JUDGMENT 1. - This appeal is directed against the judgment of the learned Additional Sessions Judge No. 2, Jodhpur dated 3.12.1992 whereby the learned Addl. Sessions Judge has held the accused-appellant-Bhanwarsingh guilty of the offence under section 302 Indian Penal Code r/w Section 27 of the Arms Act and has sentenced him to imprisonment for life for the offence under section 302 Indian Penal Code and to one year's rigorous imprisonment together with a fine of Rs. 200/- and in default, to further undergo two months rigorous imprisonment for the offence under section 27 of the Arms Act. The learned Addl. Sessions Judge has also held the accused-appellant-Dharma Ram guilty of the offence under section 302/109 Indian Penal Code and has sentenced him to rigorous imprisonment for life for the offence under section 302/109 Indian Penal Code. In addition to that, the learned Additional Sessions Judge has further ordered the accused-appellants-Bhanwarsingh and Dharma Ram to pay compensation to the wife and children of deceased-Arjunsingh amounting to Rs. 75,000/- and 25,000/- respectively within a period of three months from the date of the judgment. The accused-appellant-Bhanwarsingh was directed to pay this amount of compensation in three instalments of Rs. 25,000/- each. The gun of accused-Bhanwarsingh has been ordered to be forfeited to the State because it has been illegally used by him. 2. The facts, necessary to be noticed, for the disposal of this appeal briefly stated are : that in Jodhpur City, in the vicinity of Ghoron-ka-Chowk, there exists a building, which is known as Sindala House. There are certain shops situated on the western side of this building, which was earlier owned by Rana Chhatra Singh. It was bequeathed by him to his wife PW-9 Mst. Ummed Kumari. It is alleged that shops No. 7 and 8 alongwith half portion of the stair-case were sold by Mst. Ummed Kumari in the year 1974 to Beharilal Radhavallabh and Anopram Soni alongwith their roofs but later on, they were purchased by DW-3 Hukamichand Soni, who in his turn sold this property to accused-Bhanwarsingh, who claims that these two shops alongwith half portion of the stair case and roofs over it belongs to him. 3. It is alleged that complainant-Rajesh's father Shyamlal Solanki was the tenant of Shop No. 8 and half portion of the stair case from the time of Rana Chhatra Singh. 3. It is alleged that complainant-Rajesh's father Shyamlal Solanki was the tenant of Shop No. 8 and half portion of the stair case from the time of Rana Chhatra Singh. It is further alleged that when these shops were sold to accused-Bhanwarsingh, complainant-Rajesh and his father Shyamlal became the tenants of accused-Bhanwarsingh. Accused-Bhanwarsingh carries on his business in Shop No. 7 under the name and style of M/s. Chamunda Traders and in shop No. 8, complainant-Rajesh carries on his business of colouring cycles etc. and his colour plant is situated on the roof of shops No. 7 and 8. It is alleged that since shop No. 8 has been taken on rent by Shyamlal, father of complainant-Rajesh, Rajesh is also using the roof of Shop No. 8 and is paying rent @ Rs. 30/ per month to Mst. Ummed Kumari, wife of Chhatra Singh. Rest half of the stair case, which is situated near Shop No. 8 has been taken on rent by complainant-Rajesh from one Saligram, who is the owner of Shop No. 9. Thus, complainant-Rajesh and earlier his father Shyamlal used to pay rent of Shop No. 8 alongwith half portion of the stair case to accused-Bhanwarsingh and they further pay rent of the roof of Shops No. 7 and 8 to PW-9 Mst. Ummed Kumari. It is alleged that accused-Bhanwarsingh, who claims himself to be the owner of the roof of shops No. 7 and 8 also wanted to get this roof vacated from complainant-Rajesh and, therefore, complainant-Rajesh filed a suit, in which, he obtained a stay order in his favour from the Court to the effect that the status quo as regards the possession of the roof be maintained. Against that stay order, an appeal was filed, in which, the aforesaid stay order was confirmed by the learned Additional Sessions Judge No. 2, Jodhpur vide his order dated 28.11.1990, and, therefore, the roof of Shops No. 7 and 8 is being used by complainant-Rajesh. 4. It is further alleged that in between these 12 shops, there is a pole and its roof has been sold by Mst. Ummed Kumari to DW-3 Hukamichand Soni vide Sale deed Ex.D/10, which has been admitted by PW-9 Mst. Ummed Kumari. Later on, it is alleged that this roof was resold by DW-3 Hukamichand to Mst. Ummed Kumari and accused-Bhanwarsingh jointly. Ummed Kumari to DW-3 Hukamichand Soni vide Sale deed Ex.D/10, which has been admitted by PW-9 Mst. Ummed Kumari. Later on, it is alleged that this roof was resold by DW-3 Hukamichand to Mst. Ummed Kumari and accused-Bhanwarsingh jointly. It is nobody's case that the roof of this pole ever remained in possession of complainant-Rajesh and his father Shyamlal. It is further alleged that inside the pole, there also exists stair case, which goes towards the roof of the pole. It is alleged by complainant-Rajesh that he used this stair-case, which is situated inside the pole for going on the roof of Shop No. 7 and 8. According to complainant-Rajesh, on the date of the occurrence, i.e. on 1.6.1989, when he was going on the roof of Shops No. 7 and 8 through this stair case, accused-Bhanwarsingh who is alleged to be the co-owner of the roof of the pole asked him not to use this stair case for going on the roof of shops No. 7 and 8. At that time, accused-Dharma Ram and Vishnu Kumar were also standing there. It is alleged that when complainant-Rajesh was stopped from using this stair case for going on the roof of Shops No. 7 and 8, he called his uncle Arjun Singh from his shop, which is situated nearby Sindala House. When complainant-Rajesh and his Uncle-Arjunsingh were going inside the pole, PW-4 Mohd. Sabir, Mechanic also accompanied them and PW-7 Achal Dass, who was standing on the Taxi Stand also came near the Pole. When complainant-Rajesh and his Uncle Arjunsingh wont inside the Pole, they tried to persuade accused-Bhanwarsingh to allow Rajesh to use that stair case for going on the roof of Shops No. 7 and 8 because Rajesh has always been using that stair case. On this, it is alleged that accused-Bhanwarsingh told them that if they use this stair-case for going on the roof of Shops No. 7 and 8, he will shoot them. It is alleged that accused-Dharma Ram told accused-Bhanwarsingh that if complainant-Rajesh and his Uncle Arjunsingh do not accept his command, then they must be shot dead. It is further alleged. that accused-Vishnu Kumar also told accused-Bhanwarsingh that if complainant-Rajesh and his Uncle Arjunsingh do not agree with his command, today he must decide the matter then and there. It is alleged that accused-Dharma Ram told accused-Bhanwarsingh that if complainant-Rajesh and his Uncle Arjunsingh do not accept his command, then they must be shot dead. It is further alleged. that accused-Vishnu Kumar also told accused-Bhanwarsingh that if complainant-Rajesh and his Uncle Arjunsingh do not agree with his command, today he must decide the matter then and there. On this, it is alleged that accused-Bhanwarsingh went inside the room of his house and brought a loaded gun. As soon as he came out, he shouted that today he is going to give them a right on the stair case and the roof and he fired at Arjunsingh from his licenced 12 bore single barrel gun, which hit Arjunsingh on his right thigh, by which, he fell down. It is alleged that this incident was seen by PW-4 Mohd. Sabir, PW-7 Achaldass and PW-9 Mst. Ummed Kumari. Thereafter, it is alleged that complainant-Rajesh took away injured Arjunsingh to the Hospital in a Taxi and he was admitted in M.G. Hospital, Jodhpur. At the time of lodging FIR about this incident, injured Arjunsingh was unconscious and to this effect, there is a mention in the FIR that injured Arjunsingh is still unconscious and the cause of incident is that there was a long standing enmity between complainant-Rajesh and accused-Bhanwarsingh as regards the use of roof of Shops No. 7 and 8 and, therefore, accused-Bhanwarsingh has fired at Arjunsingh to take the revenge. 5. A written report of this incident, which was got scribed from one Om Prakash Choudhary was presented to the Police at the place of the occurrence, which has, been marked as Ex.P/2. It has been stated by complainant-Rajesh and other witnesses that after firing at Arjunsingh, accused-Bhanwarsingh went inside his house and ran behind complainant-Rajesh to kill him with his gun but Rajesh went to Police Chowki, Sojati Gate, where he met Constable Avardan and related to him the entire incident. Constable Avardan told Rajesh to go to the Police Control Room and report this matter to the SHO, City Police. He then went to the Police Control Room, where he was informed that the SHO has already left for the Ghoron-ka-Chowk and, therefore, he went to Ghoron-ka-Chowk and submitted this report to the SHO Mangusingh, who has been examined as PW-22 in this case. He then went to the Police Control Room, where he was informed that the SHO has already left for the Ghoron-ka-Chowk and, therefore, he went to Ghoron-ka-Chowk and submitted this report to the SHO Mangusingh, who has been examined as PW-22 in this case. It is further alleged that when accused-Bhanwarsingh was running behind complainant-Rajesh, he was encircled by one Ramesh and others and his gun was snatched from him by Ramesh and, thereafter, the persons assembled there gave a beating to accused-Bhanwarsingh. Thereafter, accused-Bhanwarsingh came back to his house and was found sitting in his room with the gun by the SHO, who arrested him and, thereafter, he being injured was also got admitted in the Hospital, where medical examination of his injuries was got conducted. He received four injuries on his person and his injury report is Ex.D/14. On X-ray, it was found that there was a fracture of mid shaft of his ulna. His X-ray report is Ex.D/15. About this incident, accused-Bhanwarsingh has also filed a complaint in the Court of the learned Addl. Chief Judicial Magistrate No. 4, Jodhpur, the copy of which was received by the SHO, who registered that FIR, which has been marked as Ex.D/16. 6. After receiving this report, the SHO went to the Hospital and gave a requisition for the examination of Arjunsingh but it was reported by the Doctor that he being unconscious, is not in a position to give his statement. Thereafter, it is alleged that on that very night, Arjun Singh succumbed to the injuries received by him and his post-mortem-examination was got conducted. The injury report of Arjunsingh is Ex.P/33 and his post-mortem-examination report is Ex.P/34. His X-ray report is Ex.P/26, whereby it was found that there were multiple mettalic R.O. density shadows, which were seen in shoft tissues of right thigh. 7. On the next day, the Police inspected the site and prepared the site plan Ex.P/17 and site inspection memo Ex.P/3. The photographs of the site were got t..en with the help of PW-16 Kanti Prakash vide Memo Ex.P/4. The Inquest Memo Ex.P/11 and Panchnama Lash Ex.P/12 were prepared and the blood stained clothes of the deceased were taken into possession by the Police vide Memo Ex.P/15. Upon search of the house of accused-Bhanwarsingh, his licenced gun and certain cartridges were recovered by the police on 1.6.1989 itself. The Inquest Memo Ex.P/11 and Panchnama Lash Ex.P/12 were prepared and the blood stained clothes of the deceased were taken into possession by the Police vide Memo Ex.P/15. Upon search of the house of accused-Bhanwarsingh, his licenced gun and certain cartridges were recovered by the police on 1.6.1989 itself. The accused-Bhanwarsingh was arrested on the same day vide Memo Ex.P/39. The Bed-head ticket of Arjun singh has been marked as Ex.P/42. 8. After usual investigation, the case against the accused-persons was challaned in the Court of the learned Addl. Chief Judicial Magistrate No. 4, Jodhpur, from where, it was made over for trial to the Court of the learned Sessions Judge, Jodhpur who transferred it for trial to the Court of the learned Addl. Sessions Judge No. 2, Jodhpur. After trial, the learned Addl. Sessions Judge No. 2, Jodhpur has convicted and sentenced the accused-appellants as aforesaid and hence this appeal. 9. We have heard Mr. S.R. Singhi, Senior Advocate assisted by Mr. J.S. Choudhary and Mr. Suresh Kumbhat learned counsel appearing for the accused-appellants and Mr. P.N. Mohanani, learned Special Public Prosecutor assisted by Mr. Vishal Raj Mehta, the learned Public Prosecutor appearing for the State and have critically gone through the record of the case. 10. In this case, the prosecution has examined five alleged eye-witnesses of the occurrence and they are : PW-1 Rajesh, PW-4 Mohd. Sabir, PW-7 Achaldass, PW-9 Mst. Ummed Kumari and PW-18 Mst. Chandrakanta. Out of these five alleged eye-witnesses, PW-4 Mohd. Sabir and PW-7 Achal Dass have turned hostile and they have stated that they have not seen the actual shooting. Of course, PW-9 Mst. Ummed Kumari has also stated that she did not see the actual shooting but as per Mst. Ummed Kumari, when she saw the incident, accused-Bhanwarsingh was armed with a gun and, therefore, she concluded on hearing the noise of the gunshot that accused-Bhanwarsingh has fired that gun. PW-18 Mst. Chandrakanta is the real mother-in-law of complainant-Rajesh. Her house is situated very near to the place of the occurrence. She was very much present at her house when the police came but for the first time, she has been examined by the Police on 22.6.1989. Her name does not find mention in the FIR also and, therefore, we are firmly of the view that PW-18 Mst. Her house is situated very near to the place of the occurrence. She was very much present at her house when the police came but for the first time, she has been examined by the Police on 22.6.1989. Her name does not find mention in the FIR also and, therefore, we are firmly of the view that PW-18 Mst. Chandra Kanta is an after thought and a planted witness, who has actually not seen the occurrence but in order to bolster up the case of the prosecution, she has been examined as an eye-witness of the occurrence. PW-15 Ashok Kumar Trivedi, Circle Inspector, who has investigated the case initially has categorically stated that it was not disclsoed to him that Mst. Chandrakanta has seen the occurrence. Even PW-22 Mangusingh has also stated that on the date of the occurrence, it was not disclosed to him that Mst. Chandrakanta has seen the occurrence and, therefore, as per him, PW-18 Mst. Chandrakanta is a planted witness. Thus, so far as actual shooting is concerned, the only witness who has seen the occurrence is PW-1 Rajesh, who is the complainant in this case. 11. PW-1 Rajesh has supported the prosecution case. He has stated that he is the tenant of accused-Bhanwarsingh, who has let out Shop No. 8 and half portion of the stair case to him. The rest half of the stair case has been taken on rent by him from one Saligram, who is the owner of Shop No. 9. He has further stated that earlier to him, his father was the tenant of this Shop No. 8, which is owned by accused-Bhanwarsingh but as per him, he and his father used the roofs of Shops No. 7 and 8. According to him, accused-Bhanwarsingh wanted to get this roof vacated from him, which he has taken on rent from Mst. Ummed Kumari @ Rs. 30/- per month. This is what has been stated by PW-9 Mst. Ummed Kumari. PW-9 Mst. Ummed Kumari has stated that she is being paid Rs. 30/- per month as rent of the roof of Shops No. 7 and 8, This statement of PW-9 Mst. Ummed Kumari has been totally falsified by the testimony of DW-3 Hukamichand Soni, who has stated that initially these shops were purchased by one Beharilal Radhavallabh and Anoop Ram Soni vide Sale deed Ex.D/7. 30/- per month as rent of the roof of Shops No. 7 and 8, This statement of PW-9 Mst. Ummed Kumari has been totally falsified by the testimony of DW-3 Hukamichand Soni, who has stated that initially these shops were purchased by one Beharilal Radhavallabh and Anoop Ram Soni vide Sale deed Ex.D/7. The sale deed Ex.D/7 categorically says that Shops No. 7 and 8 alongwith their roofs have been sold to them. Thereafter, these shops alongwith stair case and roof were purchased by DW-3 Hukamichand Soni vide Sale deed Ex.D/8 and later on these shops alongwith stair case and roof were sold to accused-Bhanwarsingh vide sale deed Ex.D/9. The sale deed Ex.D/7 is signed by PW-9 Mst. Ummed Kumari and, therefore, it cannot be said that she has not sold shops No. 7 and 8 alongwith their roof. The fact that the roof of the pole of Sindala House has been sold to DW-3 Hukamichand Soni is further clear from the sale deed Ex.D/10, which has been proved by DW-3 Hukamichand Soni and admitted by PW-9 M. Ummed Kumari that the roof of the pole was sold by her to DW-3 Hukamichand Soni. Now, PW-9 Mst. Ummed Kumari says that it was not a sale but she mortgaged this roof with DW-3 Hukamichand Soni and a sale deed was got executed with an agreement to re-purchase it and that roof was really re-purchased by her vide sale deed Ex.D/11. According to PW-9 Mst. Ummed Kumari, while repurchasing this roof of the pole, accused-Bhanwarsingh got his name inserted in the sale deed as owner of this roof. Be that as it may, from these documents and the statements, it is amply clear that the roof of shops No. 7 and 8 belong to accused-Bhanwarsingh and not Mst. Ummed Kumari and, therefore, to this extent, the statement of PW-1 Rajesh that he has taken the roof of shops No. 7 and 8 on rent from Mst. Ummed Kumari @ Rs. 30/- per month appears to be false. No rent deed has been produced. 12. Be that as it may, PW-1 Rajesh has stated that on the date of the occurrence, he wanted to go on the roof of shops No. 7 and 8 which he was using under the orders of the Court. Ummed Kumari @ Rs. 30/- per month appears to be false. No rent deed has been produced. 12. Be that as it may, PW-1 Rajesh has stated that on the date of the occurrence, he wanted to go on the roof of shops No. 7 and 8 which he was using under the orders of the Court. For going there, he wanted to take use of the stair case, which was existing inside the pole of Sindala House and from that stair case, initially one has to go on the roof of the pole and, thereafter, he could go on the roof of the shops No. 7 and 8. When complainant-Rajesh wanted to take use of that stair-case, it was resisted by accused-Bhanwarsingh, whereupon, complainant-Rajesh called his uncle Arjunsingh and further told his own employee Mohd. Sabir to accompany him. He also requested PW-7 Achaldass to accompany him. They all went inside the pole.and it is alleged that accused Dharmaram and Vishnu Kumar were standing there and when the complainant-Rajesh and his companions tried to use that stair case,it was told to them that if they will go by that stair case, they will be shot dead. It is alleged that accused-Dharmaram instigated accused-Bhanwarsingh that if complainant-Rajesh and his Uncle Arjunsingh do not respect their command then they should be shot dead. Thereafter, accused-Bhanwarsingh went inside his room and brought out his licenced gun and shot at Shri Arjunsingh, which hit him on his right thigh. 13. It was contended by Mr. P.N. Mohanani, the learned Special Public Prosecutor appearing for the State that this fact that upon instigation by accused-Dharmaram, accused-Bhanwarsingh went inside his room and brought out his licenced gun and shot at Arjunsingh, which.hit him on his right thigh, stands fully corroborated by the FIR Ex.P/2, which was given to the SHO Mangusingh at the place of the occurrence, when the police came to the site. It is further corroborated by the testimony of PW-9 Mst. Ummed Kumari and PW-18 Mst. Chandrakanta and, therefore, this story should be believed. 14. It has been further stated by PW-1 Rajesh that soon after the firing of the gun, Bhanwarsingh went inside the room and then came out with his gun and ran behind him, whereupon he ran towards the Police Chowki, Sojati Gate, where he informed Avardan Constable about everything that has happened with him and his uncle etc. 14. It has been further stated by PW-1 Rajesh that soon after the firing of the gun, Bhanwarsingh went inside the room and then came out with his gun and ran behind him, whereupon he ran towards the Police Chowki, Sojati Gate, where he informed Avardan Constable about everything that has happened with him and his uncle etc. at Sinda House but he was told to go to the Police Control Room. PW-1 Rajesh has further stated that when he went to the Police Control Room, he was told that the Police has gone to Ghoron Ka Chowk and, therefore, he came back to the place of the occurrence. When he came back, he was informed by PW-11 Rajendra, who is his next door neighbour that gun has been snatched from accused-Bhanwarsingh by PW-5, Ramesh and accused-Bhanwarsingh has been beaten by the public by that gun and, thereby, that gun has been broken. However, he got the written report scribed from one Om Prakash Choudhary and gave it at the spot to SHO Mangu Singh, PW-22. 15. The prosecution story regarding snatching of the gun by PW-5 Ramesh while accused-Bhanwarsingh was running behind complainant-Rajesh is supported by the testimony of PW-5 Ramesh and PW-11 Rajendra. Both of them have been produced to show that accused-Bhanwarsingh was beaten by the public with the gun and the gun was broken. Certain circumstantial support has been given to this evidence by PW-18 Mst. Chandrakanta. 16. It has been stated by PW-1 Rajesh that this incident of firing has been seen by PW-4 Mohd. Sabir, PW-7 Achal Dass, and PW-9 Mst. Ummed Kumari and that fact has been got recorded in the FIR Ex.P/2 also. PW-4 Mohd. Sabir has stated that at the time of the incident, he was doing some work in Shop No. 8. PW-4 Mohd. Sabir was an employee of PW-1 Rajesh. He has stated that when he heard the noise of firing, he went inside the pole of Sindala House, and there, he found Arjunsingh, who was holding his leg on account of the injury received by him. On seeing this, he put off his bushirt and tied by it the right thigh of Arjunsingh. He has further stated that he saw one gun in a broken condition lying there near Arjunsingh. On seeing this, he put off his bushirt and tied by it the right thigh of Arjunsingh. He has further stated that he saw one gun in a broken condition lying there near Arjunsingh. Thereafter, Achaldass, Rajesh and Dinesh came there with a Taxi and then they took away Arjunsingh towards Sojati Gate. He has further stated that till that taxi came and PW-1 Rajesh, PW-7 Achaldass and Dinesh came there and took away Arjunsingh in that taxi, he alone was there. He has admitted that the colour plant of Rajesh is 'situated on the roof of Shop No. 8. According to him, some people threw stones. He has stated that he did not see accused-Dharmaram and Vishnu Kumar at the place of the occurrence. He has further stated that the gun in broken condition was presented to the police by complainant-Rajesh and not by accused-Bhanwarsingh. He has categorically stated that at the place of the occurrence, he did not see PW-9 Mst. Ummed Kumari and PW-18 Mst. Chandrakanta. 17. PW-7 Achal Dass has stated that he was standing on the Taxi Stand on the date of the occurrence in between 6.30 or 7.00 p.m. and there, he heard the noise of DHAMAKA in Sindala House. When he went inside the Sindala House, PW-4 Mohd. Sabir was there, who was tying his bushirt on the wounds received by Arjunsingh. He was told by PW-4 Mohd. Sabir to bring his taxi. He brought his taxi and thereafter,he alongwith PW-4 Mohd. Sabir took away Arjunsingh to the Hospital in that taxi. This fact is totally denied by PW-4 Mohd. Sabir. PW-4 Mohd. Sabir has categorically stated that the taxi was brought by PW- 1 Rajesh, PW-7 Achaldass and Dinesh and all of them took away Arjunsingh in that taxi towards Sojati Gate. He did not go with them. According to Achaldass, Arjunsingh was admitted in M.G.H. Hospital in Emergency Ward and by the time, they reached Hospital and got Arjunsingh admitted in the Emergency ward, accused-Bhanwarsingh, was also brought to the Hospital by the Police. He too was injured and his clothes were blood stained. There were injuries on his nose etc. According to him, the blood stained clothes of Arjunsingh were recovered by the Police in his presence. He has further stated that accused-Bhanwarsingh was not beaten by the people in his presence nor his gun was broken in his presence. He too was injured and his clothes were blood stained. There were injuries on his nose etc. According to him, the blood stained clothes of Arjunsingh were recovered by the Police in his presence. He has further stated that accused-Bhanwarsingh was not beaten by the people in his presence nor his gun was broken in his presence. He has stated that when he went inside the pole on hearing the noise of firing, only PW-4 Mohd. Sabir was with Arjunsingh and nobody else was there. According to him, Arjunsingh was lying near the cemented floor outside the room of accused-Bhanwarsingh. He did not see the gun there. When he reached inside the pole, accused-Bhanwarsingh was inside his room. This witness too says that he did not see PW-18 Mst. Chandrakanta at the place of the occurrence. Thus, it is clear that PW-4 Mohd. Sabir and PW-7 Achaldass both have totally denied the presence of PW-181st. Chandrakanta at the place of the occurrence and this fact further fortifies the case of the offence hat PW-18 Mst. Chandrakanta is an after-thought and a planted witness. 18. PW-9 Mst. Ummed Kumari has stated that she is living in Sindala House for the past 23 years as the wife of Rana Chhatrasinghji, who has bequeathed this property to her and has expired. According to her, on the date of the occurrence, at about 7.30 p.m., she was seeing T.V. All of a sudden, the electricity went off and she peeped from her house towards the pole of Sindala House to find out whether the electricity supply of her house alone has gone or the electricity supply of other people of that viccinity has also gone.-At that time, she saw PW-1 Rajesh, PW-4 Mohd. Sabir and PW-7 Achaldass coming through the pole of Sindlal House towards the chowk. She further saw that in front of the house of accused-Bhanwarsingh, accused-Bhanwarsingh and Dharmaram were standing. Two persons were standing inside the room of Bhanwarsingh and one of them was accused-Vishnukumar. According to her, accused Bhanwarsingh was holding a gun in his hand. Thus, as per Mst. Ummed Kumari, accused-Bhanwarsingh was holding a gun before the complainant-Rajesh and his uncle Arjunsingh etc. came in the chowk and as soon as they came insided the pole, hot exchange of words took place between accused-Bhanwarsingh and Arjunsingh. PW-9 Mst. According to her, accused Bhanwarsingh was holding a gun in his hand. Thus, as per Mst. Ummed Kumari, accused-Bhanwarsingh was holding a gun before the complainant-Rajesh and his uncle Arjunsingh etc. came in the chowk and as soon as they came insided the pole, hot exchange of words took place between accused-Bhanwarsingh and Arjunsingh. PW-9 Mst. Ummed Kumari has further stated that accused-Bhanwarsingh asked Arjunsingh as to where he was going, whereupon, it is alleged that Arjunsingh told him that he was going on the roof of Shops No. 7 and 8. Thereupon, accused-Bhanwarsingh told them that ifthey would go on the roof through the stair-case existing in the pole, he will shoot them. It is alleged that thereafter, abuses were exchanged between both the parties and all of a sudden, Arjunsingh picked up a stone in his hand. On this,it is alleged that Mst. Ummed Kumari thought that the dispute between the parties will take a serious turn and, therefore, she wanted to come in the chowk to settle the matter and when she crossed half of the stair-case, she heard a noise of gun-fire. On this, she went back, closed the doors and peeped from the window and saw that Arjunsingh was lying injured in his right thigh and the blood was oozing from the wounds received by him. Thereafter, Mohd. Sabir brought a taxi and took Arjunsingh to the Hospital. PW-4 Mohd. Sabir as also PW-7 Achaldass both have stated that the taxi was not brought by Mohd. Sabir. PW-7 Achal Dass has stated that he was requested by Mohd. Sabir to bring a taxi and it was he who brought the taxi from the taxi-stand. It is nobody's case that accused-Bhanwarsingh at that time was standing with his gun outside the doors of his room. Rather, PW-1 Rajesh has stated that the gun was brought by accused-Bhanwarsingh from inside his room when Rajesh and Arjunsingh went inside the pole and insisted to go on the roof of shops No. 7 and 8 through this stair-case. It is nobody's case that abuses were exchanged between Bhanwarsingh and Arjunsingh. It is further nobody's case that Arjunsingh picked up a stone. Thus, the entire evidence that has been given by PW-9 Mst. Ummed Kumari is totally contrary to the evidence of PW-1 Rajesh, PW-4 Mohd. Sabir and PW-7 Achaldass. 19. It is true that PW-4 Mohd. It is nobody's case that abuses were exchanged between Bhanwarsingh and Arjunsingh. It is further nobody's case that Arjunsingh picked up a stone. Thus, the entire evidence that has been given by PW-9 Mst. Ummed Kumari is totally contrary to the evidence of PW-1 Rajesh, PW-4 Mohd. Sabir and PW-7 Achaldass. 19. It is true that PW-4 Mohd. Sahir and PW-7 Achaldass have turned hostile but simply because these two witnesses have turned hostile, their testimony cannot be wiped off from the record. To whatever extent, it is believable and reliable, it can be read in evidence and can be used to corroborate and contradict the testimony of other witnesses. 20. PW-9 Mst. Ummed Kumari was examined by the police for the first time on 4.6.1989 whereas the incident took place on 1.6.1989. When Mst. Ummed Kumari was very much in her house and saw the entire incident, then why she did not come out to give her statement before 4.6.1989, which further shows that she has not seen the occurrence. 21. Be that as it may, now it has been stated by PW-1 Rajesh that accused-Bhanwarsingh went inside his room and then he came out of shop No. 7 and followed him with his gun and ran behind him. This is what he has stated in his examination in chief. He has further stated that he ran to the Police Chowki, Sojati Gate but no harm could be done to him by accused-Bhanwarsingh. 22. Be that as it may, PW-2 Saleem, who was an employee of PW-1 Rajesh has stated that at about 7.30 p.m., he came to the shop of Rajesh. He put his cycle and saw that accused-Bhanwarsingh was running with his gun towards the northern side of Sindala House, where a Floor Mill is situated. According to him, PW-5 Ramesh came from opposite side and snatched the gun from Bhanwarsingh. He has further stated that at that time, 10-15 persons assembled there and they gave a beating to accused-Bhanwarsingh. According to him, Bhanwarsingh was running behind complainant-Rajesh, who has gone 20-25 paces away from the northern corner of Sindala House towards the shop of Arjunsingh. While standing in front of the shop of Rajesh, he could not have seen Rajesh running towards the shop of Arjunsingh because that could not have been seen. According to him, Bhanwarsingh was running behind complainant-Rajesh, who has gone 20-25 paces away from the northern corner of Sindala House towards the shop of Arjunsingh. While standing in front of the shop of Rajesh, he could not have seen Rajesh running towards the shop of Arjunsingh because that could not have been seen. This is what has been stated by PW-5 Ramesh that if anybody stands towards the shop of Arjunsingh, the front portion of the shop of Rajesh is not visible. Even PW-2 Saleem has admitted that the shop of Arjunsingh is situated in the lane which turns at the end of,Sindala House and if anybody stands in front of the shop of Rajesh, Arjunsingh's shop is not visible from there. However, he has stated that he does not know whether this gun was presented to the police by PW1 Rajesh or not? Now, this statement of PW-2 Saleem that PW-5 Ramesh met Bhanwarsingh in the way and snatched his gun from him has been denied by PW-5 Ramesh himself, who has stated that he saw accused-Bhanwarsingh but he did not see him running behind PW-1 Rajesh. He only saw him standing in a group of persons assembled in front of the Floor Mill and as soon as accused-Bhanwarsingh started from there, he caught hold of the gun and there were efforts on both the sides to snatch the gun from Bhanwarsingh but he could not snatch it from Bhanwarsingh. It was snatched by other i.e. it was not he but some other persons who snatched the gun from Bhanwarsingh and gave beating to him with that gun and thereby, the gun has broken down. Thus, PW-5 Ramesh has categorically stated that it was not he who snatched the gun from accused-Bhanwarsingh. 23. PW-11 Rajendra has stated that at about 7.00 p.m., when he came out of shop No. 9, he heard a noise. His shop is situated just adjacent to the shop of PW-1 Rajesh. He saw that Arjunsingh was being taken to the Hospital in a Taxi. He does not say as to who.took away Arjunsingh in the taxi but he has, however, stated that accused-Bhanwarsingh was running. He, however, heard that Bhanwarsingh has fired at Arjunsingh. He has only seen Bhanwarsingh running with run. Thus, he does not say who snatched the gun and that happened thereafter? 24. He does not say as to who.took away Arjunsingh in the taxi but he has, however, stated that accused-Bhanwarsingh was running. He, however, heard that Bhanwarsingh has fired at Arjunsingh. He has only seen Bhanwarsingh running with run. Thus, he does not say who snatched the gun and that happened thereafter? 24. In view of what we have discussed hereinabove, it is clear that the testimony of PW-2 Saleem is contradicted by the testimony of PW-5 Ramesh. If Bhanwarsingh was at all running behind PW-1 Rajesh, which fact is.stated by PW-2 Saleem and which is contradicted by the testimony of PW-5 Ramesh then those persons who have snatched that gun would not have returned that gun back to accused-Bhanwarsingh. Moreover, the body of accused-Bhanwarsingh is not made of steel so as to break the butt of the gun only by striking it on his body. Had accused-Bhanwarsingh found running behind PW-1 Rajesh with his gun and had his gun been snatched from him by the persons standing in front of the Floor Mill, those people would not have allowed him to go from there, if he was caught by them and they would not have returned back his gun to him. Actually, they would have handed over him to the Police. PW-22 Mangusingh has stated that he reached the place of the occurrence at 7.30 p.m. on receiving a telephonic call that some fight has taken place in Ghoron-ka-Chowk. When PW-22 SHO Mangusingh reached at the place of the occurrence at 7.30 p.m., nobody would have spared and allowed accused to go to his room but would have produced him to SHO Mangusingh for being arrested. Thus, the entire story of prosecution regarding accused-Bhanwarsingh running behind PW-1 Rajesh with his gun and accused-Bhanwarsingh being beaten with the gun by the melee of the people and the gun being snatched by PW-5 Ramesh appears to be totally false and unbelievable because in that case the things would not have happened in the manner it has been told by the witnesses. In those circumstances, as stated above,neither accused-Bhanwarsingh would have been allowed to go to his room nor his gun would have returned back to him to be presented to the Police. Thus, the testimony of these witnesses is totally contrary to the testimony of PW-4 Mohd. In those circumstances, as stated above,neither accused-Bhanwarsingh would have been allowed to go to his room nor his gun would have returned back to him to be presented to the Police. Thus, the testimony of these witnesses is totally contrary to the testimony of PW-4 Mohd. Sabir, who has stated that the gun in broken condition was found lying near Arjunsingh, when he went inside the Pole of Sindala House. If the gun was broken and was found lying near Arjunsingh inside Sindala House then the entire prosecution story that the accused-Bhanwarsingh was holding that gun and was running- behind Rajesh and was caught by PW-5 Ramesh and his gun was snatched from him by PW-5 Ramesh as stated by PW-2 Saleem and further that he was beaten by the melee of the people with his gun and thereby, his gun was broken becomes totally unbelievable. Rather, PW-4 Mohd. Sabir has categorically stated that this gun was presented to the SHO by PW-1 Rajesh and not by accused-Bhanwarsingh. 25. It was contended by Mr. S.R. Singhi, the learned counsel appearing for the accused-appellants that in this case, the first version of the occurrence is not forthcoming on record and the FIR is a post investigation document and, therefore, no reliance can be placed on the FIR Ex.P/2. PW-1 Rajesh has categorically stated that when accused-Bhanwarsingh ran after him with his gun, he first went to the Police Chowki and there he met Constable Avardan and related to him the entire incident. Thus, that was the first version which was given by PW-1 Rajesh' to Constable Avardan, about this incident. Rajesh has further stated that Constable Avardan informed this fact to the Police Station, City Police. Mr. Singhi has stated that this Avardan Constable has not been examined in this case. 26. According to Mr. Singhi, PW-1 Rajesh has stated that at the time, when Arjunsingh was taken to the Hospital, he was conscious and this very fact has been admitted by PW-3 Chhanwarlal, who has stated that the wife and children of Arjunsingh came there and Arjunsingh was conscious. He has, therefore, contended that the narration of events, which was given by Arjunsingh to his wife and children has not been brought on record. No effort was made by the SHO to got to the Hospital to enquire from Arjunsingh as to what has happened with him? He has, therefore, contended that the narration of events, which was given by Arjunsingh to his wife and children has not been brought on record. No effort was made by the SHO to got to the Hospital to enquire from Arjunsingh as to what has happened with him? It was, therefore, argued by Mr. Singhi that the first version of the occurrence has not come on record and moreover, the FIR Ex.P/2. is a post investigation document and, therefore, no reliance can be placed on the FIR Ex.P/2. 27. It was further contended by Mr. Singhi, that as per PW-1 Rajesh, after relating the entire incident to Constable Avardan, he was asked to go and contact the Police Control Room. He went there and was told that the Police party has already gone in a Jeep to Ghoron Ka Chowk and, therefore, he got the written report scribed from one Om Prakash Choudhary and then gave it to the SHO Mangusingh at the place of the occurrence. Now, this fact is controverted by PW-22 SHO Mangusingh, who has not stated in his examination in chief that he went to the place of the occurrence twice but in his cross-examination, he has stated that he went to the place of the occurrence twice. Initially, when he went there, he did not find either PW1 Rajesh or accused-Bhanwarsingh there. Nobody informed him whether Arjunsingh has been taken to the Hospital but it was told to him that Rajesh has gone to the Police Station to report the matter and, therefore, he went to the Police Station,where this written report Ex.P/2 was handed over to him by PW-1 Rajesh. That was done by him at 8.00 p.m. in the night at the Police Station, which fact is totally denied by PW-1 Rajesh. PW1 Rajesh has stated that this written report was scribed from one Om Prakash Choudhary, who is the friend of PW-6 Amarsingh, who is the Motbir of Ex.P/11, 12, 15 and 16 etc. PW-6 Amarsingh came to the place of the occurrence alongwith Om Prakash Choudhary at about 10.30 p.m. in the night. He did not come there before that time. PW-6 Amarsingh has further stated that he does not know whether Om Prakash Choudhary scribed the report which was signed by complainant-Rajesh. PW-6 Amarsingh came to the place of the occurrence alongwith Om Prakash Choudhary at about 10.30 p.m. in the night. He did not come there before that time. PW-6 Amarsingh has further stated that he does not know whether Om Prakash Choudhary scribed the report which was signed by complainant-Rajesh. In the written report Ex.P/2, PW-1 Rajesh got it written that thereafter, we took Arjunsingh in injured condition to the Hospital in a taxi and got him admitted and he is unconscious, which means that PW-1 Rajesh was one of the persons who took Arjunsingh to the Hospital. He got him admitted in the Hospital and Arjunsingh was unconscious. Now, in his statement before the Court,PW-1 Rajesh has stated that when he reached the place of the occurrence, Arjunsingh has already been taken away to the Hospital. He does not know who took him to the Hospital. However, PW-4 Mohd. Sabir has categorically stated that Arjunsingh was taken to the Hospital in a taxi by PW-1 Rajesh, PW-7 Achaldass and Dinesh.. Thus, it is clear that these persons who took him to the Hospital, got him admitted there. A man may speak lie but the circumstances do not. PW-22 Mai,gasingh reached the place of the occurrence at 7.30 p.m. He has already arrested accused-Bhanwarsingh . by that time because he has been taken to the Hospital no sooner Arjunsingh was admitted in the Hospital and, therefore, to this extent, the statement of PW-22 SHO Mangusingh is acceptable that he reached the place of the occurrence on receiving a telephone at 7.30 p.m. and he took accused-Bhanwarsingh to the Hospital because he was found injured by him and, therefore, it appears that this FIR has come into existence after Arjunsingh has been admitted in the Hospital and he has become unconscious because this fact stands recorded in the written report Ex.P/2, which has been categorically admitted by PW-6 Amarsingh who is the real brother-in-law (gainer) of PW-1 Rajesh that he came to Sindala House alongwith Om Prakash Choudhary at 10.30 p.m. and not before that. In these circumstances, it further appears that the written report Ex.P/2 was got scribed from Om Prakash Choudhary after 10.30 p.m. and prior to that, the investigation has already started and, therefore, the written report Ex.P/2 can be said to be a post investigation document, which cannot be read into evidence. 28. In these circumstances, it further appears that the written report Ex.P/2 was got scribed from Om Prakash Choudhary after 10.30 p.m. and prior to that, the investigation has already started and, therefore, the written report Ex.P/2 can be said to be a post investigation document, which cannot be read into evidence. 28. PW-2 Saleem has stated that he saw accused-Bhanwarsingh in injured condition for the first time, when he was going towards the Flour Mill. In his cross-examination, PW-2 Saleem has stated that it is true that when he saw accused-Bhanwarsingh, he was already injured and the blood was oozing from his wounds. He saw Bhanwarsingh for the first time when he was going towards the Flour Mill. PW-1 Rajesh met him thereafter, and, therefore, even before he met PW-1 Rajesh, he saw accused-Bhanwarsingh in an injured condition and the blood was oozing from his wounds and, therefore, he could not have carried the gun because it was already lying in a broken condition near Arjunsingh as has been stated by PW-4 Mohd. Sabir. The prosecution story that Bhanwarsingh was beaten by a melee of people by his own gun has already been disbelieved. 29. Now, a cross-case has been set up by the accused-Bhanwarsingh that he had some dispute that PW-1 Rajesh about the use of the roof. Of course, PW-1 Rajesh has obtained a stay order from the Court but he wanted to raise some constructions over the roof and so, he resisted that construction and, therefore, PW-1 Rajesh alongwith certain persons who were PW-4 Mohd. Sabir and PW-7 Achal Dass came inside his room, gave beating to him, broke the glasses of his almirahs and also broke his wooden bed, table and telephone etc. At that time, Arjunsingh who happens to be the real Uncle of PW-1 Rajesh came there from the room situated on back side of Shop No.7, which is shown as Room No. 'C' in Ex.P/17 and he caught hold of the gun and in order to save his companions from that gun, he tried to break that gun on the cemented floor infront of the Room No. 'C' shown in Ex.P/17. One live cartridge was embedded in the gun and that went off and that has hit Arjunsingh while the gun was being broken by him. One live cartridge was embedded in the gun and that went off and that has hit Arjunsingh while the gun was being broken by him. The contention of accused-Bhanwarsingh that inside his room, the glasses of his almirahs were broken and his tables, telephones and wooden bed etc. were broken, is supported by the testimony of PW-15 Circle Inspector Ashok Kumar Trivedi and to some extent by PW-19 Ramchandra, who has stated that at the time of inspection of site, he found telephone, glasses of the almirahs in broken condition and certain blood stains were found on the floor of that room. PW-13 Heeraram in whose presence, search of accused- Bhanwarsingh's room was conducted has stated that the wooden bed and almirahs were found in broken condition when the site was inspected. As per PW-15 Ashok Kumar Trivedi, almirahs, tables and other things were found in broken condition and the glass pieces were found scattered on the floor of the room. Upon perusal of the site plan Ex.P/17, we find that on the northern side of this room, there exists property of somebody else and on the front side of this property, there is one gate and there are no windows and, therefore, nobody else from outside can break the glasses of almirahs inside this room. That could only be done by somebody after entering in the room. The telephone, wooden bed and glasses of the almirahs and tables etc. cannot be broken by pelting stones from outside and, therefore, to this extent the contention of accused-Bhanwarsingh has to be believed that he was attacked inside his room. He was arrested soon after the occurrence and, therefore, that room was in possession of the police and all this situation which the police found inside the room were not his making after the incident. 30. Now, the contention of accused-Bhanwarsingh that the gun went off accidentaly while Arjunsingh tried to break the gun and, thereby he has been injured, has to be examined. In his statement before the Court, PW-22 Mangusingh has categorically stated that when he inspected the site, PW-1 Rajesh told him that the gun was fired by accused-Bhanwarsingh from place 'B' shown in site plan Ex.P/17 and at that time, Arjunsingh was standing at place 'A'. In his statement before the Court, PW-22 Mangusingh has categorically stated that when he inspected the site, PW-1 Rajesh told him that the gun was fired by accused-Bhanwarsingh from place 'B' shown in site plan Ex.P/17 and at that time, Arjunsingh was standing at place 'A'. Even as per PW-1 Rajesh, the distance between Arjunsingh and Bhanwarsingh was 9' and as per PW-22 Mangusingh SHO, the distance between place 'B' and 'A' was 25 to 30 feet. PW-1 Rajesh has stated that the gun was fired by accused-Bhanwarsingh by keeping the butt of the gun on his shoulder and it was at 90 degree angle. The portion of the body of Arjunsingh which has been hit by this gun fire is the mid portion of his right thigh and as per PW-17 Dr. Jagdish, the entire wound was 8.5 cm x 8 cm x muscle deep on right side antero medial aspect middle ⅓rd with multiple punctured wounds at the margin of the wound. Thus, there was one big entry wound of the size of 8.5 cm x 8 cm and it was situated on the right thigh. Certain entry punctured wounds were there on the margin of this wound but they were not independent holes but there were entry wounds on the margin of this wound. It was 8.5 cm x 8 cm diameter. Such a big entry wound is possible only if the shot is fired from a very close range. If the shot is fired from a distance of 9', it will have a long dispersion and in such a case, such an entry wound of the size of 8.5 cm x 8 cm cannot be possible. This can only be possible when the fire hits the person concerned from a distance of about 3' only. Had the fire been caused from a distance of 9' or more, then the holes which were caused on account of this fire would have been more in number and lesser in size as stated by PW-17 Dr. Jagdish. If the fire is made from a distance of about 25 to 30 feet, as stated by PW-22 SHO Mangusingh then it was impossible to receive such an entry wound of the size of 8.5 cm x 8 cm because in such circumstances, the dispersion of pellets would have been much larger in size. Jagdish. If the fire is made from a distance of about 25 to 30 feet, as stated by PW-22 SHO Mangusingh then it was impossible to receive such an entry wound of the size of 8.5 cm x 8 cm because in such circumstances, the dispersion of pellets would have been much larger in size. The site was inspected by PW-22 SHO Mangusingh at the behest of PW-1 Rajesh. PW-1 Rajesh told Mangusingh at the time when the site was inspected that the fire was made by accused-Bhanwarsingh while standing at place 'B' and at that time, Arjunsingh was standing at place 'A' and as per PW-22, SHO Mangusingh, the distance between place 'A' and 'B' was 25 to 30 feets. Thus, the medical testimony is totally opposed to the oral testimony. 31. The Doctor has further stated that the direction of the wound may be from downward to upward and that could be possible only when the gun has went off accidentally because a cartridge was loaded inside the gun and it was so loaded that it could not be taken out and, therefore, when the gun was hit on the cement floor in front of the room of Bhanwarsingh in order to break the gun by holding from barrel side and if it went off accidentally and in that process of breaking the gun, if the gun went off, the direction of the wound would always be from downward to upward. This further supports the case of the accused-Bhanwarsingh that it was a case of accidental fire and not a case of intentional fire. In these circumstances, we are firmly of the view that such an entry wound of the size of 8.5 cm x 8 cm could not have been possible if we believe the testimony of PW-1 Rajesh that the gun was fired from a 90 degree angle. PW-4 Mohd. Sabir has categorically stated that the gun was lying in broken condition near Arjunsingh. This further corroborates the case of the accused that the gun was found lying in broken condition at the place where Arjunsingh was injured. Mohd. Sabir has further stated that at that time, when he went inside the pole, nobody else was there with Arjunsingh except him. Thus, the testimony of PW-4 also totally belies the testimony of PW-1 Rajesh that it was accused-Bhanwarsingh who fired at Arjunsingh. 32. Mohd. Sabir has further stated that at that time, when he went inside the pole, nobody else was there with Arjunsingh except him. Thus, the testimony of PW-4 also totally belies the testimony of PW-1 Rajesh that it was accused-Bhanwarsingh who fired at Arjunsingh. 32. In this respect, Mr. S.R. Singhi, the learned counsel appearing for the accused-appellants drew our attention to a decision of their lordships of the Supreme Court in Maniram v. State of U.P., JT 1994 (4) SC 62 , wherein the conviction was based on the evidence of the only witness, said to be an eye-witness, who was brother of the deceased. That evidence was totally inconsistent with the medical evidence and that was a fundamental defect in the prosecution case. In those circumstances, it was held that in absence of the inconsistency being reasonably explained, it is sufficient to discredit the evidence but also the entire case. In that case, on scrutiny of evidence,it was held that it was difficult to accept that witness as an eye-witness to the occurrence and, therefore, it was held that it would not be safe to base the conviction on the solitary evidence to support the prosecution case and consequently, the conviction was set aside. In that case, according to the eye-witness, the deceased was fired at from behind and when he was running and was being chased by appellants. However, according to post-mortem report there was no injury either on the back or anywhere behind the shoulder. None of the Doctors found any injury on the back or back portion of the shoulder to lend support to the evidence of the sole eye-witness and, therefore, appeals were allowed and appellants were acquitted. 33. Our attention was next drawn to a decision of their Lordships of the Supreme Court in Awadesh v. State of M.P., AIR 1988 SC 1158 : 1988 Cr. L.R. (SC) 269 . This too was a case where there was inconsistency between the medical and ocular evidence. The opinion of the Doctor was that the person who caused the injuries to deceased was at higher level than deceased and that opinion was not consistent with the testimony of eye-witnesses. However, the medical expert's opinion was corroborated by other circumstantial evidence, which showed that the eye-witnesses have not seen the actual occurrence and, therefore, the conviction of the accused-appellants was set aside. 34. However, the medical expert's opinion was corroborated by other circumstantial evidence, which showed that the eye-witnesses have not seen the actual occurrence and, therefore, the conviction of the accused-appellants was set aside. 34. Our attention was next drawn to a decision of their Lordships of the Supreme Court in Datar Singh v. State of Punjab, 1975 SCC (Cr.) 530 : 1974 Cr. L.R. (SC) 104 .wherein it has been observed that the spread of gun shot injuries indicates that the distance of gun at the time of fire was more than 4'. When the distance is less than 4' or 4', the pellets enter the body en-masse. If the distance is more than 4' then the pellets will spread and will enter the body within a diameter of 2 inches from the main hole. In that case, there were three separate openings adjacent to injury No. 1 and there were four small openings around the second injury. In the case on hand, there is one single hole of the size of 8.5 cm x 8 cm and, therefore, the fire must have been from a very close range and it could not be from a distance of about 9' or 25 to 30 feet. 35. Mr. Singhi has further drawn our attention to a decision of their Lordships of the Supreme Court in State of U.P. v. Sughar Singh, AIR 1978 SC 191 : 1978 Cr. L.R. (SC) 11 , wherein it has been observed as under : "Where the witness is the father of the deceased and also inimical to the accused, he being a partisan witness, his testimony has to be viewed with great caution but that by itself cannot be sufficient ground to reject it unless the same is found to be untruthful by reason of other infirmities. On examining the evidence from that angle in the case, it cannot be held that there is grave infirmity which would go to discredit him." In this case, the sole eye-witness of the occurrence is PW-1 Rajesh and his testimony on all material particulars stands discredited. 36. On the other hand, it was contended by Mr. P.N. Mohanani, the learned Special Public Prosecutor that even if the medical evidence is inconsistent with the direct evidence and if the testimony of the eye-witness is reliable then the medical testimony looses its significance. 36. On the other hand, it was contended by Mr. P.N. Mohanani, the learned Special Public Prosecutor that even if the medical evidence is inconsistent with the direct evidence and if the testimony of the eye-witness is reliable then the medical testimony looses its significance. In this respect, he has drawn our attention to a decision of their Lordships of the Supreme Court in State of U.P. v. Sugarsingh's case (supra), he has also placed reliance on a decision of Karnataka High Court in State of Karnataka v. Atmendra Ganapati Hegde, 1992 Cr.L.J. 2809 , wherein the story of accidental fire has been disbelieved and the testimony of the eye-witnesses was believed. 37. Our attention was next drawn to a decision of their Lordships of the Supreme-Court in Karnail Singh v. State of Punjab, 1971 CAR 383 (SC) , wherein it has been held that if the statements of the eye-witnesses are direct and reliable then inconsistency looses importance. 38. Mr. Mohanani further drew our attention on a decision of their Lordships of the Supreme Court in Pupinderpalsingh v. State of Punjab, 1994(1) Crimes 1010 . In that case, the story of accidental fire was disbelieved and it was held that if one of the accused has been acquitted, it does not mean that other also should be acquitted. 39. As stated above, in this case, the sole eye-witness of the occurrence is PW-1 Rajesh, whose testimony has been categorically disbelieved by us on various counts. The testimony of other eye-witnesses has also been disbelieved by us because -PW-4 Mohd. Sabir, PW-5 Ramesh and PW-7 Achaldass do not claim that they have seen the occurrence. The testimony of PW-9 Mst. Ummedkumari is totally contradictory to the testimony of PW-1 Rajesh and, therefore, it has to be disbelieved. Although her name finds mention in the FIR itself but in this case, the FIR itself appears to be a suspicious document and it has been held to be a post investigation document and, therefore, it cannot be relied upon. We have already held that PW-18 Mst. Chandrakanta is a cooked up and planted witness and, therefore, the Court has been left with the sole testimony of PW-1 Rajesh, which is not believable because the occurrence does not appear to have happened in the manner, it has been stated by PW-1 Rajesh. 40. We have already held that PW-18 Mst. Chandrakanta is a cooked up and planted witness and, therefore, the Court has been left with the sole testimony of PW-1 Rajesh, which is not believable because the occurrence does not appear to have happened in the manner, it has been stated by PW-1 Rajesh. 40. It may be stated here that PW-1 Rajesh has taken on rent the entire stair case existing between Shops No. 8 and 9, which goes on the roof of Shops No. 7 and 8 and he used to go through that stair case while going on the roof of shops No. 7 and 8. If that be so, then where was the occasion for him to go inside the pole of Sindala House and to make use of the stair-case existing in the chowk of that Pole for going on the roof of Shops No. 7 and 8, which first goes on the roof of the pole and then it goes on the roof of shops No. 7 and 8 and the roof of the pole is not at all in possession of PW-1 Rajesh. The roof of the Pole was in possession of PW-9 Mst. Ummedkumari and accused-Bhanwarsingh jointly. PW-1 Rajesh has nowhere stated that the stair case existing in the pole and the roof of the Pole was taken on rent by him. in these circumstances, the story of the prosecution that complainant-Rajesh and his uncle Arjunsingh wanted to use the stair-case situated inside the Pole appears to be totally unbelievable because that was not the way for going on the roof of Shops No. 7 and 8 and there already exists a stair case in between shops No. 7 and 8, which has already been given on rent to PW-1 Rajesh. As a matter of fact, PW-1 Rajesh had no right to go on the roof of the Pole, which was not in his possession and, therefore, it appears that the complainant-Rajesh and his Uncle Arjun Singh and others have gone inside the Pole only to teach a lesson to accused-Bhanwarsingh by attacking him in his room and not for the purpose of going on the roof of shops No. 7 and 8 but using the stair case, which first goes on the roof of the Pole, which was not in their possession. 41. 41. Taking an over all view of the entire evidence on record, we are firmly of the view that in this case, the prosecution has not been able to prove its case to the hilt against the accused-appellants-Bhanwarsingh and Dharmaram. Actually, the occurrence appears to have happened in the manner stated by accused-Bhanwarsingh and therefore, the entire story of the prosecution has to be discarded and the benefit of doubt has to be extended to both the accused-appellants-Bhanwarsingh and Dharmaram. 42. So far as accused-Dharmaram is concerned, PW-1 Rajesh has stated that when he was coming back from Police Control Room to Ghoron-ka-Chowk he found accused-Dharma Ram, and forced him to board his tempo and brought him to Sindala House. If that be so, Rajesh could have produced Dharma Ram before the SHO Mangusingh, PW-22. PW-12 Mahavirsingh L.C. has categorically stated that he arrested Dharmaram on 5.6.1989 vide Ex.P/29. This fact is further corroborated by the testimony of PW-15 Ashok Kumar Trivedi, who has stated that Dharmaram was brought from his village by PW-14 Magnaram, H.C. on 5.6.1989. When Dharmaram was with Rajesh on the date of the occurrence, he should have handed over him to the police. PW-22 S.H.O. Mangusingh has categorically stated that he arrived at the place of the occurrence at 7.30 p.m. on that very day. Thus, to this extent also, the evidence of PW-1 Rajesh stands discredited and that is the further ground to disbelieve his testimony, and therefore, in the aforesaid view of the matter and further taking into consideration all the facts and circumstances of this case, the accused-appellant-Dharmaram also deserves to be acquitted by giving him the benefit of doubt. 43. In the result, this appeal succeeds. The judgment of the learned Addl. Sessions Judge No. 2, Jodhpur convicting and sentencing the accused-appellants-Bhanwarsingh and Dharmaram for the offences under sections 302 Indian Penal Code r/w Section 27 of the Arms Act and Section 302/109 Indian Penal Code respectively and ordering to pay compensation to the wife and children of deceased-Arjunsingh amounting-to Rs. 75,000/- and 25,000/- respectively is set aside. The accused-appellants-Bhanwarsingh and Dharmaram are acquitted of the aforesaid offences by extending the benefit of doubt. Accused- appellant-Bhanwarsingh be set at liberty if he is not required in any other case. Accused-appellant-Dharmaram is already on bail. He need not surrender to his bail bonds. 75,000/- and 25,000/- respectively is set aside. The accused-appellants-Bhanwarsingh and Dharmaram are acquitted of the aforesaid offences by extending the benefit of doubt. Accused- appellant-Bhanwarsingh be set at liberty if he is not required in any other case. Accused-appellant-Dharmaram is already on bail. He need not surrender to his bail bonds. It is further ordered that after the expiry of the period of limitation, the gun be handed over back to the accused-appellant-Bhanwarsingh on production of a valid licence alongwith cartridges, which were recovered from his Shop and Room at the time of search of his house. 44. Let the record of this case be sent back to the learned lower Court forthwith and the accused-appellants be informed about the result of this appeal forthwith through the jail authorities for compliance.Appeal allowed. *******