JUDGMENT 1. - This appeal, by the accused, k directed against the judgment dated September 30, 1982, of the Additional Sessions Judge No. 2, Hanumangirh, convicting and sentencing each of the appellants under s. 302 read with s. 34 IPC to imprisonment for life and a fine of Rs. 2000/-(in default of payment of fine to two years' further RI) and under s. 27 of the Indian Arms Act to two years' rigorous imprisonment. The sentences are directed to run concurrently. 2. The case relates to the incident which took place on March 20, 1981, at about 5.30 P.M. in village Maneksar, Police Station Sangaria, which resulted in the death of Bhagwansingh alias Fouji and Maghsingh, and injuries to Gurdevsingh. 3. The prosecution story, as disclosed in Court by Ajaibsingh who was accompanying the deceased at the time of the occurrence way that on the date of the incident, at about 7 A.M., Maghsingh and Fouji came to Ajaibsingh at Dhini Bakhtawar Singh Wali, Tehsil Sangaria. Maghsingh told Ajaibsingh that they wanted to have a compromise with Mangalsingh of Maneksar. Mangalsingh is the father of accused-appellant and was living in Maneksar. Maghsingh asked Ajaibsingh to accompany them to Chaudhary Atma Ram, who was a member of the Legislative Assembly. At about 3 P.M., the deceased Maghsingh, Fouji Singh and the witnesses Ajaib Singh went to village Chandna and there they met Gurdev Singh. Fouji said to Gurdev Singh, that he wanted to have a compromise with Manealsingh and therefore he should accompany them to Atmaram and take his tractor. Atmaram was residing in Lilawali. Fouji Singh, Maghsingh, Ajaib Singh, Gurdev Singh and Gurjit Singh son of Gurdevsingh and one person more left village Chandna in a tractor and reached the house of Atmaram at about 4.30 P.M. Fouji Singh, Maghsingh and Gurdevsingh went inside the house of Atmaram and others, Maneksar and reached there, at 5 P M. in the tractor, near the Maneksar bus stand. There Fouji requested Gurdevsingh to carry him to the 'talab' of Maneksar. The prosecution story further was that they then proceeded and when their tractor was passing through a Gall, near the house of Mangalsingh, accused Sarjeet Singh was found standing, armed with a double barrel gun. Seeing them the accused Sarjeet Singh used abuses. Then Gurdevsingh, by raising his hand, asked him not to fire the gun. The prosecution story further was that they then proceeded and when their tractor was passing through a Gall, near the house of Mangalsingh, accused Sarjeet Singh was found standing, armed with a double barrel gun. Seeing them the accused Sarjeet Singh used abuses. Then Gurdevsingh, by raising his hand, asked him not to fire the gun. However, accused Balbirsingh and Ikbalsingh came to Sarjeet Singh. They both were having each a single barrel gun. All the three accused then rushed towards the tractor and Sarjeetsingh fired a gun-shot which hit the left hand of Gurdevsingh. Thereupon, Ajaibsingh, Fouji and Maghsingh jumped from the tractor and ran towards. the 'talab'. When they reached the Nohra of Pratapsingh, all the three accused also followed them and started firing. Ajaibsingh hid behind a wall but Fouji and Maghsingh were hit by the gun shots fired by the accused and they died. Ajaibsingh, by concealing himself and taking the cover of the wall reached the Police Station on foot. 4. The first information report was lodged by Ajaib Singh at Police Station, Sangaria, at 9 P.M. the same day. The Police Station is at a distance of ten miles from the place of occurrence. The report was received by Prithvi Singh, Station House Officer and a case under sections 30?, 307 read with section 34 IPC was registered and investigation started. The SHO got the injuries of Gurdevsingh examined by the doctor and reached the place of incident the same night. In the night guards were posted at the spot and early in the morning next day, the SHO and the Dy. Superintendent of Police reached the spot. The inquest was held, the site map and inspection memo were prepared. The police found a 12 bore Deshi gun along with a case of cartidges with Fouji and a 12 bore gun with Maghsingh. He was having a bandolier of cartidges, tied around his waist. The SHO seized these articles. He also took blood stained earth from the place where the dead bodies were lying. The Doctor was called at the spot itself, who conducted the post mortem examination of the dead bodies. The SHO then inspected the place where Gurdev Singh had received the injuries and prepared the site plan of that place. The Station House Officer arrested accused Sarjeet Singh and Balbirsingh. The Doctor was called at the spot itself, who conducted the post mortem examination of the dead bodies. The SHO then inspected the place where Gurdev Singh had received the injuries and prepared the site plan of that place. The Station House Officer arrested accused Sarjeet Singh and Balbirsingh. On the information and at the instance of accused Sarjeet Singh, the SHO, recovered a 12 bore Deshi gun and a pistol from his house. He also recovered a 12 bore gun on the information and at the instance of accused Balbirsingh from his house. 5. After investigation the Police filed a challan against Sarjeet Singh alias Jeet Singh and Balbirsingh in the Court of Munsif and Judicial Magistrate, Sangaria, under sections 302 and 307 read with section 34 IPC and under section 27 of the Indian Arms Act. The Judicial Magistrate committed the accused for trial to the Court of Additional Sessions Judge, Hanumangarh. Accused Ikbalsingh was not challaned by the Police. However, the Additional Sessions Judge took cognisance against him for the offence under sections 302, 307 read with section 34 IPC All the three accused were then tried together. Sarjeet Singh alias Jeet Singh was charged for the offence under section 302 read with section 34, section 307 IPC and section 27 of the Arms Act. Balbirsingh and Ikbalsingh were' charged for the offence under section 302 read with section 34 IPC and section 27 Arms Act. The accused pleaded not guilty and claimed to be tried. 6. In support of its case the prosecution examined eight witnesses, namely, Ajaib Singh PW 1, Gurdevsingh PW 2, Gurjeet Singh PW 3, Pratap Singh PW 4, Dr. Shankar Lal Kaushik PW 5, Gopal Ram PW 6 (and again examined as PW 9), Dr. Bhisamchand PW 7 and Prithvisingh PW 8. 7. The first part of the occurrence, which according to the prosecution took place in the gali, near the house of Mangal Singh, was sought to be proved by the evidence of Ajaib Singh, Gurdev Singh and Gurjeet Singh. Gurdev Singh himself received injuries and narrated the incident thus: "When we were passing through the gali, situated on the east of the house of Mangal Singh, in the tractor, the sons of Mangal Singh were standing outside their house In the Bali. Those three accused are present in Court. The witness correctly identified the accused. Gurdev Singh himself received injuries and narrated the incident thus: "When we were passing through the gali, situated on the east of the house of Mangal Singh, in the tractor, the sons of Mangal Singh were standing outside their house In the Bali. Those three accused are present in Court. The witness correctly identified the accused. Seeing the tractor they used abuses. At that time Sarjeet Singh was armed with a double barrel 12 bore gun, Ikbal Singh was having a rifle and Balbirsingh was having a 12 bore gun. When they were using abuses and when the tractor was at a distance of 20-25 paundas I asked them, from the tractor itself by raising my hand, not to fire the gun. When I was asking them not to fire and had raised my hand, Sarjeet Singh fired at us. That shot hit me on my left hand When the gun shot hit me, my son stopped the tractor; Maghsingh, Bhagwan Singh and Ajaib Singh jumped from it and ran towards the Talab and my son and Budh Singh ran towards the village." According to Gurdevsingh he remained in the tractor. The accused ran behind the deceased and he i.e. Gurdev Singh was taken to his village in the tractor by Kuhad Singh's son. Substantially the same is the evidence of Gurjeet Singh son of Gurdev Singh, who, according to the prosecution, was driving the tractor. Gurjeet Singh further deposes that he too left the place of occurrence after his father was hit by the gun shots and ran away towards the village. 8. As regards the second part of the incident, the evidence consists of Ajaibsingh and Pratap Singh. Witnesses Gurdevsingh and Gurjeet Singh left the gali in a different direction. According to the prosecution, the deceased were accompanied by Ajaib Singh right upto Pratap Sing ti's Nohra. Pratap Singh was examined by the prosecution but he did not support the prosecution case and deposed that he did not know by whom the murders were committed. He was declared hostile by the Public Prosecutor. Thus the second part of the incident, during which the deceased Magh Singh and Fouji met their death is sought to be proved by the evidence of Ajaib Singh. 9. The remaining witness Dr. Bhisam Chand was examined to prove the injuries of the two deceased and Gurdev Singh, Dr. He was declared hostile by the Public Prosecutor. Thus the second part of the incident, during which the deceased Magh Singh and Fouji met their death is sought to be proved by the evidence of Ajaib Singh. 9. The remaining witness Dr. Bhisam Chand was examined to prove the injuries of the two deceased and Gurdev Singh, Dr. Shank arlal, Radiologist, was examined to prove the X-ray reports of Gurdev Singh and Gopal Ram and Prithvisingh were produced to prove the various step taken during the investigation of the case. 10. In their statements recorded under section 313 Cr. PC the accused denied the prosecution allegations and pleaded that they were falsely implicated. The accused produced no witness in defence. They, however, tendered some documents in defence, which included the copies of the first information reports, Ex. D 8 to Ex. D 18, where the deceased and Ajaibsingh were arraigned as accused separately or jointly. One out of these reports was lodged only two days before the present occurrence i e. on March 18, 19al, by Hari Singh, in which all the three Fouji, Magh Singh and Ajaib Singb were named as accused in a case for the offence under sections 307, 147, 148, and 149 IPC. Yet in other report lodged by Mangal Singb on October, 21, 1980, five persons were named as accused including Magh Singh and Fouji. It was alleged that fire arms were used in these incidents. It is not necessary to give details of other reports. Suffice it to say that the accused had filed these reports to show that the deceased were arraigned as accused in a number of cases. 11. The Additional Sessions Judge, No. 2 Hanumangarh by the judgment dated September 30, 1982, convicted and sentenced all the three accused, namely, Jeet Singh alias Sarjeet Singh, Balbir Singh and Ikbal Singh under Section 302 read with section 34 IPC to imprisonment for life and a fine of Rs, 2000/-, in default of payment of fine two year ' fattier rigorous imprisonment and under section 27 Indian Arms Act to two years' rigorous imprisonment. The sentences were ordered to run con,currently. The learned Additional Sessions Judge held that the prosecution had failed to prove that Gurdev Singh received the gun shot injury at the place and in the manner stated by the prosecution witnesses. The sentences were ordered to run con,currently. The learned Additional Sessions Judge held that the prosecution had failed to prove that Gurdev Singh received the gun shot injury at the place and in the manner stated by the prosecution witnesses. According to the learned Judge, the testimony of the prosecution witnesses as to how the first part of the incident coal(whats not acceptable. The eyewitnesses had suppressed the real version of the occurrence as to how and at what place Gurdev Singh was shot at. The learned Additional Sessions Judge found that the offence under sections 307 IPC. against Sarieet Singh was not proved and he was entitled to acquittal for that charge The learned Additional Sessions Judge, however, held that it was proved that the deceased Magh Singh and Bhagwan Singh had died on account of the gun shot injuries caused to them. The learned Additional Sessions Judge placed reliance on the testimony of Ajaib Singh and held that the deceased Maghsingh and Bhagwan Singh alias Poaji received the gun shot injuries fired by the three accused-appellants. 12. Aggrieved by the aforesaid judgment of convictions and sentences passed by the Additional Sessions Judge the accused have preferred the present appeal in this Court: 13. We have heard Shri Munilal Garg, counsel for the accused, and the Public Prosecutor for the State. 14. In this appeal we are concerned with the incident which took place in the Nohra of Pratap Singh, where the two deceased received the gun shot injuries alleged to have been fired by the accused. There is no dispute that the prosecution case as regards this incident rests on the evidence of Ajaib Singh. Learned counsel appearing for the appellants has contended that the evidence of this witness is not of that sterling worth on which the conviction of the appellants for the offence under section 302 IPC could be sustained. According to the counsel, the witness has made material improvements upon his version given in the first information report and his previous statements recorded by the police. His testimony is inconsistent and does not conforms to the medical and the ballistic opinion. The witness has suppressed the real version of the occurrence. According to the counsel, the witness has made material improvements upon his version given in the first information report and his previous statements recorded by the police. His testimony is inconsistent and does not conforms to the medical and the ballistic opinion. The witness has suppressed the real version of the occurrence. Elaborating his contention the learned counsel has pointed out that the Additional Sessions Judge himself has disbelieved the evidence of this witnesses insofar as he deposed that Gurdev Singh was fired at by Sarjeetsingh in the gali near the house of Man,gal Singh. The learned Additional Sessions Judge has said:- " blls ,slk izxV gksrk gS fd ftl <+ax ls ;s nksuksa gh xokgku vfHk;qDr ljthrflag }kjk xksyh pykuk dgrs gS og lgh ugha gSA xksyh fdlh vU; LFkku ij fdlh vU; rjhds ls pykbZ xbZ ysfdu bl laca/k esa ml rF; dks Nqik;k x;kA ;g Hkh gks ldrk gS fd xksyh V~sDVj ls mrjus ds ckn Hkkxrs le; yxh gks ysfdu ,slk dksbZ dsl bLrxklk i{k dk ugha gSA vr% ;gh dgka tk ldrk gS fd xqjsnoflag ds ljthrflag }kjk fd;s Qk;j ds NjsZ yxus dh ckr ls lacaf/kr egRoiw.kZ rF; dks Nqik;k x;k gSA vr% ;g izekf.kr ugha ekuk tk ldrk fd xqjnsoflag ds V~sDVj ij gkFk mBkus ds le; xksyh ds NjsZ yxs gksaA " Learned counsel has contended that according to the prosecution, the deceased and Ajaib Singh, all the three ran together in one direction and the accused closely followed them and fired the guns. If Ajaib Singh was with the deceased, he too must have received, the gun shot wound, but there is complete absence of any injuries on his person and this is a pointer to the fact that Ajaib Singh was not with the deceased when the guns were fired at them. Learned counsel has submitted that the witness had deposed that be was approached and brought to Maneksar by the deceased for the purpose of effecting a settlement between the deceased and Mangal Singh. The assistance of Atmaram was also sought. Curiously, says counsel, Atmaram has not been examined. This witness was hardly 24 years of age. The purpose of bringing the witness to Maneksar could not be to assist the deceased to arrive at a settlement with Mangal Singh. The witness has not given the real object of his accompanying the deceased to Maneksar. Curiously, says counsel, Atmaram has not been examined. This witness was hardly 24 years of age. The purpose of bringing the witness to Maneksar could not be to assist the deceased to arrive at a settlement with Mangal Singh. The witness has not given the real object of his accompanying the deceased to Maneksar. The witness was himself an accused arraigned alongwith Magh Singh and Fouji in the FIR. case lodged by Hari Singh on March 18, 1981, only a couple of days before the present incident. This was a case under sections 307, 147, 148 and 149 IPC and fire arms were alleged to have been used Learned counsel has pointed out that in the court the witness has stated that the accused followed the deceased from behind, but in his earlier statement in the police he had deposed that the accused came from another gali. According to the witness, the accused Sarjeet Singh was having a 12 bore gun and the other two accused a simple barrel gun each but according to the doctor deceased Magh Singh's injuries were caused by a rifle shot. Learned counsel has also referred to the report of the Senior Scientific Officer, New Delhi, who opined that the copper jacket piece and the four lead pieces of bullet which were taken out from the body of the deceased were fired from a standard 303 fire arm, other than the country made pistol alleged to have been recovered from Sarjeet Singh. The learned counsel has submitted that the inconsistency between the statement of the witness and the expert opinion goes to the root of the case and is sufficient to discredit the witnesses. He has in this connection referred to the cases Mohinder Singh v. The State, AIR 1953 SC 415 and Subhash v. State of U.P., AIR 1976 SC 1924 Learned counsel has further pointed out that the witness, in cross-examination, has admitted that Fouji had received pellet injuries near the place of carriage and this was just close to Mangal Singh's house. The witness also admitted that Fouji had stopped in Maneksar at Mohan's shop where his wife had also come and had made a request to him to go to their house but he refused to accompany her. The witness also admitted that Fouji had stopped in Maneksar at Mohan's shop where his wife had also come and had made a request to him to go to their house but he refused to accompany her. These circumstances, argues learned counsel, leads to the conclusion that the version given by the witness in Court that the deceased were followed closely by the accused was not acceptable. The evidence of the witness was totally unreliable and the conviction of the appellants could not be sustained on this evidence. 15. Before we produced to consider the question whether the evidence of Ajaib Singh is reliable and whether the conviction of the appellants for the offence under section 302 IPC can be based on this evidence, we may first deal with the submissions of the learned Public Prosecutor that the finding of the Additional Sessions Judge that the testimony of the prosecution witnesses as to how Gurdev Singh received the gun shot injury in the gali, near the house of Mangal Singh, was not acceptable requires a re-examination by this Court. We have bestowed our mind to this contention but we are not persuaded to differ from the conclusion of the learned Additional Sessions Judge. We may, at this stage, examine the prosecution case that the deceased party had gone to Maneksar to effect a settlement of the dispute with Mangal Singh. We are not impressed by the version that the deceased first sought the intervention of Mani Singh, a young man of 24 years and who himself was arraigned as a co-accused with Mash Singh and Fouji in the first information report lodged by Hari Singh on March 18, 1981. Atmaram has not been produced by the prosecution to unfold what exactly had happened when the deceased approached him to accompany them to Maneksar. The deceased were 1 armed with loaded guns. We are not prepared to believe that they had gone to Maoeksar for trying a settlement with Mangal Singh. It has come in the prosecution evidence itself that the house of Fouji in Maneksar could be reached through the way which was outside the village and to go through the gall, which was situated near the house of Mangalsingh, was unusual. It has come in the prosecution evidence itself that the house of Fouji in Maneksar could be reached through the way which was outside the village and to go through the gall, which was situated near the house of Mangalsingh, was unusual. Either the story that the deceased party carried the tractor through the gali as alleged is not correct or their main object in going to Maneksar was not to try a settlement with Mangal Singh. The deceased were having loaded guns with them. The sound of the tractor must attract attention and there was no sense in going near the house of their opponent Mangal Singh except of course if they wanted to show force and strength. According to Gurdev Singh, the tractor was used as Fouji wanted to avoid any confrontation. If so, why they chose the way through the gall, near Mangal Singh's house. No blood stained earth or any evidential material to lend support to the testimony of the prosecution witnesses that the occurrence took place in the gali near Mangal Singh's house was collected by the investigating Officer. When Gurdevsingh received the gun shot injuries he was sitting on the tractor and Fouji was also sitting beside him but, surprisingly, he did not receive any injuries at that time. The accused were not inimical towards Gurdev Singh and if they wanted to hit any one, it were the deceased who could be made the first target and not Gurdev Singh. The learned Additional Sessione Judge has given good reasons for holding that the prosecution had failed to establish that Gurdevsingh was shot at by the accused at the place and in the manner alleged by the prosecution. The learned Additional Sessions Judge has held that the gun-shot were fired at another place and in a different manner and the prosecution had suppressed the real version about it. We concur with the learned Additional Sessions Judge and find ourselves unable to accords to the arguments of the learned Public Prosecutor to interfere with the above finding of the learned Additional Sessions Judge. 16. We now come to the crucial question, whether Ajaib singh is a truthful witness and conviction of the appellants could safely be based on his evidence. 16. We now come to the crucial question, whether Ajaib singh is a truthful witness and conviction of the appellants could safely be based on his evidence. We have expressed our inability to believe the prosecution story that the deceased party went to Maneksar to try a settlement with Mangal Singh and that Ajaib Singh had gone with them with that end in view. What exactly was their purpose in going to Maneksar has also been screened from the Court. We have also expressed our accord with the finding of the learned Additional Sessions Judge that the prosecution witnesses have not placed the real version of the occurrence before the Court as to how and in what circumstances Gurdev Singh received the gun-shot injuries. The story given by them that Gurdevsingh received the gun-shot injuries at the hand of Sarjeet Singh while Gurdevsingh was in the tractor along with others passing through the gall, near the house of Mangal Singh was not believable. The prosecution wants us to accept the version of the witness that when Gurdevsingh was hit by shots fixed by Sarjeet Singh, the deceased and Ajaib Singh jumped from the tractor, ran into the gali and when they had reached the Nohara of Pratap Singh, they were shot at by the accused who were following them in hot persuit. We are afraid we cannot accept this story told by Ajaib Singh. As already seen the deceased themselves were armed. Both had guns and live cartridges. The guns were duly loaded. The deceased were not new to the I see of fire anus. They are accused in a number of cases. The fact that the deceased were having loaded guns with them is not disputed by the prosecution. Rather the prosecution witnesses have in terms admitted this fact. It is difficult to believe that, though being closely chased by the accused they would not fire a single shot at the accused. The inference which we draw from this is that the story that the deceased were running ahead in the gali being closely followed by the accused is not worth acceptance. The hot pursuit story is also belied by the admission made by Ajaibsingh himself in cross-examination. The inference which we draw from this is that the story that the deceased were running ahead in the gali being closely followed by the accused is not worth acceptance. The hot pursuit story is also belied by the admission made by Ajaibsingh himself in cross-examination. He has admitted.- " eksgu nhgV~Vh ij eSa ek.kdlj xkao esa x;k FkkA eaxyflag ds edku ls eksgu dh nqdku nks rhu ch?ks nwj iwoZ dh rjQ gSA eksgu dh nqdku ij QkSth us ikax cka/ks bruh nsj :ds FksA eksgu dh gV~Vh ij QkSthflag dh vkSjr vkbZ Fkh QkSth us vius vkSjr ls ?kj tkus ds fy;s dgkA vt [kqn xokg us dgk fd mlus ;g Hkh dgk Fkk fd og fNi dj ?kj vk;sxk D;kasfd eaxyflag ds yM+ds muds ihNs yxs gq;s gSaA ml le; ge rhuksa eksgu dh nqdku ij ekStwn FksA eaxyflag ds yM+dksa ls Mj dj fNirs gq, ?kj vkus dh ckr eSaus iqfyl c;ku izn'kZ Mh&1 o 2 nsrs le; ugha crk;h FkhA eSaus rks ;g crk;k Fkk fd QkSthflag us viuh vkSjr dks dgk fd rw py esa vkrk gwaA " The above admission completely controverts that when Gurdevsingh was hit, the deceased and Ajaibsingh jumped from the tractor, ran through the gall but they were closely chased by the accused and were fired at when they were in the nosher of Pratap Singh. May be, the deceased were hit by the guns at the hands of the accused but 'may be' is not enough. In what circumstances the guns were fired and what was the relative position and placements of the accused and the deceased when the guns were fired has not been placed before the Court. Obviously we cannot be unmindful of the fact that now when the fight in between two groups who are armed with fire arms, the traditional mode of waiting or asking the opponent to strike first cannot be adhered to, for in that event the occasion to fire in reply may never come. And, therefore, the ascertainment of the position and placement of the Waring groups at the time the incident took place becomes all the more necessary. We find with deep concern that the prosecution has failed to place before the court the real version of the occurrence. We cannot speculate or surmise, it is not open to us to I speculate. And, therefore, the ascertainment of the position and placement of the Waring groups at the time the incident took place becomes all the more necessary. We find with deep concern that the prosecution has failed to place before the court the real version of the occurrence. We cannot speculate or surmise, it is not open to us to I speculate. And, in this case it is simply not possible. However, we find that the picture, the sequence and the description, which Ajaib Singh, the I sole witness, on which the fabric of the prosecution case rests, has presented I before us is not believable; the witness has suppressed the real version I of the occurrence even if we assume that he was present with the deceased I when the incident happened. The learned counsel for the appellants has urged before us that the very presence of the witness at the scene of the occurrence is doubtful. We see force in his submission. The witness has I made insistence statement as pointed out by the counsel for the I appellants in the course of his arguments. His testimony is inconsistent I with the medical and the ballistic opinions. On the whole we find ourselves unable to act upon the evidence of this witness for convicting the appellants for the offences alleged against them. No other evidence has I been pointed out by the prosecution to sustain the conviction of the I appellants. 17. The result is that the appeal filed by the appellants is allowed, the judgment of the Additional Sessions Judge Hanumangarh dated September 30, 1982 is set aside and the accused appellants are acquitted of the charges levelled against them. 18. The order passed by the Additional Sessions Judge for forfeiting the 12 bore guns and the pistol 303 recovered from accused Sarjeet Singh and Balbirsingh shall stand.Appeal allowed. *******