JUDGMENT 1. The accused appellant Chandan Singh has been convicted by the Sessions Judge Dholpur by his judgment dated April 15th. 1988 for the offence under Sections 302 and 302 read with 34 IPC and sentenced to life imprisonment. Against this conviction and sentence he lias preferred this appeal from jail and Shri S.K. Jain, Advocate has been appointed as amicus curiae to represent the appellant. 2. Alongwith the accused appellant one Nawab Singh was also tried but he has been acquitted of the offence under Sections 454,380,302/114 and 302/34 IPC. The accused appellant has also been acquitted of the offence under Sections 454, 380 and 114 IPC. There was one more accused named Keshav in the case but he died before he could be tried. 3. The first information report in the case was lodged by PW 1 Pratap Singh. The incident occurred on 2nd October, 1984 at 4.00 p.m. in village Nagla Patan which falls under the Police Station Mania district Dholpur. According to the report three persons namely Keshav, Nawab & Chandna (appellant) at about 4.00 p.m. first entered the house of deceased Hari Singn and after opening the latch took out his gun, rivolver and cartridges and one iron box in which there were some papers about the land and accounts. Keshav had a rivolver in his hand while Chandna had a 12-bore double barrel gun and Nawab had the box in his hand. All three of them went towards the house of Fatuwa where Hari Singh was sitting. Keshav fired with the rivolver at Hari Singh then all the three went to the shop of Kapur Singh where Keshav and Chandan Singh both fired guns at Kapur Singh which hit at the abdomen and leg. Both Hari Singh and Kapur Singh died as a result of the injuries. In the first information report, it was also mentioned that the incident was seen by Girraj Singh, Shyam Lai, Ram Swaroop, Komal Singh and Pratap Singh, informant himself. In Ex. P. 1 it has also been mentioned that all the three accused had enmity with Hari Singh and Kapur Singh on account of land and money disputes. 4. After registering the case, the Station House Officer proceeded to the site to make investigation and the site plan Ex. P 3 was prepared. Blood stained eanh was recovered from four places. P. 1 it has also been mentioned that all the three accused had enmity with Hari Singh and Kapur Singh on account of land and money disputes. 4. After registering the case, the Station House Officer proceeded to the site to make investigation and the site plan Ex. P 3 was prepared. Blood stained eanh was recovered from four places. The dead bodies were examined and thereafter sent for post mortem. Clothes of the deceased were seized. The accused persons were arrested and on the information given by Nawab Singh one iron box was recovered and he also informed that the papers which were found in the box had been burnt by him. 5. Dr. O.P. Mittal, PW 2 conducted the post mortem on the bodies of the two dead persons and according to his reports Ex. P 4 and P. 5 both the persons had died due to the gun shot wounds causing multiple fractures, haemorrhage and laceration etc. The injuries of Kapur Singh and Hari Singh as mentioned in the post-mortem reports are as under:- Kapur Singh : External : 1. Gun shot wound of entry and exit 10 cm. x 6 cm. penetrating into right lung at the level exilla and upper part of chest with blackening of margin of wound. 2. Bruise 3 cm. x 3 cm. on the left side of Chest just above the nipple. 3. Gun shot wound of entry .5 cm. x .5 cm. on the left side of abdomen with blackening of margins. 4. Gun shot wound of entry 1 cm. X 1 cm. on the left side of leg lower ⅓ part. Internal : 1. Fracture upper ⅓ of sternum with fracture multiple ribs right side chest. 2. Plura punctured and lacerated on right side. 3. Both lung cavities full of blood. 4. Laceration of upper lobe right lung. 5. Heart punctured both ventricles. Hari Singh : External: 1. Gun shot wound of enterence 1 cm. X 0.1 cm. on the right scapular region mid part. 2. Gun shot wound of exit 2 cm. X 2 cm. on the right side of neck anteriorly. 3. Gun shot wound of exit 5 cm. X 3 cm. on the left wrist joint with fracture lower ⅓ left forearm. Internal : 1. Fracture of 3rd, 4th, 5th, 6th ribs right side. 2. Plura reptured on right side. 3. 2. Gun shot wound of exit 2 cm. X 2 cm. on the right side of neck anteriorly. 3. Gun shot wound of exit 5 cm. X 3 cm. on the left wrist joint with fracture lower ⅓ left forearm. Internal : 1. Fracture of 3rd, 4th, 5th, 6th ribs right side. 2. Plura reptured on right side. 3. Right lung cavity was full of blood. 4. Laceration of whole of upper right lung. Dr. Mittal extracted metal pellets from the left leg and right chest of Kapur Singh and sealed them. These pellets were handed over to the Investigating Officer and later on sent to the FSL. 6. PW 1 Pratap Singh, who is the informant has claimed to be an eye witness and so also PW 8 Girraj Singh but the learned Sessions Judge has not accepted their testimony because PW 5 Ramswaroop categorically stated that at the time of the incident Pratap Singh and Girraj Singh were both away from the village and on their arrival at the village the whole story was narrated to them. For convicting the appellant, the witnesses PW 5 Ramswaroop and PW 10 Komal Singh were held to be eye-witnesses on whose testimony reliance was placed. 7. Mr. Jain, who has argued on behalf of the appellant as Amicus Curiae has raised a number of contentions in order to argue that the case against the appellant cannot be said to be proved. First of all it is contended that the first information report, said to have been registered on 2nd October, 1984 reached the Magistrate on 8th October, 1984 and the delay of these six days has not been explained. If the report was sent by post there was no reason that it should take six days to reach the Magistrate and on account of this delay the case against the appellant becomes suspicious. Another contention is that 12 bore gun said to be in the hand of the appellant, has not been recovered and there was no empty cartridge at the site in order to show that a 12 bore gun had been fired. Besides this, it is contended that the witnesses examined in the case are interested witnesses and relatives of the deceased and even though independent witnesses were present, whose presence has been shown in the first information report, they were not examined. Besides this, it is contended that the witnesses examined in the case are interested witnesses and relatives of the deceased and even though independent witnesses were present, whose presence has been shown in the first information report, they were not examined. According to him the testimony of the witnesses should be scrutinised on the basis of the facts available and here the report of the balastic expert becomes important. The pieces recovered from the body of Kapoor Singh were pieces of two 8mm/315 copper jacketed bullets and they could have been fired from 8 mm/.315 rifle. It is also argued that the evidence which has been disbelieved in respect of accused Nawab Singh cannot be said to be reliable and sufficient evidence for convicting the accused appellant. It is argued that mere suspicious cannot lake place of proof and there may be grounds for believing that the prosecution story may be true but there is a long distance to be travelled between 'may be true' and 'must be true' and unless there is overwhelming evidence about the participation of this appellant, he should not be held guilty. 8. We have heard the learned Public Prosecutor also, who has supported the prosecution case and contended that PW 5 Ramswaroop and PW 10 Komalsingh are reliable witnesses and on basis of their residence the case against the appellant also stands proved. 9. The story of the prosecution has been seen above and we shall refer to it again in order to find out as to how the incident started and how two persons namely Hari Singh and Kapoor Singh were killed. Hari Singh, deceased had a revolver (Pachfera) and a double barrel gun at his house and according to the witnesses both these articles and a iron box were taken out of the house of Harisingh by appellant and two other accused and all three of them first went to Hari Singh, who was at the house of Fatuwa and Keshav fired a revolver at Hari Singh. According to PW 5 Ramswaroop, Nawab had stated at that time that the enemy should be killed. When the three of them went to the shop of Kapoor Singh, Nawab Singh again stated that the enemy should be ki lied and Keshav fired at Kapoor Singh. This shot hit at the abdomen and came out of the back, then Chandan Singh also fired shot. When the three of them went to the shop of Kapoor Singh, Nawab Singh again stated that the enemy should be ki lied and Keshav fired at Kapoor Singh. This shot hit at the abdomen and came out of the back, then Chandan Singh also fired shot. He stated that Keshav was armed with the Pachfera and he fired at Kapoor Singh, and Nawab Singh and Chandan Singh were behind him. The witness has denied the suggestion that he could not have seen the incident. 10. PW 10, Komal Singh was about 9 years old at the time of the incident occurred. He heard some noise and thought that they were crackers and then saw Keshav armed with a rifle, Chandan Singh with a 12-bore gun and Nawab Singh with a iron box in his hand. Kashav fired a shot at Kapoor Singh and then Nawaw Singh told Chandan Singh to fire and Chandan Singh also fired at Kapoor Singh. However, he fire three shots. This witness has the knowledge how the barral of rifle is operated and how 12 bore rifle is loaded and that brass bullets are used in a rifle while paper cartridges are used in a 12 bore gun. According to him two empty cartridges of 12 bore and one of rifle were found at the site after the accused went away. However, no such empty cartridges were found by the Investigating Officer. 11. From the statement of these two witnesses and other witnesses in the case, it can be said that the accused appellant had a 12 bore gun with him. It remains to be seen whether this gun was fired or not. The gun had not been recovered and no empty cartridge of this gun was recovered from the site. The injury reports of both the deceased go to show that there were got shot wounds of entry and exit. There is no evidence of small pellets hitting the two persons to show that the fire at Hari Singh went out of a 12 bore cartridge. As for Kappor Singh is concerned some foreign bodies of metal (pellets) were removed and on examination by Ballastic Expert these metallic pieces could have been from two 8 mm/.315 copper jacketed bullets and could have been fired from 8 mm/.3l5 rifle. This report, therefore, excludes the bullets to have been fired from a 12 bore gun. As for Kappor Singh is concerned some foreign bodies of metal (pellets) were removed and on examination by Ballastic Expert these metallic pieces could have been from two 8 mm/.315 copper jacketed bullets and could have been fired from 8 mm/.3l5 rifle. This report, therefore, excludes the bullets to have been fired from a 12 bore gun. Had a 12 bore gun been fired at Kapoor Singh there would have been separate pellet marks on the body but this is not the case here. Two bullets entered at two places and thereafter they broke into several places and entered different parts of the body. These two shots therefore, can be attributed to Kashav who had a Pachfera, which could be said to be similar to the weapon which in the opinion of the Ballastic Expert could have been used in the commission of the offence. Hence, in view of this scientific evidence, firing by this appellant does not stand proved. The oral evidence of related persons has to be scrutinised minutely and when the oral testimony is not corroborated by scientific evidence then the firing by a 12 bore gun at Kapoor Singh does not stand proved. The enmity with Hari Singh and Kapoor Singh was with Kashav who had taken some loan from them and nothing specific has come on record to show that this appellant was having strained relations with the deceased. The presence of this appellant alongwith Keshav and Nawab Singh is to be accepted but then there is no evidence to show that this appellant had in any manner intigated Keshav to kill either Hari Singh or Kapoor Singh. According to the witnesses, it was Nawab Singh who asked Kashav to fire at Hari Singh as well as Kapoor Singh. If Chandan Singh had any grievance then it was with Hari Singh who is said to have purchased his land at nominal price but there is no evidence that he wanted to kill or he made any attempt to kill Hari Singh. As far as Kapoor Singh is concerned, he had given loan to Keshav and for this reason, Keshav was annoyed with him and this appellant had no reason to have any enmity with Kapoor Singh. On basis of the oral evidence the offence under Section 302 IPC read with 34 IPC cannot be said to be made out against this appellant. On basis of the oral evidence the offence under Section 302 IPC read with 34 IPC cannot be said to be made out against this appellant. As already seen above, there is no evidence on basis of which it could be said that this appellant fired at Kapoor Singh, hence he deserves to be acquitted for the offence under Section 302 IPC also. 12. In the result this appeal is allowed. The appellant is acquitted of the offence under Section 302 IPC and 302 read with 34 IPC. He shall be released forthwith, if not wanted in any other case.Appeal allowed. *******