SURYA PRASAD, J. ( 1 ) THIS is a criminal appeal against the judgment and order dated 23rd July, 1979 passed by the then learned Vth Additional Sessions Judge, Shahjahanpur in Sessions Trial No. 268 of 1977 (State v. Bulaqi Ram and others ). Convicting the appellants under Sections 452, 148, 324/149 I. P. C. and sentencing each of the appellants to one years Rigorous Imprisonment and a fine of Rs. 50/- and in default of payment, 452 months Rigorous Imprisonment, under Section 4 i. P. C. , a fine of Rs. 50/- and in default of payment, 452 months Rigorous Imprisonment, under section 148 I. P. C. and a fine of Rs. 250/- and in default of payment of fine to undergo one years Rigorous Imprisonment under Section 324/149 I. P. C. respectively. ( 2 ) THE prosecution case briefly stated is this Gailoo, son of Ram Charan Kisan is a resident of village Dharmapur Aazar, police station Banda, district Shahjahanpur. It is alleged that there had been some altercation, 3-4 days back between Gailoo on the one side and Gokul, son of Baldoo and Ganesh, son of Lila, on the other, on the demolition of the Mondof his (Gailoos field ). The village Pradhan Bulaqi settled that matter. Gailoo did not agree to the decision given by Bulaqi. Consequently Bulaqi threatened him to face dire consequences. It is further alleged that Gailoo, his step brother Piarey and his mother Smt. Bijnee were lying in their house in the night intervening 819 September, 1976. There was a dibia light in their house. It is further alleged that Gailoo had a feel of feet of certain persons entering his house through its southern broken wall. Consequently he woke up and awakened his step brother Piareyand told him that certain persons had entered his house. It is further alleged that he and his brother saw and identified in the Dibia light as well as in the moon Light, Gokul armed with spear, Bulaqi Pradhan bed with gun, Janki, Tirmal, Bhumman, Dhakan (all armed with spears) and Bulaqis son Rilm Pal was armed with a sword. Gokul exhorted the other accused to kill him and his brother. Consequently Bulaqi fired his gun at Piarey who received injuries. Gokul exhorted the other accused to kill him and his brother. Consequently Bulaqi fired his gun at Piarey who received injuries. He and his brother raised an alarm hearing which Ballas, Sita Ram, Sadhu Nathu, Tara and Chotey Lal reached the place of occurrence while flashing their torches. They throw challenge to the accused and consequently they fled away towards the south. It is further alleged that Gailoo tried to snatch away the gun of Bulaqui and in that process he caught hold of the Chap of the gun. After the incident was over, Gailoo went to police station Banda and lodged an oral report and handed the Chap or the gun over there to the official concerned. On that basis a case was registered against the accused. The investigation ensued. Gailoo and Piarey were medically examined. On the receipt of the injury reports and after the completion of the investigation into the case, a charge sheet was submitted against the accused. ( 3 ) THE prosecution examined Gailoo (P. W. 1), Head Moharrir Ram Nath Gaur (P. W. 2), Chotey Lal (P. W. 3) and Sub-Inspector Shiv Nath Singh (P. W. 4) and relied upon certain documents in support of its case. ( 4 ) THE accused pleaded not guilty. They have dis-played their ignorance regarding many of the facts relating to the case. They have stated that all the allegations leveled against them are wholly wrong and incorrect. They have also stated that they have been falsely implicated in this case on account of enmity. ( 5 ) THE accused have examined Balak Ram alias Raila as D. W. 1 and relied upon certain documents in-support of their contentions. ( 6 ) HAVING heard the learned Counsel for the parties and having perused the evidence on the record, the learned Sessions Judge convicted and sentenced the accused-appellants vide his impugned judgment and order dated 23rd July, 1979, referred to above. Aggrieved, the accused appellants preferred this appeal against the same. ( 7 ) HEARD the learned Counsel for the parties and perused the record. The accused-appellant Dhakan died during the pendency of this appeal. Therefore, the appeal stands abated against him. ( 8 ) THE Medical Officer, Primary Health Centre Banda examined Piarey Lal injured and found the following injuries on his body. 1. Incised wound 5 cm x 2. ( 7 ) HEARD the learned Counsel for the parties and perused the record. The accused-appellant Dhakan died during the pendency of this appeal. Therefore, the appeal stands abated against him. ( 8 ) THE Medical Officer, Primary Health Centre Banda examined Piarey Lal injured and found the following injuries on his body. 1. Incised wound 5 cm x 2. 5 cm x skin (deep the flap of skin) on the left side head 7 cm, above the top of left ear. 2. Incised wound 6 cm x 0. 25 cm x muscle deep on the left side head 4 cm below to the injury. 3. Incised wound 3. 5 cm x 0. 25 cm x depth cannot be proved (with air bubbles coming out through the wound during breathing on the left side of lower 1/3 part of the chest 8 cm below and lateral to the left nipple with masked surgical emphysing around the wound. 4. Incised wound 4 cm x 0. 25 cm x muscle deep on the back of the left forearm just near the wrist joint. 5. Punctured wound 05 cm x 0. 5 cm x depth cannot be proved left side of abdomen 14 cms below and medial to the left nipple. 6. Punctured wound 0. 5 cm x 0. 5 cm x muscle deep on the right upper arm in middle 1/3 part on lateral side. 7. Incited wound 3 cms x 0. 25 cm muscle deep on the back of right elbow joint. 8. Three incised wounds the size of 1st 2 cm x 0. 25 cm x muscle deep on, 2nd 0. 5 cm x 0. 5 cm x muscle deep, 3rd km x 0. 25 cm x muscle deep in the area of 4 cm x 4 cm on the dorsum of the right wrist joint. 9. Incised wound 2 cm x 0. 25 cm x muscle deep on the anterro lateral aspect of upper 1/3 part of right thigh. 10. Punctured wound 0. 25 cm 0. 75 cm x 0. 75 cm x muscle deep on the lower part of left buttock. ( 9 ) PIAREY Lal has not been examined by the prosecution for the reasons best known to it. 25 cm x muscle deep on the anterro lateral aspect of upper 1/3 part of right thigh. 10. Punctured wound 0. 25 cm 0. 75 cm x 0. 75 cm x muscle deep on the lower part of left buttock. ( 9 ) PIAREY Lal has not been examined by the prosecution for the reasons best known to it. From the above injuries it appears that there is no gun shot injury on his person and, therefore, the prosecution case as well as the statement of Gailoo to this effect is wholly wrong and incorrect. Therefore, occular account does not find support from the medical evidence. ( 10 ) GAILOO (P. W. 1) is alleged to have caught hold of the Chap (Ext-3) of D. B. B. L. gun of accused Bulaqi. This Chap does not fit in with this gun. This has been admitted by the Sub-Inspector Shiv Nath Singh (P. W. 4) in his cross-examination. The prosecution case on this point is, therefore, palpably false and baseless. ( 11 ) THE witnesses are alleged to have seen the incident from the place shown by letter d in the site plan (Ext. Ka-7 ). The place decoted by this letter D is at a distance of 20 paces from the house of Gailoo. It is not probable for the witnesses to have seen the accused inside his house from that distance. Gailoo (P. W. 1) has stated that Chotey Lal, Nathu, Sita Ram, Balla and Tara reached the place of occurrence after the accused had fled away. It is, therefore, abundantly clear that the witnesses had no opportunity to see the accused in the course of the incident. Therefore, the statement of Gailoo (P. W. 1) and Chotey Lal (P. W. 3) to the contrary do not inspire confidence. ( 12 ) THERE is no court-yard (Angan) shown in the site plan (Ext. Ka-7 ). It is not the prosecution case that the accused assembled in the course of the incident in the room in which there was Tdibia light There does not appear any source of light in which the accused can be held to have been seen and identified by the witnesses, the prosecution case to the contrary does not appear to be correct. ( 13 ) THE place-of the alleged scuffle is shown by letter B in the site plan. ( 13 ) THE place-of the alleged scuffle is shown by letter B in the site plan. It is not the prosecution case that Gailoo came out of his house in the course of the incident and that the scuffle took place on that place. Therefore, the statement of Gailoo to this effect does not inspire confidence. ( 14 ) THE prosecution has not examined any of the independent witnesses for reasons best known to it There is enmity between the complainant Gailoo and Bulaqi Pradhan. This is clear from the First Information Report itself. The accused Ram Pal is son of Bulaqi. Four accused other than Gokul are his cousins. Therefore, the possibility of all these accused having been falsely implicated on account of enmity cannot altogether be ruled out. ( 15 ) IN the result the appeal is allowed. The impugned judgment and order is set aside. The accused-appellants are acquitted of the offence with which they have been charged. They are on bai. Their bail bonds are cancelled and sureties stand discharged. They need not surrender. The appeal stands abated against accused Dhakan. Appeal allowed. .