M. M. LAL, J. This is an appeal against a judgment and order dated 26-10-1981 passed by Shri K. G. Rastogi, the then 1st Additional District and Sessions Judge, Bareilly by which he has convicted Raghubir Singh appellant under Section 302 IPC and has sentenced him to imprisonment for life. 2. About two years prior to the occurrence there was an election of the delegates of the Cane Co- operative Society in the village, in which Chiraunji Lal, informant, was a candidate. One Jugendra Singh had supported Budh Sen as a candidate against the informant. la the said election Budh Sen was defeat ed. 3. Babu Ram deceased was the brother of Chiraunji Lal informant. Babu Ram deceased was the Pradhan of the village. Aforesaid Jugendra Singh and others got a case under Sections 107117 Cr. P. C. instituted against Babu Ram deceased in the Court of 3. D. M. Baheri. The said case was pending at the time of the incident On account of the same Jugendra Singh was inimical to wards Babu Ram deceased and Chiraunji Lal informant. 4. Raghubir Singh appellant was on visiting terms with the aforesaid Jugendra Singh. At the time of the incident the appellant was staying with Jugendra Singh. 5. According to the case of the prosecution, on 2-11-1979 at about 1 p. m. Babu Ram deceased, along with Cbiraunaji Lal informant, was taking tea at the shop of Vishwanath in village Baheri, within Police Station Baheri district Bareilly, when the appellant carrying the gun, accompanied by two other persons, came there. They shouted towards Babu Ram deceased and told him to hold himself. Thereafter, the appellant fired a shot from his gun at Babu Ram as a result of which he sustained injury and fell down dead at spot. The appellant and his companions were followed for some distance but they could not be apprehended because they were armed with gun. Chiraunji Lal informant then went to P. S. Baheri situate at a distance of 1 km. where he lodged the report of the incident on the same date at 1. 45 p. m. 6. In support of its case the prosecution examined 10 witnesses. P. W. I Chiraunji Lal is the informant. He deposed about the motive and the incident. P. W- 4 Jag Bahadur and P. W. 9 Bandhu Ram are the eye- witnesses. where he lodged the report of the incident on the same date at 1. 45 p. m. 6. In support of its case the prosecution examined 10 witnesses. P. W. I Chiraunji Lal is the informant. He deposed about the motive and the incident. P. W- 4 Jag Bahadur and P. W. 9 Bandhu Ram are the eye- witnesses. P. W. 7 Janki Prasad and P. W. 8 Lalta Prasad were examined to depose that in the morning of the date of the incident they had seen the appellant going armed with a gun of his uncle. P. W. 7 Janki Prasad had turned hostile and he did not support the prosecution. P. W. 2 Suresh e hand was Head Moharrir at Police Station Baheri. He deposed on 2-11-179 Chiraunji Lal informant had come to the Police Station at 1. 45 p. m, to hand over a written report of the incident on which this case was registered, P. W. 3 constable Prem Pal Singh was a formal witness. The investigation of this case was made by P. W. 10 Prem Pal Singh, the then S. O. , P. S. Baheri. He had gone to the place of occurrence on the same date and had got Panchayatnama of the dead body prepared by S. I,, S. B. Chaturvedi P. W. 5 under his supervision, An empty cartridge was also found from the place of occurrence, There was blood at the place of occurrence. Blood stained and unstained earth was taken from that place. On 14-11-1979 the Investigating Officer had gone to the place of Santok Singh, uncle of appellant, and had taken his double barrel gun in his possession. 7. The post-mortem examination of the dead body of Babu Ram made by P. W. 6 Dr. S. K. Khare, :he then Senior E. N. T. Surgeon, District Hospital Bareilly on 3-11 -79. He had found the following ante- mortem injuries on the dead body of Babu Ram : 1. Gunshot wound of entry 6 cm. x 6 cm. x cavity deep on the left side of the chest 3 cm. below the nipple and 2 era. from the median place. The margins were tattooed. 2. Gunshot wound of exit two in number 6 cm. x apart on the left side of the back 10 cm. below the angle of the scapula. Each wound 1 cm. X 1 cm. x cavity deep on the left side of the chest 3 cm. below the nipple and 2 era. from the median place. The margins were tattooed. 2. Gunshot wound of exit two in number 6 cm. x apart on the left side of the back 10 cm. below the angle of the scapula. Each wound 1 cm. X 1 cm. x cavity deep. 3. Abrasion 1. 4 cm. X 1 cm. on the ulnar aspect of the left forearm 6 cm. above the wrist joint. 8. On internal examination the doctor found pleura of Babu Ram deceas ed torn and lacerated. There was commuted fracture of 5th and 6th ribs. There was 100 gms. partially digested food. According to the doctor the death of Babu Ram had occurred about one day ago due to the aforesaid injuries. 9. Sri Rama Sri Pandey, Ballistic Expert was examined as C. W. 1 to depose that the aforesaid empty cartridge which was recovered from the place of occurrence was fired from the aforesaid gun of the uncle of the appellant. 10. The appellant in his statement denied the case of the prosecution. He further stated that he was visiting terms with Jugendra Singh and there was enmity between Jugendra Singh on one hand and Babu Ram deceased and Chiraunji Lal informant on the other. He also stated that P. W. 4 Jag Bahadur was the nephew and P. W 9 Bandhu Ram was a friend of the informant. He also stated that the appellant vas aggrieved with him because on account of him the information was not able to cause any harm to the aforesaid Jogendra Singh. The appellant had examined one D. W. 1 Jagdish Narayan, Librarian of the court, district Bareilly, on the point of topography. 11. In the absence of any evidence that the empty cartridge, which was recovered in the open land about 50 yards away from the place of occurrence, remained sealed till it reached the Ballistic Expert, the Trial Court has not given advantage to the prosecution of the report and evidence given by the Ballistic Expert. However, relying upon the eye-witnesses produced by the prosecution the learned trial court has held the appellant guilty of the offence under Section 302 I. P. C and has accordingly sentenced him to imprisonment for life. Aggrieved by the same the appellant has filed this appeal. 12. However, relying upon the eye-witnesses produced by the prosecution the learned trial court has held the appellant guilty of the offence under Section 302 I. P. C and has accordingly sentenced him to imprisonment for life. Aggrieved by the same the appellant has filed this appeal. 12. We have heard learned amicus curaie for the appellant and learned Government Advocate and have perused the record carefully. 3. In order to prove its case the prosecution has examined two eye-witnesses, namely P. W. 4 Jag Bahadur and P. W 9 Bandhu Ram, besides P. W. 1 Chiraunji Lal informant. Learned amicus curaie has urged before us that P. W. 4 Jag Bahadur and P. W. 9 Bandhu Ram were not present at the place of occurrence to witness this incident and that therefore they should not be believed. We iind force in the said argument. 14. Whereas informant Chiraunji Lal in his evidence has taken a positive case that at the time of the incident the appellant was accompanied by his two other companions. P. W. 4 Jag Bahadur and P. W. 2 Bandhu Ram have given & different version. Both the them have made a positive statement in the cross- examination that the appellant was not accompanied by any companion at the time of incident. Ibis is not all There is another contradiction on the material detail of the incident. P. W. 1 Chiraunji Lal informant stated in his evidence that after the incident the appellant and his companions were chased for some distance. In his F. I. R. the informant had stated that in order to apprehend them appellant and his companions were chased but all the three miscreants, after aiming the gun towards them, had disappeared in the sugarcane field. P. W. 4 Jag Bahadur had deposed that 20-25 persons had chased the appellant. P. W. 9 Bandhu Ram on the other hand stated that no body whatsoever had followed the appellant. This is not all. The informant both in his evidence and F. I. R. took a positive case that when the appellant and his two companions came to the place of occurrence, they had told Babu Ram deceased to hold himself, on which they were altered. P. W. 4 Jag Bahadur also tried to depose likewise but P. W. y Bandhu Ram was ignorant about it. P. W. 4 Jag Bahadur also tried to depose likewise but P. W. y Bandhu Ram was ignorant about it. These discrepancies and contradictions in the evidence shake our confidence in the truthfulness and veracity of the aforesaid two wisnesses. 15. The above two eye-witnesses are also not independable witnesses. As regards P. W. 4 Jag Bahadur, P. W. V Bandu Ram has stated that he (Jag Baha dur) was a member of the house of Chiraunji Lal informant. In the cross-exami nation he specifically stated that the said Jag Bahadur P. W. 4 was brother nephew of Chiraunji Lal informant. P. W. 9 Baudhu Ram also appears to be on friendly terms with Chiraunji Lal. It appears that these two witnesses hardly knew the appellant and that they came forward to depose in favour of the prosecution only on account of their affinity towards the informant and his brother. P. W. 4 Jag Bahadur stated in his evidence that he knew the appellant from 15-20 days only prior to the incident. P. W. 9 Bandhu Ram on the other hand admitted in his evidence that whereas the appellant belong to Narkunda, he on the other hand belong to Khagai Nagar, situate at a distance of 8-9 miles, and that he had never visited Narkunda. He further deposed that he had seen the appellant for 2- 3 times at Nazarganj but he had no relationship at the said place Nasarganj. He however, added that at Nazarganj one of his class fellow used to reside. He is not aware as to how many brothers and sisters the appellant has got. He also did not know the name of the father of the appellant. 16. In result, therefore, we do not consider P. W. 4 Jag Bahadur and P. W. y Bandhu Ram reliable witnesses. We are not prepared to believe that they were present at the place of occurrence. 17. After the evidence of aforesaid two eye-witnesses is discarded we are left with the evidence of P. W. 1 Chiraunji Lal informant alone. It is true that he had lodged the report of the incident promptly and that being the real brother of Babu Ram deceased he would not have spared the real assailant yet the medical evidence tends to be lie the version given by him. 18. It is true that he had lodged the report of the incident promptly and that being the real brother of Babu Ram deceased he would not have spared the real assailant yet the medical evidence tends to be lie the version given by him. 18. P. W. 1 Chiraunji Lal has stated in his evidence that the appellant had fared the shot at Babu Ram deceased from distance of 5 steps. This is not all It has come on the record that the place where Babu Ram deceased was sitting and the place from where the appellant, while standing, had fired the fatal shot was shown to the Investigating Officer by the witnesses. The Investigating Officer in his site plan had given the distance between these two places as five steps, which means 12 feet. There is sufficient material on the record to show that the said fatal shot could not have been fired from such a long distance. 19. P. W. 6 Dr. S. K. Khare, who conducted the post-mortem examination stated in his evidence that from the dead body he had recovered one wad and four shots. According to the doctor the fatal shot could have been fired from a distance of four feet only. We are of the opinion that if the wad card was removed from the wound then the fatal shot must have been fired from a shorter distance and not from a long distance of five steps. 20. Major Sir Gerald Durrard in his book The Identification of Firearms and Forensic Ballistics (1951 Edition) has made the following observations at page 74 with regard to presence of card wad : The overshot card wad, when one is used, separates from the shot charge and rest of the wadding first of all, and seems invariably to have dropped clear of the shot charge before a range of 6 feet is reached. This being so, the presence of an overshot card wad in a wound provides very strong presumptive evidence that the shot was fired from less than 6 feet while the absence of the overshot card wad suggests that the shot was fired from more than 6 feet provided the Pathologist can be absolutely certain that he did not overlook the wad in the wound. This is contingency which must be realised. 21. This is contingency which must be realised. 21. In his post-mortem examination report the doctor made an observa tion that the margins of gun shot wound of entry were tattooed. In our view there would not have been any tattooing had the shot been fired from the aforesaid distance, as deposed by P. W. 1 Chiraunji Lal informant. In our view the presence of tattooing, coupled with the fact that the deceased was wearing one waist coat besides other clothse, would indicate that the fatal. shot was fired from a distance of less than 6 feet. 22. There is another reason as well on the basis of which it can be said that the appellant had fired the shot at Bubu Ram deceased from a short distance. It may be observed that the dimension of the only gun shot wound of entry sustained by Babu Ram deceased was 6 cm. x 6 cm. into cavity. . Had. the sot been fired from a long distance then there would have been dispersal of shot. The very fact that the shot made a single aperture of 6 cm. X 6 cm. , and the skin surrounding the wound was tattooed, shows that the shot was fired from a distance of less than 6 feet. 23. The medical evidence produced in this case rules out the version givers by P. W. 1 Chiraunji Lal informant that appellant had fired the shot from a distance of 5 steps, even after the length of barrel is excluded from the same. 24. Besides the medical evidence, P. W. 1 Chiraunji Lal, as already observed, has also been contradicted on other material details of the incident, i. e, whether the appellant at the time of the incident was accompanied by any other companion or whether after the incident the appellants were chased or whether before shooting, the assailant had altered the deceased and other persons by shouting that Babu Ram deceased should hold himself. Therefore, we do not consider it safe to place reliance upon P. W. 1 Chiraunji Lal as well. 25. ln view of all that has been said and discussed above, and for the reasons stated, we are of the opinion that the case against the appellant has not been made out beyond reasonable doubt. The appellant is entitled to get benefit of doubt, and is accordingly liable to be acquited. 26. 25. ln view of all that has been said and discussed above, and for the reasons stated, we are of the opinion that the case against the appellant has not been made out beyond reasonable doubt. The appellant is entitled to get benefit of doubt, and is accordingly liable to be acquited. 26. This appeal is allowed. Raghubir Singh appellant is held not guilty of the offence under Section 302 IPC and is acquitted thereof. The conviction and sentence of Rughubir Singh appellant under Section 302 IPC are set aside. He is held not guilty of the offence under Section 302 IPC. The appellant is in Jail. He shall be set at liberty, unless he is required in some other case. Appeals allowed. .