JUDGMENT 1. - The accused appellant has been convicted by the learned Sessions Judge, Dholpur under his judgment dated 21st December, 1991 under Sections 302 and 307 read with 34 Criminal Procedure Code and on the former count he was sentenced to undergo Life Imprisonment and to pay a fine of Rs.500/- and in default of payment of fine to further suffer three months rigorous imprisonment and on the latter count to undergo four years rigorous imprisonment and to pay a fine of Rs.100/- or in default of payment of fine to further suffer one months rigorous imprisonment. The accused was tried along with Deewan Singh and Chota Singh who have been acquitted by the learned Sessions Judge. One more accused Bhcema was absconding and is still absconding. 2. On 14th May 1988, at about 5-6 p.m., Bhup Singh PW 2 was near the Chabutra of a brahman in village Tulsipura Tehsil Basedi, District Dholpur. Ram Swaroop PW 3 and Bhagwat PW 9 were also standing near him. Tota Ram deceased along with Gyani Ram PW 1 was also standing there. It is said that accused Bheema (absconding) came there armed with a gun. Chote Singh, Deewan and Kaptan also came there. There was some dispute with Ramveer accused appellant, but it is said that Bheema was armed with a Pachfera (riffle), Ramveer was armed with lathi, Chote was armed with 12 bore gun and Kaptan was armed with lathi when they came there. It is said that at the behest of Deevan, Bheema fired his Pachfera (rifle) which hit Bhup Singh on his chest and he became un-conscious. It is further the case of the prosecution that at that moment the accused appellant Ramveer took the gun from his father Bheema and fired at Totaram who received injury on his chest. The injured Totaram was taken by Bhup Singh and others to the hospital and a report of the incident was lodged by Gyani PW 1 in police station Basedi District Dholpur where a case was registered and investigation was set in motion. 3. The necessary memos and site inspections were prepared. The injuries of Bhup Singh were examined by Dr. K.K. Dixit PW 13 and the Doctor found that he had the following injuries: 1. Gun shot wound 1 cm. diameter. Wound of entry. On the leftside of chest 3 cm. lat. 3. The necessary memos and site inspections were prepared. The injuries of Bhup Singh were examined by Dr. K.K. Dixit PW 13 and the Doctor found that he had the following injuries: 1. Gun shot wound 1 cm. diameter. Wound of entry. On the leftside of chest 3 cm. lat. to the left nipple and two cm. superficially placed. Bleed on touch. 2. Gun shot wound of exit. 1.5 cm. diameter. On the interior angle of left scaupla. Bleeding on touch. In the opinion of the Doctor the distance of fire arm was more than 3-4 meter and he also advised reference for hospital for admission. 4. On conducting the autopsy of the dead-body of Totaram, Dr. R.S. Garg PW 5 found (1) a gun shot wound 0.5 X 0.4 cm. rounded present at lower part of the left side of sternum blackening present all around the wound margin; (2) gun shot wound 0.3 cm. X 0.2 cm. present near right nipple blackening present all around the wound margin. 5. On opening the body, the Doctor found that there was wound near nipple (right) passing upto right lung. He also found that there was a wound in right ventricle of the heart measuring 11/2 cm. X 1 cm. in size through and through, blackening present and dark blood was also present. The doctor further found that there was perforation of sternum of the lower part left side which was black in colour. The doctor made dessection to find out the gun shots but was not able to find out. He sent the dead-body to medical jurist, General Hospital Dholpur for X-Ray. Inspite of meticulous dessection even after X- Ray, gun shots could not be found out. The doctor, therefore, said that it is clear that they have dis-appeared either in tissue or in deeper bones because pieces are very small as visible on X-ray plates. He also said that in his opinion the cause of death was injury to vital organs i.e. heart and lung. 6. The accused was arrested and as said earlier Bheema, father of the accused was absconding and is absconding. 7. He also said that in his opinion the cause of death was injury to vital organs i.e. heart and lung. 6. The accused was arrested and as said earlier Bheema, father of the accused was absconding and is absconding. 7. The accused was tried along with others and each of them pleaded not guilty and in his statement under Section 313 Criminal Procedure Code, so far as accused-appellant Ramveer is concerned, he stands on a bare plea of denial and said that he was not present on the spot at the time of occurance. The defence examined PW 1 Gordhan Singh, as a ballistic expert. The learned Judge convicted and sentenced the accused appellant as aforesaid where the others were acquitted. 8. We have heard the learned counsel for the accused appellant and the learned Public Prosecutor and have been taken through the record of the case. The learned counsel for the accused-appellant has contended that all the witnesses are interested witnesses and some of the independent witnesses who have been named in the F.I.R. have not been produced. It was further contended that the occular evidence of the eye witness in this case is in direct conflict with the medical evidence. According to the learned counsel the case of the prosecution is that the accused had taken the gun from his father Bheema and had fired at deceased Tota Ram, from a distance of about 30-35 steps, which will come near about 50 ft. It will appear from the perusal of the post-mortem report as well as from the statement of Dr. Dixit PW 13 that there was blackening on the margin of the wounds and the Doctor has said that the gun shot was fired from a close range and could not have been fired from the distance of more than 4-6 ft. Therefore, according to the learned counsel the eye witness cannot be relied upon and the case of the prosecution is rendered doubtful so far as accused appellant is concerned. 9. The prosecution has examined 13 witnesses and out of them Grani Ram PW 1, Bhup Singh PW 2, Ram Swaroop PW 3, Ram Kishan PW 4, Bhagwat PW 9 were examined as eye witnesses of the occurance. 9. The prosecution has examined 13 witnesses and out of them Grani Ram PW 1, Bhup Singh PW 2, Ram Swaroop PW 3, Ram Kishan PW 4, Bhagwat PW 9 were examined as eye witnesses of the occurance. Out of the above named witnesses, Bhup Singh PW 2 is himself an injured person and as per the case of the prosecution, it was Bheema accused (absconding), who is the father of the accused appellant Ramveer and who was armed with Pachfera (rifle), who had caused gun shot injury to him. It was contended by the learned counsel for the accused appellant that in the F.I.R. Ex. P.l only names of Ram Kishan and Bhagwat as eye witnesses of the occurance have been stated and so far as the name of Ram Swaroop is concerned, it was not mentioned. He further contends that all the witnesses are relations and there were also other persons but they have not been produced. It has come in the statement of Grani Ram PW 1 that when the accused appellant and other persons were hurling abuses, at that point of time the villagers had reached and their number was about 10-20. He denied the suggestion that only one gun shot was fired and not two. He admitted that deceased Totaram was his brother and that when the dispute had arisen between Bhup Singh PW 2 and Ramveer, Totaram was inside the house which was in conflict with the report Ex.P. 1. The name of Ram Swaroop was not mentioned in the F.I.R. and he could not say as to why his name is not there. Even in the police statement with-which also he was confronted the name of Ram Swaroop was ommitted. According to him Bheema accused (absconding) had fired from his house at Bhup Singh. Thus, he is real brother of deceased and cannot be said to be independent. 10. PW 2 is Bhup Singh and according to him Ram Swaroop and Bhagwat were also standing near him on the day of incident and Totaram was also there. It was Bheema accused (absconding) who had brought his gun aid fired at him from his threshing flour (Khaliyan). He also said that even Ratiram Mahendra and Udaiveer were already present there, and some wondly duel was going on with him and Ramveer in connection with the votes. It was Bheema accused (absconding) who had brought his gun aid fired at him from his threshing flour (Khaliyan). He also said that even Ratiram Mahendra and Udaiveer were already present there, and some wondly duel was going on with him and Ramveer in connection with the votes. Ramveer was armed with a lath and Deewan with a farsa and Chote was armed with a 12 bore gun and Kaptan was armed with a lathi. At that time, Deewan is said to have exhorted Bheema that what he is seeing, fire the gun and Bheema fired his gun which hit on the chest and he became un-conscious and fell on the ground. He cannot say that Tota Ram died. From his statement it can be said that so far as the injuries to Totaram and his death is concerned, he does not say anything and he does not connect the accused appellant Ramveer with the death of Totaram. He also said that when Bheema fired at him, Bheema was at his house and he (Bhup Singh) was on a Chabutra which is at a height of 2 ft. from the level of thoroughfare. He stated in the cross that Ramveer was armed with a lathi. But he was confronted with his statement given in the police Ex. P.l wherein he stated that Ramveer was not carrying any weapon and was empty handed, he said that he has not said so. 11. PW 2 is Ram Swaroop. According to his statement there was exchange of abuses between Ramveer and Bhup Singh and then the accused appellant Ramveer called his father Bheema and Deewan, Chote and Kaptan his brothers, Bheema was armed with Pachfera, Deewan with lathi, Chote was armed with 12 bore gun and Kaptan was armed with lathi. Ramveer was empty handed and was not carrying any weapon. Bheema fired which hit Bhup Singh who became unconscious. He further states that Totaram deceased then came and Ramveer said that he (Totaram) has also come and he (Ramveer) took the gun from Bheema and fired at Totaram which hit him on his chest. He states that when Bheema fired at Bhup Singh, he was at a distance of about 20-25 paces and Bheema was only on Chabutra and then Totaram had come. He states that when Bheema fired at Bhup Singh, he was at a distance of about 20-25 paces and Bheema was only on Chabutra and then Totaram had come. He has made a specific statement that when Ramveer fired at Totaram, then Ramveer was at a distance of about 5-6 steps from the gate of his house. He states that when Ramveer fired at Totaram, then the distance between them was about 35-36 paces. It has already been said earlier that the name of this witness Ram Swaroop is not in the F.I.R. and no reason has been assigned as to why his name is missing. 12. PW 4 is Ram Kishan. He also supports the other witnesses and so far as occurrence is concerned, he not only named accused appellant and Bheema who is absconding, but also named Deewan, Chote and Kaptan as accused persons. He states that Bheema had fired his gun at Bhup Singh, then Ramveer took the gun from his father Bheema and fired at Totaram, who received injury on his chest. He says that when Totaram had come, then Ramveer had said, that enemy has come and then had fired. He states that when Bheema fired at Bhup Singh, he was at a distance at about 45 paces. He also states that when Ramveer fired at Totaram then the distance between them was about 40-45 paces and Ramveer had bent himself and then fired his gun. 13. PW 7 is Udaiveer and he states that hearing the gun shot fire, he went to the spot and saw that Bhup Singh was lying injured. He did not see anything. He states that he did not see Totaram. Bhup Singh was alive and the blood was coming out of the injury and then Ratiram had also arrived there. He also stated the he too had accompanied Bhup Singh to the hospital. He, therefore, does not name the accused-appellant as having fired at Totaram. 14. PW 9 is Bhagwat whose name is stated in the F.I.R. as an eye witness of the occurance. He also stated the he too had accompanied Bhup Singh to the hospital. He, therefore, does not name the accused-appellant as having fired at Totaram. 14. PW 9 is Bhagwat whose name is stated in the F.I.R. as an eye witness of the occurance. According to his statement so far as accused-appellant is concerned, when Bhup Singh after receiving gun shot injury at the hands of Bheema (absconding) had fallen on the ground, he ran away from there and entered the house of Totaram, and when he came after sometime then he saw that Totaram was lying on the Chabutra and Bhup Singh was also lying on that Chabutra. Totaram was dead. Therefore, he does not state that it was the accused-appellant who had caused injuries to the deceased. He even does not stated that when he came out of house and saw Totaram lying dead, anybody said immediately after the occurance that it was accused appellant Ramveer who had fired at him. 15. It will, therefore, appear form the above evidence that so far as Bhagwat who has been named in the F.I.R. is concerned, he does not support the case of the prosecution and the case rests on the evidence of interested witnesses though others had also arrived at the spot but they not been examined. It will be seen from the scrutiny of the evidence that it is the case of the witnesses that the accused is said to have fired the Pachfera (rifle) after taking it from his father Bheema from a distance of about 30-35 paces, which will come about 50 ft. A reference to the post-mortem report has already been made in the earlier part of this judgement and at the cost of repetition, it may be said that there was blackening present all around the wound margins. Dr. R.S. Garg, PW 5 had conducted the autopsy of the dead-body of Totaram. He has proved the post-mortem report and according to him the deceased had died about 24 hours prior to the post-mortem as a result of the gun-shot injury, which was sufficient in the ordinary course to cause death. He states that there was blackening even inside the wound. According to him he had proved the wounds, but he could not see any pellets inside the wounds and advised for X-ray. He states that there was blackening even inside the wound. According to him he had proved the wounds, but he could not see any pellets inside the wounds and advised for X-ray. He received the X-ray plates and had seen and according to him pellets had reached lower side of the chest. He has made a categorical statement that he found blackening in the wounds and, therefore, according to him, the gun fire must have been fired from a distance of about 6 ft. He no doubt said, it is not necessary that in no case blackening of the wounds can take place if the gun is fired at a distance of more than 6 ft. but this can only be in case the distance is about 1/2 more. 16. The learned counsel for the accused appellant has contended that the same rifle is said to have been used in causing injury to Bhup Singh as well as to deceased Totaram and according to him if it would have been received injury with bullet whereas deceased Totaram would have received injury with pellet. A look at the injury report of Bhup Singh Ex.P. 16 will show that Bhup Singh had two wounds, one wound is of entry and other is of exit. The size of the wound of entry was 1 cm. in diameter whereas the size of wound of exit was 1.5 cm. in diameter. It has come in the statement of PW 13 Dr. K.K. Dixit who has examined the injuries of Bhup Singh that the injuries have been received as a result of bullet. But he said that he is unable to say whether the injuries were as a result of bullet or pellet. He also said that if a bullet is fired from a gun then there will be only one entry wound and in case pellets are fired then they will disperse. 17. It has come in the evidence as said earlier that the accused is said to have fired at a distance of 35-40 paces at Totaram and it is the case of the prosecution that from almost same distance Bheema had also fired at Bhup Singh. So far as injury report of Bhup Singh Ex. P. 16 is concerned, there was no blackening of the margins and it can be said that fire must have been from a distance may be 25-30 paces. So far as injury report of Bhup Singh Ex. P. 16 is concerned, there was no blackening of the margins and it can be said that fire must have been from a distance may be 25-30 paces. But looking to the fact that there was blackening present all around in the margins and blackening was also found on opening the wounds, the possibility that the fire arm was used from a distance of more than 4-5 ft. is to be completely excluded in so far as injuries to deceased Totaram are concerned. 18. In the case of Mohinder Singh v. The State, AIR 1953, S.C. 415 , the Apex Court has said that where death is due to wounds caused by a lethal weapon it is always the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It was also a case of gun shot injuries. In Santa Singh v. State of Punjab, AIR, 1956 S.C. 526 , there was conflict in the medical evidence and the occular evidence. It also a case of gun shot injuries and according to medical evidence, the shot was fired from very close range about 9 inches to a yard or a yard whereas according to the eye witnesses, it was fired from a distance of about 25 ft. The court said that in the face of the medical evidence the testimony of the eye witnesses cannot be safely accepted. In the case of Ram Narain Singh v. State of Punjab, 1975 S.C.C.(Cri.) 571 , the Apex Court said where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert, this is a most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case. In the case of Munshi v. State, Cr. L.R. (Raj.) 1976 P.163 a Division Bench of this court said that if there are discrepancies between medical evidence and prosecution evidence, it renders the prosecution case doubtful and it cannot be safe to up-hold the conviction. 19. In the case of Munshi v. State, Cr. L.R. (Raj.) 1976 P.163 a Division Bench of this court said that if there are discrepancies between medical evidence and prosecution evidence, it renders the prosecution case doubtful and it cannot be safe to up-hold the conviction. 19. It will, therefore, be clear that if there is in-consistency in the occular evidence of the eye witnesses and the medical evidence, then it will not be safe to convict the accused and more so when the evidence is of interested witnesses. In the instant case from the evidence of the witnesses as discussed above, it will be clear that the gun is said to have been taken by the accused from his father Bheema (absconding) and fired at Totaram from a distance of about 35-40 paces and if the gun would have been fired in this manner there would not have been blackening in the margins of the wounds. The law is settled that if there is blackening and tattooing of the wounds, the weapon cannot be fired from a distance of more than a few feet. In the instant case Bheema accused (absconding) and his son accused appellant Ramveer are said to have fired the same gun from almost the same distance and as said earlier whereas there was no blackening in the margins of the wounds in case of injuries of Bhup Singh PW 2, it was so in the case of the injury of deceased Totaram. This has not been explained by the prosecution. Even a perusal of the site-plan will show that the gun shot is said to have been fired by the accused from a distance of about more than 30 ft. Thus, the evidence of the eye witnesses cannot be said to be evidence may not be material, but in this case there is a major conflict and it became highly doubtful if the accused caused death of Totaram by fire arm. The case against accused appellant is rendered doubtful. 20. Consequently, we hereby allow this appeal, set aside the judgment dated 21st December 1991 of the learned Sessions Judge, Dholpur and acquit the accused-appellant of the charge under Section 302 and Section 307 read with 34 Indian Penal Code The sentence awarded to the accused-appellant on both the counts are set aside. The accused is in jail. 20. Consequently, we hereby allow this appeal, set aside the judgment dated 21st December 1991 of the learned Sessions Judge, Dholpur and acquit the accused-appellant of the charge under Section 302 and Section 307 read with 34 Indian Penal Code The sentence awarded to the accused-appellant on both the counts are set aside. The accused is in jail. He shall be released forthwith if not wanted in any other case. *******