JUDGMENT
1. The State is aggrieved by the acquittal of respondents Suraj Mal, Ajit Singh, Raj Pal, Krishan and Kapoor Singh of the charges under Sections 302/325/34 IPC and Section 27 of the Arms Act.
2. Case of the prosecution, as narrated by Kuljit Singh PW1, is that on 2.4.1991 at 5 PM, he alongwith his father Ajit Singh (deceased) was sitting in front of their house near Old Bus Stand Meham. Jagdip and Sunil were standing in front of a shop nearby. Rajbir PW was sitting in front of another shop across the road. Accused Suraj Mal alias Samman, his nephew Ajit Singh, accused and one other person came on a scooter from the Hissar side. Suraj Mal had a gun. Ajit singh was driving the scooter. As soon as they came near the house of the complainant, Suraj Mal asked co-accused Ajit Singh to stop the scooter so that he may finish his enemy Ajit Singh, deceased. Accused Ajit Singh stopped the scooter. Accused Suraj Mal and Kapoor Singh alighted from the scooter. After coming near Kuljit Singh and his father Ajit Singh, Suraj Mal fired shots from his gun at Ajit Singh, which hit on the right side of his face near the ear on the temporal region. Ajit Singh fell down on the ground. Rajpal and Krishan accused also came there from the side of the Truck Union, armed with a ‘jelli’ each. They raised ‘lalkara’ that none from the family of Ajit Singh should be allowed to remain alive. On hearing the noise, Sunder Singh PW, father of the deceased arrived from Bhiwani Stand side. Rajpal and Krishan reached towards him and gave him injuries with ‘jellies’. Suraj Mal and his companions declared that if any person came to the rescue of Ajit Singh and Sunder Singh, he will be done to death. Thereafter, they left the spot with their weapons. The motive was that 6/7 months prior to the occurrence, Suraj Mal alias Samman had abused Sunder Singh PW. Sunder Singh narrated the incident to his son Ajit Singh, deceased. Ajit Singh gave beatings to accused Suraj Mal. Suraj Mal declared that he would not report the matter to the police but settle the score himself.
3. Kuljit Singh PW accompanied by Sunil, Jagdip and Rajbir Pws removed Ajit Singh and injured Sunder Singh to Civil Hospital, Meham in a car. Ajit Singh died as a result of injuries before reaching the hospital. The doctor sent a ruqa at 6.30 PM on which the police arrived at the hospital. SI Rameshwar Dass recorded the statement of Kuljit Singh Ex. PA on which FIR was registered. SI Rameshwar Dass completed inquest proceedings and sent the dead body for post mortem. He also went to the place of occurrence, prepared rough site plan, got the spot photographed, lifted blood stained earth, three empty cartridges and a pair of chappal stained with blood. He also took all the articles into possession. Post mortem was conducted by Dr. Subhash Juneja PW6 on 3.4.1991 at 10.30 AM, who noticed following injuries:
There was 13 cm x 8 cm. irregular oval wound on right side of face and upper part of neck. It was one cm. behind the right angle of mouth and 6 cm. below the line joining lateral canthus of right eye and tragus of right ear. Margins of the wound were irregular, lacerated and there was abrasion all along with margins. There was tattooing over the anterior most part of the margins of the wound. There were two holes of 1/2 cm. diameter each just above entero-superior part of the main wound. Margins of these holes were irregular, inverted and ring of abraded coller and tattooing around them was present. There were multiple contusions placed in the forms of streaks over upper part of neck and supra clavicular and supers spacular area behind the main wound. There were found small holes scattered over the area behind the main wound. The size of these wounds varied between 0.5 cm to 0.75 cm. and margins were irregular and everted. The right side medible was fractured into pieces and pieces of bone were scattered all over the track. There was extensive laceration of the soft tissue and muscle over the face and right side of neck with ecclymosis all around. There were multiple tracks with ecclymosis present going posteriorily and downwards in subcutaneous plane and muscles of right side neck causing extensive damage to the tissues and blood vessels.
4. The doctor recovered metallic pellets from the tracks. He also recovered a card board from the main wound. Cause of death was shock and hemorrhage as a result of fire arm injuries which were ante-mortem and sufficient to cause death in the ordinary course of nature. The doctor also removed the clothes from the dead body and handed over the same to the police. Dr. Vinod Sharma PW7 examined Sunder Singh and found following injuries:
1. There was a lacerated wound measuring 3 cm. x 2.5 cm x 1.5 cm. present on the lateral aspect of right leg above 15 cm. vertically above the lateral mallcolas. Wound was bleeding on cleaning. I advised x-ray right leg AP and lateral views.
2. There was reddish bruise 20 cm. x 2.5 cm. present vertically on left side of back in thorosic region. I advised x-ray chest A.P. and P.A. view.
5. SI Rameshwar Dass arrested the accused. He recorded disclosure statement of Suraj Mal Ex. PX which led to recovery of . 12 bore DBBL gun from his house. He also recorded the statement of Ajit Singh, accused leading to recovery of scooter. Suraj Mal, accused also produced his gun licence. According to report of the Assistant Director, Ballistics, he was not able to give opinion regarding linkage of crime cartridges in respect of gun on account of tampering with of the fire arm as fire pins of .12 bore DBBL gun had been cut and tampered with. After completing investigation, the accused were sent up for trial.
6. The prosecution examined PW1 Kuljit Singh, son of the deceased, Ajit Singh, Sunder Singh PW3, father of the deceased; other eye witnesses Jagdip PW9 Sunil PW10 and Rajbir PW11 who did not support the case of the prosecution; Dr. Pawan Jain PW2, who radiologically examined Sunder Singh and found fracture of right fibula bone in his right leg; PW4 HC Jagat Singh is a formal witness to prove photographs; PW6 Dr. Subhash Juneja is a Medical officer who conducted post mortem on the dead body of Ajit Singh; PW7 Dr. Vinod Sharma medico-legally examined Sunder Singh; PW8 Constable Raj Singh delivered copy of FIR to the Magistrate at 4.30 AM on 3.4.1991; PW12 SI Rameshwar Dass is the Investigating Officer. He arrested the accused, effected recoveries and completed investigation. Affidavit of formal witnesses and reports of Assistant Director, Ballistic and Chemical examiner were also tendered.
7. The accused denied the prosecution allegations. Suraj Mal stated that he was not present at the place of occurrence and was in his house and preparing for the marriage of his son which was to be performed on 7.4.1991 with the daughter of Gaje Singh son of Kapoor Singh. Krishan and Raj Pal were brothers of Gaje Singh. Ajit Singh was not related to him. Kapoor Singh was also not related to him. Ajit Singh, deceased was a person of bad character and was arrested in numerous cases. The said Ajit Singh applied for his name being deleted from the list of bad characters. He had many enemies and someone may have killed him. He was falsely implicated alongwith the co-accused. Sunder Singh received injuries by entangling into the wire. Other accused also took similar pleas.
8. After considering the evidence on record, the trial court held that the case of the prosecution was not proved beyond reasonable doubt. The reasons given by the trial court are as under:
(i) Motive about the occurrence was not proved. The witnesses were not unanimous as to how many months prior to the present occurrence, the previous occurrence took place. There is no report of the previous incident by either party to the police The same was stale being 5/6 months old.
(ii) Occurrence took place at 5 PM near Old Bus Stand Meham but FIR was recorded at 8 PM and a copy thereof reached the Ilaqa Magistrate at 4.30 AM on the next day. Distance between the hospital and the place of occurrence was 1/4 km and distance between the place of occurrence and the police station was 1-1/2 furlongs. Distance between the place of occurrence and the court was 30 kms. Thus, there was unexplained delay in lodging of the FIR on account of which there was possibility of coloured version creeping in.
(iii) Out of the eye witnesses cited, PW9 Jagdip Singh, Sunil PW10 and Rajbir PW11 did not support the version of the prosecution. PW1 Kuljit and PW3 Sunder Singh were not reliable. Name of Kuljit Singh PW1 was not mentioned in the statements of PW9 Jagdip Singh, PW10 Sunil and PW11 Rajbir recorded under Section 161 Cr.PC Even in the statement of PW3 Sunder Singh under Section 161 Cr.PC, name of Kuljit Singh was not mentioned.
(iv) Name of Kapoor Singh was not mentioned in the FIR who was identified for the first time in court. No test identification parade was held.
(v) Kuljit Singh PW1 was not able to state on which side the shot was fired and to which side the deceased took the turn etc. He could not mention how many injuries were received, how many fires hit the deceased and staircase under which he had concealed himself, was not shown in the site plan. There was conflict in the medical evidence and testimony of eye witnesses. According to PW1 Kuljit Singh and PW3 Sunder Singh, shots were fired from 5/6 paces i.e., 15 feet to 18 feet. According to PW6 Dr. Subhash Juneja, firing was from range of four to six feet. There was tattooing around the wound. In the opinion of the doctor, only one shot had hit the deceased. If shots had been fired from a distance of 15 feet to 18 feet, the empties could not reach the gate of the house.
(vi) According to Kuljit Singh PW1, Sunder Singh reached after hearing the noise. Thus, Sunder Singh had not seen the occurrence. Sunder Singh PW3 stated that he saw the firing taking place. Two statements were contradictory. Injuries on the person of Sunder Singh could be by entangling in the barbed wire and causing of injuries by Rajpal and Krishan was not probable.
(vii) Marriage of son of Suraj Mal was to take place on 7.4.1991 and he could have been falsely implicated for some ulterior motive. Ajit Singh, deceased was a history-sheeter and had applied for deletion of his name and could have been murdered by someone else.
(viii) Ballistic Expert did not support the case of the prosecution. Report Ex. PG mentioned that the gun was in working order but no opinion could be given about linkage of crime cartridges in respect of .12 gun due to tampering. Thus, weapon of offence was not connected with the crime by the expert. Empty cartridges were lifted from the spot on 3.4.1991. Gun was recovered on 6.4.1991 but the gun and cartridges were sent for examination only on 23.4.1991.
10. We have heard learned counsel for the parties and carefully perused the record.
11. Learned counsel for the state submitted that the reasons given by the trial court for acquittal are perverse and not sustainable in law. The respondents had committed broad day murder to which PW1 Kuljit Singh, son of the deceased and PW3 Sunder Singh, father of the deceased were eye witnesses. Minor contradictions could not be a ground for disbelieving the version of the eye witnesses, which was consistent and reliable and did not suffer from any material contradiction or material discrepancy.
12. Learned counsel for the respondents supported the reasons for acquittal of the respondents and submitted that the case of the prosecution was not proved beyond reasonable doubt.
13. After careful perusal and consideration of the matter, we are of the view that acquittal of Suraj Mal of the charge of murder is not sustainable and the reasons given by the trial court for the acquittal are perverse. Ajit Singh and Kapoor Singh, are, however, entitled to benefit of doubt. Rajpal and Krishan are liable to be convicted under Sections 325/34 IPC and are liable to b e sentenced to the period of sentence already undergone by them.
14. Before dealing with the reasons given for acquittal pointwise,it will be necessary to make a brief reference to the evidence on record and also to make observations about the correct legal position.
15. Main evidence comprises of evidence of PW1 Kuljit Singh and PW3 Sunder Singh, apart from medical and other evidence. PW1 Kuljit Singh, son of the deceased deposed that he knew the accused present in court. Suraj Mal, Ajit Singh and Kapoor Singh were residents of the same village i.e. Farmana Badshahpur. Ajit Singh was nephew of Suraj Mal and Kapoor Singh was also related to Suraj Mal. Rajpal and Krishan are real brothers of Gaje Singh and sons of Kapoor singh. About 7/8 months prior to the occurrence, accused Suraj Mal had abused Sunder Singh on account of which deceased Ajit Singh had given beatings to Suraj Mal. Suraj Mal was the Sarpanch of Village Farmana Badshahpur. On the date of occurrence i.e. 2.4.1991 at 5 PM, the accused Suraj Mal alongwith the co-accused came on a scooter with a gun and declared that he would teach a lesson to Ajit Singh, deceased. He fired shot towards the deceased on the right side of the face near the ear on the temporal region. Rajpal and Krishan came from the other side with one ‘jelli’ each and raised a ‘lalkara’ that no member of family of Ajit Singh may be allowed to survive. Sunder Singh PW also arrived who was given injuries by Rajpal and Krishan. The accused declared that anyone coming to the rescue of the deceased party, would be done to death. Thereafter, the accused went away. Daughter of elder brother of Rajpal and Krishan was to get married to the son of Suraj Mal, accused. Ajit Singh, deceased and Sunder Singh were taken to Civil Hospital where Ajit Singh was declared dead and at 7 PM, the police came to the hospital and recorded the statement of Kuljit Singh Ex. PA. The version given by PW1 Kuljit Singh has been fully corroborated by PW3 Sunder Singh. He deposed that he was earlier supporter of Sh. A.S. Dangi while the accused Suraj Mal was supporter of Sh. O.P. Chautala. Accused was asking Sunder Singh witness to leave the camp of Sh. Dangi and join the camp of Sh. Chautala to which he was not agreeable. He had abused and threatened him 4/5 months prior to the occurrence. His son Ajit Singh felt it bad and had given beatings to Suraj Mal who had declared that he would take revenge. On the date of occurrence on 2.4.1991 at 5 PM, the accused assaulted the deceased and the injured in the manner already described. Dr. Subhash Juneja PW6 who conducted post-mortem examination found fire arm injuries and also took out ten metallic pellets and a card board wad from the body of Ajit Singh. PW7 Dr. Vinod Sharma medically examined Sunder Singh witness and stated that blunt side of the ‘jellies’ could cause the injuries found. PW12 SI Rameshwar Dass conducted the investigation and on disclosure statement of the accused, recovered the gun and the scooter.
16. The above evidence clearly shows that there is ocular testimony of PW1 Kuljit Singh which has been fully corroborated by PW3 Sunder Singh. There is medical evidence comprising of PW6 Dr. Subhash Juneja and PW7 Dr. Vinod Sharma. It is further clear that the occurrence commenced at about 5 PM and the injured were taken to the hospital at 6.35 PM, as stated by Dr. Vinod Sharma PW7. He sent a ruqa to the police station at 6.50 PM. Statement of PW1 Kuljit Singh was recorded in the hospital at 7/8 PM. The FIR was, thus, as prompt as possible. From the evidence on record, the case of the prosecution stands fully established.
17. We may now notice the correct legal position to be applied to the trial of a criminal case. If there is reliable evidence of eye witnesses, mere fact that some of the witnesses do not support the case of the prosecution, will not be a ground to reject the version of the prosecution. When there is direct and reliable evidence, proof of motive loses importance. Motive is a psychological phenomena and sometimes it may be difficult to prove the reason for the offence. If an offence is committed even without motive, the offence is punishable. Reference may be made to judgments of the Hon’ble Supreme Court in Nathuni Yadav v. State of Bihar and Tarsem Kumar v. Delhi Admn. , Para 9. Undue importance cannot be given to minor discrepancies which do not shake the basic version of the prosecution’s case. Such discrepancies are bound to be there on account of individual error of perception or observation or lapse of memory or even embellishments. Reference may be made to Appabhai v. State of Gurajat (Paras 11, 13 and 14).
18. The evidence of eye witnesses has to be tested independently and is not to be treated as a variable, keeping the medical evidence as constant. Reference may be made to the observations made by the Hon’ble Supreme Court in State of UP v. Krishna Gopal .
19. In case of fire arm injuries, it must be borne in mind that a witness is not expected to meticulously mention the manner of firing. Reference may be made to the observations of the Hon’ble Supreme Court in Nankhu Singh and Anr. v. State of Bihar , wherein it was observed as under:
5. …When a person fires at a place where as here there are two persons one witness may think that it is fired at one person and the other may think that was fired at the other. Merely because the inference drawn by one witness which may not fit in with the inference drawn by the other the factum of the firing at the place where the injured persons were, cannot be rejected….
20. Any irregularity or even illegality during investigation, ought not to be treated as a ground to reject the prosecution’s case. Reference may be made to the judgments of the Hon’ble Supreme Court in State of Rajasthan v. Kishore and Leela Ram v. State of Haryana .
21. Reliable and consistent ocular testimony cannot be rejected on hypothetical medical evidence. In Anil Rai (supra),it was observed: “Otherwise also, the opinion of the expert would lose its significance in view of the reliable, consistent ocular testimony of PWs 1, 2, 5 and 6. Such a plea was rejected by this Court in Punjab Singh v. State of Haryana for two reasons, (1) that if direct evidence is satisfactory and reliable, the same cannot be rejected on hypothetical medical evidence, and (2) if medical evidence when properly read shows two alternative possibilities but not any inconsistency, the one consistent with the reliable and satisfactory statements of the eyewitness has to be accepted.
22. Again in Mohan Singh v. State of MP , it was observed:
20 . For all these reasons, we have no hesitation to hold that recording of blackening of skin below the injury by the doctor prima facie may lead to the conclusion that firing of gunshot may be from a close range but in a given case, depending on other factors, as in the present case and in the light of what Taylor says, as aforesaid: “The black margins of a wound are never due to the firing of the gun from a very close range but are due to something different…” the observation by the doctor could even be in cases where shots are not from a close range.
21 . In Karnail Singh v. State of Punjab , this Court held that where it is proved beyond doubt that the evidence of the eyewitnesses is trustworthy in a case where the accused person committed murder by gunshots, the inconsistency between the opinion of the expert and the eyewitnesses relating to the distance from which gunshots were fired carries no weight. If the eyewitnesses stand the test of their credibility, they have to be believed. Looking to the present case, we see even the doctor’s opinion is not clear as he admitted that he cannot give a clear opinion about the distance from which the shot was fired. But he records that it was fired from a higher pedestal which corroborates with the prosecution story. This, coupled with the fact that the eyewitnesses also corroborate to the same effect, the submission on behalf of the accused for all the aforesaid reasons with respect to the first point cannot be sustained.
23. Evidence of witnesses cannot be rejected merely because they were blood relations of the deceased or on account of enmity between the parties. A close relation will be the last person to screen the real culprit and falsely implicate the innocent person. Tendency to exaggerate the number of accused has to be safeguarded by careful examination of evidence in each case by separating the grain from the chaff. The maxim falsus in uno, falsus in omnibus cannot be applied except as a rule of caution. It may also be noted that normal discrepancies due to errors of observation, error of memory or due to mental disposition such as shock and horror at the time of occurrence are always there, however, honest and truthful a witness may be and such discrepancies do not affect the credibility of the witnesses. If on broad probabilities, case of the prosecution taken as a whole is found to be truthful, it cannot be rejected either on account of witnesses being related or on account of minor discrepancies. Where eye witnesses account is found to be credible or trustworthy, medical evidence pointing to alternative possibilities cannot be treated as conclusive. These principles are well-settled and have been reiterated in the judgment of the Hon’ble Supreme Court in Gangadhar Behera v. State of Orissa .
24. Delay in sending of report to the Magistrate cannot by itself justify the conclusion that investigation was tainted or that the case of the prosecution was not supportable. In Anil Rai v. State of Bihar , it was observed:
31. This provision is designed to keep the Magistrate informed of the investigation of such cognizable offence so as to be able to control the investigation and if necessary to give appropriate direction under Section 159 of the Code of Criminal Procedure. But where the FIR is shown to have actually been recorded without delay and investigation started on the basis of the FIR, the delay in sending the copy of the report to the Magistrate cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable Pala Singh v. State of Punjab . Extraordinary delay in sending the copy of the FIR to the Magistrate can be a circumstance to provide a legitimate basis for suspecting that the first information report was recorded on a much later day than the stated day, affording sufficient time to the prosecution to introduce improvements and embellishment by setting up a distorted version of the occurrence. The delay contemplated under Section 157 of the Code of Criminal Procedure for doubting the authenticity of the FIR is not every delay but only extraordinary and unexplained delay. However, in the absence of prejudice to the accused the omission by the police to submit the report does not vitiate the trial. This Court in Sarwan Singh v. State of Punjab held that delay in despatch of first information report by itself is not a circumstance which can throw out the prosecution’s case in its entirety, particularly when it is found on facts that the prosecution had given a very cogent and reasonable explanation for the delay in despatch of the FIR.
25. Discrepancy in proving causing of the injury by a particular weapon may not affect the case of the prosecution if the same is proved by direct evidence. In Nirmal Singh v. State of Bihar AIR 2005 SC 1265, it was observed:
15. It was then submitted that the prosecution has not examined any forensic expert to prove that the injury was caused by a bullet or that the bullet could have been fired from any of the weapons allegedly carried by the appellants and their companions. The fact that a bullet was found embedded in the vertebra of the deceased is by itself conclusive of the fact that the deceased had suffered a firearm injury. The question as to whether the said bullet was discharged from any of the weapons carried by the appellants is of no significance in the facts of the instant case since the weapons allegedly carried by the appellants were neither recovered nor seized. There was, therefore, no material on the basis of which the ballistic expert could have given his opinion as to whether the bullet had been discharged from the weapons carried by the appellants.
26. As to the effect of evidence regarding recovery of weapons, in Gurnek Singh v. State of Punjab (Para 7), it was observed:
With regard to the evidence regarding the recovery of the weapons, this evidence has not been taken into consideration in order to support the finding of guilt. If this evidence had been accepted it would have provided further corroboration. Since however the other evidence is satisfactory and adequate, the fact that the court has considered that it is not safe to rely on the evidence regarding recovery does not detract from the merits of the evidence of the eyewitnesses which has been considered to be beyond reproach. The same reasoning applies to the submission urged in the context of the fact that the firearms which were recovered were not proved to have been used in the commission of the offence….
27. Applying the above principles to the facts of the present case, it is clear that the eye witnesses account does not suffer from any material contradiction or discrepancy and is cogent and reliable. The deceased has suffered fire arm injuries. Pellets were recovered from his body during the post-mortem. There is also evidence of previous enmity. There is no dispute of identity. The occurrence took place in broad day light. Even if margin of exaggeration is given, there is no ground whatsoever to acquit Suraj Mal by adopting a safe course. Benefit of doubt can be given to Ajit Singh and Kapoor Singh who may or may not have shared common intention with Suraj Mal in causing the death. Rajpal and Krishan may or may not also have shared common intention in causing the death but they are certainly liable for the injuries caused to Sunder Singh PW, for which they are liable for conviction under Sections 325/34 IPC.
28. We may also deal with the reasons given by the trial court to show that the same were perverse. Re: Reason No. (i)
29. While discussing the evidence of witnesses, we have noticed that PW1 Kuljit Singh as well as PW3 Sunder Singh have both stated about the previous incident. Merely because a report of previous incident was not lodged with the police, could be no ground for rejecting the said evidence of motive. As already observed, when direct and reliable evidence is available, question of motive is only academic and does not affect the case of the prosecution.
Re: Reason No. (ii)
30. The occurrence took place around 5 PM and the deceased and the injured were taken to the hospital immediately and they reached the hospital around 6.30 PM. Message was sent to the Police Station and statement of PW1 Kuljit Singh was recorded at 7 PM. FIR was formally recorded at 8 PM. Special report was received by the Ilaqa Magistrate at 4.30 AM in the early mooring. There is hardly any delay which could be a ground to reject the version of the prosecution. We have already referred to the law on the point in the earlier part of the judgment. The reason given by the trial court is perverse.
Re: Reason No. (iii)
31. Mere fact that PW9 Jagdip, PW10 Sunil and PW11 Rajbir did not support the case of the prosecution, does not affect the evidence of Kuljit Singh PW1 and Sunder Singh PW3 which was clearly reliable. Absence of name of Kuljit Singh PW1 in the statements under Section 161 Cr.PC, was irrelevant in the circumstances of the case. Kuljit Singh’s statement was recorded at the earliest, immediately after the occurrence and there could be no doubt about his being a witness to the occurrence. The reason given by the trial court is perverse.
Re: Reason No. (iv)
32. Omission of name of Kapoor Singh can at best be a ground to give him benefit of doubt but it does not affect the case of the prosecution. He was already known to the witness and in these circumstances, the reasons given by the trial court are perverse.
Re: Reason No. (v)
33. Side from which and in which the shot was fired, may not necessarily be seen by precision by a witness of a occurrence. Main question is who was the assailant and who was the victim. The law on the point has already been discussed. There is no conflict in medical evidence and eye witness account. In any case, eye witness account could not be rejected there being no suspicion about the person who opened the fire and the person who received the injuries. The reason given by the trial court is perverse.
Re: Reason No. (vi)
34. Sunder Singh reached the place of occurrence on hearing the noise. His reaching at the place of occurrence was during the occurrence itself and there is no reason to hold that he reached the place of occurrence after firing had already taken place. There was no contradiction as is sought to be made out. The reason given by the trial court is perverse.
Re: Reason No. (vii)
35. This reason is without any legal basis. When there is direct evidence, there is no reason to imagine improbabilities.
Re: Reason No. (viii)
36. Merely because Ballistic expert could not give definite opinion, did not create doubt about the case of the prosecution. We have already referred to the legal position that where the weapon is not produced or expert is not produced or it cannot be ascertained that the weapon recovered was used or some other weapon, case of the prosecution could still be proved, if direct evidence was available, as in the present case.
37. In view of above, all the reasons given by the trial court for acquittal of Suraj Mal, Rajpal and Krishan, respondents are perverse and cannot be sustained in law.
38. Accordingly, we allow this appeal. We convict Suraj Mal alias Samman under Section 302 IPC and sentence him to undergo RI for life imprisonment and to pay fine of Rs.5000/-, in default, to undergo further RI for one year. Rajpal and Krishan are convicted under Sections 325/34 IPC and sentenced to the period of custody already undergone by them. Giving benefit of doubt to Ajit Singh and Kapoor Singh, we acquit them.
39. The appeal is disposed of accordingly.