JUDGMENT 1. The District and Sessions Judge, Bharatpur has convicted the appellant Section 302 and 307 IPC and sentenced him as under:- U/s. 302 IPC Life Imprisonment and fine of Rs. 500/-. U/s. 307 IPC Seven Years Rigorous Imprisonment and a fine of Rs. 500/-. In default of payment of fine to further undergo 3 months R.I. Against this conviction made on 24th January, 1990, the appellant Dalvcer has preferred this appeal. Along-with Dalveer, his father Ramjilal was also tried for the same offence but he has been given the benefit of doubt and acquitted. 2. The first information report in this case was lodged by PW/7 Devi Singh and the report is Ex P/18. According to this first information report, the incident out of which the case arises occurred on 29th June, 1988 in the morning time Ramjilal and Dalveer were digging sand near the house of Dalveer, who was the uncle of Devi Singh. At that time Rajveer and Vipti told them not to do so but they persisted and when there was some further exchange of hot words. Dalveer ran towards his house, took a gun and went to his roof, then fired at Vipti. The second fire was made at Rajveer. They started running then Dalveer fired again and one girl Mahadevi was also injured. For Ramjilal it was alleged that he gave blows by lathi. A number of persons namely Budha and Darab Singh also came there, soon after the incident. The injured persons were sent to the hospital for treatment. This report was made at Police Station Kumher and upon this, a case under Sections 323,307 and 34 IPC was registered. Rajveer expired on the same day and the case was also registered under Section 302 IPC. 3. PW/1 Dr. Bhopal Singh, conducted post mortem on the body of Rajveer and he found the following injuries:- "1. Multiple round fire arm wounds (entry) about 15 present on right back lower ⅔ and on right mid axillary line producing separate openings in an area of 10" diameter without causing blackening scortching or tatooing. 2. Three found fire arm entry wounds present on right abdomen lower ⅔1 on iliac crest without causing blackening scortching. The wounds were each of size 0.3 cm x 0.3cm. Direction of injury No. 1 was from back side and injury No. 2 was from front side. 3. 2. Three found fire arm entry wounds present on right abdomen lower ⅔1 on iliac crest without causing blackening scortching. The wounds were each of size 0.3 cm x 0.3cm. Direction of injury No. 1 was from back side and injury No. 2 was from front side. 3. Round entry fire arm wound two on right arm lower 1 /3rd outer side and one on front side. No blackening or scortching found." 4. The same Doctor examined the injuries of Ishwari Prasad, Mahadevi and Bipati. The injuries received by these persons may also be re-produced to get a clear picture of the injuries caused by firing. These injuries are as under:- Ishwari Prasad: One round punctured red lacerated wound 0.2cm x 0.2cm on left neck back side. Surrounded skin was abrased. There was no blackening, scortching and tatooing on surrounding skin. Mahadevi: One transverse red lacerated wound 21/2cm x 1/2cm x skin deep right middle parietal on the top of the head. The injury was simple. Bipati: 1-Oblique red lacerated wound 5cm x 1/2cm x bone deep on right on fronto parietal and 11cm above right eye brow and right ear. 2. Multiple oval fire arm wound of entry on right thigh, right leg outer side, producing separate openings in an area of vertically 18" and transversely 7" on right thigh from right hip joint to right thigh lower 1 /3rd and vertically 11" and transversely 4" on right leg middle to right leg lower 1 /3rd on the outer side. The distance between both sides was 9" i. e. no injury seen on right knee joint. The side of each wounds were Jem x0.3cm without blackening, scortching and tatooing. 3. One fire arm wound was present on left leg middle having the size of 0.3cm x 0.3cm The direction of firearm wounds were from front side and lower to upper side. Injury No. 2 was caused by firearm and injury No. 1 was caused by blunt object. Bipati was operated and Dr. R. D. Goyal, who is court witness No. 1 extracted three pellets and they were sent for examination. 5. Harbhan Singh, A.S.I. Police Station Kumher, PW/10 was the investigating officer and according to him he proceeded to the site after registering the case. He prepared the site plan Ex.P/9. Bipati was operated and Dr. R. D. Goyal, who is court witness No. 1 extracted three pellets and they were sent for examination. 5. Harbhan Singh, A.S.I. Police Station Kumher, PW/10 was the investigating officer and according to him he proceeded to the site after registering the case. He prepared the site plan Ex.P/9. He recovered blood stained soil as well as sample soil from the site as well as the pellets and words and sealed them. As the injured had already been taken to the hospital, he went to the hospital at Bharatpur and learnt that Rajveer had already died. He recovered the gun on the basis of the information given by Dalveer from the house of Ramjilal. Lateron he corrected that the gun was recovered from the house of Ramjilal when he went there to make a search. 6. The learned Sessions Judge, to whom the case was committed framed charges against the accused examined the witnesses and after recording the statements under Section 313 Cr.P.C. convicted only Dalveer as aforesaid. It may be stated here that the learned Sessions Judge, arrived at the conclusion that the first information report which was given at the police station but it was actually anti timed as investigation had already been started prior to the preparation of the report Ex. P./18. This first information report was held to be inadmissible in evidence as it was hit by Section 162 Cr.P.C. In arriving at this conclusion, he referred to the various statements under Section 161 Cr.P.C. in which the first information report number had been entered subsequently. The eye-witnesses in the case, PW/2 Ishwari and PW/6 Bipati who were also injured by pellets were considered to be main witnesses in the case and on basis of their testimony it was concluded that it was the appellant Dalveer, who had fired at them and Rajveer. 7. The learned counsel for the appellant has attacked the findings of the learned Sessions Judge on a number of grounds. According to him, the witnesses have not narrated the incident in the manner it occurred and even the genesis of the incident is not known. According to him, these witnesses cannot be believed. 7. The learned counsel for the appellant has attacked the findings of the learned Sessions Judge on a number of grounds. According to him, the witnesses have not narrated the incident in the manner it occurred and even the genesis of the incident is not known. According to him, these witnesses cannot be believed. It has been contended that as already accepted by the learned Sessions Judge, the main first information report has been suppressed and a new one has been substituted in its place, which was recorded after the statements under Section 161 Cr.P.C. were recorded and this is inadmissible in evidence. The prosecution has changed the place of incident and this has been done in order to make out a case that the injured persons and the deceased were attacked when they were inside their houses, when actually the pellets injury could not hit them when they were in their houses. The evidence of the prosecution witnesses is also attacked on the ground that they have changed their version after the first witness PW/I, Dr. Bhopal Singh was examined in the case. The story has been changed in order to be in lines with the medical evidence. Another contention of the learned counsel for the appellant is that material witnesses have not been produced in the case. It has come in the evidence that Rajasthan Armed Constabulary was posed in the village at the time the incident occurred and on hearing the gun shot some RAC personnel had reached on the site and actually they were the persons who had informed about the incident at the Police Station, Kumher. The first version of the incident has been suppressed and the RAC people have not been examined as witnesses. It has also been pointed out that the investigation in the case does not give out as to what was the place of occurrence and from where the pellets and wads were recovered. As the recovery memo Ex. P/20 merely shows that the pellets and wads are recovered from the place of incident but which is this place of incident is not known. The exact place has not been shown in the site-plan Ex. P/5. The report Ex. P/20 also shows that Constable Mahendra Singh collected the pellets and wads and sealed them but this person has not been examined as a witness. The exact place has not been shown in the site-plan Ex. P/5. The report Ex. P/20 also shows that Constable Mahendra Singh collected the pellets and wads and sealed them but this person has not been examined as a witness. There is nothing in the site plan or in the evidence to show that from which place these pellets and wads recovered. 8. As against this, the learned Public Prosecutor has supported the findings arrived at by the learned trial court and contended that on the basis of the evidence of the eye-witnesses, the case of the prosecution stands proved against the accused appellant. 9. In order to consider the contentions, which have been raised on behalf of the appellant, we may first look into the statements of the main witnesses namely Ishwari PW/2 and Bipati PW/6. From the testimony of these witnesses it is to be seen as to what was the cause of the incident and how the occurrence started. It may be mentioned that the houses of Ishwari, Ramjilal and Dalveer accused faces each other and are across the road. By the side of the house of Ishwari is a sand mound commonly known astilaand it was on thistilathat Ramjilal & Dalveer were digging sand. Rajveer objected to this and this resulted in both the parties abusing each other. According to PW/2 Ishwari, Ramjilal told his son Dalveer to fetch his gun and kill those persons. Upon this, Dalveer went to the roof of hi- house with a gun and started firing. The first shot hit Bipati on his leg and se'ond hit Rajveer on his back and when he was in the chowk of the house the third fire also hit Rajveer and the fourth one hit Ishwari. The fifth fire went blank and upon this Ramjilal told that Bipati is live and with the intention of killing him, Ramjilal gave a blow by lathi on his head. Earlier Mahadevi was alleged to have been hit by pallet but in court PW/2 Ishwari stated that Mahadevi fall down at that time and received an injury on her hand. According to him, Bipati was injured at his own house while Ishwari himself was injured in another house. Earlier Mahadevi was alleged to have been hit by pallet but in court PW/2 Ishwari stated that Mahadevi fall down at that time and received an injury on her hand. According to him, Bipati was injured at his own house while Ishwari himself was injured in another house. For Ramjilal it has been stated that when the first shot hit him, he was on the tila but then he fell down in the chowk and the second shot hit him when he was in the chowk. Actually it not known on which place blood was found and from which place the blood stained soil was collected. From the site plan Ex. P/9, it aopears that Ramjilal was close to Ishwari and Rajveer when shots were fired on them and it can be said that he was within the range of the pellets and it was possible he could also have been hit by the same. In such a situation, it is not possible to expect from a person to fire on persons when his own father is standing near them. Taking send from the tilaalso appears to be a very minor matter and it is difficult to understand that Dalveer would start firing only for the reason that Rajveer objected to their taking sand. The reason appears to be something else but the same have not been disclosed. It may also be stated here that according to PW/1 Dr. Bhopal Singh, the fire at Rajveer had been made from the same level i.e. the assailant as well as the injured were standing at the same level and if the gun had been fired from the roof, the level cannot be the same. We have looked into the site plan Ex. P/9 and the site inspection report, which was prepared by learned Sessions Judge and from the same it cannot be said that the level of the roof of the house of Ramjilal is same to the level of chowk of Ishwaris house. By this also, the story of the prosecution that Dalveer fired from the roof of his house does not stand corroborated. Here we may refer that all the injuries of Bipati, according to the PW/1, Dr Bhopal Singh, have been caused by pellets coming from the direction of lower to higher side. By this also, the story of the prosecution that Dalveer fired from the roof of his house does not stand corroborated. Here we may refer that all the injuries of Bipati, according to the PW/1, Dr Bhopal Singh, have been caused by pellets coming from the direction of lower to higher side. Again we consider the level of the roof of Ramjilal and the chowk of Bipati, it is impossible to hit at the angle at which the injuries were found on Bipati and the story of firing from roof is absolutely unbelievable as it is contradicted by circumstances, and medical evidence. 10. The statement of PW/6 Bipati is similar to that of PW/2, Ishwari and he has also stated that the incident started when Rajveer told Ramjilal and Dalveer not to dig sand at the site of the tila. On Ramjiials extortion Dalveer went to his house, took his gun, went on the roof and started firing. He mentioned that he was in his own house but in order to become a witness to the firing at Rajveer he has stated that after he received injury on his leg he heard a second shot and screams of Rajveer and when de went towards that side, he saw the third shot hitting the chest of Rajveer. He has also changed the version as to how the injury of Mahadevi was caused when it was learnt that her injuries had not been caused by pellets. He has not been believed by the learned Sessions Judge that he saw the injuries which had been cause to Rajveer. As he was in his own court yard he could not see as to what was happening in the house of his neighbour. These two witnesses Ishwari and Bipati have not come out with the correct version as to how the incident occurred. In these circumstances, it becomes difficult to place a complete reliance on them specially when their testimony is not corroborated in any manner by either circumstantial evidence or by evidence found at the site by the investigating agency. 11. In this case, in which one person died on account of gun shot injuries and two persons received injuries, we have no hesitation in saying that the investigation has bungled the case in all respects. 11. In this case, in which one person died on account of gun shot injuries and two persons received injuries, we have no hesitation in saying that the investigation has bungled the case in all respects. First of all the actual information which was received first in time, has not been recorded and placed on record and the person who conveyed this information has not been examined as a witness. The learned Sessions Judgs has already given a finding that the statements under Section 161 Cr. P. C. were recorded first and the first information report was registered latter. The first informat on report Ex. P/18 becomes inadmissible in evidence. Besides this, the place from which blood stained mud was recovered has not been indicated and when pellets and wads were recovered from the site it was very necessary that the exact place from where they were recovered should have been given in the site plan as well as in the recovery memo but the same is missing. It is oblivious that this is a deliberate attempt to confuse the matter and to see it that the clear picture is not brought before the court. When it is not possible to find out how and why the fire was made and it is not corroborated by madical evidence that the fire could not have been done from the roof of the house to the chowk of Bipati and Ishwari, then it is not possible to hold that Dalveer fired at Bipati and Rajveer from the roof of his house. The contention of the learned counsel for the appellant that the occurrence had taken place else where becomes probable. When there is doubt as to the manner in which the incident had occurred and the cause of the incident or why it started is not known and the circumstances shown that the prosecution has not been able to lead evidence which corroborates the essential facts then a doubt arises in the mind as to the guilt of the accused and the benefit of this doubt is to go to the accused. We have also seen that the witnesses have not been believed as far as the role of Ramjilal is concerned. The witnesses are not speaking the entire truth. We have also seen that the witnesses have not been believed as far as the role of Ramjilal is concerned. The witnesses are not speaking the entire truth. When part of their statement cannot be accepted then in order to accept some part of the testimony it is necessary that they should be witnesses who inspire confidence as regards the role of the accused appellant. However, as we have seen above, they have changed their versions in order to make them in accordance with the medical evidence and Bipati has even tried to become an eye-witness to the injury of Rajveer when actually he could not have seen that part. All these circumstances make it difficult to believe these witnesses as regards the role of the appellant Dalveer. 12. In view of our assessment of the statements of the eye-witnesses and the lacunas in the investigation made by the police. We give the accused the benefit of doubt and his conviction and sentence deserve to be set aside. This appeal is accepted and conviction and sentence of the appellant are set aside. The accused appellant is in jail and he shall be released forthwith if not wanted in any other case.A copy of this judgment be sent to the DIG, Range, Bharatpur.Benefit of doubt, Acquitted. *******