JUDGMENT 1. - In a trial under sections 307, 307/34 Indian Penal Code and Section 25(1)A of the Arms Act against four persons by the Additional Sessions Judge, Hanumangarh, three persons viz. Jagtar Singh, Singarasingh and Nakshtra Singh appellant was convicted for the offence under section 326 Indian Penal Code and sentenced to six months rigorous imprisonment and a fine of Rs. 1,000/-, in default of payment of fine to undergo one month's simple imprisonment by the judgment dated November 30, 1976. 2. The case against the appellant and others was registered on August 30, 1974 and 9.25 P.M. at Police Station, Tibi on the information lodged by Milkha Singh (PW 1) to the effect, that on that day at 5.00 p.m. when he accompanied by his uncle Gahan Singh, was going through the street at Talwada Bazar to purchase sugar. That, when they reached near `gurudwara', Lakha Singh met them and informed that Saktra Singh, Banta Singh and Nakshtra Singh were sitting in the `gurudwara' and would attack them. Just then those three persons came running. Banta Singh at the time was aimed with `barchhi' and Saktra Singh and Nakshtra Singh had pistols with them. Banta Singh tried to inflict `burchhi' injuries to Gahan Singh but the latter snatched it from him. Saktra Singh fired the pistol which hit Milkha Singh on his left shoulder. Nakshtra Singh fired the pistol towards Gahan Singh but the aim failed. Milkha Singh went inside the house of Riju Singh. Just then Darbara Singh reached there and called Gahan Singh out. Sangara Singh came with a `gandasa' causing injuries to Gahan Singh. A number of persons assembled there and the assailants took to heels. 3. During investigation accused were arrested and on the information of Nakshtra Singh one pistol was recovered. The chargesheet was filed in the Court of Judicial Magistrate, First Class, Hanumangarh, who committed the appellant and others to the Court of Additional Sessions Judge, Hanumangarh to stand their trial. At the trial, prosecution examined eight witnesses in all. 3. During investigation accused were arrested and on the information of Nakshtra Singh one pistol was recovered. The chargesheet was filed in the Court of Judicial Magistrate, First Class, Hanumangarh, who committed the appellant and others to the Court of Additional Sessions Judge, Hanumangarh to stand their trial. At the trial, prosecution examined eight witnesses in all. The defence taken in the statements under section 313 of the Code of Criminal Procedure (by Nakshtra Singh and Jagtar Singh) was that Gahan Singh and Milkha Singh attacked Jagtar Singh and caused injuries to him, and then at the instigation of Gahan Singh Virsa Singh, brother of Milkha Singh, attempted to shoot Saktra Singh, but because of his stooping down the shot hit Milkha Singh. Other two accused denied the allegations. The learned Additional Sessions Judge, did not place reliance on the prosecution evidence for Jagtar Singh, Singara Singh and Nakshtra Singh and acquitted them of the charges. Saktra Singh was acquitted for the offence under section 25 of the Arms Act and 307 Indian Penal Code but was held guilty under section 326 Indian Penal Code and was sentenced as stated earlier. 4. Being aggrieved by his conviction and sentence Saktra Singh has preferred appeal in this Court. 5. I heard Mr. B.K. Chauhan, learned counsel for the appellant and Mr. M.C. Bhati, learned Public Prosecutor for the State and carefully examined the record of the case. 6. The learned counsel for the appellant strenuously contended that it was Banta Singh who had caused injuries to Gahan Singh but the investigating agency, for the reasons best known to it, did not put up chargesheet against Banta Singh. That the reason for the prosecution witnesses not naming Jagtar Singh amongst the accused party was that Jagtar Singh had sustained serious injuries and there was no explanation by the prosecution for the same. According to the learned counsel, the defence story stands duly substantiated from the statements of the prosecution witnesses themselves. It has been vehemently contended that the gun stated to have been recovered from the appellant was not in working order and there is no expert opinion of its being fired at all. 7. The learned Public Prosecutor fairly admitted that there were some contradictions in the statements of the injured persons and the reason about Banta Singh being left and Jagtar Singh being challaned is not very much clear. 7. The learned Public Prosecutor fairly admitted that there were some contradictions in the statements of the injured persons and the reason about Banta Singh being left and Jagtar Singh being challaned is not very much clear. But he urged that it would not in itself be a ground for holding Saktra Singh not guilty. The learned Public Prosecutor submitted that the statements of Nakshtra Singh and Gahan Singh are consistent regarding the part played by Saktra Singh in the incident and there is no reason to disbelieve their testimony. 8. In this appeal, the question to be determined of course is as to whether the conviction of Saktra Singh has any justification or not. The other three accused having been acquitted, their case does not require any consideration. But the fact cannot be over-looked that they were the co-accused at the trial and the reason for which they were acquitted, may be taken help of by the appellant. 9. This is clear that Milkha Singh (PW 1) and Gahan Singh (PW 2) on whose statement the prosecution case rests, have categorically denied the presence of Jagtar Singh at the time of the occurrence. This is also evident that Banta Singh, for the reasons best known to the prosecution has not been arrayed in the line of the accused. Banta Singh has been examined as defence witness and has supported the defence version of Gahan Singh and Milkha Singh causing injuries to Jagtar Singh and Virsa Singh firing the gun hitting Milkha Singh. 10. Be it as it may, it can safely be inferred that the prosecution has not come with clean hands. The arguments for the learned counsel for the appellant, that, because Jagtar Singh was injured in the incident, Milkha Singh and Gahan Singh wanted to avoid stating his presence at the time of the incident has ample force. The evidence of Milkha Singh (PW 1) and Gahan Singh (PW2) relating to Singhara Singh and Nakshtra Singh has been disbelieved by the learned trial Judge. Virsa Singh (PW 3) who is said to have taken the injured Milkna Singh and Gahan Singh to their houses has also turned up hostile to the prosecution. The evidence of Milkha Singh (PW 1) and Gahan Singh (PW2) relating to Singhara Singh and Nakshtra Singh has been disbelieved by the learned trial Judge. Virsa Singh (PW 3) who is said to have taken the injured Milkna Singh and Gahan Singh to their houses has also turned up hostile to the prosecution. Bai Kaur (PW 4) wife of Riju Singh, in front of whose house the incident is said to have taken place and in whose house Milkha Singh and Gahan Singh are said to have entered after Milkha Singh was injured, has also been declared hostile by the prosecution. The prosecution case, therefore, rests on the testimony of Milkha Singh (PW 1) and Gahan Singh (PW 2) alone, as stated earlier, they have not supported the prosecution case regarding any part played by Jagtar Singh. 11. Dr. Roop Singh (D.W.3) had examined the injuries of Jagtar Singh and noted two incised wounds on his person. Suggestions have been made to the prosecution witnesses in the light of the defence taken. Though they have denied the fact of Gahan Singh (P.W.2) and Milkha Singh (PW 1) causing injuries to Jagtar Singh or Virsa Singh firing the gun, but admitted the factum of cross case for the injuries of Jagtar Singh. Milkha Singh (PW l)has admitted the fact of himself his brother Virsa Singh and uncle Gahan Singh being accused in a case under section 307 Indian Penal Code for causing injuries to Jagtar Singh. Gahan Singh has also stated that there was a criminal case under section 307 Indian Penal Code against Virsa Singh, Milkha Singh and himself for causing injuries to Jagtar Singh and firing the gun towards Saktra Singh. The witness further admitted that, that case relates to the incident of same time and occurrence to which the present case relates. Virsa Singh (PW 3) has also admitted that there is a criminal case pending against him, Milkha Singh and Gahan Singh under section 307 Indian Penal Code relating to the incident of the same date, place and time, for causing injuries to Jagtar Singh and firing a gun towards Saktra Singh. Umed Singh, Station House Officer (PW 8) has also supported the contention and stated that at the time of his arrest Jagtar Singh had injuries on the chest and a case under section 307 Indian Penal Code was registered in that regard. Umed Singh, Station House Officer (PW 8) has also supported the contention and stated that at the time of his arrest Jagtar Singh had injuries on the chest and a case under section 307 Indian Penal Code was registered in that regard. When there was incised wounds on the person of Jagtar Singh and there is evidence that those injuries were sustained at the time, place and date of the present incident, it was incumbent upon the prosecution to explain those injuries. Failure on the part of the prosecution to do so, coupled with the fact that the two injured and Virsa Singh, who according to the defence was responsible for firing the shot which according to Saktra Singh hit Milkha Singh were accused in a cross case, throws doubt on the truthfulness of the prosecution case or at least to this extent that the prosecution had not placed the true picture before the Court. I am strength end my opinion also by the reason that the two injured did not name Jagtar Singh amongst the assailants though his presence has been proved by the circumstances of the case. 12. It is also pertinent to note that there are major contradictions in the statements of Milkha Singh (PW 1) and Gahan Singh (PW 2 in their statements before the police and at the trial. Milkha Singh (PW 1) has disowned the version given before the police and has stated that the opposite party got his statement in Ex,P. 1 wrongly recorded by giving money to the police. All this shows that the fact regarding the origin of the quarrel and the subsequent acts of both the parties have not been correctly put up at the trial. 13. A very important factor in the case requiring attention is, that, according to the prosecution witnesses there was pukka 303 pistol with Saktra Singh appellant and it was that gun which he had used. The evidence of the investigating officer is that there were pellet marks on the shirt of the injured Milkha Singh. The learned counsel for the appellant has urged that in case it was a 303 gun, there could not have been pellet marks on the shirt, rather there should have been wound by the bullet. The evidence of the investigating officer is that there were pellet marks on the shirt of the injured Milkha Singh. The learned counsel for the appellant has urged that in case it was a 303 gun, there could not have been pellet marks on the shirt, rather there should have been wound by the bullet. The statement of Milkha Singh (PW1) is that Saktra Singh had fired the gun towards him only from a distance of one `balishth', while the medical evidence is that the injuries must have been sustained from a distance of about 5'. It is very relevant to observe that the gun said to have been recovered from the appellant is an ordinary gun and that too was not in working order at the time of its recovery. The defence witnesses Gaje Singh (DW 2), Head Constable of Police Line Ganganagar appearing as an expert in fire arms, in many cases in the courts, has stated that the pistol Art. I was not in working condition because of the trigger and the hammer not being in workable order. According to the witness, Article 2 empty cartridge could not have been fired by that pistol. Umed Singh (PW 8), Investigating Officer, who recovered the pistol Article 1 from the appellant Saktra Singh has also stated that Article 1 pistol cannot be opened and trigger cannot be pressed because of rust. The witness has also stated that Article 2 empty cartridge could not fully enter the pistol Article 1. 14. All these factors throw further doubt on the prosecution case that Saktra Singh had used the gun at the time of the incident or that the gun recovered from his possession was used in commission of the crime. This fact taken along with the other infirmities in the prosecution case, creates suspicion in the fairness of the investigation. The failure to explain the injuries of Jagtar Singh lead to the conclusion that incident might not have taken place in the way and the circumstances, prosecution alleges. 15. This being the position, the argument of the learned counsel for the appellant is legitimate that the conviction of the appellant cannot be said to be justified. 16. In view of the above discussions, the appeal is allowed and the conviction and sentence of the appellant Saktra Singh for the offence under section 326 Indian Penal Code is set aside. This being the position, the argument of the learned counsel for the appellant is legitimate that the conviction of the appellant cannot be said to be justified. 16. In view of the above discussions, the appeal is allowed and the conviction and sentence of the appellant Saktra Singh for the offence under section 326 Indian Penal Code is set aside. He is already on bail and need not surrender to it. His bail bonds stand discharged.Appeal Allowed. *******