JUDGMENT 1. The accused-appellants Meetpal and Dcendayal respectively are son and father and the learned Addl. Sessions Judge, Dholpur, under his judgment dated December 18, 1992 has convicted the accused-appellant Meetpal who has been convicted under Section 302 and 323 Indian Penal Code and Section 3/25 of the Arms Act. Accused-appellant Deendayal has been convicted under Section 302/34 IPC and Section 3/30 of the Arms Act. Accused-appellant Meetpal has been sentenced under Section 302 Indian Penal Code to suffer imprisonment for life and to pay a fine of Rs. 2000/- or in default of payment of fine to further suffer one years simple imprisonment. Under Section 323 Indian Penal Code accused-appellant Meetpal has been sentenced to suffer one months simple imprisonment to pay a fine-of Rs. 200/- or in default of payment of fine to further suffer 15 days simple imprisonment. Under Section 3/25 of the Arms Act the accused-appellant has been sentenced to one years simple imprisonment and to pay a fine of Rs. 200/- or in default of payment of fine to further suffer 15 days simple imprisonment. Accused-appellant Deendayal has been sentenced under Section 302/34 Indian Penal Code to suffer life imprisonment and to pay a fine of Rs. 2000/- or in default of payment of fine to further one years simple imprisonment. Under Section 3/30 of the Arms Act he has been sentenced to one months simple imprisonment and to pay a fine of Rs. 200/- or in default of payment of fine to further suffer 15 days simple imprisonment. The substantive sentences were ordered to run concurrently. 2. The case of the prosecution is that on April 4, 1985 at about p.m. Nasir Khan PW 9 along with his brother Hamid alias Hafij deceased had gone to the house of Dinesh Kumar PW 8, where both the accused-appellants are said to have come. They started to quarrel with Hamid. Meetpal is said to have given a lathi blow on the head of Hamid. Meanwhile, Shailendra Singh PW 1 and Munna PW 4 also arrived there and they intervened. The accused-appellant Meetpal had given a lathi blow to Munna and Munna received the said blow on his knee. They started to quarrel with Hamid. Meetpal is said to have given a lathi blow on the head of Hamid. Meanwhile, Shailendra Singh PW 1 and Munna PW 4 also arrived there and they intervened. The accused-appellant Meetpal had given a lathi blow to Munna and Munna received the said blow on his knee. On that, the accused-appellant Deendayal, who is an Ex-military personnel went to his house and returned with a 12-bore double barrel gun and gave it to his son Meetpal and exhorted him to fire and at this Meetpal fired the gun which hit Hamid on his chest. Munna also received pellet injury. A report of the incident was lodged by Nasir Khan PW 9 at the Police Station, Kotwali Dholpur were FIR No. 77/85 was registered. The FIR was lodged at the police station at 8.20 p.m. on the same day. The distance of the police station from the place of occurrence is about 5 furlongs. A case was registered and investigation was set in motion. 3. Hamid alias Hafij died as a result of gun-shot injuries and Dr. Radhey Shyam Sharma PW 7 conducted the autopsy on the dead-body of Hamid in the General Hospital Dholpur. Dr. Radhey Shyam found that the deceased had following injuries - "1. Abraison 1" X 1/4" Ant. side on middle of Rt. leg. 2. Gun shot wounds 1/4" X 1/4 cm. 6 in no. on the ant. side of neck. 3. Gunshot wound 1/4 x 1/4 cm. 16 in no. on the Ant. left side of chest. 4. Gunshot wound 1/4 cm. x 1/4 cm. 4 in no. on the left side of abdomen. 5. Gun-shot wound 1/4 x 1/4 cm. 5 in no. one post, side of left arm." In the opinion of Dr. Sharma there was charring present around all gun-shot wounds and the deceased died as a result of shock due to rapture in heart by pellets of gun-shot, vide post-mortem report. 4. Dr. Sharma also examined the injuries of Munna and found that there was a gun-shot wound 1/4 x 1/4 cm. on the right side of the face, swelling 2" X 11/2" around the injury No. 1 and swelling 2" X 2" on the medial side of right knee joint. He advised for X-ray of injury No. 1 but no radio opaque shadow was seen. All the injuries were simple in nature. on the right side of the face, swelling 2" X 11/2" around the injury No. 1 and swelling 2" X 2" on the medial side of right knee joint. He advised for X-ray of injury No. 1 but no radio opaque shadow was seen. All the injuries were simple in nature. Injury No. 1 was caused by gun-shot and rest were caused by blunt weapon. 5. The accused-appellants were arrested and on the information of Meetpal a 12-bore gun was received. There is no dispute that the accused-appellant Deendayal has a licence of the aforesaid gun. The clothes of the deceased were seized and sealed and sent to the Director, Forensic Science Laboratory. Pellets were recovered from the dead-body as well as 12-bore gun and cartridges were also sent to the Director, Forensic Science Laboratory, who vide his report Ex. P/31 has opined that the gun is serviceable fire arm and had been fired some time before it was received in the laboratory. He also opined that the 12-bore fired from the right barrel of the 12-bore double barrel gun and the size of the lead pellets contained in packets D and H could be No. 1. 6. Each of the accused-appellants stood on a bare plea of denial and they claimed to be tried. The defence of the accused persons was that the accused-appellant Meetpal was grazing his she-buffaloes near his fields and all of a sudden he heard the cries of somebody and also a gun-fire. He went towards the site and saw that Nasir, Munna, Mahavir and Dinesh, all of whom were armed with guns and the gun of his father was with Munna and Shailendra Singh, Kalla and Baldev had lathies and it was only in the scuffle that the gun went off accidentally and deceased died. They were given beating by Munna and the injuries received by the accused persons were also proved by Dr. Radhey Shyam Sharma PW 7 who stated that he had examined the injuries of Meetpal and he found that there were as many as 5 injuries on his person received within the duration of 24 hours. He proved Ex.D/6. The defence examined Dr. Mahendra Kumar Gupta DW 1, Jitendra Singh DW 2, Devilal DW 3 and Surjit Kaur DW 5. Radhey Shyam Sharma PW 7 who stated that he had examined the injuries of Meetpal and he found that there were as many as 5 injuries on his person received within the duration of 24 hours. He proved Ex.D/6. The defence examined Dr. Mahendra Kumar Gupta DW 1, Jitendra Singh DW 2, Devilal DW 3 and Surjit Kaur DW 5. According to the doctor Jitendra Singh had as many as 5 injuries and Surjit Kaur had 3 injuries as contained in Ex.D/9 and D/10 respectively. They also exhibited various documents including complaint Ex.D/ll-A filed by Jitendra against Dinesh and others in the court of Chief Judicial Magistrate Dholpur. The learned Addl. Sessions Judge after trial convicted anti sentenced the accused appellants as aforesaid. 7. The contention of the learned counsel for the accused-appellants is that it will be seen from the evidence brought on record that so far as accused-appellant Deendayal who is father of accused-appellant Meetpal is concerned, secondary role has been assigned to him. It has been said that it is he who had come out of the house alongwith his licensed 12-bore double barrel gun and handed it over to his son Meetpal. Learned counsel contends that the accused-appellant Deendayal is an Exmilitary personnel and he knew how to use the gun and if he would have brought the gun as alleged by the prosecution he could have himself fired it and there was no occasion to hand it over to Meetpal. It is further contended that as per the case of the prosecution the gun had been fired from the distance of 20'. If it would have been fired as alleged there would not have been Charring of the skin around the wounds and the fact that there was charring goes to show that it was a close fire and the possibility cannot be excluded, rather there are more chances that the gun went off accidentally when there was scuffle in between the accused persons and the deceased who had committed theft of the licensed gun of Deendayal. Learned counsel contends that there were independent witnesses but none has been produced and only the interested witnesses have been produced. The learned counsel further contends that the 12-bore gun which had been recovered from Meetpal is hammerless gun and there are chances that the gun could have gone off accidentally during the scuffle. Learned counsel contends that there were independent witnesses but none has been produced and only the interested witnesses have been produced. The learned counsel further contends that the 12-bore gun which had been recovered from Meetpal is hammerless gun and there are chances that the gun could have gone off accidentally during the scuffle. Learned counsel referred to a book The Identification of Firearms and Forensic Ballistics written by Major Sir Gerald Burrard, B.T. DSO, RFA (Retd.) wherein the author at page 88 said that hammerless guns are fitted with a safely slide, and there is a widely held belief amongst sportsmen that the operation of this slide actually cocks and uncocks the locks. The author further said that in reality it docs nothing of the sort, but merely bolts the triggers and so prevents them from being pressed against the sear tails. Learned counsel contends that a perusal of the book at page 89 will show that in actual practice no weapon can be regarded as immune from the possibility of accidental discharge if it can conveniently be fired by pressing the trigger in the normal way. Learned P.P. contends that a perusal of the clothes of the deceased will show that there was no charring on the clothes and according to him before there could be charring at the skin around the wounds, it was necessary that there should have been charring on the clothes. Learned counsel contends that the opinion of the Medical Expert that there was charring present around the skin should not be relied upon. 8. We have applied our mind to the aforesaid arguments. A perusal of the record will show that the case of the prosecution rests on the testimony of Shailendra Singh PW 1, Munna PW 4, Dinesh Kumar PW 8 and Nasir Khan PW 9 who has lodged the FIR. 9. There cannot be any dispute that Hamid died as a result of gun-shot injuries and no dispute has been raised by the learned counsel for the appellants. There can also not be dispute that the licensed 12-bore double barrel gun of Deendayal was used and deceased died as a result of pellet injuries from that gun. It will be seen from a perusal of the site plan as well as from the statement of Mahendra Singh PW. 10 as well as Ramesh Chand Gupta PW. There can also not be dispute that the licensed 12-bore double barrel gun of Deendayal was used and deceased died as a result of pellet injuries from that gun. It will be seen from a perusal of the site plan as well as from the statement of Mahendra Singh PW. 10 as well as Ramesh Chand Gupta PW. 12 that the pellets were found embedded in the wall. The only question is as to whether or not the occurrence took place as alleged by the prosecution? 10. There was no enmity in between the deceased and the accused-appellants. A look at the FIR will show that the occurrence took place when suddenly there was a dispute at the house of Dinesh and Meetpal is said to have given a blow with his lathi on the head of Hamid and then the accused-applicant Deendayal is said to have gone to his house and returned with his 12-bore double barrel gun. Shailendra PW. 1 is son of accused-appellant Deendayal and as per his statement as PW. 1 the dispute appears to have been that Deendayal wanted to give all his properties and agricultural land to Meetpal, the accused-appellant and other children from his second wife. Shailendra is the son from his first wife. A revenue suit as per Shailendra Singh had had also been filed in the court of Asst. Collector is respect of agricultural land against Deendayal by Shailendra Singh. Surjeet Kaur is the second wife of Deendayal and she is mother of Meetpal Shailendra Singh had two more brothers and three sisters all by first wife of Deendayal. Beside Meetpal there are other children also from Surjeet Kaur. There are three more sons and four daughters. Admittedly Hamid deceased was not and could not be a party to the revenue suit said to have been filed by Shailendra Singh PW. 1 and Shailendra Singh admitted that Hamid in no way concerned with that suit. According to the statement of Shailendra Singh when the accused-appellant Meetpal had fired his gun he was standing at the distance of 20 from Hamid. Shailendra Singh denied the suggestion that there was enmity between him and the second wile of accused-appellant Deendayal and her offsprings, the fact which was Stated by him in his police statement with which he was confronted. Shailendra Singh denied the suggestion that there was enmity between him and the second wile of accused-appellant Deendayal and her offsprings, the fact which was Stated by him in his police statement with which he was confronted. He admitted that Deendayal wanted to give all his properties to Surjeet Kaur and her sons and he wanted to deprive him and other children from the first wife of Deendayal. He also admitted that Deendayal never allowed him to cultivate any part of the agricultural fields therefore he and the accused-appellant and other members of the family were not on speaking terms. He denied that he saw any injuries on the person of Meetpal. He also denied that he saw any injury on the person of Jitendra. He denied the presence of Surjeet Kaur at the place of incident. According to him, no injury was caused either by him or Dinesh to them. He admitted that a case of dacoity is pending against him and others but he had not received any notice from the court. 11. Munna PW. 4 states that he had gone to the House of Shailendra Singh, where Dinesh came and told Shailendra Singh that Nasir Khan and Hamid were calling him. He further States that when they reached near the house of Deendayal, he saw both the accused-appellants who were armed with dandas. He saw that Nasir, Hafij alias Hamid coming from the house of Dinesh. He saw that Deendayal started running towards his house and Meetpal gave a lathi blow on the head of Hamid. Hamid saved the blow and it landed on his right knee. He (Munna) was given a blow by Meetpal and he received injuries on his knee. At that time Deendayal went to the house and returned with a 12-bore double barrel gun. Meetpal then ran towards Deendayal and Deendayal gave his gun to Meetpal and exhorted him to kill. Then Meetpal fired the gun at Hamid. He also made a similar statement as had been made by Shailendra Singh. According to him, Deendayal might have lodged any report in the police against him. He admitted that they are not on speaking terms for last about 7 or 8 years. They are not visiting each other even during the marriages in the families. It will therefore be clear that the relations of this witness with the accused-appellants were not cordial. According to him, Deendayal might have lodged any report in the police against him. He admitted that they are not on speaking terms for last about 7 or 8 years. They are not visiting each other even during the marriages in the families. It will therefore be clear that the relations of this witness with the accused-appellants were not cordial. According to him, when Deendayal gave his gun to Meetpal at that moment they were at the distance of 20 steps. He denied the suggestion that they caused any injury to Surjeet Kaur. He also denied the suggestion that the gun went off accidentally. It will further appear from his statement that many cases are pending between him and Deendayal. and he admitted that Chandra is his brothers wife and a case in respect of beating to her, his mother and sister is going on against Meetpal and other members of his family. He also admitted that his brother Jagdish had come from Jail hardly 4 to 6 days prior to the dale of occurrence and that a case under Sec 107 Criminal Procedure Code. has been tiled by Deendayal against him (Munna) and other members of his family. It will, therefore, be clear that he denied the suggestion that Surjeet Kaur, Deendayal and Meetpal had received any injury. Other witnesses, namely, Dinesh PW.8 and Nasir Khan PW.9 have also stated similarly. 12. It will be clear that each of the above witnesses has stated that so far as Deendayal is concerned, he had come armed with his gun from the house and handed it to his son Meetpal. The accused-appellant Deendayal being an Ex-military personnel knew how to use the gun and if he actually wanted to cause death of Hamid, who could have prevented him from doing so. Rather, he is an old man and he would have tried to save his son and he himself would have used the gun and caused the death of Hamid or any one. There is property dispute, even as per the case of prosecution, between Deendayal and Shailendra Singh. Rather, he is an old man and he would have tried to save his son and he himself would have used the gun and caused the death of Hamid or any one. There is property dispute, even as per the case of prosecution, between Deendayal and Shailendra Singh. The accused Deendayal was having more love and affection for his second wife and her children and so far as other children from his first wife are concerned, he had no love or affection for them, It was Shailendra Singh, who as per the case of the prosecution, had filed a revenue suit against Deendayal. It there would have been any enmity, it should have been with Shailendra Singh. It has already been said in the earlier part of this judgement that as per the case of the prosecution the gun was used from a distance of 20 steps say 30 or at any rate it can be said that the prosecution had come out with a case that it was used from the distance of 20 to 30' It we come to the port-mortem report, there was charring of the skin around the wounds. Dr. Radhey Shaym Sharma PW.7 has Stated that there was burning of the skin around the wounds. Though, in the cross-examination he slated that charring of She skin generally is as a result of gun-powder. The gun should have been fired from a distance of about 3'. According to his statement, if anybody fires from a distance of 2 to 3 then there is charring and blackening of skin and if gun is fired from the distance of 20 there will be no charring or blackening. It can, therefore, be said from his statement that the gun could not have been fired from a distance of more than 2' to 3', and the possibility of the gun being fired from a distance of 2 to 3 can only arise in an accidental fire. The law is settled that the prosecution has to bring home the guilt to the accused beyond reasonable doubt and so far as the burden to prove the case of defence is concerned, it is not so heavy. The law is settled that the prosecution has to bring home the guilt to the accused beyond reasonable doubt and so far as the burden to prove the case of defence is concerned, it is not so heavy. If after considering the evidence of prosecution including the evidence produced in support of exception which the accused pleads, a reasonable doubt is created in the mind of the court that the occurrence did not take place in the manner as alleged by the prosecution, and it might have taken place as alleged by the defence, the accused persons are entitled to acquittal. 13. In the instant case reference has been made earlier to the injuries of Surjeet Kaur, accused-appellant Meetpal and Jitendra. So far as Deendayal is concerned after investigation the Police had filed final report but the learned Sessions Judge took cognizance under Sec.319 Criminal Procedure Code and rightly so as the evidence against accused Meetpal and Dendayal was identical, though the allegation against Deendayal was that he brought his gun from his house and handed it over to Meetpal and exhorted him to kill. It is not stated that accused-appellant exhorted Meetpal to kill whom. There was no enmity with the deceased Hamid and the enmity was with Shailendra Singh. It can therefore be said that the injuries received by Surjeet Kaur and Meetpal have not been explained. Not only this, the injuries of Jitendra who as per the statement of the doctor had received a number of injuries have not been explained. Therefore, in our opinion, no reliance can be placed on the evidence of prosecution witnesses, in so far as the manner in which the occurrence is said to have taken place, is concerned, and the possibility of the occurrence having taken place is the manner as alleged by the defence cannot be excluded. 14. Consequently, we hereby allow the appeal and set aside the judgement of conviction and sentence passed by the Addl. Sessions Judge, Dholpur dated December 18, 1992. The conviction and sentences awarded to the accused-appellants are set-aside. The accused-appellants are acquitted of the various charges levelled against them. Both the accused-appellants are in jail. They shall be released forthwith, if not required to be detained in any other case.Appeal allowed. *******