1. The sole appellant and the deceased had amongst them pending proceedings under Section 107/116 of the CrPC in the Court of the Magistrate of the area when the occurrence took place. A month prior to the incident, the appellant was assaulted by some people. He suspected that it was the deceased who was instrumental for it. On 17-11-1982 at about 11.30 a.m., the deceased left his house for an errand and met Jankiram, P.W. 3 on his way. On the deceased asking Jankiram, P.W. 3 to share a cup of tea with him, both came in front of the shop of Nevalram, P.W. 2. At that moment, the appellant is said to have come from the opposite direction with a country made pistol in his hand which he fired at the deceased from a close range hitting him on his chest, as a result of which the deceased fell on the ground dead. The appellant ran away from the spot with the country made pistol in his hand. Jankiram, P.W. 3 went and informed, Bhagwat, P.W. 1, the brother of the deceased about the murder naming the appellant as the assailant. P.W. 1 came to the spot and took stock of the situation and then went to the police station and lodged a report. The dead body was subjected to post-mortem examination. Meanwhile, on arrest of the appellant, he made a disclosure statement under Section 27 of the Indian Evidence Act whereunder he got recovered a country made pistol from the spot he mentioned where he had kept it hidden. The material as collected by the investigation led to the trial of the appellant and consequently his conviction and sentence.
2. It turns out to be that both the supposed eye-witnesses, P.W. 2, Nevalram and P.W. 3, Jankiram had to be declared hostile for the reason that they did not state specifically at the trial that they had seen the accused firing. They however had stated that they had heard the sound of gun fire, and seen the deceased fallen on the spot. Both of them had also stated that they had seen the appellant running away from the spot. One of them stated that he had seen a black object in the hands of the appellant. They were duly confronted with their respective statements made under Section 164 of the CrPC wherein both of them had stated that they had seen the accused hitting the deceased on opening fire from his country made pistol at close range. Be that as it may, P.W. 3, Jankiram could not deny that he had gone and informed P.W. 1, Bhagwat, the brother of the deceased about the incident so as to tell him that it was the appellant who had caused fire arm injuries to the deceased and that he had seen him running away. In this state of evidence, the Court of Session despite declaring P.Ws. 2 and 3 hostile, convicted the appellant for the offence charged because of the statement of P.W. 1 and that of Shyamrao, P.W. 4 before whom such statement had been made. The High Court concurred with that view.
3. It has been urged on behalf of the appellant that when the two supposed eye-witnesses had been declared hostile, there was no material to adjudge the appellant guilty of the offence. This bold argument cannot be accepted in the presence of the evidence of P.Ws. 1 and 4, who immediately after the occurrence were told by P.W. 3 that the deceased had met his death at the hands of the appellant and that P.W. 3 had witnessed it. Leaving apart the statement of P.W. 3 recorded under Section 164 Cr.P.C. and the plea taken by the appellant that it was recorded under duress, the fact remains that when P.W. 3 admitted having said all the same that he had informed the brother of the deceased P.W. 1 about the incident as also had named the appellant as the assailant. Since this witness cannot be permitted to get out of his admission, this must cast reflection on the evidence relating to the occurrence in full measure. Therefore, in our view, the conviction of the appellant on the reasoning adopted by the High Court was well based and in our view unshakable.
4. For the foregoing reasons, we find no merit in this appeal and the same is accordingly dismissed.