JUDGMENT Per Surinder Sarup, J.: The nine respondents have been acquitted by the Court of Shri Janeshwar Goyal. Addl. Sessions Judge. Solan and Sirmur Districts at Nathan by the impinged judgment date 04.04.19X8 of the charge under Sections 14H/452/323/506 I.P.C. read with Section 149 I.P.C. in so far as respondents No.2 to 9 are concerned while, Vishwa Dutt respondent No. 1 has been acquitted of the charge under Sections 148/452/323/506 read with Sections 149 and 307 as I.P.C. as also section 27 of the Indian Arms Act; hence - the present appeal by the State. 2. The prosecution case is that there is a Klialiyan situated in Khasra No.47.«n village Lawahan belonging to the complainant party i.e. Ram Sarup etc. on 14.13.1985 at about 7.00 A.M., Mohinder Singh and Dev Dutt respondents started digging out the said Khaliyan. which was objected by Vidya Ram. Mean while, Respondent No. 1 Vishwa Dutt came there with a Lathi and gave a blow with it on the head of Vidya Ram. The latter out of fear, ran back to his house but was being followed by Mohinder Singh armed with Kasli, Vishwa Dutt. Slier Jang and Sarup Devi (armed with lathis) and Nirmla Devi respondent, who gave Vidya Dutt, beating in his house. Dey Dutt respondent claimed up the roof and started pelting stones and other respondents - Meera Devi, Ganga Dutt. and Shakha pelted stones from the Court yard and thus caused injuries on the person of Sarup Devi, Dev Dutt and Jai Parkash, the members of the complainant party. Bishwa Dutt, the brother of Vidya Ram on hearing the cries, reached the Spot. AH the respondents fled away leaving behind Kasli and Lathis in the Court yard of the complainant party. Vishwa Dutt leQt behind the Jersy worn by him in the said court yard. 3. 10 to 15 minutes later, Vishwa Dutt respondent came there armed with a gun and threatened the complainant party to come out of the house and he would kill them. Ram Sarup, out of the complainant party, who is also a, PW, came out of the house into the court yard. At this, the respondent Vishwa Dutt fired at him but Ram Sarup escaped as he moved a little. However, the pellets of the shot hit him on the shoulder and blood started oozing out of the injuries. Ram Sarup, out of the complainant party, who is also a, PW, came out of the house into the court yard. At this, the respondent Vishwa Dutt fired at him but Ram Sarup escaped as he moved a little. However, the pellets of the shot hit him on the shoulder and blood started oozing out of the injuries. The whole occurrence is alleged to have been witnessed by Jagdish and Harinder, residents of the same village. A report was lodged at the Police. Station, Sarahan at about 9.00 A.M. on 14.10.1985 and a case under Sections 148/452/323/506/149 and 307 I.P.C. and Section 27 of the Indian Arms Act was registered against the respondents. 4. During investigation, one Kasli, three Lathis and a Jersy of Vishwa Dutt aiongwith blood stained earth from the compound were taken into possession by the Police in sealed packets. On being arrested, the gun, along with one empty and three live cartridges were recovered from the person of Vishwa Dutt respondent. He along with Mohinder Singh out of the respondents party also had injuries and were got medically examined. After completion of the investigation, the nine respondents were challenged. They were committed to trial in the court of Sessions. Charges on the basis of the aforesaid offences were framed against them to which they pleaded not guilty and claimed to be tried. 5. At the trial, the” prosecution examined 19 witnesses and also produced the case property and documentary evidence. In their statements under Section 313 Cr. P.C, the respondents denied the prosecution allegations and produced three witnesses in their defence. . . 6. It may be mentioned here that during the trial, the presiding officer of the court, i.e. the predecessor of the judicial-officer who has rendered the impugned judgment, visited the spot on 01.02.1987 and after inspecting the same, recorded his inspection report. 7. In so far as the prosecution evidence is concerned, the same consists of PW-1 Dr. R.C. Mohindroo who had examined Ram Sarup, a member of the complainant party on 14.10.1985. He found the following injuries on his person: "1. A heamatoma 2 cm in diametre present in the occipital region. 8. There were multiple small round lacerated wounds about 30/40 number over the left shoulder region and its surrounding areas. The edges of the wounds were inverted. There was blackening present in this area. He found the following injuries on his person: "1. A heamatoma 2 cm in diametre present in the occipital region. 8. There were multiple small round lacerated wounds about 30/40 number over the left shoulder region and its surrounding areas. The edges of the wounds were inverted. There was blackening present in this area. There was oozing of blood from almost all the wounds. There was mark swelling over the left shoulder region and upper l/3rd of the left humorous tenderness was present" S. Medico legal certificate in this case is Ex. PW-l/A. According to this PW, injury No. l was simple in nature with blunt weapon possibly by lathi whereas injury No.2 was the result of fire arm possible by a single barrel gun Ex.P-1. In cross-examination he admitted that since the blackening was present in the area of the wound- injury No.2, the short could have been fired from a distance of less than 4 feet. PW-6Dr.M.L. Gupta examined VidyaRam and Jai Parkash on 14.10.1985 and found one abrasion and one lacerated wound each on their person. He opined that the injuries were simple with blunt weapons. He issued medico-legal certificates Ex.PW-6/A and E.x.PW-6/B in respect of Vidya Ram and Jai Parkash, respectively, 9. PW-2 Bishan Dutt has stated that on 14.10.1985 at about 7.00 A.M., when he along with the members of his family, was taking tea, Mohinder Singh and Dev Dutt respondents started digging Khalyah. Vidya Dutt came out of the house and objected to the same. Respondent Vishwa Dutt came there and gave a Lathi blow on the head of Vidya Ram. Vidya Ram, out of fear ran towards his room when Vishwa Dutt, Mohinder Singh, Sher Jung, Sarup Devi and Nirmia Devi followed him, entered his house and gave him beatings. Other respondents Ganga Dutt, Meera Devi and Shakha Devi started pelting stones from the court yard, whereas Dev Dutt respondent claimed up on the Kotha and started pelting stones. He further stated that Sarup Dev j, Jai Parkash, Ram Sarup and Vidya Ram from the complainant party received injuries on their person. The respondents after giving bea;ng, threw the Lathies and Kasli in the Court yard of the complainant party, jersy of Vishwa Dutt respondent also had fallen in the courtyard. He further stated that after 10-15 minutes Vishwa Dutt respondent came there with a gun and threatened the complainant party of life. The respondents after giving bea;ng, threw the Lathies and Kasli in the Court yard of the complainant party, jersy of Vishwa Dutt respondent also had fallen in the courtyard. He further stated that after 10-15 minutes Vishwa Dutt respondent came there with a gun and threatened the complainant party of life. On hearing the threats, Ram Sarup came out of the house. The respondent Vishwa Dutt fired at his chest from distance of X to 10 feet, but Ram Samp moved himself slightly and therefore, the shot hit his shoulder. Blood started oozing from the wound. 10. In cross-examination PW-2 admitted that there is litigation between parties and that a path of the village runs adjacent to the court yard. He further admitted that Vishwa Dutt respondent was employed in the Army and had also received injuries on his person during the occurrence. He denied the suggestion that the respondent Vishwa Dutt had brought the gun in defence to scare away the members of the complainant party and that the women folk of the complainant party had pounced upon him and in the said course of grappling the gun went off. 11. P W-3 Jagish has stated that he had witnessed the occurrence and that he had gone to the Police Station Sarahan to lodge a report but Bishan Sing PW-2 had already lodged the same. During cross-examination, he has admitted that he is a near relation of the complainant party and that he had narrated the occurrence to the police on 14.10.1985, when he joined the investigation. 12. PW-8 Harinder Dutt is the brother-in-law of Jagdish PW and stated that he had witnessed the occurrence along with the latter. He further, stated that he accompanied Jagdish PW to the Police Station; Sarhan, when Bishan Dutt PW-3 had already lodged the report. He further stated that he told the police about the occurrence. In cross-examination, he has admitted that he appeared as a witness on behalf of the complainant party against the respondent party and that his statement in this case was recorded by the police later on in the Police” Station. But, it needs to be noticed here that in Ex.PW-2/A, he has not been cited as an eye witness. 13. Ram Sarup is the other eye witness, who had received the shot injuries on his shoulder. But, it needs to be noticed here that in Ex.PW-2/A, he has not been cited as an eye witness. 13. Ram Sarup is the other eye witness, who had received the shot injuries on his shoulder. While appearing as PW-7, he had supported the prosecution case and has stated that on receiving a lathi blow from Bisha Dutt in the Court yard, Vidya Ram ran towards his house, respondent Mohinder Singh with Kasli, Vishwa Dutt, Sher Jang and Samp Devi with lathis and Nirmla empty handed followed him and entered his room and gave him beatings and that Vidya Ram had received many injuries on his person. In cross- examination, he has admitted that Mohinder Singh and Vishwa Dutt respondents had also received injuries on their person and were medical examined by the doctor. He denied that the gun went off accidentally but has stated that Vishwa Dutt had fired the shot at his chest but he escaped by moving a little and that the shot had been fired by him from a distance of 10 to 15 feet. 14. PW-9 Rajinder Dutt Patwari had prepared the Tatima of the spot Ex.PW-9/Bat the instance of the Investigating Officer. PW-12 H.C.Garg had taken the X- ray of the injury No.2 on the person of Ram Sarup PW under the supervision of Dr.G.Narang PW-11. PW-13 Ram Sarup Head constable after receiving the gun Ex.P-l and other scaled parcel of empty and live cartridges had sent them to the Ballistics Expert, Chandigarh through constable Kishan lal and Irshad Ahmed. PW-16 and other Constables P W-14 Suchha Singh, and PW-15 Roshan Lal had proved the taking of those parcels to Ballistics Expert Chandigarh and are formal witnesses. 15. ASI Resham Singh had arrested Vishwa Dutt respondent with the gun Ex.P-I, one empty and three live cartridges and took them in possession in a scaled parcel vide recovery memo. Ex.PW-3/A. Hr had also taken the licence of the gun and other articles such as identity card, cycle and leave certificates from the personal search of Vishwa Dutt respondent. 16. PW-18, S.I., conducted investigation of this case. S.H.O.Khub Ram PW-19 presented the challan after receiving the report of the ballistics Expert Ex.PW-19/A. 17. Ex.PW-3/A. Hr had also taken the licence of the gun and other articles such as identity card, cycle and leave certificates from the personal search of Vishwa Dutt respondent. 16. PW-18, S.I., conducted investigation of this case. S.H.O.Khub Ram PW-19 presented the challan after receiving the report of the ballistics Expert Ex.PW-19/A. 17. The plea of the respondents is that the Khaliyan in question is owned 1/ them and the complainant party had been disputing their title and possession over it, and prolonged litigation has been going on between them. They have further alleged that on 14.10.1985 in the morning, Mohinder Singh, the father of respondent Vishwa Dutt had gone to milch the cattle through the passage passing adjacent to the Courtyard of the complainant party, who out of enmity gave beatings to Mohinder Singh and Vishwa Dutt respondent had gone there to have his father. He was also c.aught hold of by the complainant party and dragged and given beatings in the compound, but when the women folk of the respondent party raised hue and cry, both Mohinder Singh and respondent Vishwa Dutt were able to save themselves. It was also alleged that when Vishwa Dutt was trying to save himself, the members of the complainant party caught hold of him and in the process his jersy had come off and fell in the compound. It is further alleged that Dev Dutt, a relation of the complainant party had brought a gun in order to kill the respondent party, on which, in exercise of right of private defence, respondent Vishv-a Dutt had also brought his licensed gun only to scare away the members of the complainant party pounced upon and struggled with him, during the course of grappling, the gun went off and the pellets hit the shoulder of Ram Sarup. The respondents in defence examined Shri Prem Singh Kanungo, who had demarcated the Khalian in question and found it in Khasra No.36, owned by the respondent party and placed on record copy of demarcation report Ex.DW-1/A and Tatima Ex.DW-1/B. 18. Shri R.L.Sharma, the then Addl. Sessions Judge inspected the spot on 01.12.1987 and placed on record the inspection note. According to the same, from the Kotha of Harinder Singh, the place of occurrence is not visible and the common path of the village runs adjacent (o the court -yard of the complainant party. Shri R.L.Sharma, the then Addl. Sessions Judge inspected the spot on 01.12.1987 and placed on record the inspection note. According to the same, from the Kotha of Harinder Singh, the place of occurrence is not visible and the common path of the village runs adjacent (o the court -yard of the complainant party. It has also been mentioned therein that the distance from the point from where Vishwa Dutt respondent fired his gun shot to the place where Vidya Dutt was standing was 5 yards i.e. 15 feet. 19. We have heard the learned Addl. Advocate General on behalf of the State and Shri Jagdish Vats on behalf of the respondents. We have no reason to differ from the view taken by the learned Sessions Judge in the impugned judgment for the reasons to follow. 20. It has been forcefully argued by Shri Jagdish Vats that the recording of inspection note by the predecessor of Sh; Janeshwar Goyal, who has rendered the impugned judgment, is illegal in the eyes of law. In support of his submissions, he has cited Pritam Singh and another vs. State of Punjab (1956 SC 415). It has been laid down therein as follows: "A Magistrate is certainly not entitled to allow his view or observation to take the place of evidence because such view or observation of his cannot be tested by cross-examination and the accused would certainly not be in a position to furnish any explanation in regard to the same. In the absence of such test having been applied and an explanation sought from the accused in regard to the same under S.342, it is no\ open to the Judge to incorporate these observations of his in the judgment and base his conclusion on the same." He has also cited Keisam Kumar Singh and another vs. Manipur (AIR 1985 SC 1664), according to which, normally, a Court is not, entitled to make a local inspection and even if such an inspection is made, it can never take the place of evidence or proof but is really meant for appreciating the position at the spot. . 21. In view of the law clearly laid down in the above two rulings of the Apex Court, recording of the inspection note and the observations made therein has definitely caused prejudice to the defence of the respondents, who have been deprived of their valuable right of cross-examination. . 21. In view of the law clearly laid down in the above two rulings of the Apex Court, recording of the inspection note and the observations made therein has definitely caused prejudice to the defence of the respondents, who have been deprived of their valuable right of cross-examination. But effect of this has no bearing on the prosecution case, which otherwise must fail. 22. Dr. M.L.Lupta (PW-6) found one bruise and one lacerated wound each on the person of Vidya Ram and Jai Parkash. He admitted in cross-examination that these injuries could be caused due to fall or grappling. Another significant observation made by this PW is that in his opinion, these injuries could be sustained if the lathi blows arc given with mild force and not with full force because in that case, those injuries could cause fracture. This belies the Statement of Ram Sarup PW-7 that severe beatings with Kasli and sticks were given to Vidya Ram by four respondents. Had that been so, there would have been a number of injuries on the person of Vidya Rarn. 23. Similarly, the injury No. 1 on the person of Ram Sarup was found to be simple in nature caused with blunt weapon, the possibility cannot be ailed out that he received this injury when he fell on the ground on receiving injury No.2 by the gun shot and not by the sticks from Vishwa Dutt respondent. This casts a doubt on the prosecution version that the respondents gave lathi blows on the complainant party. 24. The medical evidence to the effect that there was blackening present in the area of wound caused by the gun shot on the shoulder of Ram Sarup indicates that the shot was fired from a distance of 4 to 5 feet. This belies the oral evidence, according to which the shot had been fired from a distance of about 10 to 12 feet. " , 25. The fact that the shot was fired from a close range but missed its target lays credence to the defence version that it was fired accidentally during the course of grappling between the two parties, i.e,, the complainant party and the respondent Bishaw Dutt. Therefore, the intention to kill any member of the complainant party, much less Ram Sarup, is absent in the present case. 26. Therefore, the intention to kill any member of the complainant party, much less Ram Sarup, is absent in the present case. 26. It is an admitted fact that there is enmity between the parties and there has been prolonged litigation between them regarding the Khaliyan in question. Moreover, Bishan Dutt, Jagdish and Harinder PWs are all close relations of the complainant party. Therefore, their testimony can well be tainted in the circumstances of the case discussed above. 27. Then again, the injuries on the person of Bishwas Dutt respondent have not been explained at all by the prosecution. This is also a circumstance which casts a doubt on its case. 28. Although the FIR is stated to have been recorded on 14.10.1985, however, a copy of the same was forwarded to the C.J.M. on 29.10.198S i.e., after 15 days. Reports of this type are to be sent with immediate dispatch to the Illaqua Magistrate through Special Messenger especially in serious offences, like 307 I.P.C., as in the present case. The distance between the Police Station where the FIR was recorded and the Court of C.J.M. Camp at Rajgarh is 80 K. Ms, and the twp places are connected by road. At the most, the report should have reached the C.J.M. on 15.10.1985. There is thus, no explanation for this inordinate delay of 15 days. The learned trial court has rightly come to the conclusion that this delay day’s credence to the defence version that the FIP was in fact recorded at a much later date and time than the one it is purported to have been recorded. 29. There are other circumstances which cast a doubt on the prosecution version. The same have been discussed in detail in the impugned judgment and need not detain us here. Therefore, all in all, the prosecution case is not free from doubt. The respondents have been rightly given the benefit of the same and acquitted by the trial Court. Therefore, we affirm the impugned judgment and dismiss the appeal. The bail and surety bonds of the respondents are discharged. -