JUDGMENT 1. - This criminal appeal under section 374 of the Criminal Penal Code is directed by the appellants, Ajeet Singh son of Man Singh, Kambo Singh and Mahendra Singh Narendra Singh son of Tara Singh resident of 52-F, Tehsil Sri Karanpur, District Sri Ganganagar, against the judgment dated 8.8.1994 passed by the learned Addl. Sessions Judge No. 1 Sri Gangangar camp at Sri Karanpur. The appellant, Ajeet Singh has been convicted under section 302 of the IPC to undergo life imprisonment and with a fine of Rs. 500/- and in default of payment of fine to further undergo R.I. of six months. He has also been convicted under section 27 of the Arms Act for one year's R.I. with a fine of Rs. 500/- and in default of payment of fine to further undergo for R.I. of one month. Sentences under section 302 PC and under section 27 of the Arms Act were to run concurrently. Mahendra Singh OD Narendra Singh was sentenced to life imprisonment and to pay fine of Rs. 500/- and in default of payment of fine to further undergo imprisonment for-six months under section 302/34 IPC. 2. Being aggrieved against the order of convictions, the appellants have filed the present appeal. The FIR No. 197/91 dated 14.10.1991 (Ex. P/9) was recorded at the instance of Buta Singh, on his written complaint (Ex. P/1) at Police Station, Sri Karanpur. 3. The facts as narrated in the FIR by Shri Buta Singh, PW 1 are that his turn of water was to start at 8,20 hours on Monday as he takes his turn from Narendra Singh S/o Tara Singh of 52-F and interval time of filling water is 37 minutes. His Naka is situated at Rectangle No. 39, Kila No. 1. He has reached the spot at 7.18 minutes A.M at Kila No. 1 and at that place his son Gurvinder Singh, Jasvinder Singh, Balveer Singh S/o Tara Singh and Sukhdev Singh son of Dara Singh were also present with him. Narendra Singh S/ o Tara Singh wanted to take the water of Balveer Singh, when persons belonging to his group i.e. Ajeet Singh S/o Man Singh armed with single barrel 12 bore gun, Ratan Singh S/o Surjan Singh armed with double barrel 12 bore gun, Mahendra Singh S/o Tara Singh, Darshan Singh S/o Dara Singh and Kulwant Singh armed with 'Gandasies' reached at the spot. Narendra Singh started saying that they would not give any water at this Naka. Balveer Singh insisted that he would take water from Naka at that place. Darashan Singh and Narendra Singh asked Ajeet Singh to shoot him or hand over the gun to them, Ajeet Singh aimed towards us while standing at boundary of Kila No. 5 of Rectangle 40 and shot which hit Sukhdev Singh on the upper side of the stomach on the left side. He started bleeding and fell down. Sukhdev was brought to the village 52-F on tractor and from that place, they went to Karanpur on jeep. He had stated that accused persons had fired at them on account of taking turn of water. 4. The above said report Ex. P/1 was turned into FIR (Ex. P/9) in the Police Station, Sri Karanpur. The case was registered under sections 302, 147, 148, 149 of IPC and Section 27 of the Arms Act. The FIR was registered promptly at about 8.10 a.m. i.e. within 30-40 minutes of the occurrence and the special report was sent to the Magistrate on the same day at 10.00 a.m. The injured while being conveyed to the hospital had died on the way. 5. The S.H.O. of Sri Karanpur, Police Station, Shri Kashi Ram, PW 8 had reached the place immediately after registration of the FIR. He had prepared the site map (Ex. P/2) and site inspection report (Ex. P/2-A). He had collected the blood soiled earth vide Ex. P/3 and Ex. P/4 and sealed them. He had also collected wrist watch from the spot marked as Ex. P/5. He had given details of injuries vide Ex. P/6 and also prepared Panchnama vide Ex. P/7. He had got the postmortem of the dead body of Sukhdev Singh conducted in the hospital. Ajeet Singh was arrested on the same day vide Ex. P/11 and on his information vide Ex. P/14 the licensed gun of single barrel of 12 bore No. 2042 1969 was also recovered. "Empty" was also recovered which was sealed and marked as Ex. P/15. Licence of the gun was also taken into possession vide Ex. P/16. The other accused persons were also arrested. The documents regarding turn of water were also obtained from the Patwari. The gun etc. were sent for F.S.L. report and report was received vide Ex. P/20 and Ex. P/21. P/15. Licence of the gun was also taken into possession vide Ex. P/16. The other accused persons were also arrested. The documents regarding turn of water were also obtained from the Patwari. The gun etc. were sent for F.S.L. report and report was received vide Ex. P/20 and Ex. P/21. Ratan Singh accused named in the FIR was not challenged as there was no evidence against him. 6. The accused appellant, Ajeet Singh was charged under.section 148 & 302 of IPC r/w Section 27 of the Arms Act and remaining accused were charged under sections 148, 302, 149 IPC. The prosecution had examined as many as eight witnesses and produced 21 documents as exhibits. 7. The trial Court had found Ajeet Singh, appellant guilty for murder of Sukhdev Singh by firing at him with his gun and convicted him under section 302 IPC and also under section 27 of the Arms Act. The trial Court had acquitted Darshan Singh and Kulwant Singh by not believing the prosecution story that these two persons had provoked and asked Ajeet Singh to fire on the complainant party. The trial Court had convicted Mahendra Singh Narendra Singh, appellant on the ground that he was one of the persons who had asked Ajeet Singh to fire. Being aggrieved by such convictions, both the appellants have filed present appeal. 8. The prosecution had produced, PW 1 Buta Singh, the complainant, PW 4 Balveer Singh, as an eye-witnesses. PW 3 Balvinder Singh had reached the place when the occurrence had already taken place. 9. PW 1 Buta Singh, had stated that he along with others Gurvinder Singh, Jasvinder Singh and Balveer Singh had reached the field at about 7.18 a.m. Their turn of taking water was to start at 8.20 a.m. He admits that firing was done at the spot but he was declared hostile by the prosecution. He has narrated all the incidents as mentioned by him in the FIR but he is trying to conceal name of assailants by saying that there were two persons who resembled Ajeet Singh and Ratan Singh, but does not know as to who they were. He has signed various memos i.e. Ex. P/2, Ex. P/2-A, Ex. P/3, Ex. P/4, Ex. P/5, Ex. P/6, Ex. P/7, & Ex. P/8. He has admitted that Mahendra Singh appellant was not using water of the kilas in question. He has signed various memos i.e. Ex. P/2, Ex. P/2-A, Ex. P/3, Ex. P/4, Ex. P/5, Ex. P/6, Ex. P/7, & Ex. P/8. He has admitted that Mahendra Singh appellant was not using water of the kilas in question. He admits that he has signed Ex. P/1, complaint.PW 4 is the other prosecution eye-witness, who has narrated the.prosecution story almost as per the FIR. He has stated that Ajeet Singh and Ratan Singh had the gun with them and other accused had 'Gandasies". He has stated that Darshan Singh, Mahendra Singh and Kulwant Singh were three persons who had asked Ajeet Singh to fire and Ajeet Singh had fired which had hit Sukhdev Singh. He says that he and Buta Singh had put Sukhdev Singh injured on the tractor. He also accompanies them in the jeep to Karanpur hospital, where they had reached at 8.00 - 8.15 a.m. He had straightway gone to hospital and from there he had gone to Padampur to inform the relatives of Sukhdev Singh. He had admitted that it was the first time they had gone to irrigate the said land by taking for their turn of the water. They had never used water for this land earlier to that from that place. He admits that there was no enmity whatsoever between the accused Kulwant Singh, Mahendra Singh and Darshan Singh and deceased party.Balvinder Singh, PW 3 is another witness who had reached at the spot, after hearing the noise. He had seen Mahendra Singh, Darshan Singh, and Kulwant Singh standing about three bighas away from the place of occurrence. None of them was armed. He had seen Sukhdev Singh with bullet injury from which blood was oozing. The injured was taken to hospital but died on the way. He is also signatory to number of memos such as Ex. P/2, Ex. P/3, Ex. P/4, Ex. P/5, Ex. P/6 & Ex. 7.PW 5 Brijlal, a Police Officer who was working in the Police Station, Karanpur during that time, was given five packets to be sent to Jaipur for F.S.L. Report and the same were deposited at Jaipur on 15.11.1991. He had deposited the material intact without any tempering. PW 6 is another formal Police Official who had kept the material in 'Mallchana' of the Police Station and which was later on sent for F.S.L. Report, Jaipur.PW 7 Dr. He had deposited the material intact without any tempering. PW 6 is another formal Police Official who had kept the material in 'Mallchana' of the Police Station and which was later on sent for F.S.L. Report, Jaipur.PW 7 Dr. Laxmi Lal Sharma had examined the deceased Sukhdev Singh and given the medical report. He had found one lacerated wound 11/2" x 1/2", deep up to cavity of stomach and part of omentum had already come out. It was entry wound of a bullet fired from the fire arm. He had found total five injuries of lacerated wound. All the injuries were anti mortem and fired with a fire arm. He had extracted 16 small pellets during postmortem of the deceased. According to his opinion, injuries were sufficient to cause death. PW 8 Kashi Ram, S.H.O. of Police Station, Karanpur had investigated the case. He has deposed that on receipt of the report of the complainant, Buta Singh, PW 1 he had registered the FIR and had reached place of occurrence, prepared the site plan at the instance of Balvinder Singh, Buta Singh was also present. He had prepared Ex. P/2 & Ex. P /2-A and collected blood stained soil from the place. He had prepared all the memos. He had arrested accused persons. He had recovered the gun, its licence and empty etc. 10. The accused persons had denied the allegations in the statements under section 313 Criminal Procedure Code They had produced in defence Ex. D/1, Ex. D/2, & Ex. D/3. Ex. D/1 is the memo of arrest and search in regard to Mahendra Singh, wherein it is mentioned that there is some inflammation at the palm of his hand, which is said to have been caused, because of hurt given by Buta Singh. Ex. D/2 is the statement of Balvinder Singh for the purpose of confrontation and so is Ex. D/3 but there is nothing relevant material revealing in Ex. D/1, Ex. D/2 & Ex. D/3, as to help the defence. 11. From the facts of the case, it is clear that Sukhdev Singh had been killed at the spot at about the time mentioned in the FIR. The FIR itself is registered with the most promptness i.e. within half an hour and so. The FIR also reaches Magistrate within two hours of the registration. There is hardly any time for cooking up any story by the complainant. The FIR itself is registered with the most promptness i.e. within half an hour and so. The FIR also reaches Magistrate within two hours of the registration. There is hardly any time for cooking up any story by the complainant. It is admitted by PW 4 Balveer Singh that it was the first time that they had gone to take water for the Kilas/land involved in the incident and earlier to that they had never irrigated those kilas from the said Naka. In all probabilities, the dispute had arisen at the spot in regard to fact whether water is to be allowed or not allowed and there can be resistance on the part of the accused persons. The FSL report Ex. P/20 & Ex. P/21 clearly establishes that single barrel gun of Ajeet Singh was serviceable at the time and empty in question was found to have been fired from the gun of Ajeet Singh. So far as the firing of the shot by Ajeet Singh is concerned, it is established by the eye-witnesses and also by PW 3 who had reached immediately after the shot had been fired. Hence, the conviction in regard to Ajeet Singh, cannot be interfered with, and the judgment of the trial Court in convicting the appellant Ajeet Singh under section 302 of IPC and also under section 27 of the Arms Act is to be maintained. 12. Counsel for the appellants has relied on 1975 SC 1727, 1976 Criminal.L.R. Raj. 163 and 1984 RCC Page 135 but facts of those cases are distinguishable and are not applicable in the present case. 13. In regard to other appellant, Mahendra Singh, no overt act has been attributed to him except that of Section 34 of IPC along with Ajeet Singh. It is admitted fact as per prosecution story in the statement of PW 4, that three persons i.e. present appellant, (Mahendra Singh), Darshan Singh and Kulwant Singh had asked Ajeet Singh to fire and Ajeet Singh had fired accordingly. If Darashan Singh and Kulwant Singh had been acquitted, by not believing the prosecution story on that count, no exception can be made in regard to Mahendra Singh, appellant and he is entitled to acquittal. If Darashan Singh and Kulwant Singh had been acquitted, by not believing the prosecution story on that count, no exception can be made in regard to Mahendra Singh, appellant and he is entitled to acquittal. Another factor which is material is that PW 4 has stated that these three persons i.e. Mahendra Singh, Darshan Singh and Kulwant Singh were standing at a distance of about three bighas from the place of occurrence when the fire was shot. In all probabilities, these persons may be present at a sufficient distance but have been involved because of some extraneous reasons. Buta Singh PW 1 in his report, FIR only mentions the names of Darshan Singh and Kulwant Singh, who had asked Ajeet Singh to fire. He does not mention the name of Mahendra Singh for asking Ajeet Singh to fire. Statement of Balveer is an improvement from the facts given in the FIR. Because of these facts, the appeal of Mahendra Singh is liable to be accepted and conviction to be set aside. 14. In view of the reasons mentioned above, the appeal of Mahendra Singh Narendra Singh is accepted and his conviction vide order date. 8.8.1994 passed by the learned Addl. Sessions Judge No. 1 Sri Ganganagar camp at Sri Karanpur is set aside. If Mahendra Singh, appellant is on bail, his bail bonds are discharged and he is released forthwith, until and unless, he is required in any other case. The appeal of Ajeet Singh S/o Man Singh is dismissed and no interference is required in the order dated 8.8.1994 passed by the learned Addl. Sessions Judge No. 1 Sri Ganganagar camp at Sri Karanpur. Appeal partly allowed. *******