JUDGMENT : SAMARENDRA PRATAP SINGH, J. Since none has appeared on behalf of the appellant, we hereby appoint Mr. Neeraj Kumar @ Sanidh, who is present in the court, as the Amicus Curiae, in this appeal. 2. The appeal by the sole appellant has been filed against judgment and order dated 15.5.2007 in Sessions Trial No. 343 of 2004/88 of 2006, whereby the court of Additional Sessions judge, FTC I, Sheohar at Sitamarhi convicted him under section 302 of the IPC and 27 Arms Act and sentenced him to life imprisonment under the first count and 3 years under the 27 Arms Act. The appellant was further directed to pay a fine of Rs.500 and in default of which to undergo simple imprisonment for three months. 3. The prosecution case, as disclosed in the fardbeyan of Shivji Sah (PW 9), brother of the deceased Asharfi Sah recorded on 28.7.2003 at 8.30 PM at the door of the deceased by Officer-in-charge, Raj Kishore Singh, Tariyani police station, giving rise to Tariyani Police station Case No. 74 of 2003 in short, is as follows:- 4. The informant states that on 28.7.2003, Rama Nand Thakur came twice to thrice at the door of his brother Asharfi Sah looking for his nephew Shyam Thakur. At that time, Asharfi Sah was stacking bricks in his field quite near to his house with the aid of labourers. Again at 4.30 PM, the appellant reached there where the labourers were carrying the bricks to the nearby field. He enquired about the whereabouts of Asharfi Sah. The labourers replied that Asharfi Sah is carrying the bricks in his field which is situated near to his house. The appellant then came to the door of Asharfi Sah and asked for tobacco. The informant was also working in the adjacent field. After providing tobacco, Asharfi Sah again started stacking the bricks, the appellant took out a country made pistol from his waist and fired at him causing injuries on the right side of the chest. On receiving fire arms injuries, informant’s brother fell and started bleeding. The informant chased the appellant along with Ram Babu Thakur (PW 3) and Shyam Babu Takur (PW 6), but the latter succeeded in fleeing, brandishing his pistol. The informant asserts that his brother died due to fire arm injuries. On receiving fire arms injuries, informant’s brother fell and started bleeding. The informant chased the appellant along with Ram Babu Thakur (PW 3) and Shyam Babu Takur (PW 6), but the latter succeeded in fleeing, brandishing his pistol. The informant asserts that his brother died due to fire arm injuries. The incident occurred as the deceased advocated that the appellant shall settle dispute with respect to a tree with his two cousins, namely, Ram Babu Thakur and Shyam Thakur. Earlier also the appellant along with his brothers and cousin had assaulted Ram Babu Thakur (PW 3). According to the informant, the occurrence was witnessed by co-villagers Ram Babu Thakur (PW 3), Shyam Thakur (PW 6) and deceased’s wife Somari Devi (PW 5). 5. On the basis of fardbeyan, Tariani Police station Case No. 74 of 2003 was registered for offence under section 302 IPC and 27 Arms Act against the sole appellant. Police after investigation submitted charge sheet under the same sections. Cognizance of offence was taken and the case was committed to the court of sessions. Charges were framed against the appellant under sections 302 IPC and 27 Arms Act, to which he pleaded not guilty. 6. The prosecution, in support of the case, examined 10 witnesses who are as follows:- 7. PW 1 Raj Kishore Sah is the brother-in-law of the deceased. PW 2 Ranju Devi is the daughter-in-law of the deceased. PW 3 Rambabu Thakur and PW 6 Shambhu Thakur are said to be nephew of the appellant ( Ram Nath Thakur). PW 4 Bindeshwar Sah is father-in-law of the deceased. PW 5 Somari Devi is the wife of the deceased. PW 7 Sogarath Sah is the brother-in-law of the deceased. PW 8 Hriday Rai is an independent witness. PW 9 Shivji Sah is the brother of the deceased and the informant of the case. PW 10 Dr. Narendra Kumar is the doctor who conducted post mortem examination on the body of the deceased marked as exhibit 1. The prosecution has also proved the fardbeyan as exhibit 3, FIR as exhibit 2. The defence, however, did not adduce any evidence in support of the case. 8. Case of the appellant in his statement under section 313 of the Cr.P.C. was complete denial of the occurrence. The prosecution has also proved the fardbeyan as exhibit 3, FIR as exhibit 2. The defence, however, did not adduce any evidence in support of the case. 8. Case of the appellant in his statement under section 313 of the Cr.P.C. was complete denial of the occurrence. Learned trial court on consideration of materials convicted the appellant under section 302 IPC and 27 Arms Act and sentenced him as already noticed in paragraph 1 of the judgment. Being aggrieved, the appellant has filed the instant appeal. 9. As already noticed in earlier paragraphs, the prosecution in order to substantiate its case, has examined 10 witnesses including the doctor PW 10, Dr. Narendra Kumar who conducted post mortem examination. The deceased’s wife (PW 2), PW 5 (Somari Devi) and informant PW 9 (Shivji Sah) have claimed to be the eye witness of the actual commission of the murder. PW 3 (Rambahu Thakur) and PW 6 (Shyambabu Thakur), though FIR named witness are not on point of seeing commission of actual occurrence but have claimed to have seen him fleeing and chasing the accused Rama Nand Thakur only from the place of occurrence. PW 7 (Sogarath Sah) and PW 8 (Hriday Rai) are witnesses and claimed to have learned about the murder of the deceased by the appellant. 10. Before we examine the ocular evidence, it would be advantageous to notice the evidence of Dr. Narendra Kumar, who has been examined as PW 10 and has proved the post mortem report as exhibit. The doctor in his post mortem report found the following ante mortem injuries on the person of the deceased:- “External injuries:- i. oval shaped lacerated wound over the right side of chest just below and medial of the nipple charred and inverted margin about 1” in diameter, cavity deep; ii. around the wound multiple charred wound of tiny sized iii. tiny size would multiple in number over left thigh; iv. charred wound ¼” in diameter over right axilla; v. tiny sized charred wound two in number over the left shoulder”. According to the doctor, the cause of death was due to haemorrhage and shock as a result of above noted injuries caused by fire arms. 11. PW 1 (Raj Kishore Sah) is brother-in-law (Sala) of the deceased. charred wound ¼” in diameter over right axilla; v. tiny sized charred wound two in number over the left shoulder”. According to the doctor, the cause of death was due to haemorrhage and shock as a result of above noted injuries caused by fire arms. 11. PW 1 (Raj Kishore Sah) is brother-in-law (Sala) of the deceased. He stated that on the fateful day at about 4.30 PM, the appellant came to the door of the deceased and asked for tobacco and when after offering him tobacco, re-engaged in bricks work, the former shot at his right chest with his country made pistol. On account of the injury, Asharfi Sah fell down and blood started coming out from his body. The appellant fled away on the point of arms. 12. PW 2 (Ranju Devi) who is the daughter-in-law of the deceased. In her deposition she stated that on the relevant date at about 4.30 PM she was at the door of her house. In the meantime, Rama Nand Thakur came to the door and asked her father-in-law for tobacco. He sent him tobacco through his grand daughter, Madhu. Thereafter, he re-engaged himself in keeping the bricks. In the meantime, appellant Ram Nath Thakur took out his country made pistol from his waist and fired at the chest of her father-in-law from about 5 feet distance. On receiving fire arm injury, her father-in-law fell down on the ground. The appellant fled away by showing threat of his arms. Besides herself, the incident was witnessed by her mother-in-law Somari Devi (PW 5), brother-in-law (PW 9), Sogarath Sah (PW 7) and Raj Kishore Sah (PW 1). She further stated that she heard two firing shots. 13. Evidence of PW 5 (Somari Devi) wife of the deceased is also to the same effect. She stated that on the fateful day at about 4.30 PM she was at the door. Her husband was arranging the bricks in the nearby field. In the meantime, appellant came and asked for tobacco. Her husband got sent the tobacco and got engaged in arranging the bricks. In the meantime, the appellant shot her husband on his chest and thigh by country made pistol and thereafter made good escape on the point of pistol. Her husband was arranging the bricks in the nearby field. In the meantime, appellant came and asked for tobacco. Her husband got sent the tobacco and got engaged in arranging the bricks. In the meantime, the appellant shot her husband on his chest and thigh by country made pistol and thereafter made good escape on the point of pistol. She stated that besides her, the incident was witnessed by her daughter-in-law (PW 2), Raj Kishore Sah (PW 1), Sogarath Sah (PW 7) and Shivji Sah (PW 9). 14. PW 9 (Shivji Sah) happens to be the brother of the deceased and the informant of the case. He has also supported the prosecution case as narrated by him in the FIR. 15. Apart from this witness, the prosecution has also examined Ram Babu Thakur (PW 3) and Shyam Babu Thakur (PW 6) who stated that just after the occurrence, they saw the appellant fleeing away with pistol. They stated that in spite of chase, the appellant managed to escape on the point of arms. 16. On the strength of these evidence, Mr. Abhimanyu Sharma, learned Addl. Public Prosecutor states that the prosecution has established the guilt of the appellant beyond all doubts. 17. Mr. Neeraj Kumar who has been appointed as Amicus curiae to assist the court in the case has strenuously argued that there are inherent contradictions in the statements of eye witnesses. They are all family members, their evidences are not reliable and foremost of all ocular evidence do not tally with the medical evidence. 18. We would deal with the specific submission made on behalf of appellant. PW 1 in his deposition stated that he has not made any previous statement about the case and as such his statement in the court for the first time has to be discarded. It is difficult to accept the contention of learned counsel for the defence that PW 1 was making the statement for the first time in the court. We find that this witness in just preceding paragraphs stated that he has made statement just a day after the occurrence to the police and as such, it cannot be said that PW 1 has not made any previous statement before his deposition in court. 19. We find that this witness in just preceding paragraphs stated that he has made statement just a day after the occurrence to the police and as such, it cannot be said that PW 1 has not made any previous statement before his deposition in court. 19. He next submits that in view of his own deposition in paragprah 9, PW 9 would not be not present at the place of occurrence and could not have seen the occurrence. It would appear from paragraph 9 of evidence of PW 9 that he was working in the nearby field and as soon as he heard sound of firing, he saw Asharfi Sah having received fire shot injuries. Furthermore, informant was about 10 to 12 Laggis away from the place of occurrence and as such it cannot be said that this witness could not have seen the accused firing at the deceased. 20. Learned counsel then argued that PW 5, wife of the deceased stated that she has a blurred image. On this basis, learned counsel contended that it was not possible to have clear vision as who fired at her husband. It would appear from the evidence of PW 5 that she was present at her door and around that time the appellant came and shot at her husband who was arranging the bricks in his field which was near to the house. The time of occurrence was 4.30 PM. The appellant was a co-villager. Furthermore, PW 5 had not stated that her vision is completely impaired. As such, it is difficult to come to the conclusion that PW 5 was not in a position to identify the assailant. Her evidence had stood the test of scrutiny and cross-examination. 21. Mr. Neeraj Kumar finally argued that the prosecution in any view of the matter has not been able to prove the manner of occurrence. He submits that the informant in his fardbeyan stated that one fire was opened at the deceased, whereas as per the post mortem examination report and medical evidence, the deceased sustained five injuries. 21. Mr. Neeraj Kumar finally argued that the prosecution in any view of the matter has not been able to prove the manner of occurrence. He submits that the informant in his fardbeyan stated that one fire was opened at the deceased, whereas as per the post mortem examination report and medical evidence, the deceased sustained five injuries. He submits that later on PW 2, the daughter-in-law of the deceased, PW 5, wife of the deceased and PW 9, brother of the deceased, in their evidence before the court in order that ocular evidence tallying with the medical evidence improved their earlier version and stated that two fire shots were opened by the appellant. 22. On the other hand, learned Addl.Pubic Prosecutor submits that three witnesses, namely, PWs.1,2 and 5 consistently stated that the appellant fired two shots at the deceased. He submits that it is true that the informant in fardbeyan spoke of only one fire shot. However, in his evidence he stated that he heard two fire shots. PW 9 was working in the nearby field and at the distance of about 10/15 Laggis and as such it is quite possible that he may have missed to point out both the fire shots opened by the appellant. Even if we assume that there is discrepancy in statement of PW 9, the evidence of other three eye witnesses are consistent on the point that two fire shots were opened by the appellant. 23. Mr. Neeraj Kumar, learned counsel appearing as Amicus curiae then argued that the witnesses still have failed to explain the five injuries sustained on the person of the deceased. He submits that the testimony of these witnesses would at best can explain for two injuries. 24. In order to appreciate the issues it would be necessary to notice the injuries found on the person of deceased, it is relevant to reproduce the injuries sustained by the deceased which are as follows:- “External injuries:- vi. oval shaped lacerated wound over the right side of chest just below and medial of the nipple charred and inverted margin about 1” in diameter, cavity deep; vii. around the wound multiple charred wound of tiny sized viii. tiny size would multiple in number over left thigh; ix. charred wound ¼” in diameter over right axilla; x. tiny sized charred wound two in number over the left shoulder”. 25. Learned Addl. around the wound multiple charred wound of tiny sized viii. tiny size would multiple in number over left thigh; ix. charred wound ¼” in diameter over right axilla; x. tiny sized charred wound two in number over the left shoulder”. 25. Learned Addl. P.P. submitted that admittedly firing was made by a country made pistol using general cartridge containing pellets and not bullet. Some pellets were also recovered from the body of the deceased. There is every likelihood that pellets may have been spread around the main wounds. A single shot containing of pellets can cause more than one injuries. It would appear from the post mortem report that except injury no.3, injury nos. 1, 2, 4 and 5 are around the chest of the deceased, the furthest being injury no.5 in left shoulder, which is very much possible by solitary shot containing pellets. 26. Thus, we are of the view that four injuries ie. Injury nos. 1,2,4 and 5 on the person of the deceased, was caused by one fire shot. In so far as injury no.3 at the thigh is concerned, in all probability it was caused by the other fire shot. As such, we are not convinced with the submission of learned counsel appearing for the appellant that five injuries found the person of the deceased, is not in consonance with the ocular evidence of PWs. 1,2 and 5. 27. Learned counsel for the appellant next argued that there was charring mark around the injuries which is possible only if the firing is made at a short distance not beyond 9 to 12 inches. In support of his submission, learned counsel has relied upon a decision of Hon'ble the Apex Court in case of Santa Singh Vs State of Pnhab, reported in 1956 SC 526(S)AIR 43 C 90. Paragraph 5 of the judgment, which is relevant in this context, is quoted herein below:- “5. The circular wound of entry at the back of the deceased, 1/4” in diameter, had burnt inverted margins according to the doctor who conducted the postmortem examination. The ballistic expert, Dr. Goyle, examined as PW 11, said that if there were burnt edges of the wound, the distance between the muzzle and the victim would only be a few inches and not more than nine inches. The ballistic expert, Dr. Goyle, examined as PW 11, said that if there were burnt edges of the wound, the distance between the muzzle and the victim would only be a few inches and not more than nine inches. This opinion is in substantial accord with what is found in some of the text books on medical jurisprudence. For instance, it is stated in Taylor’s Principles and Practice of Medical Jurisprudence, Vol.I, 10th Edition, at page 441, under the heading “Burning of the Wound”: “It is impossible to state rules as to the precise distance from which it is possible to produce marks of burning, for this depends on the quantity and nature of the powder, the method of charging, and the nature of the weapon. It is unusual, however, to get marks of burning beyond a yard or a yard and a half with a shot gun, or at more than half a yard with a revolver.” 28. It follows from the view expressed by Dr. Goyle that burn mark is possible, if a fire shot is opened by a revolver from a short distance not beyond 9 to 12 inches, and equally possible up to a yard and a half, if fired from a shot gun However, as per Taylor’s Principles and Practice of Medical Jurisprudence nature of injury, whether burnt or otherwise would depend upon quantity and nature of powder, the method of charging and the nature of the weapon. 29. In the instant case, there is specific evidence of the doctor that such injuries sustained by the deceased are possible from a distance of 2/3 feet. In view of the medical evidence, it is difficult for us to hold that the injuries found on the persons of the deceased would have been caused only if the shots had been fired from a distance of 9 to 12 inches. 30. Thus, we are of the considered view that the prosecution has been able to establish the guilt against the appellant beyond all reasonable doubt. In the result, the appeal fails and the appellant would continue to remain in imprisonment to serve out rest part of the sentence. 31. Before parting with the judgment, we would express our appreciation for Mr. Neeraj Kumar @ Sanidh for rendering valuable assistance. He is allowed the prescribed fee for appearing as Amicus Curiae as assisting the court.