JUDGMENT 1. - These are two appeals, one filed from jail by both the accused persons Pappu and Jinsi and the second filed by pappu duly represented by his counsel. 2. According to the written report filed by Chouthilal on behalf of Bhanwar Lal, the prosecution case was that Bhanwar Lal was living with his father and brothers in the village Todpura. There was a dispute between his brother Ram Niwas and Bhondu Sarpanch about a year back. About eight days back, Jinsi, Lakhan, Brij Mohan and Shiv Ji took liquor and there was a dispute between them. Jinsi with a gun, came at his hoc abused them and challenged them to come out. Since no body came out, Jinsi went away saying that he would kill Shiv Ji. 3. It was then stated that yesterday on the occasion of Holi at about I I a.m. Jagan Nath, Brij Mohan came to his house and took him and his brother Shiv Ji etc. out-side the village. They drank liquor there. In the evening Shiv Ji came to house. Brij Mohan and Sagan Nath then came to house and took Shiv Ji again for. Holi-Danda celebration. Witness Bhanwar Lal also accompanied with Rahubeer and Pappu followed. At the place where Holi-Danda was being celebrated they were sitting and at that time Brij Mohan and Jagan Nath went and came back and told Shiv Ji that Lakhan is calling. Shiv Ji and witness accompanied Jagan Nath and reached there. There Batwa, Kanti. Lakhan and Brij Mohan were sitting. Behind them Jinsi was sitting who came on the spot with a gun. Lakhau and Brij Mohan told Jinsi to kill Shiv Ji. Jinsi then fired at Shiv Ji. He tried to save Shiv Ji. Pappu was called and came there. Batwa threw stone on him and Kanti pushed him. Jinsi then fired Shiv Ji with a gun which resulted in falling down of Shiv Ji by the injury of gun. Jinsi then ran away and witness Bhanwar Lal caught him but he tried to run-away after pushing him. Pappu caught him. Brij Mohan, Kanti. Lakhan and Sagan Nath ran-away. He stayed with Shiv Ji and then his mother and relatives came. Jinsi later on informed that the gun was given by Bhodu Sarpanch. This report was submitted by Chouthi Lal on behalf of Bhanwarlal though it was signed by Bhanwar Lal. 4. Pappu caught him. Brij Mohan, Kanti. Lakhan and Sagan Nath ran-away. He stayed with Shiv Ji and then his mother and relatives came. Jinsi later on informed that the gun was given by Bhodu Sarpanch. This report was submitted by Chouthi Lal on behalf of Bhanwarlal though it was signed by Bhanwar Lal. 4. The Station House Officer registered a case and prepared the inquest and made other investigation and then during the investigation he found that Pappu was also involved in the incident as on abator. The SRO challaned both Jinsi and Pappu. After the commitment proceedings, evidence was recorded by the Sessions Judge. The accused denied the charge in the statement. Learned Sessions Judge after hearing both accused and the prosecution convicted the accused Jinsi under Section 302 IPC and accused Pappu under Section 302 read with Section 109 IPC. 5. In this appeal, Mr. Tibrewal learned counsel for Pappu has drawn our attention to the pertinent feature of the case that in the first information report which was signed by brother of the deceased who is an injured eye-witness, name of Pappu was not mentioned at all so far as the part of abatement is concerned. Contrary to it, was mentioned that Pappu helped him in catching the accused Jinsi when he was running. A reading of first information report, according to Mr. Tibrewal, clearly shows that Pappu was not only an abator but contrary to it he was helping the deceased and his brother against the accused Jinsi. 6. Shri Tibrewal then read before us the inquest report prepared soon after the incident by the S.H.O. which has been signed by Bhanwarlal. The deponent of the first information report and the injured eyewitness. It was pointed out that this inquest report was not without significance that there was no mention any where direct or indirect that Pappu was an accused in this case. 7. On the above premises Mr. Tibrewal pointed out that name of Pappu is a case of deliberate improvement in the prosecution story at the later stage on account of some enemity. The statement of Bhanwar Lal was also read as a whole. 7. On the above premises Mr. Tibrewal pointed out that name of Pappu is a case of deliberate improvement in the prosecution story at the later stage on account of some enemity. The statement of Bhanwar Lal was also read as a whole. Bhanwar Lal admitted the signatures on the first information report and was not able to give a satisfactory explanation to pursuade this Court to believe that the entire first information report was signed by him without any knowledge of its contents. Obviously not only at the time of signing of the first information report but also at the time of the representation of the inquest-report, Bhanwar Lal had important role to play. He was the brother of the deceased. He has witnessed the entire occurrence. He got injuries and he is a stamped witness of the prosecution. 8. Shri Chatterjee learned Public Prosecutor pointed out that though the name of Pappu has not been mentioned in the first information report as an abator and the part ascribed to him in the statement in the Court by Bhanwar Lal is conspicuously absent in the first information report but if is on account of the fact that the persons who took the first information report to the police station were the relatives of Pappu and they wanted to save Pappu from the very begining. 9. It was pointed out by Shri Chatterjee that the absence of name of accused in the inquest report is of no consequence and should not be treated as a point against the prosecution. 10. We have carefully considered the rival contentions of learned counsel for the parties and have perused the relevant record referred to us during the arguments. 11. It is true that normally mere absence of the name of an accused cannot be sufficient for treating the prosecution case against him as doubtful. However, when the signatory of first information report happens to be an eye witness and again brother of the deceased, the first information report assumes an important dimension. Normally brother of the deceased who had witnessed the entire incident would not like to avoid naming the real accused by substituting a different story. A case would of course be different if the first informant is not by an eye-witness or he is an interested person in the accused. 12. Normally brother of the deceased who had witnessed the entire incident would not like to avoid naming the real accused by substituting a different story. A case would of course be different if the first informant is not by an eye-witness or he is an interested person in the accused. 12. We are in agreement with Shri Chatterjee that mere ommission of the name of the accused in the inquest report need not be treated as a serious infirmity in the prosecution case. 13. In the instant case as we have mentioned above, it is not the absence of the name of accused Pappu in the inquest report which is weighing heavily with us in favour of accused but absence of the part assigned to Pappu during the Court evidence, in the first information, which has been of great significance because Bhanwar Lal happens to be a signatory. It is also without significance that Bhanwar Lal is not an illiterate person as he has signed it and not put his thumb impression only. It is impossible to conceive that brother of deceased who happens to be an eye-witness would sign such a detailed first information report without knowing the main parts of it and in any case the name of the accused could not have escaped in it. In our opinion this is a strong circumstance which create doubt so far as the involvement of Pappu is concerned. We feel that there is no other such evidence which had persuaded us to remove this doubt so that we can confirm the finding of trial court against Pappu. Consequently Pappu is entitled to benefit of doubt. 14. Now coming to the case of Jinsi there is no doubt that he was the person who fired with his gun resulting in the death of deceased. Apart from the evidence of Bhanwar Lal the other witnesses PW 2 Swaroop, PW 3 Cbauthi, PW 4 Bhoru and PW 5 Roopbai have corroborated him. These are the eye-witnesses and nothing has been shown in their cross-examination to discredit them. It is not without significance that this accused Jinsi was caught red-handed on the spot when he was trying to run after shooting the deceased. These are the eye-witnesses and nothing has been shown in their cross-examination to discredit them. It is not without significance that this accused Jinsi was caught red-handed on the spot when he was trying to run after shooting the deceased. The prosecution case as proved from the above witnesses also goes to show that he was after the life of the deceased and earlier also he had gone to the house of the deceased and challenged him to come out. 15. On a detailed appraisal of the entire evidence we are convinced that the trial court was justified in relying upon the prosecution evidence and holding that it was Jinsi who fired with this gun on deceased which resulted in his death. 16. Learned counsel tried to point out that there were some infirmities in the prosecution evidence because of the ballastic aspect. It was argued that the type of injuries caused to the deceased as revealed from the post Mortem Report rules out the possibility of gun fire. Learned counsel for the appellant submitted that the directions at which the gun has been fired alleged to have been fired would not cause such injury. 17. We have given a thoughtful consideration to this aspect of the case also. In our opinion the contention of learned counsel is untenable. Even if a gun is fired at a degree of 90, though no exactness can be assured in such matters then also in what manner the Bullets or pallets would striker will depend upon the posture and position of the deceased. In the normal course deceased would always try to avoid and protect himself from coming shots and in that process various types of postures and position of body of deceased would take place. 18. It is established law that in such cases where there is positive evidence of gun fire by the accused against the deceased and the evidence of the eye-witnesses is consistent, trustworthy and credible, such hypothetical arguments regarding type of injuries which should be produced cannot be of any avail. Moreover, we do not find any infirmity even in this aspect of the case as rightly discussed by the trial court. 19. The deceased received the following injuries as per the statement of Dr. Devkinanden Verma, PW 11. Moreover, we do not find any infirmity even in this aspect of the case as rightly discussed by the trial court. 19. The deceased received the following injuries as per the statement of Dr. Devkinanden Verma, PW 11. (1) Oval gun shot wound of entrance on left side of forehead 3/4" above inner and of left eyebrow ⅓" x 1/4" x cronial cavity deep (2) Oval gun shot wound of entrance 1/4" x ⅙" x cranial cavity deep on left side of forehead 1/2" above mid of left eye-brow. (3) Oval gun shot wound of entrance on frontal region of scalp on left side 11/4" above mid of left eye-brow 1/4" x ⅙" x cranial cavity deep. (4) Gun shot wound of entrance oval on shape 1/4" x 3/16" x cranial cavity deep or forehead right side 1/2" above mid of right eye-brow. (5) Gun shot wound of entrance ⅙" in diameter on the right side of fore-head I 1/4" above mid of right eye-brow. (6) Gun shot wound of entrance 1 /8" in diameter or right side of fore-head 3/4" above mid of right eye-brow. (7) Gun shot wound of entrance ⅛" in diameter on forehead close on outer end of right eye-brow. (8) Gun shot wound of entrance ⅛" in diameter on right temporal region of scalp 1" from tragus of right ear. (9) Gun shot wound of entrance 1/10" in diameter on right side of fact at nasal vestibule level. (10) There are 2 gun shot wound entrance 1/10" in diameter each on cornial portion of right eye at a distance of ⅛" from each other on right 1/2 of cornia resulting in ward putting appearance of cornia with scorching. 20. It is obvious that four big pallets and 16 small pallets were taken out from the body of the deceased. These injuries were sufficient in the ordinary course of nature to cause the death and the death was caused due to hemorrhage of brain. 21. We are, therefore, convinced that present one is a case where the prosecution has been successful in proving beyond all manner of reasonable doubt that it was accused Jinsi who caused these injuries to deceased which proved fatal. The fact that Jinsi used the gun, goes to show that the injuries were caused intentionally with the sole object of causing death of deceased. 22. The fact that Jinsi used the gun, goes to show that the injuries were caused intentionally with the sole object of causing death of deceased. 22. The result of the above discussion is that so far as the appeal of Jinsi is concerned, it has got no merit and consequently the same is dismissed. However, as discussed above so far as the part assigned to Pappu, we are inclined to give benefit of doubt to him. Consequently Pappu is acquitted from his charge under Section 302 read with Section 189 IPC. Pappu is on bail, he need not surrender. The appeal of Pappu is accepted and the appeal of Jinsi is dismissed.Appeal of P accepted and of J dismissed. *******