U. K. VERMA, J. ( 1 ) THIS is an appeal against the judgment of Sri Harish Chandra, Sessions Judge, Etah convicting Ram Chandra alias Chandu under Section 302 of Indian Penal Code and sentencing him to imprisonment for life. ( 2 ) THE prosecution case as contained in the First Information Report lodged by Rajeshwar at 7. 45 p. m. on 23-2-1976 in the Police Station Jaithra, District Etah is that the appellant Ram Chandra was his tractor driver. He had been turned out by him a fortnight before the incident as he had been negligent in the performance of his duties. Ram Chandra showed him his temper and gave a threat that he would also retaliate. On 23-2-1976 at about 5. 30 p. m. when Rajeshwar informant was returning after taking a round of his field wherein he had sown wheat; Ram Chandra who was lying in a bush suddenly sprang up from that wheat field of his which was near his grove and complained that he had deprived him of his living, although his father did not want him to be dispensed with and whipping out a pistol from his pant pointed it at him. Rajeshwar raised alarm. It was at that very time that his wife Smt. Asha Devi deceased arrived near him while going to ease herself. Ram Chandra fired from his pistol, but as he tilted, the fired instead of injuring him, injured Smt. Asha Devi and she died as a result thereof at the spot. The alarm raised by him and attracted Munshi Lal, Mahesh Chandra and Suresh Chandra. They gave a chase to Ram Chandra appellant but he could not be apprehended. ( 3 ) THE Investigating Officer B. N. Misra who died before the trial commenced, went to the scene of the occurrence. He prepared the inquest report and the other documents Ex. Ka-3 to Ex. Ka-6 for getting the post-mortem examination done. The site-plan Ex. Ka- 7 was drawn by him. He took into his custody the blood stained and plain earth and scribed the documents Ex. Ka. 18 and Ex. Ka. 9. He was also shown to have recorded the statements of Rajeshwar Prasad P. W. 1 and Mahesh under Section 161 of the Criminal Procedure Code. The investigation thereafter was taken up by Ram Charan Singh P. W. 4. He took into his custody the blood stained and plain earth and scribed the documents Ex. Ka. 18 and Ex. Ka. 9. He was also shown to have recorded the statements of Rajeshwar Prasad P. W. 1 and Mahesh under Section 161 of the Criminal Procedure Code. The investigation thereafter was taken up by Ram Charan Singh P. W. 4. He recorded the statements of Suresh P. W. 3 on 30-6-76 and also of Munshi who was not examined on that very date and submitted the charge-sheet. ( 4 ) THE post-mortem report Ex. Ka. 12 on record shows that Smt. Asha Devi aged about 20 years had sustained the following injuries: 1. Gun shot wound of entry 2 cm. x 2 cm. x chest cavity deep on the right side chest 1/2 cm. away from middle and 2 cm. above the level of the nipple, blackening and scorching present. 2. Lacerated gunshot wound 3 cm. x 3 cm. x muscle deep on front of left wrist, blackening and scorching present. Dr. Radhey Shyam Gupta P. W. 5 opined that Smt. Asha Devi had died as a result of injury No. 1 which it is apparent, was sufficient to cause her death. ( 5 ) THE prosecution had examined Rajeshwar Prasad P. W. 1, Mahesh P. W, 2 and Suresh Chandra P. W. 3 as the witnesses of the occurrence. ( 6 ) THE appellant had pleaded not guilty. He did not dispute that he had served as a driver of the tractor of Rajeshwar. He pointed that the deceased. Smt. Asha Devi was a woman of easy virtue and Rameshwar Prasad had turned him out as he doubted that he had illicit relationship with her although his father was not in favour of his service being dispensed with. Rajeshwar Prasad had roped him in this case with a view to save himself from being prosecuted for the murder. He lived at a distance of about 40 miles from the place where the incident had taken place. The appellant Ram Chandra did not lead any oral evidence in defence. ( 7 ) WE shall first examine whether Smt. Asha Devi could sustain the fire arm injuries in the manner alleged in the First Information Report. He lived at a distance of about 40 miles from the place where the incident had taken place. The appellant Ram Chandra did not lead any oral evidence in defence. ( 7 ) WE shall first examine whether Smt. Asha Devi could sustain the fire arm injuries in the manner alleged in the First Information Report. From the plain reading of the report it follows that at the time when the shot was fired by the appellant, Rajeshwar was standing in between the appellant and Smt. Asha Devi and as he moved himself either forward or backward or tilted the shot instead of striking him, struck Smt. Asha Devi. The withdrawal or tilting of Rajeshwar in the manner described in the First Information Report does not at all appeal probable because if Ram Chandra had made up his mind to shoot Rajeshwar and had a loaded pistol in his hand, there was no question of Ram Chandra missing his real aim. In this connection it is also relevant to note that around both the injuries of Smt. Asha Devi, Dr. Radhey Shyam Gupta had found blackening and scorching present. This clearly shows that Smt. Asha Devi had been shot at almost from point blank range. In case Rajeshwar Prasad P. W. 1 had been between the appellant and Smt. Asha Devi, there was no likelihood of her sustaining such injuries as had blackening and scorching around them. The doctor conducting the post-mortem examinations of Smt. Asha Devi besides had also found very large number of pellets inside her body which indicated that there was hardly much of a gap between the fire-arm and the body of Smt. Asha Devi. The counsel for the appellant justifiably argued that the medical report clearly shows that the target was not Rajeshwar Prasad but Smt. Asha Devi alone. This being the position, the prosecution story about the appellant actually shooting Rajeshwar Prasad on account of his service having been terminated by him topples down. ( 8 ) RAJESHWAR Prasad P. W. 1 in his statement before the Sessions Judge realising the improbability obvious in the prosecution version set forth in the First Information Report tried to give a turn to the story. ( 8 ) RAJESHWAR Prasad P. W. 1 in his statement before the Sessions Judge realising the improbability obvious in the prosecution version set forth in the First Information Report tried to give a turn to the story. He stated that when the accused took out the pistol and aimed it at him, his wife who was going to ease herself, came and stood in between him and Ram Chandra and tried to push back Ram Chandra by her left arm and it was at that time that Ram Chandra fired injuring her in the hand and the chest by that very shot. The Sessions Judge although this is not the case set forth in the First Information Report unjustifiably drew an inference that this was the story which Rajeshwar Prasad wanted to describe but because of his illiteracy could not do so. Even if for arguments sake it was to be supposed that Rajeshwar Prasad really meant to narrate in the First Information Report what he had stated in the Trial Court although it would not be justifiable at all, it would be difficult to swallow as to how could Smt. Asha Devi appear on the scene in such a leading manner warding of Rain Chandra with one hand and pushing aside her husband from the other and taking the shot on her body. If Ram Chandra had come determined to shoot Rajeshwar Prasad, he could have easily avoided Smt. Asha Devi and shot at him inspite of her arrival. The trigger of the pistol is pressed when the target can be aimed at. If Smt. Asha Devi was not the target, it cannot be appreciated that Ram Chandra would have still fired at her, leaving Rajeshwar Prasad to apprehend him. In this connection it cannot also be lost sight of that Rajeshwar Prasad has come forward with this case that Ram Chandra had hidden himself inside the paddy crop and was waiting for Rajeshwar Prasad to come within his case firing range. If that was so, there was no question of Ram Chandra and Rajeshwar Prasad entering into the wordy duel first. Ram Chandra, it is absurd to support, would have allowed time to Smt. Asha Devi to come in between him and Rajeshwar. If that was so, there was no question of Ram Chandra and Rajeshwar Prasad entering into the wordy duel first. Ram Chandra, it is absurd to support, would have allowed time to Smt. Asha Devi to come in between him and Rajeshwar. The words occurring in the First Information Report that Ram Chandra at once took out the pistol from his pocket and aimed at him and he raised alarm and withdraw himself and Smt. Asha Devi, his wife who had arrived their got hurt, shows that Rajeshwar Prasad could move faster than the pellets and that Ram Chandra had given up his plan to immediately shoot and run away for which purpose he had been allegedly hiding. Besides if Ram Chandra would, have come with a plan to shoot Rajeshwar Prasad, he would have shot him near his field about a kilometer away from the Abadi wherefrom he was returning for then he would have been able to carry out his plan more secretly and without any chance of his apprehension and lesser chance of his identification. The fact that Smt. Asha Devi sustained the fire arm injuries, shows that it was she who was really intended to be killed for it is not the prosecution case that she had also gone to look after the field of Rajeshwar Prasad which was at a distance of one kilometer from the village and from which Rajeshwar Prasad stated to be admittedly returning. The Investigating Officer had not found any Lota, which Smt. Asha Devi was pointed to be carrying with her at the time of the incident. It had also been urged that the women do not go to attend the call of nature alone but in groups to the fields where men do not go and as in the instant case Smt. Asha Devi was said to be going to ease herself without any other lady accompanying her, the story looks doubtful in the background that no Lata was found at the scene of the occurrence. ( 9 ) THE prosecution case that Mahesh and Suresh Chandra were warming. themselves at the Alao of Babu Ram and saw the incident from 40 steps on hearing the abuses which Ram Chandra and Rajeshwar Prasad were hurling at each other was also attacked. It was pointed to be not quite credible that fire would have been ignited as early as 5. themselves at the Alao of Babu Ram and saw the incident from 40 steps on hearing the abuses which Ram Chandra and Rajeshwar Prasad were hurling at each other was also attacked. It was pointed to be not quite credible that fire would have been ignited as early as 5. 30 p. m. in the last week of February when there is hardly cold for warming up or that the witnesses would have seen as to how Smt. Asha Devi got injured when the shot was not aimed at her from so long a distance Mahesh who is the witness of the inquest report, stated that he had seen both the fire-arm injuries of Smt. Asha Devi, although in the inquest report there is mention merely of one of her injuries. Although it is possible that both the injuries in a peculiar situation could be sustained by Smt. Asha Devi, but such a situation cannot be comprehended on the basis of the allegations in the First Information Report. The Investigating Officer has not shown that he had found the wheat field of Rajeshwar trampled as a result of the chase given to Ram Chandra by Rajeshwar Prasad and the witnesses Munshi Lal, Mahesh Chandra and Suresh Chandra as averred in the First Information Report. Besides if Ram Chandra alone would have come and as a result of his firing Smt. Asha Devi would have died in the presence of Rajeshwar Prasad, he and the witnesses named in the First Information Report would have surely apprehended him for they were in a position to do so. ( 10 ) THE motive on account of which Ram Chandra is alleged to have fired is also very weak. Ram Chandra could not be presumed to be so ignorant as not to know that under a private employment he could continue to serve only till his employer wanted to keep him and not beyond that. Rajeshwar Prasad conceded that the had not lodged any report about the threat given by the Ram Chandra. Besides if there would have been any such happening on account of which Ram Chandra could have thought of murdering Rajeshwar Prasad, the father of Rajeshwar Prasad would not have been willing to continue Ram Chandra in service. Rajeshwar Prasad conceded that the had not lodged any report about the threat given by the Ram Chandra. Besides if there would have been any such happening on account of which Ram Chandra could have thought of murdering Rajeshwar Prasad, the father of Rajeshwar Prasad would not have been willing to continue Ram Chandra in service. Mahesh Chandra P. W. 2 did not deny categorically that Smt. Asha Devi was a lady of ill-repute and that Rajeshwar wanted to get rid of her. The statement of both Mahesh Chandra and Suresh Chandra had not been recorded promptly. Suresh Chandra had been examined by the Second Investigating Officer more than four months after the incident and Mahesh Chandra was not examined immediately after the occurrence although as pointed by him, the Investigating Officer had met him. Both Mahesh and Suresh Chandra did not corroborate the allegations of the First Information Report with regard to the manner in which the incident took place, but corroborate the changed version of the incident to bring it in conformity with the post-mortem report. It has been held by the Supreme Court in Mahendra Singh v. State of Rajasthan, it would be unsafe to place implicit trust on the version changed to suit the medical evidence. The decision of the Supreme Court in the case of Ram Narain v. State of Punjab from which the Sessions Judge has quoted extensively related merely to one aspect of this case as to how the matter of firing one or two shots had to be appreciated. Even if it was held that Smt. Asha Devi sustained the Injuries by one shot, it would not have any effect on the conclusion arrived at that she did not sustain the injuries as a result of the shots which were aimed at Rajeshwar Prasad. The medical evidence leaves no room for doubt that Smt. Asha Devi was really the target and on the basis of the evidence adduced and the circumstances of this case it would not at all be justified to infer that she was fatally wounded as a result of the shots fired by the appellant who was also not alleged to have any grievance what-so-ever with Smt. Asha Devi. The so called witnesses Mahesh Chandra and Suresh Chandra were not present at the scene of the occurrence and had given merely imaginary account because of their affirmity with Rajeshwar Prasad, Suresh Chandra being his relative arid Mahesh Chandra being his barber. So far as Rajeshwar Prasad is concerned the appellant pointed that it was he who had brought about the murder of his wife. Smt. Asha Devi. In this case it can only be said that if Rajeshwar Prasad had been present at the scene of the occurrence, he would not have given such a distorted picture of events in the First Information Report without ulterior motive. The conviction of the appellant could not be upheld on the basis of the evidence adduced. ORDER The appeal is allowed. The Judgment and order of the Sessions Judge Etah dated 20-10-78 in Sessions Trial No. 39 of 1978 convicting the appellant under Section 302 of the Indian Penal Code and sentencing him to imprisonment for life is set aside. The appellant, who has been found not guilty, is acquitted of the charge under Section 302 of the Indian Penal Code. He is on bail. He need not surrender to this bail bonds which are discharged. Appeal allowed. .