R.S. VERMA, J.—I have perused the judgment prepared by my learned brother Honble Justice Jain. I am in entire agreement with him that this appeal must succeed. However, I would like to state briefly the salient features of the case, which persuade me to concur with my brother. 2. There is absolutely no doubt that on 6-11-82, an incident did take place at about 5 p.m. at which deceased Hari Ram received a gun shot injury and in consequence thereof he breathed his last on 7-11-82 at about 7.15 a.m. in the Government Hospital at Sri Ganganagar. In this very incident, P. W. 1 Bhanwa Lal received two simple injuries by blunt object and two simple injuries by some sharp object (vide injury report Ex. P. 20). Also injured in this incident was P. W. 2 Krishna, who received four simple injuries by blunt object, one grievous injury by sharp object and one simple injury by sharp object (vide injury report Ex. P. 19), 3. Four persons were put up for trial after due investigation and due commitment viz. the present appellants Dharam Pal and Shankar and two co-accused, Krishna and Satpal. Learned trial Judge did not find the prosecution case established against Krishna and Satpal but found proved in respect of Dharam Pal and Shankar as noticed in the judgment of learned brother Honble N. K. Jain, J. 4. The gist of the prosecution story is that all the four accused Dharam Pal, Shankar, Sat Pal and Krishna are sons of one Sohanlal who owned and possessed Square No. 60/281 in village 9 DBN. Out of this land, 10 kilas bearing Nos. 1,2,9,10,11,12,19,20,21 and 22 forming one block had been sold to Hari Ram and his sons Om Prakash, P. W. 1 Banwari, P.W. 2 Krishna and P.W. 3 Hanuman some two years prior to the incident and the possession of these kilas had also been handed over to the vendees. However, the vendors retained possession over remaining other kilas of the square, which formed the eastern block of the square viz. Kila No. 3 to 8. 13 to 18 and 23 to 24 (vide Ex. P. 4 site plan and its legend Ex. P. 25). On Kila No. 13 stood the residential dhanli of the accused persons. 5. However, the vendors retained possession over remaining other kilas of the square, which formed the eastern block of the square viz. Kila No. 3 to 8. 13 to 18 and 23 to 24 (vide Ex. P. 4 site plan and its legend Ex. P. 25). On Kila No. 13 stood the residential dhanli of the accused persons. 5. It appears that the cattle of accused persons used to stray into the block of vendees and cattle of Hari Ram and his sons used to stray in the block of the vendors and because of this there was some straining of relations between the two sides. 6. The gist of the prosecution case further is that on the fateful day at about 5 p.m. P.Ws. 7 Banwarilal, Krishna and Hanuman and their father Hari Ram were busy in agricultural operation in their block. P. W. Hanuman was cutting guwar crop standing in Kila No. 21. P.W. 1 Banwari Lal and Krishna were cutting guwar crop standing in Kila No. 19. They were also removing the said crop to Kila No. 12, where Hari Ram was sitting. All of a sudden all the four accused named above entered the block of the vendees and they started abusing Hari Ram. At that time Dharam Pal was armed with a 12 bore gun, Shankar was armed with a pistol while Krishna and Sat Pal were armed with Kassis. When the accused-persons started abusing Hari Ram, P.W.l Banwari and P.W. 2 Krishna rushed to Kila No. 9. Hari Ram also reached that Kila 9. All of a sudden Dharam Pal fired his gun at Hari Ram hitting. Hari Ram on the left shoulder, with the result that Hari Ram fell there. Upon this P.W. 1 Banwari Lal snatched the gun from the hands of Dharam Pal. At this accused Sat Pal dealt various kassis blows to Banwari and Shankar fired his pistol at Banwari and his brothers but fortunately none was hit. Accused Krishna dealt Kassi blows to P.W. 2 Krishna. At this, Hanuman rushed from Kila No. 21 to Kila No. 9 with the result that all the accused persons ran away. Hanuman then went to village, brought a tractor and Banwari, Krishna, Hanuman brought Hari Ram to Suratgarh Police Station. P.W. 1 Banwari lodged a report of this incident viz. Ex. At this, Hanuman rushed from Kila No. 21 to Kila No. 9 with the result that all the accused persons ran away. Hanuman then went to village, brought a tractor and Banwari, Krishna, Hanuman brought Hari Ram to Suratgarh Police Station. P.W. 1 Banwari lodged a report of this incident viz. Ex. P. 1 at about 8 p.m. the same day and also produced the gun, which he had allegedly snatched from Dharam Pal. P.W. 10 Abdul Razak duly registered a case and seized the gun and duly sealed the same vide Ex. P. 2. He removed all the three injured persons to Government Hospital at Suratgarh and delivered Ex. P. 17 there. The Medical Officer at Suratgarh referred the injured to Government Hospital Shri Ganganagar the same night, and made an endorsement to this effect on Ex.P. 17. Abdul Razak recorded the statement of Hari Ram (Ex. P. 29) and removed the injured to Sri Ganganagar Hospital the same night where injured Hari Ram breathed his last. 7. The prosecution story further is that Dr. R.K. Gupta conducted autopsy on the dead body of Hari Ram on 7-11-82 at 11.30 a. m. and found one entry wound l"x3/4"x muscle deep. Pieces of wad were found embedded in this wound, which was surrounded by numerous entry wounds in an area of 7" x 4-1/2". He found as many as 18 wounds of exit. He recovered 20 pallets from these wounds. Beneath the wound, he found that arteries and veins in the delt-oid region had been lacerated and left numerous bone had been fractured. According to him, Hari Ram died due to shock and haemorrage as result of this injury which was ante-mortem in nature and was sufficient to cause death in the ordinary course of nature. Dr. R.K. Gupta also examined the injured Krishna and Banwari Lal and prepared injury reports Ex. P. 19 and Ex.P. 20. Usual investigation was made, a pistol was recovered at the instance of Shankar two kassis were recovered, one each at instance of Sat Pal and Krishna. Some other recoveries were also made, and the statements of witnesses were recorded. Upon such story, as stated already all the four accused were tried as aforesaid but participation of Sat Pal and Krishna was not found established, hence they were acquitted. However, the present appellants were held guilty as stated above. 8. Some other recoveries were also made, and the statements of witnesses were recorded. Upon such story, as stated already all the four accused were tried as aforesaid but participation of Sat Pal and Krishna was not found established, hence they were acquitted. However, the present appellants were held guilty as stated above. 8. The gist of the defence was that on the fateful day and the fateful time, accused Dharam Pal was in his dhani. Deceased Hari Ram, Banwari, Krishna and Hanuman (P.W. 3) came to the dhani of Dharam Pal and started abusing him. He protested at which Hanuman fired at him but Dharam Pal tilted himself and was saved but one pallet hit his son Kuldeep aged about 4 years. At this, appellant Shankar, who resided in the same dhani came there At that time Krishna PW.2 who had also a pistol fired at Dharam Pal but that too some how did not hit him. Thereupon Krishna P.W. hit Dharm Pal on the head with the pistol. Deceased Hari Ram and P.W. 1 Banwari were armed with lathis and they caused lathis blows to Dharam Pal. At this, Het Ram Bishnoi came there and challenged Hari Ram and his associates at which all these persons ran away. It is alleged that a report of this incident Ex. D. 4 was lodged the same day at P.S., Suratgarh. Dharam Pal and Kuldeep were medically examined and injury reports Ex. D. 11 and Ex. D. 12 were prepared in this regard. Police had also filed a charge sheet Ex.D. 5A in this regard against Banwari Lal, Hanuman and Krishna (P.Ws.5). Thus, it appears that the defence has taken the stand that deceased and his companions named above were aggressors and when Krishna P.W. wanted to fire again at Dharam Pal, he snatched the pistol from him and fired the pistol in self defence, which hit Hari Ram (vide statement of Dharam pal recorded u/s 313 Cr.P.C.) 9. This may be stated at the out set that the prosecution is required to prove its case beyond shadow of reasonable doubt. As against this, the defence is not required to prove its case to the hied and it is sufficient that the story put forward by the defence is highly probablised. This may be stated at the out set that the prosecution is required to prove its case beyond shadow of reasonable doubt. As against this, the defence is not required to prove its case to the hied and it is sufficient that the story put forward by the defence is highly probablised. One more principle which has to be kept in mind is that prosecution has to stand on its own legs and weakness or falsity of defence does not improve the case of the prosecution. 10. Now, in the present case, there are certain outstanding features which deserve to be noticed. All the three eye witnesses viz Banwari Lal, Krishna and Hanuman have tried to show that the appellants had committed criminal trespass in their field. The learned trial court has disbelieved this part of their testimony and both the appellants have been acquitted of charge u/s 447 I.P.C. Thus, the learned trial Judge has disbelieved these witnesses, when they depose that the appellants had entered their field. The result is that all the three eyewitnesses are not wholly reliable witnesses. Then, all the three witnesses, are partisan witnesses and are admittedly on inimical terms with the appellants. Hence, before the testimony of these witnesses can be accepted, it would require some corroboration from independent sources. It may be stated that the testimony of one infirm witness cannot be used to corroborate testimony of another infirm witness. 11. P.W. 1 Banwari Lal has stated that when appellant Dharam Pal fired the gun, this appellant was standing in Kila No. 8 and his father Hari Ram was standing in Kila No. 9. Hari Ram fell in Kill No. 9 itself. He has stated that Dharam Pal had fired the gun at Hari Ram from a distance of 4 to 5 Pavandas. According to him, one Pavanda was equal to 2 steps. P.W. 2 Shri Krishna has deposed that appellant Dharam Pal had fired at his father from a distance of 5 to 6 Pavandas. According to him, his father Hari Ram was standing in Kila No. 9 and on receiving the gunshot had fallen in that very field while Dharam Pal was standing on the boundary of Kila Nos. 8 and 9. According to him, his father Hari Ram was standing in Kila No. 9 and on receiving the gunshot had fallen in that very field while Dharam Pal was standing on the boundary of Kila Nos. 8 and 9. P.W. 3 Hanu-man had deposed that his father Hari Ram had gone to Kila No. 9 and Dharam Pal was standing in Kila No. 8 and had fired the gun from there. This statement of Hanuman is obviously untrue because he admitted in cross-examination that he himself did not see Dharam Pal firing a gun at Hari Ram. Now, all these three witnesses have admitted that by the time the incident took place, all of them had entered Kila No. 8 of the field viz. the field which was of the accused and was in their possession. This story is contrary to the story given in the F.I.R. in which it was alleged that all the accused had entered into the field of complainant party and then the gun shot was fired. Thus, the F.I.R. instead of corroborating the three eye witness runs counter to the version, which they have put forth during the course of trial. 12. P.W. 10 Abdul Razak has deposed that he had inspected the site at the instance of Banwari Lal and in the site plan he had shown the distance between the deceased and the appellant at the time of firing the gun as 21. He has categorically stated that this distance was entered at the instance of must- gees i.e. Banwaril Lal. In Ex. P. 4, the place from which appellant is said to have fired has been shown as point M, Hari Ram is said to have been standing at point L, where according to Investigating Officer blood stains were found. Thus, the prosecution story is that the appellant had fired the gun from a distance of 21. This fits in with the oral testimony of the aforesaid three witnesses. However, the independent medical evidence, instead of corroborating this evidence, discredits the same. Dr. R.K. Gupta has categorically stated that pieces of wads could be found in the wound only if the gun had been fired from a distance of 2 to 3 yards. If the gun was fired from a longer distance, pieces of wad could not be found in the wound. Dr. R.K. Gupta has categorically stated that pieces of wads could be found in the wound only if the gun had been fired from a distance of 2 to 3 yards. If the gun was fired from a longer distance, pieces of wad could not be found in the wound. It would be pertinent to recall here that pieces of wad were found by Dr. R.K. Gupta in the principal wound, which was surrounded by a number of smaller wounds of entry. The testimony of Dr. R.K. Gupta was not challenged by the prosecution at all. 1 have no hesitation in saying that the testimony of Dr. R.K. Gupta is cogent, reliable and trustworthy. He had no axe to grind this way or that way. On the contrary all the aforesaid three witnesses initially tried to show that the appellants had entered their field but they abandoned this stand during the trial altogether, which fact shows that they are not wholly truthful witnesses. 13. The testimony of Abdul Razak shows that the F.I.R. was lodged at 8 p.m. and he immediately directed shifting to Hari Ram to Suratgarh hospital for treatment. Ex.P. 17 shows that it was at 9.15 p.m. that night that the Medical Officer at Suratgarh referred Hari Ram to Government Hospital. P.W. 2 Krishna has stated in categorical terms that statement of his father was recorded by a lady doctor at Suratgarh hospital. Now, the prosecution has not cared to put forth the said statement of Hari Ram, recorded by the lady doctor, nor the said lady doctor has been named or examined. It would be legitimate to infer that if the said statement would have been produced on the lady doctor in question would have been examined, she would not have corroborated the story put forth by the prosecution witnesses. Thus, the prosecution has been guilty of suppressing independent valuable piece of evidence, which could have unfolded an early version of the incident. 14. Now, I may point out that according to the prosecution Banwari Lal snatched the gun of Dharam Pal, took it to police station and that gun was seized by the police. The only independent witness of this alleged recovery was Mnni Ram s/o Rati Ram. The other witnesses of this recovery are said to be Banwari Lal and Krishna P.Ws. 5. The only independent witness of this alleged recovery was Mnni Ram s/o Rati Ram. The other witnesses of this recovery are said to be Banwari Lal and Krishna P.Ws. 5. The sole independent witness of this alleged recovery has not been examined to corroborate the alleged recovery. P.W. 10 Abdul Razak does not state that he examined the gun at the time of alleged recovery and that the same was in a working condition. The gun was admittedly not sent to the ballistic expert. To my mind, a ballistic examination of the gun could have afforded some independent corroboration of the testimony of the three eye-witnesses. 15. A pistol is said to have been recovered by Abdul Razak in pursuance of information supplied by Shankar Lal. Abdul Razak does not state that the pistol so recovered was in a working condition. The pistol does not appear to have been sent to the ballistic expert either. Hence, it is not established that the pistol so recovered was in working order and was capable of being fired. This recovery too could have afforded some independent corroboration but non-examination of pistol by ballistic expert makes this recovery pointless. 16. The learned trial Judge has found that Kuldip and appellant Dharam Pal had certain injuries on their persons but he was opined that they are not established to have been caused during this incident. P.W. 1 Banwari Lal has admitted that one injury on the fore head of Dharam Pal had been caused in this incident. According to him, when he was snatching the gun, Dharam Pal got this injury. He has admitted in cross-examination that the entire forehead of Dharam Pal not smeared with blood. This admission shosws that Dharam Pal received some injury during this incident. According to defence version, he had received as many as 4 injuries and out of these one injury was on the forehead and this injury was a lacerated wound. The explanation given by Banwari Lal during the trial regarding this injury was neither given in the F.I.R. nor in Banwari Lals statement recorded under section 161 Cr.P.C. The defence has put forward the suggestion that P.W. 2 Krishna gave a blow with pistol on forehead of Dharam Pal and deceased Hari Ram and Banwari Lal gave lathi blows to Dharam Pal. It is idle to expect that Banwari Lal, Sri Krishna or Hanuman (P.Ws. It is idle to expect that Banwari Lal, Sri Krishna or Hanuman (P.Ws. ) would admit to have given such beating. But, admittedly, no explanation was given regarding the injuries on the person of Dharam Pal during the investigation and for the first time, an explanation was advanced during the trial as stated above. The explanation is clearly an afterthought and belated one. Moreover, P.W. 2 Krishna and P.W. 3 Hanuman do not support even this explanation given by Banwari. Hence, no credence can be given to such an explanation. 17. The basic substratum of the prosecution case was that all the accused duly armed committed criminal trespass into the field in possession of Hari Ram and appellant Dharam Pal fired a gun shot at Hari Ram while accused Sat Pal assaulted Banwari Lal P.W. 1 and accused Krishna assaulted P.W. 2 Krishna and Shankar fired two pistol shots at Banwari Lal and Krishna P.W. The learned trial Judge has found this basic substratum of the prosecution story as unreliable yet he has accepted the testimony of these P.Ws. that Dharam Pal had fired a gun shot at Hari Ram. In my opinion, when the basic substratum of the prosecution story fell down, it is unsafe to hold that Dharam Pal fired a gun-shot at Hari Ram in the manner alleged by the prosecution. 18. This is true that defence has failed to establish the counter version but that cannot be a ground to accept the prosecution story, which is full of infirmities. It appears that the three P.Ws. Banwari, Krishna and Hanuman have not came out with a true version of the incident and have come out with a garbled version, which does not inspire confidence and has not been corroborated by independent evidence. 19. Learned P. P. placed reliance upon Ex P. 29, statement of Hari Ram (deceased) said to have been recorded by Abdul Razak, as dying declaration of Hari Ram. Now, this statement suffers from basic infirmities. Admittedly, due to gun-shot injury, Hari Ram must have been in great agony. If he was really in a fit condition to give a statement, then normally the F.I.R. would have been lodged by him, but instead the F.I.R. was lodged by Banwari Lal, Abdul Razak has admitted that Ex.P. 29 was recorded by him in the hospital. Admittedly, due to gun-shot injury, Hari Ram must have been in great agony. If he was really in a fit condition to give a statement, then normally the F.I.R. would have been lodged by him, but instead the F.I.R. was lodged by Banwari Lal, Abdul Razak has admitted that Ex.P. 29 was recorded by him in the hospital. Yet, it was not got attested by the lady doctor, to whom requisition Ex.P. 17 was given. She was not asked to give any certificate about the physical and medical condition of Hari Ram to the effect that he was in fit state to give a statement. Hence, I do not think that Ex.P. 29 can be of much assistance to the prosecution. 20. In the result, I find that prosecution has failed to bring home charges u/s 302 I.P.C. and 25 and 27 Arms Act against Dharam Pal; it has failed to establish charge u/s 25(1) (a) Arms Act against Shankar. Hence, the appeal deserves to be accepted. 21. We hereby accept the appeal and set aside the judgment, conviction and sentences passed upon Dharam Pal for offences u/s 302 I.P.C. and 25 and 27 Arms Act and conviction and sentence of Shankar for offence u/s 25(1)(a) Arms Act and acquit them of the said charges. Shankar is on bail and need not surrender to his bonds. Dharam Pal shall be set free immediately, if not wanted in any other case.