JUDGMENT 1. - This appeal is directed against the judgment of learned Sessions Judge, Jaipur Distt. Jaipur, dated 10th April, 1981, whereby he convicted the accused appellant for offences under Section 302 IPC and 3/25 of the Arms Act and sentenced him to undergo life imprisonment for the offence under S. 302 IPC and for the offence under S. 3/25 of the Arms Act, he was sentenced to undergo two months simple imprisonment. 2. Brief facts giving rise to this appeal are that a first information report was lodged at Police Station, Amer, by Chhitar Jat, P.W. 16, wherein it was alleged by him that on the evening of 2nd September, 1979, 8 to 10 persons who were Bawaries came in a Jeep at Ladu Bawari's hut, where a panchayat was going on concerning some lady. When he and his brother Sadhu, Hanuman, Motiram Balai, Mohanlal Brahman and Ram Karan Lal were standing to the road side and were watching proceedings of the Panchayat, which was going on. At that very moment, all the Bawaries got up from Panchayat and took away the wife of Ladu Ram, in a Jeep. One of the Bawari, was left behind, who came running near them and at that time accused Ladu, came, he was armed with a gun and followed him where Chhitar and others were standing. He aimed his gun towards this Bawari on which Sadhuram, objected and said that those who wanted to take away his wife had already gone why this man should be killed. By that time that Bawari ran away and accused Laduram having got annoyed fired at Sadhuram, which hit him on the chest. Accused Laduram, there after, left back his gun and ran away. It was stated that he was chased and caught on the spot and he was given beating by the persons present and was taken to the Police Station. 3. On reciept of this report, a case under Section 302 IPC was registered and investigation commenced. During the course of investigation, post-mortem of Sadhuram, was got conducted. Dr. M.R. Loyal, P.W. 21, who conducted the post-mortem of deceased, found multiple injuries by fire arm on vital organs of the body such as liver, heart both the lungs resulting in shock and haemorrhage. Accused Laduram was also got medically examined and Dr. During the course of investigation, post-mortem of Sadhuram, was got conducted. Dr. M.R. Loyal, P.W. 21, who conducted the post-mortem of deceased, found multiple injuries by fire arm on vital organs of the body such as liver, heart both the lungs resulting in shock and haemorrhage. Accused Laduram was also got medically examined and Dr. Deepak Singh, P.W. 11, found 16 injuries on his person caused by blunt weapons which were simple in nature. After completion of investigation, a charge-sheet was submitted against the accused appellant.The prosecution examined 27 witnessess in support of its case. The accused denied the occurence in his statement and took the defence of accidental fire while snatching gun from Banna. He examined two witnesses in defence. The learned trial court, felt the necessity of examining Mst. Mangali wife of accused Laduram, who is alleged to have been abducted in the aforesaid incident and examined her as a Court witness (C.W.1). After hearing the arguments, the learned trial court convicted the accused appellant as indicated above, against which this appeal has been preferred. 4. Challenging the conviction and sentence, learned counsel for the appellant submitted that the learned trial court has not considered the evidence in true perspective and has also not taken into consideration that the entire case is based on un-natural and un-reliable evidence. It is submitted that the prosecution story does not appear to be convincing in as much as the statements of the witnesses to the effect that they waited for the Panchayat to be convened for more then half an hour while standing at the road side is not at all convincing. It is further submitted that it is clearly borne out from the statements of the witnesses that the incident did not take place in the manner alleged by the prosecution because the story of settling the dispute by paying Rs. 650/- as 'Jhagara money' to accused Laduram runs counter to the prosecution evidence as accused Laduram came subsequent to taking away Mst. Mangali in Jeep. These two statements it is submitted, are self-contradictory and this coupled with the role of Sadhu, Chhitar etc. that deceased Sadhu, came to the assistance of Bawari, who had come to forcibly take away Mst. Mangali, from the residence of accused Laduram, makes the whole story doubtful. Mangali in Jeep. These two statements it is submitted, are self-contradictory and this coupled with the role of Sadhu, Chhitar etc. that deceased Sadhu, came to the assistance of Bawari, who had come to forcibly take away Mst. Mangali, from the residence of accused Laduram, makes the whole story doubtful. It is then submitted that the injuries on the person of Laduram, clearly go to show that he had been badly manhandled and this could only be possible when he was objecting of taking away his wife forcibly. It is also submitted that the statements of defence witnesses and that of Mst. Mangali, as court witness, are more probable then the statements given by the prosecution witnesses. It is submitted that the prosecution witnesses have stated that they saw the accused for the first time on the date of occurrence and thereafter in the Court and in these circumstances, it was essential for the Investigating Officer to have got the accused identified in identification parade. Lastly, it is submitted that the conviction of the accused appellant under the Arms Act, is contrary to the evidence produced by the prosecution. It is submitted that on one hand, the prosecution has come with a case that the accused came subsequently unarmed and when he learned that his wife had been taken-away he got enraged and brought the gun, on the other it has not been shown from where he got this gun. There is more likelyhood that he snatched the gun from one of the accused on the spot and fired. 5. Learned Public Prosecutor has supported the judgment and findings of the trial court. It is submitted that the statements of P.W. 3, Mohan Lal Sharma, P.W. 15, Motilal and P.W. 16, Chhitar, are sufficient to prove the prosecution case alone coupled with the statement of Dr. Mr. R. Goyal, who proved the post-mortem report of the deceased. It is also submitted that the prosecution case from the very beginning is consistent that accused Ladu sustained injuries after he fired on Sadhu, and that when he was produced at the police station, he had multiple injuries on his person. Thus, the prosecution has explained the injuries sustained by the accused in this case. The explanation given is not only an excuse but appears to be convincing. It is then submitted that there was no enmity between accused Laduram and Sadhu. Thus, the prosecution has explained the injuries sustained by the accused in this case. The explanation given is not only an excuse but appears to be convincing. It is then submitted that there was no enmity between accused Laduram and Sadhu. Deceased Sadhu, was only a person, who gave same advise to the accused that he should not kill Bawari, who had been left behind because the real culprits had gone and there was no occasion to kill the Bawari and this alone was the reason that the accused had taken the law in hand by firing the gun at Sadhu. It is also submitted that Mst. Mangali, had forcibly been taken away by accused Laduram sometime back and therefore, Bawaries were within their right to have taken her away after the Panchayat had decided the matter in their favour. It is also submitted that no interference in the order is warranted. 6. We have given our thoughtful consideration to the rival contentions made by the learned counsel for the parties and have perused the record of the case. In our opinion, this case can be decided on a very short point viz. as to whether prosecution has succeeded in proving the genesis and as to whether even on the admitted facts it cannot be concluded as to how the incident started and accused sutained multiple injuries. Admittedly. Mst. Mangali, had been living with accused Laduram as his wife, for the past several years and she has also delivered a child out of his lions and on the day of occurrence also she was staying with accused. All the Bawaries, numbering 8 to 10 came in a jeep and took-away Mst. Mangali, by force. Mst. Mangali, was a major woman and had a legal right to stay with the accused Laduram, as it was her own choice. She was not willing to leave accused and resisted her going, she was weeping and crying for help while she was being taken away. It is also admitted case that accused Laduram, was also not willing to part with Mangali and he too resisted and protested for her being taken-away by these Bawaries, who had taken her in a jeep against her wishes and his wishes and the accused sustained all the injuries in the same occurrence in which the deceased Sadhuram, was shot dead. Admittedly, there is no evidence as to wherefrom the gun was brought which was fired at Sadhu. In the face of the aforesaid admitted facts, the only controversy remains on the question as to whether the gun belongs to the accused person and as to whether the gun belongs to the accused personal to whether all the three eye witnesses examined in the case and who have been relied upon by the trial court have given frank and truthful evidence so as to prove the remaining facts, namely that accused took the law in his own hands without either being provocated or being injured by any of the member of the complainant party or that he was beaten subsequent to killing of Sadhuram. The evidence is also to be seen from the point of view as to whether all these 4 witnesses remained at the place of occurrence from beginning to end or that they are false witnesses to have come forward to support the prosecution case because Sadhuram, was one of the person who belongs to the party of Bawaries, who was arrested later for abducting the wife of accused Laduram, for this purpose. It is essential to see the relevent part of the statements of these witnesses. 7. Mohanlal, P.W. 3, is alleged to have gone from Jaipur to his village on cycle, while he was going to meet Chhitar, Hanuman and Ramkaran and stayed with them near Deva-Ki-dhani. When he enquired, what is going on there, he came to know that the meeting of Bawaries in respect of Ladu Bawari's wife is going on. He therefore, remained standing there. After half an hour, the meeting was over and all the Bawaries got up and took away Mst. Mangali, wife of Laduram, in a jeep. According to him Laduram, came 10 minutes after with a gun after his wife was taken away in the jeep and asked who has taken away his wife. He wanted to aim his gun towards one of the Bawari, standing there and when Sadhu, interrupted he fired at Sadhuram. He is the scribe of the first information report at the behest of Chhitar. In cross-examination, he had admitted that Sadhu, Chhitar, Hanuman, Ramkaran and Moti, were already standing when the meeting was going on. However, he could not name as to who were participating in the meeting. He is the scribe of the first information report at the behest of Chhitar. In cross-examination, he had admitted that Sadhu, Chhitar, Hanuman, Ramkaran and Moti, were already standing when the meeting was going on. However, he could not name as to who were participating in the meeting. He has also stated that he cannot name the persons as to who followed the lady and who were armed with gun and lathis. He has then stated that he had not seen the meeting. He has also admitted that the lady was forcibly taken away in the jeep and she was crying for help. According to him accused had brought the gun after 10 minutes of his wife having been taken away. He resiled from his police statement on material parts of statement and also denied the defence story put to him in cross-examination. He has not explained the injuries sustained by the accused and a perusal of his entire statement does not convince us that he is a truthful witness. This witness has neither given the nexus of the prosecution case nor has stuck to his previous statement. He appears to be suppressing truth and his statement does not appear to be least worthy of reliance. 8. P.W. 9, Chhogalal, is one of the person who is alleged to have apprehended the accused. He has clearly stated that he was not beated when he was apprehended on the spot. Almost to the same effect is the statement of P.W. 10, Lalchand, P.W. 13, Ramkaran, who have also given the statement like that of P.W.3, Mohanlal. In his statement in cross-examination he has admitted that Mst. Mangali and her daughter were crying for help when she was being taken away by the Bawaries in a jeep and not a single person present there came to her assistance when she was being forcibly taken away. He denied the fact that accused Laduram and his family members were trying to persuade the Bawaries for not taking-away Mst. Mangali. He admitted that till he was present there Laduram was not caught by any-one and had run away almost to a distance of 1 kmt. Thus, this witness too does not explain the injuries sustained by the accused Laduram. 9. P.W. 15, Motiram also stated in his statement that he had not seen any injury on the person of accused Laduram. Thus, this witness too does not explain the injuries sustained by the accused Laduram. 9. P.W. 15, Motiram also stated in his statement that he had not seen any injury on the person of accused Laduram. He has further stated that Bawaries had not forcibly taken away. Mst. Mangali. His statement runs counter to the statements admitted by other witnesses and even in the first information report. P.W. 16, Chhitar, who is the author of the first information report in cross-examination has resiled from certain part of his earlier statement but had to admit that he and his brother alongwith other persons had been standing on the road side for more than an hour and half to watch the proceedings of the Panchayat. According to him none of the person who had come in jeep had lathi or gun. This witness also wanted the Court to rely that injuries were inflicted on the person of Laduram, after he had killed Sadhuram but he was unable to say from where accused Laduram, had brought the gun. The prosecution witnesses are trying to suppress the truth as against these statements, the defence has come with a different theory according to which the accused when tried to snatch the gun from Banna, it accidently went off resulting in the death of the deceased. To the same effect is only the statement of D.W.1, Banna and D.W.2, Chhitar but is also the statement of C.W. Mangali. Thus, from the perusal of the statements of the aforesaid witnesses, we are convinced that the entire incident started because 8 to 10 persons armed with lathis and guns had come in jeep with the intention to take away Mst. Mangali, by force. There appears to be no truth in the story that a Panchayat was being held and she was to be taken away after paying Rs. 650/- to accused Laduram. The circumstances before and after the incident are clearly indicative of the fact that accused Laduram and Mangali, had immense love between them and they did not want to separate at any cost, what to say of on paying Rs. 650/- as jhagada money Mst. Mangali had been crying for help and was weeping when she alongwith her minor daughter were forcibly put in jeep and were taken away. 650/- as jhagada money Mst. Mangali had been crying for help and was weeping when she alongwith her minor daughter were forcibly put in jeep and were taken away. It is at that point of time that the accused had taken out gun even according to the prosecution's own case which shows it was in his anger and the protest against the Bawaries who were taking away his wife forcibly. In fact, it appears to us that when he came to the assistance of his wife and protested of her being forcibly taken away he was beaten by the members of the complainant party and the witnesses who too were members of the party abducting Mst. Mangali. The story of the defence that he snatched the gun from Banna, might not have been proved to the hilt but that is consistant with preponderence of probability that the incident might have taken place in a manner different than what the prosecution has stated and thus prosecution story itself admits of an alternative alleviate hypothesis. 10. It was the duty of the prosecution to have brought forward the genesis of the prosecution story and to have examined at least that Bawari to whom accused Laduram, wanted to kill. If there would have been less truth in the prosecution story there was no reason why the Investigating Officer, should not have interrogated and examined him as prosecution witness I.O. could have interrogated the witnesses to the effect as to how the incident originated. The prosecution has also not examined any of the Bawari who had taken away Mst. Mangali, alongwith her minor daughter forcibly, to come and prove the story of holding Panchayat or to show that she at any time married to another person. Prosecution case is that she was the married wife of Saduram and it was because of him that Rs. 650/- were to be paid by accused Laduram, she had not supported the prosecution story and has been declared hostile. Thus, the prosecution witnesses in our opinion, are not wholly truthful witnesses and their statements require corroboration from independent source which is totally lacking in this case. There are number of injuries on the person of accused Laduram and some of which are on vital parts and could not have been self inflicted. Thus, the prosecution witnesses in our opinion, are not wholly truthful witnesses and their statements require corroboration from independent source which is totally lacking in this case. There are number of injuries on the person of accused Laduram and some of which are on vital parts and could not have been self inflicted. It was the duty of the prosecution to have explained them reasonably and convincingly which has not been done. Prosecution has to succeed on the strength of its own case and that case must also be convincing as if there is a long distance to travel between may be true and must be true as has been held in the case of Sarwan Singh and Ratan Singh, v. State of Punjab, AIR 1957 SC 637 and this case is no exception to the law laid down in the aforesaid case. 11. In these circumstances, we are unable to maintain the conviction. 12. The result of the aforesaid discussions is that this appeal is allowed. The conviction and sentence is set aside. The accused is acquitted of the charges. The accused appellant is on bail and need not surrender to bail bonds.Appeal allowed. *******