JUDGMENT 1. - The accused Gajjansingh was convicted of the offence under Section 302, IPC and was sentenced to imprisonment for life by the learned Sessions Judge, Sri Ganganagar by his judgment dated January 22, 1975. He was also convicted under Sections 25 and 27, Arms Act and was sentenced to rigorous imprisonment for one year and two years respectively. All the sentences were ordered to run concurrently. 2. The prosecution case in brief is that, Gujarsingh the father of the accused was murdered on 6.3.1957 for which Butasingh, Jawaharsingh, Sarwansingh and Gurdevasingh were prosecuted. The motive for the murder was that Butasingh had illicit connections with one Mst Prasanni Kaur. Mst. Prasanni Kaur was the cousin sister of the deceased Gujarsingh being his mother's sister's daughter. Gujarsingh used to object Butasinghs relations with her, for which, Butasingh harboured enmity against him. Because of that, Gujarsingh harboured enmity. It is alleged that on May 20. 1973 at about 7.00 or 7.30 p.m. Jawaharsingh (deceased) son of Butasingh was proceeding to the house along with camel cart after unloading the fodder from the field at the "Nohra". He was proceeding ahead of the camel cart holding the nail of the camel. Darshansingh is the siri was following him behind the camel-cart. When Jawaharsingh reached near the house of Narainsingh, Gajjarsingh (accused) and Harisingh s/o Gujarsingh came out of their house armed with 12 bore pistols. The accused Gajjansingh fired a pistol shot on Jawaharsingh, whereby, he fell down. Thereafter, both of them ran away. Butasingh was at some distance behind Darshansingh. Both of them rushed and lifted Jawaharsingh and brought him to the house of Chandusingh and from there, they carried the injured to the hospital, Sangaria. Butasingh went to police station, Sangaria and lodged the report Ex.P/1 at 8 p.m. on that very day. The S H O. Gorudan (PW 6) registered the case under Section 307 IPC and 25, Arms Act and undertook the investigation. P.W. 6 Gorudan then visited the hospital, Sangaria. He gave a 'tahrir' to the doctor for medical examination. Thereupon, the doctor informed him that the condition of the injured is serious, bis dying declaration may be recorded. Then he gave written tehrir at 8.20 p.m. to the Tehsildar for recording the statement of the injured at the hospital. P.W. 6 Gorudan then visited the hospital, Sangaria. He gave a 'tahrir' to the doctor for medical examination. Thereupon, the doctor informed him that the condition of the injured is serious, bis dying declaration may be recorded. Then he gave written tehrir at 8.20 p.m. to the Tehsildar for recording the statement of the injured at the hospital. P.W. 10 Chandsingh came to the hospital and recorded the statement Ex.P/24 of the injured, after obtaining the certificate from the doctor regarding the condition of the injured for giving the statement S.H.O. Gorudan also recorded the statement Ex.P/7 of the injured. The injured was referred to Ganganagar Hospital. He was brought there on 20.5.73 at 2 p.m. He succumbed to his injuries on 23.5.73. at 10.00 p.m. Thereafter autopsy was conducted-on the dead-body of Jawaharsingh on 24.5.73 at 9.00 a.m. The S.H.O. Gorudan conducted the spot investigation in the morning on the next day of the occurrence. He prepared the site-plan (Ex.P/9) & site-inspection (Ex.P/9A). He seized the blood-stained earth (Ex.P 10) and sample of the earth (Exp/11). The accused Karisingh was arrested on 4.6.73 and the accused Gajjansingh was arrested on 5 6.73 after obtaining the warrant of arrest from the Court. On 11.6.73, the accused Gajjansingh gave information Ex. P/19 in respect of 12 bore pistol and got the same recovered vide memo Ex. P/20. The accused was not having any licence of the pistol (Ex. 5). The sanction for prosecution (Ex. P/21) was obtained from the District Magistrate, Sri Ganganagar. After completion of the investigation, charge-sheet was presented against the accused-persons, and the accused-persons were committed for trial to the court of Sessions. The accused Gajjansingh was charged for the offences under Section 302, IPC and Section 25 and 27, Arms Act. The other accused Kari s/o Gujarsingh was also charged, but after trial, he was acquitted. The accused Gajjansingh pleaded not guilty and claimed to be tried. 3. At the trial, the prosecution examined P.W.1 Darshansingh, (Siri), P.W.2 Butasingh (father of the deceased), P.W.3 Puransingh (Motbir of the recovery of the pistol). P.W.4 Lalchand (Motbir of the arrest of the accused Gajjansingh), P.W.5 Dr. M. P. Agrawal, Medical Officer, Ganganagar, P.W.6 Gorudan, S.H.O.. P.W.7 Dr. Swadesh Mitra Saini (who examined the injuries at Sangaria Hospital), P.W.8 Dr. A. S. Gahlot (who performed the operation on 23.5.73), P.W.9, Dr. P.W.4 Lalchand (Motbir of the arrest of the accused Gajjansingh), P.W.5 Dr. M. P. Agrawal, Medical Officer, Ganganagar, P.W.6 Gorudan, S.H.O.. P.W.7 Dr. Swadesh Mitra Saini (who examined the injuries at Sangaria Hospital), P.W.8 Dr. A. S. Gahlot (who performed the operation on 23.5.73), P.W.9, Dr. S.S. Bhargava, Radiologist, P.W. 10 Chandsingh,Tehsildar, and P W. 11. Sahiram, A.S.I. Kotwali, Sri Ganganagar, (who prepared the Furd Surat Mal Lash and Panchnama). The statement of Gajjansingh was recorded in which he denied the prosecution case. No evidence was led in defence. The learned Sessions Judge, after hearing the arguments, convicted and sentenced the accused as aforesaid. The learned Sessions Judge relied on the evidence of P. W 2 Butasingh, and P. W. 1 Darshansingh. He also relied on the evidence of dying declaration and further reliance was placed on the circumstances of absconding and recovery of the pistol and it was found that there was a motive on the part of Gajjansingh. Relying on these circumstances in evidence, he found the accused Gajjansingh guilty of the offence of which he was convicted. Dis satisfied with the conviction and sentence, the present appeal has been filed. 4. We have heard Mr. M.C. Bhandari, learned counsel for the appellant and Dr. S. S. Bhandawat, learned Public Prosecutor for the State. 5. In this case, there is ocular evidence consisting of P. W. 1 Darshansingh and P. W. 2 Buta Singh and the other evidence is in respect of the statements made by the deceased; one recorded by the Tehsildar and another recorded by the SHO. Before considering these evidence, we may notice the injuries sustained by the deceased for the appreciation of the other evidence, the medical evidence would be relevant. Dr. S. M. Saini (PW 7) has stated that on 20.5.73 at 8.05 p.m., the injured was brought to the hospital at Sangaria. He found the following injuries on his person: 1. "Two lacerated wounds with inverted edges separated by 1.2" space from each other, placed almost in straight line. Tattoo ring present around the wound. Each wound was measuring 0.5' x 0.5" on left side of chest posteriorly lower part. 2. Four lacerated wounds with inverted edges with tattoo ring present around the wounds each measuring 0.5" x 0.5" in an area of 5" x 4" on right side of chest and lumber region posteriorly. 3. Tattoo ring present around the wound. Each wound was measuring 0.5' x 0.5" on left side of chest posteriorly lower part. 2. Four lacerated wounds with inverted edges with tattoo ring present around the wounds each measuring 0.5" x 0.5" in an area of 5" x 4" on right side of chest and lumber region posteriorly. 3. One lacerated wound with inverted edges, tattoo ring present 0.5" x 0.5" on right hip upper part. 4. Lacerated wound with inverted edges, tattoo ring present 0.5" x 0.5" on the left hip upper most part. 5. Lacerated wound with inverted edges with tattoo ring present 0.5" x 0.5" on right fore-arm posteriorly medical region 1.8" from right olecranon process. 6. A lacerated wound with no tattoo ring and edges averted 0.25" x 0.1" with two horizontel minor parallel linear abrasions on right side of chest antero-laterally part lower most region. 7. An abrasion 0.2" x 0.2" on right ankle lateral side." 6. Dr. A. S. Gehlot (PW 8) has stated that the injured was admitted at Ganganagar Hospital on 21.5.73 at 2 p. m. He performed the operation on 23.5.73 of his large intestine and cacum. Three perforations were found; one at the cecum and second ; and third perforations on the ascending colon and half colon was gangrenous. 7. Dr. S. S. Bhargava (PW 9) on X-ray examination found as under:- 1. A rediopague disrol shadow is seen in the abdonal region over the 4 lower margin of 'L' vertebra. 2. large rediopague, metallic distorted pellet like shadow with peeler multiple rediopague shadow has been in the abdominal region. 3. Two large rediopague metallic distorted pallet like shadows and (torn) smaller rediopague shadows in the proximal 1/2" of the right fore-arm are accompanied by linear fractures of the proximal ⅓rd of radius." Free air under both the domes of the diaphragm suggestive of perforation of a hallow viscous (intestine) in the abdominal region." 8. After the death of the injured, Dr. M. P. Agrawal conducted the post mortem examination and found as under : 1. One stitched wound at the level of 12 dorsal vertebra just on left of the mid-line small wound of entry (gunshot). 2. One stitched wound of entry at the level of second lumber vertebra in mid-line. 3. One stitched wound of entry at the level of 11 dornel vertebra 4" left to the mid-line. 4. One stitched wound at the level of 12 dorsal vertebra just on left of the mid-line small wound of entry (gunshot). 2. One stitched wound of entry at the level of second lumber vertebra in mid-line. 3. One stitched wound of entry at the level of 11 dornel vertebra 4" left to the mid-line. 4. One stitched wound of entry at the level of 4th lumber vertebra just on the right to the mid-line. 5. Two stitched wounds of entry at the level of 3rd lumber vertebra on the right to the mid-line. 6. One stitched wound of entry on the area of right renal angle. 7. One stitched wound of entry on the left gluteal region of iliac crest near sacroillac joint. 8. One stitched wound of entry on the right gluteal region near sacroiliac joint. 9. One transverse stitched wound present on the right side of anterior abdominal wall extending from umbilious to the lateral abdominal wall in right lumber region. This incision was made in the hospital while the patient was undertaken for operation on 22.5.73. One wound of exit was present on this area which came in to the incision at the time of operation. 10. One stitched transverse venesection wound was present near the medical mallolocus of left leg. 11. Two abrasions 1/4" x 1/4" each on the dorso-lateral aspect of right elbow just below it. 12. One stitched wound of entry present on the dorso-medical aspect of the upper one third of right fore-arm 1" below injury No. 11. He removed the following shots:- 1. One shot from right hypocandrum lateral aspect. 2. One shot from the right gluteal region lateral aspect 3" below the anterior superior illac-spine. 3. One shot from the left dorso-lumber region of the back. 4. One shot from the body of 2nd lumber vertebrae by posterior approach 5. One shot from the right fore-arm middle one third. 9. On opening the body, he found the perforations on the paritoneum. According to him, the deceased died by gun shot injuries causing perforation of intestines, haemorrhage and shock. He proved the post-mortem report Ex. P/4. He also stated that at least one of the shots penetrated the abdominal cavity through and through and one wound of exit was found on the anterior of the abdominal wall during operation, which perforated the intestines also. 10. He proved the post-mortem report Ex. P/4. He also stated that at least one of the shots penetrated the abdominal cavity through and through and one wound of exit was found on the anterior of the abdominal wall during operation, which perforated the intestines also. 10. The question arises as to how the injured deceased received the fire-arm injuries, we may first of all consider the evidence of P. W. 2 Butasingh. Butasingh has stated that in the murder case of Gajjan Singh, he and Gurdev were acquitted by the learned Sessions Judge and Jawaharsingh and Sarwansingh were convicted but both of them were acquitted by the High Court. On the day of occurrence, his son Jawahar Singh and his `siri' Darshansingh were engaged in bringing fodders from the field to their Nohra. They had completed the three rounds after empty camel cart all the three were going to their house. Jawaharsingh was ahead of them holding the neil siring of the camel. Darshansingh was behind the camel-cart. The house of Gajjansingh falls on the way from the Nohra to the house of Butasingh. Butasingh has further stated that when they had come in front of the gate of the house of the accused, both the accused came out of their house and came in the lane about 4-5 ft. from the door of their house. Both of them were armed with pistols. Gajjansingh fired his pistol, which hit Jawaharsingh on his back. When Jawaharsingh was hit, then he saw towards the house of the accused-persons he then stated that when Gajjansingh and Kari came out from the house then Jawaharsingh looked towards them. After hearing their feat sound and shot was fired at that time when Jawaharsingh had locked back wards. He then Darshansingh raised an alarm. Both of them lifted him to the house of Chandu. Sunder and Jaisingh and others had arrived there. Thereafter, a jeep was sent for and the injured was removed to Sangaria Hospital in the jeep The Sangaria Hospital is at a distance of about 6 miles from the village Sebuwana, where the occurrence took place. It would appear from the statement that he was at a distance of about 30-40 pawandas and according to him he rushed to the injured after he had sustained fire-arm injuries and lifted the injured along with Darshansingh to the house of Chandu. It would appear from the statement that he was at a distance of about 30-40 pawandas and according to him he rushed to the injured after he had sustained fire-arm injuries and lifted the injured along with Darshansingh to the house of Chandu. If we look to the dying declaration of the deceased recorded by the Tehsildar, the presence of this witness not only becomes doubtful, but it can be said almost with certainty that he was not present at the scene of the occurrence. A bare perusal of the statement of the deceased Ex. P/24 recorded by Chand Singh Tehsilder would reveal that the name of Buta Singh would be conspicuously absent in that statement. Jawaharsingh has stated that Darshansingh was with him he lifted him to the house of Chandusingh. He further categorically states that he did not care to see anyone else other than Darshansingh. If Butasingh would have been present, the deceased would not have omitted to make mention of the name of his own father. The dying declaration statement Ex. P/24, is not a short statement, it runs into one typed page. In such a long statement, it cannot be conceived that the deceased would have missed the name of his father. The injured was in full senses at the time of making his statement. My attention has been invited to the statement of the deceased recorded by the S. H. O. (Ex. P/7). In that statement, the deceased, no doubt, stated that his father was also coming behind but so far as lifting him is concerned, in Ex. P/7 he stated that Darshansingh lifted him, thereafter, his father came. It would appear that the statements Ex. P/24 and Ex. P/7, as regards the presence of Butasingh are in consistent. When categorical statement has been made by the deceased to the Tehsildar which is prior in time that he did not care to see as to whether there is any one else other-than Darshansingh then his presence is negatived. If Butasingh would have been present then he would have lifted him, Jawaharsingh in no circumstance would have omitted to mention the name of Butasingh Ex. P/7 is a later in time. So viewed in the light of Ex. If Butasingh would have been present then he would have lifted him, Jawaharsingh in no circumstance would have omitted to mention the name of Butasingh Ex. P/7 is a later in time. So viewed in the light of Ex. P/24 the presence of Butasingh at the scene of occurrence is not established and he cannot be taken as an eye-witness of the occurrence and it can safely be said that Butasingh has been introduced as a witness in this case and his evidence appears to be concocted. Simply because he lodged the first information report it cannot be taken that he had witnessed the occurrence. As already seated, 4 the deceased would not have missed the name of Butasingh and it cannot be lake i that there was a simple slip on the part of the deceased in omitting to make mention of the name of Butasingh in his statement Ex. P/24. There are other infirmities in the statement of Butasingh. He has prevaricated on Some points but in face of Ex. P/24, it is not necessary to consider the other infirmities. 11. As regards the evidence of P.W.1 Darshansingh and the evidence relating to the dying declaration. Mr. Bhandari, learned, counsel for the appellant vehemently submitted that this whole evidence is untrustworthy and credible. Darshan Singh is the `siri' of Butasingh. He is an interested witness. The police also did not have faith in him. so his statement Ex. D/2 was also got recorded under Section 164, Cr. P.C. No independent evidence has been produced by the prosecution. Admittedly, Jawaharsingh and Sundersingh had visited the spot immediately after the occurrence and as per the statement of Darshansingh, the occurrence was narrated to those, who were attracted to the scene of occurrence by the deceased as well as by both of them, the prosecution has with held these witnesses. If any independent witnesses would have been examined, that would have lent an assurance to the prosecution case particularly the presence of the witnesses and also about the first version of the deceased. In the absence of non-production of independent evidence is an important circumstance to discredit the testimony of P.W. 1 Darshansingh and the statement of the deceased P.W. 1 Darshansingh has made improvements in his statement. He stated that on hearing the feat sound of the two accused persons, the deceased looked-back towards them. In the absence of non-production of independent evidence is an important circumstance to discredit the testimony of P.W. 1 Darshansingh and the statement of the deceased P.W. 1 Darshansingh has made improvements in his statement. He stated that on hearing the feat sound of the two accused persons, the deceased looked-back towards them. It is only looking after them that Gajjansingh fired the shot. Such a statement does not find mention in his previous statement, with which he was confronted. Mr. Bhandari also pointed that Kari's role finds no mention in the first information report whereas P.W. 1 Darshansingh and even the deceased has come out with the role of Kari in the manner that Kari pulled the trigger of his pistol, but shot could not be discharged. This shows that in fact, neither Darshan Singh nor Jawaharsingh had any opportunity to see as to who was the assailant or assailants. Mr. Bhandari pointed out that the testimony of Darshansingh and the statement of Jawaharsingh as well does not appear to be consistent from the aspect of the case. In the correctness of the prosecution story when it is said that there was one exit wound. If any shot is fired from a gun, there is no possibility of any exit wounds. According to P.W. 1 Darshansingh, the shot was fired from the entrance of the house of the accused. If the shot has been fired from the entrance tattooing marks would not appear on the deceased. So, from this aspect of the case, the presence of the witness Darshansingh rendered doubtful and he has simply to oblige Butasingh with whom he was working as Siri. Mr. Bhandari further submitted that if Darshansingh and Butasingh would have lifted the deceased, their clothes would have smeared with blood but the prosecution has not produced their clothes for the purpose of corroboration. Mr. Bhandari further pointed out other infirmities in the statements of Darshansingh and he also submitted that the dying declaration statement of the deceased are discrepant. The deceased even has stated that the fodder was being carried from the threshing floor to the house, which means that this story of the prosecution, the loaded camel cart was emptied at the Nohra, is not true. Jawaharsingh also states that the people had assembled there but none of them has been examined as pointed out by Mr. Bhandari as above. Jawaharsingh also states that the people had assembled there but none of them has been examined as pointed out by Mr. Bhandari as above. As regards the statement of the deceased. Mr. Bhandari submitted that when the deceased was proceeding and shots were fired from his back, it was not possible for him to have seen the assailant and the had not stated that for any reason, he had looked backward whereby he spotted the appellant and his brother Kari. According to Mr. Bhandari, P.W. 8 Darshansingh does not appear to be present at the scene of occurrence and Jawaharsingh too, could not see the assailant or assailants because of the enmity. The story has been constructed by sheer imagination and this possibility cannot be ruled out that the deceased was tuttored or instructed to give the statement to the Tehsildar, as has been given by him. Mr. Bhandari also pointed out that if the accused would have waited for more than 16 years, the accused would not have committed the murder within the site of witnesses like Butasingh and Darshan Singh. The absence of the name of Butasingh in Ex. P/7 and the absence of the role of Kari in the first information report Ex. P/1 throw a good deal of doubt on the remaining part of the prosecution as well, so, viewed from all angles, the prosecution case is rendered highly doubtful and according to him, the case against the appellant is not proved by satisfactory and convincing evidence, so the accused deserves to be acquitted, claiming in any case benefit of doubt. 12. On behalf of the State, Mr. Udawat, learned Public Prosecutor, on the other hand urged that the case against be appellant is proved by the evidence of Darshansingh and dying declaration of the deceased which further gets corroboration from the prompt, first information report, in which, the name of Darshansingh appears, Butasinghs presence or absence would not in any way affect the prosecution case It was also submitted that the ballastic aspect of the case is independent put to the medical officer and on account of discrepancy regarding the range of lire, the testimony of Darshansingh and dying declaration statement of the deceased are not effected. 13. We may first of all consider the evidence of Darshansingh. He cannot be said to be independent witness. 13. We may first of all consider the evidence of Darshansingh. He cannot be said to be independent witness. Being the siri of Butasingh, it can be said that he is an interested witness. His name, no doubt, mentions in the F.I.R. as well as in the statement of the deceased, but on that basis alone, his presence cannot be taken for granted. It was the duty of the prosecution to establish his presence by examining the independent witnesses who had appeared at the scene of occurrence soon after the occurrence. Jawaharsingh and Sundersingh, in our opinion, were very material witnesses. The deceased had also come with a case that the people had assembled soon after the occurrence. The alleged eye-witnesses have also stated that Jawaharsingh and Sundersingh had come. It was the duty of the prosecution to examine them withholding of these witnesses to go an a long way to discredit the prosecution case. It appears for the reason best known to the prosecution and the investigating agency, these persons have not cited his witnesses and it can be taken that if these witnesses would have been produced, they would not be supported the prosecution. The non-production of these witnesses create a doubt in the presence of Darshansingh. The truth in the statement of the deceased also becomes doubtful in the absence of the testimony of these witnesses. Admittedly, according to P.W . 1 Darshansingh, the occurrence narrated by the deceased to Jawaharsingh and Sundersingh. What was the version of the deceased to them, is not known and it can be taken that the version was different from what the deceased had given out, so these witnesses have withheld by the prosecution. The examination of Darshansingh under Section 164, Cr. P. C. in the circumstances of the case, further throws some doubt in the truth of his testimony. P.W.l Darshansingh has further stated that he looked at the accused-persons Gajjansingh and Kari only after the shot had hit Jawaharsingh. This would mean that he did not observe that who fired the shot. When there were two accused-persons, both armed with pistols and when it was not observed as to who fired the pistol, then with certainly,it cannot be said that it was Gajjansingh's shot, which hit Jawaharsingh. As to whether Jawaharsingh himself saw Gajjansingh or not, he made improvement in his statement. When there were two accused-persons, both armed with pistols and when it was not observed as to who fired the pistol, then with certainly,it cannot be said that it was Gajjansingh's shot, which hit Jawaharsingh. As to whether Jawaharsingh himself saw Gajjansingh or not, he made improvement in his statement. He did not find mention in all the previous three statements that the deceased had looked backward and shots were fired at that time. He also made improvement in respect of exhortation having been made by the accused Kari. No such exhortation was stated by him in his committing courts statement. 14. The matter can also be examined from the ballistic point as well. According to Darshansingh Jawaharsingh had already went 10-12 ft. ahead of the gate of the house of Gajjansingh and at that time, both the accused-persons came out and Gajjansingh fired the shot. In the site-plan, this distance is given as 12 ft. In the treatise of Forensic Medicines for Lawyers by J.K. Mason. Second Edition, at page 81; the topic on "shotgun injuries" has been dealt with. It is stated as under:- "A contact injury will show bruising due to the recoil of the gun and a perfect representation of the single or twin barrels may be formed on the skin; the shot will enter the body as a solid mass so that the entry wound will approximate to the bore of the barrel however, explosive gasses will also enter the wound so that the external wound may be ragged-the skull, for example, may be literally blown apart, an exit wound may be seen, except in the very thick torso, because the shot in a contact wound is in a solid mass. Shot in its diffuse from, as fired from a distance, has little penetrating power; exit wounds are therefore, not a feature of shotgun injuries other than in the contact situation. At very short range, appearances described above will be modified by the differing effects of gasses of combustion-these will not be forced into the wound bur may still cause some irregularity of the entry hole. Unburnt power will be discharged into the surrounding skin leading to what is known as tattooing shot is likely to be deposited. At very short range, appearances described above will be modified by the differing effects of gasses of combustion-these will not be forced into the wound bur may still cause some irregularity of the entry hole. Unburnt power will be discharged into the surrounding skin leading to what is known as tattooing shot is likely to be deposited. The hot gases will burn the skin or clothing either of which may be charred; in both contact and close-range wounds, any, carbon monoxibe contained in the cases of combustion may from local carboxyhas-moglobin which can be recognised by its pink colour. These effects diminish as the distance from muzzle to wound increases. The critical distance is at about 2 yards (or metres) as. at this distance, tattooing is scarcely visible and the wads fail to penetrate the wound. The shot now' begins to fan out and creates pattern of entry in the clothing and on the skin. Although the inclination of the body to the line of flight of the shot will alter the appearances, ideally the pattern will be circular. The size of this circle depends to some extent on the degree of choking of the gun, but the appearances are sufficiently standard to permit the use of a simple rule-the diameter of the shot pattern in centimetres in some 2.5-3.0 times the muzzle distance from the wound in metres (or the spread in inches is equivalent to the distance in yards), estimates derived in this way must be checked by test firing whenever possible. Otherwise, the effects of a shot-gun injury are variable and depend upon the ability of individual pellets to penetrate cither the heart or individual blood vessels or other organs liable to severe bleeding; the surgery of such an injury may present a formidable problem." Diagrams given at page 89 would show that tattooing marks were present at 2 yds. and pattern of dispersion would be circular. 15. In Forensic Medicine by Keith Simpson, VIII Edition, at pages 84, 85 and 86, it is stated as under:- "Unless the part of the body sustaining the force of the muzzle blast is split open, as is common only in head wounds, there is not likely to be an exit wound. The wads and lead pallets have little penetrating power and usually come to rest, spent, as soon as they meet any tough issue, particularly bone. The wads and lead pallets have little penetrating power and usually come to rest, spent, as soon as they meet any tough issue, particularly bone. As the range increases the charge of shot begins to spread, stray pellets coming to lie outside the main bunch of shot. At a range of as little as 2-2.5 metres the entry wound may show these marginal pellet holes, and over this range the spread in centimetres may be taken roughly as equal to 3 times the distance in metres. Shot spread over 50 cm will have been from a range of about 18 metres. Much, of course, depends on the choking of the bore, the narrowing near the muzzle which helps to keep shot together for a greater distance, and no exact opinion is possible until trial rounds are fired from a particular weapon. However, the shotgun does give this further information at ranges over the tattooing distance of about one metre, whereas even the expert is incapable of deciding the range for single bullet wounds between the extreme of tattooing and the last few score yards of the trajectory when the bullet has begun to stumble." 16. Taylor's Principles and Practice of Medical Jurisprudence by A. Keith Mant, Thirteenth Edition, at page 245, it is stated as under:- "Wounds from sporting guns: at distances further than 3 ft from the end of the muzzle the shot begins to disperse spread from the cylindrical shape in which they leave the barrel. The rate of spread of shot will depend upon the charge, the size of the pellets the length of the barrel and whether the barrel is narrowed at the muzzle and (choked) to increase the range of the gun. In order to determine the rate of spread of shot with accuracy it is essential to fire the gun at different distances using the same ammunition. A rough guide, however, may be used for rapid calculation from a barrel which is a true cylinder the average size of the pattern of spread is 1 inch yard from the muzzle, less 1 inch. Thus, at 5 years one would expect a pattern of spread of 4 inches. 17. A rough guide, however, may be used for rapid calculation from a barrel which is a true cylinder the average size of the pattern of spread is 1 inch yard from the muzzle, less 1 inch. Thus, at 5 years one would expect a pattern of spread of 4 inches. 17. In the Identification of Firearms and Forensic Ballistics by Major Sir Gorald Surrard, Third Edition, at page 73, it is stated as under:- "If neither the gun nor any "crime" cartridge nor fired cases are available the range of the fatal shot can only he estimated. It may be assumed for all practical purpose that if the diameter of the would is an inch, or less, the the distance of the shot was 18 inches or under, irrespective of the gauge of the short gun or the degree of choke. Up to 2 feet there is very little difference in the spread between guns of various gauges and different chokes, the hole at this distance being slightly over an inch R in diameter. At 3 feet the hole is near 11 inch in diameter, and the difference between the two extremes of boring, true cylinder and full choke, begins to be evident. At 6 feet the hole from a true cylinder would be nearly twice as big in diameter as that from a full choke." 18. In Modi's Text Book of Medical Jurisprudence and Texicology, Twentieth Edition, at page 229, it is stated as under:- "On the other hand, at a distance of six feet the central aperture surrounded by separate opening in an area of about two inches in diameter made by a few pellets of the shot which spread out before reaching the mark. The skin surrounding the aperture may not be blackened or scorched, but is tattooed to some extent. At a distance of twelve feet the charge of shot spreads widely and enters the body as individual pellets producing separate openings in an area of five to eight inches in diameter depending on the choke, but without causing blackening, scorching or tattooing of the surrounding skin. At a distance of twelve feet the charge of shot spreads widely and enters the body as individual pellets producing separate openings in an area of five to eight inches in diameter depending on the choke, but without causing blackening, scorching or tattooing of the surrounding skin. At a distance of about 50 feet a pattern measuring about 14 inches from a fully choked barrel and about 28 inches from a choked barrel are produced and at about 100 feet the spread pattern on the target is about 30 inches from a fully choked barrel and 50 inches from an unlocked one. The scattering of shot depends upon the size of the gun, the charge of the powder and the distance of the gun from the body, the dispersion of pellets should however, be studied with the gun and ammunition in question country made hand guns with short barrel give unusually high dispersion-data from For, S. Lab., Bombay." If we examine the present case from the ballistic Science point of view then the tattooing marks present on the wounds, would show that the estimated range of shot is about 6 feet but if the dispersion appears to be much more than what would have been caused by a single shot. Mr. Bhandari submitted that the dispersion would not be less than 18 inches and pattern of dispersion does not appear to be circular in shape, which shows that it is not a case of one shot. Mr. Bhandari emphasised that the prosecution required to explain the medical as well as the ballistic aspect of the case, the prosecution has failed to explain this aspect of the case at all. Referring to the Anatomical aspect, looking to the position of the injuries as described by Dr. S. M. Saini (PW 7), the dispersion cannot be in any case, not less than 12 inches and that too, not in a circular pattern, so it should be taken that it is not a case of one shot. We have considered this submission of Mr. Bhandari. Mr. Bhandari is right that the prosecution has failed to explain this part of the case and it was its duty to explain it. Looking to the impact of the pellets on the body and the sight of the lacerated wounds, it can be said that there is substance in the contention of Mr. Bhandari. Bhandari. Mr. Bhandari is right that the prosecution has failed to explain this part of the case and it was its duty to explain it. Looking to the impact of the pellets on the body and the sight of the lacerated wounds, it can be said that there is substance in the contention of Mr. Bhandari. The dispersion is, undoubtedly, much more than what would have been appeared in a single shot, resulting into tattooing marks. The spread of shot, indicates that it does not appear to be one shot and the possibility of the two shots cannot be ruled out. When tattooing marks present on all the wounds looking to the area of dispersion, which cannot be in any case less than 10-12 inches, it can be said that the two shots, were fired. Two shots have appeared on left side of chest and four shots have appeared on the right side of the chest and lumber, one on the right hip, one on the left hip and one on the right fore-arm. In all, there are nine pallets entry wounds. Dr. M. P. Agrawal has described these parts as at the level of 11 and 12 dorsal vertebra 4 left to the middle line. The other wounds have been described as 2nd, 3rd, 4th lumber vertebra on the right to middle line and the other shots on the right angle and left and right glutaeal region of iliac crest near sacro-iliac joint. 19. Reference may be made to a decision of the Supreme Court in Mohinder Singh v. The State ( AIR 1953 SC 415 ) . In that case, the prosecution did not explain as to whether the injuries caused by rifle, their Lordships observed as under : "In the present case, it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle. In that case, the prosecution did not explain as to whether the injuries caused by rifle, their Lordships observed as under : "In the present case, it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle. Indeed, it seems more likely that they were caused by a rifle than by a gun and yet the case for the prosecution is that the appellant was armed with a gun and, in his examination it was definitely put to him that he was armed with the gun P-16, it is only by the evidence of a duly qualified expert that it could have been ascertained whether the injuries attributed to the appellant were caused by a gun or by a rifle and such evidence alone could settle the controversy as to whether they could possibly have been caused by a fire-arm being used at such a close range as is suggested in the evidence." 20. In Ram Narain v. State of Punjab ( AIR 1975 SC 1727 ) their Lordships observed as under:- "Where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. If the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert, this is a most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case." 21. On behalf of the State, reference was made to a decision of the Supreme Court in State of U. P. v. Sughar Singh and others ( AIR 1978 SC 191 ) . In that case, there was inconsistency relating to the distance from which the gun-shots were fired between the evidence of the medical expert and the eye-witness. It was held that the discrepancy has no significance and it was found that the prosecution evidence pertaining to assault by guns and pistol substantially tallied with the medical evidence. 22. Reference was also placed on the earlier decision of the Supreme Court in Karnailsingh v. State of Punjab ( AIR 1971 SC 2119 ) . The present case is distinguishable, inasmuch as, the presence of the witnesses itself is in doubt. 22. Reference was also placed on the earlier decision of the Supreme Court in Karnailsingh v. State of Punjab ( AIR 1971 SC 2119 ) . The present case is distinguishable, inasmuch as, the presence of the witnesses itself is in doubt. The ballistic aspect in the present case not only relates to the range of fire but it also relates to the spread or dispersion of pellets and pattern of their impact. Besides, that, the case is to be considered in the totality of the circumstances. 23. If the presence of the witnesses is rendered doubtful, in our opinion, the observations of the Supreme Court cannot be pressed into service successfully. 24. For considering the ballistic aspect of the case, from the point of view of the exit wound, it may be stated that a single pellet after disintegration went through and through making an exit. The shot appears to be from a close range, so, after disintegration, a small pellet came out causing a lacerated wound with edges averted having dimensions 0.25" x 0.1". The measurements of all entry wounds are 0.5" X 0.5." The lesser dimension of the exit wound is suggestive of disintegration of the pellet. The exit wound is through the abdominal cavity, the pellet appears to have been disintegrated after striking against some hard substance a like bone. If the prosecution case is viewed in the light of the above ballistic consideration, the prosecution case is rendered doubtful. 25. We may further state that the omission of the name of Butasingh in Ex. P/24 on the part of the deceased and omission of the overt act of Kari on the part of Butasingh in the first information report are the most glaring and prominent infirmities in the prosecution case. Can it be said that these infirmities are due to forget ness or accidental lapses on the part of those, who were most vitally interested in the prosecution or are they suggestive of concoction. Looking to the nature of the infirmities show an attempt of fabricating the prosecution story. They only lead to one conclusion that the remaining story may so be untrue and Darshansingh too, might put up witness and the deceased might have stated as a result of tutoring and on instructing him or to some extent, he might have played on his own imagination. They only lead to one conclusion that the remaining story may so be untrue and Darshansingh too, might put up witness and the deceased might have stated as a result of tutoring and on instructing him or to some extent, he might have played on his own imagination. This doubt is further strengthened by non-production of the material witnesses Jaisingh and Sundersingh, to whom the occurrence is said to have been narrated by the deceased and by Darshansingh and Butasingh. To dispel all doubt, it was essential to examine them. Admittedly, the people had assembled as stated by the deceased as well. These witnesses would have been in a position to state as who were there at the scene of occurrence and who appeared subsequently, in what sequence and what was narrated by whom and to whom. If no witness has witnessed the occurrence, it was not possible for the deceased to have observed his assailant or assailants as the shot was fired at the back and the deceased has not stated that any exhortation or Lalkara was given and feat sound altered him and as, he looked backward. To us, it appears that the occurrence was not witnessed, by any one. The presence of Butasingh and Darshansingh, in our opinion, is doubtful and the deceased had not seen the assailant or assailants who fired the shot on him. Undoubtedly, there existed enmity, so, the story has been so cooked up by introducing the two witnesses, who were highly interested. 26. In view of the aforesaid critical evaluation of the evidence on record and considering the ballistic aspect of the case, in our opinion, no case is proved against the accused-appellant beyond all reasonable doubt and the accused is entitled to the benefit of doubt for the offences under Section 302, IPC and Section 27, Arms Act. 27. So far as Section 25, Arms Act is concerned, the recovery of unlicensed pistol from the possession of the accused-appellant is proved by the testimony of motbir witnesses Puransingh (PW 3) and Gorudan, SHO (PW 6) vide recovery memo Ex. P/20. The recovery was affected in pursuance of the information Ex.P/19 dated 11.6.73. For the offer under Section 25. Arms Act the appellant has been rightly convicted. The appellant has been awarded one year's rigorous imprisonment on this count. The appellant has already remained in custody from 5.6.73 to 8.5.78. P/20. The recovery was affected in pursuance of the information Ex.P/19 dated 11.6.73. For the offer under Section 25. Arms Act the appellant has been rightly convicted. The appellant has been awarded one year's rigorous imprisonment on this count. The appellant has already remained in custody from 5.6.73 to 8.5.78. His sentences on this count, thus stand served out. 28. In the result, the appeal is partly allowed, the conviction and sentences of the appellant for the offences under Section 302, IPC and 27, Arms Act are set aside and he is acquitted of these offences. His conviction and sentence for the offence under Section 25, Arms Act are confirmed. He has already served out the sentence on this count. He is already on bail, so, he need not surrender to his bail-bonds, which are hereby discharged.Appeal partly allowed. *******