JUDGMENT 1. - Appellant Mohansingh was tried for offences under Section 307, I.P.C., and Sections 25 and 27 of the Arms Act, by the Additional Sessions Judge No. 2, Jodhpur. By the judgment dated 8th February, 1977, the appellant was held guilty for the aforesaid charges and sentenced to three years rigorous imprisonment & a fine of Rs. 100/-, in default, to undergo one month's rigorous imprisonment for the offence under Section 307, I.P C., and to three months' rigorous imprisonment each for the offences under Section 25 and 27 arms Act, with an order that the substantive sentences awarded for the three counts shall run concurrently. 2. Briefly stated, the facts of the case giving rise to the trial and the appeal filed in this Court, as under:- There was a dispute regarding one `Bara' between Jabarsingh and Prithvisingh (D.W. 1), father of the appellant Mohansingh. On 24-9 1975 appellant Mohansingh, along with his brother Gangasingh, armed with guns, went, outside the house of Jabarsingh (P.W. 1) and asked him to come out so that he may take the revenge. On hearing noise Jabarsingh's mother came out of the `Padwa' (Jhumpa). Jabarsingh, who was confined to bed because of illness, rushed outside to bring her back inside the house. When he went outside, the appellant and his brother Gangasingh fired the shots. The appellant had with him a 12 bore gun and Gangasingh was having a muzzle loading gun. Jabarsingh's mother fell on his son Jabarsingh in order to rescue him. The appellant and the co-accused warned the lady to be away, otherwise she would also meet her death at their hands. Jabarsingh got up and rushed into another room. The neighbours reached the site and made the appellant and Gangasingh understand. They left the place and went to their `Malia' on the first floor. Therefrom Mohansingh fired the gun shots and the pellets struck in the wall of the `Padwa' of complainant Jabarsingh. Jabarsingh went to police Station, Osian, and lodged an oral report. Hameer Singh, L.C., caused the report reduced into writing in the `Rojnamcha'. P.W. 14 Loonsingh, Head Constable. In charge of the Police Station that day, proceeded for investigation and reached village Kapuria at the house of complainant Jabarsingh on 25th September, 1975, at 5,00 P.M. He inspected the site, took out the pellets from the wall and prepared necessary memos. Hameer Singh, L.C., caused the report reduced into writing in the `Rojnamcha'. P.W. 14 Loonsingh, Head Constable. In charge of the Police Station that day, proceeded for investigation and reached village Kapuria at the house of complainant Jabarsingh on 25th September, 1975, at 5,00 P.M. He inspected the site, took out the pellets from the wall and prepared necessary memos. During the course of investigation one 12 bore gun, ARt. 1, was recovered from the possession of Prithvisingh (D.W. 1), father of the appellant. Prithvisingh also produced the licence of the gun. 3. After completion of investigation, charge-sheet against the appellant Mohansingh was filed in the Court of Munsif and Judicial Magistrate, District Jodhpur. The learned Magistrate finding a prima faice case exclusively triable by the Court of Session, committed the accused to the Court of Sessions Judge, Jodhpur, to stand his trial there. The case on the transfer reached the Court of Additional Sessions Judge No. 2, Jodhpur, who after charge-sheeting the accused-appellant for the aforesaid offences proceeded with the trial. The prosecution examined 14 witnesses in all to substantiate its case. The appellant in his statement under Section 313, Cr.P.C., totally denied the allegations levelled against him and stated that because of enmity with his father Prithvisingh, the complainant and the witnesses had deposed against him. The learned Additional Sessions Judge placing reliance on the prosecution evidence, passed the judgment under appeal. 4. I heard Mr. B.K. Bhatnagar, learned counsel for the appellant, and Dr S.S Bhandawat, learned public Prosecutor, and carefully examined the record of the case. 5. The learned counsel for the appellant strenuously contended that, had there been any intention to commit the murder of Jabarsingh, there was no difficulty for the appellant to attain the object, because Jabarsingh was quite within his reach when he came out of the house, as alleged by him, and his witnesses. Another ground of attack by the learned counsel is that all the witnesses either bear enmity with Prithvisingh, father of the appellant, or are witnesses against him in the litigation between him and Jabarsingh and, therefore, were interested in the complainant. Yet another point raised to criticise the prosecution evidence, is that the witnesses have given statements contradictory to each other. Yet another point raised to criticise the prosecution evidence, is that the witnesses have given statements contradictory to each other. It has also been stressed that there is no evidence to prove that the pellets, alleged to have been recovered., were fired from the gun recovered from Prithvisingh, father of the appellant. 6. Dr. S.S. Bhandawat, learned Public Prosecutor, controverting these contentions, submitted that there is the evidence of neighbours to the effect that the appellant and his brother Gangasingh initially fired the guns from outside the house of complainant Jabarsingh and then failing in their efforts to kill Jabarsingh, went to their own `Malia' and the appellant fired the shots therefrom. According to the learned Public Prosecutor it was by sheer luck that the complainant was saved. 7. The prosecution case, as evident from the police statement of Jabarsingh and other witnesses, is that it was at about 3 00, P.M., that Mohansingh and his brother had gone outside the `Padwa' of Jabarsingh on 24th September, 1975, and threw the challenge to Jabarsingh that he being an enemy may come out so that they (the appellant and his brother) may decide the matter for ever. According to Jabarsingh, at that time the pellets hit the door of the hut. Jabarsingh in order to save himself lay down. Then his mother took him inside, it is pertinent to note that the mother of Jabarsingh, whose presence is said to be there even prior to Jabarsingh's coming out, has not been examined by the prosecution for the reasons best known to it. Jabarsingh has stated Govind Singh and Himmataram being there in his `Jhumpa' at the time. Jabarsingh has admitted that there was litigation between him and Prithvisingh, his uncle and father of the appellant, regarding one `Bara'. He also admitted that Himmataram and Govindsingh were his witnesses in that litigation. This fact has also been admitted by witnesses Himmataram (PW 2) and Govindsingh (PW 10). The learned counsel for the appellant urged that the presence of Himmataram and Govind Singh at the time of occurrence inside the house of Jabarsingh cannot be believed for the reason that they had no occasion to be there and also because of the fact that in the litigation between the parties they were witnesses. 8. The learned counsel for the appellant urged that the presence of Himmataram and Govind Singh at the time of occurrence inside the house of Jabarsingh cannot be believed for the reason that they had no occasion to be there and also because of the fact that in the litigation between the parties they were witnesses. 8. The presence of these two persons inside the house need not, of course, be doubted only because they were witnesses in the litigation between the parties, if their statements stand supported by other witnesses. The prosecution version is that Hanumandass, Girdhari and Mohanlal reached the site and tried to intervene and asked Mohansingh not to fire the gun. Himmataram has denied all these facts. Himmataram not being an independent witness, is also evident from his statement that Mubarak Khan Teli had instituted a case against Gangasingh, brother of the appellant, in which he (witness) had given evidence against Gangasingh. Govindsingh (PW 10), another person said to be present inside the `Padwa' of Jabarsingh at the time, is not only interested in Jabarsingh, but is also inimical to Prithvisingh, father of the appellant. He has admitted that Prithvisingh has instituted proceedings under Section 107, Cr. P.C., against him. He also admitted that he was a witness in the litigation between Gangansingh and Mubark Khan Teli. He has further admitted that there is litigation going on in the Court of sub-Divisional Officer between him and Prithvisingh. This being the position of relation between Prithvisingh, father of the appellant, and witness Govindsingh, he cannot be said to be an independent witness. The inconsistency between his statement at the trial and his police statement Ex. D/6, to which his attention was drawn, coupled with his enmity with Prithvisingh, raise a doubt on the truthfulness of his version. 9. Mohanlal said to have reached the site at the time of the first incident itself, has specifically stated that when he had heard report of the first gun fire he was at the shop. In his cross-examination he has admitted that he had not gone to the house of Jabarsingh. 9. Mohanlal said to have reached the site at the time of the first incident itself, has specifically stated that when he had heard report of the first gun fire he was at the shop. In his cross-examination he has admitted that he had not gone to the house of Jabarsingh. It is noteworthy that the prosecution case is that the incident had taken place at about 3.00, p.m., whereas Mohanlal has stated the time to be 11.00 or 12.00 a m. The Public Prosecutor submitted that the justice have no idea of the time and that might be the reason for giving wrong time. The argument would have appealed, had there been not the specific version of Mohanlal that at 2.00 or 3.00, p.m., he was at his house and at that time no incident had taken place. From all these facts Mohanlal also does not appear to be a truthful witness. 10. Narpatsingh (P.W. 4) is also said to have reached the site when Mohansingh is said to have fired the shots from his father's `Malia'. This witness has also denied the suggestion about the incident having taken place in the after-noon and has stated that the incident had taken place in the noon itself. The attention of the witness was drawn to certain portions in his police statement Ex D/4. There he has claimed to be a witness at the initial stage and also about his making Gangasingh and Mohansingh understand. The witness dis-owned that statement. He has also denied the presence of Himmataram and Mohanlal at the site.According to prosecution Himmatram was there throughout and if it was so, the statement of Narpatsingh that Himmataram was not there, falsifies his version. 11. Hanumandass (P.W. 5) has stated the date of occurrence to be 26-9-1975. The learned Public Prosecutor submits that this may be slip of pen. Be it as it may, the fact is evident that this witness Hanumandass is inimical with Prithvisingh, father of the appellant. The witness admitted that prior to this occurrence, a case for giving a beating to Prithvisingh was pending against him. He also admitted that his brotoer Balu Dass is also an accused in that case. The witness in his cross-examination admitted that he had gone outside after hearing the report of the gun fire. The witness admitted that prior to this occurrence, a case for giving a beating to Prithvisingh was pending against him. He also admitted that his brotoer Balu Dass is also an accused in that case. The witness in his cross-examination admitted that he had gone outside after hearing the report of the gun fire. He further stated that in his presence Mohansingh had not fired at all.He further stated that the other witnesses had also reached there on hearing the report of the gun fire. The witness stated about Jabarsingh being present there at the time of the arrival of the police. His attention was drawn to portion A to B of his police statement Ex.D/5 where he had stated about Jabarsingh not being available when the police reached there. The witness stated that the version in Ex.D/5 was wrong. In view of the strained relations between the witness and the father of the appellant and there being litigation between the two, the testimony of this witness also falls within the ambit of the evidence of a partisan witness. 12. In cross-examination Girdharilal at first admitted to be a witness of Jabarsingh in litigation between him Prithvisingh, then in the next breath he denied this fact. Harsukh is another witness examined by the police. The defence version is that Prithvisingh, father of the appellant, was a police employee posted in anti-dacoity force and was in the raid party which killed Bagla dacoit, brother of Harsukha witness. Harsukha admitted the fact of Bagla dacoit being his brother and being killed at Purkhokariya village. He of-course expressed ignorance about Prithvisingh being in that course at the time. Harsukha has stated that the police reached the village 5 or 7 days after the incident, whereas the version of other witnesses is that the police reached the site the very next day. 13. From the above discussion of the evidence, one fact is clear, that all the witnesses are interested in the complainant and most of them are inimical to Prithvisingh, father of the appellant. In cases of gun fire, the prosecution is expected to establish with certainty that the gun alleged to have been used, was in fact used and the pellets, if I recovered, were fired from the gun in question. In the case on hand, the gun has been recovered from the possession of Prithvisingh, father of the appellant. In cases of gun fire, the prosecution is expected to establish with certainty that the gun alleged to have been used, was in fact used and the pellets, if I recovered, were fired from the gun in question. In the case on hand, the gun has been recovered from the possession of Prithvisingh, father of the appellant. Prithvisingh's contention is that when the police surrounded his house, he approached the higher authorities and produced the gun along with the licence. The pertinent question emerging from determination is whether Mohansingh had fired the gun of his father and the pellets said to have been recovered were from that gun. It is important to consider that the investigating officer has not cared to send the gun and its pellets to the ballistic expert and, therefore, it cannot be said with certainty that Mohan-singh had fired the gun, the pellets of which hit the wall of the `Padwa'. It is also noteworthy that neither Loonsingh. Investigating Officer, could say as to from which type of gun the pellets recovered in the case, could be fired, nor was there any other evidence to throw light on this point. When the prosecution case is about two persons armed with guns, reaching the house of the complainant and firing the shots and thereafter going to the `Malia' at a distance of about 104 Ft. from the `Padwa' of the complainant, it cannot be inferred that it was Mohansingh, whose fire hit the walls of the `Padwa' of Jabarsingh. The defence argument about the case being a concocted one gains strength from the fact that the two persons armed with gun, through throwing challenge to kill the whole family, would not be successful in causing even a simple injury to Jabarsingh, though there was sufficient opportunity for the same. The mother of the complainant, as stated by herself, was already away, and she had crossed the open land of 10 or 12 `Paundas' for going from one room to another of his house. 14. A very important factor throwing doubt on the prosecution case and showing improvement in the matter, even if any is spelt out from the statement of Jabarsingh, the complainant. He has stated that the report, which he had given at the police Station was got scribed by Hanuman Dass s/o Heera Dass in the village. 14. A very important factor throwing doubt on the prosecution case and showing improvement in the matter, even if any is spelt out from the statement of Jabarsingh, the complainant. He has stated that the report, which he had given at the police Station was got scribed by Hanuman Dass s/o Heera Dass in the village. The witness then stated that it was the oral report lodged by him, which was written at the police Station. According to the witness the written report was handed over to the Sub-Inspector on the next morning and till that time it remained with the witness. Jabarsingh stated that he wanted to give written report to Hameersingh, L.C., but he did not accept it and noted down his oral report and told him to give the same to the Sub-Inspector. There is no explanation as to why this was so suggested by Hameersingh. Hameersingh having not been examined, there was no occasion for the defence to get this fact clarified. According to Jabarsingh, immediately after the gun fire he got the report written and thereafter left for the police station, If it was so, then, as emphasised by the learned counsel for the appellant, the prosecution has withheld the earliest version and the story at the trial was an improvement in the matter. This fact, in my opinion, also throws doubt on the picture brought on record by the prosecution. 15. All these circumstances, taken together, show that the prosecution has not been able to bring home the guilt against the appellant beyond shadow of all reasonable doubt. This being the position, the conviction of the appellant is not sustainable for any charge. 16. Consequently, the appeal is allowed. The conviction and sentences passed against the appellant are set aside and he is acquitted of the charges. He is already on bail and need not surrender to it. His bail bonds stand discharged. The order of the trial court regarding the disposal of gun Article 1 is maintained.Appeal Allowed. *******