JUDGMENT 1. - This appeal under Section 374 of the Code of Criminal Procedure is directed against the Judgment and order dated, February 8, 1996 passed by the learned Sessions Judge, Bundi in Sessions Case No. 205/92 convicting and sentencing the appellants as under : 1. Appellant Mool Chand - Under Section 302 1PC Imprisonment for life and fine of Rs. 200/- Under Section 3/25 of the Arms Act, Six months R.I. 2. Appellant Govinda - Under Section 323 IPC to the period of imprisonment already undergone by him. 2. The appellants were put on trial along with co-accused Harnath and Ramesh. The charge against appellant Mool Chand was that he caused the death of Bhairu Lal Meghwal by a gun shot on his chest with a country made pistol. He was also charged under Sections 3/25 and 3/27 of the Arms Act. Appellant Govinda and co-accused Ramesh and Harnath were charged under Section 302 IPC with the aid of Section 34IPC. Govinda was also charged under Section 323 IPC for causing simple injury to Smt. Sumitra. The learned trial Judge after completion of the trial, acquitted co-accused Harnath and Ramesh, but convicted and sentenced the appellants as aforesaid. 3. Put briefly, the prosecution case is that PW 3 Chhitar Lal made an oral report at the Police Station, Kesorai-patan at 4 p.m. on 19.4.92 stating therein that at about 1.30 p.m. on the same day, he and his nephew Daya Ram were standing out-side their house when all the accused came there with weapons. Appellant Mool Chand was having a country made pistol while others were having lathis-and Gandasis. Soon after reaching there, appellant Govinda asked Daya Ram as to what talks he was having with his sister Sanju. On this, Daya Ram replied that Sanju had come there in search of his sister who had gone to the field. There-upon, Mool Chand-Appellant threatened them saying "Thum Bahut Itra Gave ho jo hamari Ladkiyon se baat karte ho. Isliye Tumhare Sabke ek Taraf se goli nikalunga." (You have become so mean that you talk with our daughters. I will shoot all of you.) It was also stated in the report that his younger brother Bhairu Lal came there after taking his bath in the river, who also asked Mool Chand as to why they had come to quarrel. Isliye Tumhare Sabke ek Taraf se goli nikalunga." (You have become so mean that you talk with our daughters. I will shoot all of you.) It was also stated in the report that his younger brother Bhairu Lal came there after taking his bath in the river, who also asked Mool Chand as to why they had come to quarrel. There-upon, appellant Mool Chand made a fire from the country made pistol which struck on his chest. Bhairu Lal fell down on the platform and died on the spot. The informant's wife was assaulted by the appellant Govinda with a lathi when she came for rescue. One Ganga Ram Meghwal was stated to be an eye-wit,ness of the incident. On this report, crime No. 114/92 was registered under Sections 302, 323 and 3/25 of the Arms Act. After registration of the case investigation commenced. Inquest report (Ex.P. 1) of the dead body was prepared by the S.H.O. Raghunath Singh and thereafter, the body was handed over for postmortem examination. Site-plan (Ex.P. 4) of the place of incident was prepared at 6.15 p.m. on 19.4.92. Postmortem-examination of the dead body was conducted by a Medical Board consisting of PW 9 Dr. Narottam Nuwal and Dr. Navneet Vijay. Postmortem report is Ex.P. 14. The following external injuries were noticed by the Doctors at the time of postmortem examination:- 1. Exit wound 2 x 1 cm. elliptical in shape lying obliquely on left side chest just below nipple-margins clear well defined. No blackening or tattooing at or around margins. 2. Entry wound 21/2 x 1/4 cm. elliptical shape lying obliquely on left side back in mid scapular line just below scapula, margins are irregular and 1 cm. of area around margin is blackened. On internal examination, there was an entry exit wound on the heart which are described as under: 1. One wound (entry) 3 cm. x 1/2 cm. on back side of left ventricle cavity deep. 2. One exit 11/2 cm. x 1/2 cm. on front of left ventricle. 4. In the opinion of Doctors, the cause of death of Bhairu Lal was gun-shot injury causing injury to heart and lung leading to haemorrhage, shock and death. 5. No pellet or bullet was found during postmortem examination. The appellant Mool Chand was arrested on 24.4.92 vide arrest memo (Ex.P. 17). x 1/2 cm. on front of left ventricle. 4. In the opinion of Doctors, the cause of death of Bhairu Lal was gun-shot injury causing injury to heart and lung leading to haemorrhage, shock and death. 5. No pellet or bullet was found during postmortem examination. The appellant Mool Chand was arrested on 24.4.92 vide arrest memo (Ex.P. 17). On his information a country made pistol and five cartridges were recovered and seized vide memo Ex.P. 6 dated 26.4.92. However, the revolver was not sent by the Investigating Agency for examination by a ballistic expert. After completion of usual investigation a charge-sheet came to be filed before the concerned Magistrate who committed all the four accused to the Court of Sessions Judge, Bundi for trial as the offence under Section 302 IPC being exclusively triable by a Court of Sessions. 6. During trial, prosecution examined 14 witnesses for seeking conviction of the appellants. Out of them, PW 3 Chhitar, PW 4 Daya Ram, PW 5 Smt. Subhadra and PW 6 Ganga Ram were examined as eye-witnesses. Medical Officer (Dr. Narottam Nuwal) was examined as PW 9 who had conducted postmortem examination along with Medical Jurist, Dr. Navneet Vijay, PW 12 Raghu Nath Singh, S.H.O. was the Investigating Officer. The learned Trial Judge placing reliance on the testimony of eye- witnesses convicted and sentenced the appellants, Mool Chand and Govinda and acquitted co-accused Harnath and Ramesh as stated hereinbefore. 7. Shri A.K. Gupta, learned counsel appearing for the appellants, assailing conviction of the appellants, vehemently contended that a false story about the incident was invented in order to implicate the accused persons. Learned counsel contended that the medical evidence belies the prosecution case and testimony of the alleged eye-witnesses of the incident. Elaborating his contention, Mr. Gupta submitted that as per medical evidence, deceased Bhairu Lal has sustained gun-shot on his back and the exit wound was on the chest, while the prosecution evidence was that gun-shot was made by the appellant Mood Chand on the chest of the deceased. According to the learned counsel, in a murder case, it is always the duty of prosecution to prove by expert evidence that the injuries sustained by the deceased were caused in the manner in which they are alleged to have been caused and in the instant case, the expert medical evidence falsifies the prosecution case. According to the learned counsel, in a murder case, it is always the duty of prosecution to prove by expert evidence that the injuries sustained by the deceased were caused in the manner in which they are alleged to have been caused and in the instant case, the expert medical evidence falsifies the prosecution case. On the other hand, learned Public Prosecutor supported conviction of the appellants and argued that the deceased might have taken a turn when gun-shot was fired by the appellant Mool Chand. It was also contended that there was consistent ocular evidence to prove the guilt of the appellants and they have been rightly convicted by the trial Judge. 8. We minutely examined the evidence and material on record and also perused the judgment under challenge in the appeal in light of the above submissions. 9. At the out-set we may state that the crucial question about conflict between ocular and medical evidence was not properly considered and the finding of the trial Judge on this question is erroneous and contrary to the evidence on record. The trial Judge has observed in para-26 of the judgment that the eye-witnesses of the occurrence have not stated that gun-shot struck on front side of the body of the deceased. In other words, according to the learned Judge, the witnesses did not state that the gun-fire made by the appellant Mool Chand struck near nipple of the deceased and it passed away from the back side. The above observations are contrary to the evidence on record. The FIR of the incident was lodged by PW 3 Chhitar, who claims to be an eye-witness of the incident. As per the FIR itself, the fire made by the appellant Mool Chand from country made gun struck on the chest of the deceased Bhairu Lal who fell down on 'Chabutra' after sustaining the injuries. Thus, from the very inception, the prosecution case was that gun fire made by the appellant Mool Chand struck on the chest of the deceased. Similar is the statement of this witness in the trial Court wherein he has stated:- (English translation) : "At that time my younger brother Bhairu Lal came on the spot after taking his bath and stated as to why they were quarrelling at the gate of his house. Similar is the statement of this witness in the trial Court wherein he has stated:- (English translation) : "At that time my younger brother Bhairu Lal came on the spot after taking his bath and stated as to why they were quarrelling at the gate of his house. Thereupon, accused Mool Chand caused bullet injury on Bhairu Lal's chest from the country made gun. Bhairu Lal fell down on 'Chabutra' after sustaining bullet injury." 10. Similar is the statement of PW 4 Daya Ram, another eye-witness of the incident. He has stated in cross-examination. "Soon after reaching at the spot, Bhairu Lal told as to why they were quarrelling. They should go to their so home. Thereupon, the accused caused bullet injury to him. The injury was caused in front of the gate of Chhitar's house and it struck near left nipple of the deceased." 11. PW 6 Ganga Ram has stated that Mool Chand made fire by a country made pistol from a distance of 1 foot. ON sustaining injuries. Bhairu Lal fell down on Chabutra. Thus, the scrutiny of the evidence of eye-witnesses discloses that the appellant Mool Chand made a gun fire from a distance of 1 foot and it struck on the chest near nipple of the deceased. The prosecution case is so right from making FIR at the Police Station. However, this prosecution version stands completely falsified by the medical evidence as pointed out earlier. 12. In a contact shot, the entry wound being split by blast is larger than the exit wound unless the bullet comes out side-ways or of carries bone with it. In a distant shot, the entry wound may be size as smaller than or of the same size as the exit wound. 13. In the instant case, as per the prosecution case, the shot was made at a distance of 1 foot and as such, the opinion of the Doctors about the entry and exit wound appears to be correct and in consonance with medical text books. Unfortunately, the trial Judge failed to deal with this important aspect of the evidence on record. 14. In such a situation, whether conviction of the accused is safe and justifiable? 15. Unfortunately, the trial Judge failed to deal with this important aspect of the evidence on record. 14. In such a situation, whether conviction of the accused is safe and justifiable? 15. In Mohinder Singh v. The State, AIR 1953 SC 415 the Apex Court of the country laid down way back in 1953 as under : "In a case where death is due to injuries of wounds caused by lethal weapon, it is always the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it must prove the whole of the case." 16. In Ram Narain v. State of Punjab, AIR 1975 SC 1727 the same principle was reiterated thus:- "Where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. If the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert, this is a most fundamental defect in the prosecution case and unless reasonably explained, it is sufficient to discredit the entire case." 17. As stated earlier, in the instant case, the testimony of the so-called eye-witnesses is not supported by the expert evidence: rather it is totally inconsistent with the medical evidence and in view of the various pronouncements of the Apex Court of the country, we find it difficult to believe the prosecution case and the statements of the so called eye-witnesses. 18. Another disturbing feature in the case is that the gun recovered on disclosure of the appellant Mool Chand was not sent for examination by a ballistic expert. In fact, no attempt was made by the prosecution to connect the said gun with the crime. 19. 18. Another disturbing feature in the case is that the gun recovered on disclosure of the appellant Mool Chand was not sent for examination by a ballistic expert. In fact, no attempt was made by the prosecution to connect the said gun with the crime. 19. The prosecution case that all of a sudden all the accused came with weapons but did not cause any injury to Daya Ram against whom they might be having some grievance in their mind and causing gun shot injuries to the deceased Bhairu Lal, in absence of any motive against him, appears to us to be a bit unnatural and unbelievable. It is strange that in absence of any strong cause, appellant Mool Chand would have acted in such a manner, while other accused I did not cause any injury to the deceased or to the witnesses who were standing there. If all the accused came at the place of incident with pre-meeting of mind to assault Daya Ram, we find it difficult to believe the prosecution case and the version of the eye-witnesses that no attempt was made to assault Daya Ram. 20. The incident is alleged to have taken place in broad day light at a place which is a public way and surrounded by houses to witness the incident by the persons of the locality. Strangely, the prosecution did not make any attempt to examine any witness of the locality. PW 3 Chhitar, PW 4 Daya Ram and PW 5 Smt. Subhadra are near relatives of the deceased, while PW 6 Ganga Ram claims to be an eye-witness having reached at the spot by chance. It is true that the relation-ship of the witnesses with the deceased by itself may not be a ground to discard their testimony, but in view of the fact that their evidence is totally inconsistent and in conflict with the medical evidence and no witness of the locality has been examined by the prosecution, we feel it difficult to sustain conviction of the appellants on such evidence. The trial Court has over looked most of these circumstances discussed by us which were extremely damaging to the prosecution case, and lightly brushed aside the inconsistency between the medical evidence and the prosecution version. In view of the striking circumstances indicated above, the learned Sessions Judge ought to have approached the case with much more care and caution. The trial Court has over looked most of these circumstances discussed by us which were extremely damaging to the prosecution case, and lightly brushed aside the inconsistency between the medical evidence and the prosecution version. In view of the striking circumstances indicated above, the learned Sessions Judge ought to have approached the case with much more care and caution. 21. For the reasons given above, we are satisfied that the prosecution has failed to prove its case against any of the appellants beyond reasonable doubt and they are entitled to an acquittal. 22. Consequently, the appeal is allowed. The conviction and sentence of the appellants passed by the trial Court are set aside. They are acquitted of all the charges. The appellant Mool Chand is in Jail and shall be released forthwith if not required in any other case.Appeal allowed. *******