Judgment P. S. Mishra, Abhiram Singh, JJ. 1. Appellant Tuntun Jha in Criminal appeal No.632 of 1984 and appellant Brij Mohan jha in Criminal Appeal No.572 of 1984 have been convicted under sections 302 and 302/114 of the Indian penal Code respectively and sentenced to undergo rigorous imprisonment for life 2. P. W.4 Arun Kumar Jha reported to the police that on 6-2-1982, a day before the occurrence, in the evening at sutya Narain Puja at the residence of accused Brij Mohan Jha, the mother of jageshwar Jha (victim) had gone to attend the Puja. A member of the family of brij Mohan Jha however, called her a witch and asked her to go out. This caused an altercation and a Panchayati was convened to settle the matter in the following morning. Although others assembled, Brij Mohan Jha avoided appearing at the Panchayati. Jageshwar Jha went to ease himself and after casing at about 8 to 8-15 m. when he was returning, near the cattle-shed belonging to one anirudh Jha, appellants Brij mohan Jha and Tuntun Jha (his nephew) met him. Appellant Brij Mohan Jha said something to appellant Tuntun Jha and according to the prosecution, following the said talk, appellant Tuntun Jha took out a country-made pistol from his waist and fired at Jageshwar Jha hitting him on the chest. As a result of the said pistol injury Jageshwar Jha fell down and soon died. 3. P. W.4 Arun Kumar Jha, who was also returning at that time from dusadh Toli and was close to the place of the occurrence saw the appellants, appellant Brij Mohan Jha sayine something to appellant Tuntun Jha and appellant Tuntun Jha taking out the pistol from his waist and firing at jageshwar Jha. After firing, appellant Tuntun Jha fled away towards the east. P. W.4 and others chased him. Appellant Tuntun Jha threatened them but at the risk of life they caught him at some distance and snatched the pistol from his hand. P. W.4 and others then returned with appellant Tuntun jha to the village. In the way the sub-Inspector of Police and constables met them and they handed over Tuntun jha to them and then went to Kaluahi out-post. The officer-in-charge of Arer police Station arrived at the said out-post and recorded the fardbeyan of P. W.4. P. W.4 and others then returned with appellant Tuntun jha to the village. In the way the sub-Inspector of Police and constables met them and they handed over Tuntun jha to them and then went to Kaluahi out-post. The officer-in-charge of Arer police Station arrived at the said out-post and recorded the fardbeyan of P. W.4. He took charge of appellant Tuntun Jha, seized the pistol and prepared a seizure list. 4. In the eventual trial, the prosecution examined nine witnesses on the point of manner and the factual of the occurrence. Material evidence has come from P. Ws.1 to 4. P. W.5, who had hold the post-mortem examination on the dead body of Jageshwar Jha on 8-2-1982 at 10-30 a. m. and found ante mortem injuries on the left side of the chest has proved the cause of death. Since, however, the only contention raised on behalf of the appellants in the case, is in respect of the manner of the occurrence the other details noticed by learned second Additional Sessions Judge, madhubani in his judgment are not necessary. 5. Both Mr. Pandey appearing on behalf of appellant Tuntun Jha and mr. Jha appearing on behalf of appellant brij Mohan Jha have contended that (i) the occular evidence of P. Ws.1 to 4 is inconsistent with the evidence of p. W.6 and the post mortem examination report ; (ii) appellant Tuntun Jha is said to have fired from the pistol which was seized by the police but the same was not produced in the court ; (iii) P. W.9, who is an arm-expert and who submitted a report, has stated that he was not asked to report whether the injury found in the post-mortem examination could have been caused by the pistol which he had examined (iv) although the occurrence is said to have taken place near the cattle-shed of one Anirudh Jha in Dusadh Toli, no person residing in the vicinity of the place of the occurrence has been examined to support the prosecution case. The witnesses, who have supported the allegations were residents of places at a distance at least of a mile and a quarter away from the place of the occurrence and (v) in the circumstances of the case, jageshwar Jha was killed not in the occurrence alleged by the prosecution but in the occurrence taking place in the evening of 6-2-1982. 6. 6. P. W.5 has deposed that he found wound of entry of a bullet on the left side of the chest and wound of exit on the right side of the chest. Another injury, namely, a bruise on the right elbow, could have been caused by fall, p. Ws.1 to 4, who had seen the assault, have deposed that appellant Tuntun Jha fired at Jageshwar Jha from a country made pistol and it hit him on his chest. The gun shot injury found by P. W.5 does not in any way conflict with the deposition. Learned counsel, however, have drawn our attention to the fact that p. W.5 had found fical matter in the intestine of jageshwar Jha which according to them belied the prosecution case that jageshwar Jha had eased himself before he was killed. It is however difficult on such material to hold that there was any deliberate concoction on behalf of the prosecution to add to the allegation if attack by appellant Tuntun Jha at Jageshwar jha. P. W.6 has also deposed that in his opinion the death had taken place within 36 hours. According to learned counsel this takes the time of the death of jageshwar Jha in the evening of 6-2-1983 which probablies is the defence suggestion that Jageshwar Jha was killed. In some other occurrence which had taken place in the evening of 6-2-1982. It is well settled that the medical evidence has to be read as any other evidence and unless it is shown that the ocular evidence is wholly inconsistent with the medical evidence, the testimony of the witnesses should not be rejected. There is evidently no inconsistency in the outer limit of the time of death determined by P. W.5 within 36 hours and his having been killed in the morning on 7-6-1982. 7. The prosecution in all fairness has produced the pistol which was allegedly used by appellant Tuntun Jha and also shown, by expert evidence, that injury caused to Jageshwar Jha could have been caused by a shot fired from the said pistol. However, it has neglected its duty by not asking P. W.9 to report about death and has evidently erred in not producing the pistol in the court. However, it has neglected its duty by not asking P. W.9 to report about death and has evidently erred in not producing the pistol in the court. The question is, however, whether non-production of the pistol and the prosecutions failure to take from P. W.9 the evidence showing that gun shot injury upon jageshwar Jha could have been caused by the pistol, caused a serious damage to substratum of the prosecution case or not. In our considered view, the substratum of the prosecution case disclosed in the evidence of P. Ws.1 to 4 remains unaffected by the lapse on the part of the prosecution in not producing the pistol in the court and not taking from P. W.9 evidence that the injury found on jageshwar Jha could have been caused by the pistol. 8. It has come in the deposition of P. Ws.1 to 4 that following quarrel in the evening of 6-2-1982, a Panchayati was convened and P. W.4 has deposed that Jageshwar Jha and he himself had come in connection with the said panchayati. Other witnesses were not questioned why they were present near the place of the occurrence. It has, however, been pointed out in many cases that merely because some one has been found to be a chance witness, his testimony should not be doubted. Withholding of the material evidence in a given case is a cause to create doubt as to the veracity of the prosecution case. The court by applying rule of prudence should examine the evidence of interested witnesses with care and caution and invariably prefer independant corroboration to their testimony. Applying this principle, at least P. Ws.3 and 3 cannot be called interested or partisan witnesses. Nothing has been shown to us to think that someone who had seen the occurrence was withheld by the prosecution and not examined. as a witness. There is no material on the record to hold that someone who lived in one or the other houses near the place of the occurrence had seen the occurrence. In this background, it is not possible to extend to the appellants benefit of doubt for non-examination of any material witness. as a witness. There is no material on the record to hold that someone who lived in one or the other houses near the place of the occurrence had seen the occurrence. In this background, it is not possible to extend to the appellants benefit of doubt for non-examination of any material witness. Except the suggestion manifestly derived from the prosecution allegation that since there was an altercation in the evening of 6-2-1982 jageshwar Jha, he might have been killed in some occurrence taking place in the evening of 6-2-1982, there is no material on the record to show that there was any attack on jageshwar Jha by any one in the alteration taking place in the evening of 6-2-1982. 9. Above discussions go to convince us that jageshwar Jha was killed in the morning of 7-2-1982 as alleged by the prosecution witnesses by appellant tuntun Jha. Secondary role of a better has been attributed to appellant Brij mohan Jha alleging that he was with appellant tuntun Jha and uttered some thing to him and thereafter appellant Tuntun jha took out the pistol from his waist and fired at Jageshwar Jha. Abetement has been defined to mean doing of a thing by a person who by doing of that thing instigates another to do some thing which is an offence. P. W.4 had alleged in the fardbeyan that appellant brij Mohan Jha indicating towards Jageshwar jha, exorted appellant Tuntun Jha to kill him. He has, however, not so stated in his deposition in the court. His evidence in the court is that appellant Brij Mohan jha uttered something. We are conscious that express words of abetement used by the accused are not necessary but there has to be some evidence to show that there was instigation by the abettor to commit the offence. The prosecution evidence takes us to the extent of finding that appellant Brij Mohan Jha was present with Tuntun Jha and that he whispered something to him. Whether appellant Brij Mohan Jha had exorted appellant Tuntun Jha to kill or not, however, is left to a guess by the court. It is possible to infer something reasonable from the facts and such inference shall be a fact acceptable to the court. But what is left for a guess is not a fact proved for drawing an inference. Whether appellant Brij Mohan Jha had exorted appellant Tuntun Jha to kill or not, however, is left to a guess by the court. It is possible to infer something reasonable from the facts and such inference shall be a fact acceptable to the court. But what is left for a guess is not a fact proved for drawing an inference. The court below has held that the fact that appellant Brij Mohan Jha was with appellant tuntun Jha and he told something to him leads to a definite conclusion that there were such sign or words in action of the accused which amounted to abetment. In our view, it is not possible to hold that the prosecution has proved its case beyond any reasonable doubt that brij Mohan Jha abetted the offence of murder committed by his nephew appellant Tuntun Jha. 10. To conclude we hold appellant Tuntun Jha guilty under Sec.302 of the Indian Penal Code and accordingly affirm the conviction and sentence of life imprisonment passed against him. His bail bond is accordingly cancelled. He shall be taken into custody forthwith to serve the sentence. The appeal on behalf of appellant Brij Mohan Jha is allowed. He is acquitted of the charge under Sec.302/114 of the Indian Penal Code. His conviction and sentence accordingly are set aside. He is discharged from the liability of his bail bond. Appeal decided accordingly.