JUDGMENT T.P. Naik, J. The accused-appellant Nirbhaisingh has been convicted by the Additional Judge to the 1st Additional Sessions Judge, Bhopal under section 302, Indian Penal Code, for committing the murder of police constable Asghar Ali on the morning of the 4th of June 1967 in the river Narmada between the villages Baneta and Jaminiya and sentenced to imprisonment for life. In the same trial he has also been convicted under section 333 of the Indian Penal Code for voluntarily causing grievous hurt to constable Asghar Ali as also under section 332 of the Indian Penal Code for voluntarily causing hurt to constable Rajendraprasad and sentenced to rigorous imprisonment for a period of two years and rigorous imprisonment for one year respectively. All the sentences have been ordered to run concurrently. The appellant has, therefore, come up in appeal against his convictions and sentences aforesaid. The accused-appellant was wanted in connection with two cases reported against him. One was a report for offences under sections 279 and 337 of the Indian Penal Code dated 27-4-1967. The other was for an offence under section 506 read with section 34 of the Indian Penal Code dated 25-4-1967. It is alleged that the deceased police constable Asghar Ali along with three more constables was deputed by the Station Officer, police station Shahganj, to effect his arrest. It is also alleged that the police had information that the accused was leaving village Baneta for village Jaminiya on the night of the 4th of June 1967. The constables, therefore, decided to apprehend him while he was crossing the river Narmada. Accordingly, police constable the deceased Asghar Ali, police constable Rajendrasingh (P. W. 2), police constable Mithalprasad (P. W. 1) and police constable Moolchand (P. W. 6) along with the chaukidar of village Baneta Barelal (P. W. 3) went to the river Narmada and lay in wait for him. Police constable Asghar Ali was armed with a 12 bore gun belonging to the Station Officer R.P. Singh of police station Shahganj, while the other police constables had canes. Police constable Asghar Ali, police constable Rajendra singh and Barelal waited on the Baneta side of the river while police constable Mithlaprasad (P. W. 1) and police constable Moolchand crossed the river and waited for the accused on the other side of the river from where the road to village Jaminiya lay. Police constable Asghar Ali, police constable Rajendra singh and Barelal waited on the Baneta side of the river while police constable Mithlaprasad (P. W. 1) and police constable Moolchand crossed the river and waited for the accused on the other side of the river from where the road to village Jaminiya lay. The accused-appellant came to the river in his bullock cart which was loaded with husk in the early hours of the morning. He was accompanied by his grazier Gariba (P. W. 5). When the accused-appellant had reached the river and entered it, the police constables Asghar Ali and Rajendrasingh as well as chaukidar Barelal attempted to apprehend the accused. It is alleged that the accused bit police constable Rajendrasingh and chaukidar Barelal in their hands and when the deceased Asghar Ali attempted to arrest him the accused snatched the 12 bore gun, which the police constable carried and shot at him with it, hitting him in the thigh. The deceased police constable succumbed to his injuries on the spot. The accused-appellant threw the gun on the spot of the incident and made good his escape. The accused-appellant abjured his guilt and pleaded that he was a resident of village Baneta and on the fateful morning was crossing the river Narmada in his bullock cart loaded with husk and other implements of cultivation on his way from village Baneta to village Jaminiya. While he was crossing the river, he was surrounded by a number of persons one of whom was carrying a gun. According to him there was a scuffle when the gun carried by the deceased went off accidentally, fatally injuring the deceased police constable Asghar Ali. Alternatively, it was pleaded that he had acted in exercise of his right of private defence as he apprehended death or grievous hurt from the deceased and his companions. He examined no witnesses in his defence but filed certified copies of judgments to show that in both the cases, which were instituted against him, he had been acquitted. The learned trial Judge has convicted the accused-appellant relying on the testimony of Mithlaprasad (P. W. 1), Rajendrasingh (P. W. 2), Barelal (P. W. 3), Gariba (P. W. 5) and Moolchand (P. W. 6). Of these. The learned trial Judge has convicted the accused-appellant relying on the testimony of Mithlaprasad (P. W. 1), Rajendrasingh (P. W. 2), Barelal (P. W. 3), Gariba (P. W. 5) and Moolchand (P. W. 6). Of these. Mithlaprasad (P. W. 1), Rajendrasingh (P. W. 2) and Moolchand (P. W. 6) are the police constables who were the companions of the deceased, Barelal (P. W. 3) was the village chaukidar and Gariba (P. W. 5) the grazier accompanying the accused. In view of their evidence, the learned Judge has negatived the plea of accident as also the plea of self defence. It is not disputed that Asghar Ali is dead and that he died of a gun shot wound. The question is whether the accused deliberately fired the gun at the deceased after snatching it from his hand or whether it (the gun) went off accidentally in the scuffle and thus fatally injured the deceased. If it is held that the gun was fired at the deceased deliberately, the further question will arise whether the accused had acted in exercise of his right of private defence. Examining the evidence of the alleged eye witnesses, we have to bear in mind that the facts they were required to depose to were simple and that consequently there was not much room for contradictions or variations therein. But if, in giving the details of the circumstances under which the gun was fired, they materially differ from one another, a question shall arise whether their bald and bold statement that the accused snatched the gun and fired it at the deceased killing him instantaneously could be implicitly believed. Now before discussing the evidence in detail we may advert to certain unusual features in this case which the prosecution has not satisfactorily explained and which have a bearing on the credibility to be given to the witnesses examined in the case. The first is that it is not explained why it became necessary to lay such an elaborate trap to arrest the accused when he could have been arrested more conveniently in his village Baneta. The accused was a resident of village Baneta. 15 days before the incident he had performed Narmada Pujan during the course of which he had fed a large number of villagers. The accused was not wanted for any serious offence. The accused was a resident of village Baneta. 15 days before the incident he had performed Narmada Pujan during the course of which he had fed a large number of villagers. The accused was not wanted for any serious offence. The reports against him were under section 279, 337 and 506 read with section 34 of the Indian Penal Code in which he was eventually acquitted. There is no satisfactory evidence that the accused appellant was avoiding arrest. As a matter of fact, his openly doing Narmada Pujan would belie it. The prosecution has not disclosed when it became necessary for it to arrest the accused-appellant and what steps it had taken to do so before resorting to the expedient of arresting him when he was in the river crossing it on his way to village Jaminiya. We do not share the opinion of the learned Judge that 'it was not for the prosecution to have excluded the possibility, that the accused could have been arrested 15 days before, by producing the copies of the roznamchas incorporating the reports with dates of attempts made to arrest the accused'; but that it was for the defence 'to have laid before the Court convincing evidence by elicting information in cross-examination' and that the assertions of the prosecution in this behalf were false or untrue. In the first place, this information was specially within the knowledge of the prosecution and, secondly, it was for the prosecution to remove any suspicion on this account and to clarify why it became so necessary to make the arrest of the accused-appellant in this fashion. The second is that though the police constables could themselves have arrested the accused-appellant in respect of offences of which reports had been made at police station Shahganj, the prosecution case is that the arrest was ordered by the Station Officer, R.P. Singh (P. W. 12). If that were so it is not explained why the provisions of section 56 of the Criminal Procedure Code were not complied with. Exhibit P-2, the duty certificate, cannot be said to be in due compliance of the section. And even as regards this (duty certificate) Ex. P-2 which Mithlaprasad (P. W. 1) says was in his pocket and was seized by the Station Officer during investigation, there is no satisfactory evidence of its seizure and no satisfactory explanation is forthcoming why it was not seized. And even as regards this (duty certificate) Ex. P-2 which Mithlaprasad (P. W. 1) says was in his pocket and was seized by the Station Officer during investigation, there is no satisfactory evidence of its seizure and no satisfactory explanation is forthcoming why it was not seized. The third is that it is not explained why the deceased police constable carried a 12 bore gun and cartridges which were not issued to him from the police station. According to R.P. Singh, Station Officer (P. W. 12), the gun belonged to him and was in his quarters on 4-7-1967 while the cartridges were under his bedding. He further says that the deceased constable had not taken the gun and cartridges with his permission. It is again strange that though he missed the gun and the cartridges in the morning, he made no report regarding it nor made any entry regarding their theft in the roznamcha. He also never took any steps against the constable who may have taken away the gun surreptitiously. Even the learned Additional Sessions Judge admits that 'a certain amount of unexplained mystery surrounds about the circumstance how (sic) Asghar Ali succeeded in laying his hands upon the gun'. In our opinion, this circumstance necessitates a close and careful security of the prosecution evidence. The fourth is that the gun, which the deceased Asghar Ali carried, after having obtained it under unexplained suspicious circumstances, was a very defective weapon. According to Nigam, Balistic Expert (P. W. 7) it was a 12 bore double barrelled breach loading, hammerless gun. Although the normal trigger pull of such a gun is about 6-7 lbs., the trigger pull of this weapon was only 2 lbs. According to the witness If the cocked gun is thrown on the ground on the butt end giving in a jerk the gun Article A fires automatically. If the barrel of the gun Article A is struck with some force with any hard substance, the gun discharges. X X X X X X In cases where the trigger pull is low possibility of accidental discharge are there. The expert does not mention regarding its safety catch. When we examined the gun ourselves, we found that though it had a safety catch, it was so iammed that it did not work. X X X X X X In cases where the trigger pull is low possibility of accidental discharge are there. The expert does not mention regarding its safety catch. When we examined the gun ourselves, we found that though it had a safety catch, it was so iammed that it did not work. There is no evidence to show that the police constable Asghar Ali was aware of all these defects and had taken precautions against its accidental discharge. It may well be that he did not know about the defects or may have thought, without properly testing the weapon that the safety catch was on, without realising that it was not on but jammed. Whatever that be, the prosecution has not explained why the deceased was carrying such a gun loaded with cartridges. Now examining the evidence of the eye-witnesses, we find that it is an admitted position that the party of police constables had divided itself into two parties for effecting the arrest of the accused. One party consisting of Mithlaprasad (P. W. 1) and Moolchand (P. W. 6) was sent on the other side of the river while Rajendrasingh (P. W. 2) and Barelal (P. W. 3) along with the deceased remained on the Baneta side of the river. Mithlaprasad (P. W. 1) and Moolchand (P. W. 6) thus claim to have seen the incident when, seeing the cart of the accused on the Baneta side, they started coming towards it. According to Mithlaprasad (P. W. 1) he saw the incident from a distance of about 150 yards and though in the Court of Session he claims to have seen the incident clearly, his earlier statement in his first information report (Ex. P-l) with which he was confronted was: His first information report (Ex. P-1) also does not contain the details of the circumstances under which the deceased sustained the gun fire wound which shows that at that time he knew no more than that there was a gun fire and the deceased had been injured. Similarly, though Gariba (P. W. 5) says that it was not very early in the morning when visibility would be poor, his statement in the committal Court (Ex. D-3) with which he was confronted was Under the circumstances, it appears to us that it could not be said that visibility was very good. Similarly, though Gariba (P. W. 5) says that it was not very early in the morning when visibility would be poor, his statement in the committal Court (Ex. D-3) with which he was confronted was Under the circumstances, it appears to us that it could not be said that visibility was very good. On the other hand, it appears that it was very early in the morning when visibility is poor and that consequently, Mithlaprasad (P. W. 1) and Moolchand (P. W. 6) could not have clearly witnessed the incident from a distance of about 150 yards. This leaves us with the evidence of Rajendrasingh (P.W. 2), Barelal (P. W. 3) and Gariba (P. W. 5). Their evidence also is very discrepant, inconsistent and unconvincing. Rajendrasingh (P. W. 2) and Barelal (P.W. 3) say that they were bitten by the accused appellant. According to Barelal (P. W. 3), his injury was even examined by a doctor but no medical evidence has been produced to corroborate the witnesses on the point. This story regarding the accused appellant biting the witnesses thus cannot be believed. Similarly, the evidence of Barelal (P. W 3) that attempts were made to bind the accused with a rope and that the attempts were unsuccessful appears unconvincing. In any case, there is no satisfactory evidence to support it as the evidence of Barelal (P. W. 3) is not corroborated by any other witness. As a matter of fact, the learned trial Judge had noted that the witness took time to answer every question put to him which showed that he was not a straightforward witness on whose testimony any implicit reliance could be placed. There are also discrepancies in the testimony of Rajendrasingh (P. W. 2), Barelal (P. W. 3) and Gariba (P W. 5) as regards the details of the struggle--from which side the different witnesses attempted to arrest the accused, whether the deceased attempted to climb the cart from its axle or from its plank, how the gun was held by the deceased whether the accused was standing or sitting in the cart when he snatched the gun and fired it at the deceased etc.- which further show that they had no clear picture of how the incident occurred. There is evidence that there was a struggle and it appears to us that in that struggle the gun, which had a trigger with a very light 21 lbs. pull went off. In our opinion, nobody knows how the gun went off and everybody is attempting to reconstruct the scene to the best of his imagination. Our conclusions are borne out from the following statements made by the witnesses in their evidence: Rajendrasingh (P. W. 2): Barelal (PW 3) The aforesaid evidence thus unmistakably proved, that the deceased had a defective loaded gun in his right hand ; that he was attempting to catch hold of the accused by climbing over the cart; that the accused-appellant was on top of the husk which was loaded in the cart; that the accused-appellant was attempting to resist; that there was a scuffle between the deceased and the accused when the accused-appellant caught hold of the gun from its butt end ; that the accused-appellant was quite two feet or more above the head of the deceased because the accused-appellant was on top of the cart while the deceased was either standing on the axle or on the plank of the cart; and that the gun got fired and the pellets struck the deceased in the upper part of the right thigh. In our opinion, the gun could not have hit the deceased in his thigh, if it had been fired by the accused-appellant in the manner suggested by the witnesses. We also do not feel conviced that the gun was snatched from the deceased by the accused-appellant and was then deliberately fired at the deceased with intent to kill him. The evidence on record does not and cannot be said to have established the facts necessary to bring home the guilt to the accused-appellant under section 302 of the Indian Penal Code. In our opinion, it is reasonable to hold that the gun went off accidentally either in the scuffle or after it had come into the hand of the accused-appellant. The conviction and the sentence of the accused appellant under section 302 of the Indian Penal Code are, therefore, hereby set aside. In our opinion, it is reasonable to hold that the gun went off accidentally either in the scuffle or after it had come into the hand of the accused-appellant. The conviction and the sentence of the accused appellant under section 302 of the Indian Penal Code are, therefore, hereby set aside. As regards the convictions of the accused-appellant under section 333 of the Indian Penal Code, for causing grievous hurt to Asghar Ali, and under section 332 of the Indian Penal Code, for causing hurt to Rajendrasingh, we are of opinion that on the acquittal of the accused-appellant of the offence under section 302 of the Indian Penal Code on the ground that the firing of the gun was accidental, his conviction under section 333 of the Indian Penal Code cannot be sustained. He is, therefore, acquitted of that offence also. His conviction and sentence under section 333 of the Indian Penal Code, are hereby set aside. As regards the offence under section 332 of the Indian Penal Code, we have held that in the absence of corroboration by the medical evidence, the allegation of Rajendrasingh (P. W. 2) that he was bitten by the accused-appellant could not be believed. His conviction and sentence under section 332 of the Indian Penal Code are also, therefore, hereby set aside. The appeal is allowed.