MEHTA, J.—The appellant Tej Singh has preferred this appeal against the Judgment dated October 25, 1978 of the Additional Sessions Judge No.2, Hanumangarh passed in Sessions Case No 76 of 1977. The appellant and the others viz , Raj Singh and Darshan Singh were prosecuted under s. 302/34, 307/34, 3?3 IPC and under s.27 of the Arms Act. The learned Additional Sessions Judge acquitted Darshan Singh and Raj Singh but however, convicted the accused-appellant Tej Singh under s.302 and 307 IPC and sentenced him to imprisonment for life under s.302 IPC and five years rigorous imprisonment under s.307 IPC. 2. Briefly stated the prosecution story is that P.W.5 Harnek Singh lodged a F.I.R. at Police Station, Sangaria on October 31, 1976 at 3 A.M. alleging that the accused-appellant Tej Singh is his younger brother. Harnek Singh (P.W.5) had no issues and he asked P.W.1 Major Singh to look after his fields and properties The accused-appellant Tej Singh became annoyed and in consequence thereof, he threatened P.W 1 Major Singh to return to his village. It has also been alleged that on October 20, 1976, P.W.5 Harnek Singh lodged a complaint under s. 107 Cr.P.C. against the accused-appellant Tej Singh stating therein that there is a danger to the life of Major Singh(P.W.l). In the First Information Report Ex.P.2), it has been stated that Harnek Singh(P.W, 5) was informed by Tej Singh son of Ranjeet Singh(P.W,8) about the incident. Thereafter, he contacted the Sarpanch of the village and left for the Police Station on his advice. He further submitted that in the way at a distance of about 5 to 7 miles, Mukand Singh(P.W.2), who is also an eye witness of the occurrence, informed him about the incident. Thereafter, he and Mukand Singh(P.W.2) went to the Police Station and lodged the F.I.R.(Ex.P.2). P.W.5 Harnek Singh has submitted that his wife Mukand Kaur has been shot dead by the accused-appellant Tej Singh. The Police started investigation and the Inquest Report and the Cite Memo were prepared by the Investigating Officer. Blood stained clothes of the deceased and earth were seized and sent for chemical examination, P.W.6 Dr. Swadesh Mitra Saini conducted the autopsy of the deceased Mukand Kaur and prepared the Post Mortem Report (Ex.P.3). The Police started investigation and the Inquest Report and the Cite Memo were prepared by the Investigating Officer. Blood stained clothes of the deceased and earth were seized and sent for chemical examination, P.W.6 Dr. Swadesh Mitra Saini conducted the autopsy of the deceased Mukand Kaur and prepared the Post Mortem Report (Ex.P.3). The deceased Mukand Kaur had sustained the following injuries on her person: "l. A lacerated wound with inverted edges with blackening tatooing 1-1/2 x 1-/12" on left side of chest anteriorly below the mammary gland part of stomach and omantumbuldging out of wound blackening disappeared on washing. 2. Seven lacerated wounds with inverted edges with no tatooing on left iliac region 0.2" x 0.15" each wounds were present in two parallel rows separated by 1" of normal skin. 3. Four lacerated wounds with inverted edges with no tatooing 0.2" x 0.15" each on left thigh & pubic region anteriorly three wounds on upper part of thigh anteriorly and one wound on pubic region left side. 4. One incised wound 1-1/2 " x 0.2" by skin deep on chest and anteriorly in mid line near neck horizontally placed. 5. One punctured wound 0.3" x 0 2" x 0.3" on left side of neck anteriorly near mid line. 6. One incised wound 1-1/2" x 0.2" x skin deep on right clavicular region near sternal and, horizontally placed. Internal Injuries—Stomach, some coils of small intestines, left kidney, spleen, left lobe of liver, left dome of dis-phragm, lower lobe of left lung, lacerated blood present in plurae and peritoneal Cavity. Left sixth and seventh ribs fractured anteriorly. Pieces of onion and some food material was also found in peritoneal cavity. Small and large intestines were injured in lower portion on left side, some clotted blood was present in palvis, a deformed pellet was found emboedied in right superior pubic region. In all 58 small pellets were recovered from injured structures, ploural & peritoneal cavity. Four pieces of cork recovered from stomach. These pellets & corks pieces were sealed and handed over to police." The Doctor opined that the death was due to shock and haemorrhage of vital fractures due to injuries on stomach small and large intestines, left kidney, spleen left, lobe of liver left dome of dis-phragm, left lung, left sixth and seventh ribs. According to the Doctor, all these injuries were anti-mortem in nature and injury Nos. According to the Doctor, all these injuries were anti-mortem in nature and injury Nos. 1,2 and 3 were sufficient to cause the death in the ordinary course of nature. 3. On the same day, P.W.6 Dr. Swadesh Mitra Saini examined P.W.2 Mukand Singh on the police requisition and found the following injuries on his person: 1. Bruise with linear abrasion in centre 2" x J" on right arm laterally tangentially placed on lower one third. 2. Bruise l-1/2 " x1/4" on right arm lateral posteriorly, below the upper injury tangentially placed. On the basis of the information furnished by the accused-appellant Tej Singh, the Police recovered a gun, which was in possession of the accused-appellant and forwarded it to the Forensic Science Laboratory. The report of the Forensic Science Laboratory dated January 18, 1977 has been received. This report has not been tendered in evidence and has also not been marked as an Exhibit in this case. 4. On behalf of the prosecution PW 1 Major Singh, PW 2 Mukand Singh and PW 4 Gurdayal Singh have been examined as eye witnesses. PW 4 Gur-dayal Singh has not supported the case of the prosecution and he has turned hostile. 5. We have heard Mr. M.L. Garg, learned counsel for the accused-appellant and Mr. Niyajudeen Khan, learned Public Prosecutor for the State and have also gone through the record of the case. 6. In the first instance, Mr. M.L. Garg, learned counsel for the appellant has contended that the FIR (Ex. P. 2) is concocted one and it has been prepared after investigation. As far as the question of preparation of the FIR after investigation is concerned, we do not find any force in the submission made by the learned counsel for the accused-appellant. Learned counsel for the accused-appellant submits that the occurrence has taken place on October 30, 1976 and the FIR has been lodged on October 31, 1976 at 3 A.M. The distance between the Police Station and the place of occurrence is about 14 miles and the FIR has been received by the Court on November 1, 1976. As such, we do not find that there is any inordinate delay in sending the FIR to the Court. 7. Learned counsel for the appellant has pointed out number of factors to show that the FIR is a concocted one. As such, we do not find that there is any inordinate delay in sending the FIR to the Court. 7. Learned counsel for the appellant has pointed out number of factors to show that the FIR is a concocted one. Learned counsel submits that in the FIR, it has been mentioned that PW 5 Harnek Singh saw Tej Singh son of Ranjeet Singh was coming on the tractor while he was going to his village at 6 PM. Learned counsel further submits that Tejsingh has not been produced as a witness and as the truthfulness of the FIR which has been lodged by PW 5 Harnek Singh, the husband of the deceased, on the basis of the information given by Tejsingh throws a cloud of doubts. The learned Public Prosecutor, on the other hand submits that PW 8 Baltej Singh has been examined as a witness and he is called also as Tej Singh. PW 8 Baitej Singh has not supported the case of the prosecution and has turned hostile. He has specifically stated that he never met Harnek Singh (PW 5) and has not informed him about the incident. 8. Learned counsel submits that Sarpanch has not been produced by the prosecution to substantiate the fact that at his instance PW 5 Harnek Singh went to lodge the FIR, Learned Public Prosecutor submits that the Sarpanch is not a material witness in this case and as such, his examination was not at all necessary. He submits that the Sarpanch is having no personal information and he is the hearsay witness and he does not support the case of the prosecution. 9. It was further submitted by the learned counsel for the appellant that in the FIR, it has been mentioned that when PW 5 Harnek Singh was going to inform the police, near Hirasingh Wala Chak, his brother-in-law Mukand Singh met him and informed about the incident. According to the learned counsel, the prosecution has come with a cleir case that Mukand Singh is an eye witness and he was at the spot at the time of the incident. It is an admitted position that Hirasingh Wala Chak is at a distance of about 5 to 6 miles from the place of occurrence. Learned counsel submits that the prosecution has come with a clear case that PW 2 Mukand Singh ran away from the incident. It is an admitted position that Hirasingh Wala Chak is at a distance of about 5 to 6 miles from the place of occurrence. Learned counsel submits that the prosecution has come with a clear case that PW 2 Mukand Singh ran away from the incident. He submits that the natural course will be that he will go to the village Nukera where his brother-in-law PW 5 Harnek Singh was living. It is also an admitted position that the village Nukera is at a distance of about 3 to 4 furlongs from the place of occurrence. Learned counsel submits that even if it is assumed that PW 2 Mukand Singh might be feeling fear of going to the village Nukera for informing his brother-in-law Harneksingh (PW 5) about the incident, even then it cannot be expected from Mukand Singh (PW 2) that he will run away four miles and meet as a co-incidance near Hirasingh Wala Chak. Learned counsel for the appellant has invited our attention to this fact that the incident had taken place at 5 P.M. and PW 5 Harnek Singh left his home at about 6 P.M. for bringing the milk and in the way, he was informed by PW 8 Baltej Singh. He further submits that the case of the prosecution is that thereafter without going on the spot, Harnek Singh (PW 5) left for the village and went to the Sarpanch. He submits that after seeing Sarpanch and taking his advice, Harnek Singh went to the Police Station to lodge the FIR. Even if we accept the case of the prosecution, even then the position will be that Harnek Singh left at about 8 P.M. Thus, there will be difference of about 2 to 3 hours between the time of occurrence and leaving the village for lodging the FIR. 10. Learned counsel for the appellant submits that if PW 2 Mukand Singh left the village at 3 P.M. just after the occurrence then either he should return to his village Fetul Kheda or he should go directly to the Police Station. 10. Learned counsel for the appellant submits that if PW 2 Mukand Singh left the village at 3 P.M. just after the occurrence then either he should return to his village Fetul Kheda or he should go directly to the Police Station. Mukand Singh (PW 2) has not explained how he spent the time of about 2 to 3 hours and how he met Harnek Singh (PW 5) near Hirasingh Wala Chak, Learned counsel submits that in fact the murder has taken place somewhere else and thereafter, the dead body has been put in the Kotah and when Harnek Singh (PW 5) came to know about the incident, he sent for his brother-in-law Mukand Singh (PW 2) to his village and on his arrival, the whole case has been concocted. Learned counsel further submits that because of the past incident dated October 10,1976, PW 5 Harnek Singh and PW 2 Mukand Singh might have suspected the accused-appellant as culprit of the incident and in fact, they were not known in the real culprit and so, the names of the accused-appellant and two others (who have been acquitted) have been introduced. Learned Public Prosecutor submits that it is a co-incidence that Mukand Singh (PW 2) and Harnek Singh (PW 5) met near Hirasingh Wala Chak and thereafter, both of them left for the Police Station and lodged the FIR. He submits that the learned counsel for the appellant is imagining the things which are not borne out from the record and that there is nothing on the record to show that Harnek Singh and Mukand Singh went on the tractor to lodge the FIR but on the contrary, the positive version has come that they left on foot, and only because they met at a distance of 5 to 6 miles near Hirasingh Wala Chak, it cannot be said that convocation has taken place. There is nothing to support the submission made by the learned counsel for the appellant. 11. Learned counsel further submits that even if it is assumed that Harnek Singh (PW 5) and Mukand Singh (PW 2) both of them went to lodge the FIR even then there is a clear cut falsity in the FIR about the roll of other accused Rajsingh and Darshansingh, who have been acquitted. He has pointed out that in the FIR. Learned counsel further submits that even if it is assumed that Harnek Singh (PW 5) and Mukand Singh (PW 2) both of them went to lodge the FIR even then there is a clear cut falsity in the FIR about the roll of other accused Rajsingh and Darshansingh, who have been acquitted. He has pointed out that in the FIR. it has specifically been mentioned the Darshansingh and Rajsingh had lathies with them and they inflicted lathi blows to Mukand Singh (PW 2). He submits that deceased Mukand Kaur has not sustained any lathi blows and the p osecution has also come with a specific case that none of the accused have inflicted any lathi blows to the deceased. The lower court has not accepted this part of the FIR that PW 2 Mukand Singh has sustained lathi blows. It may be stated here that during the trial, PW 1 Major Singh has stated that Darshan Singh was having a Sella. Learned counsel submits that from the perusal of Ex. P. 3 (Post Mortem Report), it is clear that injuries No. 4 and 6 were caused to the deceased Mukand Kaur by sharp edged weapon. She has sustained two wounds referred to in Injuries No. 4 and 6. He further submits that injury No. 5 is a punctured wound. According to the prosecution, PW 1 Major Singh and PW 2 Mukand Singh were on the spot and they have seen the whole occurrence but there is no reference about injuries No. 4, 5 and 6 in the FIR. Learned counsel submits that this goes to show that none of them saw the incident and the FIR has been lodged as a concocted one. Learned Public Prosecutor admits that there is no reference about injuries No. 4, 5 and 6 referred to in the Post Mortem Report (Ex. P. 3) in the FIR but he submits that it is nothing but an omission. Learned Public Prosecutor admits that there is no reference about injuries No. 4, 5 and 6 referred to in the Post Mortem Report (Ex. P. 3) in the FIR but he submits that it is nothing but an omission. However, he is not in a position to say that who can be the author of these injuries specially when the prosecution has come with a definite case that the accused-appellant had a gun and the other two accused (acquitted) had lathies Incised and punctured wounds cannot be caused by lathies as referred to in the FIR and there is a material omission about the authorship of the injuries No. 4, 5 and 6 referred to in the Ex. P. 3. 12. Learned counsel has further pointed out that incised and punctured wounds have been caused to the deceased while standing whereas the prosecution has come with a clear case that after receiving injuries No. 2 and 3 referred to in the Post Mortem Report (Ex. P. 3), the deceased fell down. Learned counsel submits that the position as it stands is that first of all any one inflicted injuries No. 4, 5 and 6 and thereafter, the deceased fell down. He submits that no explanation is forthcoming in the FIR about injuries No. 4, 5 and 6 and for this reason, the FIR is a concocted one. 13. Mr. M.L. Garg, learned counsel for the appellant submits that in the FIR, it has been mentioned that the accused-appellant fired a shot which hit her sister Mukand Kaur (deceased) and she fell down in the Kotah. In the FIR, it has also been mentioned that when the accused persons ran away, they heard one more fire shot thereafter. He has pointed out that injuries No. 2 and 3 which are said to have been fired from a distance of 2 steps i.e. about 5, are not having any tatooing marks. A number of other discrepancies have been shown by comparing the oral testimony of the eye witnesses and the medical evidence to show that the FIR is a concocted one. 14. The first information report is not a substantive piece of evidence and it can only be used for the purpose of ascertaining the truth while appreciating the evidence of the witnesses. 14. The first information report is not a substantive piece of evidence and it can only be used for the purpose of ascertaining the truth while appreciating the evidence of the witnesses. All the points raised by the learned counsel for the accused-appellant needs considerable consideration by the Court in the matter of appreciation of the evidence but the the FIR cannot be thrown out only on the grounds submitted by the learned counsel for the appellant. 15. Learned counsel for the accused-appellant contended that PW 1 Major Singh and PW 2 Mukand Singh are not the eye witnesses of the occurrence. According to the learned counsel, PW 2 Mukand Singh was in his own village Fatui Kheda and on receiving the information about the incident, he came and met Harnek Singh (PW 5) and thereafter, went for lodging the FIR. He also submits that PW 1 Major Singh was also not on the spot. He has submitted that the natural conduct of the witnesses should be borne in mind while appreciating their testimony. He submits that PW 1 Major Singh is the nephew of the deceased Mukand Kaur and PW 2 Mukand Singh is the real brother and that if they are eye witnesses of the occurrence, their first duty will be to go to the village Nukera which is at a distance of few furlongs and to inform Harnek Singh (PW 5), the husband of the deceased about the incident but in the instant case, if we take the statements of these two witnesses on their face value, then PW 1 Major Singh states that after the incident, without informing any one, he went to his village Fatui Kheda which is at a distance of about 16 miles. PW 1 Major Singh has further admitted that he came from Fatuikheda in the morning after the arrival of the police on the next date. Learned counsel submits that the conduct of PW 1 Major Singh is un-natural as in the normal course, he should go to village Nukera which is at a distance of few furlongs to inform Harnek Singh (PW 5) about the death of deceased Mukand Kaur. The intimate relations of Harnek Singh and Major Singh is said to be the cause of the incident. The intimate relations of Harnek Singh and Major Singh is said to be the cause of the incident. The prosecution has come up with a case that Harnek Singh brought Major Singh to look after his fields and properties and it was expected that Major Singh (PW 1) will get the fields and the properties of Harnek Singh, after his death as he had no issues. Mr. Garg submits that it is expected from Major Singh that he will go and inform Harnek Singh about the incident, if he is an eye witness and he will not go to his own village, which is at a distance of about 16 miles. Mr. Garg has vehemently submitted that probably, Harnek Singh (PW 5) and Major Singh (PW 1) were in the village Nukera and some un-known persons might have caused the death of Mukand Kaur and they might have suspected Teja Singh (accused-appellant) as a culprit and for this reason, they might have considered that Mukand Singh (PW 2), who was at his own village Phatui Kheda should be called being the real brother of the deceased and for this very reason, PW 1 Major Singh might have left for village Phatui Kheda. He submits that when a person goes from Nukhera, the place of occurrence to Sangariya Police Station, nearby Hirasingh Wala Chak there is a crossing of Mukandsingh coming from Fatui Kheda and only thereafter, they can proceed for Sangariya. There is nothing on record about the crossing except the fact that Mukand Singh and Harnek Singh met nearby Hirasingh Wala Chak. 16. Mr. Garg, learned counsel for the accused-appellant has further submitted that the probability is further enforced from the fact that PW 1 Major Singh and PW 2 Mukand Singh who are alleged eye witnesses of the occurrence being nephew and brother of the deceased will go in one direction to village Nukhera which is at a distance of few furlongs and will inform Harnek Singh (PW 5), the husband of the deceased about the occurrence. None of them have taken steps to inform Harnek Singh. Harnek Singh himself admits that at about 6 P.M., he was coming to the field and in the way, he was informed by PW 8 Baltej Singh about the occurrence. Thus, there is a gap of one hour which remained un-explained. Mr. None of them have taken steps to inform Harnek Singh. Harnek Singh himself admits that at about 6 P.M., he was coming to the field and in the way, he was informed by PW 8 Baltej Singh about the occurrence. Thus, there is a gap of one hour which remained un-explained. Mr. Garg submits that looking to the facts stated above, the conduct of Major Singh and Mukand Singh is unnatural and for this reason, their testimony should be discarded. On the other hand, Mr. Niyazudeen Khan, learned Public Prosecutor submits that there is everylikelihood that PW 1 Major Singh might have considered it proper looking to the past history to go to his own village due to fear and there is nothing abnormal. He further submits that it has not come on record where Mukand Singh (PW 2) had stayed for meeting Harnek Singh nearby Hirasingh Wala Chak which is at a distance of 5 to 6 miles. He submits that Mukand Singh might have also considered proper to take some rest at Hirasingh Wala Chak in porturbed condition before going to Police Station Sangariya for informing the Police about the incident and that the time spent by him in taking the rest might have resulted in meeting Harnek Singh nearby Hirasingh Wala Chak. According to the learned Public Prosecutor, both these witnesses might have considered that Harnek Singh will come after a short space of time to give the milk and he will know about the occurrence as Gurdayal Singh (PW 4) and Shyam Kaur were also present at the spot and in such circumstances, the conduct of these two witnesses is not un-natural. The conduct of these two eye witnesses in my opinion is not natural. However, on this sole ground their testimony cannot be discarded. We will have to take the cumulative effect of all the circumstances narrated by the learned counsel for the appellant in appreciating the evidence of these witnesses. 17. It was submitted by Mr. M.L. Garg, learned counsel for the accused appellant that PW 1 Major Singh and PW 2 Mukand Singh are interested witnesses. According to him, the accused-appellant Tejsingh was annoyed to Harneksingh (PW 5) as Harneksingh brought Majorsingh (PW 1), the nephew of deceased Mukand Kaur to look after his fields and property. 17. It was submitted by Mr. M.L. Garg, learned counsel for the accused appellant that PW 1 Major Singh and PW 2 Mukand Singh are interested witnesses. According to him, the accused-appellant Tejsingh was annoyed to Harneksingh (PW 5) as Harneksingh brought Majorsingh (PW 1), the nephew of deceased Mukand Kaur to look after his fields and property. Harnek Singh was issueless and in the normal course, the accused appellant Tej Singh might have succeeded. However, Major Singh was bronght into picture and Tejsingh (accused appellant) became aggrieved party and to get rid of the aggrieved party who can agitate against Mukand Singh and Major Singh after the demise of Harneksingh, these witnesses wanted to implicate the whole family of the accused-appellant Tejsingh. However, the lower court has found that Rajsingh and Darshansingh have wrongly been implicated and as such both of them have been acquitted and no appeal has been filed against their acquittal. Learned counsel submits that there is a motive behind implicating Tejsiogh (accused-appellant) and so, the evidence of these two witnesses viz., Majorsingh and Mukand Singh should be discarded. It is well settled that the evidence of interested witnesses should not be discarded only on the ground of being an interested witness. However, their evidence has to be looked into with caution to appreciate the version given by them. 18. Learned counsel for the appellant has further invited our attention to the Post Mortem Report (Ex.P.3) and has submitted that deceased Mukand Kaur sustained two wounds injuries and one punctured wound (injuries No. 4, 5 and 6). Mr. Garg submits that in the F.I.R. which has been lodged by Harnek Singh in the presence of Mukand Singh (P.W.2) it has specifically been mentioned that the accused-appellant had a gun and the other two accused viz., Rajsingh and Darshansingh had the lathies. He submits that these injuries viz., injuries No. 4, 5 and 6 cannot be caused by any of the persons who have been named by the complainant Harneksingh as accused in the F.I.R. Thus, the author of these injuries should be any one else other than the accused appellant and Rajsingh and Darshan Singh (who have been acquitted). He further submits that inEx.P.3(First Information).Report there is no reference about these injuries. He further submits that inEx.P.3(First Information).Report there is no reference about these injuries. He further submits that even in the Court,P.W.1 Major Singh and P.W.2 Mukand Singh have not stated a word about the injuries No. 4, 5 and 6. P.W.I Major Singh has made an improvement in this statement in the Court by saying that Darshansingh had a Sella whereas in the F.I.R, it has been mentioned that Darshan Singh had a lathi. P.W.2 Mukand Singh has specifically stated that Darshan Singh had a lathi. Even if the improvement made by P.W.I Major Singh in the Court is assumed to be correct, though it is not correct, even then the incised wounds cannot be caused by Sella. Even in the Court, P.W.I Major Singh and P.W.2 Mukand Singh have not stated that Darshan Singh and Raj-Singe inflicted any blows with the weapon which they had to the deceased. Thus there is a clear omission about these injuries not only in the F.I.R. but also in the statements given in the Court. If a person is present on the spot throughout, then he will narrate the whole story and give descriptions of the wounds specially about the incised wounds and punctured wound. Learned Public Prosecutor admits that neither in the F.I.R nor in the statements given in the Court, any of the witnesses have stated about injuries Nos. 4,5 and 6. Mr. Garg submits that the non-explanation about injuries No. 4, 5 and 6 sustained by the deceased itself is fatal to the case of the prosecution and the evidence of P.W.I Major Singh and P.W.2 Mukand Singh should be discarded. He has further pointed out that P.W.l Major Singh has specifically stated that he ran away and the accused chased him. Similarly, P.W.2 Mukand Singh has also stated that the accused chased them. According to the prosecution, P.W.I Major Singh and P.W.2 Mukand Singh have seen the complete incident and the omission to state about injuries No. 4, 5 and 6 referred to in Ex.P.3 is a material omission which creates suspicion in the mind of the court about the presence of these two witnesses viz , P.W.1 Major Singh and P.W.2 Mukand Singh on the spot. 19. Mr. 19. Mr. M L. Garg, learned counsel for the appellant has further invited our attention to the F.I.R. (Ex.P.2) and submitted that in the F.I.R., it has not mentioned where the deceased sustained the gun shot. P.W.I Major Singh in his examination-in-chief has stated that the accused Tejsingh has uttered that I am giving you the field Raba Raba and thereafter, he shot a fire towards his father P.W.2 Mukand Singh but it missed. He has further stated that thereafter, his paternal aunt asked his father to go inside the Kotah and the accused-appellant Tejsingh fired the second shot which hit his paternal aunt Mukand Kaur nearby pubic hairs. He has further stated that on sustaining this injury, his paternal aunt fell down in the Kotah Mr. Garg has invited ray attention to Ex.D.1 (Police statement of P.W. 1 Major Singh) and has submitted that P.W. 1 Major Singh was confronted with his police statement and he was not in a position to state why this fact that the second shot was hit to his paternal aunt near-by black hairs has not been mentioned in Ex.D. 1. Similarly, this witness has been confronted with the police statement Ex.D. 2 (the statement recorded under s. 161 Cr.P.C). In Ex D. 2 also, this fact has not been mentioned. This witness has specifically stated that accused-appellant Tejsingh had fired two shots only, one shot which is said to have been fired on his father had missed and the other fire which hit his paternal aunt, which relates to the injury caused on left iliac region and left thigh & pubic region (injuries No. 2 and 3). This witness has further stated that he heard a third fire while he was running away and the accused were chasing him. Mr. Garg submits that in such circumstances, it cannot be said that who was the author of the third fire. Mr. Garg submits that this witness has specifically stated that accused Tejsingh had fired two shots and so, the author of the third fire must be some one else. P.W.2 Mukand Singh has stated in his examination-in chief that the accused-appellant Tejsingh came with Darshan Singh and Raj Singh and immediately told that I am giving you the field (Raba) and thereafter fired on him but the fire missed. He was asked to explain why he means by the fire missed. P.W.2 Mukand Singh has stated in his examination-in chief that the accused-appellant Tejsingh came with Darshan Singh and Raj Singh and immediately told that I am giving you the field (Raba) and thereafter fired on him but the fire missed. He was asked to explain why he means by the fire missed. He has said fire nahi hua. Thereafter, he has stated that accused Tejsingh fired a second shot which hit his sister near the black hairs and she fell down in the Kotah. P.W. 1 Major Singh has stated that Tejsingh fired from a distance of about 2 steps and his paternal aunt was standing on the side of his father at a distance of about one step and the accused Tejsingh was at a distance of about two steps. Mr Garg has invited our attention to Ex.P. 36 (injuries No. 2 and 3) and has submitted that the Doctor has specifically mentioned that there were seven lacerated wounds with inverted edges with no tatooing on left iliac region and there were four lacerated wounds with inverted edges with no tatooing. Mr. Garg submits that in the normal course, if the fire is shot from a distance of about 2 steps i.e., about 4 to 5 fit then there should be blackening and tatooing. He further submits that even if we assume that there may not be tatooing but blankening is a must. Mr. Garg has further invited our attention to injuries No. 2 and 3 and has submitted that there is a distance of about 6" in between injuries No. 2 and 3. The Doctor has opined that injuries No. 2 and 3 have been caused by one fire. Mr. Garg submits that applying the principles that the dispursion area of the pellet is one meter = 1" then looking to the distance of injuries No 2 and 3, it can easily be said that the gun shot was fired from a distance of more than 6 meters i.e. from a distance of about 20. He further submits that his version further finds support and this fact that there are no tatooing marks and this fact goes to show that the version given by P.W.1 Major Singh and P.W.2 Mukand Singh that the gun was fired from a distance of 2 steps is not correct and their testimony should be discarded on this ground also. 20. Mr. 20. Mr. Garg has further submitted that injury No. 1 is a lacerated wound with inverted edges and blackening and tatooing on the left side of the chest. He submits that neither P.W.I Major Singh nor P.W.2 Mukand Singh has stated that who was the author of injury No. 1. P W. 1 in his statement has only stated that all the three accused chased him and he ran away and while running away, he heard a gun shot. P.W.2 Mukand Singh has also given the same version. Mr. Garg submits that the appellant cannot be the author of injury No. 1. Injury No. 1 is a gun shot injury having a lacerated wound with inverted edges with blackening and tatooing 1-1/2" x 1-1/2" on left side of chest anteriorly below the mammary gland, part of stomach & omentum buldging out of wound blackening disappeared on washing. This goes to show that this shot has been fired from a very very near place. A person who is firing while chasing the other from a long distance cannot cause injury No. 1 and there is no case of prosecution also that the fire which has been shot by any one and heard by P.W. 1. Major Singh and P.W.2 Mukand Singh is the cause of injury No. 1. Thus, according to Mr. Garg, the prosecution is silent about injuries No. 4. 5 and 6. It was obligatory on the part of the eye witnesses to explain about injuries No. 1, 4, 5 and 6 sustained by the deceased. Mr. Garg submits that injury No. 1 may be caused by gun shot and the injuries No. 1, 4, 5 and 6 can only be caused by a sharp edged weapon like axe and the prosecution has not come with a case that any of the accused challaned had the axe. Injury No. 5 is a punctured weapon which can only be caused by a piercing weapon like Sella or speer but in the F.I.R., it has been mentioned that the appellant had the gun and rest of the co-accused who have been acquitted hat the lathies. P.W. 1 Major Singh has improved his statement and has introduced the Sella with the Darshansingh. However, P.W. 2 Mukand Singh has specifically stated that Darshansingh and Rajsingh (co-accused acquitted) had the lathies. P.W. 1 Major Singh has improved his statement and has introduced the Sella with the Darshansingh. However, P.W. 2 Mukand Singh has specifically stated that Darshansingh and Rajsingh (co-accused acquitted) had the lathies. Thus, non-explanation of injuries No. 1, 4, 5 an J 6 creates a doubt about the presence of P.W. 1 Major Singh and P.W.2 Mukand Singh. Learned Public Prosecutor submits that the first injury should be taken as an injury which has been fired from a near distance and the witnesses might have committed an error in referring injury Nos. 2 and 3 as the injuries caused from the distance of two steps. The submission made by the Irned Public Prosecutor cannot be accepted as injuries No. 2 and 3 are the fatal injuries and specially the cause of the death. Injury No. 1 is not fatal and is not the case of the death. The court can appreciate and scrutinise the evidence but cannot substitute the case of the prosecution. If we accept the submission made by the learned Public Prosecutor, it will tantamount to substitute the case of the prosecution.In these circumstances, the position will be that injury no. 1 has been inflicted first and thereafter, injuries No. 2 and 3 have been inflicted from a long distance. The witnesses P.W.I Major Singh and P.W. 2 Mukand Singh are consistent in their evidence that injuries No.2and 3 have been caused first and injury No. I has been caused from a long distance. In such circumstances, it will tantamount to the substitution of the case and we are not inclined to accept the submission made by the learned Public Prosecutor. 21. Learned Public Prosecutor has invited our attention to the report dated 18.1.1977 of the State Forensic Science Laboratory, Jaipur and has submitted that the gun which has been recovered from the accused was serviceable one and two 12 bore cartridge cases contained in Packet B have been fired from the right barrel of the gun under reference, and that two regular 12 bore cartridges marked C/3 and CM contained in packet C have missed fire and, however, C/3 was fired successfully. Learned Public Prosecutor has invited our attention to Ex.P. 26 and has submitted that these empty cartridges were recovered from the accused from his house. Mr. Learned Public Prosecutor has invited our attention to Ex.P. 26 and has submitted that these empty cartridges were recovered from the accused from his house. Mr. Garg, learned counsel for the appellant has vehemently submitted that the report of the Forensic Science Laboratory cannot be used as a piece of evidence as it has neither been tendered nor been exhibited. He further submits that even no question has been asked under s 313 Cr P.C. to the accused and unless the report is tendered and is made available to the accused, it cannot be looked into. Mr Niyazudin Khan, learned Public Prosecutor contranted with this situation admits that the report has neither been exhibited nor been tendered in evidence. He submits that it is because of ovre sight that the report has not been formally tendered in evidence. He submits that the tendering of the report in evidence is a formal act and the Court should have got exhibited it as it was submitted with the chargesheet. 22. We have heard the rival contentions of the parties and we find force in the submission made by the learned counsel for the appellant that the report is not admissible in evidence unless it is tendered in evidence and exhibited. However, this Court has a right to take the additional evidence and to put to the question to the accused under s. 313 Cr.P.C. after observing the formalities of law. A prayer has been made by the learned Public Prosecutor to exhibit the report of the State Forensic Science Laboratory by way of additional evidence and to put the question to the accused to meet the ends of justice. The un-exhibited report of the State Forensic Science Laboratory read with Ex.P. 26 leads us to the position that some empties and some mis-fired cartridges were recovered from the house of the accused. Generally, sometime empties are collected by the persons who fired for the purpose of gain as well as for the purpose of play and they are preserved. Recovery of the empties from the house of the accused will be a linking evidence but it cannot be equated with the evidence of the empties which are recovered on the spot. Generally, sometime empties are collected by the persons who fired for the purpose of gain as well as for the purpose of play and they are preserved. Recovery of the empties from the house of the accused will be a linking evidence but it cannot be equated with the evidence of the empties which are recovered on the spot. Apart from that, it was the obligatory duty of the prosecution to send the pellets recovered from the body of the deceased to the Ballastic Expert and the Ballastic Expert could have compared the pellets and the empties recovered at the instance of the accused. The prosecution has intentionally not forwarded the pellets which were recovered from the dead body of Smt. Mukand Kaur and which were handed over to the Police after Post Mortem Examination to the Ballastic Expert. The contention of Mr. Garg, learned counsel for the accused appellant is that the prosecution had the empties recovered at the instance of the accused from his house and had the pellets in its possession just after the Post-Mortem Examination Report and was also in the possession of the gun recovered from the accused. But the empties and gun were sent to the State Forensic Science Laboratory and the pellets were not sent for examination to the Ballastic Expert. Mr. Garg submits that if the pellets had been sent to the Ballastic Expert, he could have expressed his opinion on the question whether the pellets could have been fired from the empty cartridge cases. The failure on the part of the prosecution in not forwarding the pellets to the Ballastic Expert means that the prosecution has failed to establish beyond reasonable doubt that the pellets which were removed from the dead body of Smt. Mukand Kaur during the Post-Mortem Examination were fired from the empty cartridge cases, which have been recovered from the house of accused-appellant Tejsingh. In view of the circumstances referred to above by Mr. Garg, we are of the opinion that the prosecution has failed to link the empties pellets with the gun recovered from the accused-appellant. 23. Mr. Garg has further pointed out that P.W.2 Mukand Singh in his cross-examination has stated that he came to know about the fact that her sister has fallen down in the Kotah after the arrival of the Police. 23. Mr. Garg has further pointed out that P.W.2 Mukand Singh in his cross-examination has stated that he came to know about the fact that her sister has fallen down in the Kotah after the arrival of the Police. There is an improvement in the statement of P.W. 1 Major Singh and P.W. 2 Mukand Singh as far as the part of giving the field is concerned and both the witnesses have not stated in their police statements as well as the statements recorded under s 164 Cr.P.C. about this fact. There is a further improvement in the statement of P W.l Major Singh about the theory of hiding himself behind the camel. In Ex.D.l. P.W.1 Major Singh has stated that he took the shelter behind the came so that the accused may not fire towards him but he has disowned the statement in the Court. It was also pointed out that the firing is alleged to have taken place from a distance of about 6 meters, or more than that. There is no evidence of gun shot fired on the wall, and the doors of the Kotah in which the deceased was standing Mr. Garg submits that the dispursion area may be wide enough and there may be marks of pellets on the doors of the Kotah. Mr Garg has further pointed out the number of irregularities about the existence of Jholi and bags etc.and other discrepancies. 24. Taking into consideration the submissions made by the learned counsel for the appellant while dealing with the F.I.R., the inconsistencies between the statements of the eye witnesses and the medical evidence and the unnatural conduct of the eye witnesses, we are of opinion that the case of the prosecution creates a reasonable doubt that there is everylikelihood that P.W. 1 Major Singh and P.W. 2 Mukand Singh may not be on the spot. 25. The result is that we accept the appeal and set aside the conviction and sentence of the accused-appsllant Tejsingh. The accused-appellant Tej-Singh may be set at liberty, if not required in any other case.