JUDGMENT 1. - This appeal is directed against the judgment of the learned Additional Sessions Judge, Raisinghnagar dated 29.1.1988 whereby the learned Addl. Sessions Judge has held the accused appellants Ram Pratap, Krishnalal and Jagdish guilty of the offences under sections 302/34 and 342 IPC and has sentenced them to imprisonment for life together with a fine of Rs. 1,000/- and in default to further undergo rigorous imprisonment for six months for the offence under Sections 302/34 IPC and to sue months rigorous imprisonment together with a fine of Rs. 200/- and in default, to further undergo rigorous imprisonment for one month. 2. The facts necessary to be noticed, for the disposal of this appeal briefly stated are : that P.W. 6 Hansraj lodged the FIR Ex.P. 20 at Police Station, Srivijaynagar on 16.12.1986 at about 4 AM stating therein that he and accused Ram Pratap belong to Chak 1 MSD in Tehsil Srivijaynagar, District Sriganganagar. It is alleged that accused Ram Pratap wanted to get allotted a patch of land, which is contiguous to his square No. 124/345, measuring three killas i.e Killas No. 20, 21 and 22 where P.W. 6 Hansraj wanted this land to be allotted for public purpose i.e. for the purpose of village cremation ground and for collection of the bones of animals. It is further alleged that accused Ram Pratap and his brothers wanted to illegally tress-pass on this land and about which, a case is pending in the court of the learned Sub-Divisional Magistrate, Raisinghnagar. 3. It is further alleged that on 15.12.1986, at about 4 PM, brother-in-law of P.W. 6 Hansraj i.e. Bhoopsingh came to meet him and they remained together at their own house upto 7 PM. Bhoopsingh was entertained with a cup of tea and thereafter, at about 7 PM, P.W. 6 Hansraj and his brother-in-law Bhoopsingh went to the field of Hansraj. P.W. 6 Hansraj happens to be a Patwari, who came on leave because his wife's delivery was due. It is alleged that while going to the field of Hansraj, P.W. 6 Hansraj and his brother-in-law Bhoopsingh found P.W. 1 Gyansingh at his Dhuni and therefore, they also stayed there for warming themselves as it was winter season. P.W. 6 Hansraj happens to be a Patwari, who came on leave because his wife's delivery was due. It is alleged that while going to the field of Hansraj, P.W. 6 Hansraj and his brother-in-law Bhoopsingh found P.W. 1 Gyansingh at his Dhuni and therefore, they also stayed there for warming themselves as it was winter season. When Hansraj and Bhoopsingh were warming themselves, it is alleged that, on seeing them at the Dhuni of Gyansingh, accused Ram Pratap started abusing them, whereupon, Hansraj and Bhoopsingh tried to persuade him by telling that after all, it is a Govt, land and to whomsoever, it be allotted, he will possess it and so, there should not be exchange of any abuses. Thereafter, Hansraj and Bhoopsingh went to their field for looking after the crop because in those day, Rose-cows were damaging the crops. On that day, at about 10 PM, when they were returning back from their field, Gyansingh was sitting at his Dhuni and was warming himself. They also stayed there to warm themselves. After some-time, Hansraj went to make water behind a heap of cotton stumps and Bhoopsingh was warming himself at the Dhuni of Gyansingh. Bhoopsingh was noticed by accused Ram Pratap, standing alone on the Dhuni of Gyansingh and Gyansingh at that time went into his own house for sleeping. Accused Ram Pratap, Krishnalal and Jagdish armed with iron Sabbal, country made pistol and 12 bore single barrel gun respectively came there and they immediately caught hold of Bhoopsinsgh. By this sudden attack, Bhoopsingh's gun which was with him fell down and thereafter, accused Ram Pratap gave a Sabbal blow on the head of Bhoopsingh and while availing Bhoopsingh, they dragged him inside the Guwadi of accused Ram Pratap. When Hansraj went to rescue Bhoopsingh from the clutches of the accused persons, to the house of accused Ram Pratap, he saw that accused Jagdish caught hold of Bhoopsingh and accused Krishnalal fired from his pistol on the body of Bhoopsingh, by which, he fell down and accused Ram Pratap availed Bhoopsingh with the iron Sabbal. When Hansraj asked these accused-persons as to why they were beating and killing Bhoopsingh, it is alleged that accused Jagdish ran after Hansraj while firing from his gun but Hansraj ran away towards his house. 4. When Hansraj asked these accused-persons as to why they were beating and killing Bhoopsingh, it is alleged that accused Jagdish ran after Hansraj while firing from his gun but Hansraj ran away towards his house. 4. It Is alleged that while Hansraj was running towards his house, in the way, he met one Surjeet Singh Majabi and narrated to him the entire incident. Seven or eight shots were fired by accused Jagdish outside his house but none of them hit Hansraj. Thereafter, Hansraj and Surjeet Singh tried to go to the Police Station in a Jeep for lodging the FIR but the Jeep did not start and, therefore, he started on foot alongwith Surjeet Singh to report the matter to the Police and lodged the FIR Ex. P. 20 on 16.12.1986 at 4 AM. The Police Station is situated at a distance of about 28 kilometers from Chak 1 MSD. On that basis of this report, the Police registered a case against the accused-appellants Ram Pratap, Jagdish and Krishnalal for the offences under Sections 302, 342/34 IPC and Sections 25 and 27 of the Arms Act. 5. Thereafter, the Police came into action, inspected the site and prepared the site plan. The photographs of the dead body were also taken. The post-mortem examination of the dead body of Bhoopsingh was got conducted and post- mortem report Ex.P. 8 was obtained. The accused-persons were arrested and on their in formations and at their instance, the crime-weapons were got recovered. 6. After usual investigation, the case against the accused appellants was challaned in the court of the learned Munsif & Judicial Magistrate, Anoopgarh, from where, it was committed for trial to the court of the learned Addl. Sessions Judge, Raisinghnagar, who charged the accused appellants for the offences under Sections 302,342 and 302/34 IPC. The accused-persons did not plead guilty to the charges and claimed trial, whereupon, the prosecution examined as many as 9 witnesses in support of its case. The statements of the accused-persons were recorded under S. 313 Cr.P.C. In his statement under S. 313 Cr.P.C., accused Ram Pratap has stated that accused Jagdish and Krishnalal were not present at his house at the time of the alleged occurrence. The statements of the accused-persons were recorded under S. 313 Cr.P.C. In his statement under S. 313 Cr.P.C., accused Ram Pratap has stated that accused Jagdish and Krishnalal were not present at his house at the time of the alleged occurrence. According to him, on the day of the occurrence, Bhoopsingh and P.W. 6 Hansraj and 2-3 more persons in a drunken condition, while abusing and firing from their fire-arms came to his house and P.W. 6 Hansraj asked Bhoopsingh to bring out Ram Pratap from his house. At that time, Bhoopsingh's gun was with Hansraj. Bhoopsingh came inside his house and struck a blow with the wooden Thapi, which is used for washing and beating the clothes to Mst. Krishna, aged about 12 years, who is the daughter of accused Ram Pratap. At that time, Ram Pratap's wife was sitting near the hearth. On hearing the cries of Mst. Krishna, Ram Pratap came out of his Kotha and them scuffled with Bhoopsingh and tried to catch him but in the meantime, Hansraj in order to kill Ram Pratap fired from his gun but that fire hit Bhoopsingh and, thereby, he has been killed. On the next, the Police came to his house and took him along with his brothers Jagdish and Roopram to the Police Station. Accused Ram Pratap has further stated that he never gave any in formations about the recovery of the iron sabbal or bet-sheet and nor any iron sabbal or bed-sheet has bee recovered from his possession. He has further stated that his cousin brother Sahabram reported this matter to the Additional Superintendent of Police, Sri Ganganagar who forwarded this matter to one Bhecvsingh, S.l. for investigation but no enquiry or investigation about this matter was done by him. 7. In his statement under S. 313 Cr.P.C., accused Krishnalal has also stated that he has no concern whatsoever with this murder and he has been falsely implicated in this case by P.W. 6 Hansraj. Accused Jagdish has stated in his statement under S. 313 Cr.P.C. that on that day, the Police took him to the Police Station along with his licenced gun. 8. On behalf of the accused persons statement of D.W. 1 Ram Pratap, D.W. 2 Sahabram and D.W. Mahaveer Pd. Agrawal were recorded. After hearing both the parties, the learned Addl. Accused Jagdish has stated in his statement under S. 313 Cr.P.C. that on that day, the Police took him to the Police Station along with his licenced gun. 8. On behalf of the accused persons statement of D.W. 1 Ram Pratap, D.W. 2 Sahabram and D.W. Mahaveer Pd. Agrawal were recorded. After hearing both the parties, the learned Addl. Sessions Judge has convicted and sentenced the accused-appellants as aforesaid and hence, this appeal. 9. We have heard Mr. M.L. Garg, Senior Advocate assisted by Mr. H.S. Kharaliya for the accused-appellants and Mr. D.R. Bohra, the learned Public Prosecutor for the State and have critically gone through the record of the case. 10. In this case, the sole eye witness of this incident is P.W. 6 Hansraj. In is statement before the court, P.W. 6 Hansraj has stated that on 15.12.1986, at about 4 PM, his brother-in-law Bhoopsingh who belongs to village Sadhuwali came to meet him. They remained together at his house upto 7 PM. He entertained him with a cup of tea and, thereafter, at about 7 PM, they went to look after his standing crop in the field, which is situated near the field of accused Rampratap. In the way, when they reached near the house of P.W. 1 Gyansingh, they found Gyansingh sitting at his Dhuni, where the wooden logs were burning and he was warming himself and, therefore, they also stayed there to warm themselves as those were winter days. Seeing Hansraj and Bhoopsingh standing at the Duni of P.W. 1 Gyansingh, it is alleged that accused Ram Pratap started abusing them, whereupon they asked him why he is abusing them. The land belongs to the Govt, and whoever is allotted this land will possess it. It is alleged that accused Ram Pratap wanted to get that land allotted to him and his brothers. The disputed land consists of Killas No. 20, 21 and 22 of square No. 124/345 of Village 1 MSD. It is alleged that P.W. 1 Hansraj wanted this land allotted for public purposes i.e. for cremation ground and for collecting bones of the animals. After telling this to Ram Pratap, Hansraj and Bhoopsingh went to the field of Hansraj and returned from there at about 10 PM. 11. P.W. 6 Hansraj has further stated that Bhoopsingh had his own licenced gun with him. After telling this to Ram Pratap, Hansraj and Bhoopsingh went to the field of Hansraj and returned from there at about 10 PM. 11. P.W. 6 Hansraj has further stated that Bhoopsingh had his own licenced gun with him. He has further stated that while coming back, they further found P.W. 1 Gyansingh sitting on his Dhuni and he was warming himself and so, they too stayed there to warm themselves. Hansraj, however, went to make water behind a heap of cotton stumps and noticing Bhoopsingh standing alone at the Dhuni of P.W. 1 Gyansingh, because Gyansingh had also gone to his house for sleeping, a lalkara came from the house of accused Ram Pratap that Bhoopsingh is alone and, therefore, he should be availed. Thereafter, accused Ram Pratap, Krishnalal and Jagdish armed with iron sabbal, country made pistol and 12 bore single barrel gun respectively came there and they immediately caught hold of Bhoopsingh. By this sudden attack, Bhoopsingh's gun which was with him, fell down and, thereafter, accused Ram Pratap gave sabbal blow on the head of Bhoopsingh and while availing Bhoopsingh, they dragged him inside the Guwadi of accused Ram Pratap. 12. P.W. 6 Hansraj has also stated that when he went to the house of accused Ram Pratap to rescue Bhoopsingh from the clutches of the accused-persons, he saw that accused Jagdish has caught hold of Bhoopsingh and accused Krishnalal fired from his pistol on the body of Bhoopsingh, by which, he fell down and accused Ram Pratap was availing Bhoopsingh with the iron Sabbal. When Hansraj gave a Lalkara to these accused persons to as why they were beating and killing Bhoopsingh, it is alleged that accused Jagdish came towards Hansraj while firing from his gun but Hansraj ran away towards his house. P.W. 1 Hansraj has stated that it was moon-lit night and, therefore, while standing outside the house of Ram Pratap, he could see the entire incident. He has further stated that about 7 or 8 shots fired at him by accused Jagdish outside his house but they did not hit him. It is alleged that while he was running towards his house, in the way, he met Surjeetsingh Majabi and narrated to him the entire incident. He has further stated that about 7 or 8 shots fired at him by accused Jagdish outside his house but they did not hit him. It is alleged that while he was running towards his house, in the way, he met Surjeetsingh Majabi and narrated to him the entire incident. Thereafter, he and Surjeetsingh tried to go -to the Police Station to report the matter in his jeep, which did not start and, therefore, they went on foot to report the matter to the Police and lodged the report of this incident at Police Station, Anupgarh on 16.12.1986 at 4 AM. 13. Thereafter, the Police came into action, inspected the site and found the deep body of Bhoopsingh lying in the chowk of the house of accused Ram Pratap. It obtained the photographs of the dead body, got the post-mortem examination of the dead-body done and obtained the post- mortem report. 14. The other important witness of this occurrence is P.W. 1 Gyansingh. Although, it is consistent case of the prosecution that P.W. 1 Gyansingh has not seen the occurrence because he went away to his house to sleep but he has been examined to substantially support the testimony of P.W. 6 Hansraj. He has stated that on the day of the occurrence, in the night, P.W. 6 Hansraj and his brother-in-law Bhoopsingh came to his Dhuni and at that time, he was warming himself. After warming himself, he went inside his house and slept. According to him, P.W. 6 Hansraj and Bhoopsingh came at his Dhuni only once at night time and not prior to it i.e. at 7 PM, as alleged by P.W. 6 Hansraj. He has further stated that they came from the side of the field of Hansraj. This witness was declared hostile because earlier, he has stated that they came twice and he heard the noise of gun-fires but now, he has resiled from these statements. Earlier, he has stated that he saw a gun at his Dhuni but now he has resiled from that statement also. However, he has stated that accused Ram Pratap and Hansraj have some dispute about the land. Hansraj wants to get that land allotted for public purposes i.e. for cremation ground and for collection of bones of animals and accused Ram Pratap wants to get that In allotted for himself. However, he has stated that accused Ram Pratap and Hansraj have some dispute about the land. Hansraj wants to get that land allotted for public purposes i.e. for cremation ground and for collection of bones of animals and accused Ram Pratap wants to get that In allotted for himself. He has further admitted that on that day, it was moon-lit night. He has stated that the Police came to their village on the next day. According to him, the Dhani where the houses of accused Ram Pratap and complainant Hansraj are situated, is a small abadi area and on the one side of that Dhani, the house of accused Ram Pratap is situated and on the other side of that Dhani, the house of complainant Hansraj is situated. He has further stated that his house is adjacent to the house of accused Ram Pratap and the field of P.W. 6 Hansraj is just adjacent to the field of accused Ram Pratap and Hansraj has no other field in that village. This witness has further stated that if Hansraj wants to go from his house to his field, the only way for reaching his field goes in front of his house and there is no other way. According to this witness, the other brothers of accused Ram Pratap live in Maghewali Dhani, which situated at a distance of about 9 squares from his village. Thus, this much has been admitted by P.W. 1 Gyansingh who is a hostile witness that P.W. 1 Hansraj and his brother-in-law Bhoopsingh came to his Dhuni in the night on the date of the occurrence to warm themselves and they did not go to the house of accused Ram Pratap. That was a moon-lit night and P.W. 6 Hansraj and Bhoopsingh came from the side of the field of Hansraj. 15. In Khujji v. State of M.P., ( AIR 1991 SC 1853 ) , it has been held by their lordships of the Supreme Court that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. 16. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. 16. Thus, this much of the version given by P.W. 1 Gyansingh has to be believed that on the date of the occurrence, in the night, P.W. 6 Hansraj and Bhoopsingh came to the Dhuni of Gyansingh and he did not see them abusing accused Ram Pratap or anybody else. P.W. 6 Hansraj and Bhoopsingh did not go to the house of accused Ram Pratap but they came to his Dhuni for warming themselves as those were winter days. P.W. 1 Gyansingh further supports the testimony of P.W. 6 Hansraj that at about 10 PM on the date of the occurrence, they came from their field and stayed at the Dhuni of P.W. 1 Gyansingh, who at that time was warming himself and thereafter, went inside his house for sleeping. As per him, they were not accompanied by anybody else. 17. It was contended by Mr. M.L. Garg that P.W. 6 Hansraj has stated that while going to their field seeing P.W. 1 Gyansingh at his Dhuni warming himself, he and his brother-in-law Bhoopsingh stayed at the Dhuni of Bhoopsingh to warm themselves as those were winter days and at that point of time, seeing them at the Dhuni of P.W. 1 Gyansingh, accused Ram Pratap gave abuses to them, whereupon, Hansraj and Bhoopsingh tried to persuade him by telling that after all, it is a Govt, land and to whomsoever, it is allotted, he will possess it and so, there should not be exchange of any abuses. Mr. Garg has submitted that if this version of P.W. 6 Hansraj is correct that accused Ram Pratap gave abuses to them when they were standing at the Dhuni of P.W. 1 Gyansingh at 7 PM on the date of the occurrence, then why P.W. 6 Hansraj and Bhoopsingh came back to the Dhuni of Gyansingh through that way and they could have avoided it. As stated above, P.W. 1 Gyansingh has stated that this was the only way approaching to the field of P.W. 6 Hansraj and there is no other way for going to the field of Hansraj and, therefore, P.W. 6 Hansraj and Bhoopsingh had no option but to come from that side. Earlier when P.W. 6 Hansraj and Bhoopsingh, while going to the field of Hansraj stayed at the Dhuni of P.W. 1 Gyansingh, it was accused Ram Pratap who abused Hansraj and Bhoopsingh and they persuaded him by telling that after all, it is a Govt, land and to whomsoever, it will be allotted, he will possess it and so, there should not be exchange of abuses. Thus, it clearly shows that P.W. 6 Hansraj and Bhoopsingh did not feel enraged. Moreover, P.W. 6 Hansraj never wanted to get this land allotted for himself but he wanted to get this land allotted for public purposes i.e. for cremation ground and for collection of bones of animals and, therefore, he could not have any personal enmity with accused Ram Pratap. As stated by P.W. 6 Hansraj and supported by P.W. 1 Gyansingh, those were winter days and, therefore, naturally to warm themselves, P.W. 6 Hansraj and Bhoopsingh might have stayed at the Dhuni of Gyansingh, which was quite natural because they had no enmity whatsoever with accused Ram Pratap and so, there was no need to avoid that way. This appears to be quite natural. 18. Had Hansraj and Bhoopsingh and 2-3 more persons in a drunken condition, while abusing Ram Pratap and firing from their arms come to the house of accused Ram Pratap, P.W. 1 Gyansingh who is the neighbour of accused Ram Pratap must have certainly stated these facts in his statement before the Court. Even in cross-examination, P.W. 1 Gyansingh has stated that only P.W. 6 Hansraj and Bhoopsingh came at his Dhuni in the night on the date of the occurrence. Thus, the story developed by accused Ram Pratap in his statement under S. 313 Cr.P.C. that P.W. 6 Hansraj and Bhoopsingh and 2-3-more persons in a drunken condition, while abusing and firing from their fire-arms came to his house stands belied. Thus, the story developed by accused Ram Pratap in his statement under S. 313 Cr.P.C. that P.W. 6 Hansraj and Bhoopsingh and 2-3-more persons in a drunken condition, while abusing and firing from their fire-arms came to his house stands belied. The Dhani in which the houses of accused Ram Pratap and P.W. 6 Hansraj are situated is a small abadi area where all people are recognised by everybody else and, therefore, if 2-3 more persons were accompanying P.W. 6 Hansraj and Bhoopsingh, accused Ram Pratap might have named them and P.W. 1 Gyansingh who appears to be favourably disposed of towards his neighbour as he has turned hostile, must certainly have supported the defence version. 19. In his statement, P.W. 6 Hansraj has stated that while coming back from his field, they again stayed at the Dhuni of P.W. 1 Gyansingh to warm themselves and at that point of time, Gyansingh was also warming himself but after some-time, Gyansingh went inside his house for sleeping and he went to urinate. At that point of time, it is alleged that Bhoopsingh was initially availed with an iron sabbal by accused Ram Pratap and thereafter, while availing him, accused-appellants Ram Pratap, Jagdish and Krishnalal dragged him inside the house of accused Ram Pratap. On the other hand, in his statement under S. 313, Cr.P.C., accused Ram Pratap has stated that P.W. 6 Hansraj and Bhoopsingh and 2-3 more persons in a drunken condition while abusing and firing from their fire-arms came to his house and P.W. 6 Hansraj asked his brother-in-law Bhoopsingh to bring out Ram Pratap from his house. If that story (defence story) would have been true then Bhoopsingh's gun would not have fallen down at the Dhuni of Gyansingh, where it was found on the next day. 20. It was contended by Mr. Garg on the basis of this contradiction that Bhoopsingh looked behind while he was urinating or after urinating. That of course is not material that one may look back on seeing an attack on his companion while urinating or after urinating. What is material is that P.W. 6 Hansraj has seen that his brother- in-law Bhoopsingh was dragged by accused Ram Pratap, Jagdish and Krishnalal inside the house of Ram Pratap. 21. That of course is not material that one may look back on seeing an attack on his companion while urinating or after urinating. What is material is that P.W. 6 Hansraj has seen that his brother- in-law Bhoopsingh was dragged by accused Ram Pratap, Jagdish and Krishnalal inside the house of Ram Pratap. 21. It is alleged that there was a scuffle between accused Ram Pratap and Bhoopsingh because Bhoopsingh inflicted a blow on the head of Mst. Krishna. In his statement under S. 313 cr.P.C., the accused Ram Pratap has stated that blow was inflicted to Mst. Krishna with a wooden Thapi, by which clothes are washed and beaten. If that story was true, the accused-persons might have reported this matter to the Police but that was not done and, therefore, this defence story stands belied. Be that as it may, accused Ram Pratap and deceased Bhoopsingh were of the same age group with a difference of about two years i.e. one was aged about 34 years and the other was aged about 36 years on the date of the occurrence. If there would have been any scuffle between Bhoopsingh and accused Ram Pratap, accused Ram Pratap would have certainly received injuries but when he was arrested on the next day by the Police, the Police did not find any injuries on his person. P.W. 6 Hansraj has stated that Bhoopsingh was a stout person and, therefore, without getting him injured, it was not possible for accused Ram Pratap to cause such bodily injuries to him all by himself. The case of P.W. 6 Hansraj is that Sabbal blow was inflicted to Bhoopsingh by accused Ram Pratap and, thereafter, Bhoopsingh was dragged inside the house of accused Ram Pratap by accused Ram Pratap, Jagdish and Krishnalal. Moreover, about 7 injuries by blunt weapon were found on the person of Bhoopsingh, about which no explanation whatsoever has been offered. 22. P.W. 3 Dr. Vijay Kumar has categorically stated that he found 7 injuries by blunt weapon on the body of deceased Bhoopsingh. Injuries No. 2, 3 and 4 were grievous in nature and injury No. 8 was received by fire-arm. He has further opined that in that ordinary course of nature, these injuries were sufficient to cause the death of Bhoopsingh. He has found that the lungs of deceased were ruptured and his liver was lacerated. Injuries No. 2, 3 and 4 were grievous in nature and injury No. 8 was received by fire-arm. He has further opined that in that ordinary course of nature, these injuries were sufficient to cause the death of Bhoopsingh. He has found that the lungs of deceased were ruptured and his liver was lacerated. Such injuries were not possible in a scuffle. 23. Moreover, one iron sabbal has been recovered on the information and at the instance of accused Ram Pratap and the blood stains found on it were not sufficient for test as per the Chemical Examiner. However `O' Group blood was found in the bed sheet which were recovered on the information and at the instance of accused Ram Pratap. This very blood group was detected from the blood which was found on the clothes of deceased Bhoopsingh. 24. The story put forth by the defence that it was P.W./ 6 Hansraj who fired from his gun at accused Ram Pratap which has hit bhoopsingh is not believable because gun was recovered at the Dhuni of Gyansingh on the next day by the Police. Moreover, it could not have been fired by P.W. 6 Hansraj because the cartridge which could be fired from that gun were carried by Bhoopsingh in the bag which was recovered at the house of accused Ram Pratap from his person i.e. his dead body. It is nobody's case that P.W. 6 Hansraj ever entered into the house of accused Ram Pratap and put that bag of cartridges there with the dead body of Bhoopsingh. Moreover, the Doctor has stated that the injury received from fire-arm was fired from a close range because blackening and tatooing was there. It is alleged that accused Krishnalal who was armed with a country made pistol fired from his gun and he has fired it from a close range. Had P.W. 6 Hansraj fired from the gun while standing outside the house of accused Ram Pratap then the range of the fire would have been much larger and blackening and tattooing could not have been there. Thus, P.W. 3 Dr. Vijay Kumar supports the testimony of P.W. 6 Hansraj that it was accused Krishnalal who fired from his country made pistol at Bhoopsingh. It is not the case of P.W. 6 Hansraj that accused Jagdish fired from his country made pistol at Bhoopsingh. Thus, P.W. 3 Dr. Vijay Kumar supports the testimony of P.W. 6 Hansraj that it was accused Krishnalal who fired from his country made pistol at Bhoopsingh. It is not the case of P.W. 6 Hansraj that accused Jagdish fired from his country made pistol at Bhoopsingh. It is not the case of P.W. 6 Hansraj that accused Jagdish fired from his gun on injured Bhoopsingh and, therefore, to this extent, the statement of P.W. 6 Hansraj appears to be reliable. 25. Thus, we are firmly of the view that the learned Additional Sessions Judge was right in placing reliance on the testimony of P.W. 6 Hansraj that it was accused Krishnalal who has fired from his pistol. Moreover, the testimony of P.W. 6 Hansraj is fully supported by the testimony of the P.W. 3 Dr. Vijay Kumar and to some extent, the testimony of P.W. 1 Gyansingh. 26. It was next contended by Mr. Garg that accused Jagdish did not participate in the occurrence. It is true that P.W. 6 Hansraj has stated that on seeing Bhoopsingh standing alone at the Dhuni of P.W. 1 Gyansingh, the accused-appellants Ram Pratap, Jagdish and Krishnalal came there and initially, they scuffled with Bhoopsingh and accused Ram Pratap gave a sabbal blow to Bhoopsingh, by which, the gun possessed by Bhoopsingh fell down and thereafter, while availing Bhoopsingh, these accused-persons dragged him inside the house of accused Ram Pratap. P.W. 6 Hansraj has further stated that when he went to rescue Bhoopsingh from the clutches of accused-persons at the house of accused Ram Pratap, while standing outside his house, he saw that accused Jagdish has caught Bhoopsingh and accused Krishnalal fired from his pistol on the body of Bhoopsingh, by which he fell down and accused Ram Pratap availed Bhoopsingh with the iron Sabbal. When Hansraj gave a Lalkara, it is alleged that accused Jagdish followed or went after Hansraj while firing from his gun but Hansraj ran away towards his house. In this case, the fired empties which have been found on the way have not been connected with the gun of Bhoopsingh. Even no ballistic report about those empties has been received. Moreover, no injury has been received on the person of P.W. 6 Hansraj. Mr. Garg has stated that it is not the case of the prosecution that accused Jagdish has inflicted any injury to deceased Bhoopsingh. Even no ballistic report about those empties has been received. Moreover, no injury has been received on the person of P.W. 6 Hansraj. Mr. Garg has stated that it is not the case of the prosecution that accused Jagdish has inflicted any injury to deceased Bhoopsingh. The only allegation against him is that he along with accused Krishnalal and Ram Pratap was responsible for dragging Bhoopsingh inside the houst f accused Ram Pratap and thereafter, he caught hold of Bhoopsingh. Had accused Jagdish participated in the occurrence, he would have inflicted injuries to Bhoopsingh either from his gun or by his hands and it is not probable that inspite of firing 7-8 rounds, not a single fire would hit P.W. 6 Hansraj and so, to this extent, the benefit of doubt has to be extended to accused Jagdish. His participation in the occurrence has not been fully established beyond all pale of doubt. 27. It is true that P.W. 6 Hansraj is an interested witness. It has been held by their lordships of the Supreme Court in B.N. Singh v. State of Gujarat, ( AIR 1990 SC 1628 ) that the testimony of the interested witness should not be discarded out rightly. It needs careful scrutiny and if the testimony of an interested witness is supported by the medical evidence and the FIR has been lodged promptly wherein all the facts have been stated, then such a testimony of interested witness has to be believed. It is true that had the ballistic report been produced before the .Court, would have supported the testimony of P.W. 6 Hansraj that accused Jagdish participated in the occurrence and these empties found outside the house of accused Ram Pratap could be connected with the fire-arm of accused Jagdish but when that circumstance is lacking, it is difficult to connect accused Jagdish with this crime with all certainty. 28. In this respect, we place reliance on a decision of their lordships of the Supreme Court in Gurucharan Singh v. State of Punjab, ( AIR 1963 SC 340 ) , wherein it has been observed that where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused with a gun and they prima facie appear to have been inflicted by a rifle, undoubtedly the apparent inconsistency can be cured on the oral evidence of a ballistic expert. In this case, as stated above, the fire-arm injury received by Bhoopsingh has been connected with the country made pistol of accused Krishnalal but so far as the fire-empty found outside the house of accused Ram Pratap are concerned, the testimony of P.W. 6 Hansraj appears to be suspicious because as per him, while persuading him, accused Jagdish fired 7-8 rounds at him but as per medical evidence, he did not receive any injury what to say about any fire-arm injury and, therefore, to this extent, the testimony of P.W. 6 Hansraj is not corroborated by the testimony of medical evidence. Moreover, the prosecution has failed to produce the report of the ballistic expert. Therefore, to this extent, the evidence of P.W. 6 Hansraj that accused Jagdish participated in the occurrence has not been fully established and so, benefit of doubt has to be extended to accused Jagdish. 29. So far as accused Krishnalal is concerned, it is alleged that he was armed with a country made pistol and the evidence of P.W. 6 Hansraj in this respect is fully supported by the medical testimony that the fire-arm injury received by Bhoopsingh was from a close range, which has resulted in tattooing and blackening and, therefore, the view taken by the learned Addl. Sessions Judge that to this extent, the testimony of P.W. 6 Hansraj is reliable and can be acted upon, appears to be sustainable. 30. The testimony of P.W. 6 Hansraj as regards the involvement of accused Ram Pratap and infliction of injuries by him with an iron sabbal is also fully corroborated by the medical evidence of P.W. 3 Dr. Vijay Kumar and, therefore, the cross case set up by the defence appears to be unreasonable and improbable. The cross-case set up by the defence appears to be an after-thought case. In view of what has been discussed here in above, the testimony of P.W. 6 Hansraj as regards the involvement of accused Ram Pratap and Krishnalal deserves to be believed. 31. It was next contended by Mr. Garg that in this case, there is no independent witness and there is also no sufficient corroboration by the testimony of independent witnesses to hold that accused-appellants Krishnalal and Ram Pratap are guilty of the offences under Sections 302/34 and 342 IPC and, therefore, they should not be convicted. 31. It was next contended by Mr. Garg that in this case, there is no independent witness and there is also no sufficient corroboration by the testimony of independent witnesses to hold that accused-appellants Krishnalal and Ram Pratap are guilty of the offences under Sections 302/34 and 342 IPC and, therefore, they should not be convicted. In this respect, he has placed reliance on a decision of this Court in Dharam Pal v. State of Raj. (1991 Cr.L.R. (Raj.) 608) . 32. In this case, as stated above, the testimony of P.W. 6 Hansraj is corroborated to some extent by the testimony of P.W. 1 Gyansingh and it is fully corroborated by the medical testimony of P.W. 3 Dr. Vijay Kumar, so far as the involvement of accused Ram Pratap and Krishnalal arc concerned. However, the testimony of P.W. 6 Hansraj is doubtful whether accused Jagdish participated in the occurrence or not because to that extent, his testimony is not corroborated by the testimony of medical evidence and ballistic expert's report. 33. P.W. 3 Dr. Vijay Kumar has stated that me injuries which were received by iron sabbal were sufficient in the ordinary course of nature to cause the death of Bhoopsingh because the blows were so heavy that they have broken two to seven ribs in his right side of chest and the lungs were punctured and liver was lacerated. It is one thing that fire-arm injuries received by Bhoopsingh have not proved fatal but the intention of accused can be gathered from that act that the accused persons intended to kill Bhoopsingh and, therefore, in our considered opinion, the accused-appellants Ram Pratap and Krishnalal have been rightly held guilty of the offences under Sections 302/34 and 342 IPC by the learned Addl. Sessions Judge. 34. It was next contended by Mr. Garg that there was a dispute about the allotment of land between P.W. 6 Hansraj and accused Ram Pratap and when P.W. 6 Hansraj himself was available to the accused-appellants then why the brother- in-law of P.W. 6 Hansraj i.e. Bhoopsingh was availed ? That was just by chance that Bhoopsingh alone was found present at the Dhuni of P.W. 1 Gyansingh and, therefore, he was availed by the accused persons. P.W. 6 Hansraj had gone to make water behind a heap of cotton stumps and therefore, he was not visible to them. 35. That was just by chance that Bhoopsingh alone was found present at the Dhuni of P.W. 1 Gyansingh and, therefore, he was availed by the accused persons. P.W. 6 Hansraj had gone to make water behind a heap of cotton stumps and therefore, he was not visible to them. 35. In the result, this appeal is allowed in part. The conviction and sentences recorded against accused- appellant Jagdish for the offences under Sections 302/34 and 342 IPC are set aside and he is acquitted of the aforesaid offences. He is already on bail and so, he need not surrender to his bail bonds. His licenced gun be returned to him, on production of a valid licence. 36. However, the conviction and sentences recorded against accused-appellants Ram Pratap and Krishnalal for the offences under Sections 302/34 and 342 IPC by the learned Addl. Sessions Judge are maintained. 37. Let the record of this case be sent back to the learned lower court forthwith and the result of this appeal be conveyed to the accused-appellants through the jail authorities. *******