JUDGMENT 1. Nandlal Jain and Phool Chand Jain, sons of Surajmal Jain, residents of Deoli, District Kota, were tried by the Sessions Judge, Kota on the charge of making an attempt on the life of Mohanlal Patwa (PW.2) Nandlal Jain was additionally tried in the same trial on the charge of murder of Dhanna Meena. Learned trial Judge acquitted Phool Chand Jain of the charge framed against him. He however convicted Nandlal Jain and sentenced him to imprisonment for life under section 302 I.P.C. Hi further convicted him under section 323 I.P.C. for causing hurt to Mohanlal Patwa and sentenced him to simple imprisonment for three months on that count. Nandlal Jain has appealed. 2. Nandlal Jain, who was employed in the Indian Navy at the relevant time was on a visit to his village aforementioned on April 9, 1975, when the tragic incident resulting in the death, by gun fire, of Dhanna Meena took place. The case of the prosecution is that shortly before the said incident there was another incident involving Nandlal Jain and Phool Chand Jain as aggressors and Mohanlal Patwa as victim. It is alleged that Nandlal Jain reproached Mohanlal Patwa for the alleged beating given by the latter to Nandlal's father. They traded abuses near a Neem tree in the vicinity of Kalu Dhobi's house. On the exhortation of Phool Chand, Nandlal struck, a lathi blow on the head of Patwa, Phool Chand struck another blow on Patwas back. Patwa fell down. Shrawan, son of Patwa injured Mangilal, Ram Parshad, Chhitar, Imamuddin, Ram Narayan, and Mohan Jat removed Patwa from there to his house. A little later, Nandlal and Phool Chand returned and stood near the bed of Patwa, threatening to kill him. Nandlal was armed with a validly licensed 12 bore gun. Dhanna Meens arrived there and pleaded with Nandlal to let the bygones be bogones and requested him to go back to his house. From there, all went out and collected infront of Mathra Lal 's house. According to the prosecution, Nandlal intentionally fired at and killed Dhanna Meena in the street between the houses of Mangilal Rathi (PW.4) and Mathralal. 3. On the other hand, the pleas in defence are that while Nandlal was on his way to his Khalian Patwa and his son Shrawan abused Nandlal. According to the prosecution, Nandlal intentionally fired at and killed Dhanna Meena in the street between the houses of Mangilal Rathi (PW.4) and Mathralal. 3. On the other hand, the pleas in defence are that while Nandlal was on his way to his Khalian Patwa and his son Shrawan abused Nandlal. Patwa clasped Nandlal and Shrawan struck a lathi blow which missed Nandlal and fell on Patwa. Nandlal went back to his house. It was after about an hour of this incident that Nandlal again came out of his house, this time carrying a loaded gun in his hand. He was on way to his Khalian, Dhanna, Shrawan, Ramlal and Mohan Jat surrounded him in the street and caught hold of his gun from its muzzle end. There was a struggle for the possession of the gun. Nandlal warned them to keep off as the gun was loaded. They did not hear his warning. The gun went off in the course of the struggle for its possession, thus hitting and killing Dhanna Meena. 4. The prosecution examined, among others, Ramlal, Mohanlal Patwa, Chhitar, Mangilal Rathi, Ram Narain,4Mohan Jat, Imamuddin, Ram Parshad and Dr. R. C. Das, as witnesses in support of its case. The accused did not produce any evidence in defence. 5. After hearing the aforesaid evidence, learned trial Judge concluded that, so far as Phool Chand is concerned, it was not proved that Phool Chand struck any blow on the back of Patwa as alleged by him and his witnesses. Even Dr. R. C. Das who conducted the medico-legal examination, did not find any injury on Patwa's back P. W. Ram Parshap gave evidence of exculpatory nature regarding Phool Chand. Consequently, he was acquitted by the trial court. 6. Relying on the evidence given by PWs. Mohanlal Patwa, Chhitar, Mangilal Rathi, and Ram Parshad, learned Trial Judge held that Nandlal accused had intentionally caused hurt to Patwa by giving a lathi blow on his head and therefore convicted and sentenced him under section 323 I.P.C. We have carefully examined the evidence of these witnesses and are of opinion that it would not be safe to place reliance on it. It will be seen that learned trial Judge himself is not quite sure about their evidence. It will be seen that learned trial Judge himself is not quite sure about their evidence. That is why he was constrained to observe in paragraph 13 of his judgment that the evidence of these witnesses "is not very much consistent about the origin of the quarrel and the manner in which the lathi was struck by Nandlal on the head of Mohan". This inconsistency in the evidence coupled with the non-production by the prosecution of Shrawan son of Patwa injured as a witness for the prosecution would make it reasonable to believe that Shrawan wielded a lathi in the course of the quarrel between him and his father on one side and accused Nandlal on the other. Ram Parshad PW admitted that Shrawan had abused Nandlal. He further admitted, rather grudgingly,that Shrawaa was armed with a lathi. He, however, stated that he did not see Shrawan wielding the lathi during the fight. This part of his statement does not make much impression. Mangilal PW., who at first denied this fact, admitted a little later in cross-examination that Patwa PW and the appellant had grappled with each other. The version of the accused that it was in this situation that Shrawan struck a lathi blow which missed him and fell on Patwa deserves to be seriously considered in the circumstances of the case. We would accordingly hold that the offence under section 323 I.P.C. is not proved beyond reasonable doubt against the appellant. 7. Similarly, the charge under section 302 I P. C. cannot be said to have been proved beyond doubt. Dr. R. C Das who conducted the postmortem, stated that Dhanna must have been shot from a close range between 1 and 3' In suport of his opinion, Dr. Das cited the fact that the pieces of the cover on the mouth of the cavity of the cartridge were found embedded in the wound of entry in the dead body. We may, therefore, safely hold that Ram Narain and Imamuddin PWs who stated that the appellant-accused fired the gun shot from a distance of 12'to 15' from Dhanna deceased were not telling the truth. They made this statement in their obvious anxiety to rule out the possibility of the court accepting the theory of the loaded gun going off in the course of the struggle for its possession. 8. They made this statement in their obvious anxiety to rule out the possibility of the court accepting the theory of the loaded gun going off in the course of the struggle for its possession. 8. The evidence produced by the prosecution in support of its allegation that the accused-appellant intentionally fired the shot at Dhanna from a distance of 2 or 3 feet is far from satisfactory. It is highly inconsistent and materially disc-repent. For example, Ram Narain (PW.5) stated that both he and Mohan Jat (PW8) were present at the shop of one Hiralal when they were informed that Mohanlal Patwa had been injured. He stated that on hearing that news, Mohan Jat immediately proceeded in the direction of Patwa's house and that he followed him in that direction. He stated that on his way, near Mathralal's house he saw in the street light that the accused had shot Dhanna dead. He added in this context that before firing the accused had repeatedly asked Dhanna to get out of his way (dur hat ja, dur hat ja) 9. On the other hand, Mohan Jat (PW.6) has given entirely a different version. He says that on his way from Hira Lal 's shop to Patwa's house, he met the accused who threatened him with his gun and that he stood before the accused daring him to fire at him. According to him, the accused tamely left, thus permitting him to go to Patwa's house. He further states that there in Patwa's house he found Ram Narain (PW) and others engaged in giving first aid to Patwa injured and that sometime later, the accused armed with the gun and his brother Phool Chand armed with a lathi came to Patwa's house and once again the accused threatened him. aiming his gun at him. He further says that Dhanna deceased took away the accused and that the latter fired at Dhanna in the street near Mathralal's house. The witness admitted his previous enmity with the accused. 10. Now, it is quite clear that Ram Narain and Mohan Jat have given evidence which is contradictory in material particulars. We are of opinion that both of them are not reliable witnesses. 11. If Imamuddin (PW.7) is to be believed, the accused was seen by him carrying a gun in the street and sitting infront of Mathralal's house. 10. Now, it is quite clear that Ram Narain and Mohan Jat have given evidence which is contradictory in material particulars. We are of opinion that both of them are not reliable witnesses. 11. If Imamuddin (PW.7) is to be believed, the accused was seen by him carrying a gun in the street and sitting infront of Mathralal's house. He heard him challenging Mohan Jat and Dhanna trying to pacify him. He further stated that thereupon he fired a shot at Dhanna. He made no mention of any warning etc. given by the accused to Dhanna asking him to get out of his way. 12. Mangilal Rathi (PW. 4) is also a witness whose evidence does not inspire much confidence. His evidence has already been discussed to some extent in relation to the injury of Mohanlal Patwa. Regarding the fatal injury to Dhanna, he stated that while on their way to Patwa's house, the accused-appellant and Phool Chand met Dhanna in the street and that Dhanna tried to stop them from going to Patwa's house whereupon the appellant fired at Dhanna and killed him. The partisan character of this witness would be evident from the fact that he falsely stated that after killing Dhanna, the accused again fired at them. He quickly realised the futility of this statement and tried to tone it down stating that the accused had merely aimed the gun at them without firing it. No other witness has stated that the accused fired any shot or aimed his gun at any one after Dhanna had been killed. 13. Mohanlal Patwa (PW. 2) gave evidence regarding the fatal injury to Dhanna deceased. He stated that after threatening him in his bed and others who were present in his house, the accused-appellant and Phool Chand went out in the streat where they all collected infront of Mathralal's house. He would have us believe that lying in his bede he heard the gun shot fired in the street. This avidence does not help the prosecution at all. 14. Turning now to the statement of Ramlal (P.W. 1), we find that he has materially changed his version in the trial as compared to his statement Ex. D. 1 recorded during the investigation. His version in the trial is that he went to the house of Patwa to play Holi and that the accused-appellant and Phool Chand and their father. Turning now to the statement of Ramlal (P.W. 1), we find that he has materially changed his version in the trial as compared to his statement Ex. D. 1 recorded during the investigation. His version in the trial is that he went to the house of Patwa to play Holi and that the accused-appellant and Phool Chand and their father. Suraj Mai arrived there. He was obviously trying to rope in the father of the accused-appellant. No other witness mentioned the so-called arrival of Suraj Mai in Patwa's house. In Ex. D. 1 he stated that he had reached Patwa's house after hearing the noise from there. 15. It will thus be seen that none of the witnesses produced by the prosecution as eye-witnesses has given a truthful account of the occurrence. The medical evidence strongly probabilities the plea in defence that the gun which was loaded went off in the struggle for its possession. Some of the witnesses have stated that the accused appellant was repeatedly asking Dhanna deceased that ja, dur hat ja .' These remarks of the accused would also lend support to his defence that he kept telling Dhanna and others that the gun was loaded and that therefore they should stop trying to snatch it. Under the circumstances the accused-appellant deserves the benefit of doubt. 16. In conclusion, we allow this appeal, set aside the order of conviction and sentence and instead acquit the appellant. He shall be released forthwith if not required to be detained in connection with any other case. *******