Short Note : 1. Rajendrasingh, the appellant in Criminal Appeal No. 404 of 76 was convicted for the offence under section 307 IPC and Mohanlal, the appellant in Criminal Appeal No. 410 of 1976 was convicted for the offence under section 307/149 IPC. Both of them were also convicted for the offence under section 148 IPC and each of them was sentenced to undergo R. I. for a period of five years and to pay a fine of Rs. 500/- on the first count and R.1. for a period of one year on the second count by the First. Additional Sessions Judge, Indore, in S.T. No. 64 of 76. Held: The question for consideration is whether the convictions and sentences of the two appellants can be sustained. The incident took place at about 1.30 a.m. in the night time (The miscreants said to be 7 or 8 in number had gone at the place of occurrence in a rickshaw. According to the case of the prosecution the first witness who noticed the miscreants is Mohan (PW 10) who claims to have been sleeping on the oatla in front of his house on a cot. But this witness says that only three persons in a three seater auto-rickshaw came at the spot which passed by the side of his house and went towards the garden. According to this witness Shripal, the victim was running after the rickshaw. This witness says that he did not know whether the rickshaw stopped at any place or not. According to him when he reached at the spot he found Shripal lying in injured state near the garden and there was a crowd near about that place. This witness has further deposed that some people from the crowd told him that Shripal was shot. According to the case of the prosecution witness Mohan lodged the FIR Ex. P-12, but the witness in the trial Court has stated that he did not make the said report, but his signature was obtained on it. On being confronted this witness denied the material contents of the said report. Therefore, this report cannot be used as a substantive piece of evidence against the appellants. 2. The trial Court has recorded the convictions of the appellants on the testimony of two witnesses Mahakal Prasad (PW 2) and Laxmansingh (PW 9) It has. On being confronted this witness denied the material contents of the said report. Therefore, this report cannot be used as a substantive piece of evidence against the appellants. 2. The trial Court has recorded the convictions of the appellants on the testimony of two witnesses Mahakal Prasad (PW 2) and Laxmansingh (PW 9) It has. therefore, to be seen whether the evidence of these witnesses is trustworthy and reliable to record conviction against the appellants. Witness Mahakal Prasad (PW 2) has stated that in the night of the said occurrence he was sleeping on oatla or Shankar Temple which is quite adjacent to his house. The photograph Ex. D-1 has been produced in evidence in the cross-examination of the Investigating Officer Devisingh Parihar (PW 11), which shows that there is no oatla in front of the Shankar Temple on which the witness Mahakal Prasad could have slept in that night. This fact is borne out even from the cross-examination of the Investigating Officer Devisingh Parihar Therefore, the presence of witness Mahakal Prasad (PW 2) on the spot at the time of the alleged occurrence is not free from doubt. 3. Witness Mahakal Prasad (PW 2) says that 9 or 10 persons had reached at the spot in a tempo. This fact is contradicted by witness Mohan (PW 10) according to whom only 3 persons went there in a three seater rickshaw. This witness is 71 years of age. According to this witness there were two mercury lights at the place of occurrence, but in the spot sketch Ex. P-1 only one mercury light is shown at point No. 2 which is at a distance of about 50 ft. from the place of occurrence. It appears that the witness Mahakal Prasad has deposed about the existence of two mercury lights to impress upon the trial Court that the place of occurrence was flooded with light so that he could identify the culprits. 4. According to the testimony of Mahakal Prasad (PW 2) just after 9 or 10 persons got down from a tempo, Shripal got up from the southern side of the Shankar Temple and came there In the cross-examination the witness has stated that the persons who had come in the tempo Were calling bad names by taking the names of Shripal, Madan Mohan and Shripal's elder brother Shekhar. It is quite unnatural that Shripal even finding the culprits in a violent mood went towards the spot bare handed all alone. Witness Mahakal Prasad, in Para No. 12 has deposed that in fact he did not see Shripal coming from his house and he saw him for the first time standing at a distance of 2 to 3 paces away from the Shankar Temple. 5. Witness Mahakal Prasad (PW 2) has further deposed in the cross-examination that appellants Rajendrasingh and Mohanlal had simultaneously raised their pistols towards the direction where Shripal was standing. From the spot map it is clear that Shripal was standing at point No.3 and the appellants had fired the pistols from point No.2, which is at a distance of about 18ft. Shripal (PW 7) is a young man of 22 years of age, but he could not identify the assailants from that distance. According to the spot map the witness Mahakal Prasad (PW 2) was standing at point No.5 which is at a distance of 28 ft. from point No.2 from where the appellants were said to have fired at Shripal. It is difficult to believe that Mahakal Prasad, an old man of 71 years of age could correctly identify the appellants from a distance of 28ft. 6. The other eye-witness Laxman Singh (PW 9), according to the spot map, was standing at point No.6 which is at a distance of 35 ft. from point No.2. This witness has deposed that in the night of the said incident when he was repairing the grinding mill he saw one tempo coming from the side of Lodhipura No.2 in which 8 or 10 persons were sitting and they were shouting 'maro maro'. This witness has further deposed that the tempo then turned towards Lodhipura No. 1 and he heard the noise of the stopping of the tempo. According to this witness when he went towards that side he saw about 6 to 15 persons armed with deadly weapons, out of whom he identified the appellants by their faces. This witness has further deposed that the two appellants were armed with revolvers and no sooner he reached the spot he saw that two shots were fired and out of them one shot caused injury to Shripal. This witness has further deposed that the two appellants were armed with revolvers and no sooner he reached the spot he saw that two shots were fired and out of them one shot caused injury to Shripal. In the cross-examination this witness has stated that the fact that Shripal had sustained injury by a bullet was known to him on the third day of the said incident. This witness in the cross-examination also stated that he had given the names of the persons who opened the fire. But in the examination in chief the witness had identified the appellants by face. This witness has made a definite statement in the examination-in-chief that he did not remember the names of the persons whom he had identified on the spot at the time of the incident. This witness has deposed that no sooner he saw the firing of the revolvers he ran away from the place of occurrence. According to this witness when he reached at the spot the tempo was not there. It is, therefore, quite probable that before this witness reached the spot the miscreants had disappeared in the tempo after firing with certain fire arms. According to this witness when he reached at the spot certain persons of the locality had collected there, but he could not give out the name of a single person of his acquaintance. Witness Mahakal Prasad (PW 2) is known to the witness Laxmansingh as the latter is the tenant of the witness-Mahakal Prasad with respect to the premises in which he is running the flour mill. Thus, in case Mahakal Prasad was there, witness Laxman Singh ought to have noticed him. The witness Mahakal Prasad also does not say about the presence of Laxman Singh at the spot. He also does not say that Laxman Singh was repairing his flour mill just before the said occurrence. 7. Thus, on appreciation of the evidence of the two eye-witnesses I am of the view that their evidence is not reliable. It is quite probable that these witnesses were not present at the spot at the time of the said occurrence and they reached t here after the miscreants had disappeared from there. 8. It may also be noted that according to the case of the prosecution both the appellants Rajendrasingh and Mohanlal shot the revolvers either simultaneously or one after the other. 8. It may also be noted that according to the case of the prosecution both the appellants Rajendrasingh and Mohanlal shot the revolvers either simultaneously or one after the other. It would be, therefore, difficult 10 say as to whose bullet hit Shripal. The trial Court, therefore, erred in holding that it was the appellant Rajendra Singh who caused the injury by his revolver. It is true that one pistol was seized from appellant Rajendrasingh, vide seizure memo Ex. P-8, but the prosecution has not proved from the evidence of ballistic expert that the pistol seized from the possession of appellant Rajendra Singh was in working condition and that it was actually fired. Therefore, the seizure of the pistol does not help the prosecution in connecting the appellant Rajendrasingh with the perpetration of the said crime. Appeal allowed.