JUDGMENT 1. - This is an appeal against the Judgment and sentence dated 5-4-1986 passed by learned Sessions Judge, Jodhpur in Sessions Case No. 7 of 1985 convicting the accused appellant Mahaveer Singh under Section 302 IPC and sentencing him to life imprisonment and a fine of Rs. 200/-, in default of payment of fine three months rigorous imprisonment and under section 3/25 of the Arms Act for one year's rigorous imprisonment and also under section 27 of the Arms Act for two years' rigorous imprisonment and accused appellant Surendra Singh under section 302 read with 34 IPC for life imprisonment and a fine of Rs. 200/-, in default of payment of fine to further rigorous imprisonment for three months and under section 3/25 of the Arms Act one year's rigorous imprisonment and also under section 27 of the Arms Act for two years rigorous imprisonment. 2. Briefly stated, the prosecution case is that PW 9 Ashok Singh lodged a written report Ex.P 1 at about 9 p.m. on 23-10-84 at Police Station Bhopalgarh stating therein that Doongar Ram (PW 1) came running to him and told him that the persons belonging to Rawla have fired upon Ridmal Singh. Thereupon, he went to the site alongwith Doongar Ram where he found his brother Bajrang Singh (PW 4) sitting near the dead body of Ridmal Singh. Bajrang Singh told him that in the morning he asked Ridmal Singh to go and fetch the labour. He also went alongwith him and when they were near the godown of Cooperative, Mahaveer Singh, Surendra Singh, Gopal Singh and Harnath Singh came armed with guns and told "Get ready, you enemies, the death his come to you today" and Mahaveer Singh fired a shot which hit Ridmal Singh on his chest. Surendra Singh fired the second shot which hit Ridmal Singh on the elbow of his left band. Harnath Singh also wanted to fire the shot at Bajrang Singh but his gun did not work. Thereupon, Harnath Singh used his gun as a lathi & inflicted a blow on Bajrang Singh which hit on his right hand. Ridmal Singh breathed his last on the spot. The occurrence was witnessed by Badri Bhatt and Doongar Ram Jat (PW 2) who were also present on the spot. There is litigation which is pending in the Court of A.CJM, Jodhpur regarding the properties between the parties. Ridmal Singh breathed his last on the spot. The occurrence was witnessed by Badri Bhatt and Doongar Ram Jat (PW 2) who were also present on the spot. There is litigation which is pending in the Court of A.CJM, Jodhpur regarding the properties between the parties. On report, a case under sections 302, 307, 34 IPC as also 27 Arms Act was registered against all the four accused persons named in the report. After usual investigation, police filed challan in the Court of Munsif & Judicial Magistrate, Pipar who committed the case to the Sessions Judge, Jodhpur. The learned Sessions Judge has convicted the accused appellants as aforesaid and acquitted accused Harnath Singh and Gopal Singh. Aggrieved against this Judgment and sentence, the present appeal has been filed. 3. The learned Sessions Judge has relied on the evidence of PW 2 Doongar Ram Jat and PW 4 Bajrang Singh who are both eye witnesses to the occurrence. PW 1 Doongar Ram, who bad informed Ashok Singh, (PW 9) who lodged the FIR, has been declared hostile. He has of course admitted that he had heard noise of fire but he did not know as to who had fired. He has of course admitted that he has seen all the four accused persons running. PW 3 Badri who was also supposed to be an eye witness, and whose presence has been admitted by both PW 2 Doongar Ram Jat and PW 4 Bajrang Singh has also been declared hostile. He deposed that he never saw any occurrence in which Ridmal Singh or Bajrang Singh were given beating. PW 5 Bajrang Singh s/o Ram Singh. PW 6 Govind Singh, PW 7 Jawarilal, PW 8 Teja Ram and PW 12 Jetha Singh are formal witnesses. PW 2 Doongar Ram PW 4 Bajrang Singh and PW 9 Ashok Kumar have supported the prosecution story in total PW 10 is Dr R.B. Choudbary who had conducted the postmortem of the dead body of deceased Ridmal Singh and found 19 gun shot wounds out of which 1 to 9 were scortched black skin on the chest mostly on the left side. Another 9 wounds were also gun shot wounds alright but there were no scotched black skin and these wounds were on the right side of the chest or on the right hand right from shoulder upto wrist and they were only skin deep and pallets were also recovered from the wounds. 19th injury was a gun shot lacerated wound with the entry size 4" x 2" over the posterior aspect of the left elbow and the wound of exit in 4" x 4" size over the inner aspect of the left elbow. Fracture of the upper ulna and radius bone with lower end of the humerous bone was also found. In his cross examination, he has admitted that the injury No. 19 of the deceased might be result of bullet shot and not due to pallets, injuries No. 1 to 9 of the deceased had scortched black skin whereas the rest of the other injuries did not had scortched black skia, so it is possible that the gun shots might have been fired from the different distances or from different guns. He also deposed that he examined Bajrang Singh on 28-10-84 at 9 a.m. on the requisition of the police and found one simple injury caused by blunt object as abrasion in the size of 1/4" x 1/4" over the tip of thumb of the right hand. The duration of the injury was opined to be within 48 hours meaning thereby that Bajrang Singh had received the injury on 26-10-84. He has further deposed that he had examined the accused Surendra Singh on 26-10-84 at 10p.m. and found the following injuries:- 1. Incised wound 3" x 1" x bone deep over the posterior aspect of left elbow joint with a diffuse swelling extending upto middle of the left arm and middle of the forearm, fracture of the upper and of the ulna bone with dislocation of the joint. 2. Linear abrasuib 2" x 1/10" over the lower part of left side of back. In cross examination, Dr. R.V. Choudhary admitted that injury No. 1 was grievous in nature caused by sharp object and the duration of that was 3 to 4 days. He has further admitted that the injuries mentioned in Ex. D 2 might have been caused in the same occurrence in which deceased Ridmal Singh received the injuries. PW 11 Rakesh Puri is the Investigating Officer. He has further admitted that the injuries mentioned in Ex. D 2 might have been caused in the same occurrence in which deceased Ridmal Singh received the injuries. PW 11 Rakesh Puri is the Investigating Officer. He has admitted that at the time when Surendra Singh was admitted in hospital he found injury on his left hand, the injury was caused by a sword as told by Surendra Singh but he could not confirm the same during his investigation. 4. Learned counsel for the accused appellant has very vehemently submitted that the site Plan Ex. P 19 and the Description Ex. P 3 are of no avail to the prosecution because the position from where the eye witnesses had seen the incident or the place from where the accused had fired the gun shot, have not been shown either in the site plan or in the description and is very fatal in the present case where according to the prosecution story Ridmal Singh received only two gun shot injuries whereas if we look at the injuries received by Ridmal Singh, it is clear that he received three gun shot injuries; one on the left hand by bullet, another on the chest with a close range so as to cause scortched black skin and the third on the right side of the right hand which had only skin deep wounds with pallets and no scortched black skin and therefore, the prosecution has miserably failed to come out with an explanation as to how the deceased received three gun shot injuries and the deceased received injuries only by two gun shots. He has also drawn my attention to the statement of accused Surendra Singh under Section 313, Cr. PC wherein he has stated that in the morning when he was at his field, Ridmal Singh deceased came there with a naked sword and told him that he should transfer the property in his name which had been given to him by his grand mother, the accused ran and was followed by Ridmal Singh. Ridmal Singh inflicted a sword blow which struck on his left hand which he had saved by his gun. Ridmal Singh inflicted another sword blow which hit him on his left hand and a piece of flash had cut and fell down on the ground. Ridmal Singh inflicted a sword blow which struck on his left hand which he had saved by his gun. Ridmal Singh inflicted another sword blow which hit him on his left hand and a piece of flash had cut and fell down on the ground. He wanted to run but was followed and thereupon he fired the gun to save himself. The gun according to him belonged to his Mama and was purchased by his father. He further stated that at that time he also heard two gun shots of fire but he did not know who had fired those gun shots. Learned counsel submitted that the defence story is more probable looking to the injuries received by deceased and the doctor's evidence. He further submitted that the prosecution has failed to explain the injuries received by accused Surendra Singh on his person which has been proved to have been received by him at the time of incident as has been deposed by Doctor in his cross examination and the learned Public Prosecutor has failed to challenge that part of the statement of Doctor by putting him questions on this aspect in re-examination, and since no cross examination was directed on this aspect by the Public Prosecutor, this Court must believe the statement of the Doctor. He has further submitted that both the so called eye witnesses are interested and also inimical towards the accused appellants. PW 2 Doongar Ram Jat has been cultivating the land of the complainant party and has been appearing as a witness in other cases against the accused as well. He is a chance witness and does not reside nearby the place of occurrence. No independent witness has been examined by the prosecution though admittedly there are residential houses nearby. He has further submitted that the prosecution story that Ridmal Singb had turned back after hearing the call from the accused persons and thereupon Mahaveer Singh fired at him, has not been mentioned either in the FIR or even in the statement under Section 161, Cr. PC and it is a case of deliberate improvement at the stage of evidence in the Court. PC and it is a case of deliberate improvement at the stage of evidence in the Court. He has further submitted that PW 4 Bajrang Singh tried to make out a false evidence to prove that he was present at the time of incident and received injury on that occasion because in his statement in the Court be has stated that he was examined by the doctor on 24th whereas the doctor in his statement has stated that he had examined him on 28th. The injury report in respect of injuries of Bajrang Singh is Ex. P 17 which shows that he was examined by the doctor on 28th. He has further submitted that if the evidence of PW 2 Doongar Ram Jat and PW 4 Bajrang Singh is believed wherein they have stated that Mahaveer Singh fired at Ridmal Singh which hit him on the chest from a distance of 10 pawandas, then, this cannot be believed as the gun shot injury received by the deceased on his chest was scortched black skin, meaning thereby that the shot must have been fired from a close range i.e. at the most from a distance of 4 to 5 feet whereas 10 pawandas means at least 20 ft. Therefore, neither of the two so called eye witnesses have seen the incident with their own eyes and hence the prosecution has not been able to prove its case much less beyond reasonable doubt. He has further submitted that case of Surendra Singh is a clear case of private defence of his person because when he had received a grievous injury by a sharp edged weapon and the blow was repeated three times, he was justified in having an apprehension that he would be murdered and, therefore, was quite justified in using a gun in his self defence. 5. Learned Public Prosecutor has supported the judgment of the trial Court and has submitted that the prosecution has been able to prove its case beyond reasonable doubt. The two eye witnesses are reliable and their statements are consistent. Merely because PW 4 Bajrang Singh is in relation or PW 2 Doongar Ram Jat is cultivating the land of the complainant party, their evidence cannot be discarded. The two eye witnesses are reliable and their statements are consistent. Merely because PW 4 Bajrang Singh is in relation or PW 2 Doongar Ram Jat is cultivating the land of the complainant party, their evidence cannot be discarded. That, the theory of the defence that there were three gun shots, is an afterthought because at no time to any of the prosecution witness this question has been put. It is only after the evidence of the doctor and having seen the postmortem report that this has been invented. 6. We have given our thoughtful consideration to the whole matter and have gone through the judgment of the trial Court and also the other record of the case especially the evidence of the two eye witnesses and that of doctor. After reading the evidence of the doctor and seeing the nature of injuries received by the deceased, the defence story that the deceased had received three gun shots seems to be more probable because injury No. 19 is definitely by a bullet. When the entry and exit wound is 4" x 2" and 4" x 4". Injury Nos. 1 to 9 are scortched black skin and this type of injury can be caused only when a gunshot is fired from a close range or from a distance of 4 to 5 feet and this gunshot cannot cause injury Nos. 10 to 18 because they do not have scortched black skin & are only skin deep which shows that injuries No. 10 to 18 were caused by a gun shot from a long distance. The prosecution has miserably failed in explaining as to how deceased received the injuries by three gunshots when the third gun shot had not fired. All the four accused persons who were charged initially were having guns in their possession. In view of the fact that both eye witnesses PW 2 Doongar Ram Jat and PW 4 Bajrang Singh have deposed that Mahaveer Singh fired at the chest of the deceased from a distance of 10 pawandas, belies their statements in view of the nature of the injuries received at the chest which are scortched black skin which can be caused only when the shots are fired from a close range. Therefore, either these two witnesses were not present and not seen the occurrence or they are not coming out with full truth and, therefore, their evidence is not reliable. Moreover, the prosecution has failed to explain the injuries deceived by Surendra Singo. An attempt was made by the prosecution that there was an altercation on the previous day between Surendra and the deceased but there also it has not come in evidence that Surendra Singh received sword injury on the previous day and since the prosecution has failed to explain the injuries received by the appellant Surendra Singh and the evidence of the eye witnesses is also doubtful, in view of the medical evidence it cannot be said that the prosecution has been able to prove its case beyond reasonable doubt. Moreover, in the present case, there is another circumstance to make the defence more probable. In the ballastic expert' s report Ex.P 29, it has been stated that one small wooden piece which was recovered from the site seems to be part of gun (Article 4) which has been recovered at the instance of Surendra Singh and who has even owned it in his statement under section 313, Cr.PC and this further makes the defence theory probable that somebody wanted to inflict injury at Surendra Singh which he warded of by gun and a small wooden piece from the gun had chipped off and fell on the ground which was recovered by the police. Secondly, one ram rod was also found from the site by the police which according to the ballastic expert's report can form part of the gun (Article 4). There is still another factor which has not been explained by the prosecution. It is an admitted case that a piece of flash was found at the site and according to defence version this piece of flash was from the injury which accused Surendra Singh had received by the sword before he fired at the deceased. Prosecution has not laid evidence to show as to where from this piece of flash had come which also makes the defence theory probable and the defence theory has not to prove its theory or story to the guilt or beyond reasonable doubt. It is merely on the probability that the defence theory can be accepted. 7. Prosecution has not laid evidence to show as to where from this piece of flash had come which also makes the defence theory probable and the defence theory has not to prove its theory or story to the guilt or beyond reasonable doubt. It is merely on the probability that the defence theory can be accepted. 7. Thus, we are of the opinion that the prosecution has miserably failed to bring charge home to the accused appellants, therefore they are both entitled to acquittal. 8. Appeal is, therefore, accepted. Judgment and sentence passed by the learned Sessions Judge, Jodhpur is set aside. Surendra Singh is already on bail He need not surrender. His bail bonds are discharged. Accused appellant Mahaveer Singh should be released forthwith if he is not required in any other case.Appeal allowed. *******