JUDGMENT 1. - The learned Sessions Judge, Sri Ganganagar convicted the appellant of the offences under Section 302, 307, IPC and 27, Arms Act and on the first two counts, sentenced him to imprisonment for life and on the third count, three years rigorous imprisonment by his judgment dated January 14, 1975. 2. The prosecution case in brief is that, P.W. 1 Ghaushyamdass had strained relations with Hardipsingh from the time of school days. He harboured grudge against him. Some four years ago, Hardipsingh and Gurtejsingh had beaten him and he reported the matter at the police station, Padampur. Thereafter, on 20-10-73, again an occurrence had taken place when he was proceeding to Bikaner from Sri Ganganagar. He had come from Padampur to Ganganagar for catching the bus. At Ganganagar, Hardipsingh, Amarjitsingh, Butasingh & Surjeet Singh came out from a jeep along with two other persons. Hardipsingh had a rifle with him. They attempted to lift him and asked him to board the jeep but he was rescued by the other persons on his alarm. They were in a jeep No. RSK 949. A report of the occurrence was lodged by him on that very night at the police station Kotwali. It is in this back-ground the present occurrence took place on 31-10-73. The prosecution case is that on 31-10-73, Ghanshyamdass was proceeding to Karanpur from Padampur to attend a hearing in a case under section 107, Cr. PC. He was proceeding in jeep No. DHS 224 along with Kisturilal alias Gujer, Deputiram, Gurmeetsingh, Charansingh, Darshansingh Kamal-kishore, Vedprakash and Karamchand. Kisturilal was driving the jeep and he was sitting by the side of the driver. On his right side Deputiram and Gurmeetsingh were sitting. In the back portion of the jeep, on the left Milkhiram, Darshansingh and Karamchand were sitting and in the back on the right side of the jeep, Charan Singh and Kamalkishore were sitting. In the middle back portion of the jeep, Vedprakash was sitting and on the dala, the deceased Ramkishan was sitting. At about 10.30 a.m., when the jeep was proceeding, one Christian raised his hand and gave signal to stop the jeep. That Christian is resident of 47 or 48 GG. Thereupon, the jeep allowed down and went a little shead. In the middle back portion of the jeep, Vedprakash was sitting and on the dala, the deceased Ramkishan was sitting. At about 10.30 a.m., when the jeep was proceeding, one Christian raised his hand and gave signal to stop the jeep. That Christian is resident of 47 or 48 GG. Thereupon, the jeep allowed down and went a little shead. Another jeep No. RSK 949 was stationary with its bonnet lifted and by the side of that jeep, there were Amarjitsingh appellant, Hardipsingh and 3-4 more persons. It is alleged that Amarjitsingh fired shots in quick succession with his 12 bore DSSL gun. As per the version given by Ghanshyamdas, his shots hit Ramkishan and others. One of the pellet also hit him. Thereafter, Hardipsingh fired from his double barrel gun, which hit Kamalkishore, Charansingh and Darshan Singh. Then their jeep sped away and they straight way went to Karanpur hospital. Ramkishan succumbed to his injuries on the way. Charansingh was in a precarious condition due to head injury. Kamalkishore was also injured on the back. Darshansing had also sustained an injury on the pattels joint. PW 20 Jagmalaram received a message Ex. P 49 from Karanpur Hospital. Thereupon, he visited the hospital and recorded the statement (Ex. P 6) of Ghanshyamdass, which was sent by him to the police station, Padampur through Phoolaram, as the place of occurrence, was within the jurisdiction of police station, Padampur. He recorded the statements of the injured witness Charansingh on 1-11-73 and got the post mortem conducted on the dead-body of Ramkishan, and he gave the `tehrir' to the medical officer for examination of the injured persons. PW 21 Jaleysingh has registered a case on production of Ex. P 6, after drawing of the formal FIR (Ex. P 55). He visited the spot and prepared the site-plan (Ex. P19) and site-notes (Ex. P 1 9A).He seized the empty cartidges from the spot vide memo Ex. P 5. The jeep No. RSK 949 was also seized vide memo Ex. P 20, which was left at the spot. On 2-11-73, Amarjitsingh, Hardipsingh and Surjeetsingh were arrested. At the time of the arrest of Hardipsingh, one rifle .315 was seized along with the bandolier containing 9 cartridges with one receipt of licence. Similarly, on the arrest of Amarjitsingh, one 12 bore double barrel gun along with licence was seized. P 20, which was left at the spot. On 2-11-73, Amarjitsingh, Hardipsingh and Surjeetsingh were arrested. At the time of the arrest of Hardipsingh, one rifle .315 was seized along with the bandolier containing 9 cartridges with one receipt of licence. Similarly, on the arrest of Amarjitsingh, one 12 bore double barrel gun along with licence was seized. On the information of Hardipsingh one fired cartridge was also recovered. The accused Butasingh was arrested on 6-11-73. The accused-persons were put up for identification after being warned to remain `Baparda'. After completion of investigation, charge-sheet was presented against the accused. The accused-persons were committed for trial to the court of Sessions. 3. At the trial, the prosecution examined in all 21 witnesses. The statements of the accused-persons were recorded in which they denied the prosecution case. No evidence was led in defence. The learned Sessions Judge recorded acquittal of the three accused-persons and convicted the appellant Amarjitsingh for the murder of Ramkishan as well as for making an attempt on the lives of others, under Section 302, and 307, IPC and also under Section 27, Arms Act. Dis-satisfied with the convictions and sentences, the accused Amerjitsingh has preferred this appeal. 4. We have heard Mr. Karnailsingh assisted by Mr. M.L. Garg and Mr. S.R. Singhi, learned counsel for the appellant and Mr. L.S. Udawat, learned Public Prosecutor for the State assisted by Mr. Bhagwati Prasad, learned counsel for the complainant. 5. On behalf of the appellant, Mr. Karnailsingh learned counsel principally contended that the learned Sessions Judge seriously erred in recording the conviction of the accused under Section 302, IPC by holding that the shots fired by the appellant, hit the deceased resulting in his death. While recording such a finding, the learned Sessions Judge did not give due consideration to the earlier version of the injured and other eye-witnesses, who were the boarders of the jeep. He submitted that at the trial, the eye-witnesses have come out with a story, which does not find any place in the earlier versions given y them. Consistently, all the witnesses came out with the version that the shots were fired by Amarjitsingh and Hardipsingh. The two shots were fired by Amarjitsingh by his 12 bore double barrel gun and the shots were effective on Ramkishan, Ghanshyamdas, Charansingh, Kamalkishore and Darshansingh were effective on Ramkishan, as a result of which, Ramkishan died. Consistently, all the witnesses came out with the version that the shots were fired by Amarjitsingh and Hardipsingh. The two shots were fired by Amarjitsingh by his 12 bore double barrel gun and the shots were effective on Ramkishan, Ghanshyamdas, Charansingh, Kamalkishore and Darshansingh were effective on Ramkishan, as a result of which, Ramkishan died. He pointed out that Ghanshyam Dass in the first information report's version , no doubt, stated that both the shots of Amarjitsingh hit Ramkishan and others and the shots fired by Hardipsingh were effective on Kamalkishore, Charansingh Darshansingh and Ghanshyamdas in his first version as contained in the first information report, came out with a story that Hardipsingh was armed with a double barrel gun. At the trial, he changed the story and came out with the version that Haripsingh was armed with a rifle. The first version of the other witnesses, no doubt, was that Hardipsingh was armed with a rifle. 6. We shall be examining as to what is effect of the earlier version of the witnesses regarding the weapon with which Hardipsingh was armed. Before that, we may consider as to what the witnesses had stated in their police statements regarding the effectiveness of the shots. PW 1 Ghanshyamdass was confronted with his committing court's statement Ex. D 1. In portion E to F, he categorically stated that he does not know the first shot hit whom and even with regard to the second shot, his version was that he does not know to whom the shot hit except him. He stands contradicted in the above version by his FIR statement, where he categorically stated that the first two shots hit Ramkishan and others and he himself was also hit by a pellet of those shots. We may also examine here the prevarication and variance that has came in the statement with regard to the weapon of the offence attributed to the accused Hardipsingh. He was confronted with the committing court's statement portion A to B, where he stated that Hardipsingh was armed with a rifle. In the earlier part of his statement, he stated when he was questioned as to what type of gun the accused had, he answered that he had a single barrel gun, like that of 12 bore with a narrow mouth. He does understand the difference between a rifle and 12 bore gun. In the earlier part of his statement, he stated when he was questioned as to what type of gun the accused had, he answered that he had a single barrel gun, like that of 12 bore with a narrow mouth. He does understand the difference between a rifle and 12 bore gun. After answering a s above, on being confronted the committing court's statement, he gave out that it is possible that Hardipsingh may be having a rifle but he did not have a 12 bore gun. It would appear that knowing the difference between a rifle and a 12 bore gun, he gave out varied version. He was also confronted with his police statement (Ex. D 2) and it was put to him that he did not state in Ed. D 2 that Amarjitsingh's shots hit Ramkishan. The witness replied that he did state. He was also confronted with the statement from portion E of F of Ex. P 6. Portion E to F of Ex. P 6 mentions that Hardipsingh fired shots with his double barrel gun, which hit Kamalkishore, Darshansingh and Charansingh. At the trial, in the examination-in-chief, PW 1 Ghanshyamdad's version is that Amarjitsingh fired two shots on them, which hit his shoulder one also hit Darshansingh, Kamalkishor and charansigh and a shot was fired by Hardipsingh, which did not hit anybody. In the earlier part of his statement, he did not mention that Ramkishan was also hit by the shot of Amarjitsingh. Then a leading question was put to the witness as to whether any shot hit Ramkishan. Then the witness replied that Amarjitsingh fired two shot at that time, which hit Ramkishan. If the trial statement is viewed in the light of the previous statements, it would appear that the witness is not consistent not only with regard to the weapon of Hardipsingh but also with regard to whose shots his whom and for the fist two shots he has very categorically stated in the committing court's statement that he does not know and he only knows that the second shot hit him. 7. PW 2 Gumeetsingh has also come out with the same trial version for the shot fired by Hardipsingh. He stated that he cannot say whether anybody was hit by his shot or not. He was confronted with the police statement Ex. 7. PW 2 Gumeetsingh has also come out with the same trial version for the shot fired by Hardipsingh. He stated that he cannot say whether anybody was hit by his shot or not. He was confronted with the police statement Ex. D 3 portion C to D, where he stated that Amarjitsingh fired two shots with his double barrel gun and Hardipsingh also fired one shot, which hit Ramkishan, Darshansigh, Ghanshyamdas, and Kamalkishore. In answer to this question, he stated that the statement given by him in the court is correct. It would appear that he disowned the portion C to D of Ex. D 3. 8. PW 3 Kisturilal was also confronted with the statement Ex. D 4. His police version was also the same and he also disowned the relevant portion of Ex. D 4. After the shots by Hardipsingh and Amarjitsingh, he stated in Ex. D 4 that the shots hit Ramkishan, Charansingh, Darshansingh, Kamalkishore and Ghanshyamdas. There were two police statement of Kisturilal. In portion C to D of another statement Ex. D 5, he stated that Hardipsingh's shot did not hit anybody. When he was so confronted, then he stated that his statement at the trial is correct. 9. PW 4 Daputiram has not come out with the version in his examination-in-chief as has been given by the other witness. In the examination-in-chief, he state that Amarjitsingh fired two shots with his double barrel gun and soon thereafter, Hardipsingh fired a shot with pacca banduk. He is silent about the effectiveness of the shots, as no question was put in cross-examination. In the cross-examination, a question was put to him with regard to the firing by Hardipsingh to which he stated that he saw him and taking an aim. He did not see him firing shots and he does not know whether the shots were effective on anybody or not. 10. PW 6 Darshansingh has stated that both Amarjitsingh and Hardipsingh had rifles. Amarjitsingh had fired-shots. These were in all three shots. Amarjitsingh had fired soon after the first shot and for the third shot, he cannot say who fired it. When a question was put to him as to whose shot was effective 011 him. The witness answered that Amarjitsingh's shot was effective on Ramkishan, Charansingh, Kamalkishore, Ghansyhamdass and on himself. Amarjitsingh had fired-shots. These were in all three shots. Amarjitsingh had fired soon after the first shot and for the third shot, he cannot say who fired it. When a question was put to him as to whose shot was effective 011 him. The witness answered that Amarjitsingh's shot was effective on Ramkishan, Charansingh, Kamalkishore, Ghansyhamdass and on himself. This witness was not confronted with the earlier version, as the witness stated that Amarjitsingh was armed with a rifle. 11. PW 8 Karamchand was also confronted with the police statement (portion A to B), which was the same version, which has been given by the other witnesses. When a question was put to him in respect of the occurrence, he answered that the shots were fired by both Amarjitsingh and Hardipsingh and both the shots were effective. 12. The last witness Milkiram (PW 11) was also confronted with the police statement Ex. D 11 portion C to D. In portion C to D, he stated that there were two shots fired by Amarjitsingh and one shot by Hardip Singh, which hit Ramkishan, Ghanshyamdas, Charansingh, Darshan Singh and Kamalkishore. At the trial, he stated that the shot only of Amarjitsingh were effective. The witness answered that his statement at the trial is correct. 13. From the statements of all the seven witnesses considered above, it would appear that the witnesses have prevaricated and have given a go by to their earlier versions. The earlier versions were tried to be explained by the learned Public Prosecutor that the witnesses have not stated that the bullet of Hardipsingh hit anybody. The pellet shots hit the injured-persons including the deceased, so, from the earlier version of the witnesses, it may not be taken that the shot fired by Hardipsingh was also effective. Suffice it to say that this explanation is not given by the witnesses. The witnesses have understood the question and after understanding the question, the witnesses have stated that the trial version is correct. All that which is not stated by the witnesses can not be explained in the manner in which an attempt has been made. The various portions, which were confronted to the witnesses, clearly make out that the shots fired by both Amarjitsingh and Hardipsingh hit the injured-persons including the deceased person. All that which is not stated by the witnesses can not be explained in the manner in which an attempt has been made. The various portions, which were confronted to the witnesses, clearly make out that the shots fired by both Amarjitsingh and Hardipsingh hit the injured-persons including the deceased person. In the earlier version, the witnesses are silent on the point that the first two shots were effective and the third shot was ineffective and the first shot fired by Amarjitsingh, hit Ramkishan. Looking to their earlier version, it can positively be said that the witnesses had improved upon their earlier versions. If the statement of these witnesses are viewed in the light of their earlier version then it can be said that the trial version given by the witnesses cannot be given any credence. A particular position have been taken by the witnesses uniformly at the trial, so, in face of the earlier version, the trial version can not be believed and on the basis of the earlier version, it can be found and it can be concluded that the shots by Amarjit Singh and Hardipsingh hit the injured-persons including the deceased. 14. The learned Public Prosecutor pointed out that there is no rifle injury on the injured-persons and so, it would be taken that the shot by Hardipsingh was not effective, and this Court should also find that Hardip Singh was armed with a rifle, as the earlier version of the witnesses other than Ghanshyamdass is that, Hardipsingh was armed with a rifle. On the face of it, argument appears to be plausible but, in our opinion, it does not stand scrutiny. Ghanshyamdas in his first version categorically stated about the fire-arm held by the accused Hardipsingh. He has attributed double barrel gun to Hardipsingh. He know it that Hardipsingh helds a rifle in view of the incident dated 29-10-73, in which, he makes a reference of rifle being possessed by Hardipsingh. Admittedly, Hardipsingh had a licenced rifle. Despit this knowledge, that Hardipsingh had licenced rifle, Ghanshyamdas attributed double barrel gun to him in Ex. P 6. To us, it appears that the versions were subsequently changed in view of the fact that Hardipsingh had a rifle, which is licenced one. If a shot had been fired from rifle by Hardipsingh, than that shot must have hit the target. P 6. To us, it appears that the versions were subsequently changed in view of the fact that Hardipsingh had a rifle, which is licenced one. If a shot had been fired from rifle by Hardipsingh, than that shot must have hit the target. An explanation was put forward before us that a rifle shot had appeared on the fold of the curtain by the side of Gurmeetsingh, as there are through and through holes going parallel in the curtain. In this connection, it may be stated that the investigating officer does not give us the description of the holes to have been caused by a bullet. He has described the holes to have been caused by pellets. That apart, a single bullet could not have caused parallel continuo is holes. In view of these pallets holes running in two parallel lines, the story of rifle shot does not fit in. Had there been shot by rifle, that shot had certainly been effective whether on boarders of the jeep or on the jeep, we have not been referred to any point where any rifle shot has been effective. In view' of the consideration, the possible conclusion is that Hardipsingh was not armed with a rifle but was armed with a double barrel gun as stated. In his FIR statement (Ex. P 6), all the witnesses luve stated that Hardipsingh had fired a shot. When there are to assailants and when the witnesses in the earlier version, have come out with the case that the shots fired by them were effective them in that circumstances, on the basis of trial statements, it cannot be found that Ramkishan died exclusively by the shot fired by Amarjitsingh. This possibility can not be ruled out that the shot fired by Hardipsingh may also have been effective on Ramkishan. Whose shots proved fatal, cannot be found with certainty. In this view of the matter, no conviction of Amarjitsingh can be entered for the offence under Section 302, IPC. To us, it appears that conviction could have recorded of both with the aid of Section 34, IPC. But the applicability of Section 34, IPC has been completely negatived by the learned Sessions Judge and Hardipsingh's acquittal has been recorded. It is stated at the bar that an appeal was preferred against the acquittal of Hardipsingh but it was not admitted by this Court. But the applicability of Section 34, IPC has been completely negatived by the learned Sessions Judge and Hardipsingh's acquittal has been recorded. It is stated at the bar that an appeal was preferred against the acquittal of Hardipsingh but it was not admitted by this Court. It may be mentioned that acquittal of Hardipsingh had become final. That being so, it is not possible to record conviction of the appellant Amarjitsingh with the aid of Section 34 IPC. As Section 34, contemplates a prior concert and prior meeting of mind and when Hardipsingh stands acquitted, Section 34 can not be attracted and for the offence under Section 302 simpliciter. A case beyond all reasonable doubt has not been made out by the prosecution, so, the appellant Amarjitsingh can not be convicted of the offence under Section 302 simpliciter. We may mention here that even Dr. M.P. Agrawal has stated that it was a case of at least three shots, as stated by the witnesses as well. The question arises only with regard to effectiveness of the three shots. The shot of Hardipsingh cannot be eliminated in the light of the consideration made above. 15. We need not examine the other contentions advanced before us, particularly that the occurrence did not take place as alleged by the prosecution. The argument has been advanced on the basis of the presence of slight scorching of some punctured wounds on the person of Charansingh and also on the direction of the wounds given by Dr. M.P. Agrawal. The presence of scorching marks on the wounds and the direction of the wounds suggest that some of the shots must have been fired from a close range and the direction of all the wounds on the injured persons or on the deceased-persons is suggestive of the fact that the assailants could not be by the side of the jeep as the jeep was standing on the right side of the jeep of the victim party. Suffice it to say that these contentions will not have much bearing on the case in view of the fact that the two assailants were definite and the shots fired by the assailants have been effective. The range of firing or the direction of the shots would loose much of their importance in view of the definite case of the prosecution regarding the assailants and shots being effective. The range of firing or the direction of the shots would loose much of their importance in view of the definite case of the prosecution regarding the assailants and shots being effective. Similarly the argument that the witnesses made improvement in making the statement that the back parda was lifted, so, they observed the assailants, is of no consequence. There are no pellet holes in the back parda, which is clearly indicative that the curtain was already raised and was not in a hanging position also pellet holes would have appeared in it. 16. The only question would be as to who fired the shot, which has been effective resulting into death of Ramkishan. If this question can not be answered positively, then the appellant cannot be guilty of the offence of murder. He can be only held guilty of attempt to murder, so only the offence under See. 307, IPC is amply brought home to the appellant. We upheld the conviction of the appellant under Section 307, IPC. His conviction under Section 302, IPC cannot be upheld and offence under Section 27, Arms Act is also proved against him, which lias not be challenged before us. 17. The next question is that for the offence under Section 307, IPC, what sentence should be awarded to the appellant. The appellant has remained in custody for a period of fours' years, nine months and ten days, as he was bailed out on 7-8-78. The learned Public Prosecutor submitted that the appellant deserves severe punishment as an innocent person Ramkishan died and as many as four other persons were injured in the incident and Charan-Singh sustained grievous injuries. The circumstances of the case, no doubt, warrant severe punishment but more than seven years have passed since the date of his release on bail. After seven years, of free life, it would not be proper to send the appellant behind the bars. It would be reasonable to sentence him to the period of his custody. 18. Accordingly, the appeal is partly allowed, the conviction and sentence of the appellant for the offence under Section 302, IPC are set aside. His conviction for the offence under Section 307, IPC and 27, Arms Act are maintained. The appellant is sentenced to the period of his custody for the offence under Section 307, IPC. His sentence under Section 27, Arms Act is maintained. His conviction for the offence under Section 307, IPC and 27, Arms Act are maintained. The appellant is sentenced to the period of his custody for the offence under Section 307, IPC. His sentence under Section 27, Arms Act is maintained. Both the sentences shall run concurrently. It is further ordered that the appellant shall pay a sum of Rs. 5,000/- to the legal representative of the deceased Ramkishan within a period of one month or shall deposit in court for being paid to them.Appeal partly allowed. *******