Judgment Y. R. MEENA, J. ( 1 ) THIS appeal is directed against the judgment of Trial Court dated 13-4-1993, where by, the Trial Court has convicted the accused-appellant for the offence under Section 302 IPC and sentenced him to undergo life imprisonment and pay a fine of Rs, 1,000/- in default of payment of fine further to undergo six months simple imprisonment. ( 2 ) THE brief facts giving rise to this appeal are that a written report (Ex. P. 1) has been given on 25-9-1991 by Shyam Lata wife of deceased at Police Station Laxmangarh alleging therein that for last 2-3 years from the date of incident there was a dispute over the ancestral property between the deceased Bharatbhushan and his younger brother Satyapran Dev. Therefore, Satyapran Dev was living in Kumher for last, one year. He came 2-3 times in absence of Bharatbhushan and gave beating to the informant and also threatened that he will kill Bharatbhushan. Today in the afternoon Satyapran Dev and his brother-in-law Satish came. There was some altercation between the deceased and assailants, then accused Satyapran Dev fired 5-6 gun shots at deceased. Bharatbhushan fell down and expired. On the basis of this report (Ex. P. 1) the FIR (Ex. P. I) has chalked out and the case was registered under Section 302134 IPC. During investigation the siteplan (Ex. P. 3) was prepared and the Inquest-Report (Ex. P. 4) also prepared. Bloodstained clothes of deceased were seized, sealed and sent to FSL for examination. One country made pistol has been recovered at the instance of accused Satyapran Dev. Recovery-memo is Ex. P. 7. Post-mortem was conducted by Medical Board consisting of Dr. B. L. Ujjeniya, Dr. S. K. Jam and Dr. Bauu Singh. Post-mortem report is Ex. P. 12. During the post-mortem the Doctors recovered blood-stained pellets from the person of deceased and opined the cause of death due to shock as a result of massive haemorrhage from injuries to vital organs at liver and stomach. FSL report regarding country-made pistol is Ex. P. IS, after examination it is opined that 16 lead pellets contained in packet A-1 are normally used in 12 bore ammunition and their size would be 4. 28 mm. These pellets could have been fired from 12 bore pistol. FSL report regarding country-made pistol is Ex. P. IS, after examination it is opined that 16 lead pellets contained in packet A-1 are normally used in 12 bore ammunition and their size would be 4. 28 mm. These pellets could have been fired from 12 bore pistol. After due investigation the challan has been filed against Satyapran Dev for the offence under Sections 302 IPC and 3125 Arms Act. Thereafter the case was committed to the Court of Sessions Judge. ( 3 ) DURING trial as many as 13 witnesses have been examined. Statements of accused has been recorded under Section 313 Cr. P. C. Considering the material on record the Trial Court mainly placed reliance on the statement of PW 3 Shyamlata w/o Bharatbhushan and PW 5 Kailash, and convicted the accused-appellant under Section 302 IPC and sentenced him as aforesaid. The accused has not been convicted for the offence under Sections 3125 Arms Act, as the prosecution failed to prove the recovery of pistol at the instance of accused. Being dis-satisfied with the judgment of Trial Court the accused-appellant preferred this appeal. ( 4 ) HEARD learned Counsel for the appellant, learned Public Prosecutor for the State and perused the documents available on record. The prosecution case is that on 25-9-1991 PW 3 Shyamlata wife of deceased along with PW 5 Kailash has given a written report (Ex. P-1) in Police Station Laxmangarh alleging therein that Satyapran Dev and Bharatbhushan (deceased) are brothers. There was a quarrel about a year back between both of them, therefore, the accused Satyapran Dev left the village and started living in Kumher in his in-laws house. Thereafter he came in the village 2-3 times and gave beating to the complainant and also threatened her that he will kill Bharatbhushan. Today in the afternoon he (Satyapran Dev) along with his brother-in-law Satish came to her residence and after some altercation fired 5-6 gun shots at Bharatbhushan. Bharatbhushan died on spot. The dead body of Bharatbhushan is lying on the spot. ( 5 ) ON this report the FIR has been chalked out and the case was registered for the offence under Sec. 302 read with Sec. 34 IPC. On that report the SHO PW 12 Bharat Singh along with the constables and complainant went on the spot and saw the dead body. He prepared the site plan (Ex. ( 5 ) ON this report the FIR has been chalked out and the case was registered for the offence under Sec. 302 read with Sec. 34 IPC. On that report the SHO PW 12 Bharat Singh along with the constables and complainant went on the spot and saw the dead body. He prepared the site plan (Ex. P. 3) and the post-mortem of dead body of Bharatbhushan was got conducted by the Medical Board consisting of Dr. B. L. Ujjeniya, Dr. S. K. Jam and Dr. Battu Singh. The Medical Board opined the cause of death of deceased due to shock as a result of massive haemorrhage from injuries to vital organs at his liver and stomach. The statement of Ram Singh was recorded. The sample of the blood of deceased was taken and sealed and the same was sent to FSL for examination.) Accused was arrested on 30-9-1991 and at his instance the country-made pistol was recovered. The recovery-memo is Ex. P. 7. A perusal of post-mortem report (Ex. P. 12) is enough to hold that deceased was shot dead by somebody. But the pertinent question in this case is whether he has been shot dead by the accused-appellant. The prosecution case is that accused Satyapran Dev came along with his brother-in-law Satish at 3. 30 p. m. in village Lily on 25-9-1991 and he fired 56 gun shots at Bharatbhushan. His wife P. W. 3 Shyamlata was also with him when they came out from the kitchen after taking food. Though the challan has been filed by police against Satyapran Dev as well as Satish, but no charge has been framed in case of Satish by the Trial Court. ( 6 ) DURING trial PW 1 Roop Singh deposed that one year before the incident, there was a quarrel whether crop of mustard, should be taken by - the deceased Bharatbhushan or by the accused (Satyapran Dev ). Both are brothers and ultimately Satyapran Dev took that mustard crop as well as the tractor and started living in Kumher in the house of his in-laws. PW 2 Manohar Lal was supervising the road-side labourers and he deposed that on 25-9-1991, he had seen Satyapran Dev along with Satish going to village Lily and come back from that village. ( 7 ) THE only eye-witness in this case is PW 3 Shyamlata wife of deceased Bharatbhushan. PW 2 Manohar Lal was supervising the road-side labourers and he deposed that on 25-9-1991, he had seen Satyapran Dev along with Satish going to village Lily and come back from that village. ( 7 ) THE only eye-witness in this case is PW 3 Shyamlata wife of deceased Bharatbhushan. She has deposed that there was a dispute between both the brothers on partition of agricultural land. Then after the quarrel a year before, the accused started living with his in-laws in Kumher. He came 2-3 times to village Lily and gave beating to her and also threatened that he will kill Bharatbhushan and on 25-9-1991 in the afternoon he came along with Satish, and from place 6 (shown in the site-plan Ex. P. 3) fired gun-shot on Bharatbhushan, at that point of time she-along with her husband came out from the kitchen after taking food. Bharatbhushan died on spot then she went to Laxmangarh and reported this incident to PW 5 Kailash. Kailash wrote the report and both of them went to Police Station Laxmangarh and gave report (Ex. P. 1) in the Police Station Laxmangarh. Immediately, S. H. O. PW 12 Bharat Singh along with police party and complainant came on the spot and found dead-body of deceased Bharatbhushan, at place A (shown in site-plan Ex. P. 3 ). In her statement Smt. Shyamlata bas stated that father of deceased PW 4 Ram Singh was also present in the house. ( 8 ) P. W. 4 Ram Singh has not supported the version of P. W. 3 Shyamlata. On the contrary he has deposed that the tractor was purchased by accused, therefore, be has taken away tractor and he heard that on distribution of the agricultural land complainant Shyamlata used to quarrel with her husband Bharatbhushan (deceased ). He heard in the village that Bharatbhushan has committed suicide. ( 9 ) THE statement of PW 3 Shyamlata is not corroborated by the medical evidence. As per PW 9 Dr. B. L. Ujjeniya half undigested food has been found at the time of post-mortem of the body of deceased. That is contrary to the statements of Shyamlata. Shyamlata stated that as soon as they came out from the kitchen after taking food, Satyapran Dev fired at deceased. This is a material contradiction, therefore, it cannot be said that Shyamlata is wholly reliable witness. That is contrary to the statements of Shyamlata. Shyamlata stated that as soon as they came out from the kitchen after taking food, Satyapran Dev fired at deceased. This is a material contradiction, therefore, it cannot be said that Shyamlata is wholly reliable witness. ( 10 ) PW 2 Manohar Lal deposed that he bad seen the accused-appellant Satyapran Dev along with his brother-in-law Satish, on the day of incident near the village Lily. But his statement have not been corroborated by other independent witnesses. Even PW 12 SHO Bharat Singh has stated that on the day of incident immediately after the report he went on spot in the village, but nobody has told that they have seen accused in Lily village or nearby, on the date of incident. ( 11 ) PW 5 Kailash, who is uncle of deceased and was on inimical terms with the deceased. He made a complaint of theft against deceased. It is surprise the inspite of this fact that Kailash was in inimical terms, the wife of deceased PW 3 Shyamlata has straightway gone to him and he wrote the report implicating the accused in the crime. To place reliance on such a witness is not safe. PW 3 Shyamlata is an illiterate lady and she has signed on the report written by Kailash and in the report it is alleged that accused fired 5-6 gun shots at deceased. While in the Court, PW 3 Shyamlata has stated that she never told Kailash that accused fired 5-6 gun-shots at deceased. This fact further casts doubt on the veracity of statement of Kailash. PW 5 Kailash states only on the basis of information given by PW 3 Shyamlata, therefore, on his statement no reliance can be placed. ( 12 ) PW 6 Lal Singh and PW 7 Bhushan Kumar are recovery motbirs. In this case there is no independent witness for recovery. PW 6 Lal Singh and PW 7 Bhushan Kumarboth are Police Constables, therefore, no conviction can be sustained on the basis of such recovery. More so, recovery of pistol has not been believed by the Trial Court and the accused has been acquitted for the offence under Secs. 3/25 Arms Act. ( 13 ) WHILE deceased was at place TA (shown in the site plan) the accused fired gun-shot. More so, recovery of pistol has not been believed by the Trial Court and the accused has been acquitted for the offence under Secs. 3/25 Arms Act. ( 13 ) WHILE deceased was at place TA (shown in the site plan) the accused fired gun-shot. Not even a single pellet has been recovered from the place of incident, that is evident from the statement of PW 12 Bharat Singh, S. H. O. PW 3 Shyamlata has deposed that after taking food in the kitchen, she along with the deceased came out and when they reached at place A accused fired at deceased: Not even a single pellet hit Shyamlata, while she was coming out along with the deceased, by his side. How it is possible that not even a single pellet hit her. That further creates doubt on the prosecution story. ( 14 ) A perusal of site-plan (Ex. P. 3) reveals that no kitchen has been shown in the site-plan, only the word Rasoi is there. Why the portion of Rasoi has not been shown in the map, no explanation has been given by learned P. P. Nor the fact is found from the complaint that accused fired just after when deceased came out after taking food from the kitchen. The possibility is not ruled out that this word has been added just to justify the presence of P. W. 3 Shyamlata along with the deceased. Not only that, if the incident would have taken place as per prosecution case at 3. 30 p. m. then after hearing gun-shot there must be gathering of villagers and at least somebody would have seen the assailants. But not even a single person in the village came forward to state that they had seen accused-appellant in the village Lily or nearby on that day. There was a dispute and quarrel between both the brothers accused and deceased and the possibility cannot be ruled out that on the basis of doubt the complainant PW 3 Shyamlata has falsely implicated the accused, in this case. ( 15 ) THE statement of PW 3 Shyamlata, the only eye-witness, does not find corroboration from the medical evidence. No independent witness has supported the prosecution case. Not even a single pellet is found on the spot. There was enmity between the accused and deceased. ( 15 ) THE statement of PW 3 Shyamlata, the only eye-witness, does not find corroboration from the medical evidence. No independent witness has supported the prosecution case. Not even a single pellet is found on the spot. There was enmity between the accused and deceased. Further the author of report has inimical terms with the deceased and his family. The false implication by PW 3 Shyamlata cannot be ruled out. Therefore, we are of the opinion that prosecution has failed to prove its case beyond reasonable doubt. The Trial Court has not properly appreciated the evidence. On the basis of statement of PW 3 Shyamlata alone, the conviction of the accused is not safe. In the result, the appeal is allowed. The conviction and sentence of the accused-appellant is set aside. We acquit the accused-appellant be released forthwith, if not required in any other case. Appeal allowed. .