JUDGMENT 1. - This is an appeal by the State against the order of acquittal by the learned Sessions Judge, Shri Ganganagar dated 28.5.1970. Accused Het Ram and Parman were challenged under Sections 302/34 and 307, and Section 302, IPC and Section 27 of the Indian Arms Act. The learned Sessions Judge acquitted all the accused of the charges framed against them. Feeling aggrieved by the judgement of the learned Session Judge, Shri Ganganagar, the State has come up in appeal. 2. The prosecution story, in brief, is that Bheemsen sent a written FIR to the Police Station, Tibi through one Atma Ram. Haru Ram, however, met Atma Ram on his way to the Police Station, Tibi, and Atma Ram gave this written report to Haru Ram for presenting it to the Police Station, Tibi, Haru Ram, accordingly, presented this report and added that after the departure of Bheemsen from village Peerkamariya, Brij Lal had died. 3. The salient features of the First Information Report are that Haru Ram and Khayali Chamars were "siris" (partners) of Bheemsen. In the evening of 17.3.1969, the accused Het Ram, Parman and Raja Ram along with two other persons and Jagdish fired towards the house of Haru and Khayali Chamars. On 18.3.1969, Bheemsen sent his "siri" Brijlal to call Khavali and Haru. Bheemsen also followed Brij Lal. When Brijlal reached Haru Chamar's house, the accused Het Ram, Raja Ram and one unknown person, who were standing on the roof of Het Ram's house abused Brij Lal. Parman fired towards Brij Lal, which did not hit him. When Brij Lal began entering the "bakhal" of Khayali's house Raja Ram with an intention to cause his death, fired at him with his rifle hitting Brij Lal on his back. Het Ram also fired, which was a miss Bheems on ran towards the house of Beniwal crying to Haru and Khayali to carry away Brij Lal. The FIR further reveals that the intention of the accused persons was to kill Bheemsen and Brij Lal. It was also alleged in the FIR that the Police Officers of P.S. Tibi were in collusion with the accused persons. 4. A case under Section 302/34, IPC was registered against the accused persons. Accused Raja Ram was absconding and hence ASI Shri Summer Singh applied to the Magistrate concerned for getting the warrent of arrest issued against him. It was also alleged in the FIR that the Police Officers of P.S. Tibi were in collusion with the accused persons. 4. A case under Section 302/34, IPC was registered against the accused persons. Accused Raja Ram was absconding and hence ASI Shri Summer Singh applied to the Magistrate concerned for getting the warrent of arrest issued against him. The accused Het Ram and Parman were arrested on 8.4.1969, and latter on Raja Ram surrendered himself. The investigation of the case was, later on, taken up by Dy. S.P. Shri Dalchand. 5. All the three accused persons denied having fired at Brij Lal, or towards Bheemsen. It was also alleged by them that they have been falsely implicated by Bheemsen who was on in criminal terms with them. Accused Het Ram has further stated that Khayali, Haru, Nathi and Arjun are "siris" of Bheemsen. It was also stated that he and the other two accused persons are eye-witnesses against Bheemsen in the murder case of Bahadur. He has further stated that on the day of occurrence when he was sleeping on the roof of his house, he had heard the report of a fire from the direction of Haru's house and saw Bheemsen loading his gun, and heard Brij saying not to kill him. 6. The prosecution has examined 12 witnesses in support of the case and four witnesses were examined on behalf of the defence. Bheemsen (PW 1) Khayali (PW 2) and Haru (PW 5) are the alleged eye-witnesses in the case. Mr.Nathi (PW 7) is said to have seen Brij Lal lying injured soon after the she came hearing the report of the firing (PW 6) Arjun Singh is the brother of the deceased Brij Lal, who has stated that when he heard from Surja's wife that Raja Ram, Het Ram and Parman had fired at his brother Brij Lal, he went to Peerkamariya, and found him dead. He has also stated that the accused Parman accompanied by the Sarpanch Devi Lal came to his residence and told him that they would give 10 bighas of agricultural land, or L 20,000/-, in cash, if he did not name them as responsible for the murder of Brij Lal, but instead named Bheemsen as the assailant of Brijlal. 7. He has also stated that the accused Parman accompanied by the Sarpanch Devi Lal came to his residence and told him that they would give 10 bighas of agricultural land, or L 20,000/-, in cash, if he did not name them as responsible for the murder of Brij Lal, but instead named Bheemsen as the assailant of Brijlal. 7. On behalf of the Sate, it was contended that the appreciation of evidence by the learned Sessions Judge was not reasonable, and that the guilt of the accused persons had been brought home and as such, the learned Sessions Judge erred in acquitting the accused persons. It was also contained that if the direct evidence is convincing, and insires the confidence of the Court, then even if the medical evidence does not wholly support the prosecution story, then too, a conviction can be based placing reliance on the direct testimony. It was then contended that if there is conflict between the direct evidence and the medical evidence, then the direct evidence must prevail over the medical evidence. In the tentative, it was contended that there is no conflict between the direct evidence, and the medical evidence in this case. It was also contended that with a view to better appreciate the medical evidence, the statements of Dr.Prakash Dayal was recorded on 8.7.1975. The statements of the accused Parman, Raja Ram, and Het Ram were also recorded on the same day, that is, on 8.7.1975. It was, thus, contended that taking an over all appraisal of the direct and the medical evidence, it would be found an over all appraisal of the direct and the medical evidence, it would be found that really there is no conflict between the two evidence, & that the prosecution has succeeded in satisfactorily bringing the guilt home to the accused persons. 8. On behalf of the defence, it was contended that the prosecution story is wholly untrue. It was also contended that in this particular case, there is enough evidence on record to show that the prosecution has tried to fabricate the evidence, and as such, the Court cannot place any reliance on such fabricated evidence. It was also contended that the medical evidence totally destroys the prosecution story, and as such, there is no occasion for any interference by this Hon'ble court in the order of acquittal passed by the learned Session Judge. It was also contended that the medical evidence totally destroys the prosecution story, and as such, there is no occasion for any interference by this Hon'ble court in the order of acquittal passed by the learned Session Judge. I was also contended that a Court of appeal shall be very slow to interfere in an order to acquittal unless it is established that appreciation of evidence by the learned lower Court is manifestly erroneous or is perverse or unreasonable. 9. PW/I Bheemsen, who submitted the written First Information Report to the Police Station. Tibi, has stated that on his return on 17.3.1969 from the Court of SDO, Hanumangarh to his village, he heard some reports of fire towwards the house of Het Ram. Next day, Brij Lal came to him and told him that on the previous evening when he, Haru and Khayali were coming from the Rohi, Het Ram, Parman, Raja Ram, Jagdish and two other persons, who could not be indentified by him, fired towards them. He asked Brij Lal to call Haru and Khayali to go to the fields. Brij Lal went to call them, and this witness followed him. When Brij Lal was 4 or 5 poundas from Khayali and Haru's house. Parman, Het Ram Raja Ram and one more person standing on the roof on Het Ram's Kotha fired towards Brij Lal. Parman and Het Ram had 1 bore guns with them, while Raja Ram had a rifle. Parman fired towards Brij Lal, but it won't wide Raja Ram then fired hitting Brij Lal, as a result of which Brij Lal stumbled down. He went to Hannumangarh with Davaram and got the FIR written by a Munshi named Murari. He sent one copy of the FIR so written by Munshi Morari of the Thanbedar, and the other copy to the S.P. Het Ram & Parman are real brothers of Bheemsen and Raja Ram is his real nephew. The daughter of Bheemsen was engaged to the son of Dunger Ram of village Saliwala, but as the accused and his other brother Sultan did not like this relationship, there was a quarrel resulting in the murder of Bahadur, the Bhanja of Bheemsen. The witness has further stated that Bahadur was murdered about two year back and that he, Doongar, Daulatram, Rajaram, Chuni and Krishan are accused in that eye witnesses in that case. The witness has further stated that Bahadur was murdered about two year back and that he, Doongar, Daulatram, Rajaram, Chuni and Krishan are accused in that eye witnesses in that case. The witness has admitted that inimical terms existed between him and his brother. The house of his brother Sultan is adjacent to his house. Het Ram also lives with Sultan. Het Ram's house is 100 or 125 poundas from Bheemsen's house. He has further stated that Khayali and Haru reside in Haru's house with their families, and Brijlal also slept there at times. The parapet wall of Het Ram's house is about 5 or 51/2 ft high and the lower parapet wall along with it is about 9 or 10 inches high. The height of the entire parapet wall is about 5 or 51/2 ft. If one stands on the lower parapet wall the main parapet wall comes near about the chest of a person. This witness had gone on the roof of Hetram's house with the police. He has stated that it is wrong that a person cannot stand on the lower parapet wall. The three accused commenced abusing when Birja remained 4 to 5 paunds towards the accused persons, and noticed that two of the accused person had 12 bore guns;and one of them had a rifle. All the three accused had placed the barrels of the guns, and the rifle on the parapet wall and nearly 11/2 ft thereof was projecting outside. As soon as Rajaram fired, he saw Brij Lal falling down, and while falling down, he had placed his hand on his back. He has further stated that he had written in the report to the police that Brij Lal had placed his hands after receiving this fire. This witness has not, therefore, exactly named Haru as an eye witness in the reports Ex P/1 and Ex P/2 and in the statement before the police. In the reports Ex P/1 and Ex P/2, it has been mentioned that he and Khayali had seen the incident. Though, he had given name of Haru, but he does not know whether the Munshi had written his name or not. This witness had heard 10 to 15 reports of the fire on the previous evening at about sun-set; but no report was lodged regarding this firing with the police. Haru, Khayali and Gorkha are real brothers. Though, he had given name of Haru, but he does not know whether the Munshi had written his name or not. This witness had heard 10 to 15 reports of the fire on the previous evening at about sun-set; but no report was lodged regarding this firing with the police. Haru, Khayali and Gorkha are real brothers. The witness has further stated that there is an opening in the parapet wall of Hetram's roof. He cannot say how many Loles there are. These holes are about 1 to 2 ft. long and 3 or 4 fingers wide. The firing was made at Brijlal from a distance of nearly 30 paundas. There is a flour machine and a shop of Chimanlal on the north of Haru's house in that very chowk. Mohanlal and Sohanlal's shops are adjoining to that of Chimanlal. A private Doctor's shop is also sitated in front of Haru's house. Jagdish Sharma's flour machine is adjacent to that of the Doctor's shop. Laxman Gogra's house is adjacent to that of Haru's house. 10. PW/2 Khayali stated that Parman abused him while standing on the roof of Het Ram's house. Parman fired but the same did not hit Brija. Raja Ram, Het Ram and one other person were also standing alongwiith Parman at Hetram's house. Raja Ram thereafter fired hitting Brija at his abdomen, as a result of which Brija stumbled down. When Brija was taken inside, he only told that Raja Ramm had fired at him. He then placed Brija on a cot, and a Government Doctor who was going by that way, was called by him to bandage Brija. Brija expired an hour or an hour and half thereafter. He has stated that on the previous evening when he, Brija and Haru were coming with a cart Parman, Rajaram, Het Ram, Jagdish and two other persons abused and also opened fire at them. These persons were shouting and telling them that they should leave Bheemsen's work other wise they would be killed. About 15 to 16 fires were made by the accused party. All the four were armed with gunds. None of the pellets hit the cart or the bullocks. None of the persons were hit. They did not notice any pellet or bullet or wad on the ground or in the wall. About 15 to 16 fires were made by the accused party. All the four were armed with gunds. None of the pellets hit the cart or the bullocks. None of the persons were hit. They did not notice any pellet or bullet or wad on the ground or in the wall. The three accused were standing on the roof of Hetram's house when they fired at Brij Lal in the morning. The barrels of the gunds were placed on the top of parapet wall at the time firing in the morning one barrels were projecting about a foot on the parapet wall. Mst. Sita, wife of the Brij Lal, reached before noon. The Doctor who attended Brija works under the Government Doctor. The witness does not know if his name is Ramesh. The witness further states that it is wrong that Ramesh had asked as to who had fired at Brija and he replied that he did not know. Then he had categorically stated that Raja Ram had fired at him. The witness was confronted with Ex D/3, his statement in the committing Court. He denied having not told there about this incident. The witness his further stated that it is wrong that Bheemsen hit Brija while in a sitting position, and Brija standing in his Bakhal with Brija's consent. The witness has further stated that he and Haru were in their fields when Brija was fired at. 11. PW/5 Haru in thhe days of occurrence was residing at Peerkamariya and was "siri" of Bheemsen. When Brij Lal came to Haru's house, Parnan fired at him, which missed. Then Raja Ram fired hitting Brija at his abdomen. Brija fell down with half of his body living inside his Bihal and outside. After Brija was taken inside he uttered twice "Raja more goli mardi", and he did not speak thereafter. The witness, Khayali and their wives were present at that time. Brija survived for an hour, or an hour and a half after firing. Brija had not named Parman, and Hit Ram in firing. The witness has further stated that it is wrong to suggests that a person standing in the position stated by him could not see the accused persons standing on Hetram's roof. The witness was confronted with his statement. Ex D/4 before the police. Brija had not named Parman, and Hit Ram in firing. The witness has further stated that it is wrong to suggests that a person standing in the position stated by him could not see the accused persons standing on Hetram's roof. The witness was confronted with his statement. Ex D/4 before the police. The version that the Doctor was called, and that he bandaged Brija is not mentioned in Ex D/4. It is also not mentioned that the accused had placed the butts of the guns against their shoulders when they were firing placing the grounds on the parapet wall. The witness has further stated that it is mentioned in the endorsement C to D of Ex D/2 that when he had seen the occurrence, Brij Lal was not speaking when the Doctor came. The Doctor had come 2 or 4 minutes after Brij Lal had received the fire. 12. PW/6 Arjan is the brother of the deceased Brij Lal. On hearing the weeping of Brija's wife, he made enquiries as to who told her that Raja Ram, Het Ram and Parman had fired at Brija. He is the resident of Tandurwali from where he came to Peerkamariya, Khavali, Haru and their wives who were present, told them that Raja Ram had fired at Brija as a result of which he died. Three days thereafter Devi Lal Sarpanch and Parman came to him in the night. They told him that they would give either ten bighas of agricultural land or L 20,000/- in case he did not name them as responsible for firing at Brij Lal. 13. PW/7, Mst. Nathi is the wife of Khayali. On hearing the reports of gun fire, she came out of the house, and saw Brij Lal lying infured and when she got near Brij Lal she saw Het Ram, Parman and Raja Ram and one other person standing on Hetram's roof. Het Ramm, Parman and Raja Ram were having guns in their hads and the fourth one was bare handed. She has further stated that she did not know whether the accused were holding double barrel gun or a single barrel gun at that time. She does not know how double barrel gunds have been assigned in Ex D/5. But Het Ramm and Parman accused had placed the barrels of the gun on the top of the parapet wall. 14. She has further stated that she did not know whether the accused were holding double barrel gun or a single barrel gun at that time. She does not know how double barrel gunds have been assigned in Ex D/5. But Het Ramm and Parman accused had placed the barrels of the gun on the top of the parapet wall. 14. PW/9 Atma Ram is the person who had carried the written report sent by Bheemsen. Haru met him near the Police Station, & told him that Brij Lal had been killed. He then gave these papers to Haru, and told him that the same had been given to him by Bheemsen. This written report was presented by Haru to the Police at the Police Station, Tibi. 15. The post-mortem examination on the dead body was performed on 18-3-1969, by Dr. Sant Lal, PW/3. He found the following external infuries: 1. A lacerated would 1/2" x 1/2" going deep x abdomental cavity on right side of abdomen from 4" below umblicus and 5" above right hip. 2. A lacerated would 11/2" x 1" x going deep x abdominal cavity on left side of back 9" above left hip with fracture left hip bone. On opening the dead body, he found the following:- 3. Peritoneum: Lacerated badly under injury No. 1, 2 and 3, Small intenstine and large intestine both lacerated badly at many places cavity full of blood. 4. Fracture of left hip. 16. In the opinion of this witness, the death was caused due to shock and internal haemorrhage. He further stated that the infury No. 1 described above, has got inverted margin and ecchymosed and No. 2 has got irregular and everted margins. Both are communicating and are result of single infury. The hip bone was fractured at its illium part. The exist would was nearly 3 to 4 inches higher in level than the entry would. The fracture is at the same site as the wound of exit i.e. the fracture of the bone. The fracture was caused by the impact of bullet. This witness was declared hostile, and was cross examined by the learned Public Prosecutor. The witness was confronted with his statement before the police Ex P/11. The witness has further stated that it is wrong that the bullet had defected upward after fracturing the bone. The fracture was caused by the impact of bullet. This witness was declared hostile, and was cross examined by the learned Public Prosecutor. The witness was confronted with his statement before the police Ex P/11. The witness has further stated that it is wrong that the bullet had defected upward after fracturing the bone. He had probed the exit and entiry woulds to determine the course of travel of the bullet. The bullet had crossed through the hip and then exited. The witness has further stated that the entry would is 4" below the umblicus. The exit would is 9" above the left hip level. The entry would is 5" above the right hip level from entry would to the exit would, the bullet had to travel straight upward without any deflection of the bullet. The witness has further stated that these infuries may have caused instantaneous death of the deceased, and he must not have survived even for five or seven minutes nor he would have spoken. 17. Dr.Prakash Dayal, Medical Jurist and Head of the Department of Florensic Medicine, Medical College, Jodhpur was examined by this Court on 8.7.1975. The witness has stated that where a fire-arm is used from a distance of about 150 feet a height of about 10 feet and the missile strikes the injured at the level of hip such injuries as are found in Ex.9 can result. On such a distance 15 feet height will not make much difference. Considering the injuries described above, the witness was of the opinion that the instantaneous death is not likely. It will take time at least about 15 to 20 minutes, and that during that time the infused would be able to speak. The witness further stated that if the entry and exit would are found communicating it implies that the missile took a straight course. In case of an exit would situated at 2" above the hip joint and fracture of the hip bone at the site of the exit would the illium bone will be fractured and intact crest is the top most surface of illium bone and it may also be fractured. The witness has further stated that when a firearm is fired from a short distance from a height the direction of the would will be down wards. The witness has further stated that when a firearm is fired from a short distance from a height the direction of the would will be down wards. But this downward direction will become less with the increase in the distance between the injured and the assailant. 18. The Defence examined DW/5, Dr.S.K.Pandey who is Professor of Surgery, Head of Surgery Department, Medical College, Jodhpur. The witness stated that injury No. 9 is the exit would situated at a higher level than that of injury No. 1 by about 4". The fact that the entry would is at a lower level than the exit would, the person firing the fire-arm should have been at a lower level than the victim. He further stated that if the entry would and the exit would are found communicating with each other then it will indicate a straight course in which the bullet travelled. If the person firing the firearm is at a height of 10 to 15 feet from the place where the victim is standing, them the bullet's course should be upward to down ward. The person may survive for three to four minutes, and the other may survive for a longer period. All depends upon the rate of bleeding. The witness further stated that taking both the hips are at the same level and when the post-mortem report says that the entry would is 4 higher than the hip joint, it becomes the same that toe exit would is four to five inches higher than the entry would. 19. The defence also examined Shyam Narain Sharma, who was the Assistant Director in the Institute of Forensic Science and Criminology under the Home Ministry of the Government of India. He had worked as Fire-arm Expert from 1946 till his retirement in 1973. During his tenure he had examined more than five thousand cases relating to firearms. He appeared as a ballistic expert in the Court as witness in more than 2000 cases. The witness stated that the exit would was at a higher level than the entry would by 4". If the entry would and the exit would are found communicating, then it wound mean that the bullet had taken a straight course. He appeared as a ballistic expert in the Court as witness in more than 2000 cases. The witness stated that the exit would was at a higher level than the entry would by 4". If the entry would and the exit would are found communicating, then it wound mean that the bullet had taken a straight course. The witness further stated that he took the level of the entry and exit would and then extended the line between the two points and then came to the conclusion that the firer was at a distance of 10' from the victim. He also calculated the distance by extending the line between the exit and the entry woulds to the ground level. 20. PW/8 Gopal Singh was the ASI & in charge of the Police Station Tibi on 18.3.1969. Haru Ram submitted Ex P/2 before him at the police station at 11.30 a.m. Hetram also lodged a report on 18.3.1969 at 8.45 p.m. The witness then went to the site, and found the dead body of Brij Lal lying on a cot in the "Bakhal" of Haru and Khayali. He seized the blood stained earth lying in the "Bakhal" and sealed it vide Ex P/5. The statement of Dr. Sant Lal Ex P/11 was recorded by him. He reached the spot of occurrence at about 12.30 p.m. He recorded the statements of Khayali, Haru and Mst. Nathi after 3 p.m. The statement of Haru was recorded on 28.3.1979, which is Ex P/4. The statement of Haru was recorded on 18.3.1969, which is Ex P/6. The investigation of this case was taken up by Sumersingh, SHO on the morning of 19.3.1969. Later on, the Dy.S.P. took up the investigation on 28.3.1969. No blood was found at the place where Brij Lal was fired at. There are shops & fiour machines adjacent to this Midan in the north.No wad or pellet was available near Haru's wall or at the spot of occurrence or in the adjoining area despite search, nor any bullet was found there. The foundation parapet wall is 8" high from the roof, and thereupon exists the remaining parapet wall. The total parapet wall is 5 ft. 4 inches high from the roof. The witness cannot say if one standing on the roof of Hetram can aim at the place where Brij Lal was shot. The foundation parapet wall is 8" high from the roof, and thereupon exists the remaining parapet wall. The total parapet wall is 5 ft. 4 inches high from the roof. The witness cannot say if one standing on the roof of Hetram can aim at the place where Brij Lal was shot. There are 71/2" x 21/2" six openings in the whole of this parapet wall. The dead body of Brija was dressed at the woulds. There was no blood on s examined Ramesh Chaprasi of Dispensary Peerkamariya. 21. PW/10 Dal Chand was Deputy Superintendent of Police, Hanumangarh. The investigation of this case was taken up by him on 1.4.1969 under the orders of S.P. Ganganagar. The witness has denied that the accused Hetram was tortured even to the extent of burning his had. 22. PW/11 Sumer Singh was the SHO of Police Station, Tibi. He has stated that he did not go on the roof of Hetram's house, but he had got the parapet wall measured. He has further stated that he had gone to the roof of Hetram's house along with the Dy. S.P. during the investigation. The Addl. S.P. as well as the S.P. had gone to the spot of occurrence. He does not know whether those officers had found that firing was not possible at the alleged spot from the top of parapet wall. The witness did not remember if the foundation parapet wall projects out by two inches beneath the upper parapet wall or how much. The witness has further stated that Peerkamariya is four miles from Tibi. Tibi is 10 or 12 miles away from Hanumangarh. 23. The statements of the accused persons were recorded under section 342, Cr.P.C. on 14.3.1970. The accused denied having committed any offence and contended that they have been falsely implicated. 24. The defence examined DW/1 Guru Charan Singh who is Patwari of the Halka Peerkamariya. His evidence is regarding the existence of a "bara". The learned counsel for the accused categorically stated before the Court that he would not argue about the existence of "bara", and as such; it is not necessary to enter into the discussion of that evidence in this case. 25. DW/2 Ladhu Ram is also with regard to Bara, and there is not necessity of appreciating his evidence also. DW/3 R.C. Verma is Doctor, who examined Het Ram on 22.4.1969. 25. DW/2 Ladhu Ram is also with regard to Bara, and there is not necessity of appreciating his evidence also. DW/3 R.C. Verma is Doctor, who examined Het Ram on 22.4.1969. For the appreciation of the points involved in the appeal the evidence of Dr. R.C. Verma is hardly relevant. 26. DW/4 is Shri Chand. He is a clerk in the office of District Magistrate, Shri Ganganagar. He has produced a register of arms. His evidence is also not relevant for the decision of the present appeal. 27. In behalf of the State, it was contended that the motive for murdering Brij Lal was to terrorise the "siris" and labourers of Bheemsen not to go for agricultural operations on his field. It was also contended that from the statement of PW/1 Bheemsen, PW/2 Khayali and PW/5 Haru, it was clearly established that Brij Lal died because of the gun shot injury of Raja Ram. The prosecution story also finds support from Ex P/1. FIR lodged by Bheemsen. It was also contended that there is nothing wrong in the statements of these witnesses, and the direct evidence of these witnesses have brought the guilt home to the accused. It was further contended that there is evidence on record to show that on the previous evening these persons fired when Brij Lal, Haru, and Khayali were returning home from the fields. It was further contended that the dying declaration of Brij Lal in the presence of Khayali and Haru proves the guilt of the accused. The conduct of the accused also lends support to the prosecution story, in as much as Raja Ram absconded from this village. There is evidence that Parman approached PW/6 arjan accompanied by Devi Lal Sarpanch with an offer of ten Bighas of agricultural land or L 20,000/-. It was contended that the suggestions made on behalf of the defence in the cross examination of various witnesses also lend support to the prosecution story. 28. It was also contended that the post mortem examination report Ex P/9 supports the prosecution story. It was further contended that the statement of Dr. Prakash Dayal also lends support to the prosecution case. In the alternative, it was contended that if there is conflict between the direct evidence and the medical evidence, then the direct evidence should be given credence, as Dr. It was further contended that the statement of Dr. Prakash Dayal also lends support to the prosecution case. In the alternative, it was contended that if there is conflict between the direct evidence and the medical evidence, then the direct evidence should be given credence, as Dr. Sant Lal PW/3, who performed the post-mortem on the dead body of Brij Lal, was declared hostile. It was further contended that if a gun is fired from a distance of 150' from a height of 10' to 15' then the bullet shall travel almost in straight line, and downward trend would be imperceptible. It was also contended that a bullet may deflect on receiving resistances from the tissues, mussles or when it strikes the bone. 29. On behalf of the defence, it was contended that it is an admitted position that Bheemsen was on a intmical terms with his other brothers, namely Het Ram Parman and Sultan Singh. There are number of criminal Litigations between the parties, and Bhadur, the real Bhanja of Bheemsen was murdered. It was also contended that the would of exit is 4" higher than the wound of entry. This itself concludes that assailant was at a lower level than the victim. It was further contended that according to the prosecution story Hetram and others were standing on the parapet wall of Hetram';s house and the victim Brij Lal was on the ground. This prosecution story is totally negatived by the medical evidence and as such, the prosecution story could not be relied upon. It was further contended that the medical evidence, in such circumstances, should be taken as convincing and conclusive. It was also contended that the investigation of the case changed number of hands, and the statement of Haru was first recorded on 18.3.69 and then on 28/3/1969. These two statements of witness are Ex D/4 and Ex D/6, and a comparative reading of these two statements would go to show that the case has been fabricated against the accused persons with an active connivance of the police. It was further contended that Dr. Sant Lal PW/3 has denied having made any statement before the police which is Ex P/11. It was also contended that this is abnormal feature in the case that the statement of the medical jurist was recorded by the police, and that the medical jurist was then declared hostile by the prosecution. It was further contended that Dr. Sant Lal PW/3 has denied having made any statement before the police which is Ex P/11. It was also contended that this is abnormal feature in the case that the statement of the medical jurist was recorded by the police, and that the medical jurist was then declared hostile by the prosecution. The evidence of the jurist did not support the prosecution story. It is further contended that the incident of the previous evening i.e. of 17th March, 1969 was totally fabricated in as much as that though there were 15 or 16 rounds of fire, not a pallet, bullet or wad or any other incriminating article was recovered and nobody was hit. Even the cart or bullock was not hit. It was also contended that as the parapet wall was 5" 4" high, and as stated by the prosecution evidence, the barrels of the grounds were projecting from the parapet wall about 1" or 11'2" ft., & in such a position no fire could possibly be made as the butt of the gun would not be placed on the shoulders of the person using the fire-arm. It was also contended that if certain questions were put in the cross-examination, on behalf of the defence, it is not proper to draw an inference against the accused that he admits the fact referred to therein. 30. On behalf of the State, reliance was placed on Mohan Lal v. The State, ILR (1960) 10 Raj 1200 , wherein it has been held as under:- "It is hardly fair to expect a complete and perfect correspondence between the medical evidence and testimony of eye-witnesses. The court must carefully examine the discrepancies and if it is reasonably open to arrive at a substantially true version of the prosecution case, the court should not adopt the easy course of throwing away the prosecution case on the ground of alleged discrepancies between the medical evidence and the testimony of eye-witnesses". 31. Reliance was also placed on Arun Kumars v. State, AIR 1962 Cal 504 , wherein it has been observed as under:- "Medical evidence is hardly conclusive, and decisive, because it is primarily an evidence of opinion and not of fact. The Court has to consider not merely medical evidence but also the other evidence and circumstances appearing on the point." 32. The Court has to consider not merely medical evidence but also the other evidence and circumstances appearing on the point." 32. Reliance was also placed on Kalyan v. The State, 1975 WLN (UC) 160 , wherein the following observations were made:- "The medical evidence also lends full assurance of the weapons used by these accused in committing the murder of the two persons. In view of the unimpeachable evidence led by the prosecution, we attach no importance to the failure on the part of the prosecution to explain the head injury on the person of Daulatram." 33. With regard to the scope of jurisdiction of the appellate Court in cases of acquittal's the learned counsel for the State relied on Lekha Yadav v. State of Bihar, AIR 1973 SC 2241 , wherein the following observations were made:- "The High Court on appeal from acquittal should bear in mind that there is an initial presumption in favour of innocence of an accused which the trial Court having acquitted him is further strengthened to some extent, but certainly not weakened. The correctness or otherwise of the conclusions of the trial Court is always open to examination. But the Court should not ignore the importance of the opinion of the trial Court. Where however it is found that the trial Court has not only ignored but even misread part of the evidence and as a result there of his arrival at conclusions which on proper appraisal and reading of the evidence would be erroneous and unsustainable, the High Court, on appeal from acquittal, is competent to reverse these conclusions." 34. Reliance was also placed on Sohrab v. State of M.P., AIR 1972 SC 2020 , wherein it has been observed as under:- "Though no limitation can be placed upon this power in exercising the power the High Court should and will always given proper weight and consideration to such matters as (1) the view of the trial Judge as to the credibility of the witnesses: (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witness." 35. Reliance was also placed on S.M. Nair v. State of Kerala, AIR 1976 SC 1857 , wherein it has been held as under:- "In an appeal under Section 417 against an order of acquittal the High Court has full power to review the evidence on which the order of acquittals was founded and to reach the conclusion that upon the evidence the order of acquittal should be reversed. But before reaching its conclusion upon facts the High Court should give proper weight and consideration to such matters as (1) the view of the trial judge as to the credibility of the witness; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any real and reasonable doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. The High Court should also take into account the reasons given by the Court below in support of its order of acquittal and must express its reasons in the judgement which lead to it to hold that the acquittal is not justified.Further, if two conclusions can be based upon the evidence on record, the High Court bound disturb the finding of acquittal recorded by the trial Court. It would follow as a conoliary from that if the view taken by the trial court in acquitting the accused is not unreasonable the occasion for the reversal of that view would not arise". 36. On behalf of the State, reliance was place don the following paragraph, at page 138 of Modi's Medical Jurisprudence and Toxicology (1975 Edition) to who that Dr. Sant Lal did not give the correct statement when he said that the process of digestion stops the moment a person dies:- "It must also be remembered that the process of digestion in normal healthy persons may continue for a time after death." 37. Sant Lal did not give the correct statement when he said that the process of digestion stops the moment a person dies:- "It must also be remembered that the process of digestion in normal healthy persons may continue for a time after death." 37. Reliance was also placed on the following observations at page 220 of Modi's Medical Jurisprudence & Toxicology to show that the bullet could take a very erratic and unusual corse while passing through the body:- "While searching for a bullet it must be borns in mind that it could take a very erratic and unusual corse while passing through the body. In the case of suicide the bullet entered the month, and was found lodged under the left scapula after a good deal of dissection as the post-mortem examination. In another case, a man who was working in a field was shot in mistake for a black buck while in a squatting position. On post-mortem examination a bullet was found to have entered the outer side of the left arm and came out at its inner side. It again entered the body at the second left inter-costal space and the left lung out of it at its root, entered the right lung near its root, passed out of its base, and lodged itself in flattened condition on the inner side of the right eight rib causing its fracture." 38. Reliance was also placed on the following observation in Modi's Medical Jurisprudence and Toxicology regarding the direction from which the weapon was fired;- "In some cases it is difficult to determine the direction as the bullet is so often deflected by the tissues that its course is very irregular." 39. Reliance was also placed on the following observation in Taylor's Principles and Practise of Medical Jurisprudence:- "The process of digestion does not cease at death indeed the stomach may digest itself after death." 40. Reliance was also placed on the following observation in Taylor's Principles and Practise of Medical Jurisprudence:- "The process of digestion does not cease at death indeed the stomach may digest itself after death." 40. Reliance was also placed on the observations in Taylor's principles and Practise of Medical Jurisprudence that:- "But high velocity bullets are more easily deflected from their original course even by slight obstacles and remarkable damage may result from the physical forces disseminated." It has been further observed that: "The bullet generally has a tendency to continue in a straight line from the point of entrance to the point of lodgement, to a point of deflection or the would of exit, so that, if the internal would be straight, this straight line indicates the weapon was pointed when fired." 41. Reliance was placed on the observations made in Parikh's 'A' Simplified Textbook of Medical Jurisprudence and Toxicology" wherein it has been observed that:- "The bullet takes a very erractcard circuitous course while passing through the body and should be located by means of x rays in the living persons." "At the close range, the entry would being split by blast is larger than the exit unless the bullet comes out sideways or carrying bone with it." 42. The following observations were relied in Keith Simpson's Forensic Medicine at page 74:- "At close range the entry wound, being split by blast, is larger than the exit unless the bullet comes out sideways, or carrying bone with it. At more distance range the entry and exit are the same size." 43. On behalf of the accused respondent, reliance was placed on Lila Dhar v. The State, 1957 (2) ILR Raj 1031 , wherein the following observations have been made:- "In cross-examination questions are not always put in order to establish cross-examiner's case but very often they are also put to put off the witness or to bring out discrepancies in the evidence or to test his veracity or to impeach his credit. Therefore, simply because certain questions are put to witnesses in their cross-examination by the accused, it is not proper to draw an inference against the accused that he admits the facts referred therein to." 44. Therefore, simply because certain questions are put to witnesses in their cross-examination by the accused, it is not proper to draw an inference against the accused that he admits the facts referred therein to." 44. Reliance was also placed on Nawal Singh v. State, 1956 RLW 35 , wherein the following observations have been made:- "The mere fact that an accused is found untraceable for sometime after the crime does not necessarily show that he had become untraceable on account of the consciousness of the built. Not all men have got enough courage to stand a trial when they find themselves falsely involved in a serious criminal case and there is no wonder that the accused having come to know the next day that he had been named as the perpetrator of the crime could not have the courage to stay and therefore become untraceable for sometime. The false defence given by him may also be due to the fact that he might have thought that if he admitted any little thing given by the prosecution, he might be considered to be the perpetrator of the crime." 45. Reliance was also placed on Bhagwan Das v. State of Rajasthan, AIR 1967 SC 589 and Sunder Lal v. State of M.P., AIR 1954 SC 28 , to show that it is not safe to rely on opinion expressed in medical books unless the relevant text book, have been put to the medical evidence. It was held in Bhagwan Das v. State of Rajasthan, AIR 1967 SC 589 , that the ordinarily the dying declaration of the kind which the prosecution relied upon in the case was by itself insufficient for sustaining a conviction on a charge of murder. It was argued in the present case that the deceased Brij Lal could not have survived even for a couple of minutes after having received these injuries, and the dying declaration put in the mouth of Khayali and Haru should not receive any consideration by this Court. 46. It was argued in the present case that the deceased Brij Lal could not have survived even for a couple of minutes after having received these injuries, and the dying declaration put in the mouth of Khayali and Haru should not receive any consideration by this Court. 46. With regard to the scope of the appellate Court in appeals against acquittals, reliance was placed on Khedu Mohton v. State of Bihar, AIR 1971 SC 66 , wherein the following observations were made:- "Though the powers of the High Court in considering the evidence on record in appeals under section 417 are as extensive as its powers in appeals against convictions the Court should bear in mind the presumption of innocence of accused. Where the lower court has found the accused not guilty, unless the conclusions reached by it are palpably wrong or based on erroneous view of the law or that its decision is likely to result in grave injustice, the High Court should be reluctant to interfere with its conclusion. If two reasonable conclusions can be reached on the basis of the evidence on record then the view in support of the acquittal of the accused should be preferred. The fact that the High Court is inclined to take a different view of the evidence on record is not sufficient to interfere with the order of acquittal." 47. It was also contended that where two views are possible, the judgement of acquittal should not be set aside. Reliance was placed on A.N. Rao v. Public Prosecutor, AIR 1975 SC 1387 and Pnino v. State of Punjab, AIR 1975 SC 1327 . Reliance was also placed on Ravinder Singh v. State of Haryana, AIR 1975 SC 856 , Reliance was also placed on Ram Kumar Pandey v. State of Madhya Pradesh, 1975 SCC (Cri) 225 , wherein it has been held that if two reasonable possible views can be held then the one favouring the accused should be taken. 48. It was further contended on behalf of the accused respondent that in an injury by fire-arm the medical evidence should decide the matter conclusively. Reliance was placed on Jagir Singh v. State (Delhi Admn.), AIR 1975 SC 1400 and Ram Narain v. State of Punjab, AIR 1975 SC 1727 . 49. In Jagir Singh v. State (Delhi Admn.), AIR 1975 SC 1400 , it has been observed as under:- "9. Reliance was placed on Jagir Singh v. State (Delhi Admn.), AIR 1975 SC 1400 and Ram Narain v. State of Punjab, AIR 1975 SC 1727 . 49. In Jagir Singh v. State (Delhi Admn.), AIR 1975 SC 1400 , it has been observed as under:- "9. There are also a few other features which throw grave doubt on the credibility of prosecution case. In the first place, Pritam Singh (PW 10) stated in evidence that the appellant fired the shot "with his hand stretched horizontally with a slight bent downwards" and Sajjan Singh (PW 13) also repeated that the appellant fired "with his hand stretched down and aiming at the thigh of the deceased". That would mean that the bullet must have travelled downward from the point of entry in the thigh of Harak Singh. But Dr. Vishou Kumar, Head of the Department of Forensic Medicine, Maulana Azad Medical College, New Delhi, who gave evidence as PW/2, definitely asserted that "the hand which fired the shot must have been at as lightly lower level than the part of the body hit by the shot. The barrel of the weapon would be slightly pointing upward." This expert evidence given by the Head of the Department of Forensic Medicine clearly shows that the incident did not happen in the manner deposed to by Pritam Singh (PW 10) and Sajjan Singh (PW 13) and their evidence being in conflict with the unimpeacaable expert evidence, which was not even attempted to be contradict in cross examination, cannot be accepted." 50. In Ram Narain v. State of Punjab, AIR 1975 SC 1727 , the following observations have been made:- "Where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. If the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert, this is a most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case. Held, in the circumstances of the case the High Court over looked most of the circumstances which were damaging to the prosecution case. It lightly brushed aside the inconsistency between the medical evidence and the prosecution version. Held, in the circumstances of the case the High Court over looked most of the circumstances which were damaging to the prosecution case. It lightly brushed aside the inconsistency between the medical evidence and the prosecution version. The question of the time of occurrence having been shifted from 8.00 P.M. to 6.30 P.M. had been blindly believed as also the evidence regarding the production of the weapons by the accused. In view of these striking circumstances the High Court should have approached the case with much more care and caution than it has, particularly when a death sentence was involved. While appreciating the evidence of the witnesses. The High Court does not appear to have considered this important aspect, but readily accepted the prosecution case without noticing that the evidence of the eye-witnesses in the Court was a belated attempt to improve their testimony and bring the same in line with the Doctor's evidence with a view to support an incorrect case". 51. It was also argued that no strength can be given to the prosecu-case because of the falsity or weakness of the defence version. Reliance was placed on Tika v. State of U.P., 1974 SC (Cri) 67 , wherein it has been held as under:- "The case of the prosecution has to be tested independently of the defence version & in a case of the present nature which depends for its proof on direct testimony, falsity of the defence will not help the prosecution to establish its own case. It is therefore necessary to consider whether the evidence led by the prosecution is sufficient to justify the order of conviction and sentence." 52. Taking an overall view of the prosecution case, it appears that the incident in the evening of 17th March, 1969, did not take place as inspite of there being 15 or 16 rounds of fire not a single pellet, bullet or wad or any other article was found and none of the victims who were aimed at were hurt; even the bullocks or bullock-cart were not hit by any bullet or pellet. 53. The medical evidence clearly establishes that the exit is higher by 4" than the wound of entry. The prosecution story is that the assailants were standing on Hetram's roof, and they fired from that place to Brij Lal who was on the ground. The distance is said to be 150'. 53. The medical evidence clearly establishes that the exit is higher by 4" than the wound of entry. The prosecution story is that the assailants were standing on Hetram's roof, and they fired from that place to Brij Lal who was on the ground. The distance is said to be 150'. At any rate, the bullet must show a downward trend from the wound of exit. However, in the present case, the wound of exit is higher than the wound of entry. The wound of entry and the wound of exit are communicating, which clearly indicates that the bullet travelled in a straight course. In such circumstances, it is exceedingly difficult to hold that a bullet fired from a higher place than the place where the victim was, would have travelled in an upward trend. The prosecution story is thus completely in conflict with the medical evidence. Under these circumstances, the prosecution story does not inspire confidence of the Court. Moreover, it is highly doubtful as to why the accused persons would fire from the top of the parapet wall when there were a large number of openings in the entire wall. By using these openings the accused could have avoided their identification from any of the prosecution witnesses. The bitter and long existing between Bheemsen and his brothers also cautions the Court to examine the prosecution evidence with a greater scrutiny and reasoning. The prosecution witnesses have stated that at whatever time they came they saw the accused persons with their barrels of the gun or ruffle projecting about a foot and a half over the parapet wall. This conduct appears to be highly improbable, as, the moment the victim is fired at, the assailant would try to make good his escape, so that he is not seen and identified by any person, PW/7 Mst. Nathi has stated that she saw Hetram, Raja Ram and Parman, and one other person having guns in their hands on the roof of Hetram. which appears to be against the normal course of human conduct. 54. Having given our most anxious consideration to the arguments advanced by the learned counsel for the parties, we are unable to hold that any case is made out justifying an interference with the order of acquittal passed by the learned Sessions Judge; who had the opportunity of recording the evidence of the witnesses, & watching their demeanour. 54. Having given our most anxious consideration to the arguments advanced by the learned counsel for the parties, we are unable to hold that any case is made out justifying an interference with the order of acquittal passed by the learned Sessions Judge; who had the opportunity of recording the evidence of the witnesses, & watching their demeanour. The view taken by the learned Sessions Judge, cannot be said to be unreasonable. Under these circumstance, we find it exceedingly difficult to interfere with the finding of acquittal by the learned lower Court. 55. For the reasons stated above, there is no force in this appeal filed on behalf of the State, which is hereby dismissed. *******