JUDGMENT 1. - His appeal has been preferred by leave under sub-section (1) rule with sub-section (3) of Section 378, Criminal Procedure Code against the judgment and order of acquittal dated 8.2.1980 passed by the learned Sessions Judge, Sri Ganganagar in Sessions Case No. 83/78 thereby acquitting the accused-respondent of offence punishable under section 307, IPC. 2. Briefly stated, the prosecution story, as a result of investigation, brought out is that PW 8 Om Prakash is resident of village 8 LNP and he also carries on business at Sri Ganganagar. On 26.7.1978, while PW 7 Ram Narayan was also present at his shop situated in Dhanmandi, Sri Ganganagar, both of them decided to go to the 'Dhani' of Om Prakash in his village. They started from Sri Ganganagar at 10 p.m. At about 10.30 p.m. when they were riding motor-cycle of Om Prakash, being driven by Om Prakash, on reaching the place of occurrence, which is situated in between the fields of the accused, since, due to rains, there was water and mud and, as a result, the motor-cycle slipped towards the field of the accused. Om Prakash tried to park the motor-cycle on its leg-stand and while he was under the process of doing so, the accused who was living in the 'Dhani' situated in the same chak, came there armed with 12 bore D.B.B.L. gun and he immediately fired from his gun towards Om Prakash. Since Om Prakash was in his bending condition, while holding motor-cycle, shot of the gun fired by the accused hit Om Prakash on his back side. As a result, he was hurt. Om Prakash accompanied by Ram Narayan, leaving in motor-cycle on the spot, ran towards the railway crossing gate situated nearby. After covering a little chgtance from there, before the accused could fire again, Om prakash asked Ram Narayan to arrange for some transportation to be taken him to hospital at Sri Ganganagar. Ram Narayan approached PW 2 Mani Ram who arranged a jeep and he took Om Prakash as well as Ram Narayan to the Government Hospital, Sri Ganganagar whereat Om Prakash was admitted to the hospital. His injuries were attended to and examined by PW 6 Dr. R.K. Gupta, Medical Jurist vide Ex. P/1 MLR. Ram Narayan approached PW 2 Mani Ram who arranged a jeep and he took Om Prakash as well as Ram Narayan to the Government Hospital, Sri Ganganagar whereat Om Prakash was admitted to the hospital. His injuries were attended to and examined by PW 6 Dr. R.K. Gupta, Medical Jurist vide Ex. P/1 MLR. He found two injuries on the person of Om Prakash out of which one injury, being an abrasion, was reported to have been received by being struck against the iron-rod of a tractor by Om Prakash. Meanwhile, the police of Police Station, Sadar, Sri Ganganagar was informed about it. PW 4 Shiv Narayan, ASI was despatched to the Hospital. He examined Om prakash at the Hospital whereat he was so admitted and recorded his 'Parcha Bayan' Ex. P/8 and, accordingly, on the basis of Ex. P/8 'Parcha Bayan' PW 9 Harnam Singh, SHO, P.S., Sadar, Sri Ganganagar registered Ex. P/12 FIR and started investigation. He went to the place of occurrence in the next morning and, after site inspection, prepared Ex. P/4 site-plan and Ex. P/4-A memorandum of site. It clearly shows that the place of occurrence is situated in Kila No. 11 of Murabba in the possession and cultivation of accused Tara Singh himself. He also recovered empty case of cartridge discharged from 12 bore D.B.B.L. gun vide Ex. P/5 from the site. He also collected wads of a cartridge vide Ex. P/6. Motor-cycle No. RSK 6451 was also seized from the place of occurrence vide Ex. P/7. The injuries of Om Prakash were x-rayed and, accordingly, since some foreign body (metallic pellets) were seen in the wound found on the body of Om Prakash, the injuries so received by Om Prakash were opined to have been caused by a gun-shot. 3. The accused was arrested and, pursuant to his information, a 12 bore D.B.B.L. gun as well as five cartridges were recovered from his possession. The empty cartridge as well as the cartridges, pellets, wads as well as the gun so seized were forwarded to the R.S.F.S.L., Jaipur and, after its examination, the gun was found to be serviceable. Besides, the empty cartridge case so alleged to have been recovered was also opined to have been fired from the gun and it was further opined that the pellets as well as the wads are normally used in 12 bore cartridges. 4. Besides, the empty cartridge case so alleged to have been recovered was also opined to have been fired from the gun and it was further opined that the pellets as well as the wads are normally used in 12 bore cartridges. 4. Lastly, on completion of investigation, a charge-sheet under section 307, IPC as well as Section 27 of the Arms Act was filed in the Court of Munsif & Judicial Magistrate, Sri Ganganagar who, in turn, committed the case to the Court of Sessions Judge, Sri Ganganagar. 5. The learned Sessions, while omitting to formally charge the accused with the commission of an offence punishable under section 27 Arms Act as well proceeded to charge the accused for commission of an offence punishable under section 307, IPC to which he pleaded not guilty and claimed to be tried and hence this trial was completed. 6. The prosecution examined as many as 9 witnesses besides, production of documentary evidence. The accused was examined under section 313, Criminal Procedure Code and he denied that he had ever fired at and hurt PW 8 Om Prakash, as is the prosecution story. 7. The learned Sessions Judge, after hearing both the sides vide his impugned judgment, disbelieving the prosecution story, vide his impugned judgment and order held the accused not guilty of the offence charged with and acquitted him there from and hence being aggrieved, the State has preferred this appeal, as above. 8. I have heard the learned public prosecutor for the State as well as the learned counsel for the accused-respondent and have also perused and considered the impugned judgment as well as the record of the trial Court. 9. The learned public prosecutor has contended that the learned Sessions Judge took superficial and erroneous view of the prosecution evidence, since the evidence of PW 8 Om Prakash being hurt and so also corroborated by PW 7 Ram Narayan, who was in his company at the time of the incident and Ex. P/8 'Parcha Bayan' on the basis of which Ex. P/8 'Parcha Bayan' on the basis of which Ex. P/12 FIR was, admittedly, registered by PW 9 Hamam Singh, the same also having corroborated the prosecution story that it was the accused-respondent who had shot at from his fire-arm and hurt Om Prakash in an attempt to commit his murder and, therefore, the same having been fully corroborated by the medical evidence, the impugned judgment and consequential order of acquittal of the accused-respondent is perverse and, therefore, the impugned order under appeal deserves to be reversed and accused-respondent be convicted of the offence charged with are sentenced accordingly. 10. The learned counsel for the accused-respondent contended that this is an appeal against an acquittal and the alleged incident took place on 25.7.1978in the field of the accused himself whereat he was residing and the accused-respondent had no business for passing from his field at about 10.30 p.m. and, there is further no evidence that it was the accused-respondent who had fired at and hurt Om Prakash. The evidence of PW 7 Ram Narayan as well PW 8 Om Prakash has to be cautiously appreciated and appraised, since as per their own admission, they are interested and, as is the prosecution story, Om Prakash was inimically disposed against the accused-respondent and, therefore, looking to the superficial fire-arm injury caused in the back and no other attempt having been made, though a false claim has been attempted to be made, there are no compelling reasons for this appellate Court to disagree with the finding arrived at by the learned trial judge. As a result, after lapse of about 19 years from the date of the alleged occurrence, looking to the nature of the offence and the fact that the accused-respondent stood acquitted of the charge levelled against him after full-fledged trial, there is hardly any compelling ground warranting any interference with the impugned judgment and order. 11. For the present disposal, as regards the place, date and time of occurrence, there is no serious dispute from the side of the defence. As stated by PW 8 Om Prakash, besides PW 7 Ram Narayan and also borne out of the statement of PW 9 Harnam Singh who visited the site of occurrence on the next morning and prepared Ex. P/4 and Ex. P / 4-A site plan and memorandum, this incident took place in the fields of the accused-respondent. As stated by PW 8 Om Prakash, besides PW 7 Ram Narayan and also borne out of the statement of PW 9 Harnam Singh who visited the site of occurrence on the next morning and prepared Ex. P/4 and Ex. P / 4-A site plan and memorandum, this incident took place in the fields of the accused-respondent. However, there is a small strip of way passing through the Muraba on both sides of the way. Besides, as is the statement of PW 9 Harnam Singh and is also admitted by Om Prakash, he slipped from the way and instead his motor-cycle swerved towards eastern side in Kila No. 1 of the field of Tara Singh, as a result, this cannot be disputed that this occurrence took place in the night in the field of the accused-respondent himself whereat he is residing in his 'Dhani'. 12. Besides, as is also stated by PW 8 Om Prakash, PW 7 Ram Narayan as well as PW 6 Dr. Gupta, Om Prakash was brought in his jeep by PW 2 Mani Ram to the Hospital at Ganganagar. He was also admitted in an injured condition. PW 4 Shiv Narayan, after being informed about the incident, reached the Hospital in the early morning of 26.7.1978 and he recorded Ex. P/8 'Parcha Bayan' of Om Prakash. He returned to the Sadar Police Station whereat PW 9 Harnam Singh registered Ex. P/12 FIR and started investigation. 13. PW 6 Dr. Gupta examined injuries of Om Prakash vide Ex. P/10 MLR and an oval shaped wound muscle deep on the right scapular region besides a bruise which has nothing to do with the fire-arm injury, were found on his person. As a result, having regard to the statement of Dr. Gupta besides Om Prakash and Ram Narayan as well as the x-ray report Ex. P/1, confirming presence of multiple foreign body (metallic pellets), it was proved beyond reasonable manner of doubt that Om Prakash received an injury, though simple in nature, with a fire-arm shot. 14. As a result, having regard to the statement of Dr. Gupta besides Om Prakash and Ram Narayan as well as the x-ray report Ex. P/1, confirming presence of multiple foreign body (metallic pellets), it was proved beyond reasonable manner of doubt that Om Prakash received an injury, though simple in nature, with a fire-arm shot. 14. Therefore, presently, the crucial point for determination remains: whether the accused-respondent is proved to have fired any shot from any fire-arm intentionally or knowingly and under such circumstances under which had he caused death of Om Prakash, he would have been liable for commission of murder as described under section 307 IPC and, consequently, the impugned judgment and order of acquittal under appeal is liable to be set aside. 15. Admittedly, besides PW 8 Om Prakash himself, other solitary eye-witness of the occurrence is PW 7 Ram Narayan who was travelling on the same motor-vehicle being driven by Om Prakash. They are inter se interested. Merely because of their interestedness, their testimony cannot be disbelieved but, as a measure of precaution, their evidence has to be screened and assessed with great care and caution. 16. PW 8 Om Prakash, as supported by PW 7 Ram Narayan, stated that at about 10 p.m. they left on the motor-cycle for the residence of Om Prakash situated in Chak 8 LNP. At about 10 p.m. when this occurrence took place, since due to heavy rain there was water-logging and mud in the way, his motor-cycle slipped and skidded from the way towards the kila of field of Tara Singh. He was attempting to hold and bring the motor-cycle in a bending condition. The lights of the motor-cycle were on. Here it is to be appreciated that he never stated in Ex. P/9 'Parcha Bayan' that the lights of the motor-cycle were on and it was in such a light that the accused was identified while coming from the opposite side. He further stated that Tara Singh was armed with a gun. While he was giving kicks in an attempt to start motor-cycle and was in a bent condition, the accused fired from his fire-arm and the shot struck in his back on the right side. He challenged the accused as to what was he doing. The accused replied that he was to kill to death and he would never be spared. While he was giving kicks in an attempt to start motor-cycle and was in a bent condition, the accused fired from his fire-arm and the shot struck in his back on the right side. He challenged the accused as to what was he doing. The accused replied that he was to kill to death and he would never be spared. He left the motor-cycle there and ran towards the railway crossing gate followed by PW 7 Ram Narayan. After covering some distance from there, he despatched Ram Narayan to bring some vehicle. Ram Narayan returned with PW 2 Mani Ram, as is also supported by Mani Ram and Ram Narayan, is a jeep. They all went in jeep to Ganganagar Hospital whereat he was admitted. PW 7 Ram Narayan while corroborating the statement of Om Prakash, stated that at about 9.30 p.m. they reached near the 'Dhani' of Tara Singh and, while reaching the place of occurrence they saw Tara Singh accused coming armed with a gun from the opposite side. Since there was waterlogging wad and, and as a result, the motor-cycle slipped and swerved :owards its right side. Om Prakash was attempting to control the same and before he :ould re-start the same, the accused from a distance of about 10 ft., fired a shot from his ire-arm which hit Om Prakash in his bent condition on his right side of the back. He stated that Om Prakash fell down and exhorted as to what was the accused doing, to which the accused replied that he was to kill him. Both of them left the motor-cycle there and ran away from there. He approached Mani Ram and returned with a jeep and, hereafter, they all went to Ganganagar Hospital. 17. PW 4 Shiv Narayan stated that he reached the Hospital in the early morning )f 26.7.1978 and recorded Ex. P/8 'Parcha Bayan' of Om Prakash. Om Prakash never eported in Ex. P/8 that he saw and identified the accused-respondent in the dark in the ight of his motor-cycle. Besides, this is also an important fact that the alleged occurrence place in the Kila No. 11 of the Murabba of the accused whereat the accused was iving in his 'Dhani'. There was no occasion for him to have suddenly appeared on the cene being armed with a gun. Besides, this is also an important fact that the alleged occurrence place in the Kila No. 11 of the Murabba of the accused whereat the accused was iving in his 'Dhani'. There was no occasion for him to have suddenly appeared on the cene being armed with a gun. Besides, Ram Narayan as well as Om prakash have clearly ,dmitted that there was another regular way of going to the 'Dhani' of Om Prakash and nstead, going through the usual way they opted to go through the way passing through he fields of the accused-respondent. They did not satisfactorily explain as to what made hem to go through this way in case Om Prakash apprehended that the accused was limical to him specially late in the night. 18. As regards motive for commission of the crime for the accused-respondent, Om prakash as well as Ram Narayan have stated that prior to this incident, about seven or eight months back, the elections of Sarpancha of the village were held and since Om Prakash as well as the accused supported candidate of the rival party and, therefore, the accused bore grudge and animosity towards Om Prakash and, as a result, he was so fired at from a fire-arm and hurt in the incident. However, the accused has denied that he had either any animosity with Om Prakash or that it was he who had fired at and hurt Om Prakash. 19. Besides, as has also been, while relying on the decision reported in Het Ram v. The State of Rajasthan, 1974 WLN (UC) 137 , as are the statements of Ram Narayan as well as Om Prakash that, after they were fleeing away from the scene of occurrence, the accused attempted to re-load his gun so that he could shot at again in an attempt to commit murder of Om Prakash but, as per the prosecution evidence, as is also borne out of the statement of PW 9 Harnam Singh and the alleged recovery memo Ex. P/15, accused was holding a 12 bore D.B.B.L. gun and, as a result, he had second cartridge loaded in the second barrel and after having fired first shot from the same he was never in need of re-loading the barrel of the gun and instead he could have fired second cartridge from the second loaded barrel of the gun. P/15, accused was holding a 12 bore D.B.B.L. gun and, as a result, he had second cartridge loaded in the second barrel and after having fired first shot from the same he was never in need of re-loading the barrel of the gun and instead he could have fired second cartridge from the second loaded barrel of the gun. As a result, since only single shot was fired and no second shot was attempted at, therefore, the evidence of the said witnesses that the accused was attempting to re-load his gun again nullifies their testimony that they could have seen the accused with the said D.B.B.L. gun and, at the same time, re-loading the same as well. 20. Both Om Prakash as well as Ram Narayan and so also PW 2 Mani Ram did not immediately report this incident at the Police Station, Sadar, Sri Ganganagar and instead they went to the Hospital. Though PW 6 Dr. Gupta as also stated by PW 4 Shiv Narayan, stated that Ex. P/9 requisition letter was forwarded to the Police Station, Sadar, Sri Ganganagar informing about the arrival of Om Prakash in an injured condition but Ex. P/9 does not bear any time. Besides, Ex. P/8 'Parcha Bayan' also did not bear any time of its recording and, the learned trial judge did not err while holding that it was suspicious whether Ex. P/9 was actually forwarded to the Police Station by PW 6 Dr. Gupta before Ex. P/8 was recorded. Besides, it is further doubtful whether Ex. P/8 was at all recorded in the night intervening 25 and 26.7.1978 and that Ex. P/12 FIR was exactly registered at 5 a.m. in the morning of 26.7.1978 as it purports to have been done. As a result, since the incident took place in the night and Om Prakash could not have ordinarily gone through the way passing through the fields of the accused specially late in the night and, at the same time, it could not have been a mere coincidence that the accused happened to arrive towards the place of occurrence from the opposite side and, without any immediate provocation or grounds therefor, he resorted to fire. This incident has taken place in the field of the accused himself. This fact has not been explained nor taken note of by the investigating Officer as well as the learned trial judge. This incident has taken place in the field of the accused himself. This fact has not been explained nor taken note of by the investigating Officer as well as the learned trial judge. The accused denied that he was inimical to PW 8 Om Prakash due to any election rivalry. Om Prakash too admitted that the elections were over well beyond seven or eight months before this incident took place. As a result, since neither Om Prakash nor the accused were contesting elections and there was also no direct conflict thereby providing burning motive to the accused to have made any attempt on the life of Om Prakash and, therefore, since there is evidence of Om Prakash as well as Ram Narayan who are interested witnesses and incident having taken place in the fields of the accused himself, as is also the conclusion of the learned trial judge, it cannot be denied that since Om Prakash was hurt by fire-arm shot, he suspected the accused, who was duly licensed and having a gun, to have shot at and hurt him and, therefore, on the basis of suspicion in the next day morning he named the accused-respondent as the probable person who was responsible for causing injury to him. Else, since he was not in a serious condition, they should have reported the incident at the Police Station, Sadar, Sri Ganganagar itself. None of them did so. 21. In this respect, the prosecution has also relied on the factum of recovery of the gun as well as an empty, from the place of occurrence besides the cartridges from the possession of the accused and, on the basis of Ex. P/16 report received from the R.S.F.S.L., Jaipur, it has attempted to borrow corroboration from the same to supplement its case on the ground that the empty recovered from the place of occurrence has been opined to have been fired from the gun recovered from the possession of the accused. 22. PW 9 Harnam Singh stated that the gun (C/1) was recovered from the possession of the accused from his house vide Ex. P/15 in presence of Nihal Singh and Gurdeep Singh pursuant to Ex. P/14 information given by the accused himself. The accused, instead, stated that he produced his licensed gun as well as its cartridges before the police itself. 23. As regards recovery of empty cartridge vide Ex. P/15 in presence of Nihal Singh and Gurdeep Singh pursuant to Ex. P/14 information given by the accused himself. The accused, instead, stated that he produced his licensed gun as well as its cartridges before the police itself. 23. As regards recovery of empty cartridge vide Ex. P/5 from the place of occurrence, PW 7 Ram Narayan has clearly stated that, though empty cartridge, wads etc. were recovered from the place of occurrence but he could not say whether the same were packed and sealed securely at the place of occurrence itself. PW 9 Harnam Singh stated that the empty cartridge so recovered besides the wads of cartridge recovered vide Ex. P/6 were sealed and packed and were, as is statement of PW 5 Sant Lal, Constable, sent to the R.S.F.S.L., Jaipur for examination by the Ballistic Expert. However, empty cartridge was recovered on 26.7.1978. Besides, the gun and the cartridges were recovered on 4.8.1978. However, as is also statement of Sant Lal, after the same were presented before the S.P., Sri Ganganagar, for sending a forwarding letter to the R.S.F.S.L., Jaipur on 19.8.1978, the same remained deposited in the Malkhana of P.S., Sadar, Sri Ganganagar and on 22.8.1978 Sant Lal collected all these articles and deposited the same at Jaipur Laboratory on 23.8.1978 as is borne out of Ex. P/16 itself. Sant Lal clearly stated that it was Trilok Chand who was Officer-in-charge of the Malkhana of the Police Station. Naturally, it was Trilok Chand who was in actual custody of all these articles so recovered during the course of investigation before they were handed over to Sant Lal to be carried to either S.P. office or the Jaipur and, naturally, there ought to have been a Malkhana Register in which all the articles are entered at the time of their being deposited in the Malkhana and as and when they are taken out of Malkhana for any purpose. However, the Malkhana Register was never produced before the Court. Not only this, since all these packets remained in the custody of Trilok Chand between 4.8.1978 to 22.8.1978 and, therefore, he was an important witness but he has not been examined by the prosecution. 24. PW 9 Harnam Singh did not deposit the seal used in packing the empty :artridge alleged to have been recovered vide Ex. Not only this, since all these packets remained in the custody of Trilok Chand between 4.8.1978 to 22.8.1978 and, therefore, he was an important witness but he has not been examined by the prosecution. 24. PW 9 Harnam Singh did not deposit the seal used in packing the empty :artridge alleged to have been recovered vide Ex. P/5 from the place of occurrence and :o have been sealed accordingly, to have been deposited in the Malkhana. Besides, there s no evidence that any specimen memo of the seal, so used in packing the cartridge case alleged to been recovered from the place of occurrence besides the gun as well as :artridges alleged to have been recovered at the instance of the accused, was prepared and the same was kept intact with the Malkhana In-charge and that the same was orwarded in any sealed envelope with Sant Lal to the R.S.F.S.L., Jaipur, so that the Jerson receiving the packets at the Laboratory could tally the specimen of the seal orwarded to him with the seal impressions as affixed on those articles while packing and sealing the same. Asa result, since all these articles were despatched to the R.S.F.S.L., aipur after quite some delay, which has not been explained and besides, there is no chain of evidence to conclude that the empty of the cartridge alleged to have been fire( at the place of occurrence as well as the gun recovered at the instance of the accuse( were duly packed and sealed right at the time they were taken into possession and the same remained in the same packed and sealed condition till they were deposit with the R.S.F.S.L., Jaipur and they remained in the same condition before they wen used for their examination by the Ballistics Expert. 25. As a result, the learned Sessions Judge cannot be held to have committed error while concluding that there was no evidence to prove beyond reasonable manner o doubt that the empty cartridge so forwarded to the Laboratory and subjected ti examination along with the gun recovered from the possession of the accused were, an, how, linked in the manner as disclosed in Ex. P/16 report to conclude that the cartridge, of the empty case recovered from the place of occurrence was used from the recovered from the possession of the accused. 26. P/16 report to conclude that the cartridge, of the empty case recovered from the place of occurrence was used from the recovered from the possession of the accused. 26. Therefore, in the aforesaid circumstances, when this Court is required t, reappraise and reassess the prosecution evidence to set aside the impugned judgmer passed in respect of an incident alleged to have taken place on 25.7.1978, it has to be o its extra guard to assure that the prosecution has been able to prove its case beyon reasonable manner of doubt and then and then alone it could be justified to reverse the order of acquittal. 27. As a result, the learned Sessions Judge who did not place reliance on the testimony of PW 7 Ram Narayan and PW 8 Om Prakash and besides did not rely on ti factum of the recovery of the empty cartridge as well as the gun, in the manner deposed to by the prosecution side and, therefore, even after reappraisal of the prosecution evidence, there is no compelling ground to disagree from the view taken by the learned trial judge to reach a conclusion which is at variance with the one recorded the impugned order of acquittal which would constitute a valid and sufficient grow for setting aside the acquittal. Even if the view in regard to evidence of the prosecution taken by the learned trial Judge is categorized to be erroneous, unless the same perverse, it is not possible to substitute the view at variance from the one taken by learned trial judge which also appears to be plausible one and, as a result, there is legal warrant for interference with the impugned order of acquittal passed in favour the accused-respondent. 28. On the basis of the facts and circumstances discussed above, There is no me in this appeal and the same deserves to be dismissed. 29. Therefore, this appeal is dismissed and thereby the impugned order of the accused-respondent is affirmed. The bail bonds of the accused-respondent cancelled and he need not surrender to the same.Appeal dismissed. *******