B. C. JAUHARI, J. ( 1 ) - This appeal has been filed by Sadhu Singh and Sonpal Singh against their conviction under section 324 Indian Penal Code and a sentence of two years R. I. recorded by Sri P. B. Mashiwal. III Additional Sessions Judge, Moradabad vide his judgment dated 1st June 1976. The case against the appellants was that they along with others framed an unlawful assembly, the only object of which was to kill Vijai Singh and they committed rioting armed with deadly weapons. It is said that with that object on the 30th July, 1968 at about 6. 30 P. M. in village Kalyanpur they went to the house of Yijai Singh, P. W. 1 who was sitting in his Baithak. The appellants were armed with pistols while their companions who have been acquitted by the learned Sessions Judge were armed with lathis and spears. They surrounded Yijai Singh and Sonpal Singb told him that he would be set right for lodging a report against Dig Pal Singh. Sadhu Singh appellant fired but Yijai Singh went inside his house and bolted it from inside and the pellets thus could not hit him but struck at the door. The complainant wanted to run away from the house but Son Pal Singh and Sadhu Singh appellants along with others jumped inside the house. Then Yijai Singh started running to save himself Sonpal appellant then fired which hit him at the back. He rushed to his room and bolted it from inside and Sadhu Singh fired a second time which did not hit him but the pellets struck at the door. The witnesses then arrived and intervened and pacified the accused who went saying that they would come another time and do away with him. Yijai Singh went to P. S. Mughalpura and lodged a report at 1. 40 P. M. The report, Ext. Ka-1 was lodged at 10. 40 P. M. This report was taken down by Rajendra Prasad, Head Constable, P. W. 7 who registered the case in the general diary, copy of which is Ext. Ka-3. The shirt or by Vijai Singh was taken into possession and a memo Ext. Ka-5 was prepared. Dr. D. P. Manchana, P. W. 6 examined the injury of Vijai Singh at 1 A. M. on the 31st July, 1968 and found gun shot wounds mentioned in the report Ext. Ka-3. The shirt or by Vijai Singh was taken into possession and a memo Ext. Ka-5 was prepared. Dr. D. P. Manchana, P. W. 6 examined the injury of Vijai Singh at 1 A. M. on the 31st July, 1968 and found gun shot wounds mentioned in the report Ext. Ka-4, Sri L. N. yagi, P. W. 8 started the investigation of the case, took down the statements of the witness, inspected the locality and prepared the site plan Ext. Ka-4. Thereafter the investigation was taken up by Sri Chandan Singh Visht, P. W. 5 who took down the statement of Abdul Karim and submitted a charge sheet, Ext. Ka-31 against the accused. ( 2 ) THE accused denied the allegations against them and attributed their implication in this case owing enmity. The learned Sessions Judge recorded a conviction under section 324 against the appellants but acquitted all the other co-accused. ( 3 ) I have heard the teamed counsel for the appellants and the learned State counsel at great length and come to the conclusion that this appeal must be allowed and the conviction recorded by the learned Sessions Judge must be set aside. ( 4 ) AT the outset it must be said that the learned Sessions Judge recorded a conviction only under section 324 simplicitor against the appellants. He acquitted the appellants of the charge under section 452 of the Indian Penal Code. This acquittal under section 452 automatically disputes the entire prosecution version because the firing is said to have taken place inside the house and the story of the prosecution is to the effect that the accused had entered the house and the appellants Sadhu Singh and Sonpal Singh had fired and the tiring by Son pal alone hit the complainant. If the story of entering the house is disbelieved, then the other part of the story, namely, the firing inside the house will also to some extent receive a set back. The learned Sessions Judge in his judgment has while acquitting the other appellants said that the F. I. R. was delayed and then was a tinge of consultation and exaggeration and there was a tendency to unnecessary roping a large number of persons. The benefit of this observation, however, was not extended to the appellants. The learned Sessions Judge in his judgment has while acquitting the other appellants said that the F. I. R. was delayed and then was a tinge of consultation and exaggeration and there was a tendency to unnecessary roping a large number of persons. The benefit of this observation, however, was not extended to the appellants. To my mind when the major part of the story of the prosecution was disbelieved, there is no guarantee that the statement of the complainant implicating the appellants must bear of truth. ( 5 ) APART from what has been said above it would be seen that the prosecution relies in this case on the statements of Vijai Singh, P. W. 1, Indrapal Singh, P. W. 2, Amar Singh, P. W. 3 and Bhagwan Singh, P. W. 4. The complainant in his cross-examination has said that he does not know whether his father married twice. Then he even did not know where his real brother Bhagwan Singh lives and yet in the next breath he says that he lived with me and had come as a witness in this case that lay. He does not know whether there is a step mother who is living in Punjab although he admits that Digpal is his step brother. He admits that Indrapal Singh, P. W. 2 is his brother. Similarly he admits that Amar Singh, P. W. 3 is also his cousin. The he makes the important admission that he docs not know which witnesses were cited by in the report. He admits that he does not know where the witnesses were standing and held not see the witnesses. He admits having been convicted in a case under section 25 of the Arms Act. Then his enmity towards the accused is admitted and it is said that this occurrence was a sequal to that enmity. He admits that Sadhu Singh appellant murdered Han Singh at first he denied but later on admitted that he was a witness in that case. Then there were 197/117 Criminal Procedure Code proceedings between the accused and him. Thus on his own showing he is highly inimical to the accused and, therefore, his sole testimony implicating the accused cannot be relied on for convicting the accused. ( 6 ) INDRAPAL Singh, P. W. 2 as admitted by the complainant is his brother. Then there were 197/117 Criminal Procedure Code proceedings between the accused and him. Thus on his own showing he is highly inimical to the accused and, therefore, his sole testimony implicating the accused cannot be relied on for convicting the accused. ( 6 ) INDRAPAL Singh, P. W. 2 as admitted by the complainant is his brother. This witness admits that his father Kabul Singh had a litigation with Munshi Singh which ended in favour of Munshi Singh. This Munshi Singh is the father of the appellants. Further he admits that his father had lodged a report of theft against the appellant Son Pal Singh. Then he admits that a report was lodged against him by Balwant Singh, brother of co-accused Meer Singh. Thus he is also highly inimical to the accused. Then he makes an important admission that at the time of the occurrence it was sun set and it was rainy season and there were clouds. Then he upsets the whole prosecution version by saying that he only identified Sadhu Singh and Rameshwar Singh amongst the accused and could not identify the others. Later on he made a clear admission that he only saw two persons and did not go inside the house. ( 7 ) AMAR Singh, P. W. 3 in his examination-in-chief said that he did not see any fire arms with any one. He is also a cousin of the complainant. His statement docs not prove in anything against the accused. ( 8 ) THE last witness Bhagwan Singh, P. W. 4 is the real brother of the complainant. After supporting the entire prosecution version proving the complicity of the appellants he admitted in the cross- examination that he was inside his house when the occurrence was taking place and when the accused ran away, then he opened the door of the house and came out. Thus his statement proves nothing. ( 9 ) CONSIDERING all the facts and circumstances of this case I feel that although the prosecution has succeeded in establishing that the prosecution has succeeded in establishing that the complainant Vijai Singh was injured as a result of gun shot wounds in some accident which took place on the 30th July, 1968, it has not been established beyond doubt that the appellants were the persons who perpetrated the offence. The evidence produced by the prosecution is thoroughly unsatisfactory and consists of witnesses who are highly inimical to the appellants. Under the circumstances the conviction recorded by the learned Sessions Judge cannot be sustained. ( 10 ) THE appeal is allowed. The conviction recorded by the learned Sessions Judge is set aside. The appellants are on bail. They need not surrender. Their bail bonds are discharged. Appeal allowed. .