JUDGMENT 1. Both these appeals are disposed of by this common judgment as they arise ofthe same judgment passed by learned Sessions Judge, Bharatpur on 17.9.80, whereby he convicted the accused-appellant, Rajendra Singh for offence under S. 301 Part-I I.P.C. and sentenced him to 10 years rigorous imprisonment and a fine of Rs. 1000/-, in default of payment of fine he was directed to further undergo three months rigorous imprisonment. Accused Rajendra Singh was further convicted for offence under S. 323 IPC and sentenced him to six months rigorous imprisonment and a fine of Rs. 200/-, in default of payment of fine to further undergo 15 daysimprisonment. Both substantive sentences were made to run ton-currently. 2. Brief facts giving rise to these appeals are that an FIR was lodged at police station Nadbai on 5.7.1979 by one Govind Singh son of Bhagwat Singh wherein it was alleged by him that he is a resident of village Nama. His son Harveer had gone to answer the call of nature at 6.00 AM and while he was returning he was way laid by Rajendra Singh son of Bhagwat Singh, by caste Jat and his brother-in-law (loosei) Ghamandi resident of Chimni. Rajendra was armed with a gun and Ghamandi was armed with a lathi. Rajendra told his son to get ready and saying to fired at him. The ballet hit Harveer on his tample region. He prayed for help and fell down. When he fell down Ghamandi beat him by lathi. Hearing the cries his wife Kistoori and his two daughters, Chanda and Vimla along with his mother Nangi rushed to the spot and they too were beaten Rajendra and Ghamandi. He also subsequently reached there and he too was not spared. Number of persons from the village gathered and Jeevan Singh and Parasram intervened. They also sustained injuries. Harveers condition was precarious; hence on receipt of this report a case for offence under Sections 326, 307 & 323 IPC was registered. On next day, i.e., on 6.7.79 Harveer succumbed to the injuries in Bharatpur hospital aid the case was converted into one under S. 302 IPC. Incharge, Kotwali, Bharatpur was informed by Medical Jurist, Govt. Hospital, Bharatpur vide Ex.P.6 that Harveer had died at 6.30 P.M who was admitted with tun shot wound and therefore, necessary proceedings be taken. In postmortem the Dr. Incharge, Kotwali, Bharatpur was informed by Medical Jurist, Govt. Hospital, Bharatpur vide Ex.P.6 that Harveer had died at 6.30 P.M who was admitted with tun shot wound and therefore, necessary proceedings be taken. In postmortem the Dr. found stitched wound (multiple) During post-mortem examination the Doctor got the head X-rayed because the patient was admitted in the hospital with gun shot injury on the head but there was no evidence of any pallet or bullet inside, though, of course fracture was detected. It is pertinent to mention here that prior to Harveer sending to Bharatpur for further medical examination he was medically examined at Nadbai in Government Hospital and the injury report prepared is Ex. P. 15 which contains the history of a gun shot injury on the left face, hence he had also referred the case for X-ray. Vimla, Chanda, Kastoori, Jeevan Singh Govind Singh and Bhan Kanwar were also medically examined and injuries by blunt object were also found on their persons. After completion of investigation the police filed charge sheet against Rajendra Singh and Ghamandi Singh for offence under Sections 302, 326, 325, 323 and 34 IPC in the court of learned Judicial Magistrate No. 2, Bharatpur who committed them to Sessions. Accused Rajendra Singh was charged for offence under Sections 302 and 323 IPC, while Ghamandi Singh was charged for offence under S. 302 read with S. 34 and S. 323 IPC. The accused pleaded not guilty and claimed to be tried- 3. The prosecution in support of its case examined 19 witnesses. Accused Rajendra Singh in his statement under S. 313 Cr.P.C. submitted that he has been falsely implicated in the case. In fact he had been beaten by Govind Singh, Harveer. Chanda, Vimla and Jeevan Singh as a result of which he had sustained injuries on the head and over the eyes. When his wife learnt about it that he is being beaten she came to his rescue and she snatched the lathi from Kastoori and warded of the opposite party by lathies and Harveer etc. had sustained injuries in the process. He stated that his injuries were medically examined and so also that of his wife. Accused Ghamandi Singh has also completely denied the occurrence in his statement under S. 313 Cr.P.C. Accused led evidence in their defence and examined Kastoori, wife of accused Rajendra Singh in their defence. had sustained injuries in the process. He stated that his injuries were medically examined and so also that of his wife. Accused Ghamandi Singh has also completely denied the occurrence in his statement under S. 313 Cr.P.C. Accused led evidence in their defence and examined Kastoori, wife of accused Rajendra Singh in their defence. Learned Sessions Judge came to the conclusion that the story of gun firing and hitting the gun shot on the tample of the deceased Harveer Singh is not an honest version of the prosecution and the prosecution witnesses have exaggerated the case to that extent. Learned Sessions Judge also came to the conclusion that the prosecution has failed to prove the multiple injuries sustained by the accused Rajendra and his wife Kastoori which are proved by the statement of Dr. V. K. Sharma, P. W. Learned Sessions Judge also came to the conclusion that the prosecution has proved that Rajendra inflicted injuries by lathi on the person of Harveer, as a result of which he died and he also caused injuries on Vimla Chanda, Goving Singh and Jeevan Singh but has failed to prove that Ghamandi Singh also shared common intention with Rajendra in inflicting the injuries and it is not established that he caused injuries to anybody Learned Judge came to the conclusion that there is no evidence to suggest that case falls within the ambit of S 302 IPC and case falls in explanation (4) to S. 00 IPC making the case punishable under S. 304 Part I IPC. Learned Sessions Judge, therefore, acquitted the accused Ghamandi Singh of all the offences but convicted and sentenced the accused Rajendra Singh as indicated above. 4. The accused-appellant, Rajendra Singh, challenged his conviction and sentence by filing an appeal which is appeal No 417/80. The State Government felt aggrieved because of the acquittal of Rajendra Singh for offence under S. 302 IPC and therefore, filed an application for grant of leave to appeal for punishing the accused Rajendra Singh for offence under S. 302 IPC. Leave to appeal was granted on 15.1.1981 and Appeal No. 48 81 was registered. No leave to appeal was filed however, against the acquittal of accused Ghamandi Singh. This is how these two appeals have come up for hearing which are disposed of by this common judgment. 5. Mr. Leave to appeal was granted on 15.1.1981 and Appeal No. 48 81 was registered. No leave to appeal was filed however, against the acquittal of accused Ghamandi Singh. This is how these two appeals have come up for hearing which are disposed of by this common judgment. 5. Mr. A.K. Gupta and Rajendra Yadav appearing for accused-appellant Rajendra Singh submitted that learned Sessions Judge seriously erred in not considering the important aspect of the matter that the prosecution has miserably failed to substantiate the prosecution story. He has further submitted that on the same evidence which has been brought on record learned Sessions Judge has disbelieved the evidence qua Ghamandi and has acquitted him, but wrongfully relied the evidence so far as the appellant Rajendra Singh is concerned. It is further submitted that while recording conviction under Section 304 Part 1 IPC the learned Sessions Judge has categorically held that the incident was preplanned and further that it was due to grave and sudden provocation. These findings of the learned Sessions Judge are based on his own imagination because the prosecution has come with absolutely a different story attributing gun shot wound to Harveer and lathi to Ghamandi, therefore, in any eventuality the prosecution witnesses cannot be said to be wholly truthful witnesses Learned Sessions Judge, it is submitted, has lost sight of the basic principle that the prosecution is under an obligation to prove the origin and genesis of the story and fur her that if there are two stories placed on record, one by the accused and another by the prosecution and both are probable, then one in favour of the accused should be accepted. It is submitted that the State Government has filed an appeal for convicting the appellant under S. 302 IPC but it has filed no appeal against the acquittal of accused Ghamandi which means that the prosecution has accepted that findings qua Ghamandi Singh are correct and if those be accepted, then by no stretch of imagination conviction of Harveer can be maintained. It is submitted that the statement of P. W. 1 Govind Singh is not corroborated in material particulars by the statement of even P. W. 2 Mst. Vimla. It is submitted that the statement of P. W. 1 Govind Singh is not corroborated in material particulars by the statement of even P. W. 2 Mst. Vimla. It is lastly submitted that the learned Judge has wrongly taken it to be a case of sudden and grave provocation, particularly when the injuries on the person of the accused and his wife have not been explained. 6. Learned counsel for the State vehemently argued that the accused Rajendra Singh is real brother of Govind Singh, father of the deceased and P. W. 2 Vimla is real sister of the deceased means notice of the accused. There was no reason for this witness to have voluntarily implicated the appellant in the crime unless the incident would not have taken place in the manner alleged It is submitted that P. W. 1 Govind Sihgh and P. W. 9 Jeevan Singh are the injured eye witnesses in the case which includes the mother of the accused himself, namely, Bhag Kaur who has categorically stated that the accused caused fire arm injury on the head of the deceased as a result of which he fell down and then multiple injuries were caused by lathi, which all go to show that there was intention of causing death of Harveer. It is submitted that the trial court has wrongly convicted the accused-appellant for offence under S. 304 Part I IPC. He ought to have convicted and sentenced them for offence under S. 302 IPC. 7. We have given our earnest consideration to the rival contentions and have perused the record.7A. PW. 1 Govind Singh in his examination-in-chief has stated that his son Harveer had gone to answer the call of nature at about 6.00 AM. At that time he was sitting in the Bethak while Harveer was returning towards the village Rajendra Singh and Ghamandi Singh who were going from village to jungle. Rajendra Singh was armed with a gun and Ghamandi had a piece of wood (A side arm of a cot). Accused had announced it before that he will shot down Harveer and at that time he saw that Rajendra fired his gun towards Harveer. Rajendra Singh was armed with a gun and Ghamandi had a piece of wood (A side arm of a cot). Accused had announced it before that he will shot down Harveer and at that time he saw that Rajendra fired his gun towards Harveer. Nothing happened in the first fire hence he fired again and then he saw that his son Harverr fell down on the ground He rushed to the spot and Ghamandi warded him off by that Pati which hit him on his shoulder, head and scapular region, he therefore, ran away. When Harveer fell down on the ground Rajendra thereafter took Pati from Ghamandi and handed over the gun to the latter. Rajendra then gave Pati blow on right tample, then the witness stated on left tample, then middle of head etc. Ghamandi caused injuries to Harveer on his legs and neck by the But of the gun. He saw this all from a distance of 100. On raising hue and cry Chanda, Vimla and Ka toori arrived on the scene of occurrence and tell down on Harveer to save him. Rajendra inflicted blows on Vimla also. Jeevan Singh also arrived there and tried lo rescue Harveer. He too saw beating His mother came and she too was not spared. He staled that Rajendra accused is his real brother but since he had purchased the field about 15 years before from Custodian he became angry and when Harveer grew he started keeping ill-will with him also, since he thought Harveer would beat him. Haiveer was then taken to the hospital. He was asked to be taken to Bharatpur where he succumbed to the injuries. He stated that his father has 44-15 bighas of agriculture land and both of them had equal share in division. Rajerdra wanted two bighas of land from him which he had purchased from Custodian for which he had refused. In cross examination this witness retreated that the dispute was about the land which he had purchased from the Custodian, but he was confronted with the FT R. and his police statement where he had stated about the dispute on another five bighas of land. The witness stated that he did not give the statement and that statement in police. In cross examination this witness retreated that the dispute was about the land which he had purchased from the Custodian, but he was confronted with the FT R. and his police statement where he had stated about the dispute on another five bighas of land. The witness stated that he did not give the statement and that statement in police. He had given a complete different story in his police statement to which he has resided and stated that the police people might have written it on their own. He also denied the previous litigation regarding the land between the parties. He admitted that it was for the first time on that day that Rajendra had taken a gun with him in the morning. He admitted that his mother used to stay with Rajendra accused but after this incident she is living with him. The witness has been cross examined at a great length and he on all issues gave a story different than what he had given before the police in his statement under S. 161 Cr. P.C. When confronted with police statement and the F.I.R. he had attributed a lathi in the hand of Ghamandi which was later on passed over to Rajendra, but in the court he had changed it to Pati. In his statement he has stated that he considers both of them to be the same. The witness admitted that a day before the occurrence Rajendra had gone to plough the field and on that day also he had gone with his bullocks and cultivated. In his police statement he had stated that there was some altercation between Harveer and Rajendra before the actual incident to which the witness denied. He denied that the wife of accused Rajendra was also present on the spot, and that she was going along with bullocks and the plough. The defence story was put to the witness to which he denied. He also stated that he did not see any injury on the person of Rajendra or his wife Kastoori. He admitted that he got the report written by a petition writer in Nadbai. He denied the portion to in the report where he has stated that when Harveer fell down Ghamandi gave lathi blows on him. He also stated that he did not see any injury on the person of Rajendra or his wife Kastoori. He admitted that he got the report written by a petition writer in Nadbai. He denied the portion to in the report where he has stated that when Harveer fell down Ghamandi gave lathi blows on him. He stated that he has not given that statement but he has stated that Ghamandi had beaten him by the But of the Gun. The witness then stated that his mother had first reached there and his statement in the F.I.R. was not correct that Chanda and Vimla had reached the spot. In fact the witness hid made so many departures from his earlier statement in the F.I.R. that it would only be lengthening the judgment. The statement of the witness does not inspire confidence as he has not only changed the stories but has suppressed the truth. 8. PW. 2 Vimla who is the sister of the deceased has stated that she was sleeping in the house at about 7.00 AM when she heard the sound of a gun shot so she ran there. She was followed by her mother. She hid reached the spot till then her mother and sister were at the house only. According to her there was sound of only one gun shot and the place of occurrence from her house was about 200 paces. When they reached there number of persons from the village had already come there and they were standing on all sides of Harveer. The sun had come up at that time. She stated that she had not seen the bullocks and the one stated that she had told that the smoke was coming from the gun in her police statement but it is not there. The presence of Ghamandi has been shown by her with a lathi in her police statement but she cannot say as why it has not been written there The story of handing over the gun to Ghamandi and taking lathi from him is also not written in the police statement and she could not assign any reason. She has denied that accused also sustained injuries in the incident. She also denied that wife of Rajendra was also on the spot and she also sustained injuries. 9. PW. 3 Kastoori has given identical statement as given by Vimla PW. 2. She has denied that accused also sustained injuries in the incident. She also denied that wife of Rajendra was also on the spot and she also sustained injuries. 9. PW. 3 Kastoori has given identical statement as given by Vimla PW. 2. She also stated in her examination-in-chief that when she reached on the spot she found smoke coming out of the gun and in her presence Rajendra took lathi from Ghamandi and passed over his gun to him. She in her statement stated that he had heard the sound of the two gun shots and that there was no ill-will between Rajendra and her family, but she stated that Rajendra purchased the gun only few months before and used to say that he will Kill Harveer by this gun. this witness in cross examination could not assign the reason why she has not deposed about the exchange of gun and the lathi between Ra;endra and Ghamandi in her Police statement. She also could not give any explanation as to why she had not mentioned about the head injury by lathi by Rajendra on the head of Harveer. She has denied the entire defence story and stated that she had not seen any injuries on the person of Rajendra or Kastoori. 10. P.W. 4 Bhan Kaur alias Nangi is the mother of the accused and grand-mother of the deceased. She has stated that Rajendra was going to the field with bullocks and a plough and was all alone At that time Harveer was returning after answering the call of nature and she was going for the same purpose. On the way he came across Harveer and there was some altercation on which Rajendra fired at Harveer which did not hit him, then he fired a second shot as a result of which Harveer fell down. She tried to hold Harveer. At that time Rajendra gave lathi blows on Harveer and she also sustained injuries. She stated that she does not know from where the lathi came. After some time Ghamandi came with a lathi and Rajendra gave his gun to Ghamandi and took lathi from him. Rajaram, Ramjilal, Parasram, Jeevan and many other persons had arrived there. On her cries Harveers mother and sisters also arrived who too received injuries. In cross examination she admitted that she used to stay with Rajendra after her husbands death till this occurrence. Rajaram, Ramjilal, Parasram, Jeevan and many other persons had arrived there. On her cries Harveers mother and sisters also arrived who too received injuries. In cross examination she admitted that she used to stay with Rajendra after her husbands death till this occurrence. She stated that she cannot clearly beyond 3-4 feet. She stated that she was behind Rajendra when he was going with bullocks and plough. She was about 5-6 paces behind. According to her Harveer was unarmed and she did not see any injury on Rajendra. Then she stated that distance between her and these persons was so much that she could not see that who inflicted injuries on whom-According to her all the witnesses came subsequently when the incident had started. The witness denied the prosecution story and stated that she had not seen any injury on Kastoori or Rajendra. She however stated that she saw Rajendra beating her another son Govind Singh. She has also resided from her police statement as the story given earlier was little different. 11. PW. 5 Teji who happened to reach the place of occurrence on hearing the sound of gun shot. According to him Rajendra fired a second gun shot in his presence at Harveer who fell down, then Rajendra gave his gun to Ghamandi and took lathi from him. Rajendra gave lathi blows on Harveer. Jeevan and Wahal Ktur intervened but they too were beaten. This witness appears to be a chance witness who has admitted in cross examination that he had gone for borrowing seeds at the place of Jamidar and when he heard the first shot sound he was at the residence of one Kansingh. He stated that he was about 40-50 paces away when he saw the second gun shot being fired. According to him on receiving gun shot injury Harveer had fallen down on the ground which is below the Peepal tree. He denies that he might have seen Rajendra with bullocks and plough. Witness denied the suggestion that Rajendra had beaten his father earlier of which there was a report in the police station. He denied the presence of Kastoori, wife of Kajendra. on the spot and presence of injuries on their persons The witness has shown the presence of bullocks and plough in his police statement with he denied in the court. Witness denied the suggestion that Rajendra had beaten his father earlier of which there was a report in the police station. He denied the presence of Kastoori, wife of Kajendra. on the spot and presence of injuries on their persons The witness has shown the presence of bullocks and plough in his police statement with he denied in the court. According to h m Rajendra and Ghamandi both were in influcting injuries on the persons of the complainant party. 12. Pararram PW. 6 arrived at the place a little later on but he has been declared hostile by the prosecution. Chanda PW. 7 is another sister of the deceased who gave a similar statement to what her sister Veimla has given. According to her her grand-mother and she had gone almost simultaneously and when she reached smoke was coming out from the gun. She has also on various aspects of the matter changed her story and improved it in the trial court. In her police statement she only contended by saying that she had not given such a statement, she does not know how the police had written. 13. PW. 8 Ramjilal is yet another eye witness who is alleged to have caught the gun when Rajendra had fired and Harveer was lying on the ground with an injury on the head. He told Rajendra not to do so. But Rajendra told him to run away else would also be beaten. Rajendra then gave the gun to Ghamandi and took a lathi from him. According to him Govind Singh was not present on the place of occurrence. In his cross examination he has stated that he was first man who arrived at the place of occurrence and rest all can e subsequently. It was he who tried to snatch the gun from Rajendra which was later on given to Ghamandi This witness also denies the presence of the injuries on the person of Rajendra and his wife Kastoori and has denied all the suggestions made about the defence story. 14. PW. 9 Jeevan Singh gave an identical statement that he reached the spot on hearing the gun shot sound and when Ramjilal tried to intervene he asked him to run away. Thereafter he gave his gun to Ghamandi and took lathi and gave injuries to Harveer who was lying on the ground. 14. PW. 9 Jeevan Singh gave an identical statement that he reached the spot on hearing the gun shot sound and when Ramjilal tried to intervene he asked him to run away. Thereafter he gave his gun to Ghamandi and took lathi and gave injuries to Harveer who was lying on the ground. According to him also Govind Singh did not come on the place of occurrence and denied the presence of the wife of accused Rajendra on the spot. He also stated that he had not seen any injury on the person of Rajendra. He admitted that his sons marriage had been fixed with Harveers cousin. This is all the evidence regarding real occurrence. 15. A perusal of the statement of these witnesses makes it absolutely clear that they were suppressing the genesis and origin of the story and have not explained the injuries on the person of Rajendra and Kastoori. Rajendra Singh accused-appellant was medically examined on the same day by Dr. V. K. Sharma, PW. 12, Medical Jurist, Government Hospital, Bharatpur. He found six injuries on his person. They are as follows : 1. Lacerated wound margines irregular and swollen 1 "⅛" scalp deep on left parietal region just in front of left parietal eminence. 2. Haemotoma with lacerated wound (oblique) margines irregular and swollen l"x l" and 1/2" x ⅛" scalp deep respectively on left fore head just above outer half of eye brow. 3. Lacerated wound (oblique) margins irregular and swollen 1/4"x ⅛" x bone deep on the outer 3rd of right eye-brow. 4. Swelling red in colour 1" x l" just behind the angle of mandible left side. 5. Diffused swelling (red in colour). 6. Haemotoma l" x l"on left parietal region of scalp 2" medical to left parietal eminence. In the opinion of the Doctor these injuries could not have been self inflicted, four of them are on the head. Similarly Smt. Kastoori sustained three injuries. The injuries on the person of the accused were such which could be visible to all and sundry and the statement of the witnesses that they did not notice any injury is not a statement worthy of reliance. Besides this, so far as the statements of these witnesses regarding presence of Ghamandi is concerned, have been disbelieved by the trial court itself and he his been acquitted. Besides this, so far as the statements of these witnesses regarding presence of Ghamandi is concerned, have been disbelieved by the trial court itself and he his been acquitted. We have also mentioned above that the State filed an appeal for altering the conviction of the accused-appellant from offence under S. 304 Part I IPC to S. 302 IPC. It did not think it proper to file an appeal against the acquittal of Ghamandi. The statements of these witnesses have also to be tested in the light of medical reports. P. W. 18 Dr. A. N. Sharma who first examined the injuries of Harveer at Primary Health Centre, Nadbai found the following injuries on his person:- 1. Lacerated wound 3/4" X 1/4" X 1/2" on antero medial aspect of right leg lower one fourth simple blunt. 2. Contusion 2"X1" on left leg anteriorly lower 1/4th with inflammation 2"x2\ 3. Inflamation on anterior aspect of left leg upper ⅓rd. 4. Punctured wound 1/2" X 1/2"X3/4" on left mandibula joint of face with inflamation. 5. Punctured wound l1/4x 1/2"xI-1/4" obliquely on left temporal region 21/2" above mestoid. 6. Lacerated wound 5" x 1/2"X bone deep antero posteriorly or right parietal region near mid line. 7. Punctured wound 1/2 x 1/4"x 1/2" on left endibular region near angle of left mandible with inflamation. The witnesses stated that it was reported to him that he had been inflicted gun shot injuries on left face and head and left temporal region, therefore, he advised X-ray of skul and face right and left leg lower half for evidence of bony lesion and for presence of pallets. According to him Injuries Nos. 1, 2, 3 and 6 were simple and caused by blunt object but he reserved his opinion about injuries Nos. 4, 5 and 7 for receiving the X-ray. These injuries, according to him, could be caused by gun shot. He stated that it is not necessary that pallets may remain in the body in all cases. This witness in cross examination admitted that initially he had mentioned all these injuries as lacerated wounds. But subsequently he corrected them as punctured wounds. These corrections, according to him, were in different inks. He admitted that initially he observed these injuries as lacerated wound but on second thought on measuring the depth he found them to be punctured wounds. This witness in cross examination admitted that initially he had mentioned all these injuries as lacerated wounds. But subsequently he corrected them as punctured wounds. These corrections, according to him, were in different inks. He admitted that initially he observed these injuries as lacerated wound but on second thought on measuring the depth he found them to be punctured wounds. He also had to admit that there was over-writing at the place and time in his report. He then admitted that he is still not definite that injuries Nos. 4, 5 and 7 were caused by gun shot and according to him if these injuries were by gun shot the distance between the victim and the assailant was more than 12 feet. Thus this statement of the witness leads us to nowhere. It appears that when the story of the gun shot was made he changed his report and irade over-writings in the same. This report has to be looked into in light of post-mortem report prepared by PW. 12 Dr. V. K. Sharma. He had found stab wounds, abrasions and contusions and total number of injuries was 9. The witness stated that since history of gun shot was given to him he got it X-rayed and the X-ray plate did not show any foreign body inside the body of the deceased. The witness in cross examination stated that be was fully conversant that there was any injury on the deadbody of Harveer by either pallet or bullet. Thus, the medical evidence not only not corroborates the prosecution story but expressly contradicts it. The statements of these witnesses therefore, did not find corroboration from the medical injury reports. In cases like the present one it is essential to test the evidence of the witnesses in light of the other circumstances and for that we carefully went through the statement of the investigating officer and the memo of site inspection. It is pertinent to mention that no empty cartridges were found on the place of occurrence and 18 empty cartridges were found in bandoleer at the residence of the accused and gun was not also sent to the ballistic expert for being checked as if it had been fired. From the perusal of the statement of the investigating officer it is clear that the side plan and the memo thereof was prepared by him which is Ex. P. 2. From the perusal of the statement of the investigating officer it is clear that the side plan and the memo thereof was prepared by him which is Ex. P. 2. A perusal of Ex. P. 2 shows that a main road divides the fields of either side and oblique road passes through the field of one Ram Swaroop where there is a Peepal tree. Across the road is another field of one Surja through which also a passage goes to the village. According to the site plan Rajendra Singh was in the field of Surja from where it has been shown that he fired at Harveer and at that time Harveer was on the passage leading through the field of Ram Swaroop. He is alleged to have fallan down at place. A which is in field of Ramswaroop. Brokem bangles have been found at place B from where Rajendra is alleged to have fired at Harveer. Then there are marks of scuffle at the place where the dead body had been found. In the entire site plan and the memo the residential houses of the complainant party have not been shown which clearly shows that the same is not in the vicinity of the place of occurrence. It is fundamental principle of criminal jurisprudence that the witnesses may lie but the circumstances did not lie. Now the circumstances available on the spot clearly indicate that the incident did not take the place in the manner alleged by the prosecution for various reasons. Firstly as mentioned above there is no gun shot injury on the person of the deceased. Secondly marks of scuff e had been found at two different places, i.e., in the field of Ramswaroop and in the field of Surja a id this place of occurrence is 2 miles away from the village. Thus, the story of all these witnesses claiming to be the eye witnesses in the manner they alleged, is totally false. Incident did take place but in some other manner with which the prosecution is not coming-forth. Witnesses are suppressing the truth. 16. DW. 1 Kastoori has given a different story. She has stated that she and her husband and Ghamandi Singh were going together for sowing the seeds with bullocks and ploughs. At that time Harveer, Govind Singh, Bhagwan Singh, Chanda. Vimla and Nangi were already sitting on the way to waylaid them. Witnesses are suppressing the truth. 16. DW. 1 Kastoori has given a different story. She has stated that she and her husband and Ghamandi Singh were going together for sowing the seeds with bullocks and ploughs. At that time Harveer, Govind Singh, Bhagwan Singh, Chanda. Vimla and Nangi were already sitting on the way to waylaid them. They were surrounded and Harveer aimed a lathi blow on Rajendra Singh which hit him on the head. Jeevan and Govind Singh also stated beating Harveer, she therefore, snatched the lathi before Katoori wife of Govind Singh inflicted on the head of Harveer who was beating her husband. In all this her bangles were also broken and she also sustained injuries. Story of this witness is corroborated by medical evidence as well as by presence of the broken bengles at the place from where Ha veer is alleged to have been fired at. She may have exaggerated the incident but it did indicate how the incident took place, but absolutely in a manner other than stated by the prosecution witnesses. It is the duty of the prosecution to show the nexsus of the story muchless in the cases where both the parties have sustained injuries. In the instant case there is total lack of unimpeachable independent evidence to convict the accused with the crime. We are conscience of the observations made by their Lordships of the Supreme Court in the land-mark judgment of Sarwan Singh v. State of Punjab, AIR 1957 S.C. 637 wherein it has been held as under : "It is no doubt a m inner of regret that a cold-blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between may be true and must be true there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted." Testing the evidence in the light of the aforesaid circumstances we are constrained to observe that though the murder is going unpunished but there is total lack of convincing evidence to connect the accused with the crime. 17. 17. As a matter of aforesaid discussions we are of the view that the prosecution has failed to prove the case against the accused-appellant beyond all manners of reasonable doubt and the appeal deserves to be allowed filed by accused appellant Rajendra Singh. In view of the fact that the appeal of accused-appellant Rajendra Singh is being allowed the State appeal automatically fails, since there is no question of altering the conviction from S. 304 Part 1 IPC to S. 202 IPC and the appeal deserves to be dismissed. 18. The result is that appeal No. 417/80, Rajendra Singh v. State of Rajasthan is allowed. Conviction and sentence passed against the accused-appellant judgment, dated 17.9.1980 by learned Sessions Judge, Bharatpur is set aside and he is acquired of the charge. Appeal No. 48/1981 filed by the State is dismissed. Accused-appellant is on bail. He need not surrender to his bail bonds which shall be discharged.Appeal allowed. *******