JUDGMENT 1. Accused Dhanpat, Balbir, Devilal, Maniram, Udaram and Jagdish that tried by the learned Sessions Judge, Ganganagar in connection with an occurrence which took place on December 19, 1972 in village Bashir. In the course of that occurrence Bhagirath and Prithvi Khadda sustained a gun-shot wound and resultantly Prithvi Khadda (since deceased) breathed his last. The trial court extended the benefit of doubt to accused Jagdish, Maniram and Balbir and acquitted them. The accused Udaram was held guilty, and was convicted under S. 302, Indian Penal Code for causing the death of Prithvi Khadda (deceased) and sentenced to life imprisonment. He was also convicted under section 27 of the Indian Arms Act and was sentenced to two years' rigorous imprisonment. Both the sentences were ordered to run concurrent. Accused Devilal was convicted under S. 307 I P.C. and sentenced to rigorous imprisonment for three years and to pay a fine of Rs. 1000/- in default of payment of which to further undergo rigorous imprisonment for two months. He was also convicted under section 27 of the Indian Arms Act and sentenced to rigorous imprisonment for two years. The substantive sentences of imprisonment fire ordered to run concurrently. Accused Dhanpat was convicted under section 336 Indian Penal Code and was sentenced to rigorous imprisonment for three months. He was also convicted under section 27 of the Indian Arms Act, 1959 and was sentenced to suffer rigorous imprisonment for two years. The substantive sentences of imprisonment were ordered to run concurrently. 2. The prosecution case, as disclosed in the first information report, Ex. P. 5, lodged by PW 2 Sheo chand at the Police Station, Sangariya at 9-30 p.m. on 19-12-1972 is that in the village Bashir there were two fractions of Jat Community, the one was known as `Kheda sect' and the other as `Saran sect'. They were at daggers' drawn with each other. On December 19, 1972 a Ramlila was being performed in front of the house of Moharchand. Prithvi Khadda (deceased) and PW 31 Hiraram had gone to witness the Ramlila. Accused Balbir, Udaram, Devilal and Maniram picked up a row with Prithvi Khadda (deceased) and vituperatively began to call him names. Heating the noise PW 2 Sheochand went with PW 21 Bhagirath to the scene of occurrence. Prithvi Khadda (deceased) and PW 31 Hiraram had gone to witness the Ramlila. Accused Balbir, Udaram, Devilal and Maniram picked up a row with Prithvi Khadda (deceased) and vituperatively began to call him names. Heating the noise PW 2 Sheochand went with PW 21 Bhagirath to the scene of occurrence. They heard all the above mentioned four accused using invectives to Prithvi Khadda (deceased), while Prithvi Kbadda (deceased) was running towards his house. At that stage accused Udaram challenged Prithvi Khadda (deceased) and asked him to stop and told in a tell-tale manner that he would teach him a lesson. Prithvi Khadda (deceased) turned towards Udaram, accused, and said as to what harm he (the deceased) had done to him. Thereupon, Udaram fired a shot which hit Prithvi Khadda (deceased) on his chest as a result of which he fell down. PW 2 Sheochand, PW 31 Hiraram and PW 21 Bhagirath lifted him and carried him to the house of PW 2 Sheochand. They took him through the lane going towards the west of the house of Moharchand, and the accused went to the house of Devilal through the lane going towards the east of the house of Moharchand. By the time PW 21 Bhagirath and others had reached the outer-gate of the house of Sheochand all the four accused reached on the roof of the house of Devilal accused. Seeing PW 21 Bhagirath and Others entering the gate leading to the house of Sheochand, Balbir and Maniram instigated Devilal to fire at PW 21 Bhagirath and Others. Devilal fired a shot which hit PW 21 Bhagirath on his left thigh. Prithvi Khadda (deceased) and PW 21 Bhagirath were taken inside the house of Sheochand (PW 2) by PW 2 Sheochand and PW 31 Hiraram. Even thereafter, the accused continued abusing and firing from the roof of Devilal accused. PW 2 Sheochand managed to get a Jeep. He with the two injured : Prithvi Khadda (deceased) and PW 21 Bhagirath in the company of Bhinyaram, Kashiram, Chmnaram, PW 33 Karnail Singh proceeded to Sangariya Hospital. Prithvi Khadda (deceased) succumbed to his injuries near the railway crossing. They got Bhagirath (PW 21) admitted in the hospital at Sangariya, and PW 2 Sheochand came to the Police Station, Sangariya, and lodged an ocular first information report Ex. Prithvi Khadda (deceased) succumbed to his injuries near the railway crossing. They got Bhagirath (PW 21) admitted in the hospital at Sangariya, and PW 2 Sheochand came to the Police Station, Sangariya, and lodged an ocular first information report Ex. P. 5 at 9-30 p.m. The distance between the Police Station, and the place of occurrence is 10 miles. PW 23 Pritam Singh, Assistant Sub-Inspector of Police registered a case under sections 302 and 307 read with S. 34, Indian Penal Code against the above mentioned four accused persons. He sent two constables PW 25 Surja Ram and Chandmal to the place of occurrence. In the meantime PW 9 Dr. S. M. Seni sent letter Ex. P. 21 at the Police Station, Sangariya stating therein that two persons named Prithvi Jat and Bhagirath of Bashir were brought to the hospital with fire-arm injuries out of whom one was dead and the condition of the other, person named Bhagirath was very precarious and as such arrangements may be made for recording his dying declaration. PW 23 Pritam Singh took the Tehsildar Cum-Second Class Magistrate, Sangariya to the hospital who recorded the dying declaration Ex. P. 24 of PW 21 Bhagirath. This dying declaration was recorded at 10-40 p.m. It also bears the endorsement of PW 9 Dr. S. M. Seni. Thereafter, PW 23 Pritam Singh, Assistant Sub-Inspector of Police recorded the statement of Sheochand (PW 2) under section 161, Cr. P.C. By then the Station House Officer, Sangariya had come at the Police Statibh, and he took the investigation. He recorded the statement of PW 21 Bhagirath, and then went to village Bashir in search of the accused persons, but could not trace them out. In the morning he, in the company of the Deputy Superintendent of Police, went to the hospital, and prepared the Panchnama Ex. P. 66. The autopsy on the dead-body of Prithvi Khadda (deceased) was performed by PW 9 Dr. S. M. Seni. The post-mortem report is Ex. P. 26. He noted the following external and internal injuries on the dead-body of Prithvi Khadda (deceased) : "1. A lacerated wound with inverted edges 0 2'x 0'2' on sternum lower end, slightly on right side. No tatooing. The following internal injuries were : 1. A hole 0.2X O'15" present in the lower end sternum. 2. P. 26. He noted the following external and internal injuries on the dead-body of Prithvi Khadda (deceased) : "1. A lacerated wound with inverted edges 0 2'x 0'2' on sternum lower end, slightly on right side. No tatooing. The following internal injuries were : 1. A hole 0.2X O'15" present in the lower end sternum. 2. Right lung anterior part, right ventricle of heart show similar holes as mentioned above. 3. Right lobe of liver and upper pole of right kidney completely lacerated. 4. A lacerated wound 1 x 11/2 present on internal side of 10th right inter- space. The pellet went higher and was found lying under the skin of same interspace, from which it was recovered by dissection externally. In the abdomen stomach contained whitish fluid material, small intestines contained food material in process of digestion and gases. Large intestine contained fecal matter and gases. The cause of death in my opinion was shock, and stoppage of vital functions due to injuries on right lung, heart, liver and right kidney caused by a fire arm. The shirt which he was wearing had a hole anterior portion corresponding to injury on chest. One lead shot was recovered from the dead-body and it was sent to the police along with the post-mortem examination."PW 9 Dr. S.M Seni further opined that all the injuries were ante-mortem in nature and were sufficient to cause the death in the ordinary course of nature. All the injuries had been caused by a single fire. PW 21 Bhagirath was also clinically examined by the same doctor at 10 p.m. on December 19, 1972. He noted the following injuries on the person of PW 21 Bhagirath : 1. Lacerated wound with inverted edges with no tatooing 0-2 xO'2' on left iliac crest region anteriorly. 2. Lacerated wound with everted edges with no tatooing 0-3' x 0-3' on left hip. 3. Lacerated wound with everted edges with no tatooing 0.3x 0-3' on left hip posterior to upper injury. In the opinion of the dodtor all the injuries sustained by PW 21 Bhagirath were caused by a fire-arm. The injury report of PW 21 Bhagirath is Ex. P. 22. The same doctor clinically examined PW 17 Om Prakash on 21-12-1972. The injury report is Ex. D. 5. He noted the following injuries : 1. In the opinion of the dodtor all the injuries sustained by PW 21 Bhagirath were caused by a fire-arm. The injury report of PW 21 Bhagirath is Ex. P. 22. The same doctor clinically examined PW 17 Om Prakash on 21-12-1972. The injury report is Ex. D. 5. He noted the following injuries : 1. Lacerated wound with inverted edges with no tatooing 0-2 x 0 2" skin deep on left leg laterally middle part. 2. Lacerated wound with inverted edges with no tatooing 0-2" x 0.2 skin deep on left leg laterally 2" below the upper injury". In the opinion of the doctor the injuries were simple in nature caused by fire-arm having duration of 2 days. The Radiologist reported that there were two small alienated radio opaque metallic pellet like shadows in the soft tissues of left leg. The police party went to village Bashir, prepared site-plan Ex. P. 6. In Ex. P. 6 site plan the mark has been shown as the place where gun-shot bit the wall of the house of Balwant Singh causing damage to it. The mark `the' has been shown as the place where the marks of six pellets entering the wall of the house of Karnail Singh were observed and noted by the Investigating Officer. Nearby, a broken piece of lead was also recovered. The mark has been shown indicating the place where the pellets had entered into the wall of the house of Mota Ram. The mark has been shown as the place from where the wads, piece of lead, the brass cap of the gun were recovered. The recovery memo is Ex, P. 69. He also prepared the Index Note Ex. P.6A. Blood-stained earth was collected from the place where PW 21 Bhagirath was alleged to have been injured. The Panchnama is Ex. P. 67. A blood-stained shoe was also recovered from the same place vide Ex. P. 68. The Investigating Officer also found near the wall one pellet and two pieces of brass which were seized vide Ex. P. 43. The lead piece is Ex. 17 and the brass pieces are Ex. 15 and Ex. 16. As there were bullet marks on the drain-pipe it was also seized vide Ex. P. 70. P. 68. The Investigating Officer also found near the wall one pellet and two pieces of brass which were seized vide Ex. P. 43. The lead piece is Ex. 17 and the brass pieces are Ex. 15 and Ex. 16. As there were bullet marks on the drain-pipe it was also seized vide Ex. P. 70. Thereafter, the Investigating Officer went to the place where Prithvi Khadda (deceased) was injured and from that place collected 13 wad pieces, one brass cap (Topi), and two pieces of lead. The recovery memo is Ex. P. 69. The wad pieces are Ex. 11 and brass piece is Ex. 14 and the lead pieces are Ex. 12 and Ex. 13- PW 35 Shri Sukhdeo Kumar, Additional Superintendent of Police took over the investigation of this case on January 22, 1973. By then, accused Balbir was arrested, Devi Lal, Siaram and Maniram were not traceable. He submitted the report Ex. P. 72 to the Munsiff Magistrate, Hanumangarh and obtained warrant for the arrest of Devilal, Maniram and Udaram. Upto February 20, 1973 none of the above mentioned accused persons were traced within the area of Police Station, Sangariya, Tibi and Hanumangarh. Again the investigation changed hands and it was taken up by Shri Sampat Raj Dave, Dy. Superintendent of Police and Deputy Inspector General of Police, Bikaner. Finally, the case was investigated by PW 36 Shyam Pratap Singh, Superintendent of Police, Ganganagar who took investigation of the case on May 31, 1973. He arrested PW 1 Rajaram on September 2, 1973 vide arrest memo Ex. P. 1. He also arrested accused Jagdish and Dhanpat vide arrest memos Ex. P. 76 and Ex. P. 77 respectively. On June 30, 1973 he visited the place of occurrence and got site-plan prepared by PW 3 Badrinarain. The site-plan is Ex. P 7. On September 2, 1973 another site-pian Ex. P. 8 was get prepared by PW 3 Badrinarain, Draftsman. PW 36 Shyam Pratap Singh made an application Ex. P. 81 to the Magistrate for cancellation the warrants against Devilal PW 1 Rajaram was granted pardon by the District Magistrate, Ganganagar vide Ex. P. 82. The site-plan is Ex. P 7. On September 2, 1973 another site-pian Ex. P. 8 was get prepared by PW 3 Badrinarain, Draftsman. PW 36 Shyam Pratap Singh made an application Ex. P. 81 to the Magistrate for cancellation the warrants against Devilal PW 1 Rajaram was granted pardon by the District Magistrate, Ganganagar vide Ex. P. 82. On December 20, 1973 a challan under sections 302, 307, 334, 336, 307/34 Indian Penal Code, and Section 27 of the Indian Arms Act was submitted in the Court of Munsiff Magistrate, Hanumangarh against Udaram, Maniram, Dhanpat, Jagdish and Rajaram (approver of this case) and in the opinion of PW 36 Shyam Pratap Singh as no case was made out against Devilal and Balbir, he did not submit any challan against them. Though a final report was given by the Police at the early stage of investigation in the cross-case instituted in the First Information Report dated December 12, 1972 filed by Dolat Ram, PW 36 Shyam Pratap Singh again investigated the case and filed a report dated October 13, 1973 at the Police Station, Sangariya against Chimana Ram, PW 33 Karnail Singh, Chandia, Amilal, PW 21 Bhagirath and PW 18 Bhadur under S. 336 Indian Penal Code and S. 25 and 27 of the Indian Arms Act. He opined that after the murder of Prithvi Khadda (since deceased) cross firing took place between the members of the party of the accused and the deceased as a result of which pellets got stuck into the walls of the houses of Karnail Singh (PW 33) and Motaram. Balbir was arrested but Devilal could not be apprehended. 3. The learned Magistrate by his order dated April 3, 1974 committed the accused Udaram, Maniram, Dhanpat, Jagdish and Balbir for trial to the Court of Sessions Judge, Sri Ganganagar. The learned Sessions Judge issued warrant of arrest against Devilal, the sixth accused, who surrendered in his Court on May 13, 1974. All the accused pleaded not guilty to the charge. 4. The prosecution produced 36 witnesses in support of its case out of whom PW 2 Sheochand, PW I Rajaram, PW 14 Prithvi Thakan. PW 15 Moharchand, PW 10 Kashiram, PW 17 Om Prakash, PW 18 Bhadaram, PW 19 Kumbha Ram, PW 21 Bhagirath, PW 22 Jagdish, PW 31 Hiraram and PW 32 Mohan are the eyewitnesses to the occurrence. 4. The prosecution produced 36 witnesses in support of its case out of whom PW 2 Sheochand, PW I Rajaram, PW 14 Prithvi Thakan. PW 15 Moharchand, PW 10 Kashiram, PW 17 Om Prakash, PW 18 Bhadaram, PW 19 Kumbha Ram, PW 21 Bhagirath, PW 22 Jagdish, PW 31 Hiraram and PW 32 Mohan are the eyewitnesses to the occurrence. PW 33 Karnail Singh is the person before whom Prithvi Khadda (since deceased) made a dying declaration incriminating Udaram PW 9 Dr. S.M. Seni was produced to prove the injuries of PW 21 Bhagirath and Prithvi Khadda (since deceased). He is the person who performed the autopsy on the dead-body of Prithvi Khadda (since deceased). PW 23 Pritam Singh was examined to prove the first information report, lodged by PW 2 Sheochand and PW 36 Shyam Pratap Singh is the person who finally investigated the case. The accused denied their complicity in the crime and urged that the prosecution witnesses made false statements against them due to enmity. None of them examined any witness in their defence. The learned Sessions Judge held that there was no evidence that the accused Dhanpat and Jagdish were responsible for the murder of Prithvi Khadda (since deceased). Taking into consideration the contradictions appearing in the court statements of the prosecution witnesses, and their previous statements recorded during investigation the learned Sessions Judge held that Devilal, Maniram, Balbir, Dhanpat and Jagdish accused played no part in the murder of Prithvi Khadda (since deceased). He further held that at the time when Bhagirath (PW21)was injured by a gun-shot he was inside the wall of the outer opening of the house of PW 2 Sheochand. The learned Sessions Judge disbelieved the evidence regarding exhortation by accused Balbir and Maniram to Devilal accused for firing a shot at PW. 21 Bhagirath. In view of the above findings the learned Judge convicted the accused-appellant Udaram under S, 302, Indian Penal Code and Sections 25 and 27 of the Indian Arms Act, Devilal under S. 307, Indian Penal Code, and Sections 25 and 27 of the Indian Arms Act and Dhanpat under S. 336 Indian Penal Code, and S. 25 and 2/ of the Indian Arms Act. The rest of the three accused were given benefit of doubt. The rest of the three accused were given benefit of doubt. The convicted accused have challenged their conviction by filing D.B Criminal Appeals No. 711 of 1974 and 717 of 1974 and the State has come up in appeal against the acquittal of the above mentioned three accused by filing D.B. Criminal Appeal No, 594 of 1975. As all these three appeals arise out of a common judgment they are disposed of by a single judgment. 5. From the statement of PW 9 Dr. S.M. Seni and the statement of PW 31 Pritam Singh and the statements of the eye-witnesses in this case it stands proved beyond any manner of doubt that Prithvi Khadda (since deceased) and PW 21 Bhagirath sustained injuries at the time and place alleged by the prosecution, and Prithvi Khadda (since deceased) died as a result of those injuries. 6. Mr. Thanchand Mehta, Mr. Bhimraj Purohit and Mr. O.C. Chatterjee have urged that there are certain outstanding features of this case which according to them are sufficient to throw doubt on the entire prosecution case. It has been urged that the prosecution witnesses have concealed the true version of the occurrence. It was a frosty night, and in the melee of cross-firing it was not possible to know from whose hand Prithvi Khadda (since deceased) received the fatal shot. In the present case the prosecution led two sets of evidence, each set contradicting and condemning the other and as such the conviction cannot be sustained on such evidence. The witnesses named in the first information report Ex. P. 5 lodged by PW 2 Sheochand are close relatives of the deceased belonging to rival faction. They were inimical towards the accused. There is no cogent and reliable evidence to hold how the quarrei started. The injuries of PW 17 Om Prakash remained unexplained. The prosecution witnesses have further failed to explain how the pellets were found stuck in the wall of the houses of PW 33 Karnail Singh and Motaram. The learned Additional Government Advocate appearing on behalf of the State has urged that simply because the prosecution witnesses are inimical to the accused their statements cannot be discarded. This fact would only make the Court to scrutinise the evidence more closely. He further urged that the witnesses named in the first information report Ex. The learned Additional Government Advocate appearing on behalf of the State has urged that simply because the prosecution witnesses are inimical to the accused their statements cannot be discarded. This fact would only make the Court to scrutinise the evidence more closely. He further urged that the witnesses named in the first information report Ex. P. 5 have stood the test of truthfulness and their statements can be relied upon. He further urged that there is cogent and reliable evidence against all the accused persons and the learned Judge has committed an error of law in acquitting the accused persons of the charges framed against them. He also supported the conviction of the accused-appellants. 7. We have given our earnest consideration to the rival contentions of the parties and have perused the record. We shall be dealing shortly with the arguments advanced by both the parties at seriatum. 8. Placing reliance on the statement of PW 34 Niranjan Singh who admitted in cross-examination that on the date of the occurrence the sky was full of frost it has been urged that it was not possible for the eye-witnesses to recognise the persons who fired a shot at Prithvi Khadda (since deceased) and PW 21 Bhagirath. We do not feel persuaded to agree to this contention. The occurrence took place at 9 30 P.M. on December 19, 1972, in village Bashir whereas the witness reached at 2 A.M. on December 20, 1972, as such his statement cannot be used to prove that the sky was frosty at the time of occurrence. Besides this it has come in the statements of PW 2 Sheochand and PW 22 Jagdish that the occurrence took place near the place where Ramlila was being staged and the two gas lights were burning at the relevant time. Much criticism has been levelled regarding this part of the evidence of the prosecution witnesses and it has been urged that this fact of burning the gas lights has been introduced later on with a purpose to make the identification of the accused persons possible But the criticism is without any basis. Suffice it to say that there must have been some light near the scene of occurrence in order to enable the villagers to observe the performance of Ramlila and as such the presence of gas light near the place of occurrence cannot be ruled out. Suffice it to say that there must have been some light near the scene of occurrence in order to enable the villagers to observe the performance of Ramlila and as such the presence of gas light near the place of occurrence cannot be ruled out. Besides this, it was full-moon-lit night and the witnesses being the close neighbours of the accused could have identified them at the time of occurrence. 9. The extra-ordinary feature of this case is that according to the first information report E. P. 5, lodged by PW 2 Sheochand the accused-appellants Devilal, Udaram and the acquitted accused-persons Maniram, Balbir participated in the commission of the crime, whereas according to the Investigating Officer, who submitted the challan, the accused Udaram, Maniram, Dhanpat and Jagdish participated in the commission of the crime, and on the protest application filed by Sheochand complainant cognizance was taken against accused Devilal and Balbir and the learned Committing Magistrate committed all the six accused to face their trial. As regards the case PW 2 Sheochand has disclosed in the first information report that there were only five eye-witnesses of the occurrence viz. PW 2 Sheochand, PW 21 Bhagirath, PW 22 Jagdish, PW 31 Hiraram and PW 32 Mohanlal, whereas as a result of investigation done by PW 36 Shyam Pratap Singh, PW 1 Rajaram, PW 14 Prithvi, Dhakan, PW 15 Moharchand, PW 16 Kashiram, PW 17 Om Prakash, PW 18 Bhadra Ram and PW 19 Shri Kumbha Ram had also witnessed the occurrence. There is no dispute between the parties that the present is a case where two sets of prosecution witnesses have been examined : one set consists of those who were named by PW 2 Sheochand and the other set consists of those prosecution witnesses who were later on introduced as eye-witnesses by PW 36 Shyam Pratap Singh, after taking over the investigation on May 31,1973. The learned, counsel appearing on behalf of the accused-appellants has vehemently urged that the present is a case where one set of prosecution evidence condemns the other set of evidence produced by the prosecution. They denied the presence of each other at the time of occurrence. In the above state of affairs the entire case as a rule of law ought to have been thrown over board without appreciating the individual merits of each witness, and the accused ought to have been acquitted. They denied the presence of each other at the time of occurrence. In the above state of affairs the entire case as a rule of law ought to have been thrown over board without appreciating the individual merits of each witness, and the accused ought to have been acquitted. In support of his contention he has placed reliance on Harchand Singh and Others v. State of Haryana, 1973 SCC (Criminal) 962 . The learned Additional Government Advocate appearing on behalf of the State has, with matching vehemence, urged that it is true that an Investigating Officer is not restricted in the course of investigation of an offence to the case set up by the complainant. He is entitled and indeed bound to make a full investigation in the light of the facts disclosed but it is not open to the Investigating Officer to evolve a new theory of his own and re-examine the witnesses who have already been examined and whose statements have already been recorded under section 164, Cr. P.C. and examine new witnesses in support of his own conjectures. The learned Additional Government Advocate further urged that in this case the witnesses who knew nothing about the occurrence were for the first time examined after the expiry of more than six months of the occurrence and were introduced as prosecution witnesses to give a defence to the real culprits, and as such their statements cannot be used to discredit the statements of the other reliable witnesses examined on behalf of the prosecution. He placed reliance on Baladin and Others v. State of U.P., AIR 1956SC 181 and Chandrakant Laxman v. State of Maharashtra, AIR 1974 SC 220 . Regarding remissness of the Investigating Officer, suggested by Shri Dinkarlal Mehta, Additional Government Advocate, it is sufficient to state at this place that we shall be shortly dealing with it at the appropriate stage. 10. At present, what we are called upon to decide is whether as a matter of law all the accused of a case should be acquitted simply because the prosecution has chosen to examine two sets of eye-witnesses out of whom one set condemns the other set of witnesses and denies each other's presence on the scene of occurrence ? We are unable to agree to the contention of the learned counsel for the appellant. We are unable to agree to the contention of the learned counsel for the appellant. It is too broad a proposition of law to lay down that where the prosecution examined two sets of evidence each one of which contradicts and strikes at the other the court is left with no other alternative except to acquit the accused, It cannot be regarded as a rule of law or even as a practical proposition. It can only lead to accentuation of difficulties of honest and truthful witnesses. It is not possible further to lay down hide-bond rule for appreciation of evidence. Much would depend on the circumstances of each case in evaluating the evidence. To lay down any hard and fast rule would be to unduly curtail the judicial discretion of the court which after all is the best Judge of the evidence placed before it. The judicial discretion vested in a court of law to accept or not to accept the evidence of a particular witness in a case should not be allowed to be hampered by the action of the Investigating Officer or those who presented the case before the Court of Sessions. It is the function of the court to examine the veracity of the two versions of the occurrence given by two different sets of witnesses, and come to the conclusion as to which set of the witnesses is reliable. Reference may be made to Dhari Rai v. State of U.P., 1969 Unreported Cases SC P. 10 . In that case Suresh Chandra, brother of the deceased Moti, gave a first information report and in support of his version four witnesses Chandrika Bai (PW 6), Prasad (PW 7), Ramsurat (PW 9) and Suresh Chandra (PW 5) were examined. The other version of the incident was given by Abdul Rehman (PW 1), Marchu Rai (PW 2), Sambhu (PW 3) and Constable Shek'n Isral (PW 4). The learned Sessions Judge did not believe the version given by Suresh Chandra and other witnesses, named in the first information report and accepted the version given by Abdul Rehman and Others and convicted the accused of that case. An appeal filed before the Allahabad High Court was also dismissed. The convicted accused took up an appeal before the Supreme Court. An appeal filed before the Allahabad High Court was also dismissed. The convicted accused took up an appeal before the Supreme Court. The Supreme Court upholding the conviction of the accused, Laid down the law as under : "The next contention was that there were two versions of the occurrence given by two different sets of witnesses and since the first version of Suresh Chandra (PW 5) given in the first information report has not been believed by the lower courts, the judgment of the High Court convicting the appellant was illegal. In our opinion, there is no justification for this argument." The case : Harchand Singh v. State of Haryana, 1969 Unreported Cases (Supreme Court) Page 10 is of no avail to the accused-appellants. In that case the prosecution relied upon (i) dying declaration, and (ii) the statements of eye-witnesses. The prosecution examined two sets of eye-witnesses, one set consisted of the testimony of Amarjit Singh, Mai Singh, Teja Singh. The trial court did not place any reliance on the testimony of these witnesses. It held that they had not seen the incident and were not near the scene of occurrence. It did not place any reliance on the dying declaration of Ajab Singh. Reliance was, however, placed on the evidence of Ram Asra (PW 14) who was proposed to be working with the deceased at that time The trial court convicted Harchand Singh, Jaswant Singh (accused of that case) under section 304, Part II read with section 34, Indian Penal Code The High Court held that the trial court was not justified in throwing over-board the testimony of Amarjit Singh and Teja Singh. It converted the conviction of Harchand Singh and Jaswant Singh from 304 Part II read with 34 Indian Penal Code to 302 read wish S. 34 Indian Penal Code The Supreme Court on appeal acquitted the accused of that case and upheld the reason given by the trial court for discarding the evidence of Mai Singh, Amarjit Singh and Teja Singh-eye-witnesses of that case. The Court also advanced additional reasons for discarding their testimony. As regards PW 14 Ram Asra their lordships observed that if he would have been working with Ajab Singh, at the time of occurrence, it was not clear why the deceased should fail to mention his name in the dying declaration, recorded at Kbanna Hospital. The Court also advanced additional reasons for discarding their testimony. As regards PW 14 Ram Asra their lordships observed that if he would have been working with Ajab Singh, at the time of occurrence, it was not clear why the deceased should fail to mention his name in the dying declaration, recorded at Kbanna Hospital. It was also observed that the name of Ram Asra was not mentioned in the first information report of that case. In this view of the matter, their Lordships observed that the case before them was of the type wherein one set of prosecution evidence condemned the other set of evidence produced by the prosecution. Their lordships held that in that state of affairs it was difficult to secure a firm ground upon which to base the conviction of the accused appellants of that case.In the same case their Lordships further observed as under : "Had the testimony of Ram Asra been of a convincing character and the prosecution evidence itself had not created doubt regarding the correct- ness of his testimony this court might have sustained the conviction of the appellants upon the testimony of Ram Asra." 11. Thus, it is dear that the accused of that case were acquitted not simply 'because two sets of witnesses were examined but, because all the eye-witnesses examined by the prosecution in that case were held to be unreliable after scrutiny. 12. The learned counsel for the accused-appellants relied upon a number of infirmities in the prosecution case and urged that the first set of prosecution witnesses named by PW 2 Sheochand in the first information report Ex. P. 5 are admittedly interested and inimical witnesses. They have not come with the true version of the case, have made material omissions, and have given a truncated version of the case. They have utterly failed to explain the injuries sustained by Omprakash (PW 17) and have failed to explain how 13 wads, a brass cap of the bullet and pieces of lead which are nothing but-the parts of the bullet happened to fall near the place where Prithvi Khadda (deceased) is alleged to have been shot. They have also failed to explain how the pellets came to exist in the walls of the houses of Balwant Singh and Motaram. They have also failed to explain how the pellets came to exist in the walls of the houses of Balwant Singh and Motaram. The investigation at the initial stage of the case was not conducted honestly and that is why PW 23 Pritam Singh and PW 34 Niranjan Singh, the two Investigating Officers of this case, were suspended and Departmental Enquiries were set up against them. The investigation of the case was transferred from their hands to the Deputy Superintendent of Police and the Deputy Inspector General of Police and ultimately to PW 36 Shyam Pratap Singh. PW 1 Rajaram, PW 17 Omprakash, PW 15 Meharchand and the other witnesses examined by PW 36 Shyam Pratap Singh have tried to explain the entire occurrence, and it is not open to the learned Additional Government Advocate to say that the investigation made by PW 36 Shyam Pratap Singh suffers from remissness. The learned counsel further urged that even according to the learned Additional Government Advocate the investigation of this case was not fair and naturally the prosecution cannot take advantage of it. The accused are bound to have the benefit of the circumstances, created by the Investigating Agency, at all stages of this case. The learned Additional Government Advocate for the State urged that PW 36 Shyam Pratap Singh after more than six months of the occurrence introduced a new set of witnesses viz., PW 1 Rajaram, PW 14 Prithvi Dhanka, PW 15 Meharchand, PW 16 Kashiram, PW 17 Omprakash, PW 18 Bhadra Ram and PW 19 Kumbha Ram, who knew nothing about the occurrence, and their statements cannot be used either in favour of the prosecution or against it. He further urged that the five witnesses named in the first information report Ex. P. 5 are the witnesses of sterling worth and the conviction of all the accused-appellants as well as those of the acquitted accused by the trial court can be based upon their statements, which stand corroborated in material particulars by the medical evidence as well as the first information report Ex. P. 5. 13. We propose to first deal with the second set of witnesses : PW 1 Rajaram is an approver of this case. The evidence of an approver must satisfy the two tests one, that he is a reliable witness and that is the test which is common to all the witnesses. P. 5. 13. We propose to first deal with the second set of witnesses : PW 1 Rajaram is an approver of this case. The evidence of an approver must satisfy the two tests one, that he is a reliable witness and that is the test which is common to all the witnesses. If this test is satisfied, the second test which is to be applied is* that the approver's evidence must receive sufficient corroboration. Admittedly this witness was examined by the Police after more than six months of the occurrence.'" He is not a resident of village Bashir. The only reason shown by him to be on the scene of occurrence is that he had come to village Bashir to live with Kishna Puniya. His name has not been mentioned in either of the two first information reports, one Ex. P. 5 given by PW 2 Sheochand and the other Ex. D. 18 given on behalf of the accused by Daulat, brother of PW 17 Omprakash. The prosecution story as disclosed in the first information report Ex. P. 5, and supported by the site-plan Ex. P. 6 and site-inspection memo Ex. P. 6A was that the shot at Prithvi Khadda (deceased) was fired from the point `A' shown in the site-plan Ex. P. 6, whereas this witness has stated that the shot towards Prithvi Khadda (deceased) was fired from the Chabutra of Motaram. The case of the prosecution as disclosed in the first information report Ex. P. 5 is that only Udaram had fired at Prithvi Khadda (deceased) whereas this witness has stated that two persons viz. Udaram and Jagdish were standing with 12 bore guns on the `Chabutra' of Motaram and the fire towards Prithvi Khadda (deceased) came from the side of the `Chabutra'. He has not specifically mentioned as to who cut of the two persons fired at Prithvi Khadda as a result of which Prithvi Khadda (deceased) fell down. In the same breath later on this witness stated that he also fired in the air, and Dhanpat also fired from his rifle. At that juncture he heard some persons saying that Prithvi Khadda (deceased) was hit by a bullet. Hearing this the accused Dhanpat became jubilant, and stated that his brother's death had been avenged. By this statement the witness meant to suggest that Prithvi Khadda (deceased) was shot dead by accused Dhanpat. At that juncture he heard some persons saying that Prithvi Khadda (deceased) was hit by a bullet. Hearing this the accused Dhanpat became jubilant, and stated that his brother's death had been avenged. By this statement the witness meant to suggest that Prithvi Khadda (deceased) was shot dead by accused Dhanpat. Thus he has brought out entirely a different case from the one which was narrated in the first information report Ex P. 5. The witness further goes on to state that thereafter he and Dhanpat went near the heap of dust and dirt, stood behind it and each of them fired two shots towards the house of PW 2 Sheochand It does not stand to reason why Rajaram (PW 1), who had no axe to grind against the complainant should go inside the dilapidated `Kotha' of Harchand and fire towards Prithvi Khadda (deceased) and others, and further take into his head to leave that place and go towards the house of PW 2 Sheochand and again fire towards the latter's house. The witness in his statement before the trial court stated that he had fired in the air whereas in his statement before the learned Magistrate recorded under S. 164, Cr. P.C. he had not stated so. He was confronted with his earlier statement. Instead of explaining the contradiction he stated that the earlier statement was not made by him. He was also confronted with the previous statement Ex. D. 1 wherein in the portion C to D he stated that towards the door of the house of PW 2 Sheochand he fired two I.G. bullets as a result of which Bhagirath was injured, whereas in his statement before the trial court he denied to have made such a statement. When given an opportunity to explain the contradiction the witness instead of explaining the contradiction had the brazenness to deny to have made such a statement, in his statement Ex. D. 4 before the Investigating Officer he stated that on the date of occurrence he was dead drunk, whereas in his statement before the trial court he stated that he was not under-drinks. When confronted with his previous statement, he instead of explaining the contradictions had the brazenness to state that he had made such a statement. D. 4 before the Investigating Officer he stated that on the date of occurrence he was dead drunk, whereas in his statement before the trial court he stated that he was not under-drinks. When confronted with his previous statement, he instead of explaining the contradictions had the brazenness to state that he had made such a statement. According to the witness after the firing was over he in the company of Udaram (accused-appellant), Jagdish (acquitted by the trial court) and PW 17 Omprakash went to the room of Motaram. The witness further goes on to state that there Udaram demanded two number pellets from, him saying that if they were available he will fix them in the calf of Omprakash, and lodge a first information report against Prithvi Khadda. The witness further goes on to state that shortly thereafter Udaram, accused, with the help of a needle affixed the pellets in the calf of Omprakash, and thereafter Jagdish, accused, affixed another pellet in the leg of Omprakash by the same process. Contrary in this statement PW 7 Dr. S.M. Seni, who had clinically examined PW 17 Omprakash stated that the injuries in question were lacerated wounds and they were neither incised nor punctured. Moreover, when a pellet strikes the body, there is always a contact impression on the edges of the wound which does not vanish easily. He further stated that in the case of Omprakash such contact impression was present. In the face of the medical evidence the statement of PW I Rajaram can not be relied upon. PW 17 Omprakash has not made incriminating statement against any accused and is of no use to the prosecution. 14. Now we take up the statements of PW 14 Prithvi Dhakan, PW 16 Kashiram, PW 18 Bhadra Ram and PW 19 Kumbha Ram. None of these witnesses have been mentioned as eye-witnesses of the occurrence either in Ex. P. 5 given by PW 2 Sheochand within 45 minutes of the occurrence or in Ex D. 18 dated December 20, 1972 lodged by Daulat Ram, brother of Omprakash (PW 17). They were examined by the Police for the first time after more than seven months of the occurrence. None of them had disclosed the fact of their seeing the occurrence to any one else prior to their examination by the Police. They were examined by the Police for the first time after more than seven months of the occurrence. None of them had disclosed the fact of their seeing the occurrence to any one else prior to their examination by the Police. All these witnesses were got declared hostile by the prosecution, as they resiled from their previous statements. PW 19 Kumbha Ram was confronted with various portions of his statement recorded by the Police in Ex. P. 38. Instead of explaining the contradiction the witness had brazenness to state that he had not made such a statement and he did not know how the authority concerned while recording his statement had recorded it so. He further stated that he had made his statement Ex. P. 39 before the Second Class Magistrate, Ganganagar under the Police pressure. He was confronted with the various portions of his statement because of a discrepancy in his own statements. The only explanation which he gave was that his statement Ex. P. 39 recorded by the Magistrate was not correct and he made the previous statement under the Police pressure for fear of being beaten by the Police. He denied the presence of PW 2 Sheochand, PW 21 Bhagirath, PW 32 Meharchand, PW 31 Hira Ram and Jagdish on the scene of occurrence. PW 18 Bhadra Ram was also got declared hostile by the prosecution He was confronted with his statement Ex. P. 37 recorded under section 164 Cr. P.C. The witness failed to explain the contradictions appearing in his statement Ex. P. 37 and his statement recorded by the Committing Court. The only reason advanced was that he had made that statement under the Police pressure and beating. PW 16 Kashiram was also got declared hostile by the prosecution. He was confronted with various portions of his statement made by him before toe Police marked as Ex. P. 34. Instead of explaining the contradictions, the witness stated that he had been kept under detention for seven days and was compelled to make the statement mentioned in Ex. P. 34 under the Police pressure. He also admitted to have made the statement before the Magistrate Ex. P. 35 recorded under section 164, Cr P.C. As there were contradictions in his statement made before the court and the statement made under section 164, Cr. P. 34 under the Police pressure. He also admitted to have made the statement before the Magistrate Ex. P. 35 recorded under section 164, Cr P.C. As there were contradictions in his statement made before the court and the statement made under section 164, Cr. P.C. he was given an opportunity to explain the contradictions, but instead of explaining the same the witness stated that his statement made during the trial was correct and the statement made by him during investigation before the Magistrate was not correct. 15. PW 14 Prithvi Khadda was also got declared hostile by the prosecution. He denied the presence of the accused on the scene of occurrence at the time of incident. He was confronted with his police statement Ex. P. 32. Instead of explaining the contradictions the witness stated that he had not made such a statement and later on corrected himself by saying that though such a statement was made by him before the police, it was made under the police pressure. He gave his statement Ex. P. 33 before the Magistrate at Ganganagar. When he was asked about the contradictions appearing in his statement recorded by the learned Magistrate and his statement recorded by the trial court the witness instead of explaining the contradictions stated that he had given the statement before the learned Magistrate under the police pressure. Thus all the four witnesses PW 14 Prithvi Dhakan, PW 16 Kashiram, PW 18 Bhadra Ram and PW 19 Kumbha Ram had given stereo-typed parrot-like explanation regarding the contradictions appearing in their statements before the court and their previous statements. As already stated these witnesses were examined by the Police during investigation for the first time after nearly eight months of the occurrence. No reason has been given why they could not be examined for so long a time. The statements of these witnesses suffer from inherent improbabilities and no reliance can be placed on the statements of these witnesses either by the prosecution or the defence. 16. Then we have the statement of PW 15 Meharchand. He states that on the date of occurrence he had gone to enjoy the stage show Ramlila. At that time he noticed Prithvi Dhakan taking Prithvi Khadda (deceased) towards the house of Motaram. 16. Then we have the statement of PW 15 Meharchand. He states that on the date of occurrence he had gone to enjoy the stage show Ramlila. At that time he noticed Prithvi Dhakan taking Prithvi Khadda (deceased) towards the house of Motaram. The witness asked Prithvi Dhakan not to take Prithvi Khadda (deceased) towards the house of Motaram and got him released from the clutches of Prithvi Dhakan. At that stage Amilal, Bhadra and a number of persons happened to come there. Devilal, accused, also happened to come there and rebuked Prithvi Dhakan for carrying Prithvi Khadda (deceased), and thereafter Devilal left the scene of occurrence. After some time he heard the bullets being fired. This witness is of no use to the prosecution. He has not seen any person firing towards Prithvi Khadda (deceased) or the injured Bhagirath. The witness in cross-examination stated that he was examined by the Police for the first time after a year of the occurrence, and during this period he had not disclosed any fact regarding the occurrence to any person. He further stated that he was kept under police surveillance for nearly a week and he was terrorised to make a particular type of statement. The presence of this witness on the scene of occurrence at the time of the incident appears to be very doubtful and so his statement can not be relied upon. 17. Now we will deal with the other set of witnesses mentioned in the first, information report Ex. P. 5 : PW 2 Sheochand, PW 21 Bhagirath, PW 22 Jagdish, PW 31 Hira Ram and PW 32 Mohan. The learned Additional Government Advocate appearing on behalf of the State has urged that out of these five witnesses PW 2 Sheochand, PW 21 Bhagirath and PW 22 Jagdish are the witnesses of sterling worth and they stand corroborated in material particulars by the statements of PW 31 Hira Ram and PW 32 Mohan as well as by Ex. P. 5 the first information report and PW 9 Dr. S.M. Seni. The learned counsel for the accused urged that for the reasons already urged no reliance can be placed on the uncorroborated statements of these inimical witnesses for convicting the accused persons facing a murder charge. PW 31 Hira Ram gave the same story as disclosed by PW 2 Sheochand in the first information report Ex. S.M. Seni. The learned counsel for the accused urged that for the reasons already urged no reliance can be placed on the uncorroborated statements of these inimical witnesses for convicting the accused persons facing a murder charge. PW 31 Hira Ram gave the same story as disclosed by PW 2 Sheochand in the first information report Ex. P. 5 and mentioned by us earlier in the resume of the case. He appeared as an eye-witness of the occurrence. He was confronted with his previous statement Ex. D. 13 recorded by the Police during the investigation, wherein he stated that he did not witness the occurrence. He also admitted that his vision in the night was defective, and that one of his eyes was altogether weak sighted and from the other he could see upto a little distance. The witness instead of explaining the contradiction stated that his statement made in the court was correct and the statement recorded by the Police was incorrect. He was also confronted with his previous statement Ex. D. 13 wherein he stated that a few days prior to the date of the occurrence when Ramlila was being staged in his village, lie heard the gun-shots being fired. But at that time he. was sleeping in his house. Next day morning he was invited by Bhinya Ram, father of Prithvi Khadda (deceased), who told him that his son was murdered last night and PW 21 Bhagirath was injured and the witness was shown as an eye-witness of the occurrence in the first information report Ex. P. 5. The witness was asked to explain the above mentioned contradictions appearing in his police statement and the statement given by him in the court wherein he stated that he had seen the occurrence from his own eyes. The witness failed to explain the contradictions, and stated that he did not know how the Superintendent of Police had recorded such a statement. The attention of the witness was further drawn to the portion marked E to F in Ex. D. 3, wherein he had stated that Bhinya Ram had pressed him to become an eye-witness and on his persuasion and pressure he gave the account of an eye-witness. The witness failed to explain this material contradiction. The attention of the witness was further drawn to the portion marked E to F in Ex. D. 3, wherein he had stated that Bhinya Ram had pressed him to become an eye-witness and on his persuasion and pressure he gave the account of an eye-witness. The witness failed to explain this material contradiction. A number of other contradictions appearing in his police statement with that of the statement made by him in the court were also put to the witness but he failed to explain any one of them. During the cross-examination, in order to test his eye-sight, the witness was asked to identify the four accused persons viz. Dhanpat, Udaram, Balbir and one other, who were standing at a distance of 10' from the witness but the witness failed to identify them. On the basis of these contradictions appearing in his statement before the Court and his statement recorded under section 164, Cr. P.C. by the Magistrate during the investigation, the learned counsel for the accused urged that no reliance can be placed on the statement of this witness. The learned Additional Government Advocate for the State urged that the statement Ex. D. 13 of this witness was recorded by PW 36 Shyam Pratap Singh on August 26, 1973 and his statement Ex. D. 12 was got recorded under section 164, Cr. P.C, on August 27,1973 at the behest of the same Investigating Officer, even though the statement of this witness under S. 164 Cr. P.C. was already recorded on February 19, 1973. Ex. D. 12 and Ex. D. 13 were recorded with an intention to create a defence for the accused and damage the prosecution case. No reason has been shown by PW 36 Shyam Pratap Singh as to what made him to record the statement of this witness again. The record prepared by him is a tainted one and cannot be used to discredit and discard the testimony of this witness, made in the trial court. The learned counsel placed reliance on Baladin v. State of U.P., AIR 1956 SC 181 . We have given our earnest consideration to this aspect of the case. We have also perused Ex. D. 19, which is on the record of this case. Ex. D. 19 shows that this witness was got medically examined on August 28, 1973. Dr. The learned counsel placed reliance on Baladin v. State of U.P., AIR 1956 SC 181 . We have given our earnest consideration to this aspect of the case. We have also perused Ex. D. 19, which is on the record of this case. Ex. D. 19 shows that this witness was got medically examined on August 28, 1973. Dr. R.N. Chari noted the defects in his eyes and came to the conclusion that he could recognise and identify the objects in the night time only at a distance of 15-20 feet. Before the trial court the witness was unable to identify the accused even from a distance of 10'. In the circumstances disclosed above it cannot be said that the witness was re-examined by PW 36 Shyam Pratap Singh with an oblique motive. Considering the effect of the infirmities in his evidence we hold that it will be highly unsafe to place any reliance on the statement of this witness for convicting any of the accused, either for the murder of Prithvi Khadda (deceased) or for causing the injuries to PW 21 Bhagirath. Same is the case of PW 32 Mohanlal. In his examination-in-chief PW 32 Mohanlal has given an account of an eye-witness to the occurrence. He was confronted with his statement dated September 15, 1973 recorded by the Second Class Magistrate under section 164, Cr. P.C., wherein he stated that on the night of the date of occurrence he was sleeping in his house. He heard 15 or 20 gun shots being fired from the side where Ramlila was being staged, but he did not go out of his house, and he came to know about the occurrence in the morning. The witness failed to explain the contradictions appearing in his two statements, one made under S. 164, Cr. P.C. and the other made in the trial court, but he stated that his statement Ex. D. 7 was made by him under the Police pressure. He further staled that his statement made in the trial court was correct. The attention of this witness was drawn to the various portions of his statement made by him in Ex. D. 7, which were contrary to the statement made by him in the trial court. The witness instead of explaining the contradictions stated that Ex. He further staled that his statement made in the trial court was correct. The attention of this witness was drawn to the various portions of his statement made by him in Ex. D. 7, which were contrary to the statement made by him in the trial court. The witness instead of explaining the contradictions stated that Ex. D. 7 was made by him at the behest of the Police, because the Police people had threatened him. The learned Additional Government Advocate on behalf of the State has drawn our attention to Ex. P. 64, dated September 21, 1973, submitted by this witness in the court of Munsiff Magistrate, Hanumangarh wherein he has made a complaint against the Investigating Officer for compelling him to make a statement in. favour of the accused. On the basis of this application the learned Additional Government Advocate urged that the record prepared by the Investigating Officer after May 1, 1973 is a tainted one and the veracity of the statement of this witness made in the court cannot be challenged on the basis of tainted record such as Ex. D. 7. The learned counsel appearing on behalf of the accused has urged that PW 36 Shyam Pratap Singh was at the relevant time Superintendent of Police, Ganganagar. The witness examined by the various Investigating Officers upto May 31, 1973 failed to explain certain ambiguities appearing in the investigation regarding the existence of thirteen wads, one brass cap and pieces of lead near the place where Prithvi Khadda (deceased) was shot. Similarly he has failed to explain as to how the broken piece of bullet came to exist near the wall of the house of Balwant Singh. The existence of the pellets near the walls of the house of Motaram and Balwant Singh also remains a mystery and as such there was nothing unnatural for PW 36 Shyam Pratap Singh to reinvestigate the case. 18. We have given our earnest consideration to this aspect of the case. It is not for this Court to enter into a covering enquiry at the time of hearing of the appeal to ascertain whether the investigation done by PW 34 Niranjan Singh (the Investigating Officer, who was suspended during the investigation, on the charge of unfair investigation) or the investigation done by PW 36 Shyam Pratap Singh was unfair. It is not for this Court to enter into a covering enquiry at the time of hearing of the appeal to ascertain whether the investigation done by PW 34 Niranjan Singh (the Investigating Officer, who was suspended during the investigation, on the charge of unfair investigation) or the investigation done by PW 36 Shyam Pratap Singh was unfair. The burden of proving the case beyond reasonable doubt against accused lay upon the prosecution. If the prosecution wanted to rely on the fact that Ex. D. 7 was recorded under the Police pressure than it ought to have substantiated the same. We find no reason to discard the statements recorded during the investigation made by PW 36 Shyam Pratap Singh. A conflicting investigation of the same occurrence is bound to give the benefit of such a situation to the accused. On the basis of the contradictions appearing in the two statements of this witness we hold that it will be unsafe to place reliance on any part of the statement of this witness for convicting the accused persons on a charge of murder. 19. Thus we are left with the statements of only three witnesses, viz. PW 2 Sheochand, the author of the first information report Ex. P. 5, which was given within 45 minutes of the occurrence, PW 21 Bhagirath, was is an injured person and whose presence on the scene of occurrence cannot be doubted and PW 22 Jagdish who has been termed to be a witness of sterling worth by the learned Additional Government Advocate, and unreliable by the trial court on account of his subsequent conduct. PW 22 Jagdish stated that he in the company of PW 32 Mohan went to enjoy the Ramlila. When he reached there, he saw accused Maniram and Balbir forcing Prithvi Khadda (deceased) towards the platform of the house of Motaram. PW 31 Hira Ram also happened to come there who cried that Prithvi Khadda (deceased) may be got released. Prithvi Khadda (deceased) was got released from the clutches of the two above mentioned accused by this witness and the other persons and thereafter all of them went towards the place where the play of Ramlila was being staged. PW 31 Hira Ram told Prithvi Khadda (deceased) to go to his house. Accused Devilal and Udaram after being armed with 12 bore guns, happened to come on the scene of occurrence. PW 31 Hira Ram told Prithvi Khadda (deceased) to go to his house. Accused Devilal and Udaram after being armed with 12 bore guns, happened to come on the scene of occurrence. Devilal and Udaram, accused opprobriously called name to Prithvi Khadda (deceased) and asked him to stop. PW 2 Sheochand and PW 21 Bhagirath also happened to come there. A( that stage, Prithvi Khadda turned his face towards {the accused-appellant Udaram and asked him as to what harm Prithvi Khadda (deceased) had done to the accused. Instantly Udaram fired a shot which hit Prithvi Khadda (deceased) in his chest, as a result of which he fell down. PW 2 Sheochand, PW 31 Hira Ram and PW 21 Bhagirath rushed towards Prithvi Khadda .(deceased). PW 31 Hira Ram and PW 2 Sheochand lifted him and took him towards PW 2 Sheochand's house. PW 21 Bhagirath was also with them. The witness further goes on to state that at that stage, he went to his house and thereafter heard 5 or 6 shots being fired. Similar is the statement of PW 21 Bhagirath, who stated that on the date of the occurrence the Ramlila was being stayed in front of the house of PW 15 Meharchand and Motaram and the people were enjoying it in gas light. Hearing the noise the witness went from his house to the place where Ramlila was being staged. He noticed the accused Devilal, Udaram, Maniram, Balbir calling names to Prithvi Khadda (deceased). At that time Devilal and Udaram were armed with 12 bore guns. Maniram and Balbir were empty handed. While going towards his house, Prithvi Khadda (deceased) turned his face towards the accused and stated as to what harm he had caused to them. At that stage Udaram fired a shot which hit Prithvi Khadda (deceased) in his chest, as a result of which he fell down. Before firing the shot Udaram told in a tell-tale manner that he would teach him a lesson. The witness PW 31 Hira Ram and PW 2 Sheochand told the accused to leave the way otherwise they would be ruined. Hearing this all the four accused gave the way. PW 31 Hira Ram and PW 2 Sheochand lifted Prithvi Khadda (deceased) and took him towards the house of PW2 Sheochand. The witness also walked with them. The witness PW 31 Hira Ram and PW 2 Sheochand told the accused to leave the way otherwise they would be ruined. Hearing this all the four accused gave the way. PW 31 Hira Ram and PW 2 Sheochand lifted Prithvi Khadda (deceased) and took him towards the house of PW2 Sheochand. The witness also walked with them. When they had reached rear the house of PW 2 Sheochand the accused Devilal raised a cry from the roof of his house that the enemies were getting inside the house. The witness looked towards the roof of the house of Devilal and noticed Devilal dnd Udaram appellants. Balbir and Maniram (acquitted by the trial court). At that juncture Devilal fired a shot which injured the left leg of the witness as a result of which he fell down and was lifted and taken by PW 2 Sheochand in his house and Prithvi Khadda (deceased) was lifted by PW 3 Hira Ram. The witness further goes on to state that even after he was Lald in the cot, he heard noise of shots being fired from the guns. After some time he was taken to the hospital in a jeep. Similar is the statement of PW 2 Sheochand. 20. Admittedly all the witnesses mentioned in Ex. P. 5 are closely related to each other. PW 2 Sheochand, the author of the first information report Ex. P. 5, stated in cross-examination that Prithvi Khadda (deceased) was his uncle. PW 31 Hira Ram is also his uncle. The father of PW 22 Jagdish and the father of Prithvi Khadda (deceased) were also cousins and the grand-mother of PW 32 Meharchand was the sister of his grand-father. PW 21 Bhagirath is the brother of PW 2 Sheochand. Thus ail these five eye-witnesses named in the first information report Ex. P. 5 have been proved to be close relatives of the deceased Prithvi Khadda. It has come in the evidence that the relations between the members of the party of Prithvi Khadda (deceased) on one side and Deviial and Udaram appellants on the other side were strained. It has been mentioned in the first information report Ex. P. 5 that they were inimically disposed to each other. But simply on the ground of relation and animosity statements of all the five witnesses mentioned above cannot be brushed aside. It has been mentioned in the first information report Ex. P. 5 that they were inimically disposed to each other. But simply on the ground of relation and animosity statements of all the five witnesses mentioned above cannot be brushed aside. Instead of brushing aside their testimony, we will have to scrutinise the statements of these witnesses more carefully and with caution. No doubt such witnesses do not fail to denounce the real culprit, they cannot be said to be absolutely immune from the tendency of roping in some innocent persons along with the guilty. Reference may be made to Ravulappali Kondaish and Others v. State of Andhra Pradesh, AIR 1975 SC 216 . 21. It was urged that the trial court has wholly ignored the significance of the gun-shot wounds found on the person of PW 17 Omprakash. In the first information report Ex. D. 18. dated December 20, 1972, lodged at the Police Station; Sangariya, it has been mentioned that PW 17 Omprakash sustained gun-shot injuries at the hands of the members of the complainant party. We get it from the evidence of PW 9 Dr. S.M. Seni that he noticed two pellet wounds on the person of PW 11 Omprakash. The injuries, according to the doctor, were simple in nature and were caused by fire-arms, and the duration of the injuries was two days. He confirmed his opinion from the X-Ray Report Ex. D. 6. A suggestion made by the prosecution to this witness, that the injuries of Omprakash were self-sustained was repelled by him. In such circumstances, from the evidence of PW 9 Dr. S.M. Seni it can be said that those injuries could not have been self-sustained. PW 17 Omprakash, though got declared hostile by the prosecution, has stated that as he had given one rupee as reward to the actors of Ramlila, Prithvi Khadda (deceased) and his associates got enraged. One of them expressed that the enemy was giving a rupee in their presence. Hearing this Prithvi Khadda (deceased) fired a shot which hit him on his left leg. One of them expressed that the enemy was giving a rupee in their presence. Hearing this Prithvi Khadda (deceased) fired a shot which hit him on his left leg. As PW 17 Omprakash has resiled from his previous statement made before the Police, on account of contradictions appearing in his two statements on material points, we may hold him not a truthful witness but yet from the statement of PW 17 Omprakash, and the other evidence on the record this fact remains that he sustained gun shot injuries at the time and place when Prithvi Khadda (deceased) sustained the gun-shot wound. The failure on the part of the prosecution to explain as to how Prithvi Khadda (deceased) sustained the injuries shows that the evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true, even though those injuries may or may not probabilism the case set up by the appellants. 22. The another infirmity in the statements of these witnesses is that each of them failed to give a cogent and convincing explanation as to how the quarrel started. Admittedly, the relations between the parties were highly strained but all of them are neighbours and the question arises as to why Udaram, Devilal and others should choose a place to murder Prithvi Khadda (deceased) where they could have been noticed and identified by a number of persons. In a preplanned murder an accused generally takes a precaution as not to be detected while committing the crime. PW 22 Jagdish has stated that the accused Maniram and Balbir were taking Prithvi Khadda (deceased) towards the platform of the house of Motaram. The witness with the help of others got his released from the clutches of Maniram. While all of them were going towards the place where Ramlila was being staged, the appellants Devilal and Udaram came armed with guns and began to call names to Prithvi Khadda (deceased). At that stage, Prithvi Khadda (deceased) questioned the accused as to what wrong he has done to them, whereupon the accused Udaram fired a shot hitting Prithvi Khadda (deceased), as a result of which he fell down. PW 2 Sheochand has stated that when he reached on the scene of occurrence, he saw the accused Devilal, Udaram and Balbir calling names to Prithvi Khadda (deceased) while he was going towards his house. PW 2 Sheochand has stated that when he reached on the scene of occurrence, he saw the accused Devilal, Udaram and Balbir calling names to Prithvi Khadda (deceased) while he was going towards his house. At that juncture Prithvi Khadda (deceased) turned towards the accused and questioned as to what wrong he had done to thenvon which the other accused exhorted Udaram to fire at Prithvi Khadda (deceased) and Udaram fired a shot which hit Prithvi Khadda (deceased) on his chest as a result of which he fell down. Similar is the statement of PW 2 Bhagirath the remaining eye-witness to the occurrence. Thus it becomes clear that the prosecution witnesses named in the first information report Ex. P. 5 have not been able to disclose the immediate cause which led to the firing of the gun-shot by Udaram at Prithvi Khadda (deceased). Besides all this the case of the prosecution as disclosed by these witnesses is that only one shot was fired by Udaram, and thereafter Prithvi Khadda (deceased) was removed towards the house of PW 2 Sheochand. It has further come in the evidence of these witnesses that while PW 31 Hira Ram and PW 2 Sheochand had reached inside the outer gate of the house of PW 2 Sheochand and PW 21 Bhagirath was going in front of them Devilal fired a shot which hit Bhagirath, and after some time a number of shots were fired by the accused. In the first information report Ex. P. 5 it has been mentioned that even after Prithvi Khadda (deceased) and PW 21 Bhagirath were taken inside the house of PW 2 Sheochand, the accused went on firing from their roof. Thus the subsequent firing of shots by the accused, according to these witnesses was done from the roof of the house of Devilal. It has come in the evidence of PW 2 Sheochand that at the place where Prithvi Khadda (deceased) was hit by a gun-shot in wads, two pieces of lead and one piece of brass were found lying which were recovered by the Police, in his presence. PW 34 Niranjan Singh also stated that 13 wads, one brass cap, and two pieces of land were seized by him from the place where Ramlila was being staged. PW 34 Niranjan Singh also stated that 13 wads, one brass cap, and two pieces of land were seized by him from the place where Ramlila was being staged. The witness further goes on to state that he noticed 9 marks of pellets in the outer wall of the room of Motaram. Later on at the direction of the Superintendent of Police PW 36 Shyarn Pratap Singh those holes were opened, and the pellets were recovered. Ex. P. 6 and Ex. P. 6A show that the police party noticed the marks of pellets in the wall of the house of Balwant Singh. A piece of lead was also seized which was lying near the wall of the house of Balwant Singh. It was also noticed that the wall of the house of Balwant Singh was broken owing to bullet shots. PW 8 Shri G.R. Prasad, Ballistic Expert of the Central Forensic Science Laboratory, New Delhi, stated that according to him 13 wad pieces, one lead pellet marked P. 1, of parcel `A' and the lead pellet marked P. 2 of parcel `C' could have come from a minimum of three 12 bore cartridges, out of which two were of pellets of size No. 2 and the third of pellet size I. G. 23. A big question pops up : how is it that if only one shot was fired by Udaram which resulted in the demise of Prithvi Khadda (deceased) so matey wads, a brass cap, and lead pieces were recovered from the place where Prithvi Khadda (deceased) was hit, and how the pellets marks in the walls of the houses of Balwant Singh and Motaram could be noticed just in the morning following the flight of the occurrence. The learned Additional Government Advocate has tried to explain this by making a reference to the statement of PW 22 Jagdish who has stated that after Prithvi Khadda (deceased) was injured by a gun-shot fire he left the scene of Occurrence, and went to his house and after some time he heard the noise of gun-shot fires. A close reading of the statement of this witness shows that he has failed to locate the place whence from the guns were being fired. Mr. Than Chand Mehta, appearing on behalf of the accused has placed reliance on the statements of PW 1 Rajaram, PW 15 Meharchand and PW 17 Omprakash. A close reading of the statement of this witness shows that he has failed to locate the place whence from the guns were being fired. Mr. Than Chand Mehta, appearing on behalf of the accused has placed reliance on the statements of PW 1 Rajaram, PW 15 Meharchand and PW 17 Omprakash. For reasons already mentioned above, we have found all these three witnesses to be untruthful and as such the mystery regarding the existence of the above articles near about the place where Prithvi Khadda (deceased) was shot remains unexplained. The necessary inference which arises is that the prosecution witnesses relied upon by the trial court and named in Ex. P. 5 have failed to disclose the whole truth, and it appears that some part of the occurrence has been suppressed by them. 24. Now the question arises whether inspite of the above mentioned infirmities in the prosecution case the statements of the above mentioned three witnesses viz. PW 2 Sheochand. PW 21 Bhagirath, and PW 22 Jagdish, can be relied upon to maintain the conviction of the accused-appellants and to convict the accused persons acquitted by the trial court against whom a State appeal has been filed, and if so to what extent and who can be held guilty of what offence. 25. First of all we take the case of Dhanpat accused. In the first information report Ex. P. 5 the names of accused Dhanpat and Jagdish have not been mentioned in the list of the accused persons. PW 2 Sheochand stated that Dhanpat and Jagdish were not present on the scene of occurrence at the time of the Incident.PW 21 Bhagirath also denied the presence of the accused Dhanpat and Jagdish near the place where the Ramlila was being staged.PW 22 Jagdish also did not make any incriminating statement against the accused Dhanpat and Jagdish. 26. The only evidence incriminating the accused Dhanpat is that of PW 1 Rajaram (approver). PW 1 Rajaram did not make a clear cut statement in the court against Dhanpat. He did not state that the bullet fired by Dhanpat hit Prithvi Khadda (deceased) or Bagiraih (PW 21). We have already held that PW 1 Rajaram is not a reliable witness. Thus there is no evidence worth the name to incriminate him for the murder of Prithvi Khadda (deceased) and the injury caused to PW 21 Bhagirath. He did not state that the bullet fired by Dhanpat hit Prithvi Khadda (deceased) or Bagiraih (PW 21). We have already held that PW 1 Rajaram is not a reliable witness. Thus there is no evidence worth the name to incriminate him for the murder of Prithvi Khadda (deceased) and the injury caused to PW 21 Bhagirath. The trial court has rightly acquitted him of the charges punishable under sections 302/34, 302/109 and 307 I P.C. and we find no force in the State appeal filed against him. As regards his conviction under section 336 Indian Penal Code and Section 27 of the Arms Act it is sufficient to say that all the three witnesses relied upon in this prosecution have denied the presence of the accused appellant Dhanpat on the scene of occurrence, and have not made any incriminating statement against him The learned Sessions Judge, at one place held that Rajaram's evidence cannot be said to be the evidence of an accomplice but corroborative evidence of the recovery of the pieces of bullet i.e. lead pieces and on the existence of the holes in the `parnala' of PW 31 Hira Ram held that Dhanpat had fired his rifle towards the place where PW 21 Bhagirath happened to stand when Prithvi Khadda (deceased) was being taken into their house. We have held for the reasons mentioned in detail above that PW 1 Rajaram is not a witness of truth. The learned Sessions Judge has failed to notice and consider the effect of the infirmities pointed out above by us in the statement of this witness. 27. No incriminating statement has been made against Jagdish by any of the witnesses named in the first information report Ex. P. 5. The author of the first information report Ex. P. 5 PW 2 Sheochand and PW 21 Bhagirath, injured, have stated that the accused Jagdish was not present on the scene of occurrence. The trial court, for good and sufficient reasons, has extended the benefit of doubt to this accused. Nothing has been made out by the learned Additional Government Advocate appearing for the State on the basis of which a finding of acquittal recorded by the trial court in favour of this accused can be set aside. 28. We may now consider the case of Balbir and Maniram. In the first information report Ex. Nothing has been made out by the learned Additional Government Advocate appearing for the State on the basis of which a finding of acquittal recorded by the trial court in favour of this accused can be set aside. 28. We may now consider the case of Balbir and Maniram. In the first information report Ex. P. 5 it has not been mentioned that Balbir and Maniram exhorted the accused Udaram to fire towards Prithvi Khadda (deceased). PW 2 Sheochand stated before the trial court that Maniram and Balbir exhorted Udaram-appellant to fire at Prithvi Khadda (deceased). He failed to give a satisfactory explanation regarding this material omission in the first information report. PW 21 Bhagirath is significantly silent about exhortation by these two accused for murdering Prithvi Khadda (deceased). PW 22 Jagdish also did not state any thing regarding exhortation made by these two accused. He has assigned altogether's different part to these two accused persons His statement is that Maniram and Balbir tried to drag Prithvi Khadda (deceased) towards the platform of the house of Motaram. but he was released from their clutches by the intervention of PW 32 Mohan and PW 31 Hira Ram. It will be pertinent to note that this fact has not been mentioned in the first information report Ex. P. 5. The trial court after discussing the relevant evidence held that Balbir and Maniram played no part in the murder of Prithvi Khadda (deceased). The trial court further held that Maniram and Balbir were involved in the murder of Prithvi Khadda (deceased). The learned Judge without any evidence held that the evidence regarding `Lalkara' was not at ail convincing, and the prosecution falsely implicated Udaram, Maniram and Balbir in the matter of`Lalkara' made by them from the roof of Devilal. With these observations the learned Judge acquitted both the accused of all the charges framed against them. We have been taken through the relevant portion of the evidence against these accused by the learned Additional Government Advocate. We find no reason to set aside the order of acquittal passed in their favour by the trial court and we affirm the findings of the trial court regarding these two accused persons. 29. Now we consider the case of accused Devilal. The accused-appellant Devilal was acquitted of the charge of exhorting Udaram for firing at Prithvi Khadda (deceased). We find no reason to set aside the order of acquittal passed in their favour by the trial court and we affirm the findings of the trial court regarding these two accused persons. 29. Now we consider the case of accused Devilal. The accused-appellant Devilal was acquitted of the charge of exhorting Udaram for firing at Prithvi Khadda (deceased). He has been convicted under section 307, I P.C. for causing injuries to PW 21 Bhagirath. The learned counsel for the appellant urged that Devilal had contested the elections of Sarpanch against Maniram, brother of Prithvi Khadda (since deceased). Admittedly the prosecution witnesses were inimically disposed towards him. The Investigating Officer PW 33 Shyam Pratap Singh found after investigation that no case was made out against him. It is the case of the prosecution that he was having a 12 bore gun with him. PW 1 Rajaram had accused Dhanpat were having rifles with them. The finding of the trial court is that the injuries caused to PW 21 Bhagirath could be that of the bullet as well as pellets. The learned counsel has urged that apart from the infirmities in the prosecution case pointed out by him earlier there is clinching evidence which would go to prove that PW 21 Bhagirath could not have been injured at the hands of the accused-appellant Devilal. The first contention raised by him is that there is considerable distance between the roof of the house of Devilal and the place where PW 21 Bhagirath is alleged to have been injured. It is alleged that at the relevant time Devilal was having a 12 bore gun with him. It is also the case of the prosecution that even after injuring Bhagirath (PW 21) the shots were fired from the roof of Devilal's house. But not a single wad was seized by the Police at the time of preparing the site-plan Ex. P. 6 and the description memo of the site Ex. P. 6A. If the shots had been fired from the roof of the house of Devilal the wads would have been found in between the houses of the accused-appellant and PW 31 Hiraram We see of the opinion that much cannot turn upon the non-recovery of wads. The site-plan was made after more than ten hours of the occurrence. P. 6A. If the shots had been fired from the roof of the house of Devilal the wads would have been found in between the houses of the accused-appellant and PW 31 Hiraram We see of the opinion that much cannot turn upon the non-recovery of wads. The site-plan was made after more than ten hours of the occurrence. Simply because the wads were not recovered, it can be conclusively said that the shots were not fired from the roof of the house of Devilal. 30. The second contention was that according to PW 9 Dr. S.M. Seni the entry would i.e. injury No. 1 of PW 21 Bhagirath was a round hole which indicates that the hit was at horizontal level i.e. perpendicular to the body. The learned counsel urged that a man standing on the roof of Devilal's house would be at a higher level from the place where Bhagirath was standing. If the shot hitting PW 21 Bhagirath had been fired from the roof it would have made an oval hole. The learned Additional Government Advocate made an unsuccessful attempt to meet this contention and urged that in the injury report Ex. P. 22 of Bhagirath (PW 21) the injury has not been described as a round one. We are unable to agree with this contention. A perusal of the injury report shows that the injury has been described as 0'2 x 0.2'. A pellet injury cannot be a square one, either it is round one or oval one, and the description of the injury mentioned in the injury report Ex. P. 22 shows that it was a round one. Moreover, we have no reason to doubt the statement of PW 9 Dr. S.M. Seni. His statement stands well-supported by the observations made by Dr. Taylor in his famous book : `Taylor's Principles' and `Practice of Medical Jurisprudence', Twelfth Edition. The learned author at page 289 of the book has observed as under : "The shape of the entrance is usually circular, if the bullet strikes at right angles to the surface, but tends to become increasingly oval if fired at an angle until the bullet glances across the tissues." We find substantial force in the argument and feel persuaded to hold that the shot fired from Devilal the accused-appellant's roof would not have caused the injuries sustained by PW 21 Bhagirath. 31. 31. Thirdly, it was urged that the distance between the roof of the house of Devilal accused-appellant and the place where PW 21 Bhagirath was standing is 34 Kadams, i.e. 85'. The dispersion of the pellets would have been nearly 29 inch and PW 21 Bhagirath would not have sustained only one injury if the fire had been opened from Devilal's roof. In Ex. P. 6, the site-plan the place where Bhagirath was hit has been marked `E'. PW 34 Niranjan Singh in his cross-examination had to admit that in the site-inspection memo Ex. P. 6A it was mentioned that the blood and a pair of shoes were recovered from the place marked `E' in the site-plan Ex. P. 6. The witness in order to make it possible that the fire was made from the roof of the house of Devilal improved his statement in the court and stated that it was wrongly marked. In fact the shoes, blood and pellets were recovered from the place inside the outer opening of the house of PW 2 Sheochand. If the subsequent improvement is discarded then it becomes crystal clear that the shot hitting Bhagirath (PW 21) could not have been fired from the roof of the house of the accused-appellant Devilal. The further contention in this respect is that according to the prosecution the accused-appellant Devilal was armed with 12 bore gun from the very beginning. He was present at the time when Udaram is alleged to have fired a shot at Prithvi Khadda (deceased). At that time PW 31 Hiraram, PW 2 Sheochand and PW 21 Bhagirath were also present. If Devilal had wanted to murder PW 21 Bhagirath, he would not have spared him there and would not have taken a circuitous way of running to his house and take a chance of firing at PW 21 Bhagirath at the time of his entry into the house of PW 2 Sheochand. We find considerable force in this contention. PW 8 Dr. C.R. Prasad noticed 5 holes in the `Khcsh' of PW21 Bhagirath. The five holes were marked by him as 1 to 5 holes corresponding with the injuries 1, 2 and 3 in the injury report (Ex P 22) of PW 21 Bhagirath. These five holes could have been caused by a single bullet which disintegrated on entering the body of the injuries. The five holes were marked by him as 1 to 5 holes corresponding with the injuries 1, 2 and 3 in the injury report (Ex P 22) of PW 21 Bhagirath. These five holes could have been caused by a single bullet which disintegrated on entering the body of the injuries. Thus from the statements of the two Experts PW 8 Dr. G.R. Prasad and PW 9 Dr. S.M. Seni the possibility of PW 21 Bhagirath being injured by a shot fired from same place other than the roof of the house of Devilal is highly probabilised, and the shape of the wound tilts the balance in favour of the accused, and it will be very unsafe to hold that the shot fired by the accused-appellant Devilal from the roof of his house hit PW 21 Bhagirath. 32. We may now consider the case' of the accused-appellant Udaram. As already stated PW 2 Sheochand, PW 21 Bhagirath and PW 22 Jagdish are unanimous on the pint that Udaram told in a tell-tale manner to Prithvi Khadda (deceased) that he would give the latter a new taste. Hearing that Prithvi Khadda (deceased) turned his face towards the accused aDd asked as to what harm he had done to him. At that juncture Udaram fired a shot which hit Prithvi Khadda (deceased) in his chest as a result of which he fell down.' 33. The learned counsel for the accused-appellants has drawn our attention to the following findings of the trial court: "Niranjan Singh PW 34 has deposed that he had recovered 13 wad pieces, one brass piece and two lead pieces from the Ramlila ground, vide memo Ex. P. 69. Later on 13 pellets were also recovered from the wall of Motaram. This clearly shows that fires were exchanged from both the sides. From near about the place where Prithvi Khadda fell on the ground, Niranjan Singh had recovered remnants of a 12 bore gun and a rifle fire. He was thus subjected to the fires of both type of guns." 34. In support of the above finding the learned counsel places reliance on the statement of PW 2 Sheochand who stated that from the place where Prithvi Khadda (deceased) was injured the police had recovered 13 wads, 2 pieces of lead, one brass cap. He also placed reliance,on the statement of PW 8 Dr. In support of the above finding the learned counsel places reliance on the statement of PW 2 Sheochand who stated that from the place where Prithvi Khadda (deceased) was injured the police had recovered 13 wads, 2 pieces of lead, one brass cap. He also placed reliance,on the statement of PW 8 Dr. G. S. Prasad, who stated that 13 wad pieces, one lead pellet marked P. 1 of the Parcel `A' and the lead pellet marked P 2 of Parcel `C* would have come from a minimum of 3. 12 bore cartridges, out of which 2 were of pellets-size No. 2 and the third of pellet size LG. 35. On the basis of the above mentioned statements of the witnesses and the findings arrived at by the learned trial court the learned counsel urged that the prosecution case that only one shot was fired by Udaram towards Prithvi Khadda (deceased) stands falsified. For the reasons mentioned above, we have found that all the witnesses mentioned in the first information report Ex. P. 5 are highly interested and have animus towards the accused. The trial court held that the evidence regarding exhortation against the accused Balbir and Maniram was false, and we have upheld that finding. Both the parties have different reasons to say that the investigation on this case was not fair, and the same is the finding of the trial court. The unfairness of the investigation cannot be of any advantage to the prosecution. It is bound to adversely effect the prosecution case. From the statements of PW 9 Dr S. M. Seni, and the statement of PW 17 Omprakash it was highly probablised that Prithvi Khadda (deceased) and PW 17 Omprakash sustained the injuries in the same occurrence. PW 9 Dr. S. M. Seni has stated that Prithvi Khadda (deceased) must have not instantaneous death. The false story of Prithvi Khadda dying near the Sangariya Railway, Bridge has been introduced by all the three witnesses with a purpose behind it in order to make the dying declaration alleged to have been made by Prithvi Khadda (deceased) before PW 13 Karnail Singh possible. The false story of Prithvi Khadda dying near the Sangariya Railway, Bridge has been introduced by all the three witnesses with a purpose behind it in order to make the dying declaration alleged to have been made by Prithvi Khadda (deceased) before PW 13 Karnail Singh possible. The two sets of witnesses examined by the prosecution out of whom one eliminated the presence of the other on the scene of occurrence at the time of incident has also adversely affected the prosecution version and has titled the balance in favour of the accused-persons. The failure of the prosecution to offer any explanation as to how PW 17 Omprakash sustained the injuries in the same occurrence considered with the other infirmities already pointed out in the statements of the eye-witnesses, shows that the evidence of the prosecution witnesses as to how the occurrence began is not true. Thus there is no reliable evidence on the record to hold as to what exactly transpired at the time of the incident and who fired the shot first. No doubt, it is the duty of the court to make an attempt to separate the grain from the chaff, the truth from falsehood but this could only be possible when the truth is separable from the falsehood. In the present case truth is no inextricably mixed up with the falsehood that in the process of separation this court will have to construct absolutely a new case for the prosecution, by divorcing the essential details presented by the prosecution. The entire case depends upon the testimony of PW 2 Sheochand, PW 21 Bhagirath, and PW'22 Jagdish. All of Jhem are highly interested witness. They have made an attempt to implicate Balbir and Maniram on account of exhortation, which was found to be false by the trial court and has been upheld by this Court. As already held the evidence regarding accused-appellant Devilal has also been found to be not safe to convict him for the offence charged. In such circumstances it cannot be vouchsafed for the fact that even the act attributed to the accused Udaram regarding firing gun-shot at Prithvi Khadda (deceased) may have been conveniently made to suit the needs of the prosecution case. Major contradictions appearing in their statements regarding vital part of the prosecution story and omissions regarding crucial points of the prosecution case have made their statements highly doubtful. Major contradictions appearing in their statements regarding vital part of the prosecution story and omissions regarding crucial points of the prosecution case have made their statements highly doubtful. The trial court has failed to notice the above circumstances which throw considerable doubt on the prosecution came against the accused Udaram and it will not be safe to convict him for the offence punishable under S. 302 Indian Penal Code for committing the murder of Prithvi Khadda (deceased). There is no cogent and reliable evidence to hold that the accused appellants have committed the acts attributed to them by the prosecution. Since the prosecution came against the accused-appellants cannot be said to be made out, beyond reasonable doubt, we acquit the appellants of all the offences charged against them. 36. The net result of the above discussion is that we allow the appeals of the accused-appellants viz. Devilal, Udaram and Dhanpat and set aside their convictions and sentences, recorded against them. The State appeal filed against all the six accused viz. Jagdish, Balbir, Maniram, Devilal, and Dhanpat also fails. The accused Dhanpat and Devilal are on bail and they need not surrender to their bail bonds. Their bail bonds shall stand cancelled. Accused Udaram is in jail. He shall be released forthwith if not required in any other case. *******