Honble R.S. VERMA, J.—Learned Sessions Judge, Jodhpur, has convicted Panchi Ram for offence u/s 302, I.P.C. and has sentenced him to undergo imprisonment for life and to pay a fine of Rs. 200/- and in default to undergo further rigorous imprisonment for three months. Aggrieved, Panchi Ram has come in appeal to this Court. 2. Briefly stated, the prosecution story is that one Bhagirath s/o Ram Pratap R/o Modia Bishnoiyan in the State of Haryana had been murdered by Heera Ram. Said Heera Ram is also alleged to have stolen a tractor belonging to said Bhagirath. In this connection, a case u/s 302/379, I.P.C. had been registered on 25.8.83 at Police Station, Bhuna in the State of Haryana against the said Heera Ram. To evade arrest, Heera Ram aforesaid absconded. On 1.9.83 P.W. 1 Sahib Ram of Police Station, Bhuna came to Koja Ram Ki Dhani within jurisdiction of Police Station, Luni (Rajasthan) in search of said Heera Ram. P.W. 1 Sahib Ram was accompanied with A..S.I. Zile Singh (P.W. 2), Constables Zile Singh (P.W. 3), Rajendra Kumar (P.W. 4) and Balbir Singh and driver Randhir Singh. This party reached Koja Ram Ki Dhani the same day at about 3 p.m. It is alleged that besides the said police party, a separate party consisting of appellant Panchi Ram, Amilal brother of afore-said Bhagirath, Ram Kumar, Amar Singh D.W. 1, Richpal and Banwari also came to Madho Singh Ki Dhani on the same mission viz to apprehend Heera Ram. Appellant Panchi Ram carried his licensed SBBL twelve bore gun. Amar Singh and Richpal also carried their guns. This party came in a separate jeep hired from Pokar Earn P.W. 7. This Pokar Ram himself drove this party upto Ojha Ram Ki Dhani, where the party got down from the jeep. 3. Prosecution story further is that the police party at Koja Ram Ki Dhani came to know from Gawari P.W. 7 wife of Koja Ram that Heera Ram was loading firewood at Madho Singh Ki Dhani. Upon this information, the police party proceeded in the direction of Madho Singh Ki Dhani at a distance of about 3-4 furlongs from Koja Ram Ki Dhani. When the police party was at a distance of about 200 from Madho Singh Ki Dhani, it heard report of a gun having been fired. At this, P.W. 1 Sahib Ram divided his party in two groups. When the police party was at a distance of about 200 from Madho Singh Ki Dhani, it heard report of a gun having been fired. At this, P.W. 1 Sahib Ram divided his party in two groups. One group consisted of Sahib Ram, Balbir Singh and P.W. 4 Rajendra Kumar. The other group consisted of ASI Zile Singh P.W. 2 and Constable Zile Singh P.W. 3. The two parties approached Madho Singh Ki Dhani from two opposite directions viz Sahib Ram, Balbir Singh and Rajendra Kumar proceeded towards right flank of the Dhani while Zile Singh and Zile Singh proceeded towards the left flank of the Dhani. 4. The. prosecution story further is that when ASI Zile Singh and his companion were so proceeding, they heard two mors gunshots. Upon this ASI Zile Singh and Constable Zile Singh rushed towards the direction from which gunshots were heard. ASI Zile Singh and Constable Zile Singh spotted appellant at a distance of 75 firing the gun at Heera Ram. At that time, Heera Ram was already lying on the ground. Seeing this, ASI Zile Singh took out his service revolver and shouted at the appellant and asked him not to fire his gun again else he would shoot him. At this, appellant Panchi Ram threw his gun on the ground and the appellant raised both of his hands. ASI Zile Singh picked up the gun thrown by the appellant and apprehended the latter. At that time, the appellant had a cartridge-belt around his waist. ASI Zile Singh removed this belt which contained 4 live cartridges. At that time, Zile Singh and Constable Zile Singh spotted one person with a motor cycle standing nearby. Later on, he was ascertained to be P.W. 11 Surja Ram. They also saw Amilal brother of Bhagirath standing there. Amilal enquired from Panchi Ram as to what he had done upon which Panchi Ram replied that he had avenged his uncle. Soon afterwards, P.W. 1 Sahib Ram and his aforesaid companions reached there. ASI Zile Singh handed over the appellant, his gun as also cartridge-belt to Sahib Ram. ASI Zile Singh and Constable Zile Singh narrated the whole story to Sahib Ram. Soon afterwards, P.W. 1 Sahib Ram and his aforesaid companions reached there. ASI Zile Singh handed over the appellant, his gun as also cartridge-belt to Sahib Ram. ASI Zile Singh and Constable Zile Singh narrated the whole story to Sahib Ram. At this, Sahib Ram left constable Balbir Singh and Rajendra Kumar on the spot to keep guard over the dead body of Heera Ram and the site and himself along with the appellant, his gun and cartridge-belt went to Police Station, Luni. ASI Zile Singh and Constable Zile Singh also went with him to Police Station, Luni. Sahib Ram at 5,30 p.m. the same day-lodged a written report Ex.P. 1 at Police Station, Luni with regard to this incident. He produced the appellant, latters gun and licence before P.W.5 Doongar Singh, who was at that time incharge of Police Station, Luni. P.W. 5 Doongar Singh recorded an endorsement with regard to these facts on Ex. P. 1 and recorded a formal F.I.R. Ex. 13 for offence under sec. 302, I.P.C. and 27 Indan Arms Act and commenced investigation. 5. Doongar Singh arrested the appellant Panchi Ram vide Ex.P. 3. He also seized the gun as also the belt (bandoleer) produced by Sahib Ram vide Ex.P. 2 and duly sealed them. He was proceeding to the site when at that juncture P.W. 13 Padam Singh, S.H.O., Looni arrived and Doongar Singh handed over the investigation to him. 6. P.W. 13 Padam Singh accompanied with local Deputy Superintendent of Police Narayan Singh proceeded to the spot. He found dead body of Heera Ram lying at a distance of 297 from Dhani of Madho Singh. Amilal was also present there. He found 4 empty cartridges also lying at the spot-one at a dist-ance of l, two at a distance of 5 and another at a distance of 7 from the dead body. Padam Singh examind the site and prepared memo Ex. P. 4 and site plan Ex.P. 5. He examined the dead body and prepared memo Ex. P. 6. He recovered the wearing apparel and chappals of the deceased and duly sealed them vide Ex. P. 7. He found one purse in the pocket of the shirt of the deceased. He seized the same vide Ex.P. 8. He seized the empties lying on the spot and duly sealed them vide Ex. P. 9. P. 6. He recovered the wearing apparel and chappals of the deceased and duly sealed them vide Ex. P. 7. He found one purse in the pocket of the shirt of the deceased. He seized the same vide Ex.P. 8. He seized the empties lying on the spot and duly sealed them vide Ex. P. 9. He also recoverd blood stained and control soil and duly sealed them vide Ex. P. 10 and Ex. P. 12 respectively. He also seized a tractor allegedly stolen by Heera Ram vide Ex.P. 11. He also seized the Jeep of Pokar Ram vide Ex. P. 19. He also seized another jeep from possession of one Gopi Lal vide Ex. P. 20. 7. It appears that dead body of Heera Ram was taken to M.G. Hospital, Jodhpur by Head Constable Lal Mohd. of Police Station, Looni on 3.9.83, where Dr. Jagdish Juktawat P.W. 12 performed autopsy on the same, the same day at 11.30 a.m. The doctor found that post-mortem staining was present on the back and bluish discolouration was present on the face, chest and abdomen of the deceased. The face was swollen and tongue was protruding out. Eyes were bulging, Scrotum was swollen and abdomen was distended. He found the following external injuries on the dead body:— "1. A lacerated wound 4 cm x 4 cm x Muscledeep on Lt. thigh upper 1/3 portion antero-medial aspect (Entry). 2. A lacerated wound 6 cm x 3 cm x Muscle deep on Lt. thigh upper 1/3 portion on lateral aspect (Exit). 3. A lacerated wound 7 cm x 6 cm x Muscle deep on Rt. shoulder superior aspect. 4. A lacerated wound 12 cm x 6 cm x Muscle deep on Rt. fore arm postero Medial aspect upper 1/3 portion and elbow region. 5. A lacerated wound 4 cm x 2 1/2 cm x Muscle deep on Rt. side just behind the lower 1/2 portion of pinna, the ear lobe had been lacerated, the soft tissue of the area including muscles and blood vessels had been lacerated, there was laceration of trachea just below the thyroid cartilage and a few pellets 7 (seven) alongwith two sets of wad were lying in the trachea. 6. Multiple punctured lacerated wounds varying from. 6. Multiple punctured lacerated wounds varying from. 0.3 cm to 0.4 cm in diamster x Muscle deep present in an area of 12 cm in diameter on the antero lateral aspect of Rt. thigh hip joint region(l2) pellets recovered." All the aforesaid injuries were antemortem in nature and according to Dr. Juktawat, the case of death was shock as a result of firearm injuries caused to the deceased. According to him, death had occurred within about 36 to 48 hrs. prior to the neropsy. Dr. Juktawat found that injury No. 1 and 2 were communicating injuries meaning thereby that injury No. 1 was the entry wound and injury No. 2 was the exit wound. According to him pellets and wads were recovered from injury No. 5 and pellets were recovered from injury No. 6 and they were duly sealed. He was also of the view that injuries No. 3 and 4 could have been caused by a blunt object but opined that injuries No. 1, 2, 5 and 6 were gum shot injuries. He prepared postmortem report Ex. P. 23 in this regard. 8. P.W. 13 Padam Singh recorded the statements of witnesses. Various articles recovered and sealed in the course of investigation were kept in the malkhana of Police Station, Luni in custody of P. W. 8 Anoop Singh. He forwarded such sealed articles to State Forensic Science Laboratory, Jaipur through P. W. 6 Rajendra Kumar, who delivered them at the said laboratory in two lots viz on 27.9.83 vide Ex.P. 15 and on 29.9.83 vide Ex.P. 14. Reports Ex.P. 37 and Ex.P. 38 were received in this regard. According to Ex. P. 38 the gun (Wl)SBBL was serviceable and the four empties (C1 to C4) sent to the laboratory had been fired from the said gun. However, it was not possible to connect the recovered pellets with the gun. 9. After due completion of investigation, the appellant Panchi Ram was challaned before Munsif & Judicial Magistrate First Class, Jodhpur to stand trial for offence u/s 302, I.P.C. and u/s 27 of the Indian Arms Act. The learned Magistrate committed the accused to Sessions Judge, Jodhpur to stand trial for offence u/s 302, I.P.C. 10. Learned Sessions Judge, Jodhpur framed charge u/s 302, I.P.C. against the appellant on 14. 2. 84. The appellant pleaded not guilty and claimed trial. 11. The prosecution examined as many as 13 witnesses viz. The learned Magistrate committed the accused to Sessions Judge, Jodhpur to stand trial for offence u/s 302, I.P.C. 10. Learned Sessions Judge, Jodhpur framed charge u/s 302, I.P.C. against the appellant on 14. 2. 84. The appellant pleaded not guilty and claimed trial. 11. The prosecution examined as many as 13 witnesses viz. P. W. 1 Sahib Ram, P.W. 2 Zile Singh, P.W. 3 Zile Singh, P.W. 4 Rajendra Kumar, P.W. 5 Doongar Singh, P.W. 6 Rajendra Kumar, P.W. 7 Gawari, P.W. 8 Anoop Singh, P.W. 9 Ganesh Singh, P.W. 10 Pokar Ram, P.W. 11 Surja Ram, P.W. 12 Dr. Jagdish Jugtawat and P.W. 13 Padam Singh in support of its case. In his examination u/s 313, Cr. P.C. the appellant admitted that he had gone to apprehend Heera Ram in the company of Amilal, Amar Singh s/o Dhan Raj, Amar Singh s/o Surja Ram (D. W. 1), Banwari, Ram Kumar, and Richpal along with the police party. He further admitted that he had his licenced gun with him. All these persons reached Koja Ram ki Dhani where they were informed that Heera Ram had gone to Madho Singh ki Dhani. Upon this, the entire party split into two groups and proceeded ahead towards Madho Singhs Dhani. These people spotted Heera Ram near Madho Singhs Dhani and Heera Ram seeing them tried to start the tractor and run away with the same. But the tractor could not be started. Upon this Heera Ram took to his heels. In the meanwhile, P.W. 11 Surja Ram came there on a motor-cycle. Amilal beckoned Surja Ram to stop. He (Amilal) then snatched appellants gun and blandoleer and climbed the pillion of the motorcycle and chased Heera Ram. Heera Ram stopped at some distance. Amilal gave 2-4 blows from the butt of the gun to Heera Ram, apprehended Heera Ram and tried to bring Heera Ram towards his (Ami Lals) companions. Heera Ram somehow managed to free himself from the clutches of Ami-Lal and started running. Thereupon, Amilal threatened to shoot him, but Heera Ram did not stop and started pelting stones towards Amilal. Amilal, thereafter, fired a shot at Heera Ram. Having been hit, Heera Ram fell down. When Heera Ram fell down, Amilal fired three more shots at Heera Ram. The appellant, Amar Singh s/o Dhan Raj and Ram Kumar had followed Amilal and Heera Ram. Amilal, thereafter, fired a shot at Heera Ram. Having been hit, Heera Ram fell down. When Heera Ram fell down, Amilal fired three more shots at Heera Ram. The appellant, Amar Singh s/o Dhan Raj and Ram Kumar had followed Amilal and Heera Ram. After they reached the spot, Surja Ram, Banwari and Richpal also came there. Then the appellant remonstrated with Amilal as to why he had done this. At this Amilal threw away the gun and the bandoleer. At this juncture Sahib Ram also reached the spot. He was followed by Zile Singh, ASI and other constables who took him and his companions to Luni Police Station. Thereafter, the police people took the appellant and his companions to the scene of occurrence, where they stayed for the whole night. The police people from Hariyana and Rajasthan made consultations with each other. The next morning, the police people called Amilal and held some consultations with him. Afterward, they told the appellant that he would be arrested as the licence of the gun stood in his name. Thereafter, he was duly arrested and produced before the Magistrate in the evening of 2nd. The appellant has stated that he was absolutely innocent and had been falsely implicated in the case. He examined D.W. 1 Amar Singh in his defence. 12. The learned trial Judge found the prosecution story reliable and worthy of credence and accepting the same convicted and sentenced the appellant as stated above. 13. In the present appeal, learned counsel for the appellant urges that the learned trial Court has committed a serious error in accepting the testimony of ASI Zile Singh and Constable Zile Singh, who claim to be alleged eye-witnesses of the occurrence. He has vehemently submitted that both these witnesses have given an untruthful account of the incident and their testimony deserves to be rejected out right. He has, however, candidly conceded that Heera Ram did die a homicidal death by gun-shots fired from the licenced gun of the appellant but these shots had been fired by Ami!al and not by him as alleged by the defence. To bolster up this argument, a number of contentions have been urged and it is submitted that the appellant deserves to be acquitted. To bolster up this argument, a number of contentions have been urged and it is submitted that the appellant deserves to be acquitted. Learned Public Prosecutor has opposed the appeal with matched vehemence and has urged that the testimony of ASI Zile Singh and Constable Zile Singh is non-partison natural and worthy of credence and was rightly accepted by the learned trial Judge. He submits that the appeal deserves to be rejected. 14. We have carefully considered the rival contentions and have perused the record. We may straightway state that we have no hesitation in accepting this part of the prosecution story that Heera Ram did die a homicidal death on 1.9.83 near Madho Singhs Dhani and in fact he had been shot at by the licenced gun Art. 1 belonging to the appellant. Testimony of Dr. Juktawat coupled with the evidence pertaining to recovery of the gun and the empties and their ballistic examination leaves no manner of doubt about this part of the story, which has not been challenged by the learned counsel for the appellant. However, we have to examine if the finding of the trial court viz it was the present, appellant who had fired the fatal shots, is correct. 15. According to the prosecution, the firing of fatal shots on deceased Heera Ram was witnessed by Amilal, (not examined), P.W. 11 Surja Ram, P.W. 2 ASI Zile Singh and P.W. 3 Constable Zile Singh. Learned counsel for the appellant contended that non-examination of Amilal adversely affects the veracity of the prosecution story and hence it should not be believed. Learned Public Prosecutor points out that Amilal was a brother of Bhagirath, who had been murdered by Heera Ram. Appellant was a cousin of said Bhagirath and Amilal was thus related to appellant also. Hence, Amilal could not be expected to support the prosecution story. Hence, non-examination of Amilal did not affect the reliability of the prosecution story. In this connection, he has placed reliance upon Ram Prasad vs. State of U.P. (1), wherein following proposition was laid down :— "It is no doubt true that the prosecution is bound to produce witnesses who are essential to the unfolding of the narrative on which the prosecution is based. In this connection, he has placed reliance upon Ram Prasad vs. State of U.P. (1), wherein following proposition was laid down :— "It is no doubt true that the prosecution is bound to produce witnesses who are essential to the unfolding of the narrative on which the prosecution is based. Apart from that, it cannot be laid down as a rule that if a large number of persons are present at the time of the occurrence, the prosecution is bound to call and examine each and every one of these persons. The answer to the question as to what is the effect of the non-examination of a particular witness would depend upon the facts and circumstances of each case. In case enough number of witnesses have been examined with regard to the actual occurrence and their evidence is reliable and sufficient to base the conviction of the accused thereon, the prosecution may well decide to refrain from examining the other witnesses. Likewise, if any of the witnesses is won over by the accused party and as such is not likely to state the truth, the prosecution would have a valid ground for not examining him in court. The prosecution would not, however, be justified it not examining a witness on the ground that his evidence even though not untrue would go in favour of the accused. It is as much the duty of the prosecution as of the court so ensure that full and material facts are brought on the record to that there may be no miscarriage of justice. The discharge of such a duty cannot be affected by the consideration that some of the facts if brought on the record would be favourable to the accused. In case the court finds that the prosecution has not examined witnesses for reason not tenable or not proper, the court would be justified in drawing an inference adverse to the prosecution". In our opinion, when there were only four eye-witnesses of the occurrence and two of the witnesses belonged to the police party, the prudent course for the prosecution was to have examined Amilal. It was all the more necessary in view of the suggestion . of the defence to P.W. 1 Sahib Ram that it was Amilal who had committed this murder. That would have given the defence an opportunity of putting forward its version to Amilal. It was all the more necessary in view of the suggestion . of the defence to P.W. 1 Sahib Ram that it was Amilal who had committed this murder. That would have given the defence an opportunity of putting forward its version to Amilal. The defence has been deprived of this legitimate right. This is true that Amilal is said to be related to the appellant but no direct relationship between the two has been established. P.W. 1 Sahib Ram has stated that Amilal was real brother of deceased Bhagirath and Bhagirath and appellant were cousins. He admitted that he was not in a position to state how distantly the two were related. When it is so, it is difficult to accept the contention that he would not have supported the prosecution. In our opinion, non-examination of Amilal in these circumstances does throw a cloud of doubt on the veracity of the prosecution story. 16. Learned Public Prosecutor submitted that defence also could have examined Amilal and since defence has not done this, defence cannot make a complaint in this regard. To our mind, the contention is of devoid substance. Amilal could not be expected to own that he had fired gun shots at Heera Ram and had killed him. Hence, it is idle to suggest that defence could have examined him. By not producing Amilal defence has been prevented from an opportunity of cross-examining him and hence the complaint of the defence on this score is genuine. 17. P.W. 11 Surja Ram is said to be another independent eye-witness of the occurrence. He has not supported the prosecution story and, therefore, prosecution cannot derive much benefit from his statement. The learned Public Prosecutor in the trial court declared the witness hostile and cross-examined him at some length, but nothing has been elicited gin his cross-examination which may go to support the prosecution version. 18. This leaves us with the testimony of the star witnesses ASI Zile Singh and Constable Zile Singh, who have been found to be reliable and worthy of credence by the learned trial court. The gist of the testimony of P.W. 2 Zile Singh and P.W. 3 Zile Singh is to the effect that they were proceeding with Sahib Ram and other police personnel towards the Dhani of Madho Singh. The gist of the testimony of P.W. 2 Zile Singh and P.W. 3 Zile Singh is to the effect that they were proceeding with Sahib Ram and other police personnel towards the Dhani of Madho Singh. When these witnesses were at a distance of one furlong from Dhani of Madho Singh, they heard a report of a gun having been fired. On this ASI Zile Singh and Constable Zile Singh ran in the direction of the place from where the report of the gun was heard. These two persons proceeded towards Dhani of Madho Singh from the left flank while Sahib Ram and the other Constables ran towards the right flank of the Dhani. When these persons were so rushing, they heard two more reports of gun fire. When ASI Zile Singh and Constable Zile Siegh rushed forward, they spotted Panchi Ram at a distance of about 70-75 ft. They also saw Panchi Ram appellant firing his gun at Heera Ram, who was lying on the ground. Upon this ASI Zile Singh took out his service revolver and shouted at the appellant that if the appellant fired any more shots, he (Zile Singh) would shoot the appellant. At this, appellant Panchi Ram threw his gun on the ground and raised both of his hands. Thereafter, ASI Zile Singh picked up the gun lying on the ground. He found that appellant was carrying a cartridge-belt around the waist. He took this belt in his possession and found four live cartridges therein. These witnesses also saw Surja Bam standing with a motor cycle and also saw Amilal standing there. The testimony of these two witnesses, is that meanwhile Sahib Ram and his companion constables reached there and ASI Zile Singh narrated the entire incident to him and handed over the appellant, the gun and the cartridge-belt to him. 19. The prosecution case is that Sahib Ram, ASI Zile Singh and Constable Zile Singh along with the appellant, his gun and cartridge-belt went to Police Station, Looni where Sahib Ram lodged a formal written report Ex.P. 1 regarding this incident. Constables Balbir Singh and Rajendra Kumar were left on the spot by Sahib Ram to keep guard on the dead body and the site. 20. Constables Balbir Singh and Rajendra Kumar were left on the spot by Sahib Ram to keep guard on the dead body and the site. 20. The difficulty with the testimony of these witnesses is that the report lodged by Sahib Ram does not even suggest that both these witnesses had seen the appellant firing the gun. It does not name these two persons as eye-witnesses of the occurrence. The F.I.R. does not give out the story that Sahib Ram and his companions had split into two groups and the group consisting of ASI Zile Singh and Constable Zile Singh had proceeded ahead towards the left flank of Madho Singhs Dhani. It does not mention that ASI Zile Singh and Constable Zile Singh had seen the appellant firing a shot at the deceased when he was already lying down on the ground. It does not mention that ASI Zile Singh threatened to shoot the appellant in case he fired any further shots. It does not mention that on command of ASI Zile Singh, the appellant had thrown his gun. It does not further mention that appellant was apprehended by Zile Singh ASI. It does not mention that the gun and the cartridge-belt of the appellant had been taken in possession by ASI Zile Singh. On the contrary F. I. R. Ex. P. i merely mentions that Amilal with the help of Surja Ram had apprehended Heera Ram and at that time Panchi Ram fired his gun three or four times. Upon which Sahib Ram along with his companions rushed towards Madho Singhs Dhani and apprehended the appellant along with his gun. Sahib Ram has admitted that he scribed the F.I.R. Ex.P. 1 in Police Station, Luni and both ASI Zile Singh as well as Constable Zile Singh were present with him. He has admitted that Ex. P. 1 was in his own hand. He has further admitted that very day in the evening, he was interrogated by police with regard to this incident. He has also admitted that prior to his scribing report Ex. P. 1, all the things in connection with the incident had been narrated to him. He has admitted that yet he did not inform "Thanedar Luni" that both Zile Singh were eye-witnesses of the occurrence. 21. He has also admitted that prior to his scribing report Ex. P. 1, all the things in connection with the incident had been narrated to him. He has admitted that yet he did not inform "Thanedar Luni" that both Zile Singh were eye-witnesses of the occurrence. 21. Now, if ASI Zile Singh and Constable Zile Singh had really seen the occurrence and both of them had narrated the same to Sahib Ram prior to " the scribing of Ex. P. I, Sahib Ram could not have failed to make a mention of these important details in the F.I.R. Why he did not chose to mention these details in Ex. P. 1 passes our comprehension. He was not a lay man. He was an experienced police officer with some standing. Yet, he did not bother to state the broad features of the incident in Ex. P. 1. No cogent or convincing explanation has been put forward for these vital omissions in the FIR. Learned trial court brushed aside these material omissions by observing that if the F.I.R. did not mention these minute details, it did not detract from the worth of the prosecution case. In our opinion, the learned trial Judge fell in serious error in characterizing these broad features of the prosecution case as minute details. That Zile Singh ASI and Zile Singh Constable were the eye-witnesses of the incident was not a mere minute detail but was a vital factor of the prosecution story that ASI Zile Singh ordered the appellant not to shoot further and threatened to shoot him if he disobeyed was also not a matter of minute detail; like wise, the fact that the appellant threw his gun and the gun was picked up by Zile Singh was not merely a matter of minute detail; the fact that ASI Zile Singh apprehended the appellant was again not a mere minute detail. Ail these facts constituted the basic substratum of the prosecution story. In an F.I.R. made soon after the occurrence, omission of such features by its maker, who had been acquainted of these basic features creates a reasonable doubt about the veracity of the prosecution story. 22. There is another very important aspect of the matter. Ail these facts constituted the basic substratum of the prosecution story. In an F.I.R. made soon after the occurrence, omission of such features by its maker, who had been acquainted of these basic features creates a reasonable doubt about the veracity of the prosecution story. 22. There is another very important aspect of the matter. According to the prosecution story Sahib Ram along with the appellant, his gun and his bandoleer reached the police station in company of ASI Zile Singh and Constable Zile Singh P.W. 5 Doongar Singh admitted in his cross-examination that Sahib Ram was accompanied with Rajendra Kumar, ASI Zile Singh and Constable Zile Singh and driver Ranveer Singh. He has further stated that these persons had brought a written report and they had stayed in the police station for three hours. It is surprising that the statements of these witnesses were not recorded by Doongar Singh even though they remained in the police station for three hours and Zile Singh ASI and Constable Zile Singh claimed to be the eye-witnesses of the occurrence. There is no reasonable explanation available on record for non-examination of these two important alleged eye-witnesses, the same day even when they were available to the Investigating Officer for three hours. 23. ASI Zile Singh and Constable Zile Singh claimed that three shots had been fired from the gun before they reached the scene of occurrence. According to both of them, they saw appellant firing the 4th and final shot at the deceased and soon thereafter, the appellant threw the gun on the ground and the same was picked up by Zile Singh. Persons can lie but not circumstances. An SBBL 12 bore gun has to be manually operated to eject a fired cartridge. P.W. 2 Zile Singh ASI and P.W. 3 Zile Singh Constable do not state that they had seen the appellant operating the gun and ejecting the fired cartridge. Admittedly no fired cartridge was found in the gun itself. If ASI Zile Singh and constable Zie Singh, really saw the appellant firing the 4th shot at the deceased and soonafter Constable Zile Singh threatened to shoot him and the appellant threw his gun on the ground, then the 4th and the final fired cartridge ought to have remained in the chamber of the gun itself. No such empty was recovered from the gun. No such empty was recovered from the gun. As already stated, all the empties were found lying at the scene of occurrence. This circumstance unerringly points out that whomsoever had fired 4th and final shot at the deceased, had got an opportunity of emptying the gun of the last fired cartridge which was allegedly recovered from the scene of occurrence. Had these two witnesses really seen this part of the incident, it is but natural they would have mentioned this vital and salient feature of the occurrence in their testimony. Both these witnesses are silent on this aspect of the matter and this creates a good deal of doubt if they had really seen the appellant firing a shot at the deceased. This circumstance discredits the testimony of ASI Zile Singh and Constable Zile Singh that they had seen the appellant firing the gun at the deceased. 24. Learned Public Prosecutor has urged that discharging a fired cartridge from the gun must have taken a fraction of a minute and both the witnesses were at a distance of 75 or so and hence they might not have noticed the appellant ejecting the fired cartridge. This argument does not hold any water. Manually operating a breach loading gun to eject an empty was such a fact which could not have escaped the notice of the trained eyes of an ASI and a Constable, who were face to face with the alleged assailant and one of them had allegedly aimed his service revolver at the assailant, so as to prevent him from using his gun further. This circumstance gains great importance, when we find that both these witnesses were not named as eye-witnesses of the incident in the F.I.R. 25. There is one, apparently insignificant, but vital aspect of the evidence of ASI Zile Singh and Constable Zile Singh, which deserves to be mentioned at this juncture. P.W. 3 Constable Zile Singh has tried to introduce an extra-judicial confession of the appellant, when he stales "Zile Singh ASI told the appel-lant what have you done at this, the accused stated I have avenged my uncle. Now, this story is not supported by ASI Zile Singh. ASI Zile Singh does not speak of any such conversation between himself and the appellant. He, however, gives an entirely different account of the alleged conversation, which is said to have taken place at the spot. Now, this story is not supported by ASI Zile Singh. ASI Zile Singh does not speak of any such conversation between himself and the appellant. He, however, gives an entirely different account of the alleged conversation, which is said to have taken place at the spot. According to him, it was Amilal, who asked the accused as to what had he done. He, however, does not state that appellant made any reply. Thus, we find that the evidence of these two witnesses is discrepant on this point. However, we need not attach much importance to this discrepancy in itself. 26. Had ASI Zile Singh and Constable Zile Singh stated to Sahib Ram on the spot that they had witnessed the crime, Sahib Ram would have definitely mentioned this fact in his statement recorded u/s 161, Cr. P.C which was admittedly recorded the same day. He would have also mentioned this fact that ASI Zile Singh had apprehended the accused and had seized his gun. In this statement, Ex. 0. 1, portion A to B, duly proved by the Investigating Officer, the witness stated that he had overpowered the accused and had seized the gun after reaching to the spot with his companions. He was pointedly put a question that both in F.I.R. and his statement recorded u/s 161 Cr. P.C. this fact was not mentioned that the two Zile Singhs were eye-witnesses of the incident. He has admitted the position and has stated ^^ckr lgh gS fd ?kVuk okys fnu eSaus Fkkusnkj yw.kh dks ugha crk;k fd nksuksa ftysflag izR;{knkhZ lk{khx.k gSA This admission of the witnesses exposes the crude attempt of ASI Zile Singh and Constable Zile Singh to claim that they were really eye-witnesses of the incident. 27. There is yet another hurdle in accepting the testimony of these witnesses. We have already adverted to the fact that though both these witnesses remained in Police Station Luni after lodging of the F.I.R. for three hours, their statements were not recorded the same day. The statements of these witnesses were recorded the next day. There is, as already stated, no cogent explanation why these witnesses were not examined the same day. We have already adverted to the fact that though both these witnesses remained in Police Station Luni after lodging of the F.I.R. for three hours, their statements were not recorded the same day. The statements of these witnesses were recorded the next day. There is, as already stated, no cogent explanation why these witnesses were not examined the same day. P.W. 3 Zile Singh has admitted:- ^^esjs c;ku 2-9-83 dks SHO yw.kh us djhc 1&1@2 cts ekSds ij fy;s FksA c;ku ls iwoZ eSaus fdlh dks ugha dgk fd eSaaus vfHk;qDr iaNhjke dks cUnwd pykrs gq, viuh vka[kksa ls ns[kk gSA He has further admitted that the Investigating Officer had inspected the site earlier in the morning i.e. on the second day of the incident. It is surprising that even when the site was being inspected, this witness did not inform any body that he had seen the occurrence. In his examination-in-chief, Sahib Ram has deposed that the incident was narrated to him by Zile Singh ASI He does not say that Constable Zile Singh also told him of the occurrence. In his cross-examination, on page 22 of the paper book, he claims that both Zile Singhs had narrated the incident to him. This is belied by the statement of P.W. 3 Zile Singh extracted above. 28. Admittedly, Sahib Ram was not an eye-witness in this case. The alleged eye-witnesses were two Zile Singhs, Surja Ram and Amilal. It is natural to expect that Investigating Officer should have kept these persons present while inspecting the site. It does not appear that Investigating Officer kept any one of these witnesses present except Amilal while inspecting the site. Ex.P. 4 is the memo prepared on the spot by the Investigating Officer. It does not bear signatures of ASI Zile Singh or Constable Zile Singh. It does not even recite their presence. Ex. P. 5 is the site plan. It also does not bear signatures of ASI Zile Singh or Constable Zile Singh. It bears signatures of Investigating Officer Padam Singh and Dy. S.P. Narayan Singh. Padam Singh does not state that ASI Zile Singh or Constable Zile Singh were taken by him to the site or they were present when the site was inspected. This aspect of the matter assumes greater significance, when we find that Investigating Officer Padam Singh himself did not prepare the site plan. S.P. Narayan Singh. Padam Singh does not state that ASI Zile Singh or Constable Zile Singh were taken by him to the site or they were present when the site was inspected. This aspect of the matter assumes greater significance, when we find that Investigating Officer Padam Singh himself did not prepare the site plan. He states that he got the same prepared under his supervision. We do not know actually who prepared this site plan. Ex. P, 5 mentions the place from where Zile Singh ASI is said to have witnessed firing of the fatal shot. Who gave this knowledge to the Investigating Officer is not clear. Ex.P. 5,, though mentions the place where ASI Zile Singh is said to have been standing, does not state where Constable Zile Singh or for that matter Surja Ram or Amilal were standing. ASI Zile Singh or Constable Zile Singh do not claim that they had shown the site to Padam Singh or they had pointed out the place where ASI Zile Singh was standing, When it is so, Ex. P 4 and Ex. P. 5 do not assist the prosecution. Rather, this is an infirmity in the prosecution story, which makes the story suspect. 29. Learned Public Prosecutor has urged that in the F.I.R., Sahib Ram had categorically stated that on hearing gun shots, he, along with his gejkfg;ku (companions) had rushed to the spot and apprehended the accused with his gun. It is urged that this recital in the F.I.R. should be treated as supporting the prosecution version because Sahib Ram has clarified in his cross-examination that word gejkfg;ku referred to constables Balbir Singh and Rajendra Kumar. To our mind this clarification by Sahib Ram is clearly an afterthought. A bare reading of Ex. P. 1 would go to show that termgejkfg;ku did not refer to these two constables alone but to the entire police personnel accompanying him. The clarification is not worthy of any credence and has to be discarded. 30. Learned Public Prosecutor has urged that the testimony of ASI Zile Singh and Constable Zile Singh should not be discarded merely because they were police officials. He is right when he says that testimony of the two witnesses cannot be discarded on the mere ground that they were police officials. 30. Learned Public Prosecutor has urged that the testimony of ASI Zile Singh and Constable Zile Singh should not be discarded merely because they were police officials. He is right when he says that testimony of the two witnesses cannot be discarded on the mere ground that they were police officials. We have not at all criticised the testimony of these witnesses on the ground that they were police officials. We are clear in our mind that testimony of police officials should be assessed in the same way as testimony of other witnesses. He next contended that Zile Singh ASI and Zile Singh Constable had no enmity with the appellant. There was absolutely no reason why they should try to implicate appellant falsely and protect Amilal. Hence, we should place implicit reliance on their testimony. We have bestowed our earnest consideration to this argument. This is true that ASI Zile Singh and Constable Zile Singh were not inimical to the appellant. However, there is one significant admission of Zile Singh P.W. 2 which gives a clue towards understanding the behaviour of ASI Zile Singh and Constable Zile Singh. Admittedly Sahib Ram had not named these two persons as eye-witnesses of the occurrence. Yet, the following narration of a conversation said to have taken place between this witness and Sahib Ram is revealing ASI Zile Singh has stated : ^^eSa o lkfgcjke rFkk vU; deZpkjh ek/kksflag dh <+k.kh ij jkr dks lkFk gh FksaA lkfgcjke us jkr dks eq>s crk;k Fkk fd eSaus rqEgsa FIR esa penhn xokg j[kk gS What led to this conversation, we do not know. The prosecution has not cared to clarify the circumstances under which this conversation was made. Had ASI Zile Singh really seen the occurrence, there was no occasion for Sahib Ram to remind him of this fact. A reminder like this from a superior officer to a subordinate was bound to have its own effect and to our mind this also casts a spell of doubt on the credibility of the prosecution story. 31. Learned counsel for the appellant contended that the medical evidence on record was not in keeping with the ocular evidence and hence also statements of two Zile Singhs deserve to be discarded. Learned Public Prosecutor has tried to show that there was no discordance between the ocular account and the medical testimony. We have examined this aspect carefully. 31. Learned counsel for the appellant contended that the medical evidence on record was not in keeping with the ocular evidence and hence also statements of two Zile Singhs deserve to be discarded. Learned Public Prosecutor has tried to show that there was no discordance between the ocular account and the medical testimony. We have examined this aspect carefully. P.W. 3 Zile Singh has deposed that appellant had fired the gun towards right ear of the deceased from a distance of 1 to 2 feet. Giving due allowance for the length of the barrel of the gun, this was definitely a close range fire. P.W. 3 Zile Singh has stated that the barrel of the gun was at a distance of 6 from the ear of the deceased, which again shown that the deceased had been shot at from a very close range. Such a close range fire was bound to leave its tell tale marks around injury No. 5, which is the injury on the right ear. Dr. Jagdish Juktawat has admitted in his cross-examination. "In the present case, there was neither any blackening or gun powder." He also stated that he found two sets of wads and seven pellets in the wound in the trachea. 32. Mr. R.L. Gupta in his Ballistic Firearms and Jurisprudence third edition revised by Mr. K.K. Gandhe and Mr. R.N. Saxena has observed as follows at page no. 232 Chapter IX:- "If the shot was fired from a close range there would be scorching of the skin or clothes, blackening of the surface, presence of unburnt or partially burnt powder grains, or presence of non-volatile products of combuation. None of these symptoms were found by Dr. Juktawat around injury no. 5. Thus, we find great substance in the contention that the medical evidence does not support the testimony of the two eye-witnesses ASI Zile Singh and Constable Zile Singh." 33. Dr. Juktawat admitted in his cross-examination that injuries no. 3 and 4 could have been caused by a blunt weapon and may not be gun shot injuries at all. This admission of Dr. Juktawat goes to show that injuries no. 3 and 4 were not necessarily gun shot wounds. If really these injuries would have been gun shot wounds, some pellets could have been embeded in them. No pellets are said to have been recovered by Dr. This admission of Dr. Juktawat goes to show that injuries no. 3 and 4 were not necessarily gun shot wounds. If really these injuries would have been gun shot wounds, some pellets could have been embeded in them. No pellets are said to have been recovered by Dr. Juktawat from these injuries and, therefore, we are inclined to hold that these two injuries must have been caused by some blunt object. There is no explanation whatsoever with regard to these injuries which further induces us to hold that ASI Zile Singh and Constable Zile Singh must not have witnessed the occurrence. Had they been really eye-witnesses of the occurrence, they could have explained these two injuries. 34. After having considered all the circumstances of the case, we are of the view that testimony of ASI Zile Singh and Constable Zile Singh cannot be relied upon to hold that they had seen the appellant firing the gun shot upon the deceased. 35. If we exclude the evidence of these two witnesses from consideration, there is no evidence on record to show that it was the appellant who must have fired gun shots at the deceased. 36. We may here state that the statement of an accused recorded under section 313, Cr. P.C has to be considered in the same manner as the statement of a witness. The theory projected by the appellant in statement under section 313, Cr. P.C. is corroborated by P.W. 11 Surja Ram. D.W. 1 Amar Singh also corroborates the statement of the accused appellant. 37. We may here state that the burden of proof on the appellant was not as heavy a burden as rests upon the prosecution to establish its case. It would suffice if the appellant is able to show that he has some plausible explanation and the same is not palpably false. In the present case, we may not loose sight of the fact that Amilal was the real brother of Bhagirath who had been murdered by deceased Heera Ram. Amilal was, therefore, very much interested in taking revenge upon Heera Ram. As compared Amilal, the present appellant was only a distant cousin and he could not have been as much interested in avenging the death of Bhagirath as Amilal was interested. Amilal was, therefore, very much interested in taking revenge upon Heera Ram. As compared Amilal, the present appellant was only a distant cousin and he could not have been as much interested in avenging the death of Bhagirath as Amilal was interested. In these circumstances, the possibility that Amilal might have snatched the gun of the appellant and might have hit Heera Ram with the butt of the gun and thereafter might have shot him cannot be said to be palpably false or unreasonable or improper. The prosecution has not been able to eliminate this possibility in this case beyond shadow of reasonable doubt. 38. This is true that Heera Ram had been killed by the licensed gun belonging to the appellant. But this factor is a neutral one in light of defence taken by the accused-appellant. 39. Some other contentions have also been raised before us by the learned counsel for the appellant but in view of our findings recorded above, we need not consider such contentions. 40. We may here state that grave suspicion does attach to the appellant and may be, the appellant himself might have shot at the deceased Heera Ram. But, suspicion, however, strong it may be, cannot take the place of reliable and cogent evidence and we can not concur in upholding the conviction of the appellant only on the basis of such suspicion. There is a great distance to travel between the two points "accused may have done" and "accused must have done." This distance has to be travelled by the prosecution on the basis of cogent and trustworthy and credible evidence. We find that in this case, the prosecution has miserably failed to traverse this distance. In the ultimate analysis we find that, the prosecution has failed to establish beyond reasonable doubt that it was the accused-appellant who had murdered Heera Ram by firing shot at him. The accused-appellant is entitled to benefit of this reasonable doubt. 41. We, accordingly, accept this appeal, set aside the conviction of the appellant for offence under section 302, I.P.C. and acquit him of the said charge by extending benefit of doubt to him. The accused-appellant is stated to be in custody. He shall be released forthwith if not required in any other case.