Judgment N. M. KASUWAL, J, J. ( 1 ) THIS appeal by the two accused persons, Gajanand and wolfed directed against the judgment of Sessions Judge, Jhalawar, dated December, 1982, whereby the accused- appellants have been convicted and sentenced in the following manlier: Both-Under Section 304 Part II IPC to 7 years rigorous imprisonment and a fine of Rs. 100/- each. In default of payment of fine to undergo further simple imprisonment for one month. Accused Gajanand under Section 3/25 of the Arms Act to one yearts rigorous imprisonment and a fine of Rs. 100/and in default of payment of fine to undergo further simple imprisonment for one month. Both the sentences of accused Gajanand were ordered to run concurrently. ( 2 ) BRIEFLY stated the prosecution case is that at about 2. 30-3. 00 A. M. in the night of October 22, 1982 Parmanand and his uncle. Ghasihl were returning back to their house from their field then a Truck was standing outside Lanka gate near temple of Hanumanji in village, Jhalra-patan. accused persons, namely Gajanand, Motta, Devalal, Bhanwar lal, Kanwar Lal son of Gopilal, Gulab, Tulsiram and Salim came out from the side of the truck. Gajanand, Madan Lal and Tulsinim had guns with them. Accused Motia had a Fursi and the other accused persons were armed with lathis. Accused persons Tulsiram, Madan and Gajanand fired gun shots towards Parmanandand Ghasi Lal, Ghasi lal received gunshot injuries. Out of the accused persons some ran towards the Lanka gate and the others ran by the side of temple of Chandrabhaga. Ram Narayan who had also gone to his field also came at the spot and witnessed the occurrence. Parrnanand and Ram Narain then took Ghasi Lat to hospital Jhalrapatan but he succumbed to the injury in the way. A litigation was going on between Devalal Dhakhar and the complainant party and on account of this enmity the accused persons had formed an unlawful assembly and 4. The Prosecution in support of its case had come with the intention of killing Ghasi. has examined 12 witnesses. The accused persons An F. I. R. of the incident Was lodged by Parma- in their explanation under Section 313 Cr. P. C. and vide Ex. P. 1 at police station Jhalrapatan have totally denied the incident of inflicting any on October 22, 1981, at 4. has examined 12 witnesses. The accused persons An F. I. R. of the incident Was lodged by Parma- in their explanation under Section 313 Cr. P. C. and vide Ex. P. 1 at police station Jhalrapatan have totally denied the incident of inflicting any on October 22, 1981, at 4. 00 A. M. , The police injuries on Ghasilal. The accused Madan Lal registered a case under Sections 147, 148, 149 admitted that he had produced his gun and -- and 302 IPC and started investigation. An autopsy of deceased Ghasilal was conducted by Dr. Vinod Kumar Jam and he found the following injuries on the body of deceased Ghasilal. Healthy thoracic cavity containing blood scattered seven plura is reputed at the side congested. Right upper lobe was lacerwound of the size 2x2 cm, outer posterior, sewlling upper stratum posterior lobe. Middle lobe- lacerated wound of 3x2cm. on anterior supper stratam side. Lower lobe 2-lacerated wound of 3x2cm. and pellis aufend 5,6,7-left lungs pericardium and heart healthy. Scasleisment vein reputred South verse of lungs ruptured. ( 3 ) THE police after usual investigation filed challan against the aforesaid 8 persons as well as three more accused persons-Bhagwan Singh, Ram Narain and Kanwar Lal son of Ratan Lal. The learned Chief Judicial Magistrate, Jhalawar committed the accused for trial to the Court of Sessions. The learned Session Judge, Jhalawar framed charges under Sections 302, 302/449, 302/149 and 148 IPC against the accused persons Gajanand, Tulsiram, Madan Lal and Kanwar Lal son of Ratan Lal, while he framed charges under Sees. 302/149, 307/149 and 148 IPC against rest of the 7 accused persons. The charges were read over and explained to the accused persons who denied the charges and claimed to be tried. The learned Sessions Judge by his judgment, dated December 18, 1982 convicted only accused persons Gajanand and Madan Lal under Sections 304 Part II read with Section 34 IPC and to Gajanand also under Section 3/25 of the Arms Act and gave sentence. as mentioned above. All the rest of the accused persons have been acquitted of the charges levelled against them. ( 4 ) THE prosecution in support of its case has examined 12 witnesses. The accused persons in their explanation under Section 313 Cr. PC. have totally denied the incident of inflicting any injuries on Ghasilal. as mentioned above. All the rest of the accused persons have been acquitted of the charges levelled against them. ( 4 ) THE prosecution in support of its case has examined 12 witnesses. The accused persons in their explanation under Section 313 Cr. PC. have totally denied the incident of inflicting any injuries on Ghasilal. The accused Madan Lal admitted that he had produced his gun and licence in the police station. He further stated that the barrel of the gun from inside as well as outside was completely rusted and was not in use for the last 6 months. Accused Tulsiram stated that he had no gun with hum not any licence and he was not present at the spot. Accused Devalal stated that a small quarrel had taken place between his son Khamraj and Parmanand and as such he has been falsely named by Parmanand Devalal further stated that in the night of the alleged incident at about 12. 30-1. 00 in the night 60-70 cattle including she buffalos and cows had entered in his field and were grazing his crip. 10-12 per sons were sitting near a wall end he could not identify them due to darkness. Devalal further stated that he did not go near these persons on account of ear and went directly to the police station where he lodged a report in this regard From police station Murlidhar and four other constable came along with him at his field and constable came along with him hum at his field and those persons ran away seeing him and the police party, thereafter he along with police party turned out the cattle from his field. He along with the police party was coming with the cattle then those 10-12 persons hurled stones over them. Thereafter those persons got the cattle releasel and took away the cattle with them. Thereafter he along with the police party went to some distance when they heard the noise of gun-shoot. In the darkness he could only see one Kishan. He further stated that he did not see Parmanand and Ram Narain. Accused Abdul Saleem stated that the complainant party had trespassed some she buffalos in his find about 6. 7 years ago for which his brother Mukeem had filed a case in which Birdhilal well convicted and subsequently a compromise was made in the appeal. He further stated that he did not see Parmanand and Ram Narain. Accused Abdul Saleem stated that the complainant party had trespassed some she buffalos in his find about 6. 7 years ago for which his brother Mukeem had filed a case in which Birdhilal well convicted and subsequently a compromise was made in the appeal. Birdhilal witness is the father of Parmanand and brother of deceased Ghasilal. Accused Bhagwan Singh stated that he had taken the land of Thakur Prasad on Batai for cultivation-about one year before the incident and on this account the witness Parman and had falsely named him. The accused Gajanand denied the recovery of gun by the police at his instance. The learned Sessions Judge found it proved that Ohasilal died on account of gun shot injuries. Then he considered the statements of PW 1 Parmanand, PW 2 Nityanand, PW 3 Ram Narain and PW 11 Kishan into are alleged to be eye witnesses of the incident. He gave benefit of doubt to accused perrodi Bhagwan Singh, Kanwarlal son of Ratao Lai and Ram Narain as their names were not mentioned in the FIR. Learned Sessions Judge also found that no overt act has been found established against Kanwarlal son of Ratanlal, Motilal, Kanwarlal son of Gopi, Devalal. Gulabchand, Bhagwan Singh, Ram Naniin and Abdul Saleem and as such he acquitted all these 8 accused persons. Thereafter he considered the cases of three accused persons-Gajanand, Tulsiram and Madan Lal. He believed the evidence of Parmanand. Ram Narain and Kishanlal aglinst these three accused persons. But so far as the case of accused Tulsira is concerned, learned Sessions Judge found that he was also entitled to benefit of doubt as no gun had been recovered from his possession. He also observed in this regard that as shots were fired by one gun only as such also it was doubtful whether Tulsiram had fired any shot as on gun was recovered from him. The learned however found the case proved against Gajanand and Madan Lal as the guns were recovered from their possession and according to the prosecution witnesses they were also armed with guns at the time of the incident. ( 5 ) IT has been contended by Mr. Mehrish, learned counsel for the appellants that the evidence of the prosecution witnesses has not been corroborated by the medical evidence. ( 5 ) IT has been contended by Mr. Mehrish, learned counsel for the appellants that the evidence of the prosecution witnesses has not been corroborated by the medical evidence. It is submitted that according to the prosecution case as narrated by the eye witnesses not only the two accused - appellants but cc- accused Tulsiram who has been acquitted is also alleged to be in possession of gun and all the three had fired their guns towards the deceased Ghasilal, but according to the statement of PW 9 Dr. Vinod Kumar only one gun had been fired at the deceased Ghasilal. Thus the prosecution version is completely falsified by the medical evidence. It has been further contended that the prosecution witnesses have given the same kind of evidence against the accusedappellants as given against Tulsiram and when the learned Sessions Judge has disbelived their evidence against Tuhiram then the same evidence cannot be relied upon for convicting accusedappellants. It has been further contended that Tulsiram had been acquitted by the learned Sections Judge on the ground that no gun was recovered at his information, but the learned Sessions Judge did not take notice of the fact that there was no reliable evidence on record of recovery of gun at the instance of accused Gajanand also. So far as accused Madan Lal is concerned, it is submitted that he was admittedly a licence holder of gun and the fact of recovery of any gun from his possession cannot be taken as an adverse circumstance against him. It has been further argued that none of the independent witnesses, namely, PW 6 Mangilal and PW 10 Balaram supported the recovery of the guns on the information of the accused-appellant Gajanand and as such the other evidence produced by the prosecution in this regard is of no value. As regards Madan Lal, it is submitted that the gun alleged to have been recovered from his possession was a rusted one and, was totally out of order and the prosecution has miserably failed to prove that the said gun was in a working condition and in these circumstances no adverse inference can be drawn against Madanlal for the recovery of any gun specially when he was a licence holder of persons, the same evidence cannot be relied such gun. ( 6 ) MR. ( 6 ) MR. Mehrish also argued that the prosecution did not produce the report of the ballistic expert or of the forensic science laboratory to prove that the guns which had been recovered from the possession of the accused appellants were in working condition and the pellets which had been recovered from the scene of occurrence had been fired from these very guns so as to draw any adverse inference against the accused-appellants. It has been further submitted that no reliance can be placed on the testimony of PW 11 Kishan Lal who was examined on November 3, 1981 by the police after an inordinate delay. It has been further argued that the prosecution has failed to prove that there was any light at the scene of occurrence and that the witnesses were in a position to identify anyone of the accused persons. It has also been argued that PW 1 Parmanand gave a categorical statement that the pellets fired from the gun had hit the deceased Ghasilal on the left side of the body, but according to the post-mortem report no injuries were found on the left side. It has been further argued that the defence version proved by the production of Ex. D. 3 and D. 4, entries of Rojnamcha of police station Jhalrapatan clearly established that a report was lodged by co-accused Devalal in the night at about 1. 55 A. M. that 50 or 60 cattle had been strayed into his crop of maize and there after Murlidhar H. C. and few other constables had accompanied the accused Devalal to his field for the purpose of rounding up those cattle and to take them to the cattle-pound. It has come in the prosecution evidence that the shot of gun had been heard at about the same time and thus it is proved that in the course of such firing made by the complainant party itself Ghasilal had been hurt. The evidence of He Murlidhar was very material and the non-production Murlidhar creates a serious doubt in the prosecution story. It has been further submitted that there are serious material contradictions in the statements of the alleged eye-witness with regard to their coming on the spot from their fields and their presence on the spot at the time of occurrence is seriously doubted. It has been further submitted that there are serious material contradictions in the statements of the alleged eye-witness with regard to their coming on the spot from their fields and their presence on the spot at the time of occurrence is seriously doubted. It has been further argued that once the prosecution evidence has been disbelieved for accused appellants. ( 7 ) MR. Chatterjee, learned Public Prosecutor, on the other hand, supported the judgment of the learned Sessions Judge. It has been argued by learned Public Prosecutor that the statements of the eye-witnesses are believable. The statements of PW 6 Mangilal and PW 10 Balaram should be believed for recovery of gun vide Ex. P. 5 which find support from the evidence of the investigating officer in this regard. ( 8 ) I shall first consider the statements of PW. Parmanand, PW. 2 Nityanand, PW 3 Ram Narain and PW I I Kishan who are alleged to be the eye witnesses of this incident. PW I Parmanand has stated that he along with Ghasi was returning from the field to their village about six months back. A Truck was standing in front of temple of Mahavir toward Southern side Eleven persons had concealed by the side of the Truck. The accused persons Madan Gajanand and Tulsiram came out and fired gun shots on Ghasi He identified Tulsirarn, Madan and Gajanand in the court who had fired gun shots. Ghasi after receiving gun shot injuries travelled a distance of 10 to 15 steps and then be fell down near the house of Pratap Dhakhar, thereafter half of the accused persons who had concealed themselves by the side of the Truck ran towards the Lanka gate as soon as the gun shots were fired. It was 2. 30-3. 00 A. M. in tile night. Deviya, Motiya, Kanwariya, Gulab, Kanwariya son of Bhura, Ram Narain, Madan, Tulsi, Rajoo and Bhagwan Singh accused persons were pointed out in the court who had concealed by the side of the Truck. Then said that Rajoo who was not present in the court on that day was also concealing himself along with other accused persons. Then he touched Abdul Saleem and told that he knew this accused by the name of Rajoo. He had wrongly given the above statement that Rajoo was not present in the Court as he had not seen Abdul Saleem by that time. Then he touched Abdul Saleem and told that he knew this accused by the name of Rajoo. He had wrongly given the above statement that Rajoo was not present in the Court as he had not seen Abdul Saleem by that time. Parmanand further stated that he and Birdhilal lifted Ghasi from near the house of Pratap Dhakhar and took him to Jhalrapatan hospital. Ex. P. 1 F. I. R. was lodged by him to the pohce inside the hospital. It contains his signatures at A to B. The police had inspected the site. Ex. p. 2 site-plan contained his signatures at A to B. Witness Chhotu and Jodhraj had also put their signals on Ex. p. 2 at C to D and E to F in their presence. He further stated that he had identified the accused persons when running. Tubelights were fixed on the temple of Mahavir and Narsignhji and as such he could identify the accused persons. The accused persons were residing in his mohalla as such he knew them already. Apart from him Ram Narain had also seen the firing of gun shots. Deceased Ghasi was his uncle. About one year prior to the incident Gajanand had beaten him by lathi, for which a case was tried against Gajanand, Motia and Deva accused persons and they bore an ill-will on that account. In cross examination Parmanand stated that his land and that of Ghasi were situated by the side of Raipur road which was at a distance of 1 miles from Patna. It was not at a distance of 3 miles and then said that it was at-a distance from Raipur road. Raipur road was at a distance of 20 paces from their land. His land and that of Ghasi were the same. At that time crop of Jwar was standing in it. Raipur road was pakka Damar road. They used to return back at 3 A. M. in the right. He used to start for his house from his fields at about 2. 00-2. 30 A. M. They never used to go to their fidds nor return back by passing through Raipur road. They used to cross Madhopur road for going and coming back from their field. They used to return back at 3 A. M. in the right. He used to start for his house from his fields at about 2. 00-2. 30 A. M. They never used to go to their fidds nor return back by passing through Raipur road. They used to cross Madhopur road for going and coming back from their field. He further stated that on the day of the incident they had reached the spot by passing through Kachcha way coming from Chandrabhlga along with Ram Narain and deceased Glasi. While starting from his field the way trading to the pldce of incident comes after crossing Chlnjrabhaga river and the Kachcha way. Ram Narain and Ghasi had crossed Chandtabhaga river along with him. There was water up to ankles of root in river Chandra beag3. Mahaveerjits temple is at a distance of half a miles from Chandrabhaga river. He further stated that when Ghasi received the gun shot, then he W 9 step, behind Ghasi. When Ghasi received the girl s/lot, then he along with Ghasi were returning back to Jhalrapatan by crossing Chandrabhaga river. He along with Ghasi were coming through Kachcha wayand Ram Narain was coming through place way. When Ghasi received the gun shot, then Ram Narain was at a distance of 8 steps from him on Pacea way. It was Twrong to suggest that after crossing Chandrabbag river no kacbcha way goes to Jhalrapatan. He further stated that in the F. I. R. as well as in his police statement he had not mentioned that he had seen the accused persons in the electric light. When he was going along with Ghasi and Ram Narain, then the truck was towards their left-hand side. All the three persons who had fired the gun shots were standing by the side of the truck and had fired gun shots from there. All the three accused persons-Gajanand, Madan and Tulsiram had come out from the side of the truck. Nobody inflicted gun shots by standing in front of Ghasi, no gun shots were fired from the back-side of Ghasi. All the three accused persons, namely, Gajanand, Madanlal and Tulsiram had fired gun shots by standing on the left side and Ghasi had received injuries on the left side of his body. There were no injuries on the right hand side of Ghasi. All the three accused persons, namely, Gajanand, Madanlal and Tulsiram had fired gun shots by standing on the left side and Ghasi had received injuries on the left side of his body. There were no injuries on the right hand side of Ghasi. He further stated in the cross examination that it was wrong that he had trespassed his cattle in the field of Deva Lal. He did not know whether Devalal and his companions were taking the cattle to Kanji house. It was wrong that abuses were hurled and injuries were inflicted by lathis to any accused persons near Chhatri of Hanumanjl. It was wrong that they got any cattle rescued. After the firing of gun shots, no gun shots nr pellets had come towards him and he had only heard the noise. It was wrong that when the police prepared the site plan he might have told them that he was 3 steps behind Ghasi. It is also wrong to suggest that he would have informed the police that Ram Narain was at a distance of 32 steps from Narsingh temple on the place where gun shots were fired on Ghasi. ( 9 ) PW 2 Nityanand, has stated that it was right time near about Diwali in winter. He was sleeping in the second storey of Narsingh temple. There are hotels and Chhatri of Hanumanji near Narsingh temple. He heard a noise and on that account he was awakened and as it was Diwali time as such the noise could be of fire-crackers or of the guns. It was about 3 A. M. in the night. Other persons were also sleeping in the temple but he could not ten their names. There are road tights of Municipality near the temple. This is the entire statement given by PW 2, Nityanand which does not, in any manner, connect the accused-appellants with the crime. ( 10 ) PW 3, Ram Narain, stated that prior to Diwali to which six months have elapsed, he was returning back from his field at about 2. 30-3. 00 A. M. in the night. His field was near Raipur road which goes beyond Chandrabhaga river. The field of Ghasi and Parmanand is also there. From Chhatri of Bahji near Narsingh temple accused persons Tulsiram. Gajanand and Madanlal fired gun shots abruptly on Ghasi which hit him in the right arm-pit. 30-3. 00 A. M. in the night. His field was near Raipur road which goes beyond Chandrabhaga river. The field of Ghasi and Parmanand is also there. From Chhatri of Bahji near Narsingh temple accused persons Tulsiram. Gajanand and Madanlal fired gun shots abruptly on Ghasi which hit him in the right arm-pit. There was a truck in front of Chhatri of Hanumanji and accused persons Devalal, Moti, , Gulab Chand, Ram Narain, Kanwarlal son of Ratan, Kanwarlal son of Gopi, Thakur Saheb whose name he did not remember, Bhagwan Singh and Saleem came out from the said truck. The three accused persons who had fired gun shots were also concealing by the side of the Chhatri and had come out from there. Tulsiram, Gajanand and Madan were armed with guns while other eight accused persons had ordinary lathis and lathis armed with Fursi. Devalal had a lathi having Fursi in it. Some of the accused person ran towards Lanka gate and others towards road in front of Chhatri after firing gun shots. When the accused persons were running, then Devilal had inflicted a blow by lathi on his right hand. Blood was oozing out of the injuries on Ghasi. He along with Parmanand went there. He had also seen Kishan Lal on the spot. They brought Ghasi to Patan city near the house of Jodhraj Silavat. There is also house of Pratap Dhakhar near the house of Jodhraj Silavat. Ghasi became unconscious and thereafter they brought Ghasi to hospital Jhalra patan by bringing a Thela. There were, tube-lights on the road near Narsingh temple and also near the Chhatri of Balaji. There was some in-fight between the parties. The accused Devalal, Gajanand and Moti had given beating to Parmanand about 4 or 5 months prior to the incident and there was ill-will on that account. In the cross examination he stated that he had gone to attend his field at about 11 or 12 0 clock in the night. He bad gone to his field through pucca road of Raipur Ghasi and Parman and had not accompanied him while going to attend their fields. Ghasi and Parmanand had met him in the night on the field but he cannot tell the time. He had stayed for about 2. 00-21 hours for. attending his field but he did not stay till morning as he has to chum out the milk. Ghasi and Parmanand had met him in the night on the field but he cannot tell the time. He had stayed for about 2. 00-21 hours for. attending his field but he did not stay till morning as he has to chum out the milk. He had started all alone from his field. Parmanand and Ghasi were going ahead of him. Parmanand and Ghasi had started 5 or 10 minutes prior to him. He was returning back to his house via Raipur road. There was a bridge of Chandrabhaga river on Raipur road through which he was coming back. He was all alone the period since he started from his field and reached the place where shots were fired. He had a lathi with him. Ghasi and Parmanand some-times go to their fields through Raipur road and some-times through another route. Chandrabhaga river comes across the way leading to Bhuteshwar Mahadev. It was wrong to suggest that on the same way there were fields of Devalal accused. The field of Devalal is on the way leading to Pachkuiya which way also goes towards Chandrabhaga river. When he was walking then he heard the noise of gun shots. He was at a distance of 6 or 7 steps from Narsingh temple when the guns were fired. Ghasi and Parman and were standing at a distance of 2 steps from the stone of temple of Bheru. It was wrong to suggest that be along with other witnesses had trespassed their cattle in the field of Devalal and caused damage to his crop of maize. Parmanand and Ghasi were coming by the way of Pachkuiya road but he was not coming by that way. It was wrong to suggest that they had raised any quarrel with the accused persons. The stone of Bheru was at a distance of or 8 steps from the place where be was standing at the time of firing of gun shots. The accused persons Gajanand, Tulsiram and Madan came together from the truck and fired gun shots abruptly as soon as they came out and then ran away. He further stated in the cross examination that he had heard noise of three gun shots and which had been fired together. He admitted that it was true that police had lodged cases against him under Sections 107 and 109. He further stated in the cross examination that he had heard noise of three gun shots and which had been fired together. He admitted that it was true that police had lodged cases against him under Sections 107 and 109. He was not related to Ghasi and Balji and his father were not brothers. ( 11 ) ACCORDING to Parmanand, PW 1, he had reached on the place of incident along with Ram Narain and Ghasi by crossing Kachcha way through Chandrabhaga. He also stated that Ram Narain and Ghasi had crossed Chandta bhaga river with him and there was ankle deep water in Chandrabhaga river. On the other hand, according to PW 3 Ram Narain, he had started all alone from his field and had not accompanied Parmanand and Ghasi. Ram Narain also stated that he was returning back to his house via Raipur road on which there was a bridge on Chandrabhaga river. Ram Narain also stated that Parmanand and Ghasi were coming through that way. This is a serious contradiction in the statements of these two witnesses Parmanand and Ram Narain and casts a serious doubt on the prosecution story that Ram Narain was also an eye-witness of the occurrence. Though Parmanand categorically states that Ram Narain had accompanied them and had crossed Chandrabhaga river together, but this is totally contradicted by the statement of Ram Narain. According to Parmanand injuries were inflicted on deceased Ghasi only on the left side of his body, but according to Ram Narain, Ghasi had received injuries on his right arm-pit. ( 12 ) THE last witness examined by the prosecution is PW. 11 Kishan. He has not supported the prosecution story and clearly stated in his examination in-chief that he did not identify the persons who had run after firing gun shots. He had only heard the noise of gun shots. The witness was declared hostile on the request of the Public Prosecutor and as such no support can be -sought by the prosecution from the statement of PW. 11 ( 13 ) THE other infirmities in the prosecution case are that though according to the two eyewitnesses, Parmanand and Ram Narain, the three accused persons Madan, Gajanand and Tulsi were armed with guns and all the three had inflicted gun shots, but according to the evidence of PW. 9, Dr. 11 ( 13 ) THE other infirmities in the prosecution case are that though according to the two eyewitnesses, Parmanand and Ram Narain, the three accused persons Madan, Gajanand and Tulsi were armed with guns and all the three had inflicted gun shots, but according to the evidence of PW. 9, Dr. Vinod Kumar, the injuries found on the body of Ghasi could not have been inflicted by more than one gun. He also stated that the shots must have been fired by a person standing on the right hand side of the deceased. According to Dr. Vinod Kumar the injuries found on deceased Ghasi were on the right side of his body but according to Parmanand such injuries were inflicted on the left side of the deceased. Though Tulsiram has been clearly mentioned by Parmanand and Ram Narain as one of the accused persons who was armed with gun and had fired gun shots, but he has been acquitted by- the learned Sessions Judge and the State baa not filed any appeal against his. acquittal. In case only one of the accused persons had fired gun shots and the statement of Parmanand and Ram Narain is to be believed then Tulsiram can also be one of the three accused persons who fired gun shots and Ghasi received injuries from the gun of Tulsiram alone. The learned Sessions Judge himself has acquitted the two accused appellants Gajanand and Madan lal from offence under Sec. 302 I PC and has convicted them under section 304 Part II IPC but in my opinion when he has given the benefit of doubt to Tulsiram, there was no justification to convict the remaining two accused-appellants under sec. 304 Pan II IPC. It may be pertinent to mention that the learned Sessions Judge has given the benefit of doubt to Tulsiram merely on the ground that no gun had been recovered from him. But if we examine the evidence of recovery of guns from Gajanand and Madanlal, it would be evident that so far all accused Madanlal is concerned, a rusted gun has been recovered from his possession and it is also proved on record that he was a licence holder of such gun. But if we examine the evidence of recovery of guns from Gajanand and Madanlal, it would be evident that so far all accused Madanlal is concerned, a rusted gun has been recovered from his possession and it is also proved on record that he was a licence holder of such gun. In my opinion no adverse inference can be drawn against Madan Lal merely on account of the recovery of such gun from him, firstly because he is a licence holder and secondly the prosecution has failed to prove by leading any evidence that the gun was in a working condition. So far as the recovery of the gun from the possession of Gajanand is concerned, the two independent witnesses of such recovery, namely, PW. 6 Mangilal and PW. 10 Balaram, have not supported the story of recovery. So far as PW. 6 Mangilal is concerned, he merely stated that he had seen a gun lying near the jeep. By pointing towards accused Devalal he stated this accused was with the police. Similarly PW. 10 Balaram also stated that it was accused Devalal who had got the gun recovered. Both the witnesses as such do not prove any recovery of gun at the instance of the accused-appellant Gajanand. In case the evidence of recovery of guns at the instance of accused Gajanand and Madanlal is not taken as a circumstance against them then their cases are not distinguishable at all from the case of Tulsiram who has been acquitted by the learned Sessions Judge. That apart, there are serious contradictions in the statements of PW. 1 Parmanand and PW. 3 Ram Narain to prove the presence of Ram Narain on the spot at the time of incident and the two other eyewitnesses, namely, PW. 2 Nityanand and 11 Kishan having not supported the prosecution case and the learned Sessions Judge has disbelieved the statement of Parmanand and Ram Narain as 9 accused persons out of 11 have been acquitted as such it would be highly unsafe to rely on their statements so far as the accused appellant are concerned. ( 14 ) THUS, taking in view the entire evidence led by the prosecution, I am not convinced that the prosecution has proved the case beyond doubt against the accused-appellants. The conviction of the accused Gajan and under Section 3/25 of the Arms Act also fait. ( 14 ) THUS, taking in view the entire evidence led by the prosecution, I am not convinced that the prosecution has proved the case beyond doubt against the accused-appellants. The conviction of the accused Gajan and under Section 3/25 of the Arms Act also fait. as recovery of any gun from his possession has not been proved beyond doubt. ( 15 ) IN the result, this appeal is allowed, the conviction of both the accused. appellants under section 304 Part II IPC and that of Gajan and under section 3/25 of the Arms Act, is set aside and they are acquitted of all the charges levelled against them. The accused appellants shall be released forthwith in case they are not required in any other case. Appeal allowed Conviction and sentence set aside.