find the bullet so lodged because it did not take help of X-ray and finally it was located at Patna Medical College Hospital with the help of X-ray. The bullet was lodged in such a manner that it would have been almost impossible for a non-medical man to push it inside the vertebra or even by a professional, in such a way so as to cause erosion of anterior surface of the fifth vertebrae, ½" diameter, by just pushing. PW.9 had opined that the death was caused by a fire-arm which under the circumstances appears to be the correct view. The radiologist has not been examined, and x-ray plates not produced in court, but P.W.9 has given, in his evidence, full details about those, which I see no reason to doubt. In the circumstances, non-examination of constable Dhaneshwar Yadav also cannot prove to be fatal in view of a well proved prosecution case. 31. It is in view of this that I came to the conclusion that medical evidence is not contradictory to the ocular evidence, rather supports it. 32. In the circumstances, non-examination of constable Dhaneshwar Yadav also cannot prove to be fatal in view of a well proved prosecution case. 31. It is in view of this that I came to the conclusion that medical evidence is not contradictory to the ocular evidence, rather supports it. 32. Summing up, in view of the discussion as above, I come to the conclusion that the prosecution has been able to prove its case against both the appellants beyond reasonable doubts and that the judgment of conviction was correctly recorded by the learned trial court. 33. One defence witness has also been examined to prove some documents. Learned counsel for the appellants did not touch the evidence of this witness in course of arguments. However, a reference was made to Exhibit-A. That document has been discussed in the judgment of the learned lower court which refused to give any importance to that document. I find no reason to disagree with the view taken by the learned trial court. 34. In view of the aforesaid, the two appeals, being meritless, are dismissed. Bail bond of appellant Ranjan Singh of Criminal Appeal no. 489 of 1999 is cancelled and he is ordered to be taken into custody for serving out rest of the sentence. Chandra Mohan Prasad, J. 35 I agree.