JUDGMENT : ( 1. ) THIS is an appeal against the order of conviction and sentence passed by the Second Additional Sessions Judge, Guna, dated 17-9-1980, in Sessions Trial No. 38 of 1980, whereby the appellant was convicted under section 302 of the Indian Penal Code and was sentenced to imprisonment for life. ( 2. ) THE appellant is charged under section 302, Indian Penal Code with the allegations that on 11-7-1978, at about 9. 00 in the night, at village ukawad, Police Station Myana, the appellant with his gun, fired at Jugraj singh and killed him. ( 3. ) THE prosecution story is to the effect that on 11 -7-1978, in the night, there was a religious discourse at the house of Arjun Singh son of udham Singh and in the said discourse, accused Ranchhod Singh came with a gun and Rajendra Singh, Narendra Singh, Pratap Singh, Munna, Bundel singh, Bhikam Singh and Natthan Singh were also there. At about 8. 00 in the night, accused Ranchhod Singh along with his associates, returned to the house of Kamal Singh, which was in front of the house where the religious discourse was being given. At that time, near the house of Kamal singh, Mohan Singh, Ashok, Amar Singh, Arjun Singh and Bhogiram were sitting. Near the house of Kamal Singh, an electric bulb was burning. In a short time, accused, along with his associates, came back to the house of Arjun Singh son of Udham Singh. At that time, persons who were accompanying the accused, asked Mohan Singh, Ashok and others as to about what they were talking. To this query, it was replied that they are talking regarding the agricultural operations. But, dissatisfied with this answer, accused Ranchhod Singh and others said that the persons who were sitting there, were talking about them and seeing this, the accused who were sitting there started using lathis and other weapons at the other party. In the melee, Arjun Singh son of Udham Singh, Pratap Singh, accused ranchhod Singh, Rajendra Singh, Narendra Singh, Natthan Singh, Bundel singh, Bhikam Singh used lathis. Seeing this, the accused took back some steps and fixed. The fire hit Jugraj Singh, who died on spot and afterwards, accused along with his associates, ran away from the spot. Arjun Singh, ashok and Amar Singh also left for their houses. Seeing this, the accused took back some steps and fixed. The fire hit Jugraj Singh, who died on spot and afterwards, accused along with his associates, ran away from the spot. Arjun Singh, ashok and Amar Singh also left for their houses. Before firing at Jugraj singh, accused Ranchhod Singh exhorted the persons who were standing there that if anybody intervened, he will also be killed. When the incident was over and the accused left the place, Hanumant Singh (P. W. 5), Bhagwan singh, Jagannath Singh and Kamal Singh came near the corpse of Jugraj singh and after seeing the dead body, they went to report the matter to thana Myana and the matter was reported by Hanumant Singh (P. W. 5 ). Next day, at about 10. 00 a. m. , Vishram Singh (P. W. 12) reached the spot and prepared the Panchayatnama of the corpse and seized blood-stained and simple earth from the spot and the dead body was sent for post mortem examination to the hospital, Guna. After the incident, the accused could not be found. But, Vishram Singh Kushwah (P. W. 12) seized a 12 bore gun. The post mortem examination was conducted by Dr. C. S. Sharma (P. W. 14) on 12-7-1978. His report is Ex. P-13 and he has opined that death is due to fracture of second and third cervical vertebra. A pellet was also found and grey matter was also coming out. The pellet along with the gun seized was sent to the Ballistics Expert. He has given the report and has said that the pellet could be fired through the gun in question. On 28-11-1979, this Court granted anticipatory bail to the accused and on 30-11-1979, the accused gave the security. After that the accused was committed to stand his trial before the Court of Sessions and the learned additional Sessions Judge framed a charge under section 302, Indian Penal code against the accused. ( 4. ) THE defence of the accused is that for last 10 to 12 years, there are factions in the village and daughters of Harnath Singh were abducted by one Parmal Singh, who is brother of Ranjit Singh, who is a member of the family of the accused appellant. Therefore, to take a revenge against him, they have cooked up this case. He has also denied that he has committed any offence. Therefore, to take a revenge against him, they have cooked up this case. He has also denied that he has committed any offence. In defence, he has not produced any witness. ( 5. ) THE first point which the learned trial Court considered was whether the death of Jugraj Singh was homicidal and taking into consideration the evidence of the witnesses who were present and the evidence of the Doctor, the learned trial Court has rightly come to a conclusion that the death of Jugraj Singh was homicidal. There is no serious challenge to this fact before us by the learned counsel for the appellant. ( 6. ) THE real dispute is whether the accused is the author of the injury, which resulted in the death of the deceased. To prove this fact, the prosecution has examined six eye-witnesses. . But, the learned counsel for the appellant has seriously challenged the statements given by these eyewitnesses and has submitted that they are not the eye-witnesses of the incident at all. Ashok Singh (P. W. I) has stated in his statement that accused Ranchhod Singh fired the gun from, a window, but be could not make out as to who has fired it. Therefore, his evidence is of no help to the story put forward by the prosecution. The other two eye-witnesses are mohan Singh (P. W. 2) and Jagannath Singh (P. W. 3 ). But, they have stated in their statement that they heard the sound of a fire and the fire hit the deceased. But they are not in a position to say as to who fired the gun. These two witnesses are declared hostile by the prosecution. But, the learned trial Court has observed that in statement before the police, these witnesses have stated that Ranchhod Singh fired the gun. Therefore, taking into consideration the contradiction in their statements and the fact that they have been declared hostile, the learned trial Court has correctly observed that they cannot be believed and no help can be taken by the prosecution from their statements. ( 7. ) THE other three eye-witnesses are Hamimant Singh (P. W. 5), kamal Singh (P. W. 6) and Sardar Singh (P. W. 8 ). They have stated in their statements that about two years before, in the month of A sad. at about 6. 00 to 8. ( 7. ) THE other three eye-witnesses are Hamimant Singh (P. W. 5), kamal Singh (P. W. 6) and Sardar Singh (P. W. 8 ). They have stated in their statements that about two years before, in the month of A sad. at about 6. 00 to 8. 00 in the evening, they were sitting in the Dalan. There was religious discourse in the house of Arjun Singh son of Udham Singh and in the religious discourse, accused Ranchhod Singh came with a gun. Rajendra Singh, Narendra Singh, Pratap Singh and others were also there. After some time, there was exchange of hot words between the party of the accused and the persons sitting there. After the exchange of hot words, the persons who were there, used lathis. Seeing this, the accused took 30 to 35 steps back and stood on a stone and after standing on the stone, he fired at Jugraj Singh, which hit Jugraj Singh between the eyes and he died on spot. Kamal Singh (P. W. 6) also has supported the story. For seeing this incident, the source of light, the witnesses have stated to be an electric bulb which was burning near the house of Kamal Singh. This fact of the burning of light on the electric pole near the house of Kamal Singh is seriously challenged by the learned counsel for the appellant. Further, the learned counsel for the appellant also has challenged the story of firing of the gun after climbing up on a stone by the accused and has submitted that this story is put forward by the prosecution so that it may be in line with the medical evidence given by the Doctor as well as the evidence of the ballistics Expert. Along with this, he has also submitted that we should consider the story put forward by the prosecution that the gun was fired from a window which was on the first floor of the house. But, it was discarded by the learned trial Court. ( 8. ) IN this case, we have already considered the statement of eyewitnesses who are not believed by the learned trial Court. Before proceeding further, we will have to consider the statement of the Doctor (P. W. 14) in which he has stated in paragraph 8 of his statement as under. ( 8. ) IN this case, we have already considered the statement of eyewitnesses who are not believed by the learned trial Court. Before proceeding further, we will have to consider the statement of the Doctor (P. W. 14) in which he has stated in paragraph 8 of his statement as under. If translated in English it will be : "if a person who fires the gun raises the barrel higher than the height of the deceased, the injury which was found on the body of the deceased cannot be inflicted. " Further, the Doctor has accepted that the person who fired the gun must be at a sufficiently higher level than the level at which the deceased was standing. There should be at least the difference of 8 to 10 feet in the height from which the gun was fired and the level where the deceased was standing. If this fact is taken into consideration, then there is a conflict between the statements given by the eye-witnesses and the statement given by the Doctor. ( 9. ) BEFORE proceeding further, we may observe one more thing that in the spot map, the source of light is shown as an electric bulb burning on a pole. When we read the statement of Hanumant Singh (P. W. 5), the story of the prosecution that the incident was seen in the light of the electric bulb becomes false and there is an improvement in the story so as to say that the incident was seen in the electric bulb. Hanumant Singh (P. W. 5), in para 1 of his statement, has stated that at the time of the incident near the house of Kamal Singh, an electric bulb was burning on the pole. But, he was confronted in his cross-examination with the first information report, statement given by him to the Police and the statement given before the committing magistrate. They are Ex. D-3, D-5 and D-6 and he was asked that he has not mentioned in those exhibits that the light was burning and he could see because of that light. When confronted, he had to say that he did so while giving the statements, but he could not say as to why these important facts are missing from the exhibits. D-3, D-5 and D-6 and he was asked that he has not mentioned in those exhibits that the light was burning and he could see because of that light. When confronted, he had to say that he did so while giving the statements, but he could not say as to why these important facts are missing from the exhibits. This clearly proves that the prosecution wanted to improve the story through this witness and such a witness cannot be relied on. Further, the story of the prosecution that the gun was fired after climbing on a stone also cannot be accepted because, it is put forth by the prosecution to make the story lit in with the medical evidence. ( 10. ) THE difference between the medical evidence and the ocular evidence can be seen if we examine the statements of the witnesses produced by the prosecution. The first witness is Ashok Singh (P. W. 1 ). He, in para 4 of his statement has stated that the gun was fired from the window, but to a question of the Court, he has stated that he could not identify as to who fired the gun as there was no light in the room from which the gun was fired. Further, he has stated that nobody fired a gun from the ground floor and there was only one fire. Mohan Singh (P. W. 2) has stated in his statement that he did not see accused firing the gun. Jagannath Singh (P. W. 3) has also stated that he could not know as to who fired the gun. He states that he can say that the fire hit Jugraj Singh, the deceased. This witness was declared hostile by the prosecution. Hanumant Singh (P. W. 5)has improved the story to fit in with the medical evidence and we have already stated that such a witness cannot be believed. He has further admitted that there is enmity between the appellant and his associates and the other party and the deceased. He was further confronted with the statement ex. D-5 given by him in the Court, but in that statement he did not say-that the gun was fired after standing on a stone. Therefore, the story of the accused firing the gun after standing on the stone cannot be. believed. He was further confronted with the statement ex. D-5 given by him in the Court, but in that statement he did not say-that the gun was fired after standing on a stone. Therefore, the story of the accused firing the gun after standing on the stone cannot be. believed. There are contradictions in his statement which makes us to hold that he is not a truthful witness. The statement of Kamal Singh (P. W. 6) is not of much help to the story put forward by the prosecution. Sardar Singh (P. W 8) has been examined as an eye-witness, but we do not find his name mentioned in the first information report Therefore, the evidentiary value of such a witness loses much of its importance. He is also related to the deceased. Further, he has given contradictory statement and as such, it will be difficult to believe such a witness. He cannot be termed to be a truthful witness. If we consider the statement of Kaluram (P. W. 11), it is seen that he has stated in his statement that where Jugraj Singh was hit by a gun fire, there was an electric bulb burning. He says: "maine nakshe MEN NAHIN BATAYA". This clearly goes to show that the prosecution wanted to improve the story and if the prosecution improves the story, as we have stated above, it will be difficult to believe such witnesses, therefore, taking into consideration the statements, which we have stated above, there is difference between the medical evidence and ocular evidence. In such a case, the principles which should be followed are laid down in State v. Ahmadullah 1968 JLJ SN 72. It is stated therein as under :-"expert evidence is not a conclusive proof, but on a difficult and obscure subject, the observation and inference made by experts with special education and training should be given due weight. " ( 11. ) THE same point was considered in Nagindra Bala v. Sunil Chandra AIR 1960 S C 706, in which it is laid down that "a medical witness who performs a post mortem examination is a witness of fact, though he also gives an opinion on certain aspects of the case. " ( 11. ) THE same point was considered in Nagindra Bala v. Sunil Chandra AIR 1960 S C 706, in which it is laid down that "a medical witness who performs a post mortem examination is a witness of fact, though he also gives an opinion on certain aspects of the case. Further, the value of a medical witness is not merely a check upon the testimony of eye-witnesses; it is also independent testimony, because it may establish certain facts, quite apart from the other oral evidence. If a person is shot at close range, the marks of tatooing found by the medical witness would show that the range was small, quite apart from any other opinion of his. Similarly, fractures of bones, depth and size of the wounds would show the nature of the weapon used. It is wrong to say that it is only opinion evidence: it is often direct evidence of the facts found upon the victims person. " ( 12. ) UNDER somewhat similar circumstances, it was laid down in mohan Singh v. State of Punjab AIR 1975 S C 2161 that: "the expert stated that he came to the conclusion that the injuries on the victims were probably caused by one gun fire only. He was not categorical about it. The reasons for his conclusion were the dimensions of the injuries. Held, that the expert had not seen the injuries and it would need super-human ability to come to a conclusion on this subject by merely looking at the description of the injuries or even the photographs given by the doctors. The dimensions of the injuries noted by the doctors cannot be correct to the extent of 1/100th of an inch. Most of the experts answers were not categorical. It would be unsafe to place implicit reliance on the evidence of the expert. " Therefore, from the observations made above, it is not the opinion of an expert which will be binding on the Court. Most of the experts answers were not categorical. It would be unsafe to place implicit reliance on the evidence of the expert. " Therefore, from the observations made above, it is not the opinion of an expert which will be binding on the Court. The Court has to see other aspects of the case and while examining those aspects, certain formalities also are to be observed by the prosecution and these formalities are mentioned in Katarey v. State of U. P. A I R 1976 S C 76 as under : "where injuries found are forensically of the same species, e. g. stab wounds, and the problem before the Court is whether all or any of those injuries could be caused with one or more than one weapon, it is the duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may, sometimes, cause aberration in course of justice. " As to the appreciation of evidence of the Ballistics Expert, the Supreme court in Kartar Singh v. State of Punjab AIR 1977 SC 349 . has observed as under : "evidence Act (1872), S. 45 -Firearms-Ballistic experts report-Reliance on-Recoveries of fired cartrige cases and firearms and evidence of expert corroborating testimony of eye-witnesses in regard to guilt of accused -Expert stating that he came to conclusion that they could not have been fired through any other firearm because every firing pin, firing pin scrape, and breach face mark has its own individuality-Evidence of expert held could be relied upon in convicting accused. " Similarly, in State of Uttar Pradesh v. Sughar Singh AIR 1978 SC 191 . it was observed as under : - "12. Turning to the medical evidence that was furnished by Dr. Chauhan (P. W. 10), he has described the 13 ante mortem injuries which he noticed on the dead body of Uma Shanker during the post mortem examination as follows : -"1. Lacerated wound 3 cms. diameter x muscle on anterior aspect, right arm 15 cms. , below shoulder, margins inverted and blackened. 2. Lacerated wound 1 cm. , diameter x muscle just into lower part of No. 1 margins inverted and blackened. Lacerated wound 3 cms. diameter x muscle on anterior aspect, right arm 15 cms. , below shoulder, margins inverted and blackened. 2. Lacerated wound 1 cm. , diameter x muscle just into lower part of No. 1 margins inverted and blackened. 3. Lacerated wound 11/4 cm. , diameter x muscle 1 cm. below injury no. 2 margins inverted and blackened. 4. Lacerated wound 11/4 cm. diameter x muscle 1 cm. out and below injury No. 1 margins inverted and blackened. 5. Lacerated wound 2 1/2 cm. diameter x 1 cm. muscle, 11/2 cm. below and into No. 4 margin inverted and blackened. 6. Lacerated wound 1 cm. diameter x muscle 1 1/2 cm. below and into No. 5 margins blackened and inverted. 7. Lacerated wound 5 cm. x 3 cm. muscle obliquely on postero lateral aspect of right arm, 19 cms. below shoulder-margins everted. 8. Lacerated wound 1/2 cm. x 1cm. musle on posterior aspect of right arm 2 1/2 cm. into middle of No. 7 margins everted. 9. Lacerated wound 1 cm. diameter x muscle just above No. 8 margins everted. 10. Lacerated wound 5 cms. x 4 cms. x muscle obliquely in right lumber region. 11. Lacerated wound 4 cms. x 2 cms. x muscle vertically, 2 cms. below No. 10 margins everted. 12. Lacerated wound 1 cm. diameter x muscle on right buttock upper part margins everted. 13. Lacerated wound 2 1/2 cms. x 1 1/2 cms. x peribonel cavity, horizontally 7 cms. left and below umbilicus margins inverted. Loops of intestines had come out through wounds. The scalp was intact. " Besides the above injuries, the Medical Officer also noticed that there was a commented fracture on the right humerus as also a commented fracture on the hip bone under injury Nos. 11 and 12. He also stated that three wad covers were recovered from the right arm and three metal pieces were also recovered from the hip bone. In his opinion, the cause of death was shock and haemorrhage on account of the above injuries. According to him the first six injuries were gun shot wounds on the right arm, being inlet wounds; the margins were inverted and blackened. Injuries Nos. 7 to 9 were exit wounds corresponding to injuries Nos. 1 to 6. The other inlet injury was number 13, while injuries Nos. 10 to 12 were exit wounds corresponding to this injury. According to him the first six injuries were gun shot wounds on the right arm, being inlet wounds; the margins were inverted and blackened. Injuries Nos. 7 to 9 were exit wounds corresponding to injuries Nos. 1 to 6. The other inlet injury was number 13, while injuries Nos. 10 to 12 were exit wounds corresponding to this injury. In cross-examination it was elicited from him that no complete pellet was recovered from injuries Nos. 1 to 13. As regards metal pieces, that were recovered from injury No. 13, he could not definitely say to what they related and of what metal they were. Certain possibilities in the alternative were also elicited from him in his cross-examination, for, he first stated that injuries Nos. i to 6 could have been caused by one fire only and from a distance of 3 ft. but he again asserted that the injuries caused to right arm were possible to have been caused by more than one fire; similarly, the inlet injury No. 13 that had been caused near the umbilicus could have been caused from a distance of more than six feet and could have been caused by two shots. Now beyond giving approximate distance from which the shots were fired by accused Nos. 1 to 5 and further stating that during the firing the deceased had turned and Dhani Ram stating that the first shot fired by accused No. 1 had hit uma Shanker in his stomach, no further or precise details as to the exact distance from where the shots had been fired or other parts of the body where the shots had landed etc. were given by either of the two material witnesses, namely, Mannu Lal (P. W. 1) and Dhani Ram (P. W. 14 ). Even so, the High Court has taken the view that the prosecution version as given by these two witnesses does not fit in with the injuries as noted in the post mortem report. The High Courts reasoning in this behalf runs thus: "all the six injuries Nos. 1 to 6 are situate close to each other. Considering that the margins of all the injuries were blackened, the likelihood is that these are the result of one gun shot. No undue importance can be attached to the size of injuries Nos. 1 and 5 because the entry of the wads could cause a bigger wound. 1 to 6 are situate close to each other. Considering that the margins of all the injuries were blackened, the likelihood is that these are the result of one gun shot. No undue importance can be attached to the size of injuries Nos. 1 and 5 because the entry of the wads could cause a bigger wound. To expect two shots fired one after another or at the same time by two different persons to hit in the same area and both to be fired from a short range is difficult. On a consideration of the nature of these injuries Nos. 1 to 6 we are of opinion that they are the result of one gun shot fired from the right hand side, i. e. from the west at the time the deceased was travelling from north to south. This shot was evidently fifed from a distance of about one yard. injury No. 13 is the inlet wound 2 1/2 cms. in length. As this injury corresponds to injuries 10 to 12, injury No. 13 must be the composite injury as a result of the pellets entering the body together. It may be mentioned here that three pieces of metal were recovered from the right hip bone showing that more than three pellets had entered the body. As the edges of gun shot wounds were not blackened, it must have been fired from some distance though not from a long distance, otherwise on account of dispersal more than one gun shot would have been found in that region. In case the firing took place first of all from near the Mathh Mata we would have expected injuries on the left side. This would also show that this part of the story is not correct. The nature of the injuries also strongly suggests that the assailants were on one side i. e. towards the west and the two shots had been fired one after another by the same person or by two different persons. The prosecution version is different. This would also show that this part of the story is not correct. The nature of the injuries also strongly suggests that the assailants were on one side i. e. towards the west and the two shots had been fired one after another by the same person or by two different persons. The prosecution version is different. " If the aforesaid reasoning is carefully scrutinised it will appear clear that quite a few assumptions have been made by the High Court and the reasoning also fails to take into account the alternate possibilities that were elicited by the defence itself in the cross-examination of the Medical officer and it is by adopting such process of reasoning that the High Court has come to the conclusion that the prosecution version does not fit in with the medical evidence. The High Court has observed "to expect two shots fired one after another or at the same time by two different persons to hit in the same area and both to be fired from a short range is difficult". In the first instance the observation is contrary to the medical evidence, for the doctor has categorically stated in his cross-examination that the right arm injuries (being injuries Nos. 1 to 6) could be caused by two shots, a possibility which was elicited during his cross-examination by defence itself. Secondly, the conclusion based on such observation to the effect that injuries Nos. 1 to 6 are the result of one gun shot is again contrary to the direct evidence of the two witnesses, for, both of them have stated that Swami Din (A-2) and Ram Gopal (A-3) emerged from the right hand side (i. e. from the west as the deceased was walking north-south)and fired two shots in quick succession one after another which must have hit the deceased Uma Shanker on his right arm. Further, we fail to appreeiate how the High Court could observe to the effect that "in case the firing took place first of all from near the Mathh Mata we would have expected injuries on the left side and this would show that this part of the story is not correct". Further, we fail to appreeiate how the High Court could observe to the effect that "in case the firing took place first of all from near the Mathh Mata we would have expected injuries on the left side and this would show that this part of the story is not correct". In fact, the evidence of both the witnesses has been that it was Sughar Singh accused No. 1, who emerged from Matan-ki-Matian side, i. e. eastern side and fired the first shot and according to Dhani Ram (P. W. 14) that shot hit the deceased in his stomach. Injury No. 13 is, therefore, quite consistent with the aforesaid story of the prosecution witnesses. It is also not possible to accept the High Courts view to the effect that: "the nature of the injuries also strongly suggests that the assailants were on one side i. e. towards the west and the two shots had been fired one after another by the same person or by two different persons: but the prosecution story is different. In our view, according to the prosecution version, Sughar Singh accused No. 1 emerged from Matan-ki-Matian (eastern side) and fired a shot in the stomach of the deceased and immediately thereafter Swami Din accused No. 2 and Ram Gopal accused No. 3 who had emerged from the western side fired a shot each, which shots must have hit the right arm of the deceased. This version of the prosecution witnesses would be clearly consistent with the injuries noted in the post mortem report and medical evidence of Dr. Chauhan. It is, therefore, impossible to accept the view of the High Court that the prosecution version does not fit in with the medical evidence on record. After all the incident of firing upon the deceased had taken place in broad day-light at about 2. 30 p. m. during the course of which the three assailants had used fire arms, namely, two guns and one pistol and such an incident had been witnessed by the two prosecution witnesses, namely, Mannu Lal (P. W. 1) and Dhani Ram (P. W. 14) from the close quarters and their evidence substantially tallies with the medical evidence on record especially in the light of the alternate possibilities elicited from the medical officer in his cross-examination by the defence itself. In view of such direct evidence of eye-witnesses of the firing being available on record some inconsistency relating to distance from which gun shots were fired between the evidence of medical expert and the eye-witnesses would be of no significance whatsoever (vide Karnail Singh v. State of Punjab AIR 1971 SC 2119 .) However, as stated above, we are clearly of the view that the prosecution evidence pertaining to the assault by guns and pistol substantially tallies with the medical evidence available on the record. If the principles which are mentioned above are taken into consideration, we are of the opinion that the fact that there was firing by gun is beyond dispute. It is also beyond dispute that the deceased died because of a gun shot wound and there is ocular evidence to support this fact also. But the difficulty arises when we compare the medical evidence with the ocular evidence. The medical evidence clearly indicates that the gun shot could not be fired from the position which the prosecution alleges and if gun is fired from that position, then the nature of the injuries will be altogether different. To avoid this, the prosecution has modulated the story by introducing certain facts which create doubt in our mind whether only on the basis of the medical evidence, which is partly supported by ocular evidence, we should convict the accused. The story put forward by prosecution which is belied by the medical evidence is that a shot was fired from a certain height and unless the shot is fired from a certain height, the injuries received by the deceased cannot be inflicted. To meet this difficulty, the prosecution has introduced the fact that the shot was fired after climbing a stone, which is decidedly the modulation and improvement of the story. We have already said that some of the witnesses say that gun was fired from the window and the others say that the gun has fired after climbing the stone. This evidence clearly belies the story put forward by the prosecution, on which the prosecution wants us to convict the accused. There are other eye-witnesses who deposed that they did not see as to who fired the gun. This evidence clearly belies the story put forward by the prosecution, on which the prosecution wants us to convict the accused. There are other eye-witnesses who deposed that they did not see as to who fired the gun. To meet this difficulty, the prosecution has introduced an electric bulb on a pole and this evidence is clearly a false evidence, which is created to prove the story of the prosecution so that it will be plausible to say that the other eye-witnesses saw the incident in the light from the electric bulb. If there would have been no light, then it is not possible to see the person and the place from which the gun was fired. Therefore, even if the principles which are mentioned above, are applied to the case, we are of the opinion that it is not proved beyond reasonable doubt that the appellant is the author of the crime and as such, he is entitled to acquittal, giving him benefit of doubt. Accordingly, we give benefit of doubt to the appellant and set aside his conviction and sentence passed under section 302 of the Indian penal Code by the trial Court. ( 13. ) THE result, therefore, is that the appeal succeeds and is allowed and the conviction and sentence imposed on the appellant by the trial Court are set aside and he is acquitted. He be set at liberty forthwith if he is not required in any other case. Appeal allowed.