JUDGMENT 1. - Respondent Gurdeosingh was tried by the Additional Sessions Judge, Sri Ganganar for the offences under Section 307 IPC and under Sections 25 and 27 of the Arms Act. By his Judgment dated October 25, 1976, the learned trial Judge held the respondent not guilty for the aforesaid offences and acquitted him of the charges against him. Being aggrieved by that Judgment of acquittal, the State of Rajasthan has preferred this appeal. 2. Briefly stated the facts of the case leading to the trial of the respondent are that in a case of murder of one Haripal, brother of Mahendra Singh and uncle of the respondent, there was suspicion against the injured Hamamsingh (PW 6) that he was siding the accused in that case. This suspicion caused grievance to respondent. On September 17, 1973, the evidence of Harnamsingh was recorded in the trial for murde of Haripalsingh. After giving the evidence, Harnamsingh was taking tea sitting on a bench outside the premises of the Court of Sessions Judge, Sri Ganganagar, when Gurdecsingh went there with a 12 bore country mode pistol in his hand and fired the shot towards Harnamsingh, which hit has neck below the left ear. Lalsingh and Harlal were standing opposite the road at the time of alleged incident. The respondent is said to have thrown the pistol and the bandoleer at the spot and ran away. Ramjas, Harlal and others took Harnamsingh to the Hospital and got him admitted there. Dr. M. P. Agrawal, (PW 5), examined the injuries of Harnamsingh on September 12, 1973 at 1.30 P. M. and prepared the injury report Ex. P. 11. He noted the following injuries on his person : 1. Lacerated wound with inverted margins and fracture of left mandible x Y X probe passing to right side and touches the bone (mandible) while going under it. The injury was situated on the left side of the neck behind the ranus of mandible near the angle of jaw 1" below the ear. 2. Soft tissue swelling all over under the above wound front of the neck on submandibular region and floor of mouth. A bog metallic foreign body palpable under the right submandibular region. 3. Both the injuries were grievous and were caused by firearm. The duration of the injuries was fresh within 6 hours. Dr, Agarwal advised X-ray for both the injuries. Dr. A bog metallic foreign body palpable under the right submandibular region. 3. Both the injuries were grievous and were caused by firearm. The duration of the injuries was fresh within 6 hours. Dr, Agarwal advised X-ray for both the injuries. Dr. S. S. Bhargava (PW I) x-rayed the injuries of Harnam Singh. The X-ray report is Ex. P. 1 After examining all the films of the X-ray Dr. Bhargava opined as under : (a) A large rounded metallic shot like shadow was seen below and behind the body of right mandible. (b) An irregular fracture of the left mandible near the angle was detected. (c) Few irregular radio opaque metallic small shadows were seen in the vicinity of fracture. After about half an hour, the police reached the hospital and the statement of injured Harnamsingh Ex. P. 12 was recorded by Leeladhar S. I. Incharge, Kotwali, Sri Ganganagar. He sent Sadhusingh, Constable, to the Kotwali for getting the case having been registered. Leeladhar, Investigating Officer, went to the site and after inspecting it, prepared the site plan Ex. P. 8 A. He recovered the 12 bore country made pistol and an empty cartridge loaded in the gun vide memo Ex P.9 from the site. A bandolier of the catridges was also recovered at a distance of 75 paces from the site vide memo Ex. P. 10. The blood stained clothes of Harnam Singh were taken in possession vide memo Ex. P. 13. On September 20 ,1973, Gur-deosingh was arrested. There was no licence with Gurdeosingh for the pistol recovered at the site and, therefore, for his prosecution under section 3/25 of the Arms Act, sanction was obtained from the District Magistrate Sri Ganganagar. The pistol and the cartridges were sent to the Forensic Expert whose report is Ex. P. 15 In the opinion of the Forensic Expert, the 12 bore country made pistol was in working order, the 12 bore cartridge case recovered from the chamber of the country made pistol had been fired from the pistol, the lead pellet contained in parcel 'B' could have been fired from the 12 bore country made pistol and the lead pellet could have come from the cartridge case. 4. After completion of necessary investigation, charge-sheet against the respondent was filed in the Court of Chief Judicial Magistrate, Sri Ganganagar. 4. After completion of necessary investigation, charge-sheet against the respondent was filed in the Court of Chief Judicial Magistrate, Sri Ganganagar. The learned Magistrate committed the respondent to the Court of Sessions Judge, Sri Ganganagar to stand his trial. The learned Sessions Judge, transferred the case to the Court of Additional Sessions Judge, who chargesheeted the respondent of the aforesaid offences and recorded his plea. The respondent denied the charges and claimed to be tried. To substantiate its case, prosecution has examined 9 witnesses in all. In his statement under section 313 Cr. P. C. the respondent totally denied the allegations levelled against him. One defence witness was examined. 5. The learned Sessions Judge did not believe the prosecution version and passed the judgment of acquittal, which has led to this appeal by the State. We heard Mr. N. S. Acharya, learned Public Prosecutor for the State and Mr. M. L. Garg learned counsel for respondent and carefully examined the record of the case. 6. Learned Public Prosecutor strenuously contended that the learned Additional Sessions Judge has, without any reason, discarded the testimony of the injured Harnamsingh and the eye witness Harlal (P.W. 7), though there statements stand corroborated by the medical evidence. It has been urged by the learned Public Prosecutor that the suspicion about the injured Harnam singh siding the accused in the trial of murder of Haripalsingh was the motive for the respondent to commit this crime and, therefore, the finding of the innocence of the respondent cannot said to be justified. 7. Learned counsel for the respondent, controverting this argument, submitted that from the statement of Harlal itself it is clear that he could not have seen the firing of the pistol by anybody and. therefore, his statement in the court which is inconsistent with his previous statement give n before the police has been rightly disbelieved by the learned trial judge. It has also been argued by Mr. Garg that it could not have been possible for the injured Harnamsingh to see the assailant and, therefore, it is merely on account of suspicion that the respondent has been named by the it jured as being the assailant. It has also been argued by Mr. Garg that it could not have been possible for the injured Harnamsingh to see the assailant and, therefore, it is merely on account of suspicion that the respondent has been named by the it jured as being the assailant. It has also been urged that the position in which the assailant and the victim are said to be at the time of firing the shot, as stated by Harnamsingh, throws a doubt on his contention because in that case, the injury could not have been sustained on the left mandible. It has also been stressed by Mr. Garg that the learned Additional Sessions Judge has discussed in detail the evidence of the witnesses and his conclusion reasonably arrived at should not be disturbed by this Court hearing the appeal against acquittal. 8. We heard the rival contentions. 9. The prosecution case depends on the testimony of injured Harnamsingh and Harlal. Harlal has at first deposed in the trial that he had seen the respondent firing the pistol but in his cross-examination, he has admitted that he has not actually seen the pistol, being fired. According to him he had taken the tea with Harnamsingh and had gone to a distance of about 20 paundas near Lalsingh at the time when after about 20 minutes he heard the report of the gun fire. This statement of Harlal is inconsistent with the statement of the injured because the latter has stated that it was just at the time of his finishing the tea that the bullet hit his neck. A very important circumstance throwing doubt on the testimony of Harlal is that whereas in his deposition in the trial he has stated that he had seen Gurdeosingh running away after firing the pistol, his statement before the police is not corroborating this fact. His attention to his police statement Ex. D. was drawn where this fact is missing and the witness could not give any satisfactory explanation for not telling such a important fact to the police. Lalsingh is the real brother in law of injured Harnamsingh and latter has admitted his presence at the time of the incident. His attention to his police statement Ex. D. was drawn where this fact is missing and the witness could not give any satisfactory explanation for not telling such a important fact to the police. Lalsingh is the real brother in law of injured Harnamsingh and latter has admitted his presence at the time of the incident. Despite that for the reasons best known to the prosecution Lalsingh was not examined from the prosecution side He has clearly stated that when the report of the gun fire was heard, he and Harlal were there inside the court premises. This throws doubt on the veracity of the statement of Harlal and we are inclined to hold that the prosecution could not prove by convincing evidence that Harlal was there or some where near about the place of the incident and was in a position to see the respondent firing pistol and then running away from there. His testimony has, therefore, been rightly discarded by the learned trial Judge. 10. Harlal's evidence having thus been disbelieved the prosecution case depends on the solitary testimony of Harnamsingh injured. He has come with a case that on suspecting him for siding the accused in the case of murder of Haripal, his brother Mahendrasingh had threatened him a few days prior the present incident, that in case he would give evidence in that case, the former would see him. It has also been stated by Harnamsingh that two days prior to the incident, he was given a threatening by Gurdeosingh, respondent when he had come to Sri Ganganagar in connection with his evidence in the trial for murder of Haripal. He has specifically deposed that the incident had taken place on September 17, 1973 and he had come in that connection to Sri Ganganagar, a day prior to it. If it is so, then his version that two days prior to the incident, he was threatened by Gurdeosingh at Ganganagar is falsified. It is also relevant to note that it has not come on record that the injured had given evidence against the prosecution and in favour of the accused in the trial for murder of Haripal so as to give any cause for annoyance to the respondent. It is also relevant to note that it has not come on record that the injured had given evidence against the prosecution and in favour of the accused in the trial for murder of Haripal so as to give any cause for annoyance to the respondent. Haripalsingh was the brother-in-law of Harnamsingh and, therefore, unless there is any satisfactory evidence to prove his interest in the murder of Haripal, it cannot be said that there was any reason for the relatives of Haripalsingh being annoyed with him and attempt to kill him. 11. The learned Additional Sessions Judgehas discussed in detail the evidence of Harnamsingh and has given good reasoning for his conclusion that he is not a truthful witness. One of the reasons is that Harnamsingh has stated that the pistol and the bandolier were thrown by the assailant at the spot while running away, but the bandolier was recovered at a distance of about 75 paces from the place of the occurrence. A very important factor for consideration in this case is that Harnamsingh has stated that he was sitting with the face towards the south and the assailant was in the west and when he turned his neck the bullet hit it. If that was the position then it was not possible for him to sustain the injuries in the left side. Learned Public Prosecutor could not satisfactorily controvert this contention that in the situation, in which the assailant and the victim are said to be at the time of the firing of the shot, the injury should have been on the right side and not on the left side of the neck. Yet mother point worth consideration in the case is that the evidence of Harnamsingh regarding the distance between him and the assailant at the time of the firing of the shot is not supported by medical evidence. According to Harnamsingh, the distance between him and the assailant was only one or one and a half feet at the time of the ting of the pistol. This version does not find support from the medical evidence. Dr. M. P. Agrawal has stated that though he could not say the distance from which the firearm was fired by the victim but it must be beyond six feet as there was no searching and tattooing. This version does not find support from the medical evidence. Dr. M. P. Agrawal has stated that though he could not say the distance from which the firearm was fired by the victim but it must be beyond six feet as there was no searching and tattooing. Keeping this medical evidence in view, the statement of Harnamsingh about the assailant being quite close to him does not inspire confidence. 12. From our discussion above, we are of the opinion that Harnamsingh was not in a position to see the assailant and it was only on account of suspicion that he might have named Gurdeosingh as the person firing the shot at him. In this view of the matter, we are in perfect agreement with the conclusion of the learned Additional Sessions Judge that the prosecution could not prove by cogent, convincing and unimpeachable evidence that it was the respondent and nobody else who was the perpetrator of the crime. We, therefore, find no justification in reversing the finding of the learned trial Judge. 13. Consequently the appeal filed by the state being devoid of force is dismissed. The respondent is in jail, he shall be set at liberty forthwith, if not required in connection with any other case.Appeal dismissed - Respondent set at liberty. *******