Judgment Y. R. MEENA, J. ( 1 ) THIS appeal is directed against the judgment of Trial Court dated 28. 7. 1993 whereby the Trial Court has convicted the accused-appellants as under: (1) Arjun u/section. 302 IPC, imprisonment for life, fine of Rs. 5,000/- in default 2 years rigorous imprisonment. u/section. 3/25 Arms Act, one year R. I. , fine of Rs. 1,000/- in default 3 months R. I. (2) Girraj, u/section. 302 read with Section. 34 Tej Singh and Padam Singh IPC, Life imprisonment, fine of Rs. 5000/- in default 2 years rigorous imprisonment. U/section, 323 IPC, 1 year rigorous imprisonment, fine or Rs. 1000/-, in default 3 months rigorous imprisonment. ( 2 ) THE brief facts giving rise to this appeal are that one Mohan Singh son of Govind Singh has given a written report (Ex. P. 3) on 4. 12. 1991, at Police Station Chiksana alleging therein that on 4. 12. 1991 at about 3. 00 p. m. While the informant Gopal Singh and Om Prakash were going for duty in Simco Factory near Ram Laxman temple, accused-appellants Arjun, Girraj, Tej Singh and Padam Singh met them and they stopped them. Arjun and Padam Singh were armed with country made pistols, Girraj was armed with Gupti and Tej Singh was armed with Lathi. At that point of time, Girraj told to kill Om Prakash (deceased ). On that, Arjun fired at Om Prakash which hit at right ribs of am Prakash. Om Prakash fell down as a result of gun shot injury and thereafter, Padam Singh, Girraj, Tej Singh and Arjun ran away. While the injured was taken to hospital, he expired on the way. On that written report, the police chalked out RR No. 89/91 (Ex. P. 4) for the offence u/sections. 302 and 341 IPC. The post mortem of the dead-body was got conducted. Post mortem report is Ex. P. 16. Dr. Babulal Meena (P. W. 9) opined that the cause of death is haemorrhages shock brought about as the result of injuries to vital organs (cumulative effect) such as right lung and liver damaged by gun shot fire from long distance (more than 5 meters but less than 10 meters) which are sufficient to cause death in ordinary course of nature. All above- mentioned injuries are ante mortem in nature. ( 3 ) DURING investigation, the 1. 0. has prepared site plan Ex. All above- mentioned injuries are ante mortem in nature. ( 3 ) DURING investigation, the 1. 0. has prepared site plan Ex. P. 8. Accused-appellants were arrested. Injured Smt. Jagviri and Smt. Jantar. were also medically examined and the injury reports are EX. P. 1 and Ex. P. 17, In this case, informant P. W. 3 Mohan Singh and P. W. 4 Gopal have claimed to eyewitnesses of the incident. A country-made pistol has been recovered at the instance of accused Arjun. PW. 11 Harish Chandra Sharma, an Armourer, Police Une Bharatpur examined the recovered pistol and opened that pistol was fired and the pistol was in serviceable condition. The Trial Court has found Mohan Singh a reliable witness. The Trial Court also believed on the testimony of PW. 4 Gopal, and taking into account the recovery of pistol which was in serviceable condition, the Trial Court came to the conclusion that accused-appellant Arjun has committed the offence u/section. 302 IPC and the offence u/section. 3/25 of the Arms Act while accused-appellants Girraj, Tej Singh and Padam Singh have committed the offence u/section. 302 read with Section 34 IPC and convicted them as aforesaid. ( 4 ) BEING dissatisfied with the judgment of Trial Court, the accused-appellants have preferred this appeal. ( 5 ) HEARD learned Counsel for the appellants Mr. Tholia and the learned Public Prosecutor Mr. Paker Ferooq. ( 6 ) IN Prosecution case Mohan Singh is eye - witness. P. W. 3 Mohan Singh who has given the report and claimed to be eye - witness has deposed that on 4. 12. 1991 at about 3. 00 p. m. , while the informant along with Gopal and Om Prakash were going for duty in Simco Factory near Ram Laxman temple, Arjun and Padam Singh armed with country made pistols, Girraj armed with Guptit and Tej Singh armed with Lathi, met them. At that point of time Girraj told that today kill Om Prakash and on that, Arjun fired at Om Prakash with county made pistol and the pellets hit at the right ribs of the deceased. Consequently, he fell down and these accused-appellants ran away. At that time, PW. 5 Sohan Singh and PW. 12 Harish Chandra also came on the site. While the injured was being taken to hospital in tractortrolley, he expired on the way. He also support the report Ex. Consequently, he fell down and these accused-appellants ran away. At that time, PW. 5 Sohan Singh and PW. 12 Harish Chandra also came on the site. While the injured was being taken to hospital in tractortrolley, he expired on the way. He also support the report Ex. P 3 given to police. He is also a witness of inquest report Ex. P. 6. He further deposed that in his presence, the blood - stained clothes of Om Prakash have been seized, seizure memo is Ex. P. 7. ln his presence, the police has prepared the site-plan Ex. P. 8, blood stained soil has also been taken from the place of incident vide seizure memo Ex. P. 9. He admits that the deceased is his cousin and the witnesses Gopal and Harish Chandra are also in relation of deceased. The place of incident is about 100 yards from the village. He further deposed that accused-appellants have given beating to Jantar wife of younger brother of deceased and Jagviri on the same day. He explained that as injuries of Jantar and Jagviri have not been examined by the Doctor, therefore, in FIR, incident with Jagvir and Jantar has not been mentioned. His statement is corroborated PW. 4 Gopal but his presence appears to be doubtful as per his own admission. On the day of incident, his duty in the Simco Factory was in ct Part which was from 12. 00 to 7. 00 am, therefore, whether he was present at 3. 00 pm. and was going along with PW. 4 Gopal and deceased becomes doubtful and his testimony does not inspire confidence. ( 7 ) PW. 5 Sohan Singh and PW. 12 Harish Chandra are the second set of evidence. They state that they were together and when they reached from field to near Ram Laxman temple, they saw that accused Girraj, Padam Singh, Tej Singh and Arjun were armed with country made pistols, Gupti and Lathi, at that point of time, Om Prakash, Gopal and Mohan Singh were going for duty in Simco Factory. Om Prakash was a little ahead from Gopal and Mohan Singh. At that time, Girraj told Arjun to kill Om Prakash. At his direction, Arjun fired and pellets hit at the right ribs and right hand of the deceased and then ran away. PW. 12 Harish Chandra also corroborates the statement of PW. Om Prakash was a little ahead from Gopal and Mohan Singh. At that time, Girraj told Arjun to kill Om Prakash. At his direction, Arjun fired and pellets hit at the right ribs and right hand of the deceased and then ran away. PW. 12 Harish Chandra also corroborates the statement of PW. 5 Sohan Singh and states that near Ram Laxman temple while he was with Sohan Singh, he saw Om Prakash, Mohan Singh and Gopal were going to Simco Factory. At that point of time, Girraj, Arjun Padam Singh and Tej Singh came from back - side of temple. Arjun and Padam Singh were armed with country made pistols while Tej Singh was armed with Lathi and Girraj was armed with Gupti. On seeing Om Prakash, Girraj told that kill Om Prakash. At this direction, Arjun has fired at Om Prakash. He sustained the injuries on the right ribs and hand. 11. 2 they took the dead-body of Om Parakash to hospital. PW. 5 Sohan Singh and PW, 12 Harish Chandra are relations of deceased and are chance witnesses. PW. 6 Prem Singh was declared hostile. PW. 7 Virendra Singh supports the prosecution case that he took the seized material to FSL, Jaipur on 21. 1. 1991. P. W. 8 Rammo Deposed that just before the incident, Ajay has written a letter to the daughter of relation of Han Kishan and Om Prakash. Therefore, Panchayat was called but no decision was taken as some new dispute raised regarding the letter written Ajay to daughter of Han Kishan. PW. 9 Dr. Babu Lal Meena conducted the post-mortem of deceased on 4. 12. 199 1 and he supports the prosecution case that the gun shot injuries were found on the person of deceased and he recovered as many as 22 pellets from the person of deceased. He also examined injuries of Jagviri wife of deceased and Jantar wife of younger brother of deceased and found the injuries mentioned in Ex. P. 1 and Ex. P. 17. PW. 1 Jagviri and PW. 10 Jantar both are sisters. Jagviri married to deceased Om Prakash and Jantar Married to younger brother of Om Prakash. They deposed that at about 3. 30 p. m. the accused-appellants armed with country made pistols, Gupti and lathi entered in their house and gave beating to both. Then they were taken to hospital. PW. 1 Jagviri and PW. 10 Jantar both are sisters. Jagviri married to deceased Om Prakash and Jantar Married to younger brother of Om Prakash. They deposed that at about 3. 30 p. m. the accused-appellants armed with country made pistols, Gupti and lathi entered in their house and gave beating to both. Then they were taken to hospital. Their injuries were examined by the doctor in the hospital. PW. 13 Shyam Lal has investigated the case. He chalked out the AR Ex. P. 4, prepared inquest-report Ex. P. 6, post mortem was not conducted, Baniyan, Pajama and shirt have been seized, seizure memo is Ex. P. 7, that were sent to FSL, prepared site plan Ex. P. 8 where the incident, has taken, place. Blood smeared soil taken from the place of incident, seizure memo is Ex. P. 9 and control soil has also been taken from that place. At the instance of accused Arjun, a country made pistol has been recovered. The recoveries of arms have also been made at the instance of accused Padam Singh, Girraj and Tej Singh. Injuries of Jagviri and Jantar have also been examined by the doctor Babu lal Meena. The country made pistol was without licence, therefore, a case under Section. 3/25 Arms Act has also been registered. During his investigation, he also found that on 2. 12. 199 1, there was some dispute between Padam Singh and Om Prakash. For that, to settle the dispute, Panchayat was held on 4. 12. 1991 at Ram Laxman temple. The compromise could not arrive at as both the parties started abusing each other. The statements of accused appellants recorded under Section 313 Cr. P. C. ( 8 ) IN defence, the accused-appellants produced D. W. 1 M. N. Vaziran, D. W. 2 Man Singh, D. W. 3 Shri Swaroop and D. W. 4 Girraj Singh; D. W. 1 Vaziran deposed that on 4 and 5, Gopals duty shown in e Part, that commence from 12. 00 night to 7. 00 am and normally, there is no change of the time of the duty assigned unless there Is a written request by the concerned worker. No such request has been made in writing. D. W. 2 Man Singh, D. W. 3 Shri Swaroop and D. W. 4 Girraj Singh state that on 2. 12. 00 night to 7. 00 am and normally, there is no change of the time of the duty assigned unless there Is a written request by the concerned worker. No such request has been made in writing. D. W. 2 Man Singh, D. W. 3 Shri Swaroop and D. W. 4 Girraj Singh state that on 2. 12. 199 1, quarrel to place between Girraj and Harikishan, To settle the dispute It was proposed that the matter be put up before Panchayat. There was gathering for Panchayat but both the parties abused, therefore, no decision was taken in Panchayat. On the day of incident, Arjun was killed in the school and while Arjun came, Harish chandra, Shiv charan, Sohan, Mohan and Om Prakash ran after him and at that point of time, Sohan fired at Arjun but that fire hit to deceased Om Prakash. ( 9 ) PW. 1 Jagviri, PW. 2 Shiv Charan, PW. 3 Mohan Singh, PW. 4 Gopal, PW. 5 Sohan Singh, PW: 10 Jantar and PW. 12 Harish Chandra are the relations of deceased, but for mere relationship with the deceased, the testimony of interested witnesses cannot be discarded. The only thing to be kept in mind that their testimony should be examined with more caution and care. ( 10 ) THE prosecution case is that on 4. 12. 199 1 at about 3. 00 p. m. , while Mohan Singh, Gopal and Om Prakash (deceased) were going for duty in Simco Factory, accused appellants armed with country made pistols, Gupti and Lathi met them near Ram Laxman temple and Girraj told kill Om Prakash and Arjun fired at him. The fire hit on the right ribs and hand of the deceased, he fell down on the ground and then accused-appellants ran away. Gopal appears to be a chance witness though he tried to state that he was going to Simco Factory for duty but record of the Simco Factory and the statement of DW. 1 Vaziran does not support the version of PW. 4 Gopal, who is a relative of the deceased SPA. His testimony does not inspire confidence. He is a chance witness. ( 11 ) PW. 3 Mohan Singh is another eyewitness and he claimed to have witnessed the incident. The testimony of PW. 3 Mohan Singh further corroborated by medical evidence Ex, P. 16. post mortem report, PW. 9 Dr. 4 Gopal, who is a relative of the deceased SPA. His testimony does not inspire confidence. He is a chance witness. ( 11 ) PW. 3 Mohan Singh is another eyewitness and he claimed to have witnessed the incident. The testimony of PW. 3 Mohan Singh further corroborated by medical evidence Ex, P. 16. post mortem report, PW. 9 Dr. Babulal Meena has conducted the post mortem of the deceased Om Prakash and found several pellet wounds and 22 pellets are recovered from the person of the deceased. They were blood-stained, they seized and sent to FSL. After examination, it is found that pellets are stained with human blood. Even the clothes of deceased also found stained with human blood. From site-plan and. P. 2, blood smeared soil was taken and after examination in FSL, that soli is also found stained with human blood. Considering all these evidence on record, we find no reason to doubt the place of incident and the fact that the cause of death of deceased Om Prakash is gun shot injury. ( 12 ) THE next question which arises for our consideration is whether accused-appellant have committed the murder as per prosecution story. The contents of FIR (Ex P - 4) and the statement of PW. 3 Mohan Singh, medical evidence and FSL report was consistent and corroborate the statement of P. W. 3 Mohan Singh who was along with the deceased. The incident took place at about 3. 30 p. m. , and immediately the deceased was taken to hospital. The distance of hospital is 4 kms. form the place of incident and in hospital they reached at about 4. 15p. m. , therefore, no doubt can be raised or story can be concocted in such a short time. The written report has been given to police in the hospital itself. In the report, the names of the accused have been mentioned, therefore, at least no doubt remains that Om Prakash sustained the gun shot injury fired by Arjun. ( 13 ) BUT the question does arise whether the conviction of accused Girraj, Padam Singh and Tej Singh is justified under Sec. 302 read with 34 IPC. No overt act has bee attributed to these three appellants except the fact that when accused appellants met the deceased near Ram Laxman temple, Girraj told kill Om Prakash. ( 13 ) BUT the question does arise whether the conviction of accused Girraj, Padam Singh and Tej Singh is justified under Sec. 302 read with 34 IPC. No overt act has bee attributed to these three appellants except the fact that when accused appellants met the deceased near Ram Laxman temple, Girraj told kill Om Prakash. It has come on record that there was enmity between the complainant and accused-party. Even a panchayat was met on 2nd December, 1991 but no decision could be taken as both the parties started abusing each other. Therefore, it appears a case of over implication. ( 14 ) THE prosecution also has examined P. W. 1 Jagviri and P. W. 10 Jantar, wife of dreaded and wife of younger brother of deceased respectively. Though both the ladies support the incident that after killing Om Prakash, accused-appellants came to their house which is at a distance of 1/ 2 km. from the place of first incident and gave beating to both the ladies. The perusal of their injury reports reveal that injuries are caused by blunt weapon but in the first incident, the accused-appellants are shown armed with country made pistols, Gupti and Lathi but in the second incident, PW. 1 Jagviri and PW. 10 Jantar both state that all the four persons have given beating. Therefore, their testimony does not inspire confidence. Even otherwise, when accused-appellants killed Om Prakash near Ram Laxman temple and ran away, it is not a normal conduct that after killing him, they came straightway to the house of deceased in village and gave beating to the wife of deceased as well as Jantar, wife of younger brother of deceased. Therefore, their testimony does not inspire confidence. When PW. 4 Gopal, an eye-witness, P. W. 1 Jagviri and P. W. 10 Jantar are not reliable witnesses can the conviction and sentence of the accused-appellants be upheld? If we ignore the testimony of PW. 1 Jagviri PW. 4 Gopal and PW. 10 Jantar no case is made out against co-accused Padam Singh, Tej Singh and Girraj. Moreso, when no overt act has been assigned to these accused-appellant. So far as the case of accused-appellant far Arjun is concerned, the prosecution witnesses are consistent on the fact that Arjun had fired at deceased Om Prakash and as a result of gun shot injury he expired. Moreso, when no overt act has been assigned to these accused-appellant. So far as the case of accused-appellant far Arjun is concerned, the prosecution witnesses are consistent on the fact that Arjun had fired at deceased Om Prakash and as a result of gun shot injury he expired. This fact found support by the medical report as well as a country made pistol has been recovered at the instances of Arjun and we find no justification to interfere in the conviction and sentence of Arjun. However from the facts and circumstances of the case and material on record we find no substance in conviction of accused-appellants Padam Singh, Tej Singh and Girraj for the offence under Section. 302 read with 34 IPC. In the result the appeal of Arjuri is dismissed. The conviction and sentence of accused-appellant Arjun is upheld. However, the appeal of accused appellant Padam Singh, Tej Singh and Girraj is allowed. Their conviction and sentence is set aside and we acquit them from the charges levelled against them. The accused-appellants Padam Singh, Tej Singh and Girraj as on bail, they need not surrender to their bail bonds. Appeal of AT dismissed. Appeal of other three appellants allowed. .