JUDGMENT 1. - All the accused have preferred a joint appeal before this Court being aggrieved of their conviction under sections 302 or 302/149 and other minor offences of Indian Penal Code and Arms Act by Additional Sessions Judge, Bayana in Sessions Case No. 45/90. The offences under which the appellants were convicted and sentences awarded to them have been detailed out in the judgment of the Trial Court and we need not repeat the same. 2. In brief, the facts of the case are that a written report was made by the complainant Bhoori Singh to the Sub-Inspector at village-Jatpura on 3.5.90. The prosecution case, as disclosed in the report, is that there was a long standing enmity between the members of the complainant party of village Jatpura and the accused persons of village Luhasa. The members of the complainant party are Gujars while the accused persons are Dhakar by caste. It was alleged that accused Ajiram had made a false report against the members of the complainant party about commission of theft in the month of March. Earlier to this, litigations were also pending between them. About the occurrence, it was alleged that hundreds of persons of village Luhasa came to village Jatpura at 9.30a.m, on 3.5.90 and they were a need with guns, farsas etc. They came to the house of the complainant party and were saying"houses be set at lire and shoot all persons who come across. They have committed theft but the police was not taking any step, as such, we would decide our dispute." On seeing the accused persons some members of the complainant party climbed over the roof of the house. This included ladies also. Accused Pooran, Mohan Singh, Daroga and Udai Sigh were stated to be armed with guns, accused Vijay with a country made pistol of 12 bore, Kelli with a farsa and Ajiram and Jai Lal with lathics. In the report, it was further stated that accused appellant Pooran made a gun fire to wamis Smt. Newab Kaur who was standing on the roof. The fire hit on here hack. Accused Mohan Singh, Daroga and Udai Sigh also made gun fires but they struck to the wall of the house. In the report, it was then stated that accused Vijay Dhakar had also sustained a gun shot injury on his leg. The fire hit on here hack. Accused Mohan Singh, Daroga and Udai Sigh also made gun fires but they struck to the wall of the house. In the report, it was then stated that accused Vijay Dhakar had also sustained a gun shot injury on his leg. Then, it was stated that one Bhim Singh was sent by the complainant to make a report to the police on telephone. 3. On this report, Crime No.46/90 was registered at Police Station-Weir. After usual investigation, a charge-sheet was submitted by the police against the accused/appellants, who were ultimately prosecuted in the Court of Addl. Sessions Judge, Bayana. Accused Pooran was charged under section 302 IPC and other minor offences, while the remaining accused were charged under section 302 read with Section 149 IPC and other minor offences of Indian Penal Code and Ames Act. After completion of the trial, all the accused appellants were convicted and sentenced by the learned trial Judge vide his judgment dated Feb., 26,1992. 4. We have heard Mr. A.K Gupta, learned Counsel appearing for the accused-appellants. We may at the outset express our displeasure that no assistance has been provided to us by the learned Public Prosecutor. In the absence of proper assistance by the Public Prosecutor, we had to examine the entire record by ourselves. 5. Before we deal with the arguments made by the learned Counsel for the appellants, we may state here that the Investigating Officer did not appear in the witness box in spite of the fact that several opportunities were provided to the prosecution to examine him. It is really astonishing and shocking that the Prosecuting Agency and the Investigating Officer were not vigilant even in a murder case. It cannot be disputed that in criminal trials, Investigating Officer is a material witness and more so in a murder case. It was the duty of the Prosecuting Agency to be vigilant and take steps for the appearance of the Investigating Officer of the case. Both have failed to perform their duties as they had no accountability/responsibility in the matter. Be that as it may, we shall examine the case keeping in our mind that the Investigating Officer had not appeared in the witness box. 6. Mr. Gupta urged a number of arguments in support of the acquittal of the accused. The first contention is that the written report Ex. Be that as it may, we shall examine the case keeping in our mind that the Investigating Officer had not appeared in the witness box. 6. Mr. Gupta urged a number of arguments in support of the acquittal of the accused. The first contention is that the written report Ex. P.1 is not the First information Report in the case and is hit by Section 162 Cr.P.C. According to Mr. Gupta, the intimation conveyed to the police on telephone was first in time and it was the First information Report in the case. In our view, this contention of Mr. Gupta is well founded. 7. P.W. 17 Ballo Singh was posted as Head Constable at Police Station-Weir on 3.5.90. He has stated that he used to attend telephones at the Police station, and, at 9.45 a.m. he received a telephonic message by one Ram Dayal that a quarrel had taken place between the members of Gujar and Dhakar community in village Jatpur and gun fires were being exchanged. Death of a woman by gun shot injury was also reported. This telephonic message was recorded in daily police diary and a copy of which was placed on record as Ex.P. 18. P.W. 1 Bhoori Singh has stated that his brother's son, namely, Bhim was sent to make a report to the Police Station- Weir on telephone. He also stated that Bhim made a report to the police on to kph one and, thereafter, the police came in the village where a written report Ex.P.1 was submitted by him. Similar is the statement of P.W.2 Ratan Singh P. W.5 Ram Dayal, who was working as Post Master at Branch Post Office, Jeewat, has stated that he made a telephonic report to the police on the information given by one Bhim of village Jatpura. Bhim has been examined as P.W.15. He has stated that when he came to the village at 9.30 a.m., he found that a noise was going on and tires were being exchanged. He concealed himself in a room and came out after the incident. When he came out, nobody told him as to who had caused death of Smt. Nawab Kaur, who was lying dead there. He further stated that Bhoori Singh did not tell the name of the assailant who caused gun shot injury to Smt. Nawab Kaur. He concealed himself in a room and came out after the incident. When he came out, nobody told him as to who had caused death of Smt. Nawab Kaur, who was lying dead there. He further stated that Bhoori Singh did not tell the name of the assailant who caused gun shot injury to Smt. Nawab Kaur. Then, he went to Post Office at Jeewat, wherefrom he sent a telephonic message about the incident to Police Stations-Weir. He admitted that he did not give the information as to who had caused death of Smt. Nawab Kaur. This witness was declared hostile on the request of the Public Prosecutor. From all these facts and the evidence, it is clearly made out that P.W. 15 Bhim Sigh had sent a telephonic message Ex. P.18 to Police Station-Weir which related to the accident. The report disclosed that members of Gujar community of village Jatpura and members of Dhakar community of village Luhasa were fighting and gun fires were being exchanged between them and that one woman had died by a gun shot injury. It is noteworthy that in this report, the names of the accused were not stated, nor it was stated that the appellant Pooran caused death of Smt. Nawab Kaur by a gunshot injury. In any case, this telephonic message was clear and unambiguous that a cognizable offence was committed inasmuch as a woman had died by a gun shot injury. It is not disputed that this information about the incident was first in time and was a First Information Report with the meaning of Sec. 154 Cr.P.C. Report Ex.P.1, which was made by Bhoori Singh at village Jatpura to the Sub-Inspector was not first in time about the incident. On getting the telephonic message, the police recorded the same in daily police diary and, thereafter, proceeded to the spot for making investigation. In our considered view, the telephonic message is the First Information Report in the case and the report Ex.P.1 is a subsequent report and is clearly hit by Section 162 Cr. P.C. 8. The next contention of Mr. Gupta is that the incident did not take place in the manner as disclosed in the subsequent report Ex. P.1 or by the prosecution witnesses. Counsel argued that the report Ex. P.C. 8. The next contention of Mr. Gupta is that the incident did not take place in the manner as disclosed in the subsequent report Ex. P.1 or by the prosecution witnesses. Counsel argued that the report Ex. P.1 was given at 3.30 p.m. while the incident had taken place at 9.30 a.m. and by that time, a story was concocted to implicate the accused appellants. The appellant Pooran was given the prime role to be the author of gun shot injury to Smt. Nawab Kauron account of eternity. It was also Intended that Smt. Nawah Kaur could not have sustained gun shot injury in the manner the prosecution witnesses have stated, and the prosecution case qua the accused/appellants Daroga, Udai Singh and Mohan Singh was falsified as no marks of bullets or pellets were found on the wall of the house. Mr. Gupta, then, contended that the prosecution witnesses were not only interested but were inimical to the accused/appellants. The prosecution is also guilty of withholding independent witnesses of the occurrence as the incident had taken place in the broad-day light in the presence of many villagers who could have been examined by the prosecution. 9. The above submissions were examined by us minutely in the light of the evidence and material on the record. In site plan Ex. P.2, place 'A' has been shown as the place from where accused Pooran made a gun fire. At place' B' Smt. Nawab Kaur was standing on the roof of' kotha' where she sustained gun shot injury. In between the places 'A' and 'B' is a room hall of one Juglal Gujar which was shown by the word 'C' in the site plan. Therefore, as per the site plan, the positions were like this: Pooran was standing on the ground at place 'A' near a seem tree from where he made a gun fire. The bullet crossed the roof of the hall Juglal and then hit Smt.Nawab Kaur who was standing on the roof of a' kotha' at place' B' . The height of place' B' is stated to be 12' or so. In other words, the assailant was on the ground while the victim was on the roof, at higher level of 12 and between the two places, was a room of one Juglal. The height of place' B' is stated to be 12' or so. In other words, the assailant was on the ground while the victim was on the roof, at higher level of 12 and between the two places, was a room of one Juglal. Doctor Govind Singh (P.W.8) conducted the postmortem of dead body of Smt. Nawab Kaur.ln his statement, he admitted that entry wound and the exit wounds were straight and looking to them, the decreased and the assailant were standing at the same level. He also stated that if the assailant was on the ground and the victim was on the roof, then, the direction of the wound ought to be from down ward to upward and, if the assailant was on the roof and victim was on the ground, then, the direction of the wound he from upward to down-want. In the instant case, the wound was straight, as such, the gun was not fired by a person from a place before the place where the deceased was standing. Except the statement of Dr. Govind Singh, there is no other expert evidence on the record. No ballistic expert was examined by the prosecution. In the light of the medical evidence, we may now examine the prosecution case as deposed by the witnesses. 10. P.W. 1 Bhoori Singh is the informant. He stated that on the day of incident hundreds of persons came from Luhasa village and they were crying that there was a theft of the value of L 3 lacs but the police did not make any efforts, hence they would decide the matter themselves. He further stated that on asking by accused Ajiram,Pooran made a gun fire, which struck to his wife Smt. Nawab Kaur,who was standing on the roof of his have Mohan Singh, Pooran, Udai Singh and Daroga were also having guns while other accused were having lathies. He made general allegation against Mohan Singh, Udai Singh and Daroga accused that they made gun fires. According to the witness, the accused persons went away after the death of Smt. Nawab Kaur. In cross-examination, he stated that the residents of village Luhasa and Jatpura were known to each other but he could not identify other villagers of Luhasa other than the accused persons. According to the witness, the accused persons went away after the death of Smt. Nawab Kaur. In cross-examination, he stated that the residents of village Luhasa and Jatpura were known to each other but he could not identify other villagers of Luhasa other than the accused persons. He, then, gave an explanation that the accused-appellants were in front, while remaining persons of village Luhasa were behind the plants of 'Oak'. Then, he stated that it was not disclosed by them to the police when the site plan was prepared that other accused of village Luhasa had concealed them behind ' Oak 'trees. He also stated that the roof of the room where Smt. Nawab Kaur was standing, as at a height of 12' and second and third gun fires struck to the room of Juglal which was shown by the figure 32 in the site plan and the 4th gun fire struck to the accused Vijay. He then stated that he could not see who had made gun fire that hit to the accused Vijay. 11. P.W. 2 Ratan Singh, P.W.3 Bishambher, P.W. 6 Pati Rain, P.W. 9 Smt. Karnali and P.W. 10 Girraj also made similar statements. Thus all the prosecution witnesses have come with a consistent case that Pooran was standing on ground from where he made a gun fire while Smt. Nawab Kaur was standing on a roof at the height of 12' when she sustained the gun shot injury on her back. If the incident had taken place in the mariner as stated by the prosecution witnesses, then, as per Dr. Govind Singh, the wound of the deceased would have been from downward to up ward, but it was not so. The medical evidence thus completely falsifies the ocular statement of the prosecution witnesses. The Doctor has categorically state that the wound of the decease Smt. Nawab Kaur was a straight one and it was a result of straight gun fire which must have been tired from level to level. From the statement of a doctor it is clear that Still. Nawah Kaur did not sustain the gun shot injury in the manner stated by the prosecution witnesses. From the statement of a doctor it is clear that Still. Nawah Kaur did not sustain the gun shot injury in the manner stated by the prosecution witnesses. We are of the view that in the instant case, the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence and this is most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case. In Mohinder Singh v. State ( AIR 1953 SC 415 ) , the Apex Court of the country observed in similar circumstances as follows:- "In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered the to be 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 they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle." It is thus obvious that where the direct evidence is not supported by the expert evidence then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. 12. The contention of the learned Counsel for the appellant has also force that no independent eye witness of the offence was examined by t he prosecution, though a number of in dependent villagers had witnessed the offence. All the prosecution witnesses relate to the family of the complaint party admittedly they had inimical relations with the accused. The incident took place in the village in a broad-day light at 9.30 a.m. in the presence of many villages. Unfortunately, no attempt was made by the prosecution to examine any independent witness. Examination of independent witnesses was much more necessary in the case like the present one, where the statements of the prosecution witnesses are inconsistent with the medical evidence. No explanation has been brought on the record for non examination of independent witnesses. 13. Unfortunately, no attempt was made by the prosecution to examine any independent witness. Examination of independent witnesses was much more necessary in the case like the present one, where the statements of the prosecution witnesses are inconsistent with the medical evidence. No explanation has been brought on the record for non examination of independent witnesses. 13. We have already stated earlier that the prosecution case that Accused Daroga, Udai Singh and Mohan Singh made gun fires which struck to the wall of the havely, is not supported by circumstantial evidence. No marks of bullets or pellets were seen on the wall. This part of the prosecution story is also, therefore, rendered doubtful. 14. Accused Vijay had sustained a gun shot injury in his leg. How did he sustain this injury explained by the prosecution. If the incident had taken place in the manner as disclosed by the prosecution, there was hardly any occasion for the accused Vijay to have sustained the injury.This also shows that the prosecution has not come with a true version about the occurrence. The appellant Pooran. in his statement under section 313 Cr. P.C., has stated that his brother-in-law Vijay Singh sustained as injury from a gun fire at 9.00 or 9.30 a.m. at his house at the hands of Ratan Singh and Bhoori Singh and he had taken him to Weir. 15. Investigating Officer was a very material witness in the case. He did not appear in the witness box, with the result the defence case was seriously prejudiced. In a murder trial non-examination of the Investigating Officer is a serious infinity.ln the facts and circumstances of the present case, examination of the Investigating Officer was much nor essential and he could have thrown light on several facts and the result of his investigation on those facts. The non-production of the investigating Officer warrants to draw an adverse inference against the prosecution. 16. It is also noteworthy that in the first version which was given on telephone to the police, the story was given that there was an exchange of' gun fires between the persons of two villages without naming the accused-appellants. In that retort it was also not stated that it was the appellant Pooran who caused the death of Smt. Nawab Kaur. 17. In that retort it was also not stated that it was the appellant Pooran who caused the death of Smt. Nawab Kaur. 17. The net result of the above discussion is that the prosecution case suffers from several infirmities which go to the root of the case. The prosecution has failed to prove beyond reasonable doubt that the incident had taken place in the manner as disclosed by the prosecution witnesses. It is difficult to convict any of the accused appellants on the evidence of the prosecution witnesses, who are highly interested and inimical and whose evidence is inconsistent with the medical evidence. The appellants are, therefore, entitled to get the benefit of doubt. 18. Consequently, the appeal is allowed. The conviction of the appellants ands passed against them by the Trial Court are set-aside.The appellant Pooran is in jail. He be released forthwith if not wanted in any other case. Other appellants are on hail. They need not surrender to their bail bonds. Their bail bonds are discharged.Petition allowed *******