JUDGMENT 1. 1. The appellant Raja Ram alias Rajo Ram was put on trial alongwith Jai Singh son of Mooli Singh before the learned Additional Sessions Judge No. 2, Bharatpur in Sessions Case No. 40/93. During trial, co-accused Jai Singh absconded hence the trial proceeded against the appellant alone. The charge against the appellant was that he was a member of an unlawful assembly and in pursuance to the common object of the assembly, one Kartar Singh of Village Chimini was murdered by gun-shots. The trial Court vide impugned judgment dated July 24, 1995 convicted the appellant under Section 148 and 302 read with Section 149 I.P.C. and sentneced him to undergo imprisonment for life and to pay a fine of Rs. 500/- under Section 302/149 I.P.C. and in default, to undergo three months' rigorous imprisonment. He was further awarded two years rigorous imprisonment under Section 148 I.P.C. Substantive sentences were ordered to run concurrently. This appeal is preferred by the appellant being aggrieved by his conviction and sentence. 2. Put briefly, the prosecution case, as unfolded in the First Information Report (EI.R.) Ex.P. 6, is that the deceased Kartar Singh was going on foot from his village Chimni to catch train for Agra in the morning of March 10, 1993. P.W. 3 Digambar Singh was following him at a short distance. When they reached near the field of one Dharmi Ahir, about one Kilometer away from village Chimni, then, suddenly five persons emerged out of the field and made gun fires on Kartar Singh. The appellant was named one of them in the report. Crime No. 102/93 was registered under Section 147, 148, 302/149 I.P.C. at Police Station, Kumher on the report made by Digambar Singh and formal F.I.R. (Ex.P. 7) was chalked-out. 3. After registration of the crime, investigation was taken by Sub-Inspector, Prabhu Lal. The Investigating Officer (for short the 1.0.), then, inspected the site of occurrence and prepared site-plan Ex.P. 2. He also prepared Inquest report of the dead body Ex.P 8. Blood stained and control soil were seized from the place of occurrence vide Memo Ex.P. 4. A bag belonging to the deceased was also seized from the place of occurrence vide Memo Ex.P. 5. Clothes of the deceased were seized vide Memo Ex.P. 9. The post-mortem examination of the dead body was made by P.W. 11 Dr. Blood stained and control soil were seized from the place of occurrence vide Memo Ex.P. 4. A bag belonging to the deceased was also seized from the place of occurrence vide Memo Ex.P. 5. Clothes of the deceased were seized vide Memo Ex.P. 9. The post-mortem examination of the dead body was made by P.W. 11 Dr. Babu Lal Meena vide post-mortem report Ex.P. 19, who noticed the following external injuries on the dead body : 1. Abrasion 2 x 2 cms. above left elbow on back part with clotted blood. 2. Abrasion 11/2 x 1/2 cm. below left elbow back with clotted blood. 3. Multiple punctured lacerated wounds of size varying from 1.5 cm to 2 cm. x 1 /2 cm. to 1 /4 cm. Soft tissue deep oval in shape in an area of 4" x 4.5" with collar of abrasion at margins with fresh clotted blood scattered at unequal distance, but no blackening and no tatooing seen, placed 'on outer and back lower 1/2 of left arm with corresponding tears on 'Kurta' which have powder mark black colour directing left to right side. 4. Multiple punctured lacerated wounds of size varying from 1 /2 to 1 /4 cm x 1/2 cm to 1/4 cm. soft tissue deep in an area 4.5" x 3.5" in unequal - scattered with collar of abrasion at margin, but no tatooing and no blackening seen. Fresh clotted blood over inter scapular region upper part directing back to front. 5. One punctured lacerated wound of size 1.5" x 3/4" x cranial cavity deep surrounded with multiple punctured lacerated wounds of size 1 x 1 cm to 1/2 cm x 1/4 cm x scalp tissue deep in an area of 2.5" x 2.5" with collar of abrasion, blackening of tissue present on left side tempo-parietal region medially oozeing of dark blood directing left to right side. 6. Lacerated wound 3 x 1/2 cm. x bone deep on left mastoid region with fresh clotted blood. 7. Lacerated wound 2 x 1 cm x scalp tissue deep just 1 cm below injury No..6. In opinion of the Doctor the mode of death was coma as a result of ante-mortem injury to the skull and brain caused by firearm. 6. Lacerated wound 3 x 1/2 cm. x bone deep on left mastoid region with fresh clotted blood. 7. Lacerated wound 2 x 1 cm x scalp tissue deep just 1 cm below injury No..6. In opinion of the Doctor the mode of death was coma as a result of ante-mortem injury to the skull and brain caused by firearm. Injury No. 5 from intermediate range was stated to be sufficient to cause death in the ordinary course of nature, while other injuries were opined to be simple in nature. Injury No. 3 and 4 were caused by firearm from intermediate range while injuries No. 1, 2, 6 and 7 were caused by blunt object. 4. After completion of usual investigation charge-sheet came to be laid before the concerned Magistrate and the case was committed to the Court of Sessions Judge, being exclusively triable by a Court of Sessions. From there, it was made over for trial to the Court of Additional District and Sessions Judge No. 2, Bharatpur. 5. At the trial, prosecution examined 15 witnesses to seek conviction of the appellant. The plea of the accused, in his statement under Section 313 Cr.P.C., was that of denial. In defence, one witness, namely, Radhey Shyam was examined as D.W. 1. The learned trial Court after completion of the trial, convicted and sentenced the appellant as stated here-in-before.Shri A.K. Gupta, learned counsel appearing for the appellant, while assailing conviction of the appellant referred to a number of circumstances creating doubt in the credibility of the prosecution story and so-called eye-witnesses of the occurrence, namely, P.W. 3 - Digambar Singh and P.W. 9 - Deshraj son of Kartar Singh deceased. Learned counsel contended that presence of the above eye- witnesses at the scene of occurrence was not likely in normal course and it was highly doubtful that they, in fact, witnessed the occurrence. Counsel further contended that their testimony suffers from serious contradictions, infirmities and improbabilities so that it is difficult to accept their evidence. It was then submitted that neither crime guns nor empty cartridges were recovered during investigation of the case. Prosecution has also failed to prove the case by producing expert ballistic evidence to show that the incident could take place in the manner as stated by the witnesses. It was then submitted that neither crime guns nor empty cartridges were recovered during investigation of the case. Prosecution has also failed to prove the case by producing expert ballistic evidence to show that the incident could take place in the manner as stated by the witnesses. Shri Gupta seriously contended that the evidence of so called eye- witnesses is totally inconsistent with the medical evidence which is a most fundamental defect rendering the entire prosecution case and the witnesses untrustworthy. For the witness Desh Raj it was also contended that in F.I.R. his presence at the scene and time of occurrence is not shown and he was introduced as an eye-witness subsequently being son of the deceased. Learned counsel pointed out that the entire prosecution story has been changed subsequently with a view to introduce false eye- witnesses. 6. Learned Public Prosecutor, on the other hand, supported the judgment of the trial Court and contended that the evidence of P.W. 3 - Digambar Singh, P.W. 9 - Deshraj was reliable and rightly acted upon by the trial Court for recording conviction of the appellant. 7. We deeply considered the above submissions and carefully examined the entire material on record, as well as, the judgment under challenge in the appeal. 8. At the out-set, we may state that the learned trial Judge neither made analytical examination of the evidence nor properly considered and dealt with the various important questions involved in the matter. We have no hesitation in observing that the learned trial Judge should have been more serious and careful in deciding such a serious case involving capital punishment. 9. At this juncture, we may also state that neither the crime guns nor empty cartridges were recovered in the course of investigation. In fact, fate of the prosecution case rests on the evidence of the two eye-witnesses, namely; P.W. 3 - Digambar Singh and P.W. 9 - Deshraj. The crucial question, therefore, for our consideration is - whether the evidence of these two witnesses is trust-worthy and credible for recording conviction of the appellant. 10. After careful perusal of the evidence of the two eye-witnesses P.W. 3 - Digambar Singh and P.W. 9 - Deshraj in light of the various criticisms referred to above, we find it difficult to believe their testimony that they were present at the site to witness the incident. 10. After careful perusal of the evidence of the two eye-witnesses P.W. 3 - Digambar Singh and P.W. 9 - Deshraj in light of the various criticisms referred to above, we find it difficult to believe their testimony that they were present at the site to witness the incident. The occurrence in the present case had taken place in village Nawal-ka-Nangla, at a distance of one Kilometre from the village Chimni, while P.W. 3 - Digambar Singh was residing in village 'Sihi' at the relevant time. In normal course he had no occasion to be present at the scene and time of the occurrence. Similarly, in normal course he could not be expected with the deceased Kartar Singh when he was going on foot from his village Chimni to catch the train for going to Agra. First time, 'in the trial Court, the witness has tried to give explanation for being present at the scene of occurrence. The explanation is that he, too, was going to Agra with the deceased Kartar Singh to see his (Kartar Singh's) brother-in-law who had met with an accident. According to him, one day prior to the incident deceased Kartar Singh had asked him to accompany him from Agra to see his brother-in-law and this request was made in village Sihi, where he had come to see a wrestling competition. This explanation does not find place either in the report Ex.P. 6 made by the witness or his police statement Ex.D. 1. The aforesaid request, as per the witness was made in presence of Randhir Singh, Vijendra and Desh Master of village Sihi, but none of them has been examined by the prosecution to corroborate the above fact. In our opinion, the explanation given by the witness appears to be an after-thought when it was realised that he could not be present at the scene of occurrence at the time of the incident. It also appears that this witness was having strained relations with the appellant. He admits in his statement that he was having fear from the appellant. 11. Another important aspect of the case is that since much prior to the incident, the appellant was residing in village 'Bhera-Meda-Sihi'. It also appears that this witness was having strained relations with the appellant. He admits in his statement that he was having fear from the appellant. 11. Another important aspect of the case is that since much prior to the incident, the appellant was residing in village 'Bhera-Meda-Sihi'. Similarly, co-accused Hodel son of Sardar and his younger brother resided in village Birbala in the jurisdiction of another Police Station, and co-accused Fateh Singh was in service in Hindaun City for the last 10-12 years. In normal course, all the five accused mentioned in the F.I.R. could not be present on the field of Dharmi Ahir with weapons unless they assembled with prior consultation and conspiracy. For this, there ought be a strong motive and serious heart burning against the deceased for committing his murder. Then, the accused persons should have prior knowledge that the deceased would be passing through near the field of Dharmi Ahir where they are stated to be sitting in ambush. In F.I.R., no motive or immediate cause of the incident has been given. At the trial stage, P.W. 3 - Digambar Singh has deposed that the deceased Kartar Singh was having enmity with Vijay Singh, brother of co-accused - Jai Singh and about 6-7 months prior to the incident Kartar Singh was injured with pellets from a country made pistol by the accused Sardar, Jai Singh and appellant Raja Ram. In our considered view, even if we accept the above statement of the witness, it could be a reason to implicate the appellant and other co-accused in the incident, but it could hardly be a ground for all the accused persons to have assembled and sit in ambush to make a murderous attack on the deceased Kartar Singh. The manner in which the incident is stated to have taken place by the witnesses does not appear to be sound and believable. There is also no evidence on record to show that the accused persons had prior knowledge that the deceased would be passing through that way at a particular time. Thus, the entire prosecution story about the incident does not appear to be probable in the facts and circumstances of the case. 12. Another serious infirmity in the prosecution case is that the direct evidence of the witnesses is totally inconsistent with the medical evidence. Thus, the entire prosecution story about the incident does not appear to be probable in the facts and circumstances of the case. 12. Another serious infirmity in the prosecution case is that the direct evidence of the witnesses is totally inconsistent with the medical evidence. As per the F.I.R., the gun fires were made by the assailants only once from the field of Dharmi Ahir where they were hiding themselves. This version, later-on, was substantially changed by the prosecution. At the trial, the witnesses have come out with a case that gun fires were made on the deceased by all the five persons at three places. Firstly, the fires were made from the field of Dharmi where they were sitting in wait. Second time, fires were made by chasing the deceased and third time, the fires were made after he fell down on the ground. As per the statement of P.W. 3 - Digambar Singh, five to seven gunfires were made on the back and head of the deceased after he fell down on the ground. In cross-examination, he reiterated that from the field of Dharmi Ahir three fires were made and in the field of Panchya, four gunfires were made on him and after he fell down in the field of Panchya, 6-7 gunfires were made on him. Thus, the total number of gunfires come.to at least 13-14. From post-mortem report Ex.P. 19 and the statement of Dr. Babu Lai Meena gun-shot injuries sustained by the deceased were the result of three fires and two of them were made from left to right, while direction of injury No. 4 was from the back side. The injuries found on the body of the deceased could not have been caused in the manner as stated by the witnesses. Then, none of the gun-shot injuries sustained by the deceased could be caused after his fall. 13. Thus, the statements of the so-called eye-witnesses are totally inconsistent with the medical evidence. In such a situation, the evidence is wanting in most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. Unfortunately, the trial Court overlooked most of the material circumstances which were damaging to the prosecution case. In such a situation, the evidence is wanting in most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. Unfortunately, the trial Court overlooked most of the material circumstances which were damaging to the prosecution case. It also failed to deal with the important aspect relating to inconsistency between the ocular evidence and medical evidence, though the ground was expressly canvassed before it. We are of the opinion that such striking circumstance should have been properly considered with care and caution by the trial Court particularly in a murder case where' penalty could be a death sentence. 14. In Ram Narain v. State of Punjab, AIR 1975 SC 1727 it was observed by the Apex Court that where the direct evidence is not supported by the expert evidence, then the evidence is wanting in most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence. It was also observed that 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 and unless reasonably explained, it is sufficient to discredit the entire case. 15. The elementary principle about burden of proof in criminal cases of gun-shot injuries has been stated by the Apex Court in Mohinder Singh v. State, AIR 1953 SC 415 , in following terms : "In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be 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 is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle." 16. It also appears to be strange and unnatural as to why the deceased Kartar Singh, the witnesses Digambar Singh, Deshraj and deceased's wife were not going together when all of them were going from the village to catch train for Agra. It also appears to be strange and unnatural as to why the deceased Kartar Singh, the witnesses Digambar Singh, Deshraj and deceased's wife were not going together when all of them were going from the village to catch train for Agra. The prosecution story at the trial stage that the witness Digambar Singh was 50 steps behind the deceased Kartar Singh and deceased's son Deshraj and his wife Premwati were further 100-150 yards behind Digambar Singh appears to be an improvement and embellishment in order to introduce Desh Raj and Smt. Premwati as witnesses of the occurrence. Further, the name of Deshraj or Premwati does not find place in the F.I.R. lodged by Digambar Singh himself. Smt. Premwati has not been examined by the prosecution, while the evidence of Digambar Singh and Deshraj is full of serious contradictions and embellishment. There is no other corroborative evidence on record implicating the appellant in the crime. 17. Learned Public Prosecutor also could not explain as to why other persons named in the F.I.R. were not charge- sheeted as yet except the appellant and co-accused Jai Singh. 18. Thus, taking into consideration the totality of the facts and circumstances of the case, we find it difficult to believe the prosecution case and the version of the eye-witnesses. 19. With the result, the conviction of the appellant Raja Ram alias Rajo Ram under Sections 148 and 302 read with Section 194 I.P.C. cannot be sustained.Consequently, this appeal succeeds. Conviction and sentences of the appellant Raja Ram alias Rajo Ram for the offences under Sections 148 and 302/149 I.P.C. are set aside. He is acquitted of all the charges. He is in jail and shall be released forthwith if not wanted in any other case.Appeal Allowed. *******