GULAB C. GUPTA, J. ( 1 ) THE appellant having suffered conviction and sentences under section 307, Indian Penal Code and under sections 25 and 27 of the Arms Act in the hands of Additional Sessions Judge, Satna in sessions Trial No. 39 of 1979 decided on 25-10-1979; is challenging the said conviction and sentences in this appeal under section 374 (2) of the Code of Criminal Procedure. ( 2 ) THE prosecution case against the appellant is that on 29-1-1979 at about 4 p. m. some boys were playing Gilli-danda at Uchehra, District Satna and Chunnilal (P. W. 4) was one of them. The Gilli hit the appellant whereby the appellant got annoyed and scolded the said Chunnilal. On this the complainant Nanhelal came to the spot and favoured Chunnilal. Thereafter, there was some altercation between Nanhelal and the appellant. The altercation was, however, pacified with the intervention of Ram Prakash (D. W. 2 ). The facts so far are admitted. The prosecution, however, further alleges that after some time of the aforesaid altercation the appellant came back to the complainants house with a pistol and started abusing. As soon as the complainant Nanhelal came cut of his house the appellant took the pistol from his pocket and pointed the same at the chest of the complainant. Thereafter, with an intent to kill the complaint it is alleged, the appellant fired the pistol but it did not go off. At that very point of time Ramsia (P. W. 5), the brother of the complainant, came on the spot and gave a Danda blow on the hand of the appellant because of which the pistol fell down. The pistol was lifted by one Sunder who in turn gave it to Ramsia. Thereafter, Ramsia and the complainant went to the police station with the pistol where the complainant lodged the first information report. The pistol and one live cartridge from inside the same was seized by the police. Thereafter, the District Magistrate gave permission to prosecute the appellant for violation of the Arms Act. A challan was accordingly filed praying prosecution of the appellant under section 307 Indian Penal Code and under sections 25 and 27 of the Arms Act. The pistol and one live cartridge from inside the same was seized by the police. Thereafter, the District Magistrate gave permission to prosecute the appellant for violation of the Arms Act. A challan was accordingly filed praying prosecution of the appellant under section 307 Indian Penal Code and under sections 25 and 27 of the Arms Act. The learned Additional Sessions Judge believed the evidence of complainant Nanhelal and his brother Ramsia (P. W. 5) and held that there was sufficient corroboration of the version of these two witnesses in the evidence of Chunilal (P. W. 4) and also Abdulla (P. W. 2 ). The appellant was accordingly convicted for offence under section 307, Indian Penal Code and bas, been sentenced to 2 years R. I. whereas for offences under sections 25 and 27 of the Arms Act be has been sentenced to 6 months R. I. and 2 years R. I. , respectively. All the three sentences are to run concurrently. Being aggrieved by this conviction and sentences the present appeal has been filed. ( 3 ) THE appellant has denied the subsequent part of the incident which forms the basis of the conviction. His grievance is that the whole story of his coming back to the spot with a pistol firing the same and subsequently the pistol being dropped because of Ramsias hitting the appellant, is wholly unworthy of reliance. It is submitted that no injury was found on the arm of the appellant which is sufficient, to show that the story relating to appellant pointing out pistol on the chest of the complainant and firing the same was a sheer concoction. It is also submitted that one Sunderlal was supposed to pick up the pistol from the ground but that Sunderlal has not been examined. It is submitted that adverse inference should have been drawn against the prosecution for non examining Sunderlal. It is also submitted that complainant Nanhelal and Ramsia (P. W. 5) are real brothers and hence their testimony cannot be accepted as the testimony of independent witness. Nanhelal is reported to be a child of 9 years and his testimony cannot be accepted without corroboration from independent witnesses-Ramlal (P. W. I), Abdul Latif (P. W. 2) and Premlal (P. W. 3) have not supported the prosecution version. Nanhelal is reported to be a child of 9 years and his testimony cannot be accepted without corroboration from independent witnesses-Ramlal (P. W. I), Abdul Latif (P. W. 2) and Premlal (P. W. 3) have not supported the prosecution version. On the basis of the aforesaid it is submitted that the whole story is doubtful and facts on record are not sufficient to convict and sentence the appellant. ( 4 ) IT is true that the prosecution examined Ramlal (P. W. 1), Abdul Latif (P. W. 2) and Jagdish Prashad (P. W. 9) to provide corroboration from independent sources. Unfortunately, these 3 witnesses did not support the prosecution story and were declared hostile. Even in their cross examination by the prosecution these witnesses refused to support the prosecution version. It is true that they were confronted with their police diary statement but they have denied that they have given the type of statement to the police. A fair reading of evidence of these 3 witnesses is sufficient to conclude that the prosecution story is not being accepted by these independent witnesses. Their police diary statement cannot be treated to be the substantive evidence and the conviction and sentence cannot be based on their police diary statement. ( 5 ) THE question, however, still remains whether their conviction can be based on the evidence of Nanhelal (P. W. 6) and Ramsia (P. W. 5 ). Nanhclal (P. W. 6) is the person who had lodged the first information report. In his evidence in the Court he gave its version of the first part of the incidentwhich is admitted by the appellant. This part of the incident relates to Chunnilals Gilli hitting the appellant on which the appellant lost his temper. Though in the first information report this witness did not allege that the appellant hit Chunnilal with his shoe, he stated so in his evidence, presumably with a view to add seriousness to the incident. Similarly, in first information report he did not state his altercation with the appellant and remained satisfied by alleging that the appellant abused him but in his statement in the Court he gave a graphic description of his role in the incident and alleged altercation between himself and the appellant. Improvements made by this witness do not appear to be innocent himself. The improvements are intended to provide motive for the appellants returning with the pistol. Improvements made by this witness do not appear to be innocent himself. The improvements are intended to provide motive for the appellants returning with the pistol. A fair reading of the first information report and the evidence recorded during the trial makes one feel that the first part of the incident was not of a very serious nature. Ramprakash Urmalia is the person who is said to have intervened and pacified. He has been examined as D. W. 2. According to him, he was the person who disentangled the complaint and the appellant. This witness is not related to anyone and it is not understood as to why he was not examined by the prosecution, particularly when he was the person who had intervened and pacified the first part of the quarrel. The only inference that can be drawn is that it must not have suited the prosecution which decided not to examine. Inspite of that the facts remain that first part of the incident was not so serious as may be clear from the first information report but seriousness is sought to be infused into it so as to provide the notice for the appellant going home and returning with a pistol. The incident was an insignificant incident and usually happens. No one would normally return to the place of incident armed with pistol and cause injury to these who are not responsible for Gilli hitting the appellant. Under the circumstances, I am of the opinion that from the material on record it is not possible to infer any motive or reason for the appellant returning to the place of incident armed with pistol with a view to cause death of complaint Nanhelal. ( 6 ) IMPROVEMENTS in the story of Nanhelal are obvious. In para 2 of his statement in the Court he has alleged that when the appellant returned to the place of incident after 5 minutes Sunder, Paramlal, Bhole and Mithailal were rolling Bidis and were threatened by the appellant. This part of the story does not find place in the first information report. It maybe said that it was not necessary to mention these details in the first information report but it is also not possible to accept that these independent persons would run away only because they were asked by the appellant to run away and not give evidence. It maybe said that it was not necessary to mention these details in the first information report but it is also not possible to accept that these independent persons would run away only because they were asked by the appellant to run away and not give evidence. The normal human conduct is that when such innocent persons smell some unusual incident they may like to see the incident out of their curiosity, Sunder is one of the person who had lifted the pistol, when bit fell on the ground. This indicates that these persons have not run away but must have been near about the place of the incident. Their non-examination cannot be treated to be innocent and benefit of the same must be to the appellant. All these persons Sunder, Bhola and Mithailal have not been examined. The obvious inference is that in case they were examined they would not have supported the prosecution story. In fact, Premlal was examined as P. W. 3 and did not support the story. Though independent corroboration is not required as a matter of law and even uncorroborated testimony can provide sufficient base for conviction, it is not safe to depend upon the testimony of complainant (P. W. 6) in this case, particularly when the first part of the incident was not such as to provide sufficient base for the appellants returning from home with pistol determined to shoot at the complainant. ( 7 ) THE subsequent part of the story also does not inspire confidence. It is alleged that the pistol was fired but it misfired. The opinion of Assistant Chemical Examiner of tile Government has been filed as Ex. P-9. According to this report, the pistol was in working order. The misfired 12 bore cartridge is said to have been misfired from the pistol. The learned counsel for the State has not been able to explain the reason for this misfire. A pistol which is in working order would normally have worked if the trigger was pulled, particularly when its action was in perfect working order. Then there was no effort made by the appellant to snatch back his pistol. Under normal circumstances and knowing that the pistol was a country-made unlicensed pistol, some efforts should have been made to recover the pistol. In his evidence the complainant has tried to explain this omission. Then there was no effort made by the appellant to snatch back his pistol. Under normal circumstances and knowing that the pistol was a country-made unlicensed pistol, some efforts should have been made to recover the pistol. In his evidence the complainant has tried to explain this omission. In his evidence he has stated that it was Ramsia who first went to the police station with the pistol and he remained as the spot entangled, with the appellant. He also said it was only at the police station that he took the pistol from Ramsia and handed over to the police. This version does not find place in the first information report. Admittedly, the first in formation report was written by Ramsia but this part of the story is not there. It may be that it was not required to be there in law but the omission being of a very substantial nature makes the whole story of the prosecution doubtful. ( 8 ) IN this context the non-examination of independent witnesses become an important circumstance. Sunderlal who is said to have lifted the pistol is the uncle of the complainant. Because of his relationship he would normally have volunteered to give his evidence. His non- examination therefore, is a material circumstance. It is in this context that the evidence of independent witnesses becomes important inspite of their having been hostile. None of them has supported the prosecution story. ( 9 ) THUS taking an overall view of the matter and giving anxious consideration to the facts and circumstances of the case, as appearing on record I am not satisfied about the correctness of prosecution story. The story appears to be unnatural and version of, the complainant in the Court highly exaggerated. Under the circumstances, I am of the opinion that prosecution has not been able to prove its case beyond reasonable doubt. Giving the benefit of the doubt to the appellant I accept the appeal and set aside his conviction and sentences. The bail bond, if any, furnished by him shall stand cancelled. Since the appellant bas not claimed the pistol and cartridge the same may be disposed of, as directed by the Additional Sessions Judge, Satna. .