JUDGMENT 1. - 35 persons were tried by the Additional Sessions Judge, Kishangarhwas (Alwar) Rajasthan, for the offences under Sections 147, 148, 448, 302, 307 and 365 Indian Penal Code read with Section 3/25 of the Arms Act. By his judgment dated 2nd July, 1988 the learned Additional Sessions Judge has convicted two person, namely, Bhawani and Hari Singh and acquitted the other 33 persons. He arrived at the conclusion that Bhawani, Hari Singh, Kishanlal, Ramjilal and Amilal formed as unlawful assembly and entered the Nohara of Mst. Patori and in pursuance of their common intention fired at Deshraj and Hoshiar and caused their death and also injured other persons and thus attempted to cause their death. Out of these five persons Kishan Lal, Ramjilal and Amilal were absconding and as such they could not be tried and only Bhawani and Hari Singh were convicted. They have been convicted and sentenced as under: Bhawani & Hari Singh : Under Section 302 IPC Life imprisonment and a fine of Rs. 100/- each and in default of payment of fine to undergo 3 months rigorous imprisonment. Under Section 148 IPC Rigorous imprisonment for one year. Under Section 307 IPC Rigorous imprisonment for 7 years and a fine of Rs. 1,000/- and in default of payment of fine to undergo rigorous imprisonment for the year. Under Section 448 IPC Rigorous imprisonment for one month Bhawani:, Under Section 3/25 of the Arms Act Rigorous imprisonment for one year and a fine of Rs. 500/- and in default of payment of fine to undergo 6 months rigorous imprisonment. Against this conviction and sentence both of them have preferred this appeal. 2. The incident out of which the case arises occurred in village Bhajnawas, which falls under Police Station Mundawar, on 21st Dec. 1985 at evening time. The report of the incident was lodged at Police Station Mundawar by PW 1 Daya Ram son Badloo Ram at 8.00 p.m. He gave out that on the same day at about 5.30 p.m. he was cutting kutti in his Nohara, while Leela, Deshraj, Babulal, Daulat, Ratan, Makhan and others were sitting in the Bethak. All of a sudden Kishanlal, Hari Singh and Bhawani and 13 others (who have been named in the FIR) came there armed with lathies, farsies, and guns. All of a sudden Kishanlal, Hari Singh and Bhawani and 13 others (who have been named in the FIR) came there armed with lathies, farsies, and guns. Kishan Lal had a twelve bore gun, Ramjilal had a pistol, Bhawani had a twelve bore gun, while Harisingh had a twelve bore katta. Others had farsies and some had lathies. Kishanlal abused them and fired on account of which Deshraj and Leela received injuries. Bholoo and Hoshiar and others came there on hearing gun shots. A gun was fired in their direction also. Deshraj and Hoshiar died on the spot. When they were sending the injured persons to the Hospital in the jeep of Banulal Vaid, then one Ramsingh Mali, who was also in the jeep was forcibly dragged out of the vehicle and was beaten by the accused. It was also mentioned in the FIR that there was enmity between the parties on account of Nohara and some proceedings were pending before the Sub-Divisional Magistrate, Kishangarhbas. This Dayaram who lodged the report himself had several pellet injuries. 3. A case was registered at the Police Station and investigation was started. The site plan which was prepared is Ex. P/3. The Nohara of the complainant party has been shown in this. Approach to this Nohara is from the eastern side. There are some houses on the western side. On the east side of the Nohara is the back of the house of Bholoo. The bodies of Deshraj and Hoshiar were recovered from the places marked as T & 'K'. These places are on the northern side of the Nohara. 'F' has been shown as the place from where the accused fired. This is about 21 steps from the dead-bodies and is in the middle of the southern portion of the Nohara. Blood was found under the bodies and the same was recovered. There were some pellet marks on the back of the Bholoo's house. From a little distance towards the west of 'P' two empty cartridges and one live cartridge were recovered and from there and some wads of 12 bore cartridges were also recovered. We shall refer the site plan again, but we observe that the exact distance from one place to another or even the scale of the map has not been given. We shall refer the site plan again, but we observe that the exact distance from one place to another or even the scale of the map has not been given. This is a case in which two persons have died due to gun shot injuries and several others have received injuries. Distance from one place to another has great importance. Maps with exact measurement can lend help in appreciating the evidence in all cases and in gun shot cases it can be said that the distance between the deceased and the assailants has a greater relevance and also helps in appreciating the oral evidence in the case. 4. The investigating officer recorded the statements of witnesses and arrested the accused persons from time to time. Accused Bhawani gave information on 22nd Dec. 1985, on the basis of which a twelve bore gun and five empty cartridges and two live cartridges of twelve bore were recovered. On 30th Dec. 1985, from the other accused lathies and farsies were recovered. The persons injured in the firing are, Babulal, Dayaram, Makhan Ram, Daulat Ram, Leelaram, Bholooram, Santosh and Ratan Lal. Their injury reports are Ex. P/46, P/48, P/66, P/67, P/68, P/69, P/70 and P/71 respectively. All of them had pellet injuries scattered over different parts of the body. The injuries of Bholoo maybe described, who had multiple pellet injuries on right arm, forearm, on chesh on right side, and on back of posterolateral aspect and on right side, on right and left thighs, two pellet marks on left hand, one pellet injury on neck posteriori. The post mortem report of Deshraj and Hoshiar are Ex. P/75 and Ex. P/76 respectively and they had 42 and 25 gun shot wounds on different parts of the bodies respectively. The death in both cases occurred as a result of gun shot injuries. 5. Here it may be stated that there are two sets of eye witnesses. One set has supported the prosecution case while the other has been declared hostile. The hostile witnesses have admitted their presence in the Nohara at the time of incident, but according to them there was cross firing and they did not know the persons who had fired at the persons living in the Nohara. We shall look into the evidence of these two sets of witnesses by looking into the statements of some of them. 6. We shall look into the evidence of these two sets of witnesses by looking into the statements of some of them. 6. Hostile witnesses are, Babulal PW. 3, Ram Singh PW. 4, Makhan PW. 7, Daulat Ram PW. 8 and Ratan PW 9. The other witnesses are PW. 1 Dayaram, PW. 5 Bholoo, PW 6 Leelaram, PW. 10 Babulal, PW. 11 Dhanni, wife of Hoshiar, PW. 12 Lalee daughter of Hoshiar, PW 13 Sajna daughter of Badloo and Patori's sister, PW 14 Shravan, sister PW 15 Fatiri and all of them have supported the prosecution case of Patori and it may be said that they are related to each other. Some of the hostile witnesses were injured in the incident, but they were present at that place because they had come there for purchasing buffalo and the incident took place in their presence. However, according to them the incident took place in a different manner in which there were firing from both the sides. They have not given the details as to how the quarrel or the incident started and who had fired in the incident. 7. We may look into the statement of PW 1 Dayarmam who has supported the prosecution story. He was cutting kutti in his Nohara when at about 5.30 p.m. accused persons came there armed with guns, katta, and revolvers and farsies and lathies. Kishanlal hurled abuses and when he (Dayaram) protested, Kishanlal, Bhawani Harisingh and Ramjilal started firing. He was hit by several pellets. Deshraj, Leela, Daujatram, Ratan, Makhan and Babulal came out of the Baithak, then the four accused fired at them also. All the six persons received pellet injuries. Then Bholoo, his wife Santosh, and Hoshiar came from their houses into the Nohara of Dayaram. They were also attacked by gun shots and they also received injuries. He stated that apart from there four accused, the other accused had surrounded the Nohara. The injured persons tried to run away from there, but the other accused did not allow them to go out of the Nohara. Deshraj and Hoshiar died on the spot. After sometime the jeep of Babulal Vaid arrived there and he took Bholoo, Leela, Santosh, Daulatram, Ratan and Makhan to the Hospital. The accused stopped this jeep and one Ramsingh Mali was taken out of it. Deshraj and Hoshiar died on the spot. After sometime the jeep of Babulal Vaid arrived there and he took Bholoo, Leela, Santosh, Daulatram, Ratan and Makhan to the Hospital. The accused stopped this jeep and one Ramsingh Mali was taken out of it. As for enmity, he stated that a case was pending in the Court of SDM Kishangarhbas. At 8.00 p.m. on the same night he made a report at the police Station. The relationship between the persons may also be looked into at this stage. Dayaram is the son of Patori's sister Shravan. Sajna is his sister. Deceased Deshraj was his brother. PW 5 Bholoo and deceased Hoshiar were brothers' of Patori. She had invited her borthers from Haryana in order to look after her property. Patori did not have any issue. Other witnesses Santosh and Dhanni are Bhabhies of Dayaram. According to him, the accused had entered the Nohara from the entrance and from there they had fired. He denied the suggestion that the firing was done from outside. The relevant admission made by him is that the Naib Thanedar and three constables had arrived in the jeep of Babulal Vaid. The police people took away the injured in the jeep and Dayaram also went with them to the Police Station and lodged a report. He does not know as how the police arrived there. 8. Having looked into the background of the case, we may now take up the contentions, which have been raised by the learned Counsel for the appellants. It is contended that the witnesses are not giving out the correct incident, and they have developed the original version which was given by them. Earlier the case was that the accused had come at the Nohara (Nohra par Aye), which means that they were out side the Nohara and subsequently the witnesses have made the case that five accused came inside the Nohara and the other accused (who have been acquitted) had surrounded the Nohara. This is said to be a development in the case of the prosecution. It is contended that when all the witnesses have omitted to mention in their statements under Section 161 Criminal Procedure Code that the five persons had entered the Nohara and have subsequently changed their versions, then it is a deliberate conspiracy to develop the case. This is said to be a development in the case of the prosecution. It is contended that when all the witnesses have omitted to mention in their statements under Section 161 Criminal Procedure Code that the five persons had entered the Nohara and have subsequently changed their versions, then it is a deliberate conspiracy to develop the case. Besides this it is contended that independent witnesses, who were present at the time of occurrence have not supported the prosecution case, but only the related witnesses have supported the same. 9. The FIR in the case has also been attacked because the incident was reported at the Police Station when some people proceeded in the jeep of Babulal Vaid and brought some police personnel at the site, but this has been denied by the Investigating Officer, who has not made any entry in the Rojnamcha, about the information given to him. It is argued that actually the police wanted to build up a case, which could be acceptable, because the version which was given earlier was not specific and the role of the accused has not been named in it. The FIR is also said to have reached the Magistrate after 17 hrs of lodging it. As it is a gun shot case and the learned Counsel for the appellant is an expert in this type of cases, he has taken us through the evidence on the basis of which it could be inferred as to from which place the firing was done and in which direction it was fired and whether this could be scientifically correct. We may again refer to the description of the site where the incident took place. The Nohara has houses on the east and west sides. Two bodies were found on the northern side of the Nohara. One in the middle and other towards the west side. There were no pellet marks on the western side, but the pellet marks were on the houses on the eastern side. There is no description about the direction of these pellet marks, as this could help in determining the directions of the firing. Blood was found under the bodies which shows that the pellets had hit them at the place where they had collapsed. The police has shown the place marked as 'F' in the site plan Ex. P/3 as the place from which firing was done. Blood was found under the bodies which shows that the pellets had hit them at the place where they had collapsed. The police has shown the place marked as 'F' in the site plan Ex. P/3 as the place from which firing was done. At this spot two empty cartridges and one live cartridge were also recovered. From this place wads of twelve bore were also recovered. When the witnesses came before the Court their version was that the five accused had entered from the entrance of the Nohara and not by jumping any wall and that they fired from the place marked 'W' which is just after entering the Nohara. Any firing from this place towards the place where the deceased persons were lying would not hit the houses on the eastern side of the Nohara. It is contended that the live cartridge and empty cartridges which were recovered from the point 'F' cound have been fired only by 303 gun as admitted by the IO PW 22 Mahesh Prasad and this was not with any of the accused. Here it is contended that the story of the independent witnesses that there was cross firing, gains importance and according to the learned Counsel for the appellant, the firing was done by the complainant side also and this was done from the point 'F' and they left empty cartridges at this place. PW 4 Ram Singh, PW 8 Daulat Ram and PW 9 Ratan are the persons, who have stated that there was cross firing. Wads of twelve born gun cartridges were also recovered from the place 'F'. It has been contended that the wads also travel but not as much as pellets and that the wads could not drop at the place from which the firing was done. It is also contended that there are no wads in a 303 cartridge and the wads recovered in this case cannot suggest that a twelve bore gun was fired from the place from which the wads were recovered. According to him at best it could be said that someone of the complainant party fired by a 303 gun from the place 'F' and hence someone acted in self-defence and if by that act he killed anyone, then others would not be liable with the aid of section 149 Indian Penal Code. According to him at best it could be said that someone of the complainant party fired by a 303 gun from the place 'F' and hence someone acted in self-defence and if by that act he killed anyone, then others would not be liable with the aid of section 149 Indian Penal Code. In other words, the argument is that the occurrence did not take place as stated by the prosecution witnesses and that they are concealing the origin in order to cover up their own action. The learned Counsel for the appellant has contended that the twelve bore gun in this case was a licenced gun and this was recovered from the house of the accused Kishan on the night of the incident, who is absconding and as he could not be arrested the recovery of the gun has been shown at the instance of accused Bhawani. Along with the gun five empty cartridges and two live cartridges were also recovered. However, the Forensic Science Laboratory could not positively link the five empty cartridges to the recovered gun. The recovery of the gun, according to the learned Counsel for the appellants could not be connected with the accused appellant Bhawani. 10. It is contended that at the time of the incident it was dark and the witnesses could not see as to who had fired and they named as many persons as they could without giving out the place from where the firing was done and the whole-sale implication has been made to show that any accused may not be left out. 11. The learned Counsel for the complainant and the learned Public Prosecutor have supported the decision of the learned Sessions Judge and contended that there was enmity between the parties and the two appellants along with Kishan came armed with guns and fired which resulted in two deaths and injuries to several persons. Relying upon the statements of PW 1 Dayaram, PW 11 Dhanni, PW 14 Shravan, PW 16 Santosh and PW 17 Bharpai, it is contended that five accused had come inside the Nohara and the others were outside surrounding it and that the witnesses could only show that the firing was done and they could not be expected to give a Photographic description as to how the full incident took place. It is also contended that the FIR was lodged immediately without any delay and that the parties were known to each other and there was no reason of not identifying the assailants. When the deceased persons have died by gun shot injuries and eye witnesses have named the persons who fired, then the evidence should be taken to be consistent and sufficient to hold the accused guilty. As for the hostile witnesses, it is submitted that they were at the place on account of talks for purchasing buffalo and these persons have been won over by the accused and hence they are not supporting the prosecution case. 12. We have considered the contentions raised on behalf of both the sides. PW 3 Babulal has stated that Rajaram came to him and told him that there was some incident at Bhajnawas and it was necessary to call the police and both of them went in a jeep to Mundawar and returned to Bhajnawas with the police. The same version is of PW 2 Raja Ram. He had been informed of the incident by one Om Prakash. Both Rajaram and Babulal went in a jeep to Mundawar and the police came with them in the jeep. This part of the evidence cannot be dis-believed even if the prosecution got these witnesses declared hostile. They may be not able to give complete version of the incident as they had not seen it. But it may be accepted that they had given out that some incident had taken place at Bhajnawas in which firing had been done. This version was not recorded as an FIR and even after this when the police reached the site and interrogated the person, their statements were not recorded either by way of FIR or by way of statements under Section 161 Criminal Procedure Code The FIR is said to have been lodged only when Dayaram returned with the police and wrote out an FIR at the police station. PW 1 Dayaram has admitted that the police had arrived at the scene in the jeep of Babulal. But he does not state as to how the police arrived there. Dayaram did not give the written report at the site itself but went with the police to the Police Station and then wrote out the report Ex. P/1. PW 1 Dayaram has admitted that the police had arrived at the scene in the jeep of Babulal. But he does not state as to how the police arrived there. Dayaram did not give the written report at the site itself but went with the police to the Police Station and then wrote out the report Ex. P/1. From this course of action it is obvious that the police were gaining time before registering the first information report and normally this is done only either when the culprits are not known or the witnesses are not clear as to how the incident occurred, or it is considered necessary to first build up a proper case, or to name more persons as accused then who actually took part and such other reasons. Thus the edifice of the case becomes weak and the story built up on this edifice has to be accepted with caution. 13. The twelve bore gun with five empty cartridges and two live cartridges, is said to be recovered under Ex. P/26 & Ex. P/27, on the information given by the accused himself. The witness to this recovery is PW. 18 Yadram. He is also witness for several other recoveries from the site. This Yadram has stated that accused Bhawani got the gun recovered on the next day after the incident. This means that it was recovered on 22nd Dec. 1985. But the recovery memos Ex. P/26 and P/27 show that the recovery was made on 30th Dec. 1985. This discrepancy is quite glaring and it cannot be ruled out that the recovery was made soon after the incident but only when Kishan accused could not be traced then this recovery was attributed to accused Bhawani. This recovery which is the important aspect of the prosecution case looses its value to some extent. 14. The recovery of empty and live 303 cartridges from inside of the Nohra coupled with the statements of some witnesses who have stated that there was some cross firing make the story given out by these witnesses as probable. The parties had rivallary for a long time and there was litigation pending between them and in order to start an incident in which both sides fired there ought to have been some reason as to why the incident started. All this is missing in this case. The parties had rivallary for a long time and there was litigation pending between them and in order to start an incident in which both sides fired there ought to have been some reason as to why the incident started. All this is missing in this case. In cross examination of witnesses, a theory has been put that during the day time the complainant side had taken away the crop of the accused side from the fields and when the accused went to remonstrate the complainant side and fired on them. Whether this theory is correct or not is not to be decided, but one thing is certain and it is that without any quarrel or development of some sort, the parties could not come to the stage of firing at each other. In absence of convincing evidence about the genesis of the case, the prosecution story losses much of its value. 15. How the actual incident took place is also not very clear. While preparing the site plan the police formed opinion that the accused came at the place 'E' which is on the south of the Nohara and then they fired from 'F', but then in the witness box, the witnesses have changed the statements. According to them the accused entered from the entrance of the Nohara and they fired from the place 'W', which is quite far away from 'F'. It could be possible that the police determined 'F as the firing place because empty cartridges and one live cartridge was found at that place. But then these were the bullets of 303 gun and not cartridges of a twelve bore gun. Firing from the place 'W' could not have hit the houses on the east side of the Nohara. Only related witnesses have supported the prosecution case and it is not supported by independent witnesses. This also goes to show that the incident occurred in some other manner. If the number of persons collect for purposes of opening firing on the other side, then they would all remain all in one side and not surround the place because in that case there would be a chance that they would also be hit by pellets. The story about 33 persons surrounding the Nohara has been introduced only to implicate a number of persons who were not actually at the site. The story about 33 persons surrounding the Nohara has been introduced only to implicate a number of persons who were not actually at the site. These persons have already been acquitted by the learned Additional Sessions Judge. 16. The learned Counsel for the appellants has relied upon Hakumat Rai v. State 1987 Cr.L.R. (Raj.) 718 , which was a gun shot case and it was held that where it was not shown in the site plan as to where the witnesses stood and from where the firing was done, it creates doubt as to the correctness of the prosecution story. 17. We may state here that a number of books on Fire Arms have been referred in order to show the general effect of firing in a particular case and as to the position of the wads after firing. As a general proposition we can say that pellets come out of shotgun and if several pellets has hit a person them the size of the pellet is small and if the pellet injuries are on one side only, then it would mean that there was no repeated shot. Wads travel some distance, but this distance is shorter than the distance travelled by pellets. We are in agreement with this propositions as pointed out by the learned Counsel for the appellants and it can be said that on the basis of the evidence in the case and the deposition about the recovery of empty cartridges and wads, it has not been proved that firing was gone by the accused either from the place 'F' or from the place 'W' The witnesses do not disclose as to how the accused entered the Nohara and whether they entered at all or did firing out side. In the present case, where the parties were on inimical terms for a long time, there ought to have been some fresh incident which encouraged them to open fired and this is not present in this case. The fact that the FIR was not lodged immediately or the version of the witnesses was not recorded immediately, also goes to show that time has been taken to build up a case. The fact that the FIR was not lodged immediately or the version of the witnesses was not recorded immediately, also goes to show that time has been taken to build up a case. When this is so the case cannot be accepted unless it is proved logically with reference to the circumstances that firing was made by these accused and this led to the deaths of the two deceased and injuries to others. It has been seen above that the story of abduction of Ramsingh Mali has not been believed by the Additional Sessions Judge and this weakens the testimony of the prosecution witnesses in other respect also. 18. On a appraisal of the evidence in the case as a whole we are not satisfied that the case against the accused appellants has been proved beyond reasonable doubt, reasons for which have already been discussed above. 19. We, therefore, accept this appeal and set aside the conviction and sentence of the appellants for the offences under Sections 302, 148, 307 and 448 Indian Penal Code and Section 3/25 of the Arms Act. The accused appellants Bhawani and Hari Singh shall be released forthwith if not wanted in any other case.Appeal Allowed. *******